Wednesday, November 18, 2015
Is Everything An Essential Service? by Greg
Saskatchewan's Bill 183 has been hastily passed during the fall legislative session to put some essential services law in place before the January 30, 2016 deadline set by the Supreme Court of Canada's decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. (See the bill here (PDF), and the committee explanation here (PDF).) And there are some aspects which represent major improvements over both the unconstitutional Public Service Essential Services Act, and the first attempt at a rewrite.
But there are also some aspects of Bill 183 which look rather puzzling - starting with an issue which seems even more problematic than the terms of the PSESA.
The PSESA provision which allowed for a dubiously broad definition of a "public employer" who could dictate which employees were permitted to strike was mentioned in Ball J.'s trial decision in Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62 at para. 184-185:
Some of the public employers listed in s. 2(i) of the PSES Act employ a high percentage of essential service workers. Examples include Boards of Police Commissioners, Regional Health Authorities and affiliates, and the Saskatchewan Cancer Agency. Some of the public employers, such as municipalities, have proportionately fewer employees delivering essential services. There is no evidence that some of the public employers employ any employees who are engaged in the delivery of essential services. Examples include SIAST and Saskatchewan Gaming Corporation, a Crown corporation that owns and operates Casinos in Regina and Moose Jaw.
Nevertheless, all of the public employers, from Boards of Police Commissioners acting under The Police Act 1990, to resort villages as defined in The Municipalities Act, have the powers set out under s. 9. of the PSES Act.
Amazingly, Bill 183 goes several steps further in loosening the definitions around essential services. It does not define an "essential service" at all (leaving that assessment to be dealt with through the new and complex essential services process), and defines a "public employer" to be any employer which provides an essential service. So in theory, it applies equally whether an employer is private or public - or even engaged in the delivery of public services at all.
Now, the legislature's intent in Bill 183 is not to render every service provided by any employer an "essential service". In fact, Minister Morgan argued in committee that a statutory definition isn't needed in light of the one approved by the Supreme Court in SFL which is intended to apply (p. 1168):
The definition that’s in the Supreme Court, whether we include it in the legislation or not, is binding on the parties. It’s pretty clear that it’s safety and security are the items that are there. It does not go to economic hardship. It does not go to protection of plant and equipment...
(Bill) 128 may arguably have had the ability for a broader interpretation, but 183 is post the Supreme Court decision and, I think, the safety and security and court services judges (sic).
Unlike PSESA, Bill 183 provides for a determination as to the existence of essential services to be made by an independent third party, not by the employer. But that doesn't mean an employer won't be able to substantially alter the bargaining process by making a claim that it provides essential services.
Where either a union or an employer gives notice that it considers some of the employer's services to be essential, both parties are forced to proceed through the essential services process - including collective bargaining as to the terms of an essential services agreement, then a decision by an essential services tribunal which may take up to 81 days to convene, hear and decide the issue. And this is on top of a mandatory period of mediation or conciliation which may take up to 60 days under the normal rules governing collective bargaining.
In other words, a union which has a strike mandate may be prevented from actually taking job action for a period of upwards of four months after bargaining reaches an impasse. And that may make a substantial difference both in the union's ability to maintain support for the strike, and in the type of economic pressure it can bring to bear on the employer. (A Mall Santas Union may be able to push for some meaningful demands by walking off the job in December; it figures to have much more difficulty if an employer can unilaterally push any strike window into February by dragging out conciliation processes and tribunal hearings.)
It seems that Bill 183 is based on the assumption that nobody will think to make frivolous claims about essential services in workplaces which obviously don't provide them. But given how some employers saw the PSESA as an invitation to attack union bargaining positions, it's hard to see that assumption as a reasonable one even in the public sector - and there's all the more reason for concern that private parties who weren't involved in the development of Bill 183 may suffer from the abuse of its terms.
Monday, June 1, 2015
Intrusion Upon Seclusion in Saskatchewan by Greg
This spring, I had the opportunity to present on civil liability for privacy breaches at the Law Society of Saskatchewan's update on privacy and access law. And I'll follow up by expanding on a few of the noteworthy points for those interested in privacy in Saskatchewan.
To start with, let's take a look at how the tort of intrusion upon seclusion (discussed by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32) may - or may not - apply in Saskatchewan.
The relationship between provincial privacy statutes such as the Privacy Act, RSS 1978, c P-24 (“Privacy Act”) and the common law related to privacy has been considered a number of times in British Columbia, where courts have regularly concluded that the statutory tort of violation of privacy precludes the development of any parallel common-law torts. See e.g. Mohl v. University of British Columbia, 2009 BCCA 249 at para. 13. This analysis has been repeated even as the tort of intrusion upon seclusion has developed in provinces which lack a statutory tort: see Ari v. Insurance Corporation of British Columbia, 2013 BCSC 1308 at para. 64-65, and Foote v. Canada (Attorney General), 2015 BCSC 849 at para. 116.
However, the British Columbia reasoning was rejected at least at the pleadings stage in Hynes v. Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD) ("Hynes") at para. 25. In Hynes, Goodridge J. held that since the Privacy Act contained an explicit declaration that it operated without derogating from a right of action or remedy otherwise available, it was at least arguable that the tort of intrusion upon seclusion could operate concurrently with the tort of violation of privacy.
The Privacy Act contains a similar provision: section 8(1). As a result, it is possible that both torts may be available to plaintiffs in Saskatchewan.
In most circumstances, there will be little reason to prefer the more limited tort of intrusion upon seclusion to the slightly broader (if not yet well-defined) tort of breach of privacy. However, it may offer:
- a means to avoid the explicit statutory defences present under the Privacy Act, though courts will likely consider those defences in defining the contours of intrusion upon seclusion in any event; and
- perhaps more significantly, the ability to pursue a privacy-related claim through small claims court, which is precluded by the Privacy Act's requirement that an action for violation of privacy be brought in the Court of Queen's Bench.
It remains to be seen whether the reasoning in Hynes will be followed in Saskatchewan, or indeed applied at the trial stage in Newfoundland and Labrador. However, it offers at least some prospect that the options available to an individual facing a breach of privacy have been expanded.
Wednesday, March 18, 2015
PIPEDA and the Dine-and-Dash by Greg
CBC reported recently on the use of social media to identify a couple involved in a dine-and-dash at a Regina restaurant. But before we see too many businesses adopt a similar strategy, let's note that there are some significant privacy risks arising out of that course of action.
Restaurants and other organizations engaged in commercial activity in Saskatchewan are regulated by the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 ("PIPEDA") in their collection, use and disclosure of the personal information of customers. And it's well-established that video footage of an individual is personal information under PIPEDA's definition of "information about an identifiable individual". (That conclusion is particularly obvious in a case where the express purpose of releasing footage is to identify the individuals involved.)
As a result, a business releasing footage for the purpose of identifying individuals may only do so in accordance with the authorizing provisions of PIPEDA.
In principle, an organization is permitted to disclose information for the purpose of collecting a debt owed by the individual to the organization: PIPEDA, section 7(3)(b). So there's no serious issue as to whether disclosing footage of individuals who have left without paying is for a valid purpose - though the organization may run into trouble if it's incorrect as to whether a debt is actually owed.
More significantly, though, an organization is also required to limit its disclosure of personal information to what is appropriate in the circumstances: section 5(3).
On that front, disclosure of information in a manner which makes it available online without restriction may raise significant liability issues. See e.g. here at para. 58 as to the problems with posting information on unsecured websites in the context of a defamation claim - and note that under PIPEDA (unlike in the defamation context), the truth of the information being made available is not a defence.
Beyond the inherent risks of posting information online, the appropriateness standard may become even more difficult to reach when a business' intention is to have information shared among people who may not know the individuals involved, with the mere hope that it will eventually be passed along to somebody who may be able to apply it for the organization's purpose.
And PIPEDA makes an organization liability for damages caused by humiliation or otherwise where it discloses personal information inappropriately: section 16(c).
So how could the show-and-shame approach go wrong?
Suppose one of the individuals in a photo released on social media had recently moved between cities for the purpose of escaping from an abusive relationship - and the former partner was able to determine the individual's new location because of the organization's sharing of the photo online. Under those circumstances, it's highly questionable that the sharing would be found to be appropriate - and the business responsible could be required to pay damages for humiliation, emotional suffering, and the cost of relocating the individual to a safe location.
Fortunately, the actual incident in the news seems to have been resolved without any such issues. But any organization should be careful before making a habit of putting photos online to track down non-paying customers - as the liability risk could far exceed the payment which might be recouped.
Tuesday, February 10, 2015
Saskatchewan Labour Relations Board's New Appellate Authority by Greg
Among many other changes to Saskatchewan's employment and labour law, the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA") provided the Saskatchewan Labour Relations Board with the responsibility to hear appeals of adjudicators' decisions in employment standards and occupational health and safety matters. And while most of the new language in the SEA remains to be interpreted, the Board's new appellate authority has been considered in several cases.
Chairperson Love described the standard of review applid by the Board in these matters in Wieler v Saskatoon Convalescent Home, 2014 CanLII 76051 (SK LRB) ("Wieler") at para. 12, a case where the Board upheld an adjudicator's decision that a release signed by an employee barred any further occupational health and safety complaint:
(T)he applicable standard of review of questions of law is correctness, for questions of mixed fact and law, reasonableness, and for questions of fact which may be considered errors of law, reasonableness.
The Board has also applied a correctness standard to questions of natural justice. In 101193093 Saskatchewan Ltd v Selimos, 2014 CanLII 76054 (SK LRB), Chairperson Love remitted a wage assessment back to the adjudicator on natural justice grounds in a case where it was unclear whether the appellant employer received notice that the hearing would proceed in his absence.
The balance of the cases considered by the Board to date have generally involved little challenge to the conclusions reached by adjudicators. See Prairie Oasis Travel Plaza Inc v Sayed, 2014 CanLII 76052 (SK LRB) and Judy’s Korner Tavern v Samoleski, 2014 CanLII 76055 (SK LRB).
The Saskatchewan Court of Appeal has granted leave to appeal from the Board's decision in Wieler due to the novelty and importance of the Board's new appellate authority, as well as the viability of an argument that OHS rights are of a class of protections which cannot be waived by contract. As a result, the resolution of the case bears watching.
However, the Board's analysis that it should apply well-established standards of review (including deference to an adjudicator's findings) appears to be well-founded, particularly compared to alternatives which might have blurred the lines between the Board's appellate authority under Part IV of the SEA and its policy functions respecting labour relations under Part VI.
Thursday, February 5, 2015
C-51 and Privacy - The End of Purposive Analysis by Greg
The British Columbia Civil Liberties Association notes that part of the reason for concern with Bill C-51 lies in a significant intrusion into Canadians' privacy. But the problem with the Conservatives' anti-terrorism legislation is even more striking than it might appear at first glance.
Federal government institutions - including CSIS and the RCMP - are governed by the Privacy Act (Canada) in their collection, use and disclosure of personal information. And the Privacy Act sets clear requirements as to the circumstances in which personal information may be collected, used or disclosed: collection is permitted only if the information "relates directly to an operating program or activity of the institution" (section 4), and use and disclosure is limited to a closed set of purposes along with the initial purpose for collection or consistent purposes (sections 7 and 8, respectively).
Like most public-sector privacy legislation, the Privacy Act expressly authorizes the disclosure of personal information for law enforcement or investigative purposes (section 8(1)(e)). And while the Privacy Act's language may be somewhat outdated in defining those purposes, it would be a relatively simple matter to amend that permitted type of use and disclosure within the existing statutory framework which also offers some statutory protection for privacy.
Instead, Bill C-51 creates an entirely new standard. A new list of government institutions will be established by schedule. C-51 will authorize the disclosure of personal information to those institutions without any apparent purpose requirement, so long as the information is "relevant to the recipient institution's jurisdiction or responsibilities".
In other words, rather than requiring that a disclosure of personal information be justified, C-51 states that the mere fact that the recipient has some national security function is justification for the disclosure of every shred of personal information in the hands of any other government institution. And C-51 may arguably override the Privacy Act's protection against cross-institution disclosure by setting up a prohibition against civil proceedings for the disclosure of information, but absolutely no provisions offering any protection for privacy (including even basic offence provisions for the abuse of its terms).
Mind you, the interaction between C-51 and the Privacy Act is unclear. The Privacy Act would still apply in principle to recipient government institutions, though the same "security trumps everything" approach that underlies C-51 in the first place would likely be applied as justification to treat recipients' data banks as exempt (and thus not subject to personal information requests by individuals). And any collecting institution which was scheduled under C-51 but not under the Privacy Act would face absolutely no accountability for its use of Canadians' private personal information supplied by government institutions.
Moreover, it's not clear how the purpose analysis in the Privacy Act would apply to information supplied without an initial purpose even for existing government institutions. If the purpose for collection of data by the recipient is the mere fact that it has been listed as having some national security function, does that then mean the Privacy Act's "consistent purpose" analysis allows the institution to use and disclose the information on an equally indiscriminate basis?
In sum, it's a radical change in course for the Government of Canada to suggest that the bare fact that an office has some national security function serves as justification for it to collect, and other institutions to supply, potentially massive amounts of personal information which have nothing to do with any specific investigation or basis for suspicion (or indeed any existing program or activity). And there's a real risk that a wholesale data dump from other government institutions to security agencies will be accompanied by no meaningful ability to test what's been shared and why.