Bernard v. Canada (Attorney General), 2010 FCA 40

• Judge: Blais, C.J., Pelletier and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 08, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FCA 40;(2010), 398 N.R. 325 (FCA)

Bernard v. Can. (A.G.) (2010), 398 N.R. 325 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. FE.024

Elizabeth Bernard (applicant) v. Attorney General of Canada (respondent)

(A-625-08; 2010 FCA 40)

Indexed As: Bernard v. Canada (Attorney General)

Federal Court of Appeal

Blais, C.J., Pelletier and Trudel, JJ.A.

February 8, 2010.

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 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.

Administrative Law - Topic 9011

Boards and tribunals - Jurisdiction - Declining or failing to exercise jurisdiction - Bernard was a Revenue Canada employee since 1991 - She did not join the union - When she received mail from the union at her home address, she complained to the Privacy Commissioner that Revenue Canada violated her privacy rights by providing 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 - Again, she did not 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 and email addresses - After Revenue Canada ignored the request, the union complained to 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 allow the union to communicate with employees, including non-union employees, 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 Privacy Act concerns - The Board invited the union and Revenue Canada to reach agreement on what information should be provided - Five months later, the union and Revenue Canada presented the Board with their agreement that Revenue Canada would provide the home mailing addresses and telephone numbers of all employees - The Board adopted the agreement without further analysis - When Bernard learned of the decision, she sought judicial review, submitting that, inter alia, the order violated provisions of the Privacy Act where she did not consent to the release of her personal information - The decision that some contact information had to be provided was not challenged - The Federal Court of Appeal allowed the application - The Board failed to exercise its jurisdiction where it simply adopted the agreement without addressing or analyzing the issues it raised with the parties, 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.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - [See Administrative Law - Topic 9011 ].

Labour Law - Topic 9053

Public service labour relations - The board - Jurisdiction - General - [See Administrative Law - Topic 9011 ].

Cases Noticed:

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. 1].

Ottawa Carleton District School Board, Re, 2001 CanLII 11073 (Ont. L.R.B.), refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 26].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 35].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 43].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 43].

Information Commissioner (Can.) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219; 291 N.R. 236; 2002 FCA 270, refd to. [para. 43].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 43].

Gordon v. Canada (Minister of Health) (2008), 324 F.T.R. 94; 2008 FC 258, refd to. [para. 43].

Englander v. Telus Communications Inc., [2005] 2 F.C.R. 572; 328 N.R. 297; 2004 FCA 387, refd to. [para. 43].

Counsel:

Elizabeth Bernard, on her own behalf;

Caroline Engmann, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on October 14, 2009, at Ottawa, Ontario, before Blais, C.J., Pelletier and Trudel, JJ.A., of the Federal Court of Appeal.

On February 8, 2010, Pelletier, J.A., delivered the following judgment for the Court of Appeal.