In a recent decision, the Supreme Court of Nova Scotia quashed an arbitrator’s decision concerning employees’ entitlement to vacation leave in the collective agreement between the Public Service Alliance of Canada (“PSAC”) and Sydney Airport Authority. At issue before the arbitrator was whether the agreement provided that employees on ‘sick leave with pay’ continued to accrue vacation credits. The arbitrator found they did not. PSAC challenged this decision and the reviewing court concluded that the arbitrator’s award was unreasonable. The Court explained that the arbitrator failed to undertake a fulsome analysis of the intentions of the parties within the four corners of the agreement and apply the necessary interpretive principles.

PSAC was represented by Andrew Astritis and Michael Fisher.

Nowadays most employees spend at least a portion of their workday using a computer, raising important privacy questions of what kinds of computer surveillance employers can implement on their employees’ work computers and under what circumstances.

Questions relating to employer surveillance – when? why? how much is too much? – are long-standing issues in both unionized and non-unionized workplaces. Traditionally, decision-makers have been sharply divided over when employers can implement surreptitious video surveillance over their employees, for example, and then rely on videotape evidence for later discipline.

This division has largely centred on a fundamental disagreement between decision-makers as to whether employees have a right to privacy in the workplace. This same disagreement carried over into the early computer surveillance decisions, where courts and arbitrators routinely found that employees had no expectation of privacy in work computers and upheld discipline and even termination based on non-work computer use.

Protecting the “Biographical Core”: R v Cole

That perception was shaken by a number of cases in the early 2000’s, but none moreso than the Ontario Court of Appeal’s 2011 and the Supreme Court’s 2012 decisions in R v Cole. While Cole dealt with a challenge to the search and seizure of an employee’s work computer by police, the Supreme Court took the opportunity to comment more broadly on employees’ right to privacy in their work computers. The Court found that an expectation of privacy could be inferred where personal computer use was permitted or reasonably expected:

Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interest, thoughts, activities, and searches for information of the individual user.

Implications for Employees: Right to Privacy at Work

While the long-term implications of Cole are not yet clear – particularly given that the Court declined to comment specifically on employer computer surveillance or the ability of an employer to seize and search a work computer – decision-makers have begun to adopt its reasoning to find a breach of employee privacy rights when employers engage in surreptitious, unjustified computer surveillance. For example:

• The British Columbia Information and Privacy Commissioner found an employer internet usage audit to be a breach of privacy where the employee had never attempted to hide his internet usage and had never been approached about it by the employer prior to the audit.
• The Alberta Office of the Information and Privacy Commissioner found that an employer had contravened privacy legislation when it installed keystroke logging software on an employee’s computer to monitor productivity. The Commissioner particularly noted the availability of less intrusive measures and the failure to limit the scope of the employer’s investigation.

These examples aside, however, decision-makers have yet to fully address the question of what Cole will mean for the traditional approaches to employer surveillance. While older cases extended employers a nearly unfettered right to set ethical, professional and operational standards for their workplace, Cole recognized that employer policies and practices may diminish a privacy right but cannot remove it entirely. Whether future decision-makers will accept a robust conception of employee privacy rights or will return to tests largely based on employer reasonableness remains to be seen.

A Right Without A Remedy

In any event, the suggestion in some post-Cole case law that employers ought to undertake less intrusive steps prior to surveilling employee computers raises a separate, perplexing question: what happens if employers don’t?

So far, Privacy Commissioners, in large part because of the nature of their authority, have provided for little in the way of remedy beyond ordering that the surveillance cease. For employees whose privacy was breached or who have been disciplined as a result of this intrusion, this may provide little comfort.

More recently, the New Brunswick Court of Queen’s Bench upheld the decision of a labour arbitrator which relied in part on an employee’s privacy interest in her work computer to reduce a termination for inappropriate email use to a suspension.

Other decision-makers, however, have found that an employer’s violation of privacy rights cannot lessen the seriousness of inappropriate work computer use. In these circumstances, it has been suggested that decision-makers can do no more than recommend that the employer take privacy interests into account in the future.

The decisions in Cole took significant steps towards changing how we discuss employee privacy in relation to work computers. As the trial judge in Cole stated, office computers are much like office desks and personal papers much like personal computer files. However, until decision-makers develop a substantive way to provide remedies for the breach of an employee’s privacy interest in his or her work computer, the change in how we talk about privacy rights at work cannot translate into protection for employees.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On January 13, 2015, Daniel Tucker-Simmons, an articling student at RavenLaw, won a case before the Landlord and Tenant Board on behalf of ACORN (Association of Community Organizations for Reform Now). ACORN has been fighting for years to improve housing conditions in the low – mid income areas in Ottawa for its members and others.

The case involved a landlord’s failure to repair a 150-meter stretch of walkway which had fallen into disrepair, creating a serious safety hazard for residents. Despite years of repair requests by residents, including ACORNmember Mavis Finnamore, prior landlords and the current landlords did not repair the walkway.

After Ms. Finnamore filed an application with the Board, RavenLaw provided Daniel’s services to represent ACORN member Mavis Finnamore at the Board hearing. Daniel’s victory before the Board means that the landlord will have to pay to fix the walkway. The victory is also the latest in a series of big wins for ACORN’s housing justice campaign, which stretches back to 2011 and has helped residents achieve over $200,000 in rent abatements and repair work.

Read more about the case on ACORN’s blog.

On November 13, 2014, in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, stating that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.” The Court also held that the employer may not act unilaterally as an investigator of workplace violence and that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint.

This judgment is an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. The process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment.

The case was argued by Andrew Raven of our firm. You can read more about this case in on our blog.

In Mounted Police Association of Ontario v Attorney General of Canada, the Supreme Court of Canada today ruled that all workers have a constitutional right to be represented in collective bargaining by an association of their choosing that is independent of the employer.

Members of the Royal Canadian Mounted Police (RCMP) are excluded from the Public Service Labour Relations Act. Instead, they are required to address labour relations issues through the Staff Relations Representative Program (SRRP), an internal process lacking independence from the employer. The Court ruled that both the exclusion from the Act and the imposition of the SRRP violate the freedom of association protected under section 2(d) of the Charter, and that this violation is not a justifiable limitation under section 1 of the Charter.

The Court’s reasons emphasize the crucial role that collective bargaining plays in empowering workers:

“[o]nly by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can [workers] meaningfully pursue their workplace goals”. […] Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters”.

The Court clarified its previous ruling on the constitutional right to collective bargaining, confirming that the test for a section 2(d) violation remains “substantial interference” with meaningful collective bargaining, rather than “effective impossibility”. The Court also rejected the Government’s interpretation of the “derivative” nature of the right to collectively bargain, reiterating that “collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association”.

The Court’s decision in this case confirms what unions and workers’ rights advocates have long maintained: a representative process under the control or influence of the employer is directly contrary to the freedom of association and the constitutional right to collective bargaining. This ruling sets the stage for the Supreme Court’s highly anticipated decision in the Saskatchewan Federation of Labour case, which will determine whether the freedom of association also includes the right to strike.

Andrew Raven, Andrew Astritis and Morgan Rowe of our firm represented the Public Service Alliance of Canada, which appeared as intervener before the Supreme Court of Canada in support of the appeal.

On December 1, 2014, the Ottawa and District Labour Council hosted its annual Labour Appreciation Awards to recognize and celebrate the dedicated work of unions, members and activists in advancing workers’ rights.

In total, five awards were presented: Community Activist Award, Labour Pioneer Award, Health and Safety Activist Award, United Way Ottawa Ambassador and Labour Activist Award. We congratulate all the nominees and winners.

Along with the Ottawa and District Labour Council, this event was co-hosted by the Workers’ Health and Safety Centre, United Way Ottawa and Labour Community Services.

Wassim Garzouzi was proud to attend and support this sold out event.

The Toronto Star reports that 10,000 current and former Canada Post employees have received pay equity cheques from the Crown Corporation. The payouts are the result of almost three decades of human rights litigation and a landmark victory at the Supreme Court of Canada. The complaint was first filed in 1983 by the Public Service Alliance of Canada (PSAC) on behalf of 2300 clerical workers.

Canada Post has stated that it has now paid out to everyone for whom it has contact information. However, thousands more individuals could still be eligible. Canada Post is working with the Canada Revenue Agency to reach out to other individuals on its behalf, and is also planning on placing a series of newspaper ads to alert potential recipients. More information about the Canada Post pay equity payment process can be found here.

PSAC was represented by RavenLaw lawyers throughout the pay equity case, including Andrew Raven, James Cameron, David Yazbeck and Andrew Astritis at the Supreme Court of Canada, where the Court ruled unanimously in favour of PSAC in a rare oral ruling from the bench.

Our office hours during the holidays are as follows:

December 24 – closed at noon

December 25-26 – closed

December 29-30 – opened

December 31 – closed at noon

January 1-2 – closed 

Thank you and Happy Holidays.

On January 22, 2015, the Ottawa Legal Information Centre officially opened its doors to the community with a hugely successful launch event that gathered hundreds of residents of Ottawa, from all walks of life.

The Centre provides free legal information and referral services on a confidential basis, with or without an appointment, to all residents of the Ottawa region, regardless of income. Conveniently located in downtown Ottawa, the Centre offers services in English and in French.

Members of RavenLaw worked with the Centre prior to its opening to provide resources in the areas of human rights and employment law.

Wassim Garzouzi and Raphaëlle Laframboise-Carignan attended the launch event on behalf of RavenLaw.

On December 10, 2014, the Canada Industrial Relations Board (“CIRB”) released its decision finding that an employer, the Listuguj Mi’gmaq First Nation Council, breached its duty to bargain in good faith when it failed to communicate to the union its reasons for deciding not to ratify a first collective agreement.

The employer and the union, the Public Service Alliance of Canada, reached a tentative agreement on a first collective agreement on December 2, 2010. However, by February of 2011, the employer had not yet held the Council meeting needed to decide whether to ratify the tentative collective agreement. After the union filed a bad faith bargaining complaint, the Council meeting was held, and on March 17, 2011, the employer advised the union that it had decided not to ratify the tentative agreement. The employer did not communicate the reasons for its decision and did not do so until March 27, 2012, when evidence was given on the issue at the oral hearing into the bad faith bargaining complaint before the CIRB.

The CIRB held that the employer had an obligation to communicate more than simply the decision not to ratify. In the circumstances of the case, the employer also had an obligation to communicate the reasons for its decision not to ratify. Although employer did ultimately communicate the reasons for its decision, it was not until it was compelled to give evidence in a hearing before the CIRB. The communication was therefore not made in a timely matter. The CIRB concluded that the employer was in breach of the obligation under section 50(a) of the Canada Labour Code to make every reasonable effort to enter into a collective agreement.

The CIRB granted extensive remedies for the employer’s failure to bargain in good faith.

The Public Service Alliance of Canada was represented by Andrew Raven, Michael Fisher and Mary Mackinnon of our firm.