Where are you and what are you doing? Employees, surveillance and privacy

Employee privacy is a thorny issue for employers and their employees. How much control can employers wield over their employees’ personal information in the work place? Are there any limits on what employee personal information can be collected, and the manner in which it is collected?

Employers have always collected employee personal information – names, contact information, banking information, and so on – but new technologies have expanded the type of information that employers now have access to. Keystroke tracking software tracks employee internet use on work computers or mobile devices. GPS tracking technology monitors the location of employer vehicles or mobile devices. Employers may also have access to work email or text messages sent and received on work devices.

Employers often justify such surveillance measures as efforts to deter inappropriate workplace behaviour or to safeguard businesses from cyber-attacks. However, such measures may also lead to over-collection or inappropriate use of employees’ personal information.

The following three decisions issued by the BC Information and Privacy Commissioner of BC (the “Commissioner”) canvass the privacy rights of employees: Use of Employee Monitoring Software by the District of Saanich, 2015 BCIPC No. 15 (“Saanich”), Schindler Elevator Corporation, 2012 BCIPC No. 25 (“Schindler”), and University of British Columbia, 2013 BCIPC No. 4 (“UBC).

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Class action against Mac's Convenience Stores certified

On September 18, 2017, Justice Silverman of the BC Supreme Court released his decision finding that the action against Mac’s Convenience Stores and three recruitment companies has been certified to proceed as a class action. The Court decided that the claims of all people in the class were common and that the class action was the preferable way to advance the claims.

Four foreign workers started this class action in the Supreme Court of British Columbia against Mac’s Convenience Stores, Overseas Immigration Services Inc., Overseas Career and Consulting Services Ltd. and Trident Immigration Services Ltd. (together, “the Defendants”).

The class action alleges that the Defendants charged foreign workers large recruitment fees to obtain legal employment at Mac’s Convenience Stores in Western Canada. Mac’s then entered into employment contracts with the foreign workers. When the workers arrived in Canada, Mac’s refused or neglected to provide the work that was guaranteed in the employment contract. The class action is seeking compensation for the workers harmed by this practice.

For more information about this class action, please click here.

Media Coverage

Money for hurt feelings

By Midhath Mahir

Employees who have been wrongfully dismissed may be able to claim aggravated damages - monetary compensation awarded by the court for mental distress or anguish. For a long time, Canadian courts did not recognize damages for mental anguish, as it was not something that could be claimed under breach of contract, especially if due notice was given in employment cases.

This all changes in the 2000s. Since then, Canadian courts have become more open to (but still very cautious about) awarding aggravated damages in situations where employment contracts have been breached, which in turn caused mental anguish or distress to the employee. This is also true in cases where employees are thrown out of their jobs in a wrongful, very unfair or disgraceful manner.

Two things need to be established in court to have a chance of claiming aggravated damages if you have been wrongfully dismissed:

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LRB finds TPPA breached Code

On Friday, the Labour Relations Board held that the Transit Police Professional Association (the “TPPA”) “demonstrated blatant and reckless disregard for the Complainant’s interests” in a duty of fair representation complaint (at para. 166 of BCLRB No. B153/2017) we filed on behalf of the Complainant. The TPPA is no stranger to the Labour Relations Board as it raided COPE 378/MoveUP several years ago in order to represent the bargaining unit at issue in this complaint. Duty of fair representation complaints are very rarely successful but in this case, the Board found that the TPPA’s conduct breached the Labour Relations Code.

The Board held that, “in all of these circumstances, and given that the TPPA was aware that the Complainant had not received wages since March 11, 2016, her sick leave pay had expired, her LTD claim had been denied, and her WorkSafeBC appeal was yet to be determined”, the TPPA should have done more than it did, which was deciding to take no further action at all.

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A victory in the fight for justice for migrant workers

Imagine leaving everything behind: friends and family, a familiar culture, the life you thought you'd live. Paying a shady company you don't know much about thousands of dollars, a nearly impossible amount of money that you somehow you scrape together through hard work, loans, and selling what you and your family can, all so you can get a minimum-wage job in Canada. Travelling across the globe, landing in Vancouver, being taken by a stranger to a dingy hotel on King George Highway where you are to share a room with several more strangers, also migrant workers like yourself.

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Q: Supreme Court change the rules in Stewart v. Elk Valley Coal? A: No

This 8:1 decision the Supreme Court of Canada has upheld a Human Rights Tribunal decision that a cocaine addict in a safety-sensitive job, who was fired for violating the employer’s policy by failing to report his addiction and then being involved in an accident, was not fired (on the facts of the particular case) because of his disability but rather because he violated the policy under circumstances where it was entirely within his capacity to comply with it.

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Employer ordered to house and feed IUOE organizers raiding CLAC at remote work camp

In a decision issued last month, the Labour Relations Board granted IOUE Local 115 organizers access to an access-controlled employee residence (i.e. a company work camp) for the purpose of organizing employees on the Site C dam project. This was a “raid”, or rather a “liberation”, of the workers from CLAC and the organizing period was time-sensitive. The employer was also ordered to provide union representatives food and lodging and a place to meet with workers during the period of access.  

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Privacy paranoia may be pragmatic...

Since his inauguration less than a month ago, President Donald Trump and his executive orders have been a frequent topic of conversation online and in our office.

One of Trump’s lesser-publicized executive orders, issued January 25, 2017,

may significantly impact the Department of Homeland Security's 2007 policy that extends certain U.S. Privacy Act protections to non-U.S. persons.

Being a self-proclaimed privacy nerd, I immediately wrote to the Office of the Privacy Commissioner of Canada to express my concerns, given the amount of personal information that Canadian agencies routinely provide to U.S. agencies.

This afternoon, I received the following response from the Office of the Privacy Commissioner of Canada:

You asked about U.S. President Trump’s executive order and its impact on the privacy of Canadians. I can tell you that we are actively examining the potential implications for Canadians. There are several legal instruments in the US which affect the privacy rights of foreigners, and we are considering those as part of our analysis.

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A triumph of common sense over fine print

Andrew Sabean lives in Nova Scotia.  In 2004, he was the victim of a traffic accident.  Unlike here in BC, Nova Scotia does not have a one-stop-shop public auto insurer, so big claims often end up as battles between insurance companies about who has to pay claims.

Mr. Sabean won his lawsuit and the at-fault driver’s insurance company paid out. However, the insurer only paid to the limit of the other driver’s policy, more than$83,000 less than Mr. Sabean’s damages.  He had coverage under his own car insurance for cases like this where the other driver is underinsured, so he made a claim against his own insurer, Portage La Prairie Mutual Insurance Co., for the remaining amount.

His insurance refused to pay. What Mr. Sebean didn’t realize was that the fine print in his policy deducted disability benefits from a “policy of insurance” from whatever payments they would have to make to him. They  said that future CPP Disability Benefits that he was entitled to should be clawed back from the total they owed him.  Mr. Sebean sued his own insurance company and won, but the company succeeded in an appeal to the Nova Scotia Court of Appeal.  So he had to go all the way to the Supreme Court of Canada to claim the full benefit he had paid for when he purchasedhis car insurance from Portage La Prairie Mutual.

The Supreme Court unanimously allowed his appeal.  Most significantly, they said that when it comes to interpreting the words of an insurance policy (or similar kind of document) the proper vantage point is what a reasonable non-expert member of the public would understand the words to mean when they enter into the contract.  The insurance company could not rely on a previous ruling by the Supreme Court itself to justify its restrictive interpretation of the rules.  A person in Mr. Sabean’s position would not be expected to know the jurisprudence, so it could not be used against him.

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The plot thickens: Elections BC clarifies SCC's clarification of third party election advertising sponsorship

This week, Elections BC put out a bulletin that attempts to clarify the Supreme Court of Canada's clarification. In a nutshell, EBC's position is that if you, as an individual acting alone, make fewer than 26 signs or pamphlets by yourself, using your own supplies and equipment, and you hand-deliver these to fewer than 26 people, then you will not be caught be the definition of a "sponsor" in the BC Election Act. However, organizations, including groups of individuals, that conduct any sort of election advertising will be considered sponsors and subject to all the rules regarding advance registration, authorization lines, and disclosure reporting.

The organization that brought the legal action that resulted in the Supreme Court of Canada's recent decision disagrees with EBC's bulletin. The BC Freedom of Information and Privacy Association, along with the BC Civil Liberties Association, sent a joint letter to BC's Chief Electoral Officer this morning outlining their concerns. They take issue with a number of Election BC's interpretations, including the exclusion of organizations, from the scope of the SCC's clarification. 

We'll keep you posted as this unfolds. In the meantime, don't forget to register for our upcoming workshop, Election Advertising Sponsorship 101, which will be held on February 28th.

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SCC clarifies: You might not have to register with Elections BC

The BC Election Act requires individuals and organizations to register before they “sponsor” election advertising. This places a burden on people and groups to ensure they understand the law regarding election advertising and sponsorship in advance of engaging in any of these activities.

The BC Freedom of Information and Privacy Association took issue with having to register in order to engage in small-scale election advertising. Unlike the Canada Elections Act, the BC Election Act does not specify a minimum spending threshold (i.e. $500) before sponsors are required to register. The Association pursued its fight all the way to the Supreme Court of Canada (the “SCC”).

The SCC’s recent decision refocuses the requirement to register on the basis of whether or not a person or group meets the definition of a sponsor, rather than whether or not their communications meet the definition of election advertising. Election law enthusiasts: see below for more on these definitions. According to the SCC, “sponsor” captures individuals and organizations who receive advertising services from others in undertaking election advertising campaigns, but exempts election advertising that is not sponsored from the requirement to register.

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B.C. government takes potshot at junior hockey players after lobbying by team owners

Last February, I blogged about whether or not the B.C. government was off-side when it exempted major junior hockey players from the protections and minimum standards contained in the Employment Standards Act.

Today, the Vancouver Sun revealed the results of FOI requests related to behind-the-scenes lobbying by Western Hockey League officials in Kelowna, Kamloops, Cranbrook, Prince George, Vancouver and Victoria, which included letters addressed to Premier Christy Clark and cabinet. According the Sun, the teams claimed they might have to close without government intervention.

The CHL boasts more than nine million fans attended its games last season. The CHL is also the world’s largest development hockey league, with 52 Canadian and eight American teams participating in the Ontario Hockey League, Quebec Major Junior Hockey League and Western Hockey League (which includes the five B.C. region teams mentioned above).

Last season, tickets to Vancouver Giants home games at the Pacific Coliseum sold for between $15.50 and $24.50 and they were expected to play 36 homes games this season. Attendance at Vancouver Giants’ games last season has been estimated at 5169 people on average. Even at the lowest ticket price, this suggests gross ticket sales for home games of over $2.8 million – and that’s not counting revenue generated from away games. Apparently, the Giants also leased the Pacific Coliseum on a break-even basis.

The other teams in the Western Hockey League’s B.C. Region also sell thousands of tickets per game.

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New Elections Canada Report warns about tipping point, calls for major modernization by 2019

Elections Canada’s Retrospective Report on the last federal election has just been released. The Report incorporates data from various post-election surveys (some of which we’ve blogged about previously) and audits, and will form the basis of Elections Canada’s recommendations regarding amendments to the Canada Elections Act. Overall, the Report emphasizes that significant changes to election procedures are necessary to keep pace with modern voting habits and to address issues that arose during the campaign.

The Report warns that action is needed now to avoid future crises:

“Given this shift and the number of years between elections, it is essential to recognize that the success of the 42nd general election is no guarantee of favourable outcomes in the future. This is not the time for complacency. In Elections Canada's estimation, federal electoral administration has reached a tipping point and action is required now. The transformation in elector behaviours and service preferences is significant, and a new baseline must be set in terms of meeting, and hopefully exceeding, electors' service needs.”

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Benefits denied? You may be able to grieve after all!

A unionized employee who has been denied benefits or coverage under an employer-sponsored plan may face a deceptively difficult decision: whether to grieve the denial against the employer, or to sue the insurance company.

In many cases the employee’s only option will be to sue the insurance company. The insurance company is not a party to the collective agreement, so grievance arbitration is not available. Usually, this means that the employee is on their own, without direct representation from the union.

Sometimes, though, an employee does have the option to grieve. If an employer is self-insured – that is, the employer itself pays the insured members’ claims – then denial of coverage is arbitrable, because the employer itself denied the coverage.

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Marginalized and isolated, or potential terrorists? BC Judge slams RCMP entrapment of vulnerable couple

On July 29th, a couple who had been convicted of terrorism charges for planting three explosive devices on the BC legislature grounds received a stay of proceedings at the BC Supreme Court. Justice Bruce described the couple, John Nuttall, 41 and Amanda Korody, 33, as “marginalized, socially isolated, former heroin addicts dependent on methadone and welfare to subsist”.

In 2013, the Canadian Security Intelligence Agency informed the RCMP that Mr. Nuttall had tried to buy potassium nitrate which can be used to manufacture explosives. From this point on, a group of RCMP officers undertook an elaborate sting operation called “Project Souvenir” to induce the couple into committing the offence. 

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Why symbolic victories matter: Celebrating the inclusion of trans rights in the BC Human Rights Code

We are among many British Columbians celebrating the amendment (finally!) of the BC Human Rights Code to explicitly recognize gender identity and gender expression as protected grounds. 

While trans activists and their allies demanded this change, the BC Liberal government insisted for years that the change was unnecessary. The law is already clear, they said: even though the Human Rights Code doesn't explicitly say the words "gender identity and gender expression", the Tribunal and courts have decided that these grounds are nonetheless protected.

Why did trans activists keep fighting, then? Why did MLA Spencer Chandra Herbert introduce the proposed legislation 4 times in 5 years? And why does it feel like such a victory to see this change finally in place? 

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Union-administered benefit plans: proceed with extreme caution!

If you are a union that administers benefits for your members, you will likely be interested in today’s decision from the BC Court of Appeal in a case about union-administered LTD benefits.

A group of disabled members filed a class-action lawsuit against the union after their LTD benefits were reduced. The LTD plan had been facing insolvency due to rising claims costs and insufficient premiums to cover them. 

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