Bernard v. Canada (Attorney General) et al., (2014) 453 N.R. 334 (SCC)

• Judge: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 07, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 453 N.R. 334 (SCC);2014 SCC 13;[2014] 1 SCR 227

Bernard v. Can. (A.G.) (2014), 453 N.R. 334 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.R. TBEd. FE.001

Elizabeth Bernard (appellant) v. Attorney General of Canada and Professional Institute of the Public Service of Canada (respondents) and Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Public Service Alliance of Canada, Privacy Commissioner of Canada, Canadian Association of Counsel to Employers, Canadian Civil Liberties Association, Canadian Constitution Foundation, Alberta Federation of Labour, Coalition of British Columbia Businesses, Merit Canada and Public Service Labour Relations Board (interveners)

(34819; 2014 SCC 13; 2014 CSC 13)

Indexed As: Bernard v. Canada (Attorney General) et al.

Supreme Court of Canada

LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

February 7, 2014.

Summary:

Bernard was a Revenue Canada employee since 1991. She declined to join the union. When she received a letter from the union at her home address, she filed a complaint with the Privacy Commissioner alleging that Revenue Canada provided her personal information to a third party without her consent. The Commissioner ruled that Bernard's privacy rights were breached. Revenue Canada abandoned its policy of providing personal information to the union. In 1995, Bernard moved to another Revenue Canada position with a different union. She again declined to join the union. In 2007, the new union asked Revenue Canada to provide it with each employee's name, position, title, and home and work telephone and fax numbers, regular mail address and email address. After Revenue Canada did not respond to the request, the union filed complaints with the Public Service Labour Relations Board. Bernard had no notice of the complaints or an opportunity to intervene. Before the Board, Revenue Canada made no reference to the Commissioner's previous decision or its decision to discontinue the practice of providing personal information to the unions. The union and Revenue Canada agreed that the union was entitled to some employee contact information to ensure that the union could communicate with employees, including non-members of the union, outside of the workplace. The issue was how much information the union should receive. The Board referred to a number of issues, including how Revenue Canada could provide information while reasonably addressing concerns arising under the Privacy Act. The Board invited the union and Revenue Canada to reach an agreement on what information could be provided. Five months later, the union and Revenue Canada presented the Board with their agreement that Revenue Canada would provide, on a quarterly basis, the home mailing addresses and home telephone numbers of all employees. The Board adopted the agreement and incorporated it into an order. When Bernard learned of the order, she sought judicial review, submitting that, inter alia, the order required Revenue Canada to violate the provisions of the Privacy Act where she did not consent to the release of her personal information to the union. The decision that some contact information had to be provided was not challenged.

The Federal Court of Appeal, in a judgment reported (2010), 398 N.R. 325, allowed the application. The Board failed to exercise its jurisdiction by simply adopting the agreement without addressing or analyzing the issues it raised with the parties before directing them to reach an agreement, including privacy concerns. The Board abdicated its responsibilities to those persons not before it who had statutorily protected privacy rights. The matter was remitted to the Board for reconsideration and for a reasoned decision as to the information which Revenue Canada must provide. Bernard was entitled to participate in the proceeding and the court invited the Privacy Commissioner to intervene. The Board concluded that its order complied with the Privacy Act, but amended it by adding three further privacy safeguards. Bernard sought judicial review.

The Federal Court of Appeal, in a judgment reported (2012), 431 N.R. 317, dismissed the application. The Board decided that the employer was required to provide home contact information about bargaining unit members to the union because this information was needed by the union to carry out its representational duties. Privacy concerns were protected by safeguards that ensured that the information would be kept secure and only used for such representational purposes. That decision was reasonable. Bernard appealed.

The Supreme Court of Canada, Rothstein and Moldaver, JJ., dissenting in part, dismissed the appeal. The court affirmed that the Board's decision was reasonable.

Civil Rights - Topic 1641.5

Property - Search and seizure - Information protected by privacy legislation - Bernard, employed by the Canada Revenue Agency (CRA), was a member of the bargaining unit represented by the Public Service Alliance of Canada (union), but opted not to be a member of the union (i.e., a "Rand Formula employee") - The union owed representational duties to all bargaining unit members, whether or not they were union members - The CRA provided Bernard's home address and telephone number to the union, subject to certain safeguards to protect privacy concerns - The Public Service Labour Relations Board determined that the union needed this personal information to carry out its representational duties and the limited use of this contact information was a "consistent use" under s. 8(2)(a) of the Privacy Act - Bernard argued that the disclosure of her personal contact information to the union constituted an unreasonable search and seizure - The Supreme Court of Canada opined that the argument had no merit, as "in this context there can be no reasonable expectation of privacy in that information" - See paragraph 41.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - [See Civil Rights - Topic 2155 ].

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - Bernard, employed by the Canada Revenue Agency (CRA), was a member of the bargaining unit represented by the Public Service Alliance of Canada (union), but opted not to be a member of the union (i.e., a "Rand Formula employee") - The union owed representational duties to all bargaining unit members, whether or not they were union members - The CRA provided Bernard's home address and telephone number to the union, subject to certain safeguards to protect privacy concerns - The Public Service Labour Relations Board determined that the union needed this personal information to carry out its representational duties and the limited use of this contact information was a "consistent use" under s. 8(2)(a) of the Privacy Act - Bernard argued that giving the union her personal information, which permitted it to contact her, infringed her s. 2(d) Charter right to freedom of association by compelling her to associate with the union - The Supreme Court of Canada opined that "s. 2(d) does not provide protection from all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community. In other words, s. 2(d) is not a constitutional right to isolation ... providing Ms. Bernard's home contact information to the union was reasonably found by the Board to be a necessary incident of the union's representational obligations to her as a member of the bargaining unit ... Bernard's freedom from association claim has no legal foundation." - See paragraphs 38, 40.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - Bernard, employed by the Canada Revenue Agency (CRA), was a member of the bargaining unit represented by the Public Service Alliance of Canada (union), but opted not to be a member of the union (i.e., a "Rand Formula employee") - The union owed representational duties to all bargaining unit members, whether or not they were union members - The CRA provided Bernard's home address and telephone number to the union, subject to certain safeguards to protect privacy concerns - The Public Service Labour Relations Board determined that the union needed this personal information to carry out its representational duties and the limited use of this contact information was a "consistent use" under s. 8(2)(a) of the Privacy Act - The Supreme Court of Canada affirmed that the Board's decision was reasonable - The union needed effective means of contacting employees to discharge its representational duties - Further, to put the union on an equal footing with the employer, the union was entitled to information possessed by the employer which was relevant to the collective bargaining relationship - The court stated that "the Board made a reasonable determination in identifying the union's proposed use as being consistent with the purpose of contacting employees about terms and conditions of employment and in concluding that the union needed this home contact information to carry out its representational obligations 'quickly and effectively'" - See paragraphs 21 to 33.

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - [See Crown - Topic 7206 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - [See Crown - Topic 7206 ].

Labour Law - Topic 9781

Public service labour relations - Employee rights - General - [See Crown - Topic 7206 ].

Master and Servant - Topic 10

General - Privacy rights - [See Crown - Topic 7206 ].

Cases Noticed:

Millcroft Inn Ltd. v. Canadian Auto Workers - Canada, Local 448 (2000), 63 C.L.R.B.R.(2d) 181 (Ont.), refd to [para. 7].

Monarch Transport Inc. v. Dempsey Freight Systems Ltd., 2003 CIRB 249, refd to. [para. 7].

P. Sun's Enterprises (Vancouver) Ltd. v. Canadian Auto Workers - Canada, Local 114 (2003), 99 C.L.R.B.R.(2d) 110 (B.C.), refd to. [para. 7].

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 37].

R. v. Advance Cutting & Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1; 2001 SCC 70, refd to. [para. 37].

Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58, refd to. [para. 67].

Canadian National Railway Co., Re (1994), 95 di 78, refd to. [para. 67].

Consolidated Bathurst Packaging Ltd., Re, [1983] O.L.R.B. Rep. 1411, refd to. [para. 67].

CFTO-TV Ltd., Re (1995), 97 di 35, refd to. [para. 67].

Ford Glass Ltd., Re, [1986] O.L.R.B. Rep. 624, refd to. [para. 67].

Canada Post Corp., Re (1994), 96 di 48, refd to. [para. 67].

York University, Re, [2007] O.L.R.B. Rep. 659, refd to. [para. 67].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 72].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 93].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 97].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 108].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 435 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 112].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 112].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 113].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 8(2)(a) [para. 30].

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 36 [para. 73]; sect. 42 [para. 74]; sect. 185, sect. 186(1)(a) [para. 23].

Counsel:

Elizabeth Bernard, on her own behalf;

Anne M. Turley, for the respondent, the Attorney General of Canada;

Peter C. Engelmann, Colleen Bauman and Isabelle Roy, for the respondent, the Professional Institute of the Public Service of Canada;

Michael A. Feder and Angela M. Juba, for the amicus curiae;

S. Zachary Green, for the intervener, the Attorney General of Ontario;

Keith Evans, for the intervener, the Attorney General of British Columbia;

Roderick S. Wiltshire, for the intervener, the Attorney General of Alberta;

Andrew Raven, for the intervener, the Public Service Alliance of Canada;

Eugene Meehan, Q.C., Patricia Kosseim and Kate Wilson, for the intervener, the Privacy Commissioner of Canada;

Written submissions only by Hugh J. D. McPhail, Q.C., for the intervener, the Canadian Association of Counsel to Employers;

Timothy Gleason and Sean Dewart, for the intervener, the Canadian Civil Liberties Association;

Mark A. Gelowitz and Gerard J. Kennedy, for the intervener, the Canadian Constitution Foundation;

John R. Carpenter and Kara O'Halloran, for the intervener, the Alberta Federation of Labour;

Written submissions only by Andrea Zwack and Simon Ruel, for the interveners, the Coalition of British Columbia Businesses and Merit Canada;

John B. Laskin, for the intervener, the Public Service Labour Relations Board.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Sack Goldblatt Mitchell, Ottawa, Ontario, for the respondent, the Professional Institute of the Public Service of Canada;

McCarthy Tétrault, Vancouver, British Columbia, appointed by the Court as amicus curiae;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of British Columbia, Vancouver, British Columbia, for the intervener, the Attorney General of British Columbia;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Raven, Cameron,  Ballantyne  & Yazbeck, Ottawa, Ontario, for the intervener, the Public Service Alliance of Canada;

Supreme Advocacy, Ottawa, Ontario, for the intervener, the Privacy Commissioner of Canada;

McLennan Ross, Edmonton, Alberta, for the intervener, the Canadian Association of Counsel to Employers;

Dewart Gleason, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Constitution Foundation;

Chivers Carpenter, Edmonton, Alberta, for the intervener, the Alberta Federation of Labour;

Heenan Blaikie, Ottawa, Ontario, for the interveners, the Coalition of British Columbia Businesses and Merit Canada;

Torys, Toronto, Ontario, for the intervener, the Public Service Labour Relations Board.

This appeal was heard on November 4, 2013, before LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On February 7, 2014, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Abella and Cromwell, JJ. (LeBel, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 42;

Rothstein, J. (Moldaver, J., concurring), dissenting in part - see paragraphs 43 to 114.