Politics and Privacy Regulation

Rachel Roy was invited to speak on a panel regarding politics and privacy regulation at the 20th Annual Privacy and Security Conference held in Victoria last month. For those of you with a keen interest in this subject, we’ve posted her speaking notes.

There are two aspects missing from debates about personal information and political parties in Canada. First, there is a failure to recognize the unique and fundamental role political parties play in our democratic society in comparison to other organizations. Second, there is a lack of understanding regarding how political parties are already regulated in Canada – and the stellar elections bodies responsible for overseeing their operations and more importantly, their communications with voters.

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10 days to campaign kick off!

The local election campaign period kicks off in 10 days on September 22. I looked at the number of third parts election advertising sponsors registered as of today’s date and was surprised to see only 14 organizations registered. There are over 240 local elections taking place this fall!

If your organization plans to engage in public advertising directly or indirectly related to municipal election campaigns during the period of September 22 to October 20, you must register with Elections BC first.

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Law Society of BC v. Trinity Western University – end of the road for the BC LRB Essential Services policy (and more)

The Supreme Court of Canada’s decision to sustain the BC Law Society’s refusal to  accredit to the Trinity Western University law school because of its inequitable “Covenant” (which enforced heterosexual monogamy among faculty and students) has been widely hailed as a victory for inclusion and human rights.  However, that is only the start.  The Court’s reasoning has far broader implications than balancing religion and equality rights.  It has a lot to say about how boards, tribunals and other administrative bodies - including the BC Labour Relations Board - must make their decisions wherever they affect Charter rights and values.

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Will you still need me (or at least not cut me off extended health benefits) when I’m... 65?

A decision of the Ontario Human Rights Tribunal issued on May 18, 2018, available here, has thrown into question the constitutional validity of provisions in human rights codes that allow denial of workplace benefits to workers over 65 because of their age.

Human rights codes across Canada, including BC, prohibit discrimination in terms and conditions of employment based on age (unless there is a bona fide occupational requirement to justify the discrimination). However, in the area of employee benefit plans or retirement or pension plans, the legislation allows discrimination based specific grounds including age. When it comes to these conditions of employment the law deems there to be a bona fide occupational requirement to justify the discrimination.

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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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