CITATION: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 5109

DIVISIONAL COURT FILE NO.: 022/23

DATE: 2023/09/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Schabas JJ.

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

Applicant

– and –

TEAMSTERS CANADA RAIL CONFERENCE and ARBITRATOR WILLIAM KAPLAN

Respondents

Rachel Laurion, for the Applicant

Ken Stuebing and Sukhmani Virdi, for the Respondent, Teamsters Canada Rail Conference

HEARD at Toronto: August 24, 2023

H. Sachs J.

Overview

[1] This application for judicial review arises out of a policy grievance brought by the Respondent Union in relation to the Applicant Employer’s disclosure of employee medical and health information. The grievance centred around a consent form entitled Functional Abilities Form for Safety Critical Positions (“FAF”) that employees were expected to sign. The FAF permitted the Employer to release medical information to an expanded class of people for an expanded purpose. The initial form permitted the Employer to release information about an employee’s functional limitations and restrictions to supervisors for the purposes of return-to-work and accommodation planning. The new form authorized the Employer to release medical information to supervisors or the Employer’s labour relations department for purposes such as managing the employment relationship and responding to grievances.

[2] The new form also stated that any use and disclosure of employee medical information would be in accordance with the Applicant’s Policy 1804. Policy 1804 provides that relevant employee medical and occupational health information may be shared with managers and supervisors where necessary to manage the employment relationship. It also authorizes disclosure of employee medical and occupational health information without consent in a list of defined circumstances.

[3] The Union grieved, alleging that the revised FAF was unnecessary, overly intrusive and in breach of its members’ privacy rights. During the course of the grievance the Union also attacked the provisions of Policy 1804.

[4] The Arbitrator heard the argument and issued an award (the “Initial Award”) in which he found as follows with respect to the FAF employee consent provisions: “Except as required by law, supervisors and managers are only entitled to information about functional limitations.” The Arbitrator also indicated he remained seized of the matter with respect to the implementation of the Initial Award.

[5] Following the release of the Initial Award, Policy 1804 remained in place and the FAF employee consent provision still referred to it. The Union moved before the Arbitrator asking him to take further steps to implement his Initial Award. The Arbitrator directed the Employer to immediately eliminate the reference to Policy 1804 in the FAF employee consent provision. He also ordered that to the extent that Policy 1804 continued to allow the disclosure of medical information beyond functional abilities for accommodations (or for use in an accommodation grievance or as required by law), it was of no force and effect (the “Supplemental Award”).

[6] The Employer is now seeking to judicially review the Supplemental Award, arguing that it is unreasonable for three reasons. First, the Arbitrator exceeded his authority when he made a decision on Policy 1804 outside of the context of FAF employee consent provisions. Second, the Supplemental Award is unreasonable because there was no clear evidence before the Arbitrator that the Employer breached the Initial Award by using the FAF to disclose information beyond functional restrictions and limitations. Third, The Arbitrator failed to properly engage with the Employer’s submissions that Policy 1804 complied with Personal Information Protection and Electronic Documents Act, S.C. 2000 C.5 (“PIPEDA”) and arbitral case law on the release of employee health information.

[7] For the reasons that follow the application for judicial review is dismissed. The Arbitrator’s finding that the grievance included Policy 1804 was reasonable. Given this, the Union’s evidence of disclosure of employee health information outside of the functional abilities context was a sufficient evidentiary basis for the Arbitrator to find that further steps needed to be taken to implement his Initial Award. Finally, the Arbitrator’s conclusion that the application of Policy 1804 had to be limited was reasonable. Contrary to the argument of the Employer, the Arbitrator applied the relevant arbitral principles on disclosure of employee medical information and reached a conclusion that was consistent with those principles.

Standard of Review

[8] Both parties agree that the standard of review applicable to the Arbitrator’s decision is reasonableness.

[9] In addition to being parties to a collective agreement, the Union and the Employer are also parties to a Memorandum of Agreement, establishing the Canadian Railway Office of Arbitration (“CROA”). CROA is a highly specialized tribunal, established to efficiently meet the unique needs of labour disputes within the Canadian railway industry. In Canadian National Railway Company v. Teamsters Canada Rail Conference, 2020 ONSC 7286, at para 21 the Divisional Court recognized CROA as a “highly specialized administrative tribunal” and that, given its mandate to provide a “fluid and efficient mechanism to manage employment relations in a complex industry”, decisions from CROA have “attracted a high degree of deference by reviewing courts.”

[10] As described by the Union (which the Employer did not dispute), the CROA process has been frustrated in the last ten years or so by the growing number of grievances and the lack of mutually agreeable arbitrators to sit as part of the fixed roster. In order to address the backlog of grievances, the Union and the Employer have resorted to ad hoc processes, outside of the formal CROA system, but governed by the same rules. Frequently, the parties have consented to using the Arbitrator in this case, William Kaplan, to hear their grievances through the ad hoc process. Mr. Kaplan is well known, experienced and respected in the labour relations world.

[11] Given this, it is worth highlighting the recent reminder from the Ontario Court of Appeal about the role that expertise plays when a decision is being reviewed for reasonableness. In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780 the Court stated:

[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting [a] reasonableness review.” Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, a decision maker’s specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.”(para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.

Did the Arbitrator Exceed His Conferred Authority?

The Applicant Employer’s Position

[12] In making its argument, the Employer emphasizes what it says are the relevant facts to consider in determining the question of whether the Arbitrator exceeded his conferred authority. Below is a summary of those facts.

[13] The Initial Award (which the Employer did not seek to judicially review), allowed the Union’s grievance, dated March 2, 2015 (the “Grievance”).

[14] The Grievance alleged that the employee consent provisions of the FAF, which allowed the Employer to disclose employee medical information was unnecessary, overly intrusive and in breach of its members’ privacy rights. The Grievance did not mention Policy 1804 or take any issue with it. Further, in the Grievance, the Union indicated that, pending the resolution of the Grievance, the Union would be directing its members to redact and initial one sentence in the employee consent portion of the FAF. The offending sentence that was to be redacted read:

I further authorize OHS to release relevant medical information to CP’s Supervisors where necessary to manage the employment relationship including investigating misconduct or performance issues, to assess the duty to accommodate and compliance with last chance/reinstatement/employment agreements, or to industrial/Labour Relations and my Union Representative for the purposes of responding to grievance/arbitration or other proceedings when the information is relevant to the proceeding.

The Union did not say that it was directing its members to redact the sentence in the employee consent provision of the FAF that referenced Policy 1804 and reads: “Any use and disclosure of my medical information will be in accordance with legal requirements and CP Policy 1804, Privacy Information.”

[15] In advance of the arbitration, the parties prepared a Joint Statement of Issues (in accordance with the CROA Rules). The Joint Statement of Issues described the parties’ dispute as follows:

Policy grievance regarding the expanded requirement for employees to provide broad consent to release information to immediate supervisors, through Functional Abilities Forms (FAFs).

[16] While the dispute description contained no reference to Policy 1804 in the body of the Joint Statement of Issues, the Union alleged that both the FAF and Policy 1804 violated the parties’ collective agreement, PIPEDA and the Canadian Human Rights Act, RSC, 1985, c.H-6. It sought an order requiring the Employer to revise the FAF and Policy 1804 to remove the provisions permitting the disclosure of employee medical and occupational health information beyond functional limitations to supervisors. The Employer objected to the Union’s attempt to expand the scope of the Grievance to include Policy 1804, when there was no reference to Policy 1804 in the Grievance.

[17] In its written submissions before the Arbitrator, the Employer reiterated its position that the Arbitrator had no jurisdiction to address Policy 1804 as it was not raised in the Grievance. According to the Employer, the CROA rules provide that no dispute may be referred for arbitration that has not been processed through the grievance procedure in the parties’ collective agreement. Since the Grievance did not raise Policy 1804, it had not been processed through the collective agreement grievance procedure.

[18] The parties attended for a hearing before the Arbitrator on October 31, 2018 and the Arbitrator issued his initial award approximately three weeks later, on November 22, 2018. The Initial Award reads as follows:

This case concerns an employer revision to the employee consent provision of the FAF. It proceeded to a hearing in Toronto on October 31, 2018. At that time, and with the explicit consent of counsel, an effort was made to resolve the outstanding issues in dispute. It was agreed that the parties would continue those discussions following the hearing, but that if they were unable to resolve the outstanding matters, I would, as was discussed at the hearing, issue a direction. Unfortunately, the parties were unable to reach an agreement. Accordingly, I direct as follows with respect to the consent provision of the FAF:

Except as required by law, supervisors and managers are only entitled to information about functional limitations.

At the request of the parties, I remain seized with respect to the implementation of the award.

[19] Since the Initial Award makes no mention of Policy 1804 and describes the direction issued as being “with respect to the consent provision of the FAF”, the Employer’s position is that the Initial Award did not address Policy 1804.

[20] Therefore, when the Union went back to the Arbitrator alleging that the Employer had breached the Initial Award through its use of Policy 1804, the Employer alleged before the Arbitrator that since the Union had no evidence that the Employer had breached the Initial Award through its use of the FAF consent provisions, and since Policy 1804 was not addressed in the Initial Award, the Arbitrator had no jurisdiction to consider the Union’s allegations of breach.

[21] The Arbitrator found that he did have jurisdiction and issued the Supplemental Award.

[22] The Employer submits before us that the Supplemental Award should be set aside because the Arbitrator’s conclusion that he had jurisdiction to deal with Policy 1804 was unreasonable. In making its oral submissions, the Employer did concede that the Arbitrator had jurisdiction to deal with Policy 1804, but only insofar as it related to a disclosure pursuant to the consent provisions of the FAF. None of the disclosures that the Union alleged breached the Initial Award were made pursuant to the consent provisions of the FAF.

[23] In making this submission, the Employer emphasized the fact that the Arbitrator's Supplemental Award had the effect of forbidding a particular disclosure pursuant to the consent provisions of Policy 1804, even though the Union had conceded that this particular disclosure was appropriate. In particular, the Employer points to a paragraph in the Union’s written submissions before the Arbitrator on October 31, 2018 where it states:

By contrast to this expanded disclosure of health information in FAFs, the Company’s Periodic Medical Report limited the employee’s consent to release personal health information to the Company’s OHS only.

The Employer filed the employee consent provision of the Periodic Medical Report (which deals with employees who work in Safety Critical Positions) and pointed out that it contains both the sentence that the Union directed its employees to redact from the FAF as well as the sentence specifying that any use and disclosure of the employee’s medical information would be in accordance with “legal requirements and Policy 1804”.

[24] The Employer appeared to be arguing that the Union had conceded that there was nothing wrong with the employee consent provisions of the Periodic Medical Report and yet the Arbitrator’s Supplementary Award affected those consent provisions in a material way. According to the Employer, this is just one example of how the Arbitrator’s Supplemental Award affected situations that had not been properly argued or canvassed before him. This was a clear sign that the impugned award was unreasonable.

The Arbitrator’s Reasons on Jurisdiction

[25] As already noted, the Arbitrator, in his Supplemental Award, concluded that “There is no doubt – as discussed further below- that both the FAF consent provision and Policy 1804 were directly engaged by the grievance and that I had jurisdiction over both.”

[26] In the Supplemental Award the Arbitrator reviewed the submissions made before him by the Employer on the question of his jurisdiction. They largely mirror the arguments made before us.

[27] Having considered these submissions, the Arbitrator found as follows:

To be clear: there has never been any dispute between the parties that both the FAF itself and Policy 1804 were in issue: a conclusion that was in any event made manifest by the JSI [the Joint Statement of Issues], not to mention the conduct of the parties before, at and after the hearing. It is true enough that the Company objected to what it described as an expansion of the grievance, nevertheless, in their written submissions, at the hearing, and afterwards, the parties by their actions and submissions made it perfectly clear that Policy 1804 was central to the case ( a conclusion that would have been, in any event, reached by the application of the governing principles that direct arbitrators to focus on the central issues in dispute).

To now argue otherwise is, respectfully, counterfactual. The union has been on record since the date its grievance was first filed that it objected to the FAF and Policy 1804, and the parties cast all their submissions in the shadow of this objection. Indeed, the documentary record is incontrovertible that Policy 1804 was squarely in issue when the grievance proceeded to a hearing and thereafter (See, for example, Tab 5 of the union Book of Documents).

[28] In essence, the Arbitrator relied on two main factors in coming to the conclusion he did have jurisdiction: the application of the governing principles that direct arbitrators to focus on the central issues in dispute and the conduct of the parties as revealed through the documentary record before him. In order to assess the reasonableness of the Arbitrator’s decision I will deal with both of these factors to assess whether they justify the conclusion the Arbitrator reached.

Governing Principles

[29] In referring to the “governing principles”, the Arbitrator was clearly referring to the Ontario Court of Appeal’s decision in Re Blouin Drywall Contractor Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486.

[30] In Blouin Drywall the Court of Appeal allowed an appeal from a decision of the Divisional Court that quashed an arbitration award on the basis that the board had exceeded its jurisdiction. The award in question was based on a “finding that the company had broken the preferential hiring and hiring hall clauses in the collective agreement by hiring non-union men to do the work of the bargaining unit” (Blouin Drywall). The board granted a remedy for the breach and the Divisional Court found that a portion of that remedy exceeded the board’s jurisdiction. In overturning the Divisional Court’s decision, the Court of Appeal found:

When a board of arbitration is satisfied on the evidence that a party to a collective agreement is in breach thereof, it is the board’s obligation to render its decision accordingly. However, that decision is not simply a statement of the finding of the board with respect to the allegation made in the grievance but it is also the consequential order or award, if any, that is required to give effect to the agreement. Certainly, the court is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights and duties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position he would have been in had the agreement been performed.

[31] The Blouin decision has long been cited for the principle that a “grievance should be liberally construed so that the real complaint is dealt with.” The fact that the Arbitrator referred to the principle without citing Blouin (which the Union put before him in its submissions) is the type of “omitted detail” that one might expect from a specialized decision-maker.

[32] The Arbitrator accepted that the Union’s “real complaint” was that the FAF consent form (and the policy mentioned in it – Policy 1804) was being used as a vehicle for the Employer to get around the limited disclosure of employee health records and information that the law allows and considers reasonable. As will be discussed further below, the Union argued, and the Arbitrator accepted, that, except as explicitly required by law, medical information may be disclosed in the workplace only for the purposes of accommodation and that information is limited to the information necessary to further that purpose. Further, disclosure is limited to the people who are involved in facilitating accommodation. According to the Union, the FAF consent provisions and Policy 1804 allowed supervisors, managers, and labour relations professionals to access employee health information for a wide variety of purposes unconnected with any legal requirement or with furthering accommodation.

The Conduct of the Parties as Disclosed by the Record

Grievance Reduction Initiative

[33] The record contains a document entitled “Grievance Reduction Initiative” that records the agreement that the parties had reached about the measures to be taken to reduce their current backlog of grievances. Item 4 of that document details the “key outstanding grievance items” and addresses the manner in which they will be resolved. One of the “key outstanding grievance items” was the grievance at issue. In describing the grievance the following wording appears:

8. FAF Policy- expanded requirements for employees to provide broad consent to release info to immediate supervisors and requiring employees to produce the form prior to being returned to work.

In resolve,

1. The Company revise all applicable policies and procedures (1804) and medical request forms, including a Fitness Assessment Form, removing the ability for OHS to release medical information to CP supervisors/managers or Labour Relations where necessary to manage the employment relationship including investigating misconduct or performance issues, to assess the duty to accommodate and compliance with last chance/reinstatement/employment agreements.

ii. The Company also amends all applicable policies (1804) and

medical request forms removing the reference to consent being

provided throughout the period of employment with CP.

[34] From this description it is clear that while the parties may refer to the grievance at issue as a “FAF Policy” grievance the Union was seeking to have the Employer revise all its policies and procedures impacting medical request forms, including Policy 1804.

The Grievance

[35] The Grievance between the parties was filed on March 2, 2015. It starts with the statement: “It has come to the Union’s attention that the employees’ consent of the Functional Abilities Forms has been expanded to include broad consent to release information to their immediate supervisors. Please accept this policy grievance…” Thus, what triggered the grievance was the expanded consent form in the FAF, which was amended in 2013 to allow the Employer’s Occupational Health Services department (“OHS”) to release medical information to supervisors or the Labour Relations department for purposes such as managing the employment relationship and responding to grievance or arbitration proceedings.

[36] However, in the body of the grievance the Union goes on to state its real concern:

The Union’s principal concern is that the expanded consent is unnecessary and intrusive. Employees’ immediate supervisors are not entitled to medical information that includes diagnoses, just medical restrictions. In in [sic] the Safety Critical context, CP’s personnel can and should attend to such information. Employees’ immediate supervisors are not entitled to such fundamentally sensitive, private medical details.

At most, employees’ supervisors can be entitled to know medical restrictions, if any, without reference to a diagnosis. There is no reason that this historic practice need now be expanded to provide supervisors full, intrusive access to employees’ personal medical information beyond stated restrictions.

The Company has failed to demonstrate any need for this broad, expanded request for employee consent. The revised FAFs are by their very nature intrusive and inherently invasive of employee privacy interests. Moreover, the Union has serious concerns that there is a potential for information obtained through these requests to be used for an unintended purpose.

[37] First, what is apparent from this outline of the Union’s real concern, is that it is not objecting to the disclosure of information to the Employer’s Occupational Health Services. What it questions is the information being disclosed to supervisors or labour relations personnel. Second, the Union is objecting to the expanded disclosure facilitated by the FAF consent provisions because of the general principle limiting the information that employees’ immediate supervisors are entitled to. According to the Union, an employee’s supervisor is entitled to know about that employee’s medical restrictions, not about diagnoses. Third, contrary to the submission of the Employer, it is clear that this concern also applies in the Safety Critical context. Thus, a reasonable reading of this document would be that the FAF consent provisions are being used as a vehicle to provide front line supervisors and personnel with medical information that they would not otherwise be entitled to. Therefore, it is reasonable to find that Policy 1804, which also facilitates the impugned disclosure and is referenced in the FAF, would also be of concern to the Union.

Joint Statement of Issue

[38] CROA Rule 14 provides that “the decision of the arbitrator shall be limited to the disputes or questions contained in the joint statement submitted by the parties or in the separate statement or statements as the case may be…”.

[39] In this case, as the Employer acknowledged, the Joint Statement of Issue does mention Policy 1804. It does so in the section entitled “Joint Statement of Issue”, which reads:

In 2013 the Company revised the employee consent portion of the FAF to authorise its OHS department to release relevant medical information to immediate supervisors, at its own discretion. The Union advanced a grievance alleging the revised employee consent portion of the FAF is unnecessary, overly intrusive and in breach of its members’ privacy rights. The Company did not respond to the Union’s grievance.

Subsequent to the Union filing its policy grievance in this matter, the Company revised its employee consent in the medical reporting forms. On January 15, 2015, the Company further revised its Procedure [also referred to as “Policy”] 1804.

[40] Thus, in this section the Union reiterates that it is not only concerned about the revisions to the consent provisions in the FAF, but also about the 2015 revisions to Policy 1804.

[41] Both parties then set out their positions on the issues. The Union, for its part, states:

The Union contends that the Company’s expanded FAF/requested consent to release medical information to supervisors constitutes an unreasonable exercise of management’s rights and is contrary to the Collective Agreement. The Union asserts the CP policy and Procedure 1804 referenced, in the current FAF, continue to raise the same concern for the Union and its membership. The Union contends that the expanded FAF breaches members’ right afforded under PIPEDA and the Canadian Human Right Act.

The Union also submits that the Company has failed to demonstrate any need for this broad, expanded request for employee consent.

[42] The Employer, in its position section, starts by stating that it is objecting to the Union seeking to expand the grievance to include Policy 1804. It then goes on to say, that if Policy 1804 is also in dispute,

The Company’s position is that the updated Functional Abilities Form as well as the Policy and Procedure 1804, effective June 1, 2023 and revised on January 21, 2015 do not violate any terms of the Collective Agreement, PIPEDA, the Canadian Human Rights Act and/or any other applicable statute, regulation or legislation.

[43] It is apparent from reading the Joint Statement of Issues that the dispute concerning Policy 1804 was mentioned and addressed by both parties. Thus, the Arbitrator did not violate CROA Rule 14 in addressing it.

[44] Further, as discussed in Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2020 CROA & DA 4744, Rule 14 is the key provision when determining questions of jurisdiction in the CROA context.

Conduct of the Parties Before and After the Hearing on October 18, 2018

[45] In the weeks leading up to the hearing before the Arbitrator scheduled for October 18, 2018, the Union addressed the Employer’s objection to expanding the grievance to include Policy 1804 and both parties spoke to Policy 1804 in their submissions.

[46] When the parties attended before the Arbitrator on October 18, 2018, he, with the explicit consent of the parties, made an effort to resolve the outstanding issues in dispute. At that time, the parties agreed that they would continue their discussions following the hearing. If they failed to agree, they would notify the Arbitrator and he would issue his direction.

[47] The parties’ efforts to resolve their dispute were focused on revising the offending portions of Policy 1804. The Employer asked the Arbitrator for an opportunity to revise the wording of that policy. On November 19, 2018, the Employer sent an email to the Union enclosing their proposed Policy 1804 wording “and reasons” that it was intending to provide to the Arbitrator on November 21, 2018. The email asked the Union to provide its feedback before that date.

[48] On November 21, 2018, the Arbitrator sent an email to counsel for both parties indicating that if the Union agreed, it was fine with him. However, as he had told the parties on October 18, 2019, he was not prepared to write a new policy or get involved “in any granular way.” The email also confirmed that at the end of the hearing he told the parties that if there was no resolution he “intended to issue an award that stated as follows: ‘Except as required by law, supervisors and managers are only entitled to information about functional limitations’.”

[49] On November 21, 2018, the Union emailed the Arbitrator indicating that the Employer’s proposed revisions to Policy 1804 were not acceptable and asking him to issue his Award on the merits.

[50] The following day the Arbitrator issued the Initial Award that contained the direction he had told the parties it was going to contain. The wording of the direction in that award does not confine itself to the FAF consent provision. The Employer never sought to judicially review the Initial Award.

Conclusion

[51] In the face of this record, the Arbitrator’s statement that it was “counterfactual” for the Employer to take the position that Policy 1804 was not in issue in the grievance, is a reasonable one. Given this, it was also reasonable for the Arbitrator to rely on evidence that did not arise in the FAF context.

Was the Arbitrator’s Decision Regarding Policy 1804 Reasonable?

The Arbitrator’s Decision

[52] In the Supplemental Award the Arbitrator made the following findings regarding this issue:

Moreover, it is beyond normative and well accepted in the authorities that medical information cannot be disclosed without consent, unless required by law. To my knowledge, there is no accepted arbitral authority to the contrary. Indeed, the cases establish a guiding principle when it comes to employee health records and information: limited disclosure and based on consent (unless otherwise required by law). Managers are entitled to know about functional limitations and restrictions, not diagnosis or other private health information. Generally, when medical information is disclosed in the workplace it is for purposes of accommodation and it is always limited to functional abilities to further the accommodation process (as anyone reading the FAF form would readily conclude). Moreover, there is no interpretation of the award where required by law would include pursuant to a Company policy. Whatever PIPEDA stands for, it does not include the discretionary disclosure of medical information without employee consent in many of the circumstances set out in Policy 1804 and as outlined by the union in its submissions. It does not escape attention that the Company did not make submissions that Policy 1804 passed a KVP analysis.

[53] The Employer challenges the reasonableness of this analysis, arguing that the Arbitrator failed to engage properly with the governing jurisprudence and failed to properly address its arguments.

The Governing Jurisprudence

[54] The Arbitrator’s reference to the KVP analysis is a reference to the test arbitrators use to adjudicate disputes over a rule or policy unilaterally imposed by the employer and not subsequently agreed to by the Union. It is set out in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co., [1965] 16 L.A.C. 73. To be upheld, any rule or policy must be consistent with the collective agreement, and it must be reasonable. The KVP test has been consistently applied by the courts: see Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd., 2013 SCC 34 (SCC).

[55] In order to satisfy the Arbitrator that Policy 1804 was reasonable, the Employer had to demonstrate that its legitimate business interests outweighed the incursion into the employees’ privacy rights that the policy mandated.

[56] In its written submissions before the Arbitrator on October 31, 2018, the Union referred to numerous decisions, both by arbitrators and the courts, that make it clear how compelling the employer’s objective must be to justify an incursion into an employee’s privacy rights. By way of contrast, as the Arbitrator noted, the Employer cited no authority that would support the incursion in question.

[57] The only arbitral decisions that the Employer filed held that employers could investigate falsified medical records. None of these cases went so far as to permit an employer to require an employee to consent to broad disclosure of their personal health information.

[58] Thus, contrary to the submissions of the Employer, the Arbitrator did not ignore the governing jurisprudence. He applied it. Conversely, the Employer did not refer to any authorities before the Arbitrator or before us that refuted the governing principles that the Arbitrator applied.

Failure to Address Arguments

[59] While the Employer made several submissions about Policy 1804’s purported compliance with PIPEDA, the Arbitrator addressed those submissions by finding that PIPEDA did not permit the disclosure of medical information without employee consent. The Employer has failed to demonstrate that this conclusion was an unreasonable one. Furthermore, this was not the central issue before the Arbitrator. The central issue, which the Arbitrator noted the Employer did not address, was whether Policy 1804 was reasonable in accordance with the KVP analysis.

Conclusion

[60] For these reasons, the application is dismissed. In accordance with the agreement of the parties, the Union is entitled to its costs of the application, fixed in the amount of $5000 (plus HST), which amount is inclusive of disbursements.

H. Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Schabas J.

Released: September 13, 2023

CITATION: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 5109

DIVISIONAL COURT FILE NO.: 022/23

DATE: 2023/09/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Schabas JJ.

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

Applicant

– and –

TEAMSTERS CANADA RAIL CONFERENCE and ARBITRATOR WILLIAM KAPLAN

Respondents

REASONS FOR JUDGMENT

H. SACHS J.

Released: September 13, 2023