GSB#2008-3401

Union# G-90-08-BO

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Keaney)

Union

• and -

The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Simon Blackstone Green & Chercover Counsel

FOR THE EMPLOYER

Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors

HEARING

July 7, 2010.

Decision

The Proceedings

1This is a preliminary matter in which the Union seeks to exclude the report of a forensic handwriting analyst. The report compared a handwritten comment on a sympathy card with samples of the grievor’s handwriting on various business documents held by the Employer. The Union takes the position that it was a breach of the grievor’s privacy for the Employer to have provided the samples to the forensic handwriting analyst. The Union relies on the provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990 Chapter F.31, as amended (hereafter “FIPPA” or the “Act”).

The Facts

2The father of one of the Employer’s supervisors passed away, and a sympathy card was made available for employees to sign. An anonymous contributor wrote a comment on the card which, the Employer says, naturally caused the supervisor anguish. From its own assessment of the handwriting and other surrounding factors, it concluded that the grievor wrote the comment. It confronted the grievor with its conclusion. The grievor denied having written the comment and even knowing the card existed.

3The Employer gathered together documents in its possession that included samples of the grievor’s handwriting. Those documents consisted of a “Request for Time-Off” form as well as a number of “Notification Reports”. The latter reports were documentation of incidents that occurred in the course of the grievor driving his bus. There are six such reports.

4The Employer retained a forensic handwriting analyst to compare the offending comment on the card with the business record samples. He concluded that the person who wrote the comment on the card was conclusively one and the same as the person who wrote the samples. The grievor was confronted with that conclusion. He maintained his denial. He was suspended for four days for having written the comment, for having shown no remorse, and for not having taken responsibility for his actions.

5The following provisions of FIPPA were referred to by the parties:

2. (1) …

“personal Information” means recorded information about an identifiable individual, including,

(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; (renseignements personnels”)

“record” means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”)

41. (1) An institution shall not use personal information in its custody or under its control except,

(a) where the person to whom the information relates has identified that information in particular and consented to its use:

(b) for the purpose for which it was obtained or compiled or for a consistent purpose:

42. (1) An institution shall not disclose personal information in its custody or

under its control except,

(c) where disclosure is made to an officer, employee, consultant or agent of the institution who needs the record in the performance of their duties and where disclosure is necessary and proper in the discharge of the institution’s functions;

65. (6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

66. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

67. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.

68. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. 1995, c. 1, s. 82.

The Union’s Submissions

6The Union submitted that the use made by the Employer of the business documents to identify the grievor was collateral to the purpose for which they were created. That use was said to be contrary to FIPPA. Accordingly, any report obtained is inadmissible because it was obtained contrary to law.

7The Union said that the first document, the “Request for Time-Off” included personal information as to the reason the request was made, the grievor’s signature and his handwriting. The Union said that those are all personal identifiers protected from disclosure pursuant to FIPPA. The “Notification Reports” include the grievor’s handwriting, which was said to be personal information in and of itself. The Union said that this Employer is bound by FIPPA to safeguard and protect the personal information it gathers in relation to its employees.

8The Union submitted that the structure of FIPPA is to put in place a broad prohibition against the disclosure of personal information, subject to specific exceptions, none of which apply in these circumstances.

9The Union also submitted that I have the jurisdiction to apply FIPPA as an employment related statute and that the information here, including the grievor’s handwriting, was personal information. The Employer did not concede these two points. It argued its position on other considerations. In these circumstances, I assume, without deciding, that the Employer is bound by FIPPA, I have the jurisdiction to apply FIPPA, and the information at issue, including the handwriting, is “personal information”.

10The Union reviewed the labour relations exceptions to the application of FIPPA set out in s. 65(6). It said that good public policy in the labour relations context was to ensure that employees have confidence that the form and content of documents they are required to fill out in the course of their employment be treated by their employer in a manner that is respectful of their privacy. That is to be achieved by narrowly construing the labour relations exceptions to the Act’s application.

11The Union said that the documents themselves must relate to one of the three categories of exceptions set out in s. 65(6). It said these documents did not fall into those categories. That is, they did not relate to proceedings or anticipated proceedings; they clearly did not relate to negotiations nor were they related to meetings, consultations, discussions or communications about labour-relations or employment-related matters. With respect to the latter exception, being that in s. 65(6) 3, the Union said that that exception deals with macro issues, not issues involving individuals. The majority of the documents at issue here were said not to be related to employment matters but rather were related to the general operations of the Employer. Accordingly, they were covered by FIPPA. Among other authorities, the Union relied on the following excerpt from MCS and David GOODIS, Senior Adjudicator and Jane DOE, Requestor, 2008 CanLII 2603 (ON S.C.D.C.):

[26] Moreover, s. 65(6) should be interpreted in light of the purpose of the Act, which is found in s. 1. It states:

The purposes of this Act are:

(a) to provide a right of access to information under the control if institutions in accordance with the principles that,

i. information should be available to the public,

ii. necessary exemptions from the right of access should be limited and specific, and

iii. decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

The interpretation suggested by the Ministry in this case would seriously curtail access to government records and thus undermine the public’s right to information about government. If the interpretation were accepted, it would potentially apply whenever the government is alleged to be vicariously liable because of the actions of its employees. Since government institutions necessarily act through their employees, this would potentially exclude a large number of records and undermine the public accountability purpose of the Act (Ontario (ministry of Transportation) v. Ontario (Information and Privacy Commissioner), 2005 CanLII 34228 (ON CA), [2005] O.J. No. 4047 (C.A.) at para. 28).

12The Union said that the Act prohibits use or disclosure without consent and the exceptions do not apply. Further, there are strong labour relations reasons to protect the privacy of employees. The Union relied on the following authorities: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, CHAPTER F.31, as amended; Kawartha Pine Ridge District School Board v. Elementary Teachers’ Federation of Ontario (S.D. Grievance) 2008, 169 L.A.C. (4th) 353 (Luborsky); Order M-585, Thunder Bay District Health Unit (August 24, 1995); order MO-1194, Town of Ancaster (March 8, 1999); Solicitor General and Minister of Correctional Services and Tom Mitchinson, Assistant Commissioner and John Doe, Requester 2001 CanLII 8582 (ON C.A.); Ministry of Correctional Services and David Goodis, Senior Adjudicator, and Jane Doe, Requester 2008 CanLII 2603 (ON S.C.D.C.).

The Submissions of the Employer

13The Employer submitted that it was motivated by appropriate labour relations rationales when it used the documents in question as it did. It said that there were three exceptions to FIPPA that allowed the use of the documents in question, being s.65(6)1., s. 65(6)3 and, in the alternative, s. 42(1)(d).

14The Employer submitted that the preamble to s. 65(1) has four distinct aspects, being records “collected, prepared, maintained or used”, which apply to the three listed labour relations purposes. It said that it “used” the documents within the context of the first and third exceptions, so the Act does not apply.

s. 65(6) 1

15First, the Employer said that it used the documents for anticipated proceedings. It said that with the grievor’s denial of responsibility the Employer could anticipate that there would be labour relations proceedings, and it was free to use the documents in relation to those anticipated proceedings. The Employer said that as long as the proceedings were a real possibility, which was surely the case here, the first exception is established and the Act does not apply.

s. 65(6) 3

16Second, personal information need not be collected or prepared for meetings, consultations, discussions or communications in order to be legitimately used in meetings, consultations, discussions or communications about labour relations matters in which the Employer had an interest. Existing documents containing personal information may be “used” provided the use relates to labour relations matters. It said that the circumstances here meet those requirements. The documents were not created in order to disclose them to the Union, but that is not the test. They were used in consultations and meetings dealing with labour relations matters. Further, it had a legitimate interest in finding out who had written the remarks on the card in order to promote an harassment-free workplace.

s. 42(1)(d)

17Third, the Employer said in the alternative that in this case there was disclosure of the personal information to a consultant to the institution who needed the records to carry out his analysis. Further, the Employer submitted that it was necessary and proper to disclose the personal information in order to complete a thorough investigation of the incident. It had only one suspect, who had denied any involvement. In order to promote a workplace free of harassment, discrimination and abuse it was necessary to properly investigate. It was a labour relations requirement to thoroughly investigate before leveling any discipline. The Employer submitted that s. 42(1)(d) permits disclosure of documents to which the Act applies. Its primary submission was that FIPPA does not apply to these documents.

18The Employer said that an employer’s ability to use and disclose information has been broadened over time, including by statutory amendment. Section 42(1)(d) was added after 2005 and the previous discretion in the Privacy Commissioner to invoke s. 65(6) was taken away, leaving its subsections as discrete exemptions not subject to discretion. It also said that care must be used in applying the Union’s authorities, as they are cases where outside access was being sought to inert documents. In disclosure cases such as this, it will almost always come down to “use”. Provided the use is related to labour relations, such usage is exempt from FIPPA.

19The Employer relied on the following authorities: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter F.31; Order MO-2507; City of Ottawa, [2010] O.I.P.C. No. 34; Order PO-2613; Ministry of Government Services, [2007] O.I.P.C. No. 154; Order PO-2531; Ministry of Community Safety and Correctional Services, [2006] O.I.P.C. No. 226; Privacy Complaint Order PC-020052-1; Ministry of Public Safety and Security, [2003] O.I.P.C. No. 140; Privacy Complaint Order PC-020022-1; Ministry of Public Safety and Security, [2003] O.I.P.C. No. 19.

The Reply Submissions of the Union

20The Union said that timing is a factor when considering whether there are anticipated proceedings.

21The Union also submitted that the Employer’s focus solely on “use” leads to the result that any document would fall under the s. 65(6)3 exemption. The Union said that it is necessary to look at what the document is. These documents are not related to employment; they are related to operations. The subsequent use of them is not dispositive of the application of the Act.

22As for s. 42(1)(d), the Employer’s view would permit the Employer to contract out of the Act. Here it was not “necessary” to make the disclosure. The grievor could have been asked for his consent, which he was not.

Reasons for Decision

23For ease of reference s. 65 (6) is again set out as follows:

65. (6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

66. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

67. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.

68. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. 1995, c. 1, s. 82.

24The Employer here relies on the first and third exceptions set out in section 65(6). Section 65(6) was considered by the Ontario Court of Appeal in 2001 and by the Ontario Divisional Court in 2008 in Mitchinson, supra, and Goodis, supra, respectively. Both cases involve outside requests for the release of information.

25In Mitchinson there were three appeals relating to three unrelated requests for the release of information. The responsible government officials had decided that s. 65 applied, so the Act did not apply and access to the records was denied. Those decisions were overturned by the Assistant Privacy Commissioner (hereafter “APC”). The decisions of the APC were upheld on review by the Divisional Court as both reasonable and correct. The Court of Appeal ruled that the standard of review was correctness. The APC’s decisions were determined by the Court of Appeal to be incorrect and the decisions of the heads of the respective Ministries were restored. The Court held that the APC erred “first, by restricting the meaning of “interest” to a “legal interest” in s. 65(6) 3, and, second, by introducing an erroneous time element into both s. 65(6) 1 and s. 65(6) 3.” In the latter regard, the APC found that the “interest” of the employer had to be a current legal interest. Similarly, with respect to s. 65(6) 1, the APC held that the proceedings or anticipated proceedings had to exist at the time the request for the documents was made. It was not sufficient that such a situation had previously existed. As noted in the Court’s Decision at paragraph 36, the APC concluded, in part, as follows:

… However, when proceedings have been completed, are no longer anticipated, or are not in the reasonably proximate past, disclosure of these same records could not possibly have an impact on any labour relations issues directly related to these records, and different considerations should apply.

26The Court held in paragraph 38 that time sensitivity is addressed in the preamble to s. 65(6). It underscored that there are four relevant actions in the preamble that speak to time. Paragraph 38 reads as follows:

[38] In my view, the time sensitive element of subsection 6 is contained in its preamble. The Act “does not apply” to particular records if the criteria set out in any of sub clauses 1 to 3 are present when the relevant action described in the preamble takes place, i.e. when the records are collected, prepared, maintained or used. Once effectively excluded from the operation of the Act, the records remain excluded. The subsection makes no provision for the Act to become applicable at some later point in time in the event the criteria set out in any of sub clauses 1 to 3 cease to apply.

(emphasis added)

27I take the Court’s decision to mean that the four actions are distinct, as is also indicated by the disjunctive “or”. Accordingly, I find that the time at which the documents were “used” is the relevant time at which to consider whether the ambit of the Act is excluded because the usage is for a labour relations purpose.

28The Union submitted that s. 65(6) 3 does not apply to the circumstances of an individual employee; rather, it deals with what the Union described as “macro” issues. It relied on paragraph 35 of the Court’s Decision, which reads as follows:

[35] As already noted, section 65 of the Act contains a miscellaneous list of records to which the Act does not apply. Subsection 6 deals exclusively with labour relations and employment related matters. Subsection 7 provides certain exceptions to the exclusions set out in subsection 6. Examined in the general context of subsection 6, the words “in which the institution has an interest” appear on their face to relate simply to matters involving the institution’s own workforce. Sub clause 1 deals with records relating to “proceedings or anticipated proceedings relating to labour relations or to the employment of a person by the institution [emphasis added]. Sub clause 3 deals with records relating to a miscellaneous category of events “about labour-relations or employment related matters in which the institution has an interest”. Having regard to the purpose for which the section was enacted […], and the working of the subsection as a whole, the words “ in which the institution has an interest” in sub clause 3 operate simply to restrict the categories of excluded records to those records relating to the institutions’ own workforce where the focus has shifted from “employment of a person” to “employment-related matters”. To import the word “legal” into the sub clause when it dies not appear, introduces a concept there is no indication the legislature intended.

(emphasis added)

29The Union also pointed to paragraph 23 of the Goodis decision released by the Divisional Court, to support its submission that s. 65(6) 3 is not directed to concerns about individual employee actions. Paragraph 23 reads as follows:

[23] Moreover, the words of subclause 3 of s. 65(6) make it clear that the records collected, prepared, maintained or used by the Ministry in relation to meetings, consultations or communications are excluded only if those meetings, consultations, discussions or communications are about labour relations or “employment-related” matters in which the institution has an interest. Employment-related matters are separate and distinct from matters related to employees’ actions.

30A complete reading of the Divisional Court’s decision supports the conclusion that the Court was differentiating between documents related to the actions of employees that might result in the employer being held vicariously liable and documents related to matters in which the institution is acting as employer. For example, with regard to s. 65(6) 1, not all proceedings or anticipated proceedings cause an exemption from the Act. The proceedings or anticipated proceedings must relate to labour relations or to the employment of the person. This is clear from paragraph 22 of the Divisional Court’s Decision:

In my view, the language used in s. 65(6) does not reach so far as the Ministry argues. Subclause 1 of s. 65(6) deals with records collected, prepared, maintained or used by the institution in proceedings or anticipated proceedings “relating to labour relations or to the employment of a person by the institution”. The proceedings to which the paragraph appears to refer are proceedings related to employment or labour relations per se – that is, to litigation relating to terms and conditions of employment, such as disciplinary action against an employee or grievance proceedings. In other words, it excludes records relating to matters in which the institution has an interest as an employer. It does not exclude records where the Ministry is sued by a third party in relation to actions taken by government employees.

31Further, in paragraph 24, the Divisional Court considered the impact of s. 65(7). The types of records excluded from the application of the Act are only those documents related to matters in which the institution is acting as an employer:

[24] The scope of s. 65(6) is made clearer when one looks at the relationship between it and s. 65(7), as well as the legislative history of the provision. Subsection 65(6) is subject to s. 65(7), which states:

This Act applies to the following records:

1. An agreement between an institution and a trade union.

2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.

3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.

4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.

The fact that the Act applies to the documents in subclauses 1 through 3 of s. 65(7) suggests that the type of records excluded from the Act by s. 65(6) are documents related to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue.

32All of the documents used here “are documents related to matters in which the institution is acting as employer, and terms and conditions of employment or human resources questions are at issue”. These documents are all related to the grievor’s employment. In this case, they were used by the Employer to further labour relations goals. With respect to s. 65(6)1, the Employer reasonably anticipated that labour relations proceedings might flow from its allegations against the grievor. With respect to s. 65(6) 3, it was engaged in “meetings, consultations, discussions or communications” about the grievor’s alleged behaviour and it used employment-related records to seek to establish its allegations against the grievor. Labour relations are enhanced by providing the Employer with the ability to fully investigate its concerns before imposing discipline on an employee. Manifestly, the Employer had an interest in maintaining discipline, and promoting an harassment-free work-place by dealing thoroughly with this incident.

33By virtue of the provisions of sections 65(6)1 and 3, the Act does not apply to the documents in question and the Employer was not prohibited from disclosing them to its consultant. Accordingly, FIPPA does not stand in the way of the admission into evidence of the consultant’s report. Having determined that the Act does not apply, it is not necessary to consider s. 42(1)(d), which permits disclosure of documents to which the Act does apply.

The Decision

34For the reasons set out above, the Union’s preliminary objection is dismissed.