Thursday, March 13, 2014
Violations of Privacy and Just Cause by Greg
Before his retirement, former Saskatchewan Information and Privacy Commissioner Dickson noted on several occasions that arbitral jurisprudence in Saskatchewan had limited the discipline which could be meted out to employees for breaches of privacy. See e.g. Regina Qu’Appelle Regional Health Authority (Re), 2013 CanLII 5640 (SK IPC) at para. 71, and 2012-2013 Annual Report (PDF) at p. 23.
Shortly after his retirement, a new arbitration decision has addressed exactly that point - and confirmed that repeated breaches of privacy may give rise to just cause for termination even on the part of an employee with an otherwise distinguished employment record.
In Health Sciences Association of Saskatchewan v Saskatchewan Association of Health Organizations, 2014 CanLII 5231 (SK LA) (Hood) ("HSAS"), the grievor was a 25-year employee of the Prairie North Health Region (the "Health Region") who had previously served as a supervisor/manager for approximately 10 years before returning to a position as a staff therapist.
In 2012, two incidents of the grievor seeking access to the Picture Archiving & Communication System (“PACS”) for purposes other than patient care came to the attention of the Health Region, resulting in a full audit of her use of PACS. The audit revealed that the grievor had accessed PACS to retrieve the personal health information of 99 different people who were not her patients, including "past and present co-workers, supervisors, senior management of the Employer, members of the immediate and extended family of the Grievor and well-known, prominent community members" (para. 57).
After meeting with the grievor seeking her response to the audit, the employer terminated her employment. The union argued that termination was excessive discipline for an acknowledged breach of policy, and that part of the problem arose out of a lack of awareness as to what policies actually governed employee access to personal health information.
Arbitrator Hood (for the majority of the arbitration panel) distinguished previous Saskatchewan cases which involved only a small number of violations of privacy. He concluded as follows at para. 244-245, 263-264:
This was not something the Grievor did on the spur of the moment, reacting to some momentary aberration that would dissipate with the passage of time. This was part of a plan to access at will the personal health information of those who were not her patients. PACS was the tool that allowed the Grievor to perpetrate the improper access. PACS is province-wide. In PACS the medical images are electronic and stored digitally. The digital information can be accessed on PACS by anyone with a password, anytime, from anywhere and by multiple persons at the same time from different locations. Gone are the days when the medical images were recorded on film and archived in file rooms. In those days the images could only be viewed where the film was physically located and only by those present at the time.
The temptation to access anyone on PACS proved too great for the Grievor to resist. The Employer’s Confidentiality Policies, the Codes of Conduct of the two governing professional bodies that licensed the Grievor, and HIPA were not enough to suppress this temptation.
Discharge is a heavy penalty and even more so when the person is a long-term employee with a clean disciplinary record. Discharge is the capital punishment for employee misconduct in collective bargaining agreements. However, in our view, discharge in these circumstances is just and reasonable.
PACS makes it easier to access confidential medical records surreptitiously. No one is standing over your shoulder or, for that matter, there to see if what you are doing is proper. It is improper to take advantage of this ease of access and succumb to any temptation to snoop into personal health information.
Accordingly, the majority of the panel upheld the grievor's termination.
Due to the large number of wilful breaches of privacy found by the arbitration panel, it is not clear that HSAS represents a substantial change in course from Saskatchewan's previous arbitral jurisprudence.
However, it does offer the first Saskatchewan example of a fact scenario which does cross the line from conduct which can be corrected, to disregard for privacy which goes to the core of an employment relationship. And the recognition that even an otherwise-admired worker may be terminated for failing to respect privacy law and policy may offer a signal as to the importance of patient privacy for employers and employees alike.
Thursday, January 30, 2014
Alberta's Bare Minimum Response to UFCW by Greg
I've commented before on the apparent consequences of the Supreme Court's ruling in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 ("UFCW") - theorizing that the constitutional issues raised by the invalidity of privacy legislation where it interfered with picketing might raise a wider range of concerns.
But for now, it looks like Alberta is limiting its response to patching the specific constitutional weakness identified in UFCW (emphasis added):
"It is the government's intention to pass the amendments early in the fall 2014 session to comply with the court's ruling," Gerald Kastendieck, a spokesman for Service Alberta, said Wednesday.
He said the amendments would focus on unions and picketing. There won't be a general review of the 10-year-old legislation this year.
Now, it's doubtful that any other challenge to the amended PIPA would make its way through the court system before the scheduled general review process. But Alberta's choice not to respond to UFCW with a meaningful review of the proper scope and content of privacy legislation means another jurisdiction with a similar statute on its books may need to take the lead instead. And if other jurisdictions follow Alberta's choice to kick the can down the road, it may be necessary for Canada's appellate courts to weigh in again to ensure that Charter rights aren't unduly affected by privacy legislation.
Thursday, January 9, 2014
Barton v PCS and the Undertaking as to Damages by Greg
In commercial or employment disputes, some parties may be tempted to treat an initial assessment of injunctive relief as a more important battleground than the merits of the case - as immediate concerns about competition or disclosure of information trump the longer-term view. But Barton v Potash Corporation of Saskatchewan Inc, 2013 SKCA 141 offers both some noteworthy analysis as to the "constructive contract" created by the undertaking as to damages normally required as a term of an injunctive order, and a reminder that the party which seeks interim injunctive relief may face severe consequences if it fails to follow through on the underlying action.
In Barton, the defendant had been a Vice-President and General Counsel for the plaintiff potash producer. After his acrimonious departure, he elected to pursue employment with a law firm seeking to build anti-trust cases against the plaintiff and other comparably-positioned producers. A B.C. court granted broad injunctive relief prohibiting "contact or employment...in any way related to potash", and the defendant consented to a similar injunction being issued in Saskatchewan in 1993.
Once the injunction was in place, the plaintiff did nothing to advance its claim, but fought the defendant's attempts to have the action dismissed or the injunction lifted. As a result, the defendant argued that he was shut out of any work in a reasonably-chosen field: potash vendors would not hire him in light of the circumstances of his departure from the plaintiff, while he was prevented by court order from so much as communicating with purchasers. The injunction remained in place until 2003, and the plaintiff eventually discontinued its action in 2009. (The plaintiff expressly argued before the Court of Appeal that once it received the injunction, it saw the rest of the action as moot: para. 92.)
The defendant brought a motion for assessment of damages arising out of the injunction. After a previous set of applications addressing whether the defendant was disqualified from seeking such an assessment, Keene J. held in the court below (2011 SKQB 477) that the defendant had failed to demonstrate any loss of income arising out of the injunction.
The Court of Appeal majority allowed the defendant's appeal. Jackson J.A. recognized some controversy as to the appropriate standard required of a defendant in proving damages (para. 22-25), but held that even on the standard argued for by the plaintiff, the defendant had established that his near-total loss of income was caused by the injunction. The majority thus concluded that the defendant was entitled to damages to replace his lost income, effectively ordering at para. 85 that he be paid the equivalent of his previous annual income for an eight-year period (with deductions for amounts earned in mitigation) - resulting in an award of approximately $680,000 plus interest.
Ottenbreit J.A. dissented on the issue of lost income. However, the majority decision in Barton offers two important reminders for parties considering their options in pursuing interim injunctive relief - even in cases where the facts may not be quite so colourful.
First, an injunction should be carefully tailored to its actual purpose. While expansive language prohibiting the defendant from so much as communicating with any party in his industry may have been understandable to protect the plaintiff's interests at the outset, it also intruded heavily into the defendant's ability to earn a living. And some willingness to set more reasonable limits (particularly after the risk of antitrust litigation evaporated on the facts) might have gone a long way toward limiting the plaintiff's liability.
Second, interim relief pending proof of a claim does not constitute proof of that claim on the merits. While a plaintiff may otherwise have had little incentive to disturb the status quo after receiving an interim injunction, it remains fully responsible for the damage caused by the interim order. And in Barton, the plaintiff's choice to rely on interim relief for upwards of a decade while fighting any progress in the action proper - wrongly considering the matter moot while continuing to impose burdens on the defendant - resulted in it becoming liable for significant damages which might never have been payable if it had duly proceeded with its action.
This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at firstname.lastname@example.org if you require legal advice.
Saturday, December 7, 2013
False Equivalence Between Lock-outs and Strikes by Greg
I'll have a few observations to make about the Wall government's new essential services legislation (PDF). But let's start by treating the restrictions within Bill 128 as a primer on a commonly-misunderstood issue in labour law.
It may seem natural to treat strikes and lock-outs as matching activities on the part of unions and employers respectively. But there are in fact important differences between the two. And Bill 128 highlights exactly why those differences shouldn't be ignored.
By statute, a "strike" is defined to include a far wider range of activity than a "lock-out". Compare these definitions from the current Trade Union Act, RSS 1978, c T-17 (definitions which are carried over into the Saskatchewan Employment Act):
2(j.2) “lock-out” means one or more of the following actions taken by an employer for the purpose of compelling employees to agree to terms and conditions of employment:
(i) the closing of all or part of a place of employment;
(ii) a suspension of work;
(iii) a refusal to continue to employ employees;
(k.1) “strike” means any of the following actions taken by employees:
(i) a cessation of work or a refusal to work or to continue to work by employees acting in combination or in concert or in accordance with a common understanding; or
(ii) other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output or the effective delivery of services;
The definition of a "lock-out" as restricted by labour legislation is thus limited to a closed list of actions carried out by an employer - and even those actions are only regulated when they're aimed toward the single purpose of compelling employees to accept terms and conditions of employment. In contrast, a "strike" is defined to include - and thus to prohibit - any activity carried out in concert by employees which affects work output, regardless of the purpose of that activity and regardless of whether the activity is of a type previously contemplated by the legislature.
The distinction in statutory language also gives rise to differing constitutional implications. The definition of a "strike" is expressly intended to limit "concerted" activity by employees, arguably representing a direct attack on the Charter freedom of association (even on a relatively restrictive interpretation of that freedom). And the contrast between open and closed lists of activities also results in greater infringement of freedom of expression and other rights which may be affected by statutory restrictions: an employer might be able to limit overtime as an exercise of its management rights, but workers are prohibited from engaging in a parallel response in concert.
As a result of the asymmetry between the definitions of "strike" and "lock-out", a statute which treats both concepts identically may in fact impose far more restrictions on unions and employees than employers. And even as Bill 128 reduces the number of obviously one-sided impositions on unions and workers found in the Public Service Essential Services Act ("PSESA"), it operates as a case in point.
Bill 128 also creates identical preconditions to and limitations on the commencement of strikes and lockouts with no regard for the greater amount of activity restricted by the definition of a "strike". See e.g.:
- section 7-5, which prohibits any strike or lockout before an essential service structure is in place within a workplace. This limitation on strikes could include e.g. informational pickets which incidentally affect the provision of services;
- section 7-19(3), which requires that any strike or lockout be stopped where the opposite party challenges the effectiveness of a work stoppage, again with no distinction between types of strikes; and
- sections 7-25 and 7-26, which prohibit both any lock-out of essential services employees, and any union authorization of any strike activity by such employees. (While Bill 128 does eliminate PSESA's provision prohibiting an individual essential service employee engaging in strike activity outside of work time, it arguably still prohibits a union from encouraging an employee to do so.)
Bill 128 also conflates the constitutional significance of the two definitions: the "right to strike" and "right to lock-out" are treated as being mirror images of each other (section 7-19(1)), with the same remedy arising from a breach of either. And the result of an employer asserting its "right to lock-out" is a prohibition against a union making use of its right to strike - even if a union and its members conclude that the obligation to provide essential services does not impede either their ability or their desire to engage in strike activity.
In summary, any legislation which limits strike activity - including general labour relations legislation - should be far more sensitive to the wide range of activity governed by the definition of a "strike" than is currently the case. And we should recognize that a provision limiting strikes and lock-outs under the current statutory definitions may result in a significant advantage to employers over unions and employees.
Sunday, December 1, 2013
Talking About Strikes by Greg
Bob Barnetson comments here on the extreme restrictions on free speech about strikes being rammed through Alberta's legislature. But as long as the issue is receiving attention in our neighbouring province, I'll note that similar concerns can be found in two of the Saskatchewan Party's flagship pieces of labour legislation.
By way of comparison, here's the limitation on strikes, lockouts and counselling thereof during the term of a collective bargaining agreement within the The Trade Union Act, RSS 1978, c T-17 ("TUA"), consisting of wording which has not been changed since 1983:
44(1) No employer shall cause a lock-out during the term of a collective bargaining agreement.
(2) No employee bound by a collective bargaining agreement shall strike during the term of the collective bargaining agreement and no person, employee or trade union shall declare, authorize or participate in a strike during that term or counsel a strike to be effective during that term.
So how has this wording been altered in recent Saskatchewan legislation? Let's start with the Public Service Essential Services Act, SS 2008, c P-42.2 ("PSESA"), which is similar to Alberta's new legislation in limiting speech about banned strikes within the public service - and whose constitutionality is itself in question.
PSESA both dictates that designated "essential services employees" are required to deliver essential services (section 18), and separately prohibits them from engaging in any other job action (arguably including participating in a legal picket line outside his or her own work hours) (section 14). And it then imposes the following restriction governing any "person" within the province:
17 No person or trade union shall do or omit to do anything for the purpose of aiding, abetting or counselling any essential services employee not to comply with this Act.
So Barnetson's hypothetical scenario looks to apply equally under PSESA: any person whose discussion of the difficult choices facing an employee barred from legally striking whose observation is taken to "counsel" a strike may be subject to prosecution. (But no such prohibition is set up to deter anybody from counselling employers to violate their obligations under PSESA.)
If there's an important limiting factor within both Alberta's Bill 45 and the PSESA, it's the fact that both at least apply their limit on free speech only to the discussion of illegal strikes. But the Saskatchewan Employment Act (passed but not yet proclaimed in force) may not even respect that limitation. Compare the below to the TUA provision it replaces:
6-30(1) No employer bound by a collective agreement shall declare a lockout of employees bound by the collective agreement during the term of a collective agreement.
(2) No employee or union bound by a collective agreement shall, during the term of a collective agreement:
(a) counsel a strike against the employer bound by the collective agreement; or
(b) declare, authorize or participate in a strike against the employer bound by the collective agreement.
On the bright side, the limit on "counselling" a strike doesn't apply to the general public. But for employees and unions, the SEA may make it illegal for a union or its members to discuss the possibility of a future legal strike while a collective bargaining agreement remains in force.
The above shouldn't be taken to suggest that Alberta's Bill 45 represents anything less than a gratuitous attack on democratic debate about important workplace issues. But it should highlight the fact that Alberta's government isn't the only one trying to silence public debate about workers' rights - and that merely amending or defeating a single bill is just a first step in ensuring that workers and the public alike can safely talk about strike options, rather than being subject to state sanction for doing so.