Appeal court quashes arbitral award regarding protection of personal information
July 29, 2010
In Syndicat de Autobus Terremont ltée (CSN) c. Autobus Terremont ltée1 the Quebec Court of Appeal held that a grievance arbitrator's interpretation of "third persons" and "consent" for purposes of the Act respecting the protection of personal information in the private sector (the “Act”) was unreasonable.
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The employer was a school bus company whose file with the Société de l’assurance-automobile du Québec (SAAQ) included a number of written warnings as well as an evaluation report detailing various offences committed by its drivers. The law provides that once a critical threshold of demerit points has been reached, the SAAQ is to convey the file to the Commission des transports du Québec, along with its recommended penalties, which may include prohibiting all or some of the carrier’s vehicles from being operated or put into operation.
After it received a second statement describing the offences committed by certain of its drivers, the employer decided to post the detailed statement received from the SAAQ, including the offenders’ names, on a billboard located in the employees’ cafeteria in each of its establishments. In reaction to the postings, 14 employees filed grievances, each seeking monetary compensation for the disclosure of personal and confidential information concerning them. The grievance arbitrator dismissed all the grievances. In his view, even if the employer had communicated personal and confidential information to the other employees through the postings, that communication was not illegal because it had not been made to “third persons” within the meaning of section 13 of the Act. In addition, the arbitrator concluded that in accepting employment as bus drivers, employees implicitly agreed that their driving records could, if necessary, be communicated to stakeholders, including the employer’s other employees.
The Superior Court dismissed the application for judicial review.
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The majority decision of the court of appeal
The Court of Appeal, in a split decision, quashed the arbitral award. The arbitrator’s decision was found to be unreasonable for lack of justification inasmuch as it relied on a purely utilitarian argument which stripped the provisions of the Act of their meaning. The Act is not an ordinary statute in that it enshrines the protection the lawmaker intended the right to privacy to have. A fundamental right also recognized in the Charter of human rights and freedoms and the Civil Code of Québec; protection of the right to privacy is the rule and disclosure the exception. In the majority’s view, it was clear that "third persons" as used in the Act meant anyone other than the person to whom the personal information relates, and hence that co-workers were "third persons" for purposes of section 13 of the Act.
Applying these principles to the facts of the case, the majority considered it a given that information which included the offender’s name, offence report number, vehicle plate number and number of demerit points was personal and confidential information. It further observed that the information posted on the billboards was available for all employees to read, which went well beyond communication to just the company’s bus drivers. Noting that section 14 of the Act provides that consent must be manifest and given for specific purposes, the majority found that there was nothing in the evidence to support the inference that the drivers concerned in this case had consented to the communication of the information.
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Justice Jacques A. Léger would have dismissed the appeal and maintained the arbitral award. Justice Léger agreed that the Act was not an ordinary statute since it had to do with every citizen's fundamental right to privacy, but noted that the prohibition set out in section 13 was a relative one since it was limited to third parties and to purposes not relevant to the object of the file in which the information was held. In Justice Léger's view, in this case, the communication had not been to third parties and, moreover, was directly related to the purpose for which the file was maintained by the SAAQ, which targeted the company and its drivers alike in connection with the demerit points accumulated. The grievance arbitrator’s assignment was such as to allow for creativity in the face of a novel situation such as this. While he acknowledged, as the arbitrator had done, that the information communicated was indeed personal and confidential in nature, Justice Léger concluded that the arbitrator's interpretation of the term “third persons” as used in the Act was not unreasonable. In addition, he observed that even though the names of the employees concerned appeared in the postings, the personal information they contained related not to their private conduct but only to offences committed in the course of their employment.
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