Here's a one hour presentation to Canadian municipal lawyers on the union right of access to information that arises under labour law and how it has fared against employee privacy claims.

1. Presented By
Information is
power - The
union right of
access to
information
Dan Michaluk (BLG)
Meghan Ferguson (City of Vaughan)
October 14, 2021

2. o Exclusive bargaining agent, with a positive
duty to represent fairly
o All members, not just those who support the
union (“majoritarian rule”)
o Case law going back to mid-70s that
establishes that an employer refusal to
provide a union with the information it
“needs” to fulfil its role constitutes
“interference,” an unfair labour practice
Unions have representational rights
Foundational rights
2

3. o Public sector legislation came in in the 1980s,
private sector legislation in the early 2000s
o Corresponds with a rising concern and
awareness of personal privacy
o But application to employment is patchy
• Not in private sector outside of BC, Alberta and
Quebec (and federally regulated private sector)
• Not in Ontario due to the infamous and often
ignored “exclusion”
o Contact information is not “sensitive” (though
you’ll find mixed authority on this point)
Individuals have privacy rights
Foundational rights
3

4. o If the union is entitled to information under
labour legislation because it “needs” it there
is no breach of privacy legislation
o Privacy legislation does not preclude a
union from getting what it needs
o But need should be interpreted in light of
competing employer and individual privacy
interests
The rights reconcile
Foundational rights
Flip side of the same coin
4

5. o End of an epic battle that dates back to 1992
finding by the Federal Privacy Commissioner
that disclosure of Ms. Bernard’s home address
to PIPSC violated the federal Privacy Act
o Home contact information – easy case for
SCC to favour the union
o It affirms statement from Ontario case called
Millcroft Inn – “To the extent that the employer
has information which is of value to the
union in its capacity to represent the
employees… the union too should have that
information.”
2014 Supreme Court of Canada Decision
The Elizabeth Bernard case
5

6. o Contact information again
o Two inquires
• Does the union need it to meet it
representational duties?
• Is there a sound business rationale for
denying access?
o Raising employe privacy rights is not a
business rationale. Suggests employees
waive privacy rights vis-à-vis union by
electing to be represented.
2000 Ontario Labour Relations Board decision
The Millcroft Inn case
6

7. o In Laurentian U, OLRB provides union to
“Decision Notices” that resolve harassment
complaints as a matter of representational
rights
o In Halton Police, Arbitrator Sheehan denies
access to full harassment report – employer
interest in confidentiality prevails –
questions Laurentian U and partial to BC
case law that says a right to information in
order to police must be bargained
Compare Laurentian U to Halton Police
Harassment reports as high water mark
7

8. The City of Vaughan
OLRB Decision
 The Vaughan Professional Fire Fighters Association,
IAFF Local 1595 v. The Corporation of the City of
Vaughan, 2021 CanLII 69414 (ON LRB)
 VPFFA (Association) alleged that requiring
consent from the employee was an unfair labour
practice.
 Association applied to the Ontario Labour
Relations Board (OLRB) to declare the practice
an unfair labour practice.
8

9. The City of Vaughan
OLRB Decision
 Factual background:
 Association seeking employee information
including retirement calculations
 Fire Chief seeking advice on MFIPPA
requirements
 Consistent with the Privacy Commissioner
(outlined in the Ottawa-Carleton District School
Board case), the Chief required a consent form or
email consent from the employee for the
Association to access employee personal
information
9

10. The City of Vaughan
OLRB Decision
Positions of the City and the Association:
• The City took the position that the Association was
seeking blanket access to employee personal
information
• The Association took the position the City was
denying access to information they ought to be
entitled to as the exclusive bargaining agent.
10

11. The City of Vaughan
OLRB Decision
OLRB Decision:
 “…the insistence by the City on an
employee’s execution of a written consent
as a condition precedent to its providing
any personal information to the
Association does constitute an
interference” with the rights of the
Association (OLRB Decision, para. 63)
11

12. The City of Vaughan
OLRB Decision
OLRB Decision:
 “Nuts and bolts labour relations
information” can be disclosed without
employee consent
 Pay information, retirement calculations,
seniority dates, promotion information,
vacation balances, etc…
12

13. The City of Vaughan
OLRB Decision
 OLRB Decision:
 Highly sensitive information like “highly
confidential personal health information” -
without the express consent of the
employee – different considerations could
apply” (OLRB Decision, para 61)
13

14. The City of Vaughan
OLRB Decision
 OLRB Decision:
 “…there are likely to be matters beyond
the reach of the Association – except with
the express consent of an affected
individual – and thus that the City is not
and ought not to be thought of as being
subject to a blanket requirement to
disclose any and all data that the
Association might request” (OLRB Decision, para
62)
14

15. The City of Vaughan
OLRB Decision
OLRB Decision:
• Declared unfair labour practice
• Ordered to rescind consent form
15

16. o There is a line, but it’s poorly articulated so
will be pushed by unions
o Employers who focus on broader interests
(as in Halton) will tend to win given they are
not well situated to argue the employee
privacy interests
o The law in Ontario is arguably more union
favoured than in BC and possibly other
jurisdictions
o But the idea that employees waive privacy
rights can and should be questioned
o Remember, good facts make for good law
What to make of the law?
16

17. For more information, contact:
The information contained herein is of a general nature and is not intended to constitute legal advice, a complete statement of the law, or an opinion on
any subject. No one should act upon it or refrain from acting without a thorough examination of the law after the facts of a specific situation are considered.
You are urged to consult your legal adviser in cases of specific questions or concerns. BLG does not warrant or guarantee the accuracy, currency or
completeness of this presentation. No part of this presentation may be reproduced without prior written permission of Borden Ladner Gervais LLP.
© 2020 Borden Ladner Gervais LLP. Borden Ladner Gervais is an Ontario Limited Liability Partnership.
Thank You
Dan Michaluk
Partner
416.367.6097
dmichaluk@blg.com
Meghan Ferguson
Legal Counsel, Labour, Employment & Human Rights
416-432-7240
Meghan.Ferguson@Vaughan.ca