Canadian Labour and Employment Law Journal Revue canadienne de droit du travail et de l’emploi VOLUME 18
EDITOR IN CHIEF / RÉDACTEUR EN CHEF Bernard Adell
Faculty of Law, Queen’s University 2015 CanLIIDocs 535 ARTICLES EDITORS / RESPONSABLES DES ARTICLES Kevin Banks Faculty of Law, Queen’s University David Doorey School of Human Resource Management, York University ASSOCIATE EDITORS / RÉDACTEURS CONSULTATIFS Jeffrey Sack of the Ontario Bar Brian Burkett of the Ontario Bar QUEBEC EDITOR / RÉDACTRICE POUR LE QUÉBEC Renée-Claude Drouin Faculté de droit, Université de Montréal BOOK REVIEW EDITOR / RÉDACTEUR DES COMPTES RENDUS Peter Neumann of the Ontario Bar MANAGING EDITOR / DIRECTEUR ADMINISTRATIF Boris Bohuslawsky of the Ontario Bar
00_Frontmatter_v18n2.indd 1 15-03-23 5:37 PM SENIOR STUDENT EDITORS / RÉDACTEURS ÉTUDIANTS Cody Kolsteren Yorke Giovanna Di Sauro Chanelle Wong
STUDENT EDITORS / RÉDACTEURS ASSOCIÉS Swarna Perinparajah Angela Wiggins Julian Yang
STUDENT EDITORIAL ASSISTANTS / 2015 CanLIIDocs 535 ASSISTANTS À LA RÉDACTION Hailey Abramski Katie Bala Chris Dickinson Jordan Moss Shalom Cumbo-Steinmetz Adam James Jessica Toldo Levi Vandersteen Melissa Feriozzo Andrew Haroun Daniel Clarke Nika Farahani Jason Paquette Katrina van Kessel Tova Cranford Nicolas Guadagnolo Brittany Scott Michael Scott Faculty of Law, Queen’s University
00_Frontmatter_v18n2.indd 2 15-03-23 5:37 PM EDITORIAL ADVISORY BOARD / COMITÉ CONSULTATIF DE RÉDACTION
CHAIR Hon. Warren Winkler Chief Justice of Ontario
Professor Roy Adams Professor Ronald McCalIum McMaster University University of Sydney Hon. Marie-France Bich Professor Alan Neal Court of Appeal of Quebec University of Warwick 2015 CanLIIDocs 535 Professor Keith Ewing Professor Jean Sexton King’s College, London Laval University Professor Matthew Finkin Mr. Kenneth Swan University of Illinois Mediator and Arbitrator Hon. Sheila Greckol Hon. Katherine Swinton Alberta Court of Queen’s Bench Ontario Superior Court of Justice Dr. Patricia Hughes Professor Paul Weiler Law Foundation of Ontario Harvard University Professor Thomas Kuttner Professor Manfred Weiss University of Windsor J.W. Goethe University, Frankfurt
PRACTICE ADVISORY PANEL / COMITÉ CONSULTATIF PROFESSIONNEL
David Blair Gordon Petrie Vancouver, B.C. Fredericton, New Brunswick David Corry Ronald Pink Calgary, Alberta Halifax, Nova Scotia Donald McDougall Thomas Roper Halifax, Nova Scotia Vancouver, B.C. Gaston Nadeau Suzanne Thibaudeau Montreal, Quebec Montreal, Quebec
00_Frontmatter_v18n2.indd 3 15-03-23 5:37 PM INTERNATIONAL ASSOCIATION OF LABOUR LAW JOURNALS
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00_Frontmatter_v18n2.indd 4 15-03-23 5:37 PM “Privacy: Its Constitution and Vicissitudes” – A Half-Century On
Matthew W. Finkin*
Half a century ago, on the verge of the Information Age, the sociologist Edward Shils took the measure of how matters stood with privacy. He argued that privacy was being systematically engulfed by societal elites — government, journalists, business, and social scientists — even as they sought privacy for themselves. He saw a passive populace, indifferent to the intrusion, and a near- total absence of protective law. This essay reflects on what Shils saw from the perspective of a half-century’s experience. It argues that the populace is no 2015 CanLIIDocs 535 longer passive, that the public’s concern for privacy as consumers has had a rip- ple effect in a concern for privacy in employment. Nor is the law totally absent; but the legislative approach has been piecemeal, attending only to those per- ceived abuses that most strike the public ire. In terms of the common law, in its address to the large lacunae left by legislation, the legal establishment — repre- sented by the American Law Institute — continues to serve as a handmaiden to those business interests that had and would continue to engulf employee privacy.
1. INTRODUCTION
A half-century ago, the distinguished sociologist, Edward Shils, addressed “Privacy: Its Constitution and Vicissitudes.”1 He adverted to the trajectory of social practice, not law, from pre-industrial times in Western Europe and America to the last quarter of the nineteenth century, which he termed the “golden age of privacy,”2 and on to “the institutional organization of privacy intrusion in the middle of the twentieth century.”3 His primary address was to informational privacy — the collection and use of personal information by govern- ment, the press, employers and social scientists. But he also adverted
* Professor of Law, University of Illinois. 1 Edward Shils, “Privacy: Its Constitution and Vicissitudes” (1966) 31:2 L & Contemp Probs 281. Shils had earlier addressed the threat worked by the loyal- ty-security measures taken by the U.S. government in the 1950s. Edward Shils, The Torment of Secrecy: The Background and Consequences of American Security Policies (Glencoe, Ill: Free Press, 1956). 2 Ibid at 292. 3 Ibid at 300.
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to individual liberty as a correlative of informational privacy, the invasion of which bore identical implications: “[T]he growth of indi- viduality has contributed to the demand for privacy. The awareness of self, of the uniqueness of the self, makes for a greater sensitivity to impingement on self, to intrusion into the zone around that self.”4 Shils argued, however, that privacy was of concern almost exclusively to elites — to government officials, employers, journal- ists and social scientists5 not, in passing, to the working class.6 And therein lay an anomaly, for it was those very elites whose expansion of power and ambition engulfs privacy.7 Shils did not pursue this observation, but the fair implication was that, for purposes of privacy
protection, the policy elite was part of the problem. 2015 CanLIIDocs 535 Without doubting that some loss of privacy is necessary for pub- lic order and security to be protected, for industry to be efficient, for the citizenry to be informed, for systematic empirical study of human society to be cultivated, Shils concluded that much that is done in the name of these ends is at once privacy invasive and “useless and unnecessary from any serious standpoint” — that it is, in fact, “an immoral affront to human dignity.”8 Shils closed on a note of alarm: the individual’s thoughts and conversations, the disposition of what belongs to a person, her body, its image — and, one should add, its very deployment — is inherent in the person’s existence “as an individual soul.”9 “A society that claims to be both humane and civil is committed to their respect. When its practice departs from that respect, it also departs from that degree from humanity and civility.”10 It is fitting a half-century on to reflect on Shils’ analysis of where we were, where we are, and where we are going; that is, how Shils’ perceptions stand up today insofar as the world of employment is involved. A recasting for analytical purposes would be this: (1) that
4 Ibid note 12 at 304. 5 Ibid at 301. 6 Ibid (noting that mostly only union officials have objected to video monitoring of the workplace, note 11 at 303). 7 Ibid at 305. 8 Ibid. 9 Ibid. 10 Ibid at 306.
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one of the consequences of capitalism and industrialization was to stimulate a desire for privacy and to create the circumstances for its enjoyment; (2) that as respect for the individual, whose auton- omy in the market was a fundamental precept of capitalism, became accepted as a societal imperative, so too did respect for privacy; (3) that as capitalism paradoxically invades privacy by virtue of its very market-driven logic, a necessary though unaddressed implication is (4) that the exercise of private power should not intrude beyond what is necessary and proportionate; and consequently, (5) that the law should impose commensurate constraints, for no other means of social ordering seem ready to hand; but (6) that as the general public
was largely disengaged from the issue and as it was not in the interest 2015 CanLIIDocs 535 of the elite to insulate what they wished to invade, the condition of privacy going forward was that of inexorable, unchecked loss. Let us take each in turn.
2. THE DEMAND FOR AND THE ENJOYMENT OF PRIVACY
(a) The Pre-Industrial World
Privacy was not a social condition in the pre-industrial world. Even in the early modern period in Western Europe and North America, family housing afforded little of it. Inhabitants of villages and towns were intimately familiar with one another. Daily life gave little prospect of avoiding communal surveillance: the stranger was viewed with suspicion, and often made subject to official inspection. Indeed, the populace as a whole was subject to police regulation as well as communal oversight. In England, as late as the early seventeenth century, a web of mercantile regulation was enforced by networks of informers — precursors, perhaps, of the official labour inspectorate of the nine- teenth century.11 The constables of the hundreds were urged to keep close watch not only for unlawful business practices, but for vaga- bonds, unlawful construction, delinquency in church attendance, the
11 GR Elton, “Informing for Profit: A Sidelight on Tudor Methods of Law Enforcement” (1954) 11:2 Cambridge Hist J 149.
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payment of excessive wages, and immoral behaviour even in pri- vate. As Sir Edward Coke enjoined the constables, circa 1606: “all unlawful games, drunkenness, whoredom, and inconstancy in private families [are] to be reported.”12 Municipal and guild regulation on the Continent was similarly exacting,13 as was local government in colonial New England: unwanted residents were “warned out”;14 chil- dren were removed from families of the lower class and of blacks and Indians, to place them as servants in the homes of their betters;15 and more. Insight into this world may be had from the presence of sump- tuary laws that regulated what one might own and display. These
derived from a variety of motives. The husbandry of scarce resources 2015 CanLIIDocs 535 was one, but another was the sensed need publicly to maintain rigid status distinctions.16 In Germany, a Nuremberg ordinance of 1568 dic- tated in exacting detail what each man and woman may wear accord- ing to set social ranks, down to the ribbons a horse might display on a bride’s carriage.17 A Massachusetts Bay Colony ordinance of 1651 forbade anyone whose estate was less than two hundred pounds to wear gold or silver buttons, lace, or silk hoods and scarves.18 Nor
12 Quoted in Margaret Gay Davies, The Enforcement of English Apprenticeship: A Study in Applied Mercantilism, 1563-1642 (Cambridge: Harvard University Press, 1956) at 233. 13 See generally Mack Walker, German Home Towns: Community, State and General Estate, 1648-1871 (Ithaca: Cornell University Press, 1971). 14 David H Flaherty, Privacy in Colonial New England (Charlottesville: University Press of Virginia, 1972) 170-175. 15 Barry Levy, Town Born: The Political Economy of New England from Its Founding to the Revolution (Philadelphia: University of Pennsylvania Press, 2009) at 238-244. 16 See e.g. Werner Rösener, Peasants in the Middle Ages, translated by Alexander Stützer (Chicago: University of Illinois Press, 1992) at 88-94; Alan Hunt, Governance of the Consuming Passions: A History of Sumptuary Law (London: MacMillan Press, 1996). 17 Kent Robert Greenfield, Sumptuary Law in Nürnberg: A Study in Paternal Government (Baltimore: John Hopkins Press, 1918) at 128. 18 US, Legislature of Massachusetts, Records of the Governor Company of the Massachusetts Bay in New England, vol 3 (14 October 1651) at 243.
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was such regulation restricted to the Western world.19 In Japan, vil- lage and bakufu laws during the Tokogawa shogunate regulated what persons could wear: the material of their garments, the length of the eaves of their houses, the height of their wooden clogs (geta).20 In a famous incident in 1781, a landless peasant was beaten by landown- ing peasants for wearing leather-soled sandals in violation of village regulations.21 These laws, which rested for enforcement on surveillance, both communal and official, at once negated individual liberty and infringed upon privacy. But by the early eighteenth century, sumptu- ary laws had fallen into disuse in Europe and America. In the 1690s,
the merchant and traveller, Sir Dudley North, saw consumption 2015 CanLIIDocs 535 as a spur to industry and trade. “Countries which have sumptuary laws,” he observed, “are generally poor.”22 In 1757, Josiah Tucker could advise his readers that England “being a free Country, where riches got by Trade are no Disgrace . . . every person may make what Display he pleases of his Wealth . . . .”23 Something had changed.
(b) Capitalism
“Capitalism is a protean concept,” the economist Frederic Pryor observes.24 After summarizing several definitions, he essays his own: In general, capitalism is an economic system in which goods, labor, land, and financial services are transferred through relatively competitive markets and in
19 Hereditary Aztec nobles (pipiltin) were allowed to wear cotton mantles extending below the knee; landless serfs (mayeque) were allowed to wear only knee- length mantles of agave cloth. Kent Flannery & Joyce Marcus, The Creation of Inequality: How Our Prehistoric Ancestors Set the Stage for Monarchy, Slavery and Empire (Cambridge, Mass: Harvard University Press, 2012) at 514-16. 20 Donald H Shively, “Sumptuary Regulation and Status in Early Tokugawa Japan” (1964) 25:3-4 Harv J Asiatic Studies 123. 21 Anne Walthall, Social Protest and Popular Culture in Eighteenth-Century Japan (Tucson: University of Arizona Press, 1986) at 109-110. 22 Quoted in Geoffrey Parker, Global Crisis: War, Climate Change and Catastrophe in the Seventeenth Century (New Haven: Yale University Press, 2013) at 623. 23 Josiah Tucker, Instructions for Travellers (London: William Watson, 1757) at 26. 24 Frederic L Pryor, Capitalism Reassessed (Cambridge: Cambridge University Press, 2010) at 6.
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which the means of production are primarily owned privately or by groups of individuals, rather than by governments.25 At the time Pryor published this definition, the historian Joyce Appleby was writing that capitalism is “a cultural system rooted in economic practices that rotate around the imperative of private investors to turn a profit.”26 Pryor sees capitalism as an economic system embedded in a culture, whence his exposition of capitalism’s culturally contingent varieties.27 Appleby sees capitalism as a cultural system, albeit one expressed in economic terms. Despite the difference in analysis, or emphasis, both acknowledge that a critical aspect of capitalism lies in
reliance on the market as the primary mechanism for the expression, 2015 CanLIIDocs 535 aggregation and satisfaction of individual needs and wants. Nor is there disagreement that capitalism’s drive for productivity and innov- ation accelerated industrialization with all its consequences. The Great Transformation, as Karl Polanyi called it, wrought by capitalism was to shift the market from being an aspect of a lar- ger society that shaped the market to serve its (society’s) ends to being an end in itself that society is called upon to serve.28 Polanyi worked out the destructive consequences of that shift, if carried to its logical extreme, for the environment and individual liberty: the total commodification of labour, for example, would inexorably negate individual freedom. Yet, “[t]he individual must be free to follow his conscience without fear of the powers that happen to be entrusted with administrative tasks in the field of social life.”29 Entrusted, that is, by the state’s accession to the market, the administration of social life being shifted from the state to private centres of power.
25 Ibid at 8. 26 Joyce Appleby, The Relentless Revolution: A History of Capitalism (New York: WW Norton, 2010) at 25. 27 Pryor, supra note 24 at 74-111. See also Peter A Hall & David Soskice, eds, Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (Oxford: Oxford University Press, 2001). Cf. William J Baumol, Robert E Litan & Carl J Schramm, Good Capitalism, Bad Capitalism, and the Economics of Growth and Prosperity (New Haven: Yale University Press, 2007). 28 Karl Polanyi, The Great Transformation (Boston: Beacon Press, 2001). 29 Ibid at 263.
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Even as the market reduces human beings to their common appetitive denominators, it is premised on those same beings hav- ing free agency, making individual choices that the market at once stimulates and satisfies: “capitalism,” Robert Heilbronner noted, is “seen as a society of self-defining individuals.”30 Workers caught in the updraft of the Industrial Revolution experienced the market in that way, as affording them “newfound and much valued personal free- dom” as consumers enjoying a rising standard of living.31 As “market participants,” people acquired the freedom to move outside “the skein of social prescriptions”32 — to conceive of themselves as possessed of free agency. But as employees, not consumers, they were sub-
ject to regimes of workplace subordination and control which were 2015 CanLIIDocs 535 inconsistent with the kind of personal agency that capitalism invested them with — whence capitalism’s contradiction.33 As we will see, advanced democracies have had call on law to resolve it, and they did so by turning from contract back to status — i.e., to create a law of employment,34 including a law (or laws) of employee privacy that cabin managerial prerogative.
30 Robert Heilbronner, 21st Century Capitalism (New York: WW Norton, 1993) at 147. 31 Emma Griffin, Liberty’s Dawn: A People’s History of the Industrial Revolution (New Haven: Yale University Press, 2013) at 19. 32 Appleby, supra note 26 at 418. 33 Cf. Daniel Bell, The Cultural Contradictions of Capitalism (New York: Basic Books, 1976) at 37: [W]hat I find striking today is the radical disjunction between the social structure (the techno- economic order) and the culture. The former is ruled by an economic principle defined in terms of efficiency and functional rationality, the organization of production through the ordering of things, including men as things. The latter is prodigal, promiscuous, dominated by an anti-rational, anti-intellectual temper in which the self is taken as the touchstone of cultural judgments, and the effect on the self is the measure of the aesthetic worth of experience. 34 Matthew Finkin, “The Idea of Labour Law” (2011) 33:1 Comp Lab L & Pol’y J 178.
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(c) The Last Quarter of the Nineteenth Century: Privacy’s “Golden Age”
In what sense can the last quarter of the nineteen century be said to present a “golden age” of privacy? Not in terms of law, surely, for nowhere was privacy recognized as a robust (or any) legal conception.35 In its embrace of the market, which liberated the worker from a subordinate status prescribed by law, the state chose to accord a formal, legal equality to the worker as a participant in the labour market, just as she was in any other market. As Spiros Simitis has pointed out, this was so in France and Germany under their respective civil codes (the Code civil Bürgerliches Gesetzbuch) and the , and in the United States as a 2015 CanLIIDocs 535 matter of “freedom of contract.”36 The assumption was that employees, now free actors, would negotiate at arm’s length to arrive at contracts of employment that would accommodate their individual needs and desires. But, for the great mass of workers, the assumption was negated by industrialization: the contract of employment was taken to subsume, in text or by legal implication, the employer’s rules and prerogatives about which no individual bargain would be struck. “The work process was therefore not regulated by individual contracts taking into account the particular interests of the workers, but by factory rules that inten- tionally de-individualized the relationship . . . .”37 So much for law. But Shils was not speaking of law: he was addressing social practice. To assess his observation about a golden age of privacy, one should disaggregate two aspects of privacy: informational self- determination, with which Shils was concerned; and personal auton- omy, which he adverted to but did not address directly.
(i) Informational Privacy
Life in small-town America of the last quarter of the nineteenth century and the first quarter of the twentieth differed little from town
35 See generally, Basil S Markesinis, ed, Protecting Privacy: The Clifford Chance Lectures, Volume 4 (New York: Oxford University Press, 1999). 36 Spiros Simitis, “The Case of the Employment Relationship: Elements of a Comparison” in Willibald Steinmetz, ed, Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany, and the United States (London: Oxford University Press, 2000) 181. 37 Ibid at 193.
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or village life of centuries before. As the preface to a sociological study of a town of fewer than 1,500 inhabitants (“Mineville”) in the 1930s put it, the main characteristics of small town life were “close acquaintanceship of everyone with everyone else, the dominance of personal relations, and the subjection of the individual to continu- ous observation and control by the community.”38 It was the demand for labour, triggered by industrialization, that drew huge numbers of people away from the towns and villages and into the cities,39 where they found themselves in an unprecedented situation, at once fright- ening and exhilarating — of anonymity.40 Blue collar workers were recruited through networks of rela-
tives and friends in the company’s employ who could vouch for the 2015 CanLIIDocs 535 applicant, or by employment agencies (called, tellingly, “intelligence bureaus”41). But where these methods proved inadequate, as they often did, hiring was done by foremen at the factory gate, on their best guess or at random.42 Workers might be subject to blacklisting for unionizing or engaging in workplace protest, a practice prevalent in railroading.43 And for higher-level white collar jobs, employers
38 Albert Blumenthal, Small-Town Stuff, ed by EW Burgess (Chicago: University of Chicago Press, 1932) at xii. 39 This was famously captured by Richard Hofstader, The Age of Reform (New York: Knopf, 1955) (“the United States was born in the country and has moved to the city” at 23); See Theodore Hamerow, The Birth of a New Europe of a New Europe: State and Society in the Nineteenth Century (Chapel Hill: University of North Carolina Press, 1983) at 89-117. 40 See e.g., Rochelle Gurstein, The Repeal of Reticence: America’s Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art (New York: Hill and Wang, 1996) at 218; Joanne Meyerowitz, Women Adrift: Independent Wage Earners in Chicago, 1880-1930 (Chicago: University of Chicago Press, 1988). 41 Joshua L Rosenbloom, Looking for Work, Searching for Workers: American Labor Markets During Industrialization (New York: Cambridge University Press, 2002). 42 Sanford M Jacoby, Employing Bureaucracy: Managers, Unions, and the Transformation of Work in American Industry, 1900-1945 (New York: Columbia University Press, 1985). 43 Female textile workers petitioned the Massachusetts legislature in 1843, pro- testing having been blacklisted for going out on strike. David A Zonderman, Aspirations and Anxieties: New England Workers and the Mechanized Factory System, 1815-1850 (New York: Oxford University Press, 1992) at 160; Walter Licht, Working for the Railroad: The Organization of Work in the Nineteenth Century (Princeton: Princeton University Press, 1983) at 123-124.
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resorted to a variety of devices to screen applicants: “Physiognomy, phrenology, or graphology (an assessment of an applicant’s hand- writing), anything that could be taken to breathe a hint of the appli- cant’s character was utilized.”44 But, in general, applicants were often unknown and unknowable. In other words, the technology for the intrusive screening that Shils addressed — background checks, psychological screening, polygraphy — was either costly or simply not available. Applicants were living in a “golden age” of privacy not because of law or inher- ent managerial respect, but because the technology necessary for sys- tematic intrusion was absent. 2015 CanLIIDocs 535 (ii) Individual Autonomy
The last quarter of the nineteenth century witnessed a struggle between employers and skilled craft workers. The latter asserted the right to set the pace of work, to come and go as they pleased, to drink on the job and more, grounded in their independence and “manli- ness,” and couched in terms that resonated with the egalitarian values of the American Revolution.45 Employers, in contrast, insisted on
44 Matthew Finkin, Privacy in Employment Law, 4th ed (Arlington: BNA Books, 2013) at 179. 45 See e.g. Bruce Lurie, Artisans into Workers: Labor in Nineteenth-Century America (New York: Noonday Press, 1989); Jonathan Prude, The Coming of Industrial Order (Cambridge: Cambridge University Press, 1983) 119-120: . . . Yankees who heard mill managers repeatedly stress their “paternal scru- tiny” of textile hands [in the 1830s and 1840s] could also worry that manu- factories harbored conflations of executive power inappropriate in a nation dedicated to “liberty.” This latter concern arose because, in the final analysis, paternalistic slogans surrounding factory order collided head on with another perspective: the widespread desire for a society peopled by citizens living in rough equality and independence and the correspondingly widespread fear of overweaning authority. They confronted, in sum, the “republican” ideology that had fueled the Revolution and that remained deeply influential during the early antebellum era. From a republican viewpoint, fatherly mill masters could seem like “monarch[s],” and to all the other complaints about manufactories could be added the charge that they were run like “tyrannies.”
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punctuality, obedience and deference to authority.46 As work became deskilled, as the factory eclipsed the workshop, as jobs increasingly were filled with immigrant labour, the victory went to management.47 Employer control of the employee did not hinge on the avail- ability of sophisticated technology, but on the employer’s inclina- tions and economic power. In those locations where employees had to live in company towns, in company housing — close to mines and textile mills, for example — the control of virtually all aspects of life could be at least as intrusive as in the pre-industrial world, save that the power of control was managerial, not communal.48 Even in metropolitan settings, employees could be and were controlled in
their commercial activity, associations, recreation, and even religious 2015 CanLIIDocs 535 observance.49 Welfare plans for the “uplift” of workers, particularly of the foreign-born, could reach into grooming, dress, home, hygiene
46 See e.g. David Thelen, Paths of Resistance: Tradition and Dignity in Industrializing Missouri (New York: Oxford University Press, 1986) at 56. 47 The literature is substantial. For a good introduction, see David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American Labour Activism, 1865-1925 (New York: Cambridge University Press, 1987). 48 See e.g. Zechariah Chafee Jr, “Company Towns in the Soft-Coal Fields” in Zechariah Chafee Jr, The Inquiring Mind (New York: Da Capo Press, 1928) 172; Jacquelyn Dowd Hall et al, Like a Family: The Making of a Southern Cotton Mill World (Chapel Hill: University of North Carolina Press, 1987). 49 Note, for example, the following rules issued by Carson, Pirie, Scott, & Co., a department store, to its clerks in 1927 (quoted in Delbert Miller & William Form, Industrial Sociology (New York: Harper & Bros, 1951) at 561): 5. The clerk who is in the habit of smoking Spanish Cigars — being shaved at the barbers — going to dancing parties and other places of amusement and being out late at night — will assuredly give his employer reason to be ever suspicious of his integrity and honesty. . . . 7. Each clerk must pay not less than $5.00 per year to the Church and must attend Sunday School regularly. 8. Men clerks are given one evening a week off for courting and two if they go to a prayer meeting. 9. After the 14 hours in the store the leisure hours should be spent mostly in reading.
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and more.50 The limit on employer control (if limit there was) had to be found in collective worker protest and the pressure of public opinion,51 not in law, for managerial power was an excrescence of contract taken implicitly to accord control analogous to or drawn expressly from the power accorded a father over his family. In 1884, for example, the Supreme Court of Tennessee sustained in these terms the authority of a railroad manager to forbid the company’s employees from shopping at a disfavoured store: May I not forbid my family to trade with anyone? May I not dismiss my domestic servant for dealing, even visiting, where I forbid? And of my domes- tic, why not my farm-hand, my mechanic [a term applied at the time to skilled employees], or teamster? And if one of them, why not all four? And if all four, 2015 CanLIIDocs 535 why not a hundred or a thousand of them?52 The dissent replied: “A father may well control his family . . . but an employer should have no such right conceded to him.”
3. EMPLOYEE PRIVACY LAW AT MID-TWENTIETH CENTURY
When Shils wrote of the threat to informational privacy, the most systematically invasive technology (apart from polygraphy), was either nascent or non-existent. The first desktop computer had been launched on a modest scale only two years before his article appeared. The Internet, the creation of huge electronically accessible repositories of information, all lay in the future. The only federal law that spoke to electronic privacy, the Wiretap Act of 1934, was concerned with the interception of telephone communications, which seems oddly quaint today. The common law tort of invasion of privacy
50 See generally Stuart D Brandes, American Welfare Capitalism, 1880-1940 (Chicago: University of Chicago Press, 1976). 51 See e.g. Scott Malloy, Irish Titan, Irish Toilers: Joseph Banigan and Nineteenth- Century New England Labor (New Hampshire: University of New Hampshire Press, 2008) (discussing the strike and negative press over an employer’s insist- ence on a contract clause requiring “[r]egular attendance at some place of public worship” at 134-135). 52 Payne v The Western & Atlantic Railroad, 81 Tenn 507, 13 Lea 507 (available on QL) (Sup Ct 1884).
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was in the process of codification by the American Law Institute (ALI), of which more will be said below — a private, self-selecting body representative of the legal establishment. It proposed to make actionable a wrongful intrusion into one’s “seclusion” and wrongful disclosure of private facts. But it centred on the manner and substance of the intrusion and the manner of disclosure: to be actionable, the manner and the matter had to be unreasonably offensive.53 As the ALI’s Reporter noted, the tort was concerned with the emotional dis- tress triggered by the loss of privacy, not with privacy itself.54 The ALI’s formulation was to achieve widespread judicial acceptance. Under it, however, when business engaged not in adven-
titious acts of managerial voyeurism, but in the systematic pursuit of 2015 CanLIIDocs 535 information, it confronted no common law constraint. Consequently, when Shils wrote and for a generation thereafter, no law spoke to the threats he perceived. The picture was no different when the control of employees was involved. At and shortly after the turn of the twentieth century, in the wake first of Populist attacks on corporate power and then of the more sustained efforts of Progressive reformers and their allies in the labour movement, several states prohibited employers from dictating where employees may shop or how they may vote. Blacklisting was widely proscribed. Freedom of association for economic protection — unionization and collective bargaining — was protected by fed- eral law in 1935. But few if any other constraints were imposed on employers. Intrusive policies of the kind found in company towns or in company welfare plans were abandoned, but not because of law. The automobile and the street railway did away with the need for company towns and housing (the automobile revolutionizing not only mobility but sexual intimacy, illustrating the capacity for some tech- nologies to facilitate privacy and disturb the social order). Intrusive corporate welfare plans were dispensed with to save costs in the wake of the Great Depression.55 If individual autonomy was afforded, it was as a matter of corporate indifference, not legal obligation.
53 Restatement of the Law, Second, of Torts, 1965. 54 William L Prosser, “Privacy” (1960) 48:3 Cal L Rev 383. 55 But see Sanford M Jacoby, Modern Manors: Welfare Capitalism Since the New Deal (Princeton: Princeton University Press, 1997).
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4. PRIVACY’S “VICISSITUDES” IN THE ENSUING HALF-CENTURY
How does Shils’ critique stand today? The answer implicates the two facets of his address: corporate practice and the action (or reaction) of the public. The situation of the legal policy elite will be taken up toward the close.
(a) Business Practice
Corporations make decisions under conditions of uncertainty.
It is inherent in the dynamic of capitalism that it strives to reduce the 2015 CanLIIDocs 535 zone of the unknown to the extent that is economically feasible. The drive to know as much as can be known of the market, including the labour market (that is, of job applicants and employees), has been facilitated by an explosion in inexpensive information technology. When Shils wrote, criminal records, for example, had to be searched by the physical inspection of paper courthouse records, county by county; today, these can be accessed far more broadly and by a click of a mouse. The consequence has been an exponential growth in cor- porate efforts to render applicants and employees transparent. The information may or may not currently be useful, but the inexorable drive is to reduce the zone of the unknown, to sweep in anything that might possibly be of future use, howsoever remote the prospect. Medical screening, instituted at the century’s turn to reduce employment of those with contagious diseases, now includes predict- ive screening to reduce employer health costs; that effort has been “greatly affected by technological advancements.”56 Testing for the presence of metabolites of controlled substances in an applicant’s or employee’s body also became ubiquitous. More than half the com- panies surveyed by the Society for Human Resource Management (SHRM) in 2011 replied that they conducted such tests — of all applicants and of incumbent employees, on the basis of reasonable suspicion or even randomly.57 Of personality testing, a matter of
56 Mark Rothstein, Medical Screening and the Employee Health Cost Crisis (New Jersey: BNA Books, 1989) at 1. 57 Society for Human Resource Management (SHRM), Drug Testing Efficiency Poll (2011).
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special concern to Shils, a 2011 SHRM survey indicated that 13% of responding companies used such devices for hiring or promo- tion.58 These varied from sophisticated diagnostic tests developed for psychiatric purposes, geared to jobs entailing great stress or inten- sive collaborative effort, to computerized “honesty” tests that screen large numbers of applicants for low-level positions. Criminal back- ground checks, according to a 2010 SHRM poll, are widely used: to reduce the prospect of liability for negligent hiring (55%), but also as a test of general trustworthiness (12%).59 Checks on creditworthi- ness were run on all applicants by 13% of responding companies according to a 2012 SHRM poll, with significantly higher percent- 60
ages for positions of trust or with financial responsibilities. A 2007 2015 CanLIIDocs 535 American Management Association survey indicated that a majority of the employers surveyed (53%) use smartcard technology to mon- itor physical access to their facilities but few used GPS to monitor physical location. The monitoring of employee computer use — Internet connec- tions, computer files, e-mail messages, keystrokes — has become commonplace.61 More than that, employers have demanded access to applicant and employee private social media.62 With respect to personal autonomy, there are almost no survey data on the sorts of things that employers control today. The evidence is largely anecdotal: news accounts or the occasional lawsuit. Even then, it is sometimes possible to glean whether the action challenged was sui generis (e.g., the discharge of a dental assistant because the
58 SHRM Poll: Personality Tests for Hiring and Promotion of Employees (16 December 2011). 59 SHRM, Background Checking – Conducting Criminal Background Checks (22 January 2010). 60 SHRM, Survey Findings: Background Checking – The Use of Background Checks in Hiring Decisions (19 July 2012). 61 American Management Association, Press Release, “2007 Electronic Monitoring & Surveillance Survey” (28 February 2008), online:
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dentist’s wife thought her too “hot”)63 or the product of company policy (e.g., a blanket “no fraternization” rule).64 Nevertheless, some data are available. As of 2001, about 12% of reporting companies had policies governing co-worker romance. The vast majority forbade superior/subordinate relationships, but a num- ber prohibited all co-workers from dating one another.65 According to a 2010 survey, 7% of responding companies prohibited employees from any gambling, not just on company premises — a rise from 2% in 2008.66 And as of 2012, 2% of reporting companies prohibited the hire of anyone who smoked, and an additional 3% planned to do so.67 In sum, Shils’ prediction that capitalism’s voracious appetite 2015 CanLIIDocs 535 for privacy-invasive information would be abetted by technological growth has been confirmed. Though he gave autonomy only a side- long glance, the record is equally clear that capitalism senses no reason to constrain its control of employees whenever it believes it would not be in its business interest to do so. Whether the record also bears out his sensed indifference of the general public is taken up below.
(b) Public Reaction
It is unsurprising that a people raised and living in a world largely lacking in privacy would sense no deprivation of it. The word did not enter the English vocabulary until the sixteenth century. Theretofore, the state of solitude, away from sociability and com- munal oversight, was the realm of the outlaw, the outcast and the out
63 Nelson v Knight, 116 Fair Emp Prac Cas 1493 (Iowa Sup Ct 2012). 64 Ellis v United Parcel Service, 523 F (3d) 823 (available on WL Can) (7th Cir 2008). 65 SHRM/CareerJournal.com, Workplace Romance Poll Findings (2006). 66 SHRM, Workplace Policies for Office Pools (January 2010). 67 SHRM Poll: Smoking Policies in the Workplace (19 March 2012).
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of mind. Which is not to say that even then, solitude was not sought — by the anchorite, the poet, the scholar.68 The Industrial Revolution and capitalism’s emphasis on the individual as consumer whose wants it would satisfy combined to whet a desire for individual privacy and to promise its satisfaction. This has been demonstrated in the rise of private domestic space, in tandem with rising living standards.69 As a result, by the time Shils wrote, privacy had already become a subject of academic study70 and
68 Deana Webb, Privacy and Solitude: The Medieval Discovery of Personal Space (London: Hambledown Continuum, 2007). In 1513, Niccoló Machiavelli wrote to 2015 CanLIIDocs 535 his friend Francesco Vettori of how, as evening drew on, he ceased his day’s work, entered the passageway to his writing room, changed from work clothes to a courtly robe and slippers, washed his hands, lighted a lamp, and crossed the threshold: I enter the ancient courts of the men of antiquity where affectionately received by them I pasture on that food that alone is mine and for which I was born, where I am not too timid to speak with them and ask them about the reasons for their actions; and they in their courtesy answer me; and for four hours of time I feel no weariness, I forget every trouble, I do not fear poverty, death does not dismay me; I transfer all of myself into them . . . . Quoted in Sebastian de Grazia, Machiavelli in Hell (Harvester Wheatsheaf, 1989) at 26. De Grazia’s focus was on Machiavelli’s “interest in crossing the threshold,” ibid at 27, his dialogue with the ancients. The interest here is on the threshold, of a room for private study. Dora Thornton, The Scholar in His Study: Ownership and Experience in Renaissance Italy (New Haven: Yale University Press, 1997) at 1 (“In itself, however humble the room, the study demonstrated the dignity of an individual, for it was (most unusually in the Renaissance house- hold) a space set apart for the use of a single owner”). 69 See Norman JG Pounds, Hearth & Home: A History of Material Culture (Bloomington: Indiana University Press, 1989); Fernand Braudel, Civilization and Capitalism, 15th – 18th Century: The Structures of Everyday Life, vol 1, translated by Sian Reyond (Berkley: University of California Press, 1992); Michelle Perrot & Roger-Henri Guerrand, A History of Private Life, translated by Arthur Goldhammer (Cambridge: Harvard University Press, 1990) at 341-450. 70 Shils’ essay appeared in a collection of papers on law and privacy. In the Foreword, the editor observed that “much in the history of privacy law is still ahead of us . . . . privacy still remains primarily a nonlegal concept.” Clark Havighurst, “Foreword” (1966) 31 L & Contemp Probs 251. The literature of the mid-twentieth century is discussed in various of the essays in J Roland Pennock & John W Chapman, eds, Privacy (New York: Atherton Press, 1971); Ellen Frankel Paul, Fred D Miller, Jr, & Jeffrey Paul, The Right to Privacy (Cambridge: Cambridge University Press, 2000).
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a source of concern — most prominently, about governmental sur- veillance. George Orwell sounded the alarm about the special evil of panoptic government in 1949;71 but when Shils wrote, rather little notice had been taken of the role of private centres of power, apart from the press.72 That was to change. The year after Shils’ article appeared, Alan Westin published Privacy and Freedom, which appealed to a wide audience and was broadly influential in stimulating public interest. A decade later, David Linowes, Chairman of the United States Privacy Protection Commission, submitted a report of that Commission, which he expanded on in his 1989 book, Privacy in America: Is Your Private 73
Life in the Public Eye?, dealing with the impact of relentless com- 2015 CanLIIDocs 535 puterization of personal information by corporations. Privacy began to draw more and sophisticated scholarly interest, from literary,74 philosophical,75 anthropological,76 sociological77 and even femin- ist78 perspectives. Most observers confirmed the connection Shils drew between maintaining respect for privacy (save insofar its loss is necessitated in order to engage productively in civil society) and maintaining a human self capable of acting as an autonomous agent in that society. As Jeffrey Reiman put it, “privacy is necessary to the
71 George Orwell, 1984 (New York: Harcourt, Brace, and Company 1949). 72 The most famous such effort, Samuel D Warren & Louis D Brandeis, “The Right to Privacy” (1890) 4 Harv L Rev 193, was written by two young men fresh out of law school who had formed a law firm and obviously had rather too much time on their hands. 73 Chicago: University of Illinois Press, 1989. 74 Patricia Meyer Spacks, Privacy: Concealing the Eighteenth-Century Self (Chicago: University of Chicago Press, 2003). 75 The extensive literature is comprehensively reviewed by Beate Rössler, Der Wert Des Privaten (Germany, Suhrkamp, 2001). See also Elizabeth Neill, Rites of Privacy and the Privacy Trade (Montreal: McGill-Queen’s University Press, 2001). 76 Barrington Moore Jr, Privacy: Studies in Social and Cultural History (Armonk, NY: ME Sharpe, 1984). 77 Gideon Kunda, Engineering Culture: Control and Commitment in a High Tech Corporation (Philadelphia, Temple University Press, 1992) at 243; Randy Hodson, Dignity at Work (Cambridge: Cambridge University Press, 2001) at 175. 78 See Patricia Boling, Privacy and the Politics of Intimate Life (Ithaca: Cornell University Press, 1996); Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca: Cornell University Press, 1997).
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creation of selves out of human beings, since a self is at least in part a human being who regards his existence — his thoughts, his body, his actions — as his own.”79 But, in sharp contrast to the state of the scene when Shils wrote, interest in privacy today far transcends the academy. A rising tide of news accounts, of books and articles, of studies devoted to a wide readership, calls attention to the dehumanization of the person reduced to a mere object of examination80 — to the loss of informa- tional control worked by the acquisition of vast amounts of informa- tion collected from numerous independent sources81 on the basis of which the human “subject” can be tracked in consumption patterns
(purchases of consumer goods, medical prescriptions, airline tickets), 2015 CanLIIDocs 535 physical location in real time,82 and more. Advocacy groups and think tanks devoted to privacy protection have sprouted. In other words, in contrast to what Shils saw as a lack of any public interest in privacy-invasive policies and actions of private cen- tres of power a half-century ago, today they are front-page news.83 In
79 Jeffrey H Reiman, “Privacy, Intimacy, and Personhood” (1976) 6 Philos & Pub Affairs 26 at 39 [emphasis in original]. 80 See e.g. F Allan Hanson, Testing Testing: Social Consequences of the Examined Life (Berkeley: University of California Press, 1993); Annie Murphy Paul, The Cult of Personality: How Personality Tests Are Leading Us to Miseducate Our Children, Mismanage Our Companies, and Misunderstand Ourselves (New York: Free Press, 2004). 81 E James Waldo, Herbert Lin & Lynette Millet, National Research Council, Engaging Privacy and Information Technology in a Digital Age (Washington: National Academic Press, 2007). This includes efforts to reach a popular audi- ence. See e.g. Frederick S Lane, The Naked Employee: How Technology is Compromising Workplace Privacy (New York: AMACON, 2003). 82 Lisa S Nelson, America Identified: Biometric Technology and Society (Cambridge: MIT Press, 2011). 83 That is true even as this paper is being written. See Spencer Ante & Lauren Weber, “Memo to Workers: The Boss is Watching: Advances in Tracking are Shaking Up the Workplace,” Wall Street Journal (23 October 2013), online:
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this, public concern for consumer privacy resonates sympathetically with and amplifies the concerns of job applicants and employees.
(c) Law
(i) Informational Privacy
As noted above, the tort of wrongful invasion of privacy, as codified by the ALI, has no bite on systematic invasive action vis- à-vis applicants and employees when taken by employers in pursuit of business interest. As a result, legal recourse in the United States
has necessarily been from the legislatures, in piecemeal responses to 2015 CanLIIDocs 535 perceived abuses, sometimes of quite narrow focus. These combine to create pockets of privacy protection on a field otherwise free for corporate intrusion and control. If Shils were to write today, this is what he would see. The ability of an employer to conduct medical examinations and the confidentiality of medical records have been spoken to by the Americans with Disabilities Act of 1990,84 the Health Insurance Portability and Accountability Act of 1996,85 the Occupational Safety and Health Act of 1970,86 the Family and Medical Leave Act of 1993,87 and a wealth of cognate state law. Genetic screening for employment purposes has been forbidden, reflecting far more a deep-seated cul- tural sensitivity than a response to any widespread practice.88 Drug testing is regulated by an extensive patchwork quilt of federal and state laws.89 The use of polygraphy to screen applicants — a special concern of Shils’ — has been all but forbidden by federal law and is
84 42 USC § 12101 (1990). 85 Pub L No 104-191, 110 Stat 1936. 86 29 USC § 651 (1970). 87 29 USC § 2601. 88 For these statutes, see Matthew Finkin, Privacy in Employment Law, 4th ed (Arlington: BNA Books, 2013), ch 1 (“Medical Screening and Testing”). See also William Corbett, “What is in GINA’s Genes? The Curious Case of the Mutuat-Hybrid Employment Law (2011) 64 Okla L Rev 1; Pauline Kim, “Regulating Use of Genetic Information: Perspective From the U.S. Experience” (2010) 31 Comp Lab L & Pol’y J 693. 89 Finkin, ibid, ch 2 (“Drug, Alcohol, and Tobacco Screening and Testing”).
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totally forbidden in many states.90 Background checking by agencies retained for that purpose is now regulated by federal and cognate state law; at a minimum, the applicant must give written consent and is entitled to see the report.91 The Wiretap Act of 1934 has been amended over time to become the Electronic Communications Privacy Act,92 which addresses the interception of electronic communications, and what is termed the Stored Communications Act,93 which deals with the retrieval of messages in electronic storage. Employer demand for access to applicant or employee social media has resulted in the swift enactment of prohibitory laws, in twelve states so far.94 But just as people living in a privacy-respecting world come to
value it, it is possible that those coming of age in a privacy-eroded 2015 CanLIIDocs 535 world would develop no sense of deprivation, and would sense that which might previously have been a ground of grievance to be acceptable or unobjectionable. The monitoring of work by com- puter, and the persistent inspection of the worker by video camera, were met with protests a generation ago, with cries about the cre- ation of “electronic sweatshops”95 and of panoptic dehumanization;96 but these protests had no legal effect, and are rarely heard today. Technology that allows intensive oversight impossible without it is
90 Ibid, ch 3 (“Psychological Screening and Testing”). 91 Ibid, ch 4 (“Interviews and Background Investigation”). 92 18 USC § 2510-21. 93 18 USC § 2701-11. See Finkin, supra note 83, ch 5. 94 Ibid at 437. These are California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, Oregon, Utah, and Washington. See Finkin, ibid at 437. More recently, 2013 Wisconsin Act 208 and Tennessee Public Act 2014-826. The Wyoming House rejected such a measure, 13 PVLR 424 (10 March 2014). For an insightful treatment of the issue, see Pauline Kim, “Electronic Privacy and Employee Speech” (2012) 87 Chicago-Kent L Rev 901. 95 See Paul Attewell, “Big Brother and the Sweatshop: Computer Surveillance in the Automated Office” (1987) 5 Sociological Theory 87; US, Office of Technology Assessment, The Electronic Supervisor: New Technology, New Tensions (OTA-CIT-333) (Washington, DC: US Government Printing Office, 1987); Shoshana Zuboff, In the Age of the Smart Machine: The Future of Work and Power (New York: Basic Books, 1984). 96 Vega-Rodriguez v Puerto Rico Telephone, 110 F (3d) 174 (1st Cir 1997), 65 USLW 2676.
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deployed nowadays as a matter of course.97 There has been rather little legislative concern thus far with the deployment of biometric devices — save that biometric information has been covered by laws dealing with identity theft — or with the use of global positioning sys- tems (GPS) or like location-finding systems98 — save that four states forbid employers from “requiring” (not “requesting”) that radio-fre- quency identification (RFID) chips be subcutaneously implanted in their employees.99 All other questions fall to the common law, to be dealt with awkwardly or not at all.
(ii) Individual Autonomy 2015 CanLIIDocs 535 Unlike the comparatively more robust expansion of law protect- ive of personal information, the law of employee liberty has evolved more circumspectly. A number of American states now allow employees to consume tobacco, or alcohol or other lawful products on their own time and off the company’s premises;100 three states protect engagement in any lawful activity so long as there is no inter- ference with the employee’s job responsibilities; one state protects the right to engage in recreation, subject to the same condition.101
97 For example, it is possible to monitor a motor vehicle continuously, including video and audio recording of the driver. The technology allows the company to record a “G-force” event, not only a collision but a bump or a sharp swerve. These data can be analyzed: was the driver using a cell phone, or drowsing? See e.g.,
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Antidiscrimination in employment law has had a ripple effect on personal autonomy —notably in laws that prohibit discrimination on the ground of marital status, that require accommodation to religious belief, that protect “gender identification,” or in a very few cases, that expressly protect one’s choice of dress102 or weight.103 Fifteen states give employees the right to possess firearms in their locked vehicles on employer parking lots.104 In addition, some laws of earlier vintage protect political rights: voting, most commonly, voting rights, and in a few states, the right to run for office or to express political opin- ions.105 But that is about the extent of it. In sum, the state has limited employers where some specific
public policy would be infringed by private power; but for the most 2015 CanLIIDocs 535 part, the state does not see employee autonomy as an interest worthy of protection in itself. Unlike informational privacy, where action that invades the privacy of consumers can lead to analogous concern for workers, public interest in the United States has not been similarly stimulated by issues of employer control of employees. As a result, the law has rather a fey quality to it. An employer can command an employee to submit to a medical examination only if the employer can satisfy a court that the examination is “job related and consistent with business necessity”;106 but an employer is subject to no such showing when telling an employee whom he or she may not befriend or date.107
102 California has legislated to allow women to wear pants, Cal Gov Code § 12947.5 (2009). The District of Columbia protects the right of “personal appearance,” subject to adherence to proscribed standards. DC Code Ann § 2-1401.05(22) (2001). 103 Michigan prohibits discrimination on the ground of weight. Mich Comp Laws § 37.2102 (1976). 104 Finkin, supra note 83 at 688-689. Those states are Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, North Dakota, Oklahoma, Tennessee, Texas and Utah. 105 Finkin, supra note 83 at 582-593. 106 42 USC § 12112(c)(4)(A) (26 July 1990). 107 Thelen v Marc’s Big Boy Corp, 64 F (3d) 264 (available on WL Can) (7th Cir 1995); Gibson v Old Town Trolley Tours, 160 F (3d) 177 (available on WL Can) (4th Cir 1998).
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5. THE POSITION OF THE POLICY ELITE: THE AMERICAN LAW INSTITUTE AND THE COMMON LAW
Shils saw an elite — government, the press, employers — con- cerned to preserve its privacy (or secrecy), but keen to invade the privacy of others. In response to public pressure, the legislatures have stepped in to protect aspects of privacy but have left rather large lacunae to be filled in by a common law governed by an anachronistic legal formulation. Consequently, one could expect the judiciary to be pressed to accommodate the common law to the systematic privacy
loss worked by corporate policy. If so, would the legal elite continue 2015 CanLIIDocs 535 today to resist that change? The proposition is testable. The American Law Institute (ALI) is a self-selected body of more than 4,000 lawyers, government officials, legal academics and judges. If one were to seek out a body representative of the legal policy elite, one need look no further. Since the 1920s, the ALI has sought, in the words of its latest annual report, to “address . . . uncer- tainty in the law by developing restatements of legal subjects for use by courts and lawyers applying existing law.”108 In this vein, through the Restatement (Third) of Employment Law (the Restatement),109 the ALI has been engaged in formulating general principles to govern the entire corpus of the common law of individual employment, includ- ing employee privacy and autonomy. Accordingly, one can address Shils’ thesis on the basis of what the ALI has produced.110
108 American Law Institute Annual Report, online:
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Unfortunately, that portion of the Restatement dealing with informational privacy — the matter which most engaged Shils’ con- cern — is still a work in progress.111 But, fortunately, that part of the text dealing with individual autonomy — section 7.08 — has been adopted by the ALI.112 As it addresses an area where the common law is absent, and where the ALI can write on a clean slate, that section gives sharp insight into the “constitution and vicissitudes” of American privacy law today. It reads as follows: 7.08. Intrusions upon Employee Personal Autonomy Interests (a) Employees have interests in personal autonomy outside of the employ- ment relationship. 2015 CanLIIDocs 535 Such interests include: (1) engaging in lawful conduct that occurs outside of the locations, hours, and responsibilities of employment and that does not implicate the employer or its business; (2) adhering to political, moral, ethical, religious, or other personal beliefs, or expressing such beliefs outside of the locations, hours, and responsibilities of employment, when such adherence or expression does not implicate the employer or its business; or (3) belonging to lawful associations when such affiliations do not implicate the employer or its business. (b) Unless the employer and employee expressly agree otherwise, an employer is subject to liability for intruding upon an employee’s per- sonal autonomy interests if: (1) the employer discharges or takes other material adverse employ- ment action against the employee because of the employee’s exer- cise of a personal autonomy interest under section 7.08(a); and (2) the employer does not have a reasonable good-faith belief that the employee’s exercise of that autonomy interest interferes with the employer’s legitimate business interests, including its orderly operations and reputation in the marketplace. Given the absence of common law on the matters dealt with in section 7.08, the Restatement’s methodology is arresting. It turns to
111 The working draft is discussed by Matthew Finkin, “An Excursion Through Strange Terrain: Chapters 6 (Defamation) and 7 (Privacy and Autonomy)” (2012) 16:2 Employee Rts & Employment Pol’y J at 487. 112 Workplace Privacy and Autonomy, tentative draft no 6, 2013, s 7.08. Chapter 7 of the Restatement is available online:
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the fabric of existing discrete statutory protections — for political speech and opinion, antidiscrimination law, lawful product use, law- ful off-duty conduct, and the like — to fashion out of these a general deductive principle of law and to propose a rule of employer liability for its transgression. Note should be taken first of the definition of those employee interests that engender the law’s protection. In section 7.08(a), the text asserts, as a factual predicate, that employees possess “inter- ests in personal autonomy outside the employment relationship.” It defines those interests as extending to lawful conduct, to political or ethical belief, and to lawful association — but only when that does
not “implicate the employer or its business.” More on this crucial 2015 CanLIIDocs 535 reservation in a moment. It is the curious narrowing predicate — “outside the employment relationship” — that is of initial interest. Employees would surely seem to have autonomy interests — strong interests — inside as well as outside an employment relation- ship. Dress and grooming on the job has long been a contested area of employee autonomy. The common law has afforded it no protection, but it has been spoken to in piecemeal address by antidiscrimination law: sometimes indirectly, as in the wearing of religious garb; some- times more directly, as in sex stereotyping in clothing; and some- times outright, as in gender identification laws or (in one case) in a general right to control one’s appearance.113 So, too, employees may have conscientious objection to the work itself. A pharmacist, for example, may well hold deeply grounded moral or ethical, non-reli- giously based objection to the dispensing of contraceptives.114 All of these could well be drawn upon and gathered under a definition of the interests that call for legal address; but the text of section 7.08 seems to rule on-the-job interests as not legally cognizable out of hand. It could be that the document’s silence is not meant to be preclusive, but only that it chose not to reach them. However, given the text’s sweep, silence slouches toward preclusion. In the event, and consistent with the Institute’s methodology throughout, the document declines to explain why it made that choice, or that it made any choice at all.
113 Finkin, supra note 83 at 644-666. 114 Ibid at 689-693.
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Note should next be taken of the decision, reflected in section 7.08(b), to ground the protection of autonomy in implied contract. In a comment, the document explains: [T]he premise for legal protection of the employee’s autonomy interests under this Section is that the parties to every employment relationship impliedly agree to the level of protection stated in this Section. But any such implied term may be altered by the express agreement of the parties.115 This conflicts with the very idea of law as needed to address the fail- ure of the market to protect autonomy, and so with the sources drawn upon to ground the general principle; that is, the document abstracts its rule from a web of specific laws which impose limits that cannot
be contracted around. A law that forbids employers to tell employees 2015 CanLIIDocs 535 how to vote, or what political opinions they may not express, is meant to constrain employers from doing just that. The insulation of polit- ical liberty these laws afford would be stripped of effect were they to allow an employer contractually to reserve a power of control. Even then, the text breathes no hint of what such an “express agreement” would have to say, how specifically it would have to address the area of control it reserved and what the consideration for it would be. From what appears, a simple posting of a rule reserving the right to control employees in all matters where an employer does not see its business interests “implicated” would suffice. Critically, we are then told in section 7.08(b)(2) that the employer is liable for a constraint on autonomy, absent an agree- ment conceding the employer such power, only when the employer “does not have a reasonable good faith belief” that the employee’s exercise of autonomy interferes with the employer’s legitimate busi- ness interests. Inasmuch as employers rarely constrain an employ- ee’s liberty where they see no reasonable business interest to be served, the Restatement’s promise of protection is negated in those situations where autonomy is most likely to be exercised, and to be needed most. Section 7.08(b)(2) tells us, for example, that whether a non-managerial employee (a janitor, perhaps) can be forbidden, as a city resident, to speak to his city council in opposition to a land zoning change contrary to his employer’s dictate turns on whether the company has a reasonable belief that its interests are implicated in the
115 Restatement §7.08, Comment f.
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zoning change.116 Why would the employer forbid the employee to speak unless it believed it had an interest in the land’s use?117 Consistent with its methodology, the ALI could have toured the same horizon of privacy protections and abstracted a rather different general principle — one that actually would conform more closely to the non-contractual foundational sources of those protections: No restriction may be placed by an employer on the rights or liberties of an employee unless it is justified by the nature of the work and is pro- portionate to that purpose. This test is objective, not subjective; the privacy principle could not be contracted away; and the determination of justification and proportionality would be for a court to decide.
Such would be consistent with Shils’ criticism that much privacy 2015 CanLIIDocs 535 intrusion was “useless and unnecessary,”118 a “moral affront to human dignity.”119 It would be consistent with Polanyi’s manifesto that “[t]he individual must be free to follow his conscience without fear of the powers that happen to be entrusted with administrative tasks
116 See Restatement, Illustration 6. The document asserts elsewhere that a manag- erial employee is subject to the employer’s control per se. Ibid at 76-77. 117 Albert Blumenthal, a sociologist, studied a small town (“Mineville”) in the 1930s as a resident observer. He wrote: A petition had been circulated over the state in an effort to initiate a popular vote upon a workmen’s compensation measure. The requisite number of signers had been secured in the fifty-six counties of the state but the meas- ure was never voted upon. For hardly had the ink of the signatures dried when a state-wide withdrawal petition was in circulation [supported by their employers]. The workers had no rational alternative than to remove their names. Well did they know the power which requested that they “reconsider” the matter. Even those who admitted the obvious defects in the measure resented the fact that they were not trusted to exercise their own free wills at the polls. “But it’s no use to complain,” they said. “One’s bread and butter is more important than the right to vote.” Blumenthal, Small-Town Stuff, supra note 38 at 67-68. 118 Shils, supra note 1 at 305. 119 Ibid.
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in the field of social life,”120 and with the law in other industrialized democracies.121 But the ALI was not so minded. It is instructive that in the name of making the law more modern and just, the legal elite would return the law to contracts of adhesion, and return the employee to the status of a servant.122
6. CONTINUITY AND CHANGE
Rather early on, Shils saw the dehumanizing threat the erosion of privacy posed to the individual in modern society. He did not imagine a technology that could so comprehensively effect that loss;
but then, few could at the time. Neither, however, did he foresee the 2015 CanLIIDocs 535 upwelling of public concern about the loss of privacy and the growth of protective law, if only piecemeal and subject to the vicissitudes of the political process. Even so, Shils was spot-on when he addressed the role of elites and, one must add, their legal handmaidens. That has not changed.
120 Polanyi, supra note 28; Wolfgang Sofsky, Privacy: A Manifesto, translated by Steven Rendell (Princeton: Princeton University Press, 2008). 121 Such is the literal meaning of the French Code du travail 1222-4 art L 1121-1 and the substance of an extensive texture of German case law. See generally, Matthew Finkin, “Life Away from Work” (2006) 66:4 La L Rev 945. Two U.S. observers offered pretty much this formulation as capturing what the law ought to be, but thought a legal principle couched in these terms would be “too broad.” Bruce Kobayashi & Larry Ribstein, “Privacy and Firms” (2002) 79 Denv UL Rev 526 at 569. This was responded to by Matthew Finkin, “Employee Privacy and the ‘Theory of the Firm’” (2005) 26 J Lab Res 711, pointing to French and German law as embodying just such a rule. 122 See Payne v The Western & Atlantic Railroad, supra note 52.
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01_Finkin.indd 378 15-03-24 10:54 AM Losing the Battle but Winning the War: Why Online Information Should Be a Prohibited Ground
Avner Levin*
This paper contends that in the “war” to protect the privacy of individ- uals’ personal information online, the battle to limit the collection of such infor- mation has been lost. Existing personal information protection regimes, with their emphasis on notice and consent, have proven inadequate, especially in
light of the advent of “big data analytics” and revelations of large-scale privacy 2015 CanLIIDocs 535 violations by governments and corporations. The author argues, however, that the war can still be won on another front — that of limiting the use of per- sonal information. In developing this theme, the author explores the notion of “network privacy,” which posits that information shared online within a given social circle is intended to stay within that social circle, and is not to be shared beyond its boundaries without permission. Currently there is no legal protection in Canada against the invasion of network privacy (though in several recent decisions, the courts have shown a more nuanced understanding of privacy in online information). One potential source of such protection might be the adoption of the “Oxford principles” formulated in 2013, which propose a new model for regulating the processing of information, one that is focused on the use of personal information rather than on its collection. In the author’s view, though, those principles, as well as other proposals, would not provide sufficient protection. Instead, the author outlines an approach that is broadly similar to the prohibition against the use of information relating to protected grounds under Canadian human rights legislation. Under this approach, no action could be taken against an individual — including in the employment context — based on his or her online information, except where that information reveals criminal, illegal or unethical conduct, or causes significant harm to others.
1. INTRODUCTION
Although the topic of this paper is privacy in the workplace, it has inevitably been shaped by the revelations of government elec- tronic surveillance conducted by the United States and several of its
* Associate Professor and Director, Privacy Institute, Ryerson University.
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allies,1 and (to a lesser extent) of corporate surveillance and breaches of privacy. The revelations about the magnitude of the American National Security Agency’s (NSA) surveillance programs dwarf the more mundane workplace privacy concerns typically raised by employees and their union representatives. Ironically, around the same time that news broke about the NSA, the Organisation for Economic Co-operation and Development (OECD) was putting the finishing touches on the first revision to its data protection principles in thirty years.2 The revised guidelines were formally adopted in July 2013, one month after the first infor- mation about the NSA was revealed. The guidelines understandably
represented the end of a long process and could not possibly serve as 2015 CanLIIDocs 535 a reaction to the new information.3 The main new concepts that the guidelines incorporated were: mandatory data breach notification, organizational privacy management programs, and national privacy strategies.4 And the timing of their adoption presented an opportunity to call for more radical revisions. Around the same time, early in 2013, the Oxford Internet Institute organized a workshop that produced a white paper entitled Data Protection Principles for the 21st Century (“Oxford princi- ples”).5 The proposed principles were meant to address the privacy
1 There have been many news reports of these programs since the summer of 2013. The original story broke in The Guardian, and that newspaper currently maintains a comprehensive website about the United States’ surveillance. See “The NSA Files,” The Guardian, online:
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concerns around “big data” and were not based on the NSA revela- tions.6 Nonetheless, they offer an interesting response to the challenge posed to the principles of data protection by widespread surveillance and information collection. The Oxford workshop viewed the notice and consent model at the heart of existing data protection legislation as unable to cope with the challenges posed by big data analytics.7 In order to compensate for this perceived weakness, the white paper places increased responsibility on data collectors and users of data. It also strengthens the principles that govern and restrict data use.8 The Oxford principles have been the subject of some controversy and perhaps misinterpretation since their release in late 2013.9
This paper argues that one of the lessons already learned from 2015 CanLIIDocs 535 the NSA revelations is that the valiant battle to limit the collection of personal information online is lost, and has been lost for some time. Limiting the collection of personal information is one of the principles at the heart of Canada’s personal information legislation. Therefore, such an argument is disheartening, to say the least.10 However, this paper contends that the “war” over privacy, if such a term can be used, can be fought and hopefully won over another fundamental principle — that of limiting the use of personal information.11 The principle of limited use should be strengthened and upgraded, so that in some circumstances the use of personal infor- mation obtained from online sources will be prohibited outright. This
6 “Big data” is the popular term for the extremely large amounts of information collected for commercial purposes. Sophisticated analytical algorithms, yet to be developed, are supposed to unlock the insights that exist within these data sets. 7 Cate, Cullen & Mayer-Schönberger, supra note 5 at 6-7. Notice and consent are two data protection principles that require data collectors to notify individuals before their information is collected, or to obtain consent from individuals prior to such collection. Whether notice or consent is required depends on the jurisdic- tion and circumstances of collection. 8 Ibid at 8. 9 See e.g. Ann Cavoukian, “So glad you didn’t say that! A response to Viktor Mayer-Schönberger” (16 January 2014), International Association of Privacy Professionals (blog), online:
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could be done in a way similar to that in which certain personal infor- mation collected off-line, such as information about an employee’s (or a job applicant’s) race or gender, is prohibited. The framework of “prohibited grounds” established by the federal and provincial human right codes and supported by the Canadian Charter of Rights and Freedoms governs, among other things, the job application process and the ongoing employment relationship. This framework should be transposed onto privacy law to protect the privacy interests that indi- viduals have in online information, just as human rights laws protect individuals against the use of information that they inevitably share about their race, gender or other protected personal characteristics.
The employment relationship might serve as the prototype for protec- 2015 CanLIIDocs 535 tion of privacy online more generally. This is a fitting role, perhaps, given the dismal and enabling role employers and corporations more generally have played in the erosion of privacy.12 To make the argument that online information should, in certain circumstances, be treated similarly to prohibited grounds information, this paper proceeds as follows. First, the paper discusses the notion of online privacy, why personal information available online deserves protection, and the implications for the employment relationship and the ability of the employer to make use of such information.13 Second, the paper briefly reviews the Canadian legal framework protecting employees and Canadians generally from discrimination — the “pro- hibited grounds” framework. Third, the paper considers alternative approaches to the protection of privacy in online information, with a particular focus on the revised data protection principles proposed by the Oxford workshop and their applicability to workplace privacy. Finally, the paper suggests how the “prohibited grounds” model could apply to online information, and the circumstances in which online information should be treated as if it were “prohibited grounds” infor- mation. It then demonstrates the utility of this treatment through a
12 Avner Levin, “Big and Little Brother: The Potential Erosion of Workplace Privacy in Canada” (2007) 22:2 CJLS 197. 13 This section builds upon the work done by the author and his colleagues. See Patricia Sánchez Abril, Avner Levin & Alissa Del Riego, “Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee” (2012) 49:1 Am Bus LJ 63 [Abril, Levin & Del Riego].
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few examples. In the end, the paper offers a normative argument for the crucial, future development of the idea of privacy online.
2. THE NOTION OF PRIVACY ONLINE
One of the unfortunate, and perhaps unexpected, consequences of our increased activity online through social media and through the generation of personal “content” has been the emergence of a com- mon wisdom that information available online is “public” and thus fair game for employers, government, friends and adversaries. For example, in one of the early social media litigation cases in Ontario,
the Court opined that “the plaintiff could not have a serious expect- 2015 CanLIIDocs 535 ation of privacy given that 366 people have been granted access to the private site.”14 In fact, research demonstrates that participants and users of social media have strong privacy expectations. However, the law has yet to acknowledge these expectations.15 My colleagues and I have referred elsewhere to these expecta- tions of privacy online as a notion of “network privacy.”16 Network privacy protects the need of individuals to create their identity and their persona online. If such protection did not exist in the offline world, we would not be able to engage in the forms of identity forma- tion that we take for granted, and that sociologists, such as Goffman, have argued are essential for societal interaction.17 Importantly, iden- tity formation requires a considerable amount of information-sharing to create the perception of an identity in the minds of others, or in Goffman’s terms, in the minds of the “intended audience.”18 In the real world, it is fairly easy — although not always completely pos- sible, thanks to long-held and well-established social norms — to
14 Murphy v Perger (2007), 67 CPC (6th) 245 at para 20 (Ont Sup Ct J) [Murphy]. 15 I discuss some promising recent production decisions in the section titled Canadian Privacy Jurisprudence, below. See generally (for the discrepancy between the expectations of social media users and the law with regards to pri- vacy) Avner Levin & Patricia Sánchez Abril, “Two Notions of Privacy Online” (2009) 11:4 Vand J Ent & Tech L 1001 [Levin & Abril]. 16 Ibid at 1045. 17 Erving Goffman, The Presentation of Self in Everyday Life (Garden City, NY: Anchor Books, 1959). 18 Ibid at 49.
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control the manner in which this information is shared. It is also pos- sible to share different information with various audiences, leading ultimately to the creation of distinct personas, such as an individual’s professional identity, religious identity, social identity and others. In the context of the workplace and the employment relationship, it is this ability to project different personas to different audiences that we seek to protect by insisting on some separation between work and private life. However, due to the permanency of digital records online, and the ease of their dissemination, the separation of our information to support distinct identities becomes much more difficult. It is all the
more so due to the social nature of this particular information — 2015 CanLIIDocs 535 information that is not intended to be secluded or protected, but shared and used to construct an identity. Online social networks, as opposed to real-world social networks, pose an additional challenge since they are often larger and not based exclusively on real-world connections. It is this technological challenge to identity, dignity, reputation and image that network privacy seeks to counter, just as intellectual prop- erty seeks to counter the ease with which technology enables the infringement of copyright and other intellectual property rights. Network privacy is the notion that harm warranting a remedy occurs when information is shared indiscriminately across social net- work boundaries, for example, when so-called friends of an employee transfer compromising information to an employer.19 According to network privacy, information shared with a specific social circle is intended to remain within that social circle. That individual places implicit confidence and trust in other members of the social circle. He or she does not intend the information to be shared outside the boundaries of that social circle without their control and permission. An employee, for example, may wish to complain about her manager, or her customers, to her friends, but will not want the manager or the customers to have access to her posts or tweets.20
19 See Lior Jacob Strahilevitz, “A Social Networks Theory of Privacy” (2005) 72 U Chicago L Rev 919 at 974-975. See generally, Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford, CA: Stanford University Press, 2009). 20 See e.g. Eric Frazier, “Facebook post costs waitress her job,” The Charlotte Observer (17 May 2010), online:
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It is important to note that the employee, and individuals more generally, will not wish information to be shared only because of concerns over real-world negative implications, such as discipline or termination of employment. Individuals want to completely control the context in which their information is presented, so that they can develop their respective identities and personas. An employee may simply wish to present herself as professional, diligent and loyal to her supervisors, and as a result, construct her workplace persona and identity to fit such values. Legal recognition of network privacy would recognize as a basis for legal action the sense of harm experienced by individuals
when their information is shared unwillingly across social boundaries 2015 CanLIIDocs 535 online. This would entitle individuals to a legal remedy. Of course, the law would not want to prohibit every form of information-sharing that could be considered a breach of network privacy. I discuss below the factors that would be required to prohibit such information-shar- ing, or more accurately, to prohibit the use of information obtained through breaches of network privacy. Interestingly, research demonstrates that in the absence of legal and social norms, practices of “netiquette” are created to support network privacy.21 The development of such “netiquette” is also an indication that the privacy policies and tools put in place by the cor- porations that provide social media are inadequate. To the extent that they exist, such tools focus on the handling of personal information by the social media operator and its affiliates, not on the sharing of infor- mation between the individuals that socialize online. This is unfortu- nate, since social media corporations are best positioned to develop effective tools and policies to protect network privacy.22 One example of evolving online social norms involves photo-tagging among teens; the current norm is that identifying photos should be removed at the request of the individuals who appear in them.23 What the protection network privacy provides, if respected, is the protection of the sense of self, identity and of reputation and dignity. It is entwined with the
21 Jacquelyn A Burkell et al, “The View From Here: User-Centered Perspectives on Social Network Privacy” (2013) FIMS Library & Information Science Publications 25, online:
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formation of all of these notions, especially, but not exclusively, in the case of teens and young adults. Unsurprisingly, perhaps, while individuals prefer that their privacy online enjoy some protection, they almost always opt for the ability to create and influence their persona through online activities, over the supposed alternative of withdrawal from participation in social media.24 Focusing on the formation and protection of identity and self, it is clearer why a notion of online privacy that is based on social net- works — network privacy — exists. Importantly, it becomes apparent why it is possible for individuals to have an expectation of privacy online despite the common fallacy of setting expectations of privacy
by the number of individuals who have access to information. Since 2015 CanLIIDocs 535 online privacy focuses on the control of information as it is shared across social networks, it is not concerned with the question “how many people know,” but with “who knows.” Common arguments for dismissing privacy expectations, such as those referencing numbers of “Twitter Followers” or “Facebook Friends” as an indication that no privacy expectation exists, are irrelevant to network privacy. A sense of privacy online can co-exist with access to Facebook information by hundreds of friends, and instantly disappear when just one other individual — the boss — is informed. Individuals attempt to protect themselves from negative con- sequences at work arising from the disclosure of personal informa- tion they post online. Privacy is often the reason provided for why employers should not be given access to information, or prevented from acting upon information that somehow came to their attention. Data demonstrate that while employees are happy to use social media to advance up the corporate ladder, they are quite adamant about maintaining as strong a separation as possible between their personal and work lives.25 Thus, employees generally agree that access to social media should be prohibited during work hours or on work devices. This desire to separate work from private life is of course a manifesta- tion of a desire for network privacy. However, the paucity of clear employer policies regarding online conduct, at work and when not working, does not promote the realization of such a separation.26
24 Levin & Abril, supra note 15 at 1046. 25 Abril, Levin & Del Riego, supra note 13 at 103. 26 Ibid at 105.
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Network privacy is important not only to workers. Applicants, as individuals who wish to present their best professional persona in order to secure employment, have a strong expectation of network privacy.27 Applicants do not wish to forgo participation in social media in order to gain employment. They wish to share informa- tion selectively, but truthfully, on social media to protect their image and identity. However, the online behaviour of individuals is somewhat para- doxical. Individuals desire network privacy, while sharing a fair bit of information online that could quite probably cause them harm. I argue below that the solution to this ostensible paradox can be mod-
elled on other situations in which individuals share information and 2015 CanLIIDocs 535 information is collected about them — not necessarily with their con- sent and approval — and in which harmful action on the basis of this information is nevertheless prohibited by law. Those circumstances exist with respect to information about individuals such as their sex, colour, age and other protected characteristics. Those characteris- tics, by law, cannot form the basis of action against the individuals, and such action would constitute prohibited discrimination. The next section provides a brief review of the prohibited grounds framework in Canada. The paper then turns to the application of this model to online information.
3. THE PROHIBITED GROUNDS FRAMEWORK IN CANADIAN HUMAN RIGHTS LAW
One publicly accepted model of limiting action on the basis of widely available information is the prohibited grounds model. Members of Canadian society are prohibited from acting against individuals in prescribed circumstances on the basis of prohibited grounds, which are listed in our federal and provincial human rights codes.28 These are substantive grounds upon which discrimination is prohibited, such as an individual’s sex, colour or religion. Individuals have a right to expect that decisions will not be made against them
27 Ibid at 108. 28 See e.g. Canadian Human Rights Act, RSC 1985, c H-6, s 3 [CHRA]. The differ- ences across Canada between the legal protection of human rights do not affect the argument of this paper.
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on the basis of a prohibited ground, although the legislation provides for certain exceptions (for historical reasons as well as reasons that reflect contemporary social mores).29 The right to equal treatment is not limited to the workplace. It extends to other social interactions such as contractual transactions, the receipt of goods and services, the use of facilities, housing deci- sions, and membership in associations and unions.30 Thus, the discus- sion in this paper of the potential of the prohibited grounds model to inform the use of online information is not necessarily limited to the employment relationship. Importantly, the prohibited grounds model applies to decisions about employment (i.e. hiring and firing) as well
as to decisions made while the employment relationship subsists (e.g. 2015 CanLIIDocs 535 promotion and discipline).31 Job applicants are particularly vulnerable to discrimination, and so a model that applies to their information and that could be extended to online information (increasingly the basis for hiring decisions) is potentially quite useful.32 There are of course many ways in which discrimination can take place. It can take the form of harassment, systemic discrimination or a poisoned work environment. It can be in response to association with a person, or arise out of a failure to act inclusively.33 Regardless of form, examined from the perspective of personal information pro- tection principles, discrimination is properly understood as use of information for a forbidden purpose. Of course, the act of collecting personal information can be itself discriminatory or lead to a strong
29 For example, religious, educational and several others institutions are allowed to hire individuals on the basis of prohibited grounds — such as religion or physical disability — if the purpose of the institution is to serve the specific group of people that share the same prohibited ground. See Human Rights Code, RSO 1990, H.19, s 24 [HRC]. 30 Ibid at Part I. 31 Ibid at s 23. See also Ontario Human Rights Commission, Human Rights at Work, 3d ed (Toronto: Carswell, 2008) at ch 3, s 1 [OHRC]. 32 Newly proposed amendments to the federal private-sector personal information protection statute recognize the utility of this model by extending whatever pro- tection that statute offers to applicants for employment as well. See Bill S-4, An Act to Amend the Personal Information Protection and Electronic Documents Act and to Make a Consequential Amendment to Another Act, 2d Sess, 41st Parl, 2014, cl 3 (first reading 8 April 2014) [Digital Privacy Act]. 33 OHRC, supra note 31 at ch 3, s 2.
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likelihood that discrimination will occur. That is why human rights codes specify that discrimination occurs when job applicant informa- tion is collected on the basis of one of the prohibited grounds.34 Indeed, Ontario Human Rights Commission guidelines include detailed instructions regarding permissible collection on application forms, as well as permissible collection during interviews.35 By and large, overt information collection is prohibited. But the collection of personal information on many of the prohibited grounds is inadver- tent and unavoidable. Consider the full list of prohibited grounds with respect to employment in the province of Ontario: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sex-
ual orientation, gender identity, gender expression, age, record of 2015 CanLIIDocs 535 offences, marital status, family status or disability.36 Of these, race, colour, sex, age and disability are arguably immediately “collected” at the first instance of human interaction — for example, at the inter- view stage. Others — such as ancestry, place of origin and ethnic ori- gin — are then inferred from the person’s dialect, accent and personal conduct as the interaction continues. Still others are easily assumed, such as creed, sexual orientation, gender identity and gender expres- sion, which can often be gathered from a person’s clothes and external appearance. In short, it is possible to inadvertently “collect” almost all of the personal information which relates to prohibited grounds under human rights legislation. While the collection of personal information relating to pro- hibited grounds is not condoned, the principles at the basis of the prohibited grounds model focus on the prohibition of discriminatory use. These principles recognize, as a practical matter, that personal information may well be “collected” despite the best intentions of employer and applicant. Employers are instructed, therefore, not to act discriminatorily on the basis of the personal information that they hold about applicants. That is the gist of the prohibited grounds approach to human rights (in the context of employment). Every model has its exceptions, and if the model of pro- hibited grounds is to be adapted for the purposes of protecting
34 CHRA, supra note 28 at s 23. 35 OHRC, supra note 31 at ch 4, s 4-5. 36 CHRA, supra note 28 at s 5.
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online informational privacy, it is worthwhile to inquire into those exceptions, and in particular into the basis for permitting the use of prohibited information. The principles that guide these exceptions may serve as building-blocks to guide situations in which the use of information collected online would be permissible as well. One well-known exception, operating by way of a defence to claims of discrimination, is that employment requirements may adversely impact individuals on the basis of protected personal characteristics if they are “bona fide,” i.e. rationally connected to the job, adopted in good faith, and reasonably necessary.37 I discuss below how the same essential principles can be applied to the use of online personal infor-
mation. There should be a rational connection between information 2015 CanLIIDocs 535 and proposed use, good-faith conduct by the employer, and reason- able necessity. A balancing of interests plays a role in formulating the rules for use of personal information that originated online. The Oxford principles, which I discuss in the next section, are in a similar vein. They propose that the protection of personal information should focus on the use of such information, not on its collection. I will consider why those principles, along with other proposals such as the formalization of the collection and use of online information, are not adequate to ensure that such a balancing of interests takes place.
4. THE OXFORD PRINCIPLES
The Oxford principles are an attempt to formulate “Data Protection Principles for the 21st Century.”38 The proposal for revised OECD guidelines was meant to address the changes that have occurred in data processing from the late 1970s and early 1980s to the present day, with particular focus on the challenges of “big data” analytics.39 The proposal points out many of the commonly accepted flaws in the way that current data protection regimes work, such as privacy policies that individuals do not bother to read, or terms of use to which individuals “agree” with the click of a mouse.40 These
37 This is a summary of the well-known Meiorin test. British Columbia (Public Service Employee Relations Commission) v BCGEU, [1999] 3 SCR 3 at para 54, [1999] 10 WWR 1. 38 Cate, Cullen & Mayer-Schönberger, supra note 5. 39 Ibid at 5-6. 40 Ibid at 6-7.
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were meant originally to provide individuals with notice about the ways in which their personal information will be collected and used, and in certain jurisdictions, to obtain the consent of individuals for such information practices. The original purpose of principles such as notice and consent was to provide individuals with control over their personal information. The reality in the last decade has been an erosion of control, with privacy policies and “click-wrap” agreements serving to whitewash questionable information practices.41 The proposal, mindful of the many positive implications of big data analytics, attempts to restore the balance between individual data subject and organizational data processor.42 The proposal is the
culmination of several workshops in 2012 and 2013. Released late 2015 CanLIIDocs 535 in 2013, it represents the joint work of academics, and former data protection regulators and industry professionals. The stated goal of the group, as mentioned above, was to shift responsibility for the protection of personal information from the shoulders of individuals to the organizations that process the infor- mation.43 The proposal attempts to achieve that goal by moving away from the discredited notice- and consent-based model to a model focussed on permissible use. At the heart of the proposal stand a revised set of data principles and accompanying revised definitions of concepts related to personal information.44 The proposal refers to all data-related activity as information processing.45 Within processing, four categories are proposed — information collection, use, storage and destruction.46 Significantly, the proposal suggests that the existing category of disclosure (of information to third parties) be eliminated in order to facilitate both the movement of data and the accountability of organizations.47 Accordingly, the use of information is defined in the proposal to cover the following activities: the reliance on personal information for deci- sions about, or assessments of, individuals; the creation or inference
41 Ibid. 42 Ibid at 8. 43 Ibid at 11. 44 Ibid at 14-21. 45 Ibid at 15. 46 Ibid. 47 Ibid.
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of more personal information; and the disclosure or dissemination of personal information to others.48 Of the eight principles suggested in the proposal, one addresses information collection, three address information use (as newly-de- fined), and four address information processing in general. The infor- mation collection principle dispenses with the existing requirements of notice or consent for collection. Instead, it allows for information collection as long as the information is not collected in violation of the law, through deception or in hidden ways.49 It is this revision, the elimination of the requirement of consent to collection, which has drawn the most attention from critics.50 The revision reflects the sense
that the battle over the collection of personal information has been 2015 CanLIIDocs 535 lost, and that undue focus on notice and consent requirements has resulted in technical but not meaningful privacy protection regimes.51 In light of Edward Snowden’s revelations on the NSA, it is worth not- ing that the collection principle does address government collection, which is prohibited unless the collection is based on legal authority or has a legitimate purpose.52 The manner in which the war over privacy could yet be won is described by the proposal’s use principle. Rather than list permissible uses (and acknowledging that such listing would be a futile exer- cise), the proposal suggests that use of personal information should be allowed if the benefits of use outweigh the harm of use.53 The proposal defines harm as encompassing both tangible and intangible harm (e.g. the feeling of an invasion of privacy). However, it excludes from the definition of harm any negative results of the “appropriate” application of personal information to an individual, an important matter to which I will return.54
48 Ibid. 49 Ibid at 15-16. 50 Cavoukian, supra note 9. 51 Cate, Cullen & Mayer-Schönberger, supra note 5 at 16. 52 Ibid at 15. Of course, proponents of the NSA programs have argued for their legitimacy. 53 Ibid at 17-18. Benefits could be to the individual, to others or to society at large. 54 Ibid at 14. The proposal does not elaborate on the meaning of “appropriate” application. Presumably the definition is intended to curtail claims of harm aris- ing out of routine commercial transactions. If that is the case, it is an unfortunate concession to commercial interests.
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Once the balancing of benefits and harms has commenced, the proposal suggests that use involving no harm, or minimal harm, should be allowed and that use resulting in significant harm (e.g. personal injury) should be prohibited. Use that falls in the middle ground should be allowed, as long as appropriate protection is in place.55 One of the ways in which appropriate protection could be secured is through the provision, at this stage, of individual consent. However, the proposal states that such consent, or individual choice, must be meaningful, real and informed.56 It is questionable whether such consent can exist in the context of an employment relationship or of an application for employment.57 The proposal includes two other use-related principles, one to 2015 CanLIIDocs 535 ensure the quality of personal information (the quality principle) and the other to allow for individual access to his or her personal informa- tion, titled the individual participation principle. This second princi- ple provides individuals with the opportunity to access their personal information and to challenge its accuracy and the ways in which it is processed.58 However, this right of access is provided only when the use of personal information has an impact on the individual’s education, employment, health or finances, or other legal right of the individual.59 Of the four principles that address information processing in general, two that are largely unchanged (the openness principle and
55 Ibid at 17. 56 Ibid. 57 Telus sought employee consent for voice recognition identification. Employees were informed that refusal to consent may result in progressive discipline. The Court ruled that, while threats of disciplinary measures normally vitiate consent, informing employees of potential consequences does not amount to such a threat. Furthermore, disciplining employees for refusing to provide consent would not be a breach of PIPEDA. The Court’s decision illustrates the inherent difficulty of the application of the consent principle to the workplace. See Turner v TELUS Communications Inc, 2007 FCA 21 at paras 29-31, [2007] 4 FCR 368. 58 Cate, Cullen & Mayer-Schönberger supra note 5 at 18-19. Note that the principle does not guarantee that such challenges will be successful. 59 Ibid at 19. While the inclusion of the employment relationship (including pot- entially, an application for employment) is significant for the purposes of this paper, generally this principle prevents individuals from challenging and access- ing their personal information if it is used for commercial purposes (such as the delivery of targeted ads).
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the security principle) require organizations to be open about their information practices, and to secure personal information under their control.60 The third, the accountability principle, essentially requires organizational compliance. It has been revised to include the conse- quences of non-compliance for organizations, in the form of liability for reasonably foreseeable harm.61 The inclusion of legal liability within the principle is another tool that the proposal uses, in conjunc- tion with the modified use and collection principles, to shift respons- ibility for data protection from individuals to organizations.62 That is the tack taken in the eighth and final principle of the proposal, the enforcement principle. It is a new principle and requires the mem-
ber states of the OECD to enforce these principles through national 2015 CanLIIDocs 535 legislation, thus ensuring they will be taken into consideration by organizations that collect personal information.63 Taken in its entirety, the Oxford proposal suggests a new model for regulating the processing of information. This new model clearly distinguishes between information that can identify — and have a negative impact on — an individual, and information that cannot. It focuses on the former, and excludes the latter from its scope. Furthermore, the proposal suggests that information can be collected without notifying individuals or requiring their consent, and that meaningful restrictions on the processing of information should only be placed on the ways in which information is used. The elimination of the notice/consent requirement emanates not from a principled objection to these means of control, but rather from a concern that they have evolved over the years into a fig leaf that allows organiz- ations to carry out unfettered processing on the pretext of individual agreement.64 Instead of the requirements of notice and consent, the proposal suggests that organizations engage in harm/benefit analyses to determine whether specific uses of information should be allowed. Only uses that result in significant harm should be prohibited outright. However, the proposal suggests that most uses will result in little harm, or in harm that could be mitigated by other means, and therefore
60 Ibid at 20. 61 Ibid. 62 Ibid at 21. 63 Ibid. 64 Ibid at 16.
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that most uses would be allowed.65 Importantly, it does not appear that decisions about employment — even termination — would be considered by the proposal’s standards to cause significant harm to an individual, though the proposal acknowledges that such uses of information have a negative impact on individuals. There is a subtle distinction here between harm and impact. The proposal states that “harm does not include the rational and reasonable impact of accur- ate, relevant data appropriately applied to an individual.”66 Applying this definition to the workplace, it appears that should the use of per- sonal data reveal employee conduct warranting dismissal for “just cause,” such use by the employer would be considered, according to
the proposal, “accurate” and “relevant,” and its impact “rational.” 2015 CanLIIDocs 535 How, then, would the principles of the proposal apply to work- place privacy issues? First, employers would be free to collect per- sonal information about their employees. Notice to employees, or employee consent, would not be required.67 In order to use the per- sonal information that they have collected, employers would have to conduct a harm/benefit analysis.68 If the outcome is little or no harm, the employer would be free to use that information. If the outcome is significant harm, the employer would be prohibited from using the information. Most analyses would result in an outcome that is in between these two extremes, and would require some form of protec- tion. The use of personal information by employers could therefore depend on a privacy impact assessment (a tool familiar to privacy practitioners)69 or perhaps on the agreement of employees. However, it is also possible that employers will argue that the use of personal information against employees, e.g. for disciplinary purposes, is
65 Ibid at 18. 66 Ibid at 14 [emphasis added]. 67 Personal Information Protection Act, SA 2003, c P-6.5, s 15; Personal Information Protection Act, SBC 2003, c 63, s 13. In Canada, interestingly, the two provincial private-sector personal information statutes that govern work- place privacy (Alberta and British Columbia) do not require employee consent. 68 At the federal level, the private-sector data protection statute (PIPEDA) requires employee consent, but recent amendments proposed by the government dispense with that requirement. See PIPEDA, supra note 10 at Schedule 1, s 4.5; Digital Privacy Act, supra note 32 at cl 7.4. 69 See generally Office of the Privacy Commissioner of Canada, “Privacy Impact Assessments,” online:
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“appropriate” and therefore, according to the definitions in the pro- posal, not harmful at all and not requiring a harm/benefit analysis. In workplaces where employees are unionized, such ambiguities would doubtless become the subject of collective bargaining and/or to arbitral decisions. The determination of whether use is “appropriate” might end up resembling current discussions as to whether use is “rea- sonable.”70 Even if arbitrators found that workplace-related use is not “appropriate,” employers would still be able to engage in the ensuing harm/benefit analysis and argue that the use should be permitted. Of course, the majority of private-sector employees are not cov- ered by a collective agreement and therefore do not have access to
arbitration. In their situation, this preliminary and general analysis 2015 CanLIIDocs 535 suggests that the Oxford proposal allows for the widespread process- ing of personal information with few restrictions. It is understandable why the cumulative effect of these increasingly narrow limitations has led some critics to question the efficacy of the proposal overall in achieving its stated purpose of better organizational protection of personal information.71
5. PROTECTING NETWORK PRIVACY
In Canada there is currently no legal protection against the inva- sion of network privacy.72 With the promising exception of some recent procedural decisions that I discuss immediately below, courts have rejected arguments that information located on social networks is private and should not be disclosed. Information shared with a group of online friends has been treated by courts as public, the number of online friends often being cited in support for doing so.
70 See PIPEDA, supra note 10 at Schedule 1, s 5.3. 71 See e.g., Ann Cavoukian, Alexander Dix & Khaled El Emam, “The Unintended Consequences of Privacy Paternalism,” IPC Discussion Papers (2014) [last accessed August 27 2014]. 72 Canada, Office of the Privacy Commissioner of Canada, PIPEDA Case Summary on the Report of Findings into the Complaint Filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) Against Facebook Inc. under the Personal Information Protection and Electronic Documents Act, by Elizabeth Denham (Ottawa: Office of the Privacy Commissioner of Canada, 16 July 2009), online:
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Courts have failed to consider that privacy online is contextual and network-specific.73 In workplace disciplinary proceedings, arbitrators have applied the same approach as the courts, ruling that Facebook posts are public and can be used by employers, since they were available to a number of people.74 Such decisions fail to recognize the notion of network privacy, in either an empirical or a normative sense. Collection is indeed increasingly unfettered. Employers are looking up information on applicants with the aid of search engines, data brokers, friends of friends, and requirements that applicants hand over passwords and access to their social networking profiles.75 On the other hand, it may be that courts are beginning to develop 2015 CanLIIDocs 535 a more nuanced understanding of privacy and information online. Two recent Ontario production decisions are worth discussing in some detail. They are procedural decisions on whether, in civil litigation, one party must produce the information demanded by the other party as part of the discovery process. In the first, the defendant in a civil lawsuit over a traffic accident requested that the plaintiff produce all of the vacation photographs she took after the accident, as well as all of her “private” Facebook account content.76 The plaintiff argued that her Facebook account served as her digital photo album.77 One hun- dred and thirty-nine Facebook friends had access to these photos and other content, which she considered private.78 Based on the number of friends and earlier decisions, the Court could have easily ruled that
73 See Murphy, supra note 14. But see the recent decisions in Stewart v Kempster, 2012 ONSC 7236, 114 OR (3d) 151 [Stewart]; Garacci v Ross, 2013 ONSC 5627, 232 ACWS (3d) 341 [Garacci]. 74 See Lougheed Imports Ltd v UFCW, Local 1518 (2010), 186 CLRBR (2d) 82 (BCLRB) [Lougheed]. 75 Pietrylo v Hillstone, 2008 WL 6085437 (DNJ 2008) [Pietrylo]; Neal Augenstein, “Maryland AG: Requiring Employees’ Personal Passwords is Legal,” WTOP (23 February 2011), online:
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the plaintiff had no reasonable expectation of privacy in the photos.79 Significantly, however, the Court rejected that argument: To return to Murphy, Rady J. noted that the plaintiff in her case had 366 “friends” . . . and concluded that the plaintiff did not have a serious expecta- tion of privacy . . . . The matter can, however, be viewed from the opposite direction. At present, Facebook has about one billion users. Out of those, the plaintiff in the present case has permitted only 139 people to view her private content. That means that she has excluded roughly one billion people from doing so, including the defendants. That supports, in my view, the conclusion that she has a real privacy interest in the content of her Facebook account.80
This articulation by the court of the plaintiff’s privacy interest is the 2015 CanLIIDocs 535 closest a court has come to-date to the recognition of network privacy as a legitimate interest that should be balanced against other inter- ests in the judicial process. The Court recognized that the number of people who have access to information may not be as important as the attempt by an individual to determine who will have access to that information.81 The Court then considered the defendant’s request to produce all of the other private Facebook account content. The Court had the following to say about this request: Before the dawn of the Internet age, people often communicated by writing personal letters to each other . . . . However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some infor- mation contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defend- ants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so. . . .
79 That was the analysis in cases such as Murphy, supra note 14. 80 Stewart, supra note 73 at paras 23-24 [emphasis added]. 81 Admittedly, the courts still have some distance to go. A more critical reading of these paragraphs could conclude that just as the Court in Murphy found reason to argue that 366 was a high number, by comparing it to zero, so the Court in Stewart found reason to argue that 139 was a low number, by comparing it to one billion. Still, the contemplation that a person may have a privacy interest in information that is available to over one hundred people is noteworthy.
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The defendants’ request to search the plaintiff’s private correspondence and other data in her Facebook account in the hope that they might find some- thing useful is akin to searching the plaintiff’s filing cabinet. It is a fishing expedition and nothing more.82 The Court’s recognition of a privacy interest in online information, and the analogy drawn by the Court between such information and written correspondence, are notable, given that privacy interests in real-world items, such as filing cabinets and garbage cans, have argu- ably been eroded.83 In all events, this decision may represent a grow- ing acceptance of the idea that there is privacy in online information, and that it deserves legal protection. Indeed, a second recent decision appears to understand online 2015 CanLIIDocs 535 privacy in this manner.84 While the Court did not engage in an explicit privacy analysis, it endorsed the understanding of a Facebook account as a personal space, where individuals store personal information, such as photos, which they share with their friends (but not necessar- ily the public).85 The litigation in that case concerned a traffic acci- dent. The defendant again requested access to all of the photographs on the private section of the plaintiff’s Facebook account — a request which the Court denied on the basis that it was nothing more than a “high-tech fishing expedition.”86 It is hoped that such decisions will lead to greater recognition and acceptance of the notion of privacy online, in the courts and at arbitration. I discuss some American decisions related to network privacy below. However, the discussion in those decisions centers on per- sonal health information and its attempted use by employers. Some of this information, such as employee medical and genetic information, is available online.87 European-based attempts to mitigate the impact
82 Stewart, supra note 73 at paras 29, 31. 83 See also infra note 102. 84 Garacci, supra note 73. 85 Ibid at para 9. 86 Ibid. 87 See e.g. Heather Patterson, “Contextual Expectations of Privacy in Self- Generated Health Information Flows” (Paper delivered at the TPRC 41: The 41st Research Conference on Communication, Information and Internet Policy, 30 March 2013), online:
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of use of personal information derived from online sources have focused on the notion of control over that information, and include such suggestions as the right to delete and the right to be forgotten.88 A recent European Court of Justice decision, holding that the right to be forgotten already exists in European law, has led to numerous requests by residents of the EU to have search engines remove per- sonal information about them from search results.89 This enthusiastic endorsement by the European public reinforces the acute need for legal and technological mitigation tools to address the proliferation of online information. It may well be that such tools evolve into more robust instruments that will eliminate information online completely
upon request. On the other hand, strong opposing societal interests 2015 CanLIIDocs 535 have led to calls to increase retention periods for data,90 and of course, the recent revelations of government practices put the realization of such proposals into serious question.
6. FORMALIZING THE COLLECTION AND USE OF ONLINE INFORMATION
The formalization of the use of online information is yet another option, one which may be said to lie on the same path as that which
88 The proposed right to delete would enable individuals to request that information about them, harmful to their privacy (i.e. in the EU context, private life) be deleted from the database in which it exists. The proposed right to be forgotten would revive the longstanding principle of data minimization, as it applies to information retention. See Franz Werro, “The Right to Inform v. the Right To be Forgotten: A Transatlantic Clash” in Aurelia Colombi Ciacchi et al, eds, Liability in the Third Millennium (Berlin, Germany: Nomos Publishers, 2009) 285, online:
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leads to the prohibited grounds approach. The processing of online information by employers when filling a job vacancy is often done informally, outside of the formal applicant evaluation process. Such an informal practice disadvantages not only younger applicants, on whom a more substantive digital dossier may exist, but also appli- cants who would otherwise be protected from discrimination under human rights legislation. The collection and use of such informa- tion in university and private school application decisions is another informal practice that may increase the risk of harm to members of groups that we wish as a society to protect. Formalizing such processes may eliminate the risk of deci-
sion-making that would be in violation of human rights legislation. 2015 CanLIIDocs 535 It may also offer some protection against harm to other privacy inter- ests in online information. There have been calls for the application of statutory standards of fairness and transparency in the conduct of social media background checks and the evaluation of off-duty conduct.91 In addition, non-binding guidelines have been put for- ward by privacy commissioners.92 For example, employer requests for access to password-protected sites can be considered coercive in certain circumstances.93 Formalization is in my opinion insuffi- cient, since it is focused on the process of information collection (and use). In one sense, it stands in opposition to the proposed Oxford principles, since, rather than concede that the battle over collection has been lost, it imposes additional constraints on the collection of information. This stance may earn praise from privacy advocates, but in light of the enormous scale of collection by both government and the private sector, I question whether formalizing data collection is a viable approach. If formalization of information collection is a lost cause, would formalizing the manner in which information is used offer applicants
91 See Carly Brandenburg, “The Newest Way to Screen Job Applicants: A Social Networker’s Nightmare” (2008) 60:3 Federal Communications LJ 597; Ian Byrnside, “Six Clicks of Separation: The Legal Ramifications of Employers Using Social Networking Sites to Research Applicants” (2008) 10:2 Vand J Ent & Tech L 445. 92 See e.g. Office of the Information and Privacy Commissioner for British Columbia, “Guidelines for Social Media Background Checks” (Victoria: OIPC, 1 October 2011). 93 See Pietrylo, supra note 75.
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greater privacy protection? In this sense, formalization is aligned with the Oxford principles, since both seek to control and constrain the use of personal information. However, where the Oxford principles offer a substantive harm/benefit evaluation as a form of (perhaps imperfect) constraint, the option of formalization focuses on internal organiza- tional procedures. Formalization is a form of procedural constraint, and it may lead to more rigorous, transparent and accountable use — all very important and laudable goals. What formalization does not offer, though, is a substantive measure for the use of personal infor- mation. In the context of workplace privacy, it will not lead to the restriction of substantive action on the basis of personal information,
if that information is not obviously (and perhaps clearly legally) part 2015 CanLIIDocs 535 of a prohibited category. Formalization does little, in other words, to minimize the broader harm caused by decisions based on non-discriminatory per- sonal information that was obtained through breach of network pri- vacy. To minimize the harm caused by breaches of network privacy, and to determine the proper measure in which online information should be used, it is necessary to focus on measures that restrict actions on the basis of online information and not only on rules that govern its processing. Substantive protection requires that constraints be set on the purposes for which such information can be processed. This is the goal which the Oxford principles aim to achieve through their suggestion of a harm/benefit analysis for personal information use. As noted above, it is far from clear whether the Oxford approach advances the privacy of employees and applicants, as a few concrete examples will illustrate.
7. THE PROHIBITED GROUNDS APPROACH
It is in the offer of a mixture of substantive and procedural measures that the significance of the prohibited ground model lies. Prohibited grounds information is information that is known (i.e., collected, whether deliberately or inadvertently) and available to act upon — but it is the action upon it which is forbidden. If we accept the proposition that information online will be available to employers, educational institutions and other members of society, and that organizations will only increase their collection of such information, we must look for a proposal that will limit the
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actions of those organizations on the basis of online information. Such a proposal should be aimed at limiting harm to the network privacy of individuals. What individuals find most troubling about the use of online information is the loss of real-world control, and the resulting blurring of boundaries between work and personal life. As a result, contexts disappear, and information that we carefully aim to keep separate for respective social circles (such as our employer, our family, our high-school friends) leaks across boundaries in a perma- nent, accessible and widely-spread fashion. I propose therefore to limit action that can be taken against indi- viduals on the basis of online information. Individuals would be pro-
tected from such action where the information obtained online does 2015 CanLIIDocs 535 not harm other members of society. On the other hand, my proposal contemplates that criminal, unethical or truly harmful activities will not be protected, even in situations where these are evidenced exclu- sively online. I suggest that these limits take the form of the prohibited grounds framework. The rules of the prohibited grounds framework are simple. If a piece of information falls within one of the categories that are prohibited, then no action can be taken on the basis of that information. Obviously, such rules cannot be directly applied to all online informa- tion. Put differently, the mere fact that information is online does not render it prohibited. We can imagine many cases in which we will want to allow, perhaps even require, employers to take action against current or prospective employees on the basis of online information. However, in order to protect network privacy, we should seek to restrict as much as possible action taken exclusively on the basis of information online, and to require supportive information from other, real-world, sources. In this way, we would endeavour to prohibit action based on online information when that information reveals aspects of an individual’s private life but does not harm other members of society or violate criminal law or legally required ethical norms. The proposal can be summed up in three substantive and pro- cedural principles:
(1) Individuals are protected from action against them on the basis of their online information, unless the information reveals criminal or illegal or unethical conduct or has caused significant harm.
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and,
(2) Individuals have a right to rebut online information if it is to be used against them.94
and, in all other cases (i.e., when the concern is not about potentially criminal, illegal, unethical or significantly harmful behaviour),
(3) Online information must be supported by offline informa- tion if it is to be used against individuals.95 Online information would thus be akin to a prohibited ground. 2015 CanLIIDocs 535 Action on its basis, by and large, would be prohibited, or would require additional, supportive information from other sources which demonstrate that the action is based on other substantive grounds. To illustrate how such a limitation would work in practice, let us consider several workplace examples. In cases that made headlines, employers have disciplined employees on the basis of online information from sources such as blogs, video clips and social network posts. For instance, a waitress lost her job after calling a customer “cheap” in an online Facebook rant.96 A banking intern lost his job after being caught in a lie. Having told his managers that “something had come up at home,” he showed up on Facebook in a fairy outfit at a costume party.97 Two Domino’s Pizza employees were fired after posting a video clip on YouTube that showed them preparing sandwiches at work while one put cheese
94 Even if the allegation is that they engaged in criminal, unethical or very harmful conduct. 95 These distil the discussion in Abril, Levin & Del Riego, supra note 13 at 121-123. 96 Frazier, supra note 20. 97 Helen A S Popkin, “Evolution Demands More Facebook Drunkfail,” MSNBC (30 December 2008), online:
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up his nose.98 The employees who were disciplined or dismissed in these examples indicated that they felt their privacy had been invaded. First, let us take a look at the pizza waitress who was dismissed exclusively on the basis of her Facebook rant.99 Under the rules of the proposal above, her employer would first have to demonstrate that this rant amounts to criminal or unethical behaviour or that it caused significant harm. While the rant is certainly not criminal, it may be unethical, and it may, depending on how widely it circulated and whether it identified the customer, cause significant harm. These are both questions of substance. Even if we assume that the employer can succeed in demonstrating one or the other, the employee would
have the right to rebut the information. Apart from demonstrating that 2015 CanLIIDocs 535 significant harm occurred, or a breach of an ethical obligation, the employer would have to adduce other, real-world evidence about the employee’s poor performance in support of her dismissal. Again, even if we assume that the rant is a clear-cut example of an ethical breach or cause of harm, several factors would work against the employer in this scenario: the waitress had a strong expectation of network pri- vacy, as her post was available only to her Facebook friends (one of whom apparently forwarded it to her employer); her at-work perform- ance was not otherwise at issue; and her employer was not financially harmed. I would conclude that under the prohibited grounds model, the waitress’s dismissal would not have been upheld, and her right to a private life online would have been protected. How does the waitress fare under the Oxford proposal? Under the Oxford principles, there would have to be a determination of whether the employee was harmed (as defined by the principles) or whether the use of the online rant to dismiss her was simply an appro- priate use and therefore permissible, regardless of its negative impact. If we assume that the use of online information is not always permis- sible, and was indeed harmful in this case, the employer would have to demonstrate that the benefit of dismissing the waitress outweighed the harm caused by her dismissal. Since this analysis can include the benefit to the employer and to society, it is not at all clear that it would
98 Stephanie Clifford, “Video Prank at Domino’s Taints Brand,” The New York Times (16 April 2009) B1, online:
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result in the dismissal being set aside, especially if the employer could demonstrate the existence of some policy or code of conduct covering off-duty behaviour. In contrast to the prohibited grounds framework, there is no default prohibition on the use of personal information, and the waitress in this case faces a greater procedural burden. Now let us look at the partying intern.100 Under the prohibited grounds framework, the employer would have to demonstrate that the intern committed a crime, behaved unethically, or caused significant harm, before it could use the online information. It seems reasonable to assume that the act of lying to his managers about his health would constitute unethical behaviour, and therefore meet this criterion. The
employee would be permitted to rebut the presumed conclusion that 2015 CanLIIDocs 535 he lied about his health, which would appear difficult given the large numbers of party-goers who had observed him. Finally, even if we deny that the conduct in question is unethical, the employer would be able to support action against the intern by providing real-world evi- dence about the true state of his health, which could be done by ques- tioning his friends and fellow revellers. Although procedurally more cumbersome, the employer would still be able to achieve its desired disciplinary goal. It is important to note in this example that although the banker-to-be may have had strong expectations of network-pri- vacy, since his photo was posted on Facebook exclusively for his friends (one of whom then kindly forwarded it to management), this expectation did not trump the legitimate employer interests. Network privacy is not an absolute right, and it can be defeated by other rights and interests, depending on the circumstances, as it would be here, once the intern presumably failed in his rebuttal. Unsurprisingly, the banker does not fare well under the Oxford proposal. The employer here can make a stronger case that the use of the Facebook post is “appropriate” and does not meet the definition of harm. In this example as well, if we were to proceed to a harm/benefit analysis, it would be easier for the employer to argue that the benefits to society and to it outweigh the harm caused by the dismissal of a dishonest banking intern. The Oxford framework does not provide the intern with any greater procedural or substantive protection of his online privacy than the prohibited grounds framework.
100 Popkin, supra note 97.
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Finally, let us look at the Domino’s Pizza employees who com- promised the health of their customers and immortalized their actions on YouTube.101 In this example, too, the employees would not enjoy privacy protection by default with respect to their online informa- tion. Most observers would reasonably conclude that such conduct is unethical and in violation of the applicable health and safety legis- lation and regulations. Under the prohibited grounds framework, the employees would still be given an opportunity to rebut the evidence presented in the YouTube video. However, they would then most likely be disciplined. Under the Oxford framework, there would be yet a stronger argument that use of the online video against the
employees is appropriate, and a yet stronger case that the benefits 2015 CanLIIDocs 535 of discipline outweigh the harm suffered by the employees (if it is concluded that this use does meet the Oxford definition of harm). Several points are illustrated by these examples. First, the Oxford principles do not offer, when applied to online information, any great substantive, or for that matter procedural, protection of employee privacy. Second, the Oxford principles are intended to guide a data protection regime, and do not capture the nuances of net- work privacy and its distinct meaning of harm. Third, the prohibited grounds framework does not radically transform or undermine the common law rules of evidence and its admissibility, thanks to the exceptions it makes for criminal, illegal and unethical conduct, and actions that cause significant harm.102 Finally, the outcomes reached by the application of the prohibited grounds model to the examples will hopefully seem intuitively right to the reader. The model strikes an appropriate balance between not protecting individuals who have been involved in nefarious affairs, and preventing harm to individ- uals exclusively because online media have made their information accessible across contexts and boundaries. It maintains a clear-headed
101 Clifford, supra note 98 at B1. 102 That is not to agree that expectations of privacy in potential evidence, as gov- erned by section 8 of the Charter (or by the Fourth Amendment to the United States Constitution) are correct. Indeed, it could be argued, and it has been argued, albeit unsuccessfully, that the law should recognize privacy expecta- tions in real-world evidence such as sealed envelopes and garbage put to the curb. See e.g. R v Patrick, 2009 SCC 17, [2009] 1 SCR 579. I am grateful to Professor Adell for this point.
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recognition that sometimes online information is indeed the tip of an offline “iceberg.”
8. CONCLUSION
A decreasing number of employees in Canada and other coun- tries enjoy the protection that a union and arbitral jurisprudence can afford to their privacy interests in online personal information. Even this minority among employees continues to be governed by princi- ples established decades ago.103 The large majority of non-unionized employees in Canada and other jurisdictions enjoy little or no proced-
ural or substantive protection in their personal information online. 2015 CanLIIDocs 535 At the same time, the increasing permanency and availability of personal information that modern technology facilitates, and that pri- vate-sector and government activities exploit, is changing our social norms about information. Personal information protection legislation, in Canada and elsewhere, was designed for an era of relatively small databases, computer mainframes, and information that had a life- cycle with clearly defined stages of collection, use and disclosure. We are losing the battle against unfettered information collection, and the fear is that ultimately we will lose whatever legal protection that personal information currently enjoys. Personal information is increasingly used and disclosed for purposes for which it was not collected or contributed. Those pur- poses include serving as evidence in litigation, as a basis for hiring decisions, and as justification for workplace disciplinary proceed- ings, educational application decisions, and generally at the critical junctures of modern-day life. Ironically, the wholesale collection and analysis of personal information may very well culminate in the cir- cumvention of human rights and the prohibited grounds model.104 For the generations of children and young adults growing up with a
103 The Millhaven decision regarding off-duty conduct dates from 1967. See Millhaven Fibres Ltd v Oil, Chemical & Atomic, Workers Int’l Union, Local 9-670 (1967), 1A UMAC 328 (Anderson). But see the more recent decisions discussed above, which attempt to apply the Millhaven approach to the online world. 104 Solon Barocas & Andrew D Selbst, “Big Data’s Disparate Impact” (2014) [unpub- lished, archived at SSRN], online:
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digital dossier that will accompany them throughout their lives, this is a matter of great importance, and yet a subject of little awareness. This paper’s proposal, to frame online information as if it were a prohibited ground of action, may seem far-reaching to some and its details require further refinement. If endorsed and adopted, it would ultimately lead to a substantive change of the regulatory framework protecting personal information in Canada within the employment relationship and throughout society more generally. Online informa- tion would be protected even if it does not fit the traditional definition of “personal information” that deserves privacy, and actions on the basis of online information would not be allowed unless additional
criteria were met. Our privacy has been suffering defeat at the hands 2015 CanLIIDocs 535 of government and corporations in an increasingly digitized, con- nected and surveilled world. We are in dire need of new defences, so that we can ultimately win this war in favour of our privacy, liberty and human rights.
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02_Levin.indd 410 15-03-24 10:55 AM Employer Monitoring of Employee Online Activities outside the Workplace: Not Taking Privacy Seriously?
Chris Hunt & Corinn Bell*
This paper provides a comprehensive overview and analysis of the Canadian law governing employer surveillance of employees. Reviewing the arbitral jurisprudence as well as the jurisprudence under federal and provincial privacy legislation, the authors trace the development of a broad convergence
in the principles that courts and adjudicators will apply in surveillance cases. 2015 CanLIIDocs 535 That convergence reflects a wide acceptance of what the authors refer to as the reasonableness paradigm — an approach which recognizes that the employ- er’s interest in managing the workplace must be balanced, in a proportionate way, against the employees’ interest in privacy. The authors point out that the reasonableness paradigm is generally being followed in cases involving video surveillance of employees, both on-site and off-site, and monitoring of employ- ees’ computer use at work. However, they emphasize, it is not being followed in the context of employees’ off-duty, off-site activities online, such as Facebook postings and blogs. The authors challenge the suggestion that those activities are intrinsically “public” rather than private, and that employees who engage in them should essentially be considered to have forfeited any privacy protection. In their view, the values which underpin privacy rights may well be implicated by employees’ online activities outside the workplace. Accordingly, they argue, the approach taken in such cases should be brought into line with the principles of reasonableness and balancing usually applied to other types of work-related electronic surveillance.
1. INTRODUCTION
Workplace monitoring has been described as one of the “thorn- iest legal issues” in Canadian labour law.1 The cases concerning both on-site and off-site video surveillance are legion. Far fewer author- ities exist on employer monitoring of an employee’s on-site internet
* Chris Hunt is Assistant Professor, Faculty of Law, Thompson Rivers University. Corinn Bell is an arbitrator and mediator, and Sessional Instructor, Faculty of Law, Thompson Rivers University. 1 Michael Geist, Book Review of The Law of Employee Monitoring in Canada by Melanie R Bueckert (Markham: LexisNexis Canada, 2009).
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use (that is, internet use in the workplace). There are fewer still on the subject-matter of this paper: employer monitoring of an employee’s off-site online activities, such as Facebook posts. The last decade has seen the steady emergence of a broad con- sensus in the arbitral and data protection jurisprudence to the effect that video surveillance is inherently offensive and so must be justi- fied, and that this justification is best approached through a multi- factorial analysis that seeks to balance employer management rights with employee privacy interests. These same principles are also applied to cases of monitoring of internet usage at work. However, where off-site online activities are concerned, these principles are
simply not being applied — with the result that such surveillance is 2015 CanLIIDocs 535 de facto legitimate and needs no independent justification. In this paper, we challenge that de facto position. In section 2, we sketch the various sources of law applicable to employee mon- itoring — labour law sources and privacy law sources. In section 3, we elucidate the emerging consensus identified above, in the form of the “reasonableness” paradigm, and we identify the basic principles underlying that consensus. Section 4 discusses how this consensus is not being applied to off-site online activities. Finally, in section 5, we argue that online activities can and should attract a privacy interest, and thus surveillance of those activities should be treated as inherently offensive and should have to be justified. We conclude by recommending that decision-makers approach the legitimacy of such monitoring in the same way they approach other types of elec- tronic surveillance — by applying the basic principles discussed in section 3.
2. SOURCES AND BASIC PRINCIPLES OF LAW
We begin with an overview of the various sources of law that apply to the electronic monitoring of employees.
(a) Labour Law
There is a large body of arbitral jurisprudence on the employer use of video cameras to monitor employees, both at work and off-site. Given the lack of cases on internet and e-mail monitoring, it makes
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sense to draw on this jurisprudence for guidance.2 Melanie Bueckert, in her recent comprehensive study of workplace monitoring,3 has grouped that jurisprudence into three broad categories, reflecting dif- ferent arbitral approaches:
• reasonableness • reasonable expectation of privacy (REP) • relevance4
These approaches are not tied to particular jurisdictions; rather, they reflect a more fundamental philosophical division among arbitrators 5
as to the nature and legitimacy of workplace privacy itself. Nor are 2015 CanLIIDocs 535 the three approaches equally protective of privacy. Bueckert places them on a spectrum: reasonableness is the most privacy-protective and hence the most employee-friendly; relevance is the least pri- vacy-protective and hence the most employer-friendly; and the rea- sonable expectations approach lies somewhere in-between.6 We will briefly sketch out these three approaches. The first approach — reasonableness — is applied routinely in cases of both on-site and off-site video monitoring.7 It is usually
2 See Lorne Richmond, “Employee Use of E-Mail and the Internet: A Union Perspective” in Kevin Whitaker et al, eds, Labour Arbitration Yearbook 2001- 2002, vol II (Toronto: Lancaster House, 2002) 45; Michael A Geist, “Computer and E-mail Workplace Surveillance in Canada: The Shift from Reasonable Expectation of Privacy to Reasonable Surveillance” (2003) 82:2 Can Bar Rev 151 at 173; Michael G Sherrard, “Workplace Searches and Surveillance Versus the Employee’s Right to Privacy” (1999) 48 UNBLJ 283 at 297. 3 Melanie R Bueckert, The Law of Employee Monitoring in Canada (Markham: LexisNexis Canada, 2009) at 110-118. 4 See ibid at 110, n 27 (list of cases and commentaries adopting a similar classifi- cation of the jurisprudence. C.f. Richmond, supra note 2 at 47-50. 5 Bueckert, supra note 3 at 111; c.f. Richmond, supra note 2 at 47. 6 Supra note 3 at 110. 7 See Fraser Health Authority (Surrey Memorial Hospital) and Health Sciences Ass’n of British Columbia (2011), 208 LAC (4th) 107 (Glass) [Fraser Health Authority], applying Extra Foods v United Food & Commercial Workers Int’l Union, Local 1518, [2002] BCCAAA No 377 (QL) (Glass) [Extra Foods] (“whether videotaping takes place while the employees are at the workplace, working elsewhere, or are off duty, the . . . [approach] remains the same” at 119).
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associated with Arbitrator David Vickers’ decision in Doman Forest Products Ltd., New Westminster Division and Int’l Woodworkers, Local 1-357.8 In Doman, the employer suspected that the employee was abusing sick leave, and hired an investigator to videotape the employee outside his home. Arbitrator Vickers referred extensively to two Supreme Court of Canada decisions: R. v. Duarte,9 where Lamer J. discussed the importance of privacy both as an aspect of human dignity and autonomy and as a “hallmark of a free society;”10 and Hunter v. Southam,11 where Dickson J. emphasized the need to test the reasonableness of a state search by measuring its impact on the subject’s privacy.12 The arbitrator then said the following about
the weighing of competing employer and employee interests in the 2015 CanLIIDocs 535 surveillance context: . . . [a] balancing of interests . . . is required. The employee’s right to privacy weighed against the company’s right to investigate what it might consider to be an abuse of sick leave. Questions to be answered include: (1) Was it reasonable, in all of the circumstances, to request a surveillance? (2) Was the surveillance conducted in a reasonable manner? (3) Were other alternatives open to the company to obtain the evidence it sought?13 Subsequently, in another case involving surreptitious video recordings of a malingering employee (Steels Industrial Products and Teamsters, Local 23114), Arbitrator Robert Blasina endorsed a modified approach — the “reasonable expectation of privacy” (REP) approach. Under this approach, before engaging in the balancing exer- cise embodied in the Doman questions, the arbitrator will scrutin- ize the employee’s privacy claim as a threshold question, by asking whether it is reasonable for the employee to have any expectation that the activity in question will remain private.15 If the answer to that
8 (1990), 13 LAC (4th) 275, 19 CLAS 235 [Doman]. 9 [1990] 1 SCR 30, 65 DLR (4th) 240. 10 Ibid at 53. 11 [1984] 2 SCR 145, 11 DLR (4th) 641 (sub nom Canada (Combines Investigation Branch, Director of Investigation and Research) v Southam Inc). 12 Ibid at 157. 13 Doman, supra note 8 at 281-282. 14 (1991), 24 LAC (4th) 259 (Blasina) [Steels]. 15 Bueckert, supra note 3 at 114.
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threshold question is no, the employee’s claim will fail and the mon- itoring need not be justified (unless there is some valid objection to it, such as an inconsistency with the collective agreement). If the answer to that threshold question is yes — i.e., if the employee did have a reasonable expectation of privacy for the particular activity — the arbitrator goes on to ask the first twoDoman questions: was it reason- able for the employer to request the surveillance, and if so, was the surveillance conducted in a reasonable way? As for the third Doman question (whether there were any alternatives to the surveillance), the REP approach treats that question simply as a relevant consideration under the first question rather than as an independent prerequisite. Both the reasonableness approach and the REP approach are 2015 CanLIIDocs 535 concerned with assessing the reasonableness of the surveillance by balancing the employer’s interests in managing the workplace against the employee’s interest in privacy. However, the REP approach is obviously less protective in that it rejects a claim where there is held to be no reasonable expectation of privacy before it moves on to ask any of the Doman questions. The REP approach is most often applied to deny claims where the impugned intrusion occurred in a public place. This is seen in Toronto Transit Commission and Amalgamated Transit Union, Local 113,16 a leading case employing the REP approach.17 Arbitrator Owen Shime suggested that the balan- cing of interests is conditional on the employee’s first demonstrating a valid REP: Surveillance in a public place, even if it is an invasion of privacy, but where a person does not subjectively have a reasonable expectation of privacy, or where there is not an objectively reasonable expectation of privacy, does not rank high on the scale of privacy issues. . . . [U]ntil the legislature or the courts either extends the right to privacy to make it co-extensive with the right to be free of surveillance while in a public place, or alternatively, creates a separate right to be free of surveillance while in public, the right to privacy cannot serve as a basis for requiring an employer
16 (1999), 88 LAC (4th) 109 (Shime) [Toronto Transit Commission]. 17 Bueckert, supra note 3 at 114.
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to establish reasonable grounds before introducing surveillance evidence of an employee who exposes himself or herself to the “plain view of outsiders.”18 The REP approach has been followed by a number of other arbitrators in cases involving surveillance cameras in public places.19 The third approach — the relevance approach — is the least pro- tective of privacy. Arbitrators using this approach ask only whether the evidence is relevant and reliable, and admit it if it is. They do not analyze the nature or strength of the employee’s privacy interest, nor attempt to balance that interest against the employer’s interest in managing the workplace. Cases adopting the relevance approach typically involve the admissibility of surreptitious off-site record-
ings of allegedly malingering employees. Seminal examples include 2015 CanLIIDocs 535 Kimberly-Clark Inc. and I.W.A., Local 1-92-420 and Greater Niagara Transit Commission v. Amalgamated Transit Union, Local 1582.21 Bueckert notes22 that many of the cases following this approach cite the Supreme Court’s decision in Université du Québec à Trois Rivières v. Larocque for the proposition that it is a breach of natural justice to exclude relevant evidence. She speculates that arbitrators who take this approach are concerned that they lack the jurisdiction to exclude probative evidence on the basis of a putative right to pri- vacy.23 It should be emphasized, however, that several recent deci- sions have taken the opposite view on the admissibility issue, with arbitrators opining that they do retain a residual discretion to exclude
18 Toronto Transit Commission, supra note 16 at 118, 122 (note that the union nominee to the arbitration board rejected this approach, holding that surveillance must be justified regardless of location). 19 Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1999), 79 LAC (4th) 85, 55 CLAS 299 (Solomatenko); Transit Windsor and Amalgamated Transit Union, Local 616 (2001), 99 LAC (4th) 295 (Brandt); Wood Buffalo (Regional Municipality of) and Canadian Union of Public Employees, Local 1505 (2001), 98 LAC (4th) 440 (Jones). 20 (1996), 66 LAC (4th) 266 (Bendel). 21 (1987), 43 DLR (4th) 71, 61 OR (2d) 565 (Ont Div Ct). 22 Supra note 3 at 116-117, n 52 (list of cases following this approach and refer- ences to academic commentary discussing it); Université du Québec à Trois Rivières v Larocque, [1993] 1 SCR 471, 101 DLR (4th) 494. 23 Bueckert, supra note 3 at 117.
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relevant evidence if it was obtained in violation of some other law, such as applicable data protection legislation.24
(b) Privacy Torts – Statutory and Common Law
Four provinces have established a statutory privacy tort.25 These statutes, which are substantially similar, make it a “tort,” in the words of the B.C. Privacy Act, to “willfully and without a claim of right . . . violate the privacy” of another person.26 They further provide that the “nature and degree of privacy to which a person is entitled in a situa- tion or in relation to a matter is that which is reasonable in the circum- 27
stances, giving due regard to the lawful interests of others.” To date, 2015 CanLIIDocs 535 it does not appear that any of these statutes have been directly applied in the context of employee monitoring. Moreover, there is very little jurisprudence under these statutes more generally, which leaves much uncertainty as to the principles that will be used in applying them. Several commentators have argued that these statutory torts may be ill-suited to the employment context28 because they provide
24 Fraser Health Authority, supra note 7 at 125; Ebco Metal Finishing Ltd and Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Shopmens’ Local 712 (2004), 134 LAC (4th) 372 at 403 (Blasina) [Ebco]; Lethbridge College and Lethbridge College Faculty Ass’n (Bird) (2007), 166 LAC (4th) 289 at 305 (Ponak) [Lethbridge College]; see also Robert B Blasina, “Video Surveillance and the Employment Relationship” (2007) 65:4 Advocate 447 at 460-464 [Blasina] (discussion of conflicting case law on the admissibility of video surveillance evidence in arbitral decisions, and a strong conclusion that evidence obtained in contravention of a statute should not be admissible; note that many decisions that admit such evidence are from Ontario, and those that exclude it are often from British Columbia); c.f. Labour Relations Act, 1995, SO 1995, c 1, Sch A, s 48(12)(f); Labour Relations Code, RSBC 1996, c 244, s 92(1)(b). For further discussion of general principles, see B Adell, “Evidence in Labour Arbitration” (1997) 23:1 Queen’s LJ 67. 25 Privacy Act, RSBC 1996, c 373; Privacy Act, CCSM, c P125; Privacy Act, RSNL 1990, c P-22; Privacy Act, RSS 1978, c P-24. 26 See e.g. BC Privacy Act, ibid, s 1(1); c.f. Sask Privacy Act, ibid; Man Privacy Act, ibid; NL Privacy Act, ibid. 27 See e.g. BC Privacy Act, ibid, s 1(2). 28 See Jeremy deBeer, “Employee Privacy: The Need for Comprehensive Protection” (2003) 66 Sask L Rev 383; Avner Levin, “Big and Little Brother: The Potential Erosion of Workplace Privacy in Canada” (2007) 22:2 CJLS 197 at 205-206.
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that consent is a complete defense to an intrusion upon privacy.29 American cases applying similarly-worded statutory privacy torts have often denied relief on the basis of implied consent to managerial surveillance as part of the employment relationship.30 Furthermore, a plain reading of the Canadian statutory provisions suggests that the courts would likely adopt the REP approach. This could lead to the denial of claims in cases where the employee is in a public place or is engaged in some other ostensibly “public activity,” such as online blogging, if a nexus to the workplace can be established.31 Of course, these various limitations need not present them- selves in fact. It would certainly be open to a court or arbitrator to
align the analytical approach under the statutory torts with the arbi- 2015 CanLIIDocs 535 tral jurisprudence and data protection legislation discussed below. A recent arbitral award, in New Flyer Industries Ltd. v. National Automobile, Aerospace, Transportation & General Workers Union of Canada, Local 3003,32 is notable in this respect. With reference to the Manitoba statutory tort, Arbitrator Arne Peltz observed that the “issues and the test for a violation merge with the approach adopted in the arbitral authorities,” by which he meant the reasonableness approach identified above (and elaborated on below).33
29 See e.g. BC Privacy Act, supra note 25, s 2(a). 30 See generally Jarrod White, “[email protected]: The Employer Monitoring of Employee E-Mail” (1996-1997) 48 Ala L Rev 1079; c.f. Lisa J Sotto & Elizabeth M McCarthy, “An Employer’s Guide to US Workplace Privacy Issues” (2007) 24:1 Computer & Internet Lawyer 1. 31 Many American decisions find it simply unreasonable for an employee to have any expectation of privacy at work. This includes their e-mails, notwithstanding an employer policy purporting to afford privacy: see Smyth v Pillsbury, 914 F Supp 97 (ED Pa 1996) [Smyth]; c.f. Levin, supra note 28 at 205-207. 32 [2011] MGAD No 27 (QL) at para 60 [New Flyer Industries]. 33 Ibid: “The arbitrator’s function is to balance the reasonableness of the legitimate and competing interests of the parties.”
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Ontario34 and Nova Scotia35 have recently recognized the exist- ence of a common law tort of invasion of privacy. This tort requires an intentional intrusion into the plaintiff’s private affairs or concerns in a manner that is highly offensive, causing distress, anguish or humiliation.36 As it is a relatively new tort, there is little jurisprudence on it. However, it is noteworthy that the Ontario Court of Appeal decision which recognized the existence of the tort in that province — Jones v. Tsige — was in fact a case involving unauthorized access to the plaintiff’s online banking records at work, albeit by a fellow employee rather than by the employer. This does show that the com- mon law privacy tort could apply to workplace monitoring in the
future. How robust it proves to be will depend on how it is developed 2015 CanLIIDocs 535 and applied by the courts. It is entirely possible that the idea of implied consent, and the REP approach (which we describe below as self-eroding), will find their way into the common law tort in the workplace context.37 Moreover, the requirement that the intrusion be done in a “highly offensive” way seems to pose an obstacle to redress for all but the most egregious invasions of privacy.
(c) The Personal Information Protection and Electronic Documents Act
The Personal Information Protection and Electronic Documents Act38 (PIPEDA) is a federal statute which applies to private-sector organizations that collect, use, or disclose “personal information” in the course of their commercial activities or collect, use, or disclose
34 Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241 [Jones]; for a critical discus- sion, see Chris Hunt, “Privacy in the Common Law: A Critical Appraisal of the Ontario Court of Appeal’s Decision in Jones v. Tsige” (2012) 37:2 Queen’s LJ 665. 35 See Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245, 320 NSR (2d) 22 [Handshoe]; for a discussion of some earlier cases, see Chris Hunt, “England’s Common Law Action for the Misuse of Private Information: Some Negative and Positive Lessons for Canada” (2010) 7 Can Privacy L Rev 113; c.f. Darren Charters, “Intrusion Upon Seclusion One Year Later: Trickle or Floodgate?” (2013) 10 Can Privacy L Rev 33. 36 Jones, supra note 34 at 70; Handshoe, supra note 35 at 72. 37 Levin, supra note 28 at 206-207. 38 SC 2000, c 5 [PIPEDA].
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personal information about their employees in connection with their businesses.39 Personal information is defined broadly as “informa- tion about an identifiable individual,” excluding names and telephone numbers.40 This definition clearly captures information contained in e-mails, telephone calls, and photographs,41 and, as a result, in Facebook postings as well.42 Where PIPEDA applies, it imposes ten broad obligations (referred to as “fair information principles”43) on organizations with regard to the proper handling of personal information.44 Three of these principles are core. The first, and ostensibly the most important, is the idea of individual consent. The second and third concern organ-
izational transparency and accountability in the collection, use, and 2015 CanLIIDocs 535 disclosure of personal information.45 PIPEDA also imposes another overarching limitation: the personal information must be collected, used, or disclosed “only for purposes that a reasonable person would consider . . . appropriate in the circumstances.”46 This requirement was inserted after lobbying by privacy advocates, who argued that organizations should have to justify their purposes in handling personal information.47 Several commentators have noted that this objective reasonableness requirement serves as a counterweight to
39 Ibid, ss 4(a)-(b). 40 Ibid, s 2(1). 41 Levin, supra note 28 at 205-206. 42 See Office of the Privacy Commissioner of Canada, Archived – Speeches, Lancaster House Annual Conference on Human Rights and Workplace Privacy, online: Office of the Privacy Commissioner of Canada
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the idea of implied consent, and that it is particularly important in the workplace because it serves to “counteract the difficulties that an entirely consent-based model would present . . . [given] the imbal- ance of power inherent in the employment relationship.”48 For our purposes, it is fair to characterize the PIPEDA regime as one that conditions fair information practices upon a combination of individ- ual consent and objective reasonableness in the collection, use, and disclosure of personal information.49 It is important to note that section 7 of PIPEDA contains a num- ber of exceptions to the consent requirement. Most of them involve matters outside the scope of this paper,50 but one exception relevant to
the workplace context is section 7(1)(b), which permits collection of 2015 CanLIIDocs 535 personal information without the individual’s knowledge or consent if it is collected for “purposes related to investigating a breach of an agreement,” including an employment contract, and if it is “reasonable to expect” that notifying the subject would compromise the accuracy or availability of the information. Although this provision obviates the need for consent, the provision nevertheless remains subject to the objective reasonableness requirement in section 5(3) of PIPEDA.
(d) Substantially Similar Provincial Legislation – The PIPAs
Three provinces — Alberta,51 British Columbia,52 and Quebec53 — have enacted private-sector legislation that the federal Cabinet has deemed “substantially similar” to PIPEDA.54 This designation means that private-sector organizations in those three provinces are exempt from the operation of PIPEDA.55
48 Bueckert, supra note 3 at 27; c.f. Geist, supra note 1 at 170. 49 Bueckert, supra note 3 at 27-30. 50 Supra note 38, ss 7(1)-(5) (exceptions related to personal, domestic, journalistic, artistic or literary purposes; or where personal information is handled by the organization for law enforcement purposes or where doing so is in the best inter- ests of the individual). 51 Personal Information Protection Act, SA 2003, c P-6.5 [Alta PIPA]. 52 Personal Information Protection Act, SBC 2003, c 63 [BC PIPA]. 53 An Act Respecting the Protection of Personal Information in the Private Sector, RSQ c P-39.1 [Act Respecting Protection of Personal Information]. 54 McNairn, supra note 43 at 9. 55 Supra note 38, s 26(2)(b); McNairn, supra note 43 at 9.
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The Alberta and B.C. statutes (both called the Personal Information Protection Act, or PIPA) are very similar.56 Like PIPEDA, their purpose is to “govern the collection, use and disclosure of per- sonal information,”57 which they subject to an overarching reasonable- ness requirement.58 The PIPAs also permit organizations to collect, use, or disclose personal information without knowledge or consent in order to pursue reasonable investigations.59 Unlike PIPEDA, however, the B.C. and Alberta PIPAs cre- ate a special regime for “personal employee information,”60 which is defined as “personal information about an individual that is col- lected, used, or disclosed solely for the purposes reasonably required 61
to establish, manage, or terminate the employment relationship.” 2015 CanLIIDocs 535 The PIPAs permit dealing in this information without the employee’s consent, so long as notice is given and such dealing is “reasonable for the purposes of establishing, managing or terminating an employment relationship.”62
(e) Comparing the Text of PIPEDA and the PIPAs in the Workplace Context – Does the Lack of a Consent Requirement in the PIPAs Really Matter?
Before turning to discuss the relevant arbitral and data protection jurisprudence, it is worth commenting briefly on the significance of the PIPAs’ omission of an express consent requirement for employer monitoring of employee personal information. Recall that the key difference in the workplace context between PIPEDA and the PIPAs is that, except for the investigation excep- tion, PIPEDA ostensibly conditions fair information practices on
56 The Act Respecting Protection of Personal Information, supra note 53, will not be discussed in this paper. 57 Alta PIPA, supra note 51 at s 3; BC PIPA, supra note 52 at s 2. 58 Alta PIPA, supra note 51 at ss 11, 14, 15; BC PIPA, supra note 52 at ss 4, 12, 13. 59 Alta PIPA, supra note 51 at s 14; BC PIPA, supra note 52 at s 12(1)(c); see also Blasina, supra note 24 at 467-468 (noting that these sections in the provincial PIPAs are equivalent to PIPEDA s 7(1)(b)). 60 Alta PIPA, supra note 51 at ss 1, 14, 15, 18; BC PIPA, supra note 52 at ss 1, 12, 13, 16. 61 Alta PIPA, supra note 51 at s 1; BC PIPA, supra note 52 at s 1. 62 BC PIPA, supra note 52 at s 13; Alta PIPA, supra note 52 at s 14.
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consent and objective reasonableness, whereas the PIPAs condition those practices on notice and objective reasonableness.63 In other words, unlike PIPEDA, the PIPAs do not require employee consent to monitoring, even absent an investigation, if (i) the collection, use, or disclosure of information relates to the employment relationship, (ii) notice is given to the employee before monitoring begins, and (iii) the monitoring is objectively reasonable. An obvious preliminary question arises: do the PIPAs afford employees less protection than PIPEDA because they do not require employee consent to monitoring? Canada’s former Privacy Commissioner, George Radwanski, argued that the PIPAs were
“clearly inferior” to PIPEDA due to this omission, and predicted that 2015 CanLIIDocs 535 employee privacy might suffer in B.C. and Alberta as a result.64 Lisa Austin has shown, however, that this has generally not happened,65 because (ironically) federal Privacy Commissioners have generally not vested PIPEDA’s consent requirement with any significance in the employee monitoring cases. Rather, they have followed an approach whereby “consent is subordinated to reasonableness”:66 if the monitoring is deemed reasonable under section 5(3), consent will simply be implied. This was done in PIPEDA Case Summary No. 153, which concerned a complaint by two operators of a telecom- munications company. The employer had collected “personal infor- mation” on their conduct at work, including the duration and volume of calls they answered, and used it to evaluate their performance. The Commissioner determined that section 5(3) had been satisfied: it was reasonable for the employer to monitor those employees in that way, as the information was tied to their main employment responsibilities as telephone operators. The Commissioner then held, with respect to
63 Bueckert, supra note 3 at 31; c.f. Levin, supra note 28 at 204. 64 Austin, supra note 45 at 3, citing Privacy Commissioner of Canada, News Release, “The Privacy Commissioner of Canada, George Radwanski, yes- terday sent the following letter to the Honourable Sandy Santori, Minister of Management Services, Government of British Columbia, regarding Bill 38, the Personal Information Protection Act, B.C.’s proposed private-sector privacy legislation” (8 May 2003), online: Office of the Privacy Commissioner of Canada
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the independent consent requirement, that consent could be implied because the employees had been given notice of the monitoring and because regular performance evaluations were a condition of their employment.67 This case demonstrates that reasonableness is the dominant paradigm in PIPEDA jurisprudence, and that consent plays a very small role. Accordingly, the PIPAs’ omission of an express consent requirement should not make any practical difference: cases of employment monitoring would likely be decided similarly under PIPEDA and the PIPAs, as the key criteria under both regimes are notice and objective reasonableness.
3. THE REASONABLENESS PARADIGM AND THE 2015 CanLIIDocs 535 BALANCING OF COMPETING INTERESTS: TOWARDS A HARMONIZED APPROACH UNDER LABOUR LAW, PIPEDA AND THE PIPAS
Remarkably similar principles on employee monitoring are emerging in arbitral awards and in decisions under PIPEDA and the PIPAs. The current paradigm can be summarized in two concepts: “reasonableness” and “balancing.” In this section, we discuss these concepts and explain their relationship.
(a) The Shift from “Reasonable Expectations” to “Reasonable Surveillance”
Michael Geist has noted that an “important shift in analysis” occurred in the early 2000s.68 Cases and academic debate on employee monitoring before then often concentrated on whether employees could have a “reasonable expectation of privacy” in their workplace activities (with the answer often being no). More recent cases have generally assumed that some privacy interest exists, and have focused
67 Lisa Austin discusses several other decisions of the Commissioner rendered pur- suant to PIPEDA (Case Summary Nos. 65, 127, 106 & 114) that follow similar reasoning, which Austin summarizes as follows: “Within the employment con- text, if an employee consents to the employment relationship and the information practices are known to the employees and considered reasonable within that relationship, then implicit consent is found” (ibid at 45). 68 Supra note 1 at 178.
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instead on whether the surveillance itself is reasonable.69 We briefly describe this earlier approach, then turn to discuss the current “rea- sonable surveillance” paradigm.
(b) “Reasonable Expectations”
The earlier approach was based largely on American law and commentary.70 Employees were denied privacy interests in the con- tents of their work computers, or e-mails sent on company networks, based on two distinct but at times overlapping theories. The first was an “ownership of property” analysis — the idea that if the equip-
ment was company property, the employer was entitled to control 2015 CanLIIDocs 535 and monitor its use.71 This American approach has been criticized by a number of commentators. For instance, Charles Morgan made the point that just because a company owns the office pens, it does not follow that it can read an employee’s letter written with one.72 Marc- Alexandre Poirier has likewise argued that an ownership of property approach is myopic — that it focuses on the medium of communica- tion and not on its contents, and thereby fails to distinguish between form and substance.73
69 Ibid. 70 See ibid at 163; Bueckert, supra note 3 at 156-160; Charles Morgan, “Employer Monitoring of Employee Electronic Mail and Internet Use” (1999) 44 McGill LJ 849 at 865-872; Marc-Alexandre Poirier, “Employer Monitoring of the Corporate E-Mail System: How Much Privacy Can Employees Reasonably Expect?” (2002) 60:2 UT Fac L Rev 85 at n 62 (citing American and early Canadian cases taking this approach); White, supra note 30 (discussing American law). 71 See Holly L Rasky, “Can an Employer Search the Content of its Employees’ E-mail?” (1998) 20 Advocates’ Q 221 (arguing “yes,” by invoking an owner- ship of property analysis); c.f. Milsom v Corporate Computers Inc, 2003 ABQB 296, 17 Alta LR (4th) 124 at paras 40-46 (no reasonable expectation of privacy in e-mails sent on company computer because these are “corporate assets”); Camosun College v Canadian Union of Public Employees, Local 2081, [1999] BCCAAA No 490 (QL) (Germaine) [Camosun] (no REP in employee e-mail sent through corporate-owned system; corporate ownership should be sufficient to give constructive notice to employee that e-mail not private). 72 Supra note 70 at n 177; c.f. Richmond, supra note 2 at 59. 73 Supra note 70 at 96-97; c.f. Milsom, supra note 71 at paras 40-46, and Camosun, supra note 71.
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The second theory is more accurately characterized as simply a bald proposition: that it is not reasonable for employees to expect pri- vacy in workplace e-mail or computer use.74 The underlying rationale appears to be that employees usually know (or ought to know) that the employer may monitor their computer activities as part of its right to manage the workplace, and that this actual or constructive know- ledge defeats any reasonable expectation of privacy.75 Commentators have noted that this approach often draws on notions of waiver and implied consent,76 the idea being that employees forfeit a right to privacy when they know there is a chance of monitoring. This reason- ing has been criticized as being both illogical77 and inconsistent with
well-established jurisprudence on reasonable expectations of privacy 2015 CanLIIDocs 535 under section 8 of the Charter.78 Such an approach is also self-erod- ing, for it would enable employers to eliminate privacy rights by
74 Smyth, supra note 31; Morgan, supra note 70 at 870 notes that this case is very often cited in American law for the proposition that no REP exists in the work- place context when using e-mail or the internet, citing several cases at n 90; c.f. Geist, supra note 1 at 163. 75 See Geist, supra note 1 at 163-164 for a summary of several American cases. See also United States v Simons, 206 F (3d) 392 (4th Cir 2000) (no REP in work- place computer because employer had internet monitoring policy); Smyth, supra note 31 (no REP in workplace e-mail, even though employer assured employee his computer would not be searched); and Naylor Publications Co (Canada) v Media Union of Manitoba, Local 191, [2003] MGAD No 21 (QL) at paras 137-142 (Peltz) (employer could monitor at-work e-mail use; e-mails not private because employee knew of monitoring policy; in any event, employee should have known that e-mails are not private because they can be forwarded to others and no “true” privacy exists online). 76 Poirier, supra note 70 at 92. 77 Hunt, “Privacy in the Common Law,” supra note 34 at 676-677 (noting that this is a non-sequitur: while one cannot consent to a risk without knowledge of it, one can have knowledge of it without consenting), and authors cited therein. 78 Poirier, supra note 70 at 92, n 36 (notes that La Forest J, in R v Wong, [1990] 3 SCR 36, 120 NR 34 held that privacy would be undermined if the reasonableness of an expectation was determined by whether the subject has “courted the risk of electronic surveillance”).
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simply giving notice of surveillance — something Canada’s former Privacy Commissioner rejected out of hand.79 It should be noted that the Supreme Court of Canada has recently signalled that neither of these two approaches will be given much weight. In R. v. Cole,80 the Court held that a high school teacher had a reasonable expectation of privacy in relation to the contents of a work-issued laptop provided to him by his employer, a school board. The Court noted that while “ownership of property is a relevant con- sideration [in assessing a REP], it is not determinative,” and it further emphasized that ownership alone should not “carry undue weight” in the REP analysis.81 The Court made similar observations about the
existence of workplace notices and policies warning employees that 2015 CanLIIDocs 535 their computers might be searched. It said that such documents were “not determinative,” but that they “may diminish the expectation of privacy that reasonable employees might otherwise have in their per- sonal information.”82
(c) “Reasonable Surveillance” and the Balancing Approach
As mentioned above, the current approach to video surveil- lance asks not whether a privacy interest exists, but rather whether surveillance can be justified. A number of arbitrators,83 lawyers,84 and academic commentators85 have noted the very close alignment of principles between labour law, PIPEDA, and the PIPAs pursuant to this “reasonableness” paradigm. Indeed, it is fair to say that the balancing approach followed under the latter two legislative regimes
79 Parliament, Privacy Commissioner of Canada, Annual Report to Parliament 2000-2001 (2001) (George Radwanski, Chair), cited in Geist, supra note 1 at 176 (the Commissioner stated: “I don’t agree that it follows from [invoking the concept of reasonable expectations of privacy] that an employee’s . . . privacy can be simply eradicated by telling them not to expect any”). 80 2012 SCC 53, [2012] 3 SCR 34. 81 Ibid at para 51. 82 Ibid at paras 52-53. 83 Blasina, supra note 24 at 448, 471, 474. 84 Morgan, supra note 70; Francis P Durnford, “Keeping Tabs: The Employer’s Right to Monitor Employee Internet and E-mail Activity within the Privacy Law Framework” (2007) 17 ELLR 65 at 65, 69; McNairn, supra note 43 at 39. 85 Geist, supra note 1 at 178; Bueckert, supra note 3 at 113-114.
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is largely a codification of “arbitral common law.”86 In this section, we highlight the key features of this approach. We then go on to note that although it is generally followed in the context of at-work e-mail monitoring, it is not being followed in the context of off-work online activities.
(i) Arbitral Jurisprudence
As mentioned, the test most often applied in cases of video sur- veillance — both on-site and off-site, and both overt and covert87 — is the test initially set out in Doman88 and subsequently refined in Steels
. This test expressly looks to the need to balance the employer’s 2015 CanLIIDocs 535 interests in managing the workplace against the employee’s interest in privacy. It places the onus on the employer to justify why surveil- lance is reasonable,89 having regard to three factors: the reason why surveillance was requested, how the surveillance was carried out, and whether there were any less invasive alternatives.90 Regarding the first element — the reason for the surveillance — Geist has noted that it is usually treated as a “stage one”91 con- sideration to be satisfied before other considerations of objective rea- sonableness are analyzed. The first element requires that an employer
86 Blasina, supra note 24 at 448. 87 Fraser Health Authority, supra note 7 at 119 (noting that the same balancing of interests principles should apply to surveillance regardless of location, following Extra Foods, supra note 7). 88 Supra note 8. 89 Brewers Retail and United Brewers’ Warehousing Workers’ Provincial Board (1999), 78 LAC (4th) 394 (Herman) [Brewers Retail]; Alberta Wheat Pool and Grain Workers’ Union, Local 333 (1995), 48 LAC (4th) 332 at 341 (Williams) (noting onus on employer to justify surveillance); see also Blasina, supra note 24 at 451-452. 90 Steels, supra note 14; Doman, supra note 8 at 281-282; for a more recent endorsement of this balancing of interests approach, listing the various factors relevant to each step in the analysis, see Domtar v Communications, Energy and Paperworkers Union, Local 789, [2000] BCCAAA No 285 (QL) (McPhillips) [Domtar]; Brewers Retail, supra note 89; New Flyer Industries, supra note 32. 91 Geist, supra note 1 at 184, citing Saint Mary’s Hospital (New Westminster) and Hospital Employees Union (1997), 64 LAC (4th) 382 (Larson) [Saint Mary’s] (surveillance must be justified by employer on the basis of a substantial work- related problem).
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have some bona fide work-related reason for instituting surveillance, such as a suspicion that an employee has breached his obligations under the employment contract,92 or concerns to protect safety93 or deter vandalism or theft.94 The authorities have shown there is a per- vasive repugnance against using electronic surveillance to simply monitor employee performance or productivity, absent some other clearly articulated concern. It is generally accepted that a more cogent case is required to justify covert, as opposed to overt, surveillance.95 Regarding the second element — how the surveillance was con- ducted — arbitrators have generally undertaken a detailed analysis of the degree of intrusiveness involved. This has led them to con-
sider such factors as the extent of the employee’s expectations of 2015 CanLIIDocs 535 privacy; the location of the camera and the nature of the information or activities likely to be captured; the degree of surreptitiousness; whether the information was recorded; whether the surveillance was constant or only for limited periods; and whether the monitoring was indiscriminate rather than targeted at a specific individual.96 Constant, indiscriminate surveillance is unlikely to be held reasonable, without a bona fide work-related reason (such as health and safety concerns, which have generally been respected).97 Regarding the third element — whether less intrusive meth- ods were available — it should be recalled that in Steels, Arbitrator Blasina endorsed a modified approach consisting of the first two Doman questions, with this third question being treated as simply a component of the first question rather than as an independent pre- requisite. There has subsequently been some tension in the arbitral
92 As in the cases dealing with allegations of malingering, such as Doman, supra note 8. 93 The Calgary Herald and Graphic Communications Union (2004), 126 LAC (4th) 386 at paras 84-85 (Tettensor). 94 New Flyer Industries, supra note 32 at paras 63-64. Note that arbitrators are not inclined to accept a “general deterrence” rationale for surveillance, and will usually insist that there be some specific problem and that the cameras be narrowly targeted at that problem: see Richmond, supra note 2 at 49-51. 95 Blasina, supra note 24 at 451, citing Saint Mary’s, supra note 91. 96 This synthesis of the factors adopted in the jurisprudence was set out by Arbitrator McPhillips in Domtar, supra note 90 at paras 23-29. 97 Puretex Knitting Co Ltd and Canadian Textile & Chemical Union (1979), 23 LAC (2d) 14 at 30, [1979] OLAA No 1 (QL) (Ellis) [Puretex].
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jurisprudence as to whether Doman or Steels should govern.98 Union- side counsel have preferred Doman, and have pressed an interpreta- tion of it stemming from Saint Mary’s Hospital (New Westminster) and Hospital Employees Union,99 which suggested that surveillance will only be reasonable if the employer has first exhausted all rea- sonable alternatives. However, recent arbitral authority has appar- ently settled on the approach in Steels as the proper test, treating the absence of alternative means as an important factor in assessing the overall reasonableness of the surveillance but not an independent prerequisite.100 It has also been suggested that where the video sur- veillance is covert rather than overt, arbitrators should scrutinize the 101
availability of less intrusive means even more carefully. 2015 CanLIIDocs 535 Finally, it is worth emphasizing that arbitrators applying the above principles have been consistent and clear in articulating that the reasonableness inquiry requires the balancing of competing employer and employee interests. This was made plain by Arbitrator Ronald Ellis in one of the earliest cases on workplace surveillance, which involved the overt presence of cameras on the shop floor: In the use of electronic surveillance, it is apparent that we confront conflicting social values of considerable significance. There is on the one hand the principle of the right to privacy and beyond that the more general idea . . . of the crucial importance of preserving and nurturing the historically fragile concept of human dignity. The Orwellian construct of the ultimately socialized man . . . [is] widely accepted in this society as classic illustrations of a world gone wrong — of anti-human societal tendencies. Electronic surveillance is the ultimate socializing device . . . [and] people instinctive[ly] identif[y] its fundamentally anti-human character . . . .102
98 See Brewers Retail, supra note 89; Fraser Health Authority, supra note 7 at 117-120. 99 Saint Mary’s, supra note 91. 100 See Fraser Health Authority, supra note 7 at para 23; and Brewers Retail, supra note 89; New Flyer Industries, supra note 32 at para 55. 101 Leon’s Manufacturing Co Ltd and Saskatchewan Joint Board Retail, Wholesale and Department Store Union, Local 955 (2006), 153 LAC (4th) 155 (Pelton); New Flyer Industries, ibid. 102 Puretex, supra note 97 at 29-30.
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After making these observations, Arbitrator Ellis went on to propose a “balancing of interests” test that sought to reconcile the employ- ee’s privacy and dignity with the employer’s “right to manage the workplace.”103
(ii) The Federal PIPEDA Jurisprudence
PIPEDA’s approach to justifying workplace surveillance is expressly modelled on the broad strokes of the arbitral jurisprudence discussed above. The seminal decision is Eastmond v. Canadian Pacific Railway,104 in which the union complained to the Privacy
Commissioner of Canada that the employer’s installation of six cam- 2015 CanLIIDocs 535 eras in the workplace rail yard was not reasonably justified under section 5(3). The employer responded that the cameras were designed to protect its property and also to provide security, which was war- ranted because two female employees had reported feeling unsafe in the yard. The Privacy Commissioner adopted a four-part test to determine reasonableness under section 5(3):105
(1) Is the measure demonstrably necessary to meet a specific need? (2) Is it likely to be effective in meeting that need? (3) Is the loss of privacy proportionate to the benefit gained? (4) Is there a less privacy-invasive way of achieving the same end?
103 Ibid at 30; c.f. Pope & Talbot Ltd v Pulp, Paper and Woodworkers of Canada, Local No 8, [2003] BCCAAA No 362 (QL) at para 31, 123 LAC (4th) 115 (Munroe) [Pope] (“just as an employee’s privacy interests require protection against the overzealous exercise of management rights, so also must an arbi- trator acknowledge the employer’s legitimate business and property interests. What is required, then, is a contextual and reasonable balancing of interests”). 104 2004 FC 852 (CA) (available on CanLII) [Eastmond]; see also Wansink v TELUS Communications Inc, 2007 FCA 21, [2007] 4 FCR 368, endorsing Eastmond. 105 See Eastmond, ibid at para 13.
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The Commissioner determined that the complaint was justified: the cameras were held to be unreasonable and he recommended their removal.106 On appeal by the employer to the Federal Court,107 Lemieux J. affirmed the above four-part test, although he came to a different con- clusion on the facts.108 He noted that the considerations underpinning the test reflected the approach that had emerged in the established arbitral jurisprudence, including the Puretex and Doman cases on reasonable surveillance. Lemieux J. further noted that those consider- ations were aimed at “balancing privacy interests of employees with the legitimate interests of employers,”109 and he said the following PIPEDA
with reference to : 2015 CanLIIDocs 535 There is no doubt Parliament mandated the balancing of interests. The need for balancing is clear from the purpose clause . . . [in] section 3 . . . . The purpose is to establish rules that govern the collection, use and disclosure of personal information in a manner that recognizes on the one hand the right of privacy of individuals . . . and on the other hand, the need for organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.110 Lemieux J. emphasized that the balancing process, as set out in the four questions identified by the Commissioner, called for a highly contextual analysis focused on “why, how and when” personal information is collected, used, or disclosed.111 Finally, he appeared
106 PIPEDA Case Summary No 2003-114 (23 January 2003), online: Office of the Privacy Commissioner of Canada
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to endorse two broad propositions emanating from the established arbitral jurisprudence: enhanced scrutiny is called for when the sur- veillance is covert, rather than overt; and it will be difficult to justify using surveillance cameras solely to record employee productivity.112 A subsequent decision of the Assistant Privacy Commissioner of Canada, set out in PIPEDA Case Summary No. 279, further demonstrates the application of this contextual balancing approach in a manner consistent with the arbitral authorities.113 The employer had installed two live web-cameras in its office, aimed at the sales and technical support staff. The cameras could not zoom, rotate or record, and they were not surreptitious, as the employees had been
given notice. The Assistant Commissioner nevertheless rejected the 2015 CanLIIDocs 535 employer’s argument that it was justified in deploying the cameras to deter theft, provide security (in the absence of any evidence of a specific problem) and to monitor employee productivity: [T]he underlying purpose for the cameras really appeared to be one of deter- rence — deterrence of theft, harassment, malingering, criticism, or other behaviour an employer may not like . . . . The Act, however, demands that the cost to human dignity form part of the equation. Continuous, indiscrim- inate surveillance of employees . . . was based on a lack of trust and treats all individuals with suspicion when the underlying problems may rest with a few individuals . . . . The effect . . . of such omnipresent observation was stifling . . . .114 The Assistant Commissioner doubted that deploying cameras was a reasonably proportionate measure to deter theft, provide security or monitor performance, and emphasized in particular that the employer had failed to consider less privacy-intrusive strategies, such as rota- tion of management schedules to improve supervision.
(iii) The Alberta PIPA Jurisprudence
R.J. Hoffman Holdings Ltd.115 is the leading case in Alberta on the application of PIPA to employer surveillance. Recall that
112 Ibid at para 132. 113 See Blasina, supra note 24 at 468-469 for a discussion of this decision. 114 PIPEDA Case Summary No 2004-279 (26 July 2004), online: Office of the Privacy Commissioner of Canada
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the PIPAs create a special regime for “personal employee informa- tion,” which may be collected, used, or disclosed without consent, as long as notice is given and the collection and use of the data is “reasonable for the purposes of establishing, managing or termin- ating an employment relationship.”116 In Hoffman, the Information and Privacy Commissioner interpreted reasonableness here to turn on three questions:117
• Are there legitimate issues that the organization needs to address through surveillance? • Is the surveillance likely to be effective in addressing these
issues? 2015 CanLIIDocs 535 • Was the surveillance conducted in a reasonable manner?
Robert Blasina has observed that while the phraseology is different, these questions essentially incorporate the “‘interests balancing” test from the award in Doman, as refined in his award in Steels.118 The Commissioner in Hoffman did refer to those decisions, as well as to the Eastman four-part PIPEDA test,119 before articulating the three questions set out above. It should be no surprise that the approaches are similar, for the Alberta and B.C. PIPAs expressly contemplate such a balancing of interests in their “purpose” provisions.120 The application of the test in Hoffman itself further reveals the similarity in approach. The case involved the legitimacy of two overt workplace cameras aimed at the shop floor. The cameras were triggered by movement, the recordings were accessible only by the
116 BC PIPA, supra note 52 at s 13; Alta PIPA, supra note 51 at s 15. 117 Hoffman, supra note 115 at para 35. 118 Blasina, supra note 24 at 471. 119 Hoffman, supra note 115 at para 31. 120 See BC PIPA, supra note 52 at s 2; Alta PIPA, supra note 51 at s 3 (these Acts explicitly recognize “both the right of individuals to protect their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate”); c.f. Schindler Elevator Corp (19 December 2012), P12-01 [Schindler Elevator], online: Office of the Information & Privacy Commissioner for British Columbia
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manager, and they were deleted after one month. The employer argued that the cameras had been installed to provide asset security, and also to monitor employee performance. The Commissioner determined that the security purpose was reasonable because the employer had identified several prior instances of theft, and two fires had destroyed valuable equipment. The cameras were found to be effective for that purpose, and there was no comparably suitable alternative. Moreover, the intrusion was held to be minimal, as the cameras were not surrep- titious; they were fixed, non-panning and not zoom-capable, and the images would be deleted after a month. The Commissioner then applied the same test to the employer’s
other justification for the cameras — to monitor employee perform- 2015 CanLIIDocs 535 ance. Ostensibly, this rationale could resonate with the language in PIPA recognizing the objective of “managing the employment rela- tionship.”121 However, the Commissioner noted that a reasonableness (or balancing) test must still be applied to that language. In doing so, she held that the harm to employee privacy interests from the “con- stant and invasive supervision of their daily activities” outweighed the benefit to the employer of potentially capturing an employee who was “avoiding work or taking longer breaks,” which the cameras “might at some point witness.”122 In short, constant, overt video-recording of employees (even with fixed, non-zooming cameras) cannot be justi- fied if the purpose is simply to monitor performance or productivity — at least where there is no prior suspicion of specific wrongdoing.123
(iv) The British Columbia PIPA Jurisprudence
Ebco Metal Finishing,124 decided in 2004, was the first case in which the B.C. PIPA was applied by a labour arbitrator in the con- text of workplace surveillance. Two employees were discharged for
121 Blasina, supra note 24 at 472. 122 Hoffman, supra note 115 at para 51. 123 Ibid (the Commissioner further suggested, at para 52, that even if the pur- pose was justified — for instance, because of a prior act of wrongdoing by an employee — the cameras would not likely be a proportionate response because less intrusive alternatives, such as a greater management presence, could be just as effective in a small workplace such as the one in question). 124 Ebco, supra note 24.
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malingering on the job. The employer had filmed them several times over a two-month period, using surreptitious cameras at the worksite. While the employer suspected that they were malingering, it had no evidence of this before installing the cameras. At the hearing of their grievance, Arbitrator Blasina determined that the video evidence had been obtained in contravention of PIPA, and ruled it inadmissible for the purpose of showing cause. He cited Arbitrator Donald Munroe’s view, set out in a 2003 award, that the passage of PIPA did not in fact “alter the substance of the issue [of employee monitoring].”125 Arbitrator Blasina determined that in cases of surveillance, PIPA, like the arbitral authorities, called for a balancing of interests based 126
on what is “reasonable in the circumstances.” He also scrutinized 2015 CanLIIDocs 535 the employer’s justification for instituting the surveillance.127 And although PIPA does not call expressly for an assessment of whether there might have been “less intrusive means,” the arbitrator did con- sider that question128 because he saw it as part of the overall reason- ableness requirement.129 This aligned the approach under PIPA with the pre-PIPA arbitral jurisprudence as formulated in Steels. A more recent case is Schindler Elevator,130 in which the employer used information gathered from a GPS device installed on trucks driven by its employees. The B.C. Information and Privacy Commissioner closely considered the issue of what constitutes
125 Ibid at 401, citing Pope, supra note 103 at 125. 126 Ibid. 127 Ibid at 399. The arbitrator saw the employer as basically being on a “fishing expedition.” Although it suspected the employees of malingering on the job, it had no proof of this, and their productivity was as good as that of other employees. In other words, the arbitrator seems to have viewed productivity monitoring as the employer’s sole purpose, and in the absence of some credible reason for suspecting wrongdoing, such a purpose was not a valid one aimed at “managing the employment relationship” under PIPA. 128 Ibid at 378, 401 (Arbitrator Blasina noted the invasiveness of surreptitious monitoring, and found that the employer had given no consideration to simply interviewing the suspected employees, to switching their shifts to times when a manager would be present, or to putting a manager on the night shift to super- vise them). 129 Ibid at 401. 130 Supra note 120.
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“employee personal information” under the province’s PIPA.131 She expressly declined to apply the Eastmond PIPEDA test or the exist- ing arbitral tests, on the basis that effect had to be given to PIPA’s specific language.132 The Commissioner held that information would be classed as “employee personal information” if two criteria were satisfied: (i) the personal information is, in the words of PIPA, “col- lected, used, or disclosed . . . for purposes reasonably required to establish, manage or terminate an employment relationship,” and (ii) again in the words of PIPA, it is collected “solely” for that reasonable purpose.133 For a trucking company, managing productivity and hours of work, and ensuring safety and compliance with traffic regulations,
were all (in the Commissioner’s view) “legitimate, reasonable, busi- 2015 CanLIIDocs 535 ness purposes,” so they were held to meet the “reasonably required” criterion.134 With respect to the “solely” criterion, the Commissioner said that “[w]hat matters . . . is whether, as between the organization and the employee, the organization’s sole purpose in collecting, using or disclosing information in its character as ‘employee personal infor- mation’ is to manage an employment relationship.”135 Having determined that the GPS data was “employee personal information,” the Commissioner turned to consider whether it could be collected without the employee’s consent. Recall that PIPA per- mits this if the employee has been told of the purpose of collection and if the employer’s action is reasonable for the purposes of the employment relationship.136 The Commissioner emphasized that
131 Section 1 of the BC PIPA says: “ ‘employee personal information’ means personal information about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual, but does not include personal information that is not about an individual’s employment.” 132 Supra note 120 at paras 138-139. 133 Ibid at paras 115-116. 134 Ibid at paras 120-121 (“A business is entitled to ensure . . . that its employees meet productivity standards . . . [and] it is also a reasonable purpose for a busi- ness to collect personal information to ensure that its employees are actually working the hours for which they are paid”). 135 Ibid at para 122 (thus, if the information — say, an employee’s home address — is used to discharge the employee, it satisfies this criterion; but if this same information is used by the organization to market products to its own employ- ees, it is not satisfied). 136 Ibid at para 123.
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whether the collection of the information is itself reasonable is a different question than the one just discussed (i.e., whether the pur- pose of collection was reasonably required for the employment rela- tionship).137 She went on to hold that whether the collection itself is reasonable requires a “balancing of interests” on a case-by-case basis and the consideration of a non-exhaustive list of factors:138
• How sensitive the information is.139 • How much is collected.140 • How well it is likely to meet the employer’s objectives.141 • Whether there were less intrusive alternatives.142 143
• Whether the surveillance is overt or covert. 2015 CanLIIDocs 535
Despite the differences in language, this decision calls for an approach that is broadly consistent with the jurisprudence discussed above.144 Although monitoring employee productivity is a legitimate business
137 Ibid at para 141. 138 Ibid. 139 Ibid at para 142 (innocuous information such as one’s telephone number requires less justification that intimate information such as health status or sexual orientation). 140 Ibid at para 143 (organizations should “tailor their collection, use or disclosure . . . only to that which is reasonably required to achieve their purposes,” but this does not imply that reasonableness is limited to that which is “necessary” or “indispensable” for the company’s purposes). 141 Ibid at para 144 (not likely to be reasonable to collect, use or disclose informa- tion if doing so is unlikely to be effective vis-à-vis the company’s purposes). 142 Ibid at para 145 (this requirement does not impose a “least intrusive means” test, but rather calls for a consideration of alternatives as part of a reasonable- ness inquiry that ultimately seeks to balance employee privacy against legitim- ate business interests). 143 Ibid at para 146 (noting that covert surveillance is much more intrusive of privacy, and thus requires a “more searching” justification, in line with the established arbitral jurisprudence). 144 Eleni Kassaris & David Gibbons, “Re Schindler Elevator Corporation: B.C. Privacy Commissioner Finds Engine Monitoring Technology Reasonable” (April 2013) 10:5 Canadian Privacy Law Review 47.
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purpose, it would be unlikely to justify covert surveillance,145 con- stant overt monitoring,146 or the collection of sensitive information.147
(v) The Reasonableness Paradigm Applied to At-Work Computer Surveillance
As some commentators had hoped and predicted would hap- pen,148 recent cases have applied the broad strokes of the Doman reasonableness paradigm to the surreptitious monitoring of work- place e-mail and computer use. The ruling in Lethbridge College and Lethbridge College Faculty Ass’n (Bird)149 offers a good example.
The college terminated an instructor for having sexual relationships 2015 CanLIIDocs 535 with three students. As part of its investigation of a student’s for- mal complaint, the college accessed the employee’s college-operated e-mail account without his knowledge or consent. It also confiscated his laptop, which had been issued to him by the college, and copied the hard drive, including all of the stored e-mails sent from his per- sonal Hotmail account. The college searched both e-mail accounts for messages that indicated personal relationships with current or former students, discovered that he had had such relationships with two other students, and dismissed him. At the arbitration hearing, the union argued that the Hotmail messages should not be admitted because of the employee’s privacy interest in them, but did not appear to object to the college’s accessing of the e-mails archived on its own system. There is also some suggestion in the arbitration award that no expect- ation of privacy could be had in e-mails sent and received on the
145 Schindler Elevator, supra note 120 at para 161 (emphasizing that the GPS technology was not covert). 146 Ibid at paras 164-166 (emphasizing that, in finding no offence to worker dignity, the Commissioner was “particularly influenced by the fact the GPS . . . information is not continuously monitored,” but noting that the situation may be different if “real-time monitoring of employees’ whereabouts, during or outside work hours” was at issue). 147 Ibid at paras 153-156 (emphasizing that data on engine status is not sensitive). 148 See e.g. Geist, supra note 1; Sherrard, supra note 2. 149 Lethbridge College, supra note 24.
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college’s system, based presumably on the “ownership of property” rationale mentioned above.150 In discussing the admissibility of the Hotmail messages, the award expressly adopted the Doman test,151 but first made a few important observations. It said that if the e-mails were obtained in violation of another “law” — such as applicable data protection legis- lation, or the Criminal Code — the search would be deemed unreason- able under the Doman test and the evidence would be inadmissible.152 Moreover, if the employee’s “Hotmail was exclusively located on [his] own private computer it would be inadmissible without [his] consent.”153 The award went on to find that the college-issued com-
puter was intended for college use, and that it “belong[ed]” to the col- 2015 CanLIIDocs 535 lege, which were “factors” giving the college “some rights of access” to its contents.154 As a result, the employee could have no “absolute” right to privacy in relation to that computer.155 However, because the college did not enforce its policy against non-college use of its laptops, it could not now insist on “unfettered” access to them.156 In the arbitration board’s view, the best approach to determining
150 Ibid at 303 (“We start from the premise that employees have some expectation of privacy in the receipt and transmission of emails from an internet provider that is not their employer’s”) [emphasis added]. 151 Ibid. 152 Ibid at 305. Note that the relevant data protection rules in this case were those applicable to provincially regulated public-sector organizations, contained in the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 [Alta FIPPA]. 153 Ibid at 303. 154 Ibid. 155 Ibid. 156 Ibid. Query why, earlier, the board suggested that ownership of the e-mail sys- tem alone apparently gives the college full access to it — as no privacy interest can exist as a result; but ownership of the computer does not, if the employer does not enforce its policy against using it for personal reasons. The board’s conclusion that the college’s failure to enforce a policy can attenuate its right to have full access to its own equipment must mean that ownership alone is not conclusive. Does it now follow that if the college had never enforced a policy that prohibited non-work-related e-mails being sent from the college-operated e-mail system, it would lose the unfettered right to access those e-mails?
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admissibility was to balance the employee’s expectation of privacy against the employer’s right to manage the workplace, using the Doman framework.157 The first Doman factor — whether it was reasonable to search the employee’s Hotmail account — was satisfied by the fact that the college had what the award called “probable cause,” based on a com- plaint from a student about the employee’s relationship with her and on suggestive e-mails between him and other students found during a search of his college-operated e-mail account.158 With respect to the second Doman factor — whether the search was carried out in a reasonable way159 — the award noted that where
computers are searched for e-mails, it might be unreasonable to “gain 2015 CanLIIDocs 535 . . . access to an individual’s privately owned computer without con- sent,”160 or to conduct a search which violated another “law.”161 It then turned to analyze the applicable data protection rules, which were those governing provincially regulated public-sector organizations (Alberta’s Freedom of Information and Protection of Privacy Act, or FIPPA). Like the PIPAs, FIPPA provides for an exception permitting the collection, use, or disclosure of personal information without con- sent if this is done “for the purpose of managing or administering per- sonnel.”162 Without any elaboration, the award stated that the results of the search of the grievor’s computer were “certainly used pursuant to the College’s management of the Grievor,” and that such use was therefore permissible under FIPPA.163 It concluded, again without
157 Ibid. 158 Ibid. This aspect of the decision is troublesome. Because the union did not object to the search of the e-mails on the employer-operated system, these were admitted straightforwardly and then used to bootstrap a justification to search the Hotmail account. 159 Ibid at 309. 160 Ibid. 161 If so, the search would be unreasonable under the Doman analysis: ibid. 162 Alta FIPPA, supra note 152, s 34(n). 163 Supra note 24 at 306.
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elaboration, that because FIPPA was not breached, the search itself was reasonable under the second Doman factor.164 On the third Doman factor — whether there were less invasive means — the arbitration board said that it could not think of any, and that the union had not suggested any. In the board’s view, search- ing the employee’s e-mails for evidence of improper relationships with students was less invasive than interviewing all of his former students, which would have been “tantamount to a witch hunt,” espe- cially in a relatively small community.165 Having concluded that the Doman test was satisfied, the board ruled that the Hotmail e-mails were admissible to support disciplinary action.
Although the board’s reasoning in Lethbridge College is not 2015 CanLIIDocs 535 without its problems, the basic point for our purposes is that the Doman approach was applied in the context of at-work e-mail sur- veillance. At least two other recent cases have followed a similar approach. One is a 2012 decision of Alberta’s Information and Privacy Commissioner involving a complaint by an employee of the
164 There are two problems with this analysis. First, while it is surely correct that a breach of another law, such as data protection legislation, should point to a finding of unreasonableness under the second Doman factor, it does not neces- sarily follow that the reverse is true — i.e., that the absence of a breach of FIPPA points to a finding that the search was reasonable. In other words, just because FIPPA is not violated does not necessarily mean the search is reason- able. Second, even if compliance with data protection legislation might indicate that the search is reasonable under Doman, surely that should only be the case where the tribunal aligns the tests and runs a Doman-type reasonableness analy- sis under the applicable data protection legislation, in the manner discussed in sections 2(3)(c) and (d) above in the context of the PIPAs. In Lethbridge College, the award did not do that. It simply asserted that the Hotmail search of the work computer fell under the “managing personnel” exception under FIPPA, and then concluded that because FIPPA was not breached, the search was reasonable under Doman. As a result, there was never any scrutiny of the reasonableness of the search under the balancing of interests approach called for by Doman and repeatedly endorsed by the arbitration board itself in Lethbridge College. 165 Lethbridge College, supra note 24 at 304. It is not clear whether the board pre- ferred the Doman approach or the Steels approach on this factor (i.e., whether the absence of less intrusive means merely goes to the question of reasonable- ness or is a separate prerequisite that must be met in every case).
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Calgary Police Service.166 In response to several allegations by her colleagues that the complainant was behaving in a sexually inappro- priate manner on the job, the employer launched an investigation which involved surreptitiously monitoring her computer use at work. Accessing her employer-operated e-mail account provided the infor- mation the employer needed to access her personal e-mail account. In her personal account, the employer discovered a topless photograph of her, apparently taken in an office washroom, and she was promptly dismissed for cause. The complainant conceded that the employer could legitimately access her employer-operated e-mail account, but she complained to the Commissioner that accessing her personal
e-mail account violated the applicable public-sector data protection 2015 CanLIIDocs 535 legislation (the Alberta FIPPA). The Commissioner’s decision did not mention Doman, but her analysis is consistent with the authorities discussed above. She held that the “managing personnel” exception in FIPPA could encom- pass investigations by management, including investigations that deploy “invasive techniques” like those used in this case,167 but only if the employer both pursued a reasonable purpose and conducted the investigation in a reasonable manner.168 On the first point, the Commissioner found no reasonable management purpose in accessing the employee’s personal account, because there had been no prior evi- dence of any connection between her alleged improper behaviour at work and her personal e-mail account. Without such a connection, the employer lacked probable cause and was merely fishing for evidence of wrongdoing. On the second point — whether the investigation had been carried out in a reasonable manner — the Commissioner adopted a balancing-of-interests approach: Even if I found the use to have been for the purpose of the workplace investigation, [FIPPA requires use] . . . only to the extent necessary to carry out its purpose in a reasonable manner. Logging in to the Complainant’s personal email is exceptionally invasive, and patently unreasonable in the circumstances.169
166 Calgary Police Service (20 April 2012), F2012-07, online: Office of the Information and Privacy Commissioner of Alberta
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Another recent example of the broad convergence of arbitral and data protection principles in the context of at-work computer monitoring is provided by the decision in Fraser Health Authority.170 The grievor was discharged for “time theft” in relation to excessive internet use while at work, contrary to a known company policy. The employer was alerted to the problem by an anonymous e-mail. It ordered an audit which culminated in a computer report of nearly 3,000 pages, listing every internet site the employee had visited in the previous six months. In grieving his discharge, the grievor argued that the report should not be admitted in evidence because it violated his right to privacy under the applicable public-sector data protec-
tion legislation (the B.C. Freedom of Information and Protection of 2015 CanLIIDocs 535 Privacy Act, or FIPPA).171 Both parties agreed that the web browsing activities were “per- sonal information” under FIPPA, on the basis that there is a “privacy interest” in one’s “personal internet browsing history” because it reveals one’s “personal predilections” and “choices.”172 They also agreed that the arbitrator had the discretion to exclude this evidence if it had been obtained in violation of data protection legislation.173 The sole issue was whether the information could be collected without consent on the basis that it fell within an exception in section 26(c) of FIPPA — that it “relate[d] directly to and [was] necessary for an operating program or activity of the public body.”174 The union argued that this statutory exception must be interpreted narrowly, and that the arbitral approach in Doman should not be applied here. The employer contended that the Doman approach should indeed apply to the FIPPA exception, just as the broad outlines of that approach were
170 Supra note 7. 171 RSBC 1996, c 165 [BC FIPPA]. The principles under the FIPPAs relevant to the non-consensual collection of personal information of employees are sub- stantially similar to the B.C. and Alberta PIPAs. 172 Fraser Health Authority, supra note 7 at 116, citing R v Cole, 2011 ONCA 218 at para 78, 105 OR (3d) 253. 173 Ibid at 125 (Arbitrator Glass also noted, at 115, that if the information was obtained in breach of another law, “it would be hard to conclude that the collec- tion of the information was reasonable”). 174 BC FIPPA, supra note 171, s 26(c).
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being applied under British Columbia’s PIPA with respect to when employee personal information could be collected without consent for the purpose of “managing an employment relationship.” The arbi- trator agreed with the employer on this point: Developing and maintaining consistency between decisions of the two types of tribunal[s] [arbitrators and privacy commissioners] is a desirable goal and on this subject there are in fact many common features to be found already. In privacy commissioner decisions and pronouncements about what is “necessary” there is clearly consideration of a reasonableness standard, and of what is reasonable in the circumstances. There is the rejection of the notions of indispensable and/or absolutely necessary. There is consideration of the balancing of employer and employee rights and interests. There is considera-
tion of whether or not there are less intrusive means of obtaining information. 2015 CanLIIDocs 535 Further . . . considerations [mentioned by former Commissioner Loukidelis] . . . fit easily within the factors to be considered in assessing conformity to the reasonableness standards employed in the traditional arbitral tests for admissi- bility: the sensitivity of the personal information; the particular purpose for the collection; and the amount of personal information collected, assessed in light of the purpose for collection.175 Turning to the merits, the arbitrator determined that the audit report on the grievor’s internet use had been prepared for a reasonable purpose: it was not aimed simply at monitoring productivity, but was targeted at an allegation of deliberate theft of company time, which the employer had probable cause to investigate. In addition, the audit had been performed reasonably, in that the “nature and extent” of the information collected was “reasonably limited to effect the pur- pose of the enquiry and no more.”176 Finally, the arbitrator rejected the union’s argument that a less intrusive means was available — namely, that the employer could have simply asked the grievor about his internet use. Because the allegation against the grievor was one of deliberate time theft in violation of a known company policy, it could not be expected that he would reply honestly to such a question, particularly in light of the fact that there were reasons to question his reliability as a source of information.177
175 Fraser Health Authority, supra note 7 at 124. 176 Ibid at 128. 177 Ibid; see also 125-128.
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4. SURVEILLANCE OF OFF-DUTY ONLINE EMPLOYEE BEHAVIOUR: DEPARTING FROM THE REASONABLENESS PARADIGM
There have only been a handful of cases involving employer inspection of an employee’s off-duty online behaviour. Surprisingly, none of them has much discussion of privacy, or of the propriety of the employer’s inspection practices. In contrast to the cases on at-work surveillance of employer-owned e-mail accounts and per- sonal accounts accessed through employer-owned equipment, the rea- sonableness paradigm is not being applied in cases involving off-site
online monitoring, with the result that employers are apparently not 2015 CanLIIDocs 535 being required to justify such surveillance. In this section we discuss the latter line of cases, and in the following section we suggest that the jurisprudence on off-site online monitoring should be brought into line with the reasonableness paradigm that is routinely applied to all other types of employer surveillance of employees. The cases on off-duty online surveillance can be grouped into two categories. In the first group, there is simply no discussion of privacy at all.178 These cases have involved comments posted by employees on their Facebook pages that were critical of the employer, colleagues or customers. The decisions have assumed that it is legit- imate for an employer to access an employee’s Facebook account, and the analysis has focused exclusively on the application of the established test for determining when off-duty conduct is grounds for dismissal.179 This is likely driven by the fact that, in each case, employee counsel failed to challenge the legitimacy of the initial monitoring on privacy grounds.
178 See Wasaya Airways LP and Air Line Pilots Ass’n, Int’l (Wyndels) (2010), 195 LAC (4th) 1 (Marcotte) [Wasaya Airways]; Lougheed Imports Ltd and United Food & Commercial Workers Int’l Union, Local 1518 (2010), [2011] CLRB (2d) 82 (BCLRB); Groves v Cargojet Holdings Ltd, [2011] CLAD No 257 (QL) (Somers). 179 See e.g. Wasaya Airways, ibid at 29-47 (applying the longstanding five-fold test in Millhaven Fibres Ltd v Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, [1967] OLAA No 4 (QL) (Anderson).
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The second group of cases do have some discussion of the appli- cation of employee privacy rights to online activity.180 Nevertheless, as in the first group, the adjudicators all determined that the employee in question lacked a sufficient privacy interest to prevent the employer from accessing his or her online information. What distinguishes this second group is the articulation (albeit minimal and laconic) of some rationale for rejecting the employee’s privacy claim. In Chatham- Kent (Municipality of) and C.A.W., Local 127,181 an Ontario arbitral decision, a caregiver at a health care facility created a website blog in which she made various inappropriate comments about colleagues, the employer and several patients. It is not clear how the employer
learned of this blog, but when it did, it accessed the blog and dis- 2015 CanLIIDocs 535 missed the employee for cause. Although the ruling fails to discuss whether the employer needed some justification for reading the blog (it was apparently assumed throughout that none was needed), there is some discussion of privacy in relation to the issue of mitigation of penalty. The employee argued that she was technologically inept and mistakenly thought the blog could be read only by three of her friends. The arbitrator rejected this argument and upheld the dis- missal, emphasizing that blogging is a “public” activity because the posts could be read by anyone with an internet connection,182 and finding that the employee was in any event “careless”183 for assuming they could not be read by the general public. Chatham-Kent was followed in Alberta and Alberta Union of Provincial Employees.184 The employee started a blog that was initially conceived as an “online diary,” which she thought would be a “safe place to put [her] thoughts.”185 In time, however, it became a forum in which she voiced her complaints about work. She made
180 See Chatham-Kent (Municipality of) and Canadian Auto Workers, Local 127 (2007), 159 LAC (4th) 321 (Williamson) [Chatham-Kent]; Alberta and Alberta Union of Provincial Employees (2008), 174 LAC (4th) 371 (Ponak) [Alberta and AUPE]; Canada Post Corp and Canadian Union of Postal Workers (2012), 216 LAC (4th) 207 (Ponak) [Canada Post and CUPW]. 181 Chatham-Kent, supra note 180. 182 Ibid at 332-333. 183 Ibid at 335. 184 Alberta and AUPE, supra note 180. 185 Ibid at 376.
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nearly a dozen offensive posts about her colleagues, managers and the job more generally. The employer was alerted to the blog by one of the employee’s colleagues, accessed it, and made copies of various posts which it used to justify dismissal. As in Chatham-Kent, the arbitration board assumed that the employer required no independent justification for accessing the blog, because it was quintessentially public and therefore not private: “That a blog is a form of public expression is, or ought to be, self-evident,” the award said, and “pub- licly displaying [an employee’s] opinions may have consequences within an employment relationship.”186 In the most recent case of this sort — Canada Post Corp. and Canadian Union of Postal Workers187 — the employee had made 2015 CanLIIDocs 535 numerous abusive and intimidating comments about her supervisors on Facebook. A supervisor was told by a colleague that unpleasant things were being said about her online, and she asked another man- ager to investigate. The latter, posing as a “friend,” gained access to the grievor’s Facebook page. Upon discovering the posts, she ordered further surveillance and catalogued the offending remarks. The employee was dismissed for insubordination. In upholding the dismissal, the arbitrator made a few general comments about the admissibility of such evidence. First, the award said, with refer- ence to the social media cases immediately above, that there was “ample case law” in support of “the principle that what employees write in their Facebook postings, blogs, and e-mails, if publicly dis- seminated and destructive of workplace relationships, can result in discipline.”188 This seems to say that employers are free to read an employee’s Facebook posts without any independent justification, partly because of the public nature of the material. Second, again in line with the social media cases, the award rejected the employee’s mitigation plea that she was not technologically savvy and did not realize that her posts could be read by people other than her friends. Although the arbitrator accepted her evidence on this point, he held
186 Ibid (interestingly, the board also stated, without elaboration: “Unless steps are taken to prevent access, a blog is readable by anyone in the world . . . .The Grievor took no steps to prevent access” at 412). 187 Supra note 180. 188 Ibid at para 101.
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that she had “demonstrated a degree of recklessness,” and that her misapprehension about who could read the posts did not “relieve her from the responsibility for what she wrote.”189 By making numerous colleagues her Facebook friends and thereby granting them express access to her posts from the beginning, the employee had “greatly increased the likelihood that her postings would be eventually dis- covered by management.”190 This appears to be something of a risk analysis rationale, in the sense that privacy can be lost if you run the risk that it may be violated. It also seems to look to the criterion of control, in that the arbitrator went on to observe that there was “nothing, for example, to prevent friends from forwarding a posting 191
to other friends.” 2015 CanLIIDocs 535
5. WHY SURVEILLANCE OF ONLINE BEHAVIOUR SHOULD REQUIRE INDEPENDENT JUSTIFICATION
We have traced the emergence of a broad consensus in the arbi- tral and data protection jurisprudence in favour of the reasonableness paradigm, which requires employers to show that it was reasonable to initiate the surveillance in question and that the surveillance was conducted in a reasonable way. Although this paradigm is routinely applied in cases of video surveillance (both on-site and off-site) and to at-work computer monitoring, we have seen that it is not being applied to employer monitoring of employees’ off-site, online activ- ities, such as blogs and Facebook posts. As we have also seen, one reason is that such online activities are not seen as private but as quintessentially “public,”192 while a second reason invokes the idea of recklessness — the idea that failing to take protective measures, or running the risk that privacy may be violated, is enough to forfeit a right to privacy.193
189 Ibid at para 109. 190 Ibid. 191 Ibid. 192 The first rationale is evident inChatham-Kent , supra note 180 at 332-333; Alberta and AUPE, supra note 180 at 412. 193 The second rationale is evident in Chatham-Kent, supra note 180 at 334-335; Canada Post and CUPW, supra note 180 at para 109.
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In this section we challenge these rationales, and suggest that many of the values underpinning privacy are indeed implicated in employer monitoring of employee online activity. As a result, it is wrong in our view to assume that such activity can never attract a privacy interest. Employers should always have to justify monitoring it, and the most sensible way to assess whether such justification has been made out is by applying the general principles of the reasonable- ness paradigm.
(a) Challenging the Rationales
The notion that online activities, by virtue of their public access- 2015 CanLIIDocs 535 ibility, are ipso facto public and not private is unconvincing. Defining “private” in binary opposition to that which is “public” is a logical mistake known as the “fallacy of bifurcation.”194 As Morris Engel has said: Because our language is full of opposites, the tendency to bifurcate is com- mon. We are prone to people the world with “haves” and “have-nots”, the “good” and the “bad”, the “normal” and the “abnormal” — forgetting that between these extremes lie numerous gradations, any of which could serve as alternatives to an either/or polarity.195 The same point has been made by Chief Justice Gleeson of the High Court of Australia, who said the following with respect to what qualifies as private information: “There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.”196
194 Morris Engel, With Good Reason: An Introduction to Informal Fallacies, 3d ed (New York: St Martin’s Press, 1986); note that an extended discussion of this article can be found in Hunt, “Privacy in the Common Law,” supra note 34. 195 Ibid at 135. See also Elizabeth Paton-Simpson, “Private Circles and Public Squares: Invasion of Privacy by the Publication of ‘Private Facts’ ” (1998) 61 Mod L Rev 318 at 324; c.f. Daniel J Solove, “Conceptualizing Privacy” (2002) 90:4 Cal L Rev 1087 at 1109. 196 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd, [2001] HCA 63 at para 42, 185 ALR 1.
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If exposure to public view automatically deprived one of a pri- vacy right, it would seem to follow that no such right could exist in any public place.197 But that position has been rejected by many courts — the Supreme Court of Canada,198 the House of Lords,199 the European Court of Human Rights200 and the New Zealand Court of Appeal201 — on the basis that whether a right to privacy arises must be influenced by the values underpinning that right, and that those values may be undermined by surveillance in public places. We will elaborate on this point below. The second rationale is equally unconvincing — the idea that courting the risk of invasion of privacy, or failing to take protective
measures, justifies the loss of privacy. This risk analysis approach 2015 CanLIIDocs 535 has been criticized by various academic commentators as being a non sequitur.202 As John Craig has argued, it seems to equate knowledge of the risk that privacy may be violated with consent to the viola- tion.203 David Feldman has observed that if the two were indeed the same, one could not claim property rights in lost airplane baggage because “we all know that bags are sometimes lost or stolen in tran- sit.”204 Moreover, it is worth emphasizing that this “risk analysis”
197 This is the position in most American states under the Restatement approach to the tort of intrusion upon seclusion: see Restatement of the Law, Second, Torts (American Law Institute, 1977) at para 652 B(c); Fogel v Forbes Inc, 500 F Supp 1081 (Pa) (“this tort does not apply to matters which occur in a public place or a place otherwise open to the public eye” at 1087). 198 Aubry v Éditions Vice-Versa, [1998] 1 SCR 591, 157 DLR (4th) 577 (invasion of privacy under Quebec’s civil law where innocuous photograph taken of woman sitting on steps of fountain). 199 Campbell v MGN Ltd, [2004] UKHL 22, [2004] AC 457 (invasion of privacy where paparazzi took photograph of supermodel on public street). 200 Von Hannover v Germany, no 59320/00, ECHR 2004-VI, [2005] 40 EHRR 1 (publication of photographs of Princess Caroline taken on street). 201 Hosking v Runting, 2004 NZCA 34, [2005] 1 NZLR 1 (reasonable expectation of privacy exists in relation to innocuous photograph taken of a celebrity’s child on public street). 202 See Hunt, “Privacy in the Common Law,” supra note 34 at 676-677, for a discussion with sources. 203 John D R Craig, “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997) 42:1 McGill LJ 355 at 396. 204 David Feldman, “Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty” (1994) 47:2 Curr Legal Probs 41 at 67.
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approach is inconsistent with well-established jurisprudence on rea- sonable expectations of privacy under section 8 of the Charter,205 and with the reasoning in R. v. Cole, the Supreme Court’s most recent privacy decision. In that case, the Court held that a teacher had a rea- sonable expectation of privacy in the contents of his employer-issued computer, even though he ran an obvious risk of monitoring because of annual notices from the employer that the computer’s contents were not private and could be searched without consent.206
(b) A Note on Maintaining a Privacy Interest in the “Public Domain” 2015 CanLIIDocs 535 We have noted that there is a conceptual flaw in defining “pri- vate” in opposition to “public,” and that many courts have accepted that a right to privacy can exist in public places. Before turning to discuss how the values underpinning privacy are implicated by online surveillance, we will offer a brief positive justification for main- taining a right to privacy in relation to information already in the public domain. It should be noted at the outset that the House of Lords and the European Court of Human Rights have both recently held that just as being in a public place will not automatically defeat a privacy claim, neither will the bare fact that the information was already publicly available.207 Respected commentators have explained why this must be right in principle, by pointing to specific privacy threats that can materialize in relation to surveillance of personal information in the public domain. One such threat is often referred to as the problem of “data aggregation.”208 Accessing a person’s Facebook page once, and only briefly, may not yield much personal information; but repeatedly
205 Poirier, supra note 70. 206 Supra note 80. 207 OBG Ltd v Allan, [2007] UKHL 21 at para 225, [2008] 1 AC 1; c.f. Douglas v Hello! Ltd (No 8), [2005] EWCA Civ 595 at para 106, [2006] QB 125 (CA); Von Hannover v Germany (No 2), nos 40660/08 & 60641/08, § 111 ECHR 2012, [2012] 55 EHRR 15 [GC]. 208 See Lisa Austin, “Privacy and the Question of Technology” (2003) 22 Law & Phil 119; c.f. Daniel J Solove, “ ‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy” (2007) 44 San Diego L Rev 745 at 766.
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accessing it, and systematically storing the information, can result in a much fuller (and often more intrusive) picture of the victim.209 The problem is exacerbated when seemingly innocuous information is collected from multiple sources and recombined, like a jigsaw puzzle, to bring out a story that the victim would not have willingly disclosed in toto.210 A related problem is that of “out of context judging”: some- one may be happy to share personal information with one group and for one purpose, but not with a different group and for a different purpose. A person who cannot be sure that a communication will remain in its intended context is likely to avoid making it in the first place. This has profound implications for the exercise of autonomy,
which we now turn to discuss. 2015 CanLIIDocs 535
(c) Privacy Values Implicated in Online Activities
Commentators have emphasized that resolving privacy prob- lems in cases of electronic monitoring requires concentrating on the values underpinning privacy,211 on which there is a wealth of socio- legal literature.212 A thorough discussion of that literature is well out- side the scope of this paper, but this section will strive to highlight
209 See Austin, supra note 208 (the “compilation . . . [and] aggregation of informa- tion can yield inferences about a person that may fall within the private sphere even if the individual pieces of information do not themselves attract a privacy interest” at 162). 210 See X, Y Children, [2004] EWHC 762 (Fam), [2004] EMLR 29 (endorsing this “jigsaw” approach, and holding that a privacy interest exists where mul- tiple public records are assembled about a person); c.f. Rataru v Romania, no 28341/95, ECHR 2000-V (privacy interest implicated where public records about applicant’s past were systematically collected). 211 See Avner Levin, “Dignity in the Workplace: An Enquiry Into the Conceptual Foundation of Workplace Privacy Protection Worldwide” (2009) 11:1 ALSB Journal of Employment and Labor Law 63; Lisa M Austin, “Reviewing PIPEDA: Control, Privacy and the Limits of Fair Information Practices” (2006) 44 Can Bus LJ 21; Jonathon W Penney, “Privacy and the New Virtualism” (2008) 10 Yale Journal of Law and Technology 194. 212 For a detailed discussion of leading commentators, see Chris DL Hunt, “Conceptualizing Privacy and Elucidating Its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort” (2011) 37:1 Queen’s LJ 167 at 201-217.
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some of those values and to show how they may be implicated by online surveillance. Many commentators have offered deontological arguments in favour of privacy. These are rights-based arguments, emphasizing the intrinsic value of privacy and exploring its relationship to the concepts of dignity, autonomy and personhood which are said to underpin it. The concept of human dignity is often framed with reference to the Kantian moral imperative to treat people as ends in themselves, rather than as means to some other end,213 and is often seen as being intertwined with autonomy. Writers have frequently explored the nuanced and subtle ways in which invasions of privacy offend both 214
dignity and autonomy. For our purposes, it suffices to mention two 2015 CanLIIDocs 535 points. First, covert surveillance has been aptly described as inher- ently offensive to human dignity because it “transforms the self from subject to object,”215 thereby treating people as “objects or speci- mens” and not as “subjects with sensibilities, ends, and aspirations of their own.”216 Second, covert surveillance also undermines human autonomy, because people who do not know they are being watched lose the opportunity to choose how to present themselves to others.217 Sociologists have long known that people consciously display differ- ent aspects of their selves in different contexts, and that this display affects their own identity formation.218 Information happily shared with friends is often very different than that shared with an employer. Recent sociological research on online behaviour has found that
213 See ibid for a discussion with sources. 214 Ibid. 215 Jeffrey Rosen, “The Purposes of Privacy: A Response” (2001) 89:6 Geo LJ 2117 at 2124. 216 Stanley Benn, “Privacy, Freedom and Respect for Persons” in John Chapman & Roland Pennock, eds, Privacy (New York: Atherton, 1971) 67; Ruth Gavison, “Privacy and the Limits of Law” (1980) 89:3 Yale LJ 421 at 455. 217 Jeffrey Reiman, “Privacy, Intimacy, and Personhood” (1976) 6:1 Philos Public Aff 26 at 36-39. 218 The seminal, and still the most influential, sociologist in this field is Erving Goffman. He pioneered what is known as the “symbolic interactionist” school, which holds that people are socially constructed through a combination of the “demeanour” they project and the “deference” shown to them by others. See Erving Goffman, Interaction Ritual: Essays on Face-to-Face Behaviour (California: Transaction Publishers, 1967).
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Facebook in particular is a powerful (indeed, increasingly indispens- able) tool for managing one’s evolving efforts at self-presentation and consequently the individual’s continued identity formation,219 and that most users do not understand “privacy settings” and do not realize who can access their online information.220 If an employer sur- reptitiously accesses an employee’s Facebook page without informed consent, the employee is deprived of a rational choice on how to present himself or herself to the employer. Such a deprivation is a direct assault on human autonomy. As Stanley Benn has said about covert surveillance in general, “[i]t deliberately deceives a person about his world, thwarting, for reasons that cannot be his reasons, his 221
attempts to make a rational choice.” 2015 CanLIIDocs 535 Dignity and autonomy are closely related to the concept of “per- sonhood,” the third major deontological value often referred to as underpinning privacy. David Feldman has argued that developing a capacity to exercise genuine autonomy requires that people take themselves seriously as independent moral actors — as persons who are deserving of individual respect and are able to make per- sonal decisions that will be respected.222 Similarly, Jeffrey Reiman described privacy as a “precondition to personhood,” because it is through respect for an individual’s privacy that other people com- municate to her that her existence is her own — that she is worthy of respect, and has “moral title” as an individual who is part of but distinct from the mass of society.223 Drawing on Goffman’s “social interactionist” approach, Reiman argued that unwanted intrusions into private spaces undermine one’s subjective appreciation of her own personhood (meaning her title to control such access), which
219 See José van Dijck, “You Have One Identity: Performing the Self on Facebook and LinkedIn” (2013) 35:2 Media, Culture & Society 199; c.f. Penney, supra note 211 at 216-220. 220 See Bernhard Debatin, Ann-Kathrin Horn & Brittany N Hughes, “Facebook and Online Privacy: Attitudes, Behaviors, and Unintended Consequences” (2009) 15:1 Journal of Computer-Mediated Communications 83. 221 Benn, supra note 216 at 10-11; Hyman Gross, “Privacy and Autonomy” in John Chapman & Roland Pennock, eds, Privacy (New York: Atherton, 1971) at 24 (secret surveillance removes the opportunity to deploy “editorial efforts” in deciding how to present oneself to a given audience). 222 Supra note 204 at 54-55. 223 Supra note 217 at 36-44.
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stifles her capacity to exercise meaningful choices in the future and produces behavioural conformity.224 Jonathon Penney argued in detail that “traditional concern[s] for autonomy and decisional privacy — ideas linked to privacy and personhood — apply to cyberspace as much as real space.”225 Given the fundamental role that sites such as Facebook play in people’s self-presentation efforts, and hence in their identity formation, it is hard to quarrel with this view.226
6. CONCLUSION
Over the past decade, something of a consensus has emerged on
the general principles applicable to the electronic employer monitor- 2015 CanLIIDocs 535 ing of employee activities, whether through video surveillance (both on-site and off-site) or through the monitoring of at-work computer and e-mail use. Arbitral jurisprudence and various data protection regimes have evolved together in a largely consistent manner around two basic principles. The first is that surveillance is inherently offen- sive, and so must be justified. The second is that this justification is best approached by balancing the employer’s right to manage its workplace against the employee’s interests in privacy. This “reason- ableness paradigm” is highly contextual, and hence not susceptible
224 Ibid at 40-41 (discussing Goffman’s discussion of the “panoptic effect,” in which prisoners subjected to periodic surreptitious surveillance experience a lack of autonomy and soon act in near-total conformity). Similar points have been made by other influential commentators; see Robert C Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort” (1989) 77:5 Cal L Rev 957 at 962; Edward J Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 NYUL Rev 962 at 1002-1003. 225 Penney, supra note 211 at 236. 226 For empirical accounts of the importance of social networking sites to identity formation, and of how users see unwanted intrusions into those sites as privacy violations, see Debatin, Horn & Hughes, supra note 220; van Dijck, supra note 219; c.f. Valerie Steeves, “If the Supreme Court Were on Facebook: Evaluating Reasonable Expectations of Privacy from a Social Perspective” (2008) 50:3 Canadian Journal of Criminology and Criminal Justice 331 at 338 (empirical studies confirm that young people in particular “have seamlessly integrated the internet into their social lives” — that social networking sites are not viewed as “separate and apart from their other social activities,” but as “simply part of their social world”).
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to an exhaustive listing of factors that must be considered. However, there is broad agreement that where monitoring is done surrepti- tiously, the employer must first demonstrate some real need to deploy surveillance (beyond mere performance monitoring), and must then demonstrate that the surveillance has been done in a reasonable and proportionate way, having regard to such matters as these:
• In the case of online postings, how the employer obtained access to them. • The sensitivity of the information collected. • How much information was collected.
• The likely effectiveness of the surveillance in meeting the employ- 2015 CanLIIDocs 535 er’s objectives. • Whether there were less privacy-intrusive ways to attain those objectives. • Whether the surveillance was overt or covert.
Recent cases on employer surveillance of an employee’s off- site online activities, particularly Facebook and blog postings, have departed from this approach. In these cases, the consideration of pri- vacy rights has been notably absent. The reasoning used appears to revert to what Bueckert has called the earlier “relevance paradigm,” which holds that such surveillance does not require independent justi- fication and can be used to support employer discipline of employees, so long as the employee conduct in question has some bearing on the employee’s obligations to the employer. The failure to apply the reasonableness paradigm in these cases is likely due to the adjudica- tors’ belief that such online activities are inherently public rather than private, and to the view that engaging in those activities indicates a reckless disregard of privacy concerns. In this paper, we have argued that neither of these rationales is persuasive, and that many of the deontological interests underpinning privacy rights in general may be engaged by online activities. If these arguments have merit, it is wrong to assume that there should be no privacy rights in online activities. Instead of carving out a special category of law for those activities, a better approach, we argue, is to align the inquiry with the reasonableness paradigm that is routinely applied to every other type of electronic surveillance.
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03_Hunt&Bell.indd 458 15-03-24 10:56 AM The Other Side of the Balance: Employer Interests, Work Systems and R. v. Cole
Dan Michaluk*
1. INTRODUCTION
In October 2012, the Supreme Court of Canada issued a deci- sion much-anticipated by Canadian employers. In R. v. Cole,1 it affirmed an Ontario Court of Appeal holding that a schoolteacher had 2015 CanLIIDocs 535 a reasonable expectation of privacy in a work-issued laptop. Some hailed the ruling as a landmark.2 But does Cole signal a significant shift in workplace rights and obligations? This short essay — written from the perspective of counsel to employers — explains why the answer to this question is “no.” Cole recognizes a significant new pri- vacy interest, but also establishes a strong foundation for continued employer access to information stored on work systems.
2. IRREGULAR TRAFFIC PATTERN LEADS TO DISCOVERY – THEN TO LITIGATION
The background to Cole is now well known. A school board noticed an irregular traffic pattern on its network. It followed up by remotely examining a laptop connected to its network and found photographs it believed to be child pornography. This led the board to confiscate the laptop and report the matter to the police. The police received and searched the laptop (and a CD-ROM created by the
* Hicks Morley Hamilton Stewart Storie LLP. Counsel to the Canadian Association of Counsel to Employers in R v Cole. 1 2012 SCC 53, [2012] 3 SCR 34 [Cole SCC]. 2 Cristin Schmitz, “Some digital privacy due on work devices,” The Lawyers Weekly (2 November 2012), online:
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board) without obtaining a warrant. They criminally charged the teacher to whom the board had issued the laptop. In a March 2011 judgment, the Court of Appeal for Ontario concluded that the teacher had a reasonable but diminished expect- ation of privacy, and that the police had, accordingly, breached the teacher’s Charter rights.3 This holding was troubling to employers. In recognizing that the accused teacher had a Charter-protected privacy interest, the Court gave great weight to his exclusive possession of the laptop. He had it in his exclusive possession on weekends, the Court said.4 The laptop had a password to keep others out, it also said.5 This analysis, in the view of employers, did not properly account
for the board’s interest in the laptop, which was issued for a work-re- 2015 CanLIIDocs 535 lated purpose as part of an integrated business information system. The Court of Appeal for Ontario had recognized an employee interest that would potentially compete with important employer interests. Employers felt that the Court’s basis for recognition was erroneous and would create difficulty in maintaining the control they tradition- ally enjoyed in administering work IT systems.6
3. THE CONTEXT FOR EMPLOYERS’ CONCERN
Employers faced the Court of Appeal’s decision at a time when they were (as they continue to be) under significant pressure to effect- ively govern their information systems. The pressure on employers is, in part, increasing because of external data security risks. The United States executive branch of government has, for the past several years, urged businesses controlling critical infrastructure to accept that they are a target for “cyber terrorists” and to prepare accordingly.7 At the same time, according to experts in the insurance industry, address- ing the risk of cyber liability has become a priority for business
3 R v Cole, 2011 ONCA 218, 105 OR (3d) 253. 4 Ibid at paras 36 & 45. 5 Ibid at para 45. 6 See Dan Michaluk, “Employer Access to Employee E-mails in Canada” (2009) 6:10 Canadian Privacy Law Review 93. 7 See Barack Obama, “Taking the Cyberattack Threat Seriously,” Wall Street Journal (19 July 2012), online:
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leaders.8 The intense threat now facing business is driving employers to adopt multi-pronged strategies that rest on strong knowledge of network activity — activity undertaken by employees.9 Significantly, the employee behaviour of concern to employers is not necessarily malicious in nature; the major security breach that affected Target in 2013 was reportedly spawned by a “phishing” attack, whereby unsuspecting employees of a Target contractor were tricked into pro- viding unauthorized access to an outsider.10 The drive towards more effective system governance also springs from repeated events that vividly demonstrate the conse- quences of loosely enforced policies and lax practices. In June 2014,
for example, the Ontario Superior Court of Justice certified a class 2015 CanLIIDocs 535 action that claimed damages for a bank employee’s unauthorized dis- tribution of personal information.11 The Court stressed that “[i]n this case, the Bank had the ability to monitor Wilson’s activities and yet the Bank admitted that it has done nothing to supervise the activ- ities of its employees, including Wilson, with regards to the access of customers’ confidential information for improper purposes.”12 Statements like this underscore the employer interest at stake in defin- ing the legal right to conduct IT system surveillance and to otherwise access IT system data.
4. THE INTERVENTION BY EMPLOYERS
Given the employer interest in effective system governance, the Canadian Association of Counsel to Employers (CACE) had a strong basis for intervening to address the perceived flaws in the Ontario
8 See Lloyd’s Risk Index 2013 (2013), online: Lloyd’s
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Court of Appeal’s judgment.13 Many are surprised to learn that CACE did not take a position on the Court’s decision that the accused had a reasonable but diminished expectation of privacy in the content of his work-issued computer.14 This was partly because that holding would have been difficult to challenge; the record was not favorable to a “no privacy” argument.15 It had also been clear for some time that values were shifting in favour of recognition of a work system privacy inter- est. Even before the Court of Appeal’s decision in Cole, case law was suggestive of a soon-to-be-made adjustment.16 More importantly, the finding that there existed a reasonable expectation of privacy had (and continues to have) little practical sig-
nificance to employers. Employers care that their work systems func- 2015 CanLIIDocs 535 tion as designed and are secure. In addition, employers care that they have access to information stored on their work systems as required. The most direct position for CACE, therefore, was to explain to the Supreme Court of Canada how the teacher’s laptop was part of an integrated business information system and to tell the Court, quite bluntly, what employers need — clear and unfettered access to sys- tem information for a variety of legitimate purposes.17
13 The Canadian Association of Counsel to Employers is an association of manage- ment-side labour and employment lawyers across Canada. CACE promotes excellence in the specialized field of labour and employment law, and engages in legislation and law reform activities at the provincial and federal level. 14 See Factum of the Canadian Association of Counsel to Employers, filed in the Supreme Court of Canada on 5 April 2012, online:
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CACE spelled out what was at stake for employers by making the following points about work information systems:
(1) A work information system is made up of a network of comput- ers. Computers issued to employees are part of the network and need to be governed as part of the network. (2) A work information system is a critical component of an employ- er’s business infrastructure. Its function is to enable employees to communicate with each other in the course of work, to communi- cate externally in the course of work and to engage in productive work.
(3) A work information system is a repository of information about 2015 CanLIIDocs 535 virtually all the activities of an organization — its communica- tions, its transactions and its intellectual property. Employers must control the information on their systems and keep it secure. (4) The value to employers of information stored on a work infor- mation system depends on their having access to it for a range of important purposes.18
CACE explained how the Court of Appeal for Ontario’s reasoning did not adequately reflect these points and asked the Court to re-balance employer and employee interests to leave employers with a broad right of access to system information.19
5. THE SUPREME COURT OF CANADA JUDGMENT
The Supreme Court of Canada’s holding on the question of a reasonable expectation of privacy is remarkably simple; if an employer permits or can reasonably expect personal use on its work system, employees will have a reasonable but diminished expectation of privacy.20 There is little left to dispute about employee expectations
18 Ibid at para 5. See Robichaud v Canada (Treasury Board), [1987] 2 SCR 84 at 95, 40 DLR (4th) 577 and Poliquin v Devon Canada Corp, 2009 ABCA 216 at paras 46-47, 454 AR 61 for judicial statements supporting employers’ responsib- ility for maintaining an orderly and well-controlled environment. 19 CACE Factum, supra note 14 at para 28. 20 Cole SCC, supra note 1 at para 1.
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now, and though some employers might not like the finding, the Supreme Court of Canada has given employers clarity. The Supreme Court of Canada also “calibrates” the expectation in a much more favourable manner than the Court of Appeal did in its ruling. The expectation of privacy is no longer supported by the flawed notion of exclusive possession. Instead, the Court recognizes that the extent of the privacy interest here was “diminished,” because while “Mr. Cole’s laptop was equipped with a password, the contents of his hard drive were . . . available to all other users and technicians with domain administration rights — at least when the computer was connected to the network.”21 It notes that the employer’s policy and
“technological reality” deprived [the employee] of exclusive control 2015 CanLIIDocs 535 over — and access to — the personal information he chose to record [on a work system].”22 This view, which reflects CACE’s submis- sions, led the Court to expressly acknowledge that the circumstances affecting the employee privacy interest “pull in competing direc- tions.”23 In the end, while finding that the employee privacy interest was significant enough to warrant Charter protection, the Court also suggested that the circumstances had the effect of diminishing if not entirely eliminating that interest.24 Employees clearly have enough of a privacy interest to be protected from warrantless searches by the police in a criminal context, but it is not much of a privacy interest when weighed against employers’ interests. Although the Supreme Court of Canada did not make any prin- cipled pronouncement about employers’ interests, it demonstrated sensitivity to employers (1) by expressly setting apart the question of employers’ interest in “monitoring” from its ruling on the expectation of privacy issue25 and (2) by affirming that the school board’s actions were reasonable (even though the reasonableness of the school board’s actions was not challenged on appeal).26 By taking this latter step, the Court gave Charter-bound employers some idea about the standard of justification they will face for “searches” of information
21 Ibid at para 56. 22 Ibid at para 54. 23 Ibid at para 57. 24 Ibid at para 58. 25 Ibid at para 60. 26 Ibid at paras 62, 63.
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on their systems. We know, for example, that government (acting as employer) will not likely require judicial authorization or even express statutory authorization to access personal information stored on its work systems. Further articulation of management rights will come in time.27
6. MANAGEMENT RIGHTS GOING FORWARD
The Cole decision establishes a strong foundation for continued employer access to information stored on work systems. This is due in part to the fact that the privacy interest recognized by the Supreme
Court of Canada is so limited. Moreover, by paying proper attention 2015 CanLIIDocs 535 to the creation and enforcement of workplace policies, employers will be able to defend their practices by arguing that they have a superior interest that should prevail over employees’ interest, particularly where the employees have made an informed choice about whether to pursue non-work-related activities on employer systems. As CACE argued in Cole, personal use of a work system is, by its very nature, secondary and a privilege — a convenience to employees and an alternative to using a home computer or a person- ally-owned device. The reasonable employee understands that there is a consequence to intermingling work product and personal informa- tion. He or she takes advantage of the convenience of personal use for less sensitive personal computing needs and uses a home computer or personally-owned device before engaging in activities that should remain private. To argue that an employer should be precluded from acting in its own legitimate interest because an informed employee has chosen to expose his or her information to the employer’s stated monitor- ing practices is to suggest that personal use of employer-maintained, confidential computing services is itself a right. This will be a very hard argument for employees and unions to make in light of Cole, especially given the Court’s recognition that an employee’s choice to
27 Charter-bound employers should look to the Supreme Court of Canada’s deci- sion in R v M (MR), [1998] 3 SCR 393, 166 DLR (4th) 261 for a favourable articulation of the search standard that applies in an “orderly environment.”
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expose his or her personal information to employer scrutiny weighs against that employee’s assertion of an expectation of privacy. This is why, since Cole was issued, prudent employer counsel have advised their clients to revisit their workplace policy with a view to being more transparent about their need to access system information. Though a wide range of employer practices should be expected by “the reasonable employee” who has not been given express warning, employers who strive for transparency should fare quite well in man- aging the newly recognized expectation of privacy. 2015 CanLIIDocs 535
04_Michaluk.indd 466 15-03-24 10:56 AM The Changing Dimensions of Privacy in the Workplace: Legal Rights and Labour Realities
Emma Phillips*
This paper explores what the author sees as two important trends in recent privacy law decisions by Canada’s highest courts, and considers the implications of those trends for privacy rights in the workplace. The first trend, the author argues, is a clear affirmation that employees have a reasonable
expectation of privacy in the workplace — an expectation that is inherent in an 2015 CanLIIDocs 535 individual’s human dignity and autonomy, and that does not need to be expressly bargained or negotiated. As a result, it can no longer be maintained, as some adjudicators did, that there is no juridical basis in the common law on which to ground a right to privacy. The second trend is an increasing recognition of a right to informational privacy (as distinct from a right to bodily or to territorial privacy), understood as an individual’s ability to control how information about him or her is communicated to others. As the paper explains, questions about the protection of informational privacy in the employment context have been brought to the fore by the proliferation of information technology in the workplace, and by the increased blurring of lines between employees’ professional and private lives. The author concludes that, going forward, the challenge will be to define more precisely the scope of employees’ rights to privacy, particularly in relation to the employer’s legitimate operational interests, and to determine appropriate remedial responses in the event of a breach of such rights.
1. INTRODUCTION
Over the last three years, Canadian courts have released a spate of significant decisions addressing the privacy rights of Canadians, and the rights of Canadian employees in particular. From the Ontario Court of Appeal’s recognition of the tort of invasion of privacy in Jones v. Tsige,1 to the Supreme Court of Canada’s discussion of the meaningful nature of the personal information captured on employer-owned computers in R. v. Cole,2 these decisions reflect an
* Sack Goldblatt Mitchell LLP. The author would like to thank Pam Chapman for her insightful comments and attentive reading of an earlier draft of this paper. 1 Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241 [Jones]. 2 R v Cole, 2012 SCC 53, [2012] 3 SCR 34 [Cole].
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increasing consciousness of the impact of the proliferation of infor- mation technologies in the workplace, as well as a recognition of the blurring of lines between work and home, and between professional and private life.3 Viewed as a whole, these recent decisions arguably reflect two important trends in Canadian law. First, the cases demonstrate a clear recognition by the country’s highest courts that employees enjoy an inherent right to privacy in the workplace. Whereas adjudicators have long debated whether a “right” to privacy could be said to exist in the absence of a specifically negotiated entitlement or a statutory right to privacy, there is now a growing consensus that privacy is an inherent
human right integral to personal autonomy. This right is not “checked 2015 CanLIIDocs 535 at the door” of the workplace, although it must be balanced against the employer’s legitimate business interests, and there remains con- siderable debate about the appropriate remedy to address violations of employee privacy rights. While these decisions are largely focused on unionized workplaces, such findings must necessarily translate to all Canadian workers, even if the legal avenues for non-unionized workers to enforce their privacy rights are more limited.4 Second, the cases arguably reflect a significant shift in the kinds of privacy concerns that are arising in the contemporary workplace, as the focus shifts from the personal and territorial privacy of employees to new concerns relating to their informational privacy. In the face of the ever-more pervasive use of information technologies in the workplace, such as smart phones and personal computers, arbitrators and courts are paying more attention to defining the scope of the right of employees to control how their personal information is accessed,
3 See also Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper Ltd, 2013 SCC 34, [2013] 2 SCR 458 [Irving Pulp & Paper]; Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 SCR 733 [UFCW] (con- firms the right to privacy, although not in the context of information technology). 4 As discussed in greater detail below, the recognition by the Ontario Court of Appeal of the tort of intrusion upon seclusion provides individual employees with a new avenue for protecting their privacy rights vis-à-vis their employer. However, the usual impediments to court action, such as the expense of litigation and the reality that few employees will want to bring a suit against their current employer, means that this civil form of redress is unlikely to become a particularly effective mode for protecting employee privacy rights in the non-unionized context.
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used and disseminated. These concerns are brought to the fore by the way in which such technologies encourage not only the free flow of data, often including employee information of a highly personal nature, but also by the ease with which employers can now intrude upon the private thoughts and interests of employees. Thus, while earlier privacy cases tended to be motivated by more conventional concerns about the privacy of the body5 or the right of employees to privacy in particular spaces,6 recent cases reflect a more complex consideration of the scope of the employer’s right to know about, and intrude upon, the privacy of the thoughts, interests and aspirations of their employees. 2015 CanLIIDocs 535 2. INFORMATION TECHNOLOGY AND THE CHANGING NATURE OF THE CANADIAN WORKPLACE
Canadian workplaces have become increasingly saturated with information technologies such as smart phones, laptops, tablets, and other electronic communicative devices, many of them connected to the internet. Such devices not only enable more efficient work- related communications, but may also “untether” the worker from the physical workplace, allowing for a wider range of work activities outside of a traditional office space or plant. As information technol- ogies become cheaper and therefore more pervasive, the boundaries between personal and professional time become increasingly porous. The more employers expect their employees to be available to work outside of the conventional workplace and/or work schedule, the more likely it is that employees will carry out personal activities while at work in order to be able to manage their day-to-day home responsibil- ities.7 These activities will frequently occur on employer-provided
5 For example, in relation to physical searches or requirements to provide bodily samples for drug and alcohol testing. 6 Such as the home, or other areas where employees might claim to have a reason- able expectation of privacy, particularly during off-duty hours. 7 For example, by conducting online banking or engaging in private communica- tions with friends and family while at work. Similarly, as more employees work in flexible arrangements such as working from home, the more likely they are to be engaging in work activities on personal electronic devices, or to be mixing work and home activities.
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information-technology (IT) equipment — technologies that facilitate communication but also capture and record vast amounts of personal information and allow for greater employer access to that information. In the face of these ever-more blurred lines between work and home, and between personal expression and workplace obligations, clarifying the scope of employee rights to informational privacy has become an increasingly pressing priority. The Ontario Court of Appeal, finding that the time has come to recognize a stand-alone tort of invasion of privacy, commented that the evolution of informa- tion technology has given rise to “[a]n enormous change in the way we communicate and in our capacity to capture, store and retrieve 8
information.” This dramatic shift in the organization of information 2015 CanLIIDocs 535 demands an equally significant shift in the available analytical frame- works and legal tools. While concerns about the capturing of personal information through surveillance technology are by no means restricted to the workplace — recent revelations about the monitoring of electronic communications by the United States National Security Agency being a prime example — the employer-employee relationship is one area in which there is a “[p]ressing need to preserve ‘privacy’ ”9 in the face of rapid technological development. Not only do most Canadians spend more time at work — whether or not in a traditional workspace — than they do anywhere else, but the increasing acqui- sition of high-tech IT resources by employers for use by employees creates a constant tension between employee privacy interests and employer concerns about how, and for what purposes, their equip- ment is being used.10 These tensions are not new, and labour arbitrators and pri- vacy commissioners have for some time wrestled with finding an
8 Jones, supra note 1 at para 67. 9 Ibid, citing Peter Burns, “The Law and Privacy: The Canadian Experience” (1976) 54:1 Can Bar Rev 1 at 1. 10 Ironically, a new trend towards “Bring Your Own Device” (BYOD) policies is creating more complex privacy concerns. Under these policies, employees are permitted, or even encouraged, to use their own personal electronic devices for work purposes in exchange for subsidised rate-plans from the employer. Where such policies are in place, the right of employers to access or monitor the employee’s personal device is even less clear.
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appropriate balance between employee privacy interests and the employer’s right to manage the workplace. Nevertheless, recent state- ments by Canada’s top courts are significant as a clear articulation of two trends in the law. First, the cases indicate that there can no longer be any doubt that employees enjoy a reasonable expectation of privacy in the workplace. Second, those cases highlight how IT resources both facilitate and capture highly personal and meaningful expression, raising new and complex considerations with respect to the scope of the right of employees to control how their information is accessed, used and disseminated by their employers. This paper will explore each of these points in turn. 2015 CanLIIDocs 535 3. AN END TO THE DEBATE – THE INHERENT RIGHT TO PRIVACY IN THE WORKPLACE
Over the last thirty years, labour adjudicators debated whether or not Canadian employees could claim an inherent right to privacy in their employment relationships, or whether this was an entitle- ment that had to be specifically negotiated as a term or condition of employment.11 Adjudicators tended to start from one of two fun- damentally different positions when assessing employee privacy. A majority of labour arbitrators simply asserted that employees have an undoubted right to privacy,12 integral to human dignity and which does not need to be expressly negotiated,13 without locating the right in any particular juridical foundation. These arbitrators generally adopted a balancing approach, weighing the employee’s right to privacy against the employer’s legitimate interests in operating the
11 This debate largely took place outside of Alberta, British Columbia and Quebec, jurisdictions which have established a broad-based statutory right to privacy. 12 See e.g. Riverdale Hospital v CUPE, Local 43 (1977), 14 LAC (2d) 334 at para 16 (Brent), cited in Canada Post v Canadian Union of Public Employees (1988), 34 LAC (3d) 392 (Bird). 13 See generally Toronto Transit Commission v Amalgamated Transit Union, Local 113 (Belsito) (1999), 95 LAC (4th) 402 (Chapman); Toronto Transit Commission v Amalgamated Transit Union, Local 113 (Lacaria) (2004), 126 LAC (4th) 353 (Shime) (for a comprehensive overview of the history of this debate).
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workplace in an efficient and productive manner.14 A classic formula- tion of this view was expressed by Arbitrator Ellis in Puretex Knitting Co. Ltd. v. Canadian Textile Chemical Union,15 which considered the legality of surveillance cameras in the workplace: In the use of electronic surveillance, it is apparent that we confront conflicting social values of considerable significance. There is on the one hand the principle of the right to privacy and beyond that the more general idea, of which the right to privacy is only one facet, of the crucial importance of preserving and nurturing the historically fragile concept of human dignity. The Orwellian construct of the ultimately socialized man and, as suggested in the EICO case, the programmed factory of Chaplin’s “Modern Times” are widely accepted in this society as classic illustrations of a world gone wrong — of
anti-human societal tendencies. Electronic surveillance is the ultimate social- 2015 CanLIIDocs 535 izing device and the public controversy which always attends its use attests to people’s instinctive identification of its fundamentally anti-human character. On the other side of the issue are simply considerations of efficiency in dealing with social problems.16 For Arbitrator Ellis, the “anti-human” character of surveillance was obvious and did not need further legal support, although such inter- ests must still ultimately be balanced against the competing con- siderations of the employer’s operational concerns. In Puretex, for example, Arbitrator Ellis ordered that certain cameras installed by the employer in the production areas of the workplace had to be removed because they put the employees under almost constant surveillance, whereas cameras that had been installed in the storage, loading dock and parking areas were appropriate because of documented problems with theft and employee safety, and because employees were only being recorded for short periods of time. Thus, Arbitrator Ellis held that while the use of cameras to monitor employees at work is “intrin- sically objectionable,” the “degree of objection” to the cameras will depend on the way the cameras are deployed and the purposes for which they are used.17
14 For example, by instituting technologies to deter or prevent theft, ensure a safe and harassment-free workplace, and/or to protect the integrity and security of the employer’s computer networks. 15 (1979), 23 LAC (2d) 14 at 30 [Puretex]. 16 Ibid at 29. 17 Ibid at 30.
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A minority of arbitrators, however, started from a fundamentally opposing position, taking the view that there is no legal foundation to assume a “right” to privacy, and that any privacy protection must therefore be negotiated as an express term and condition of employ- ment. Proponents of this position held that arbitrators are not per- mitted to make up a right out of thin air, but must locate the right to privacy in some specific body of law.18 In the absence of a sound legal foundation, there exists no legally enforceable right to privacy unless and until the individual employee or union bargains such a right into the employment contract or collective agreement. Arbitrators who adopted this approach also generally expressed reluctance to exclude
evidence that might have been obtained in violation of privacy rights 2015 CanLIIDocs 535 on the basis that even if a right to privacy does exist, a breach of such a right is not a foundation on which to exclude relevant and probative evidence. This debate over the admissibility of evidence obtained in violation of the right to privacy, and the ability of arbitrators to enforce a meaningful remedy in such circumstances, is ongoing in the arbitral case law and has not been clearly resolved.19
18 Section 8 of the Charter only protects the right of individuals to be free from unreasonable search and seizure vis-à-vis the state and bears no relevance to employer conduct, unless the employer is a government body. Until very recently, the common law had not recognized a tort of invasion of privacy and most provinces do not have broad-based legislation creating a statutory right to privacy in the private sector. 19 In general, this debate has been characterized by two opposing views. Some arbitrators have applied a “reasonableness test,” holding that if it was not reason- able for the employer to initiate the surveillance, and if the surveillance was not conducted in a reasonable manner, the resulting evidence should not be admitted: see e.g. Doman Forest Products Ltd v International Wood and Allied Workers of Canada, Local 1-357 (1990), 13 LAC (4th) 275 at 281-282 (Vickers). A minority of these arbitrators have also asked whether or not the employer used alternative methods of investigation before resorting to surveillance. At the other end of the spectrum, some arbitrators have been reluctant to exclude relevant and probative evidence, even in the face of a breach of privacy. See e.g. Kimberly-Clark Inc v Industrial Wood and Allied Workers of Canada, Local 1-92-4 (1996), 66 LAC (4th) 266 (Bendel) [Kimberly-Clark]. See generally, Morton Mitchnick & Brian Etherington, Leading Cases on Labour Arbitration, 2d ed (looseleaf) (Toronto: Lancaster House, 2011) (an in-depth review of this debate).
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Following the recent decisions in Jones v. Tsige, R. v. Cole, Irving Pulp & Paper,20 and Alberta (Information and Privacy Commissioner) v. UFCW,21 however, it is now clear that there does exist a strong juridical basis upon which to ground the right to pri- vacy, and there should no longer be any doubt that Canadian employ- ees have a reasonable expectation of privacy in the workplace.
(a) Jones v. Tsige
In its 2012 decision in Jones v. Tsige, the Ontario Court of Appeal affirmed that a party may bring a civil action for breach of
privacy — the first such holding in Canada. The parties, Sandra 2015 CanLIIDocs 535 Jones and Winnie Tsige, were both employees at the same bank and, in 2009, Jones discovered that Tsige had surreptitiously looked at her personal banking records at least 174 times over four years.22 Although the two women did not know each other, Tsige had formed a common-law relationship with Jones’ former husband.23 Jones asserted that her privacy interest in her confidential banking infor- mation had been “irreversibly destroyed” and claimed damages for invasion of privacy and breach of fiduciary duty, as well as punitive and exemplary damages.24 In assessing Jones’ claim, the Court of Appeal adopted the approach of American jurisprudence which has recognized four dis- tinct branches to the tort of invasion of privacy:
(1) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. (2) Public disclosure of embarrassing private facts about the plaintiff. (3) Publicity which places the plaintiff in a false light in the public eye. (4) Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.25
20 Supra note 3. 21 Supra note 3. 22 Jones, supra note 1 at para 4. 23 Ibid. 24 Ibid at para 7. 25 Ibid at para 18, citing William L Prosser, “Privacy” (1960), 48 Cal L Rev 383 at 389.
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If upheld, the Court found, Jones’ claim would fall into the first cat- egory of “intrusion upon seclusion,” which captures the conduct of “[o]ne who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns . . . if the intru- sion would be highly offensive to a reasonable person.”26 The Court noted that the question of whether the common law should recognize a cause of action in tort for invasion of privacy — including any of the four branches described above — has been debated for at least 120 years, but that there has been no clear accept- ance by Canadian appellate courts of a distinct right of action for breach of privacy.27 Ultimately, the Court of Appeal found that given
the evolution of Canadian law, including recognition by the Supreme 2015 CanLIIDocs 535 Court of Canada of the value of privacy and its constitutional protec- tion, it is now appropriate to acknowledge the tort of intrusion upon seclusion in Ontario.28 The Court upheld Jones’ claim, but limited her damages to $10,000, given that she had not suffered any pecuniary loss as a result of the wrong.29 In recognizing a stand-alone tort of invasion of privacy, the decision in Jones goes a long way towards answering the concern that arbitrators have no legal foundation on which to uphold a legally enforceable “right” to privacy in the workplace. While Jones deals only with the first branch of the tort of invasion of privacy, “intrusion upon seclusion,” the case clearly establishes a right to privacy in the common law, so that labour arbitrators can no longer be accused of plucking the right to privacy out of thin air. In that regard, the ruling cements a clear direction in the common law towards recognizing that the law must provide some form of redress where the conduct of one party breaches another party’s ability to control the collection and dissemination of his or her personal information. It is notable, however, that in only one arbitral decision since Jones was released has an arbitrator found it appropriate to order the imposition of dam- ages to remedy a breach of privacy, and even in that case the damages
26 Ibid at para 19, citing Restatement (Second) of the Law of Tort §652B (1977). 27 Ibid at para 15. 28 The Court left open the possibility that the other three branches of the tort of invasion of privacy should be similarly recognized; these were not at issue on the facts before the Court. 29 Jones, supra note 1 at para 90.
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were very limited.30 There may continue to be a general reluctance by arbitrators to enforce privacy rights through an award of damages.31 The question of how to redress a privacy breach, whether through the exclusion of evidence or through an award of damages, remains an open question that adjudicators have yet to squarely address. The enforceability of the “right to privacy” is, therefore, still in question. Putting aside the debate with respect to the appropriate rem- edies, however, the development of a tort of invasion of privacy makes clear that the premise that employees do not enjoy an inherent right to privacy in the workplace is no longer tenable. While Jones does not deal directly with an employment relationship — Jones and
Tsige were co-workers, not employer and employee — the principles 2015 CanLIIDocs 535 articulated by the Court apply equally to the employment relation- ship. Where one party accesses the private information of another without legal justification, that individual or organization may be held liable for damages.32
(b) R. v. Cole
Jones clearly establishes that Canadians enjoy a right to privacy at common law. In the Supreme Court of Canada’s 2012 decision in Cole, the Court went further, recognizing that employees enjoy a reasonable expectation of privacy in the workplace, and highlighting the importance of protecting meaningful personal information, even if it is expressed or recorded on employer-owned equipment. Cole arose out of criminal proceedings. The accused, a high- school teacher, was found to have nude images of a student on his laptop, which was owned by the school board, and was charged with possession of child pornography and unauthorized use of a
30 Alberta v Alberta Union of Provincial Employees (2012), 221 LAC (4th) 104 (Sims) [AUPE]. 31 It is also possible that unions are not bringing such claims forward very often, or that such matters are more likely to be settled, given that a grievor would likely be entitled to only modest damages, even if successful at arbitration. 32 So far, the only case in which the decision in Jones has been applied to date is AUPE, supra note 30, where the arbitrator held the employer liable for inappropriately conducting credit checks on employees without their knowledge or consent.
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computer.33 Cole had been issued a laptop by his employer for work purposes, but was also permitted to use it for incidental personal pur- poses.34 During a routine maintenance check, a school board tech- nician found the images and notified the principal, who seized the laptop and had board technicians conduct a search of the hard-drive.35 The board ultimately handed the laptop over to the police, who con- ducted a second search with the explicit permission of the board, but without a warrant.36 At issue before the Supreme Court was whether the police search was a violation of the accused’s right to be pro- tected against unreasonable search and seizure under section 8 of the Charter and, if so, whether the evidence should be excluded under .37 section 24(2) Ultimately, a majority of the Court found that Cole’s 2015 CanLIIDocs 535 section 8 rights had been breached but that the evidence should not be excluded.38 Justice Abella, dissenting, agreed that the accused’s Charter rights had been violated but would have excluded the results of the illegal search.39 Although the Court did not address the general right of employ- ers to monitor computers issued to employees, it made a number of significant comments with respect to an employee’s expectation of privacy in the workplace which are likely to inform the developing law around privacy in the context of an employment relationship. The Court starts from the premise that the accused had a meas- ure of privacy in his personal information on the laptop, despite the fact that the laptop was owned by his employer.40 Although this was a “diminished” expectation of privacy compared to personal infor- mation on a home computer, the Court held that it was nevertheless a reasonable one which attracted Charter protection.41 It was not determinative that use of the employer-owned laptop was governed by the school board’s Policy and Procedures Manual, which allowed
33 Supra note 2 at paras 5-6. 34 Ibid at para 4. 35 Ibid at para 5. 36 Ibid at paras 5, 10. 37 Ibid at para 32. 38 Ibid at paras 97-98. 39 Ibid at para 107. 40 Ibid at para 8. 41 Ibid at para 9.
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for incidental personal use of board-owned technology but stated that “[a]ll data and messages generated on or handled by board equipment are considered to be the property of [the school board].”42 The school board also had an Acceptable Use Policy which, though written for students, was held to apply mutatis mutandis to teachers, and which warned users not to expect privacy in their files.43 Despite these clear warnings to employees not to expect their information on board-issued laptops to be private vis-à-vis the employer, the Court found that Cole had a reasonable expectation of privacy in his personal usage of the work laptop. It characterized the kind of personal information that may be held on a laptop as deeply
meaningful: 2015 CanLIIDocs 535 Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations”. . . . This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” . . . . This sort of private information falls at the very heart of the “biograph- ical core” protected by s. 8 of the Charter.44 While the Court held that ownership of the property, as well as other “operational realities” such as the policies, practices and customs of the workplace, are relevant to determining if the employee had a reasonable expectation of privacy, they are not determinative.45 Given the Supreme Court’s consistent view that the common law must evolve in light of Charter values46 and that adjudicators when exercising their discretion must do so in such a way so as not
42 Ibid at para 16. 43 Ibid at para 17. 44 Ibid at paras 47-48, citing R v Morelli, 2010 SCC 8 at para 105, [2010] 1 SCR 253 [Morelli]. 45 Ibid at paras 51-53. 46 See e.g. Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 46, 33 DLR (4th) 174; R v Salituro, [1991] 3 SCR 654 at para 40 , 8 CRR (2d) 173; Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 94, 126 DLR (4th) 129.
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to infringe the Charter,47 the Court’s analysis in Cole cannot be taken as limited to section 8 of the Charter. The debate about privacy rights in the workplace in arbitral case law, the common law, and under provincial statutory privacy legislation, must develop in tandem with Charter jurisprudence. Rather than adopt a simplistic “who owns the equipment” test, as set out in earlier jurisprudence,48 the Court in Cole looked first to the nature of the personal information at issue.49 The Court therefore clearly signalled that Canadians enjoy a reasonable expectation of privacy in their personal information, and that while this expectation of privacy may be attenuated by the context of the workplace, it is not extinguished.50 2015 CanLIIDocs 535 (c) Irving Pulp & Paper and Alberta (Information and Privacy Commissioner) v. UFCW
In 2013, less than a year after the decision in Cole, the Supreme Court of Canada again addressed the extent of employee privacy
47 Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 at para 90, 59 DLR (4th) 416. 48 See e.g. Int’l Ass’n of Bridge, Structural and Ornamental Ironworkers, Local Union No 97 v Office and Technical Employees’ Union, Local 15 (Garanito), [1997] BCCAAA No 630 (QL) at para 64; Camosun College v Canadian Union of Public Employees, Local 2081, [1999] BCCAAA No 490 (QL) at para 32; Insurance Corp of British Columbia v Technical Employees’ Union, Local 378, January 27, 1994 (JW Weiler) [unreported] at 49-50, cited in Telus Mobility v Telecommunications Workers Union (Lee) (2001), 102 LAC (4th) 239 at para 39 (Sims) [Telus Mobility]. 49 Notably, the Court recently reaffirmed the intimate nature of the expressive activities that take place on equipment connected to the internet, in its recent decision in R v Spencer, 2014 SCC 43, 375 DLR (4th) 255 [Spencer]. 50 The Court in Cole goes on to consider the appropriate remedy for the breach of section 8 of the Charter by analyzing whether the evidence should be excluded under section 24(2), and ultimately holds that the evidence is admissible. As pre- viously noted, it remains unclear whether arbitrators will be prepared to exclude evidence where a breach of privacy is found, and/or whether applying a section 24(2)-like analysis is appropriate. If, as some arbitrators have held in the context of video surveillance cases, a breach of privacy cannot be remedied by the exclu- sion of evidence where that evidence is relevant and probative, the recognition by the Supreme Court of a broad privacy right in the workplace could be a hollow development for employees.
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rights in two significant cases: Irving Pulp & Paper and Alberta (Information and Privacy Commissioner) v. UFCW. At issue in Irving Pulp & Paper was whether an employer policy of mandatory random alcohol testing for employees in a dangerous workplace was permissible. The UFCW case addressed whether a right to privacy exists in public spaces in the context of picketing action by the union. Although neither case concerned informational privacy, these cases are significant for their implicit assumption that Canadians enjoy an inherent right to privacy. In Irving Pulp & Paper, a majority of the Court held that ran- dom alcohol testing is an unjustified intrusion into employee privacy,
holding that “an employer can impose a rule with disciplinary con- 2015 CanLIIDocs 535 sequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights.”51 Given the “significant privacy inter- ests” at play, the mere fact that the employees were working in a dangerous workplace was insufficient to justify the intrusive drug and alcohol testing policy.52 Despite the fact that the union had not bargained specific privacy protections into the collective agreement, the majority of the Court did not hesitate to find that employees enjoy privacy rights in the workplace. Showing no reticence to import into the employment context an analysis of rights to bodily privacy, drawn from the Court’s criminal and Charter jurisprudence, Justice Abella held, quoting from R v. Dyment:53 “[T]he use of a person’s body with- out his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity.”54 Similarly, in UFCW, the Court again asserted the existence of broad privacy rights, which it characterized as having quasi- constitutional status.55 In that case, the dispute arose after individ- uals complained that the union had photographed their image while crossing a picket line in a shopping mall and subsequently used the photographs for labour relations purposes.56 In balancing the privacy
51 Supra note 3 at para 4. 52 Ibid at para 45. 53 [1998] 2 SCR 417 at para 38, 73 Nfld & PEIR 13 [Dyment]. 54 Irving Pulp & Paper, supra note 3 at para 50, citing Dyment, supra note 53 at 431-432. 55 Supra note 3 at paras 19, 22. 56 Ibid at para 2.
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concerns of the complainants against the union’s right to free expres- sion under section 2(b) of the Charter, the Court affirmed its previous statements that privacy plays a fundamental role in preserving a free and democratic society.57 The Court ultimately held that the Alberta Personal Information Protection Act58 breached the union’s section 2 rights under the Charter, because it unreasonably restricted the collection of personal information for legitimate labour relations pur- poses, and that the violation was not saved by section 1. However, it reiterated that legislation which aims to preserve informational pri- vacy is of a quasi-constitutional nature. Because “[t]he ability of indi- viduals to control their personal information is intimately connected
to their individual autonomy, dignity and privacy,” the preservation 2015 CanLIIDocs 535 of privacy is essential to a democratic society.59 The UFCW decision addresses the privacy of members of the public in the context of a picket line rather than the privacy of employ- ees in the workplace. The decision confirms, however, the trend in the Court’s jurisprudence towards recognizing the importance of pri- vacy rights in a wide variety of contexts, including public spaces. In Irving Pulp & Paper, the idea that employees enjoy privacy rights in the workplace, regardless of any specifically negotiated contractual provision, was seen as so axiomatic that, in the Court’s view, such an “extraordinary incursion into the rights of employees” as random testing had to be “expressly and clearly negotiated” and could not be inferred solely from a general management rights clause.60 This stands in stark contrast to the minority view among arbitrators until then that privacy rights do not exist in the workplace, unless specifically bargained. Rather, the Court, adopting the view of Arbitrator Michel Picher, held that unless certain privacy protections are expressly bar- gained away, they remain in force. This shift in onus, whereby the employer must bargain for exclusions from employee privacy, rather
57 Ibid at paras 19, 22. 58 Ibid at para 2. 59 Ibid at para 19. 60 Supra note 3 at para 33, citing Imperial Oil Ltd v Communications, Energy and Paperworkers Union of Canada, Local 900 (2006), 157 LAC (4th) 225 (MG Picher).
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than employees having to bargain for a right to privacy, represents a significant change to the law of the workplace, and crystallizes a long trend in the law toward increased protection of privacy in Canada.61
(d) Conclusion on the Inherent Right to Privacy
Taken together, the decisions in Jones v. Tsige, R. v. Cole, Irving Pulp & Paper, and Alberta (Information and Privacy Commissioner) v. UFCW represent a significant shift in the landscape of workplace privacy. In each of these cases, the courts have affirmed not only that employees enjoy certain privacy rights in the workplace, but that
those rights are inherent to the human condition and do not need to 2015 CanLIIDocs 535 be separately bargained or negotiated. The question is no longer do employees enjoy a right to privacy while at work, but rather what is the scope of that right in relation to the employer’s legitimate busi- ness considerations, and what responses are available to an arbitrator or court where privacy rights are breached.
4. INFORMATIONAL PRIVACY RIGHTS IN THE WORKPLACE
Alongside the trend towards recognition of the right of privacy in the workplace, a second significant shift is taking place in the case law: an increasing recognition that information technology poses a particular threat to the right of employees to control their private information. Unlike earlier privacy cases, which tended to be dom- inated by questions of personal or bodily privacy and/or territorial
61 As previously noted, however, this recognition of the inherent right to privacy has been coupled, in many cases, with reluctance by adjudicators to order a meaningful remedy. In particular, many arbitrators have continued to hold that even if privacy rights exist, they are not enforceable and that evidence resulting from the breach of privacy is admissible if it is relevant and probative. See e.g. Kimberly-Clark, supra note 19; Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Russell) (1999), 88 LAC (4th) 109 (Shime).
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privacy62 (the right to privacy in certain spaces, such as the home), these cases focus on the right of employees to informational privacy, and draw particular attention to the way in which information tech- nology can capture deeply meaningful information about us that goes, as the Supreme Court characterized it in Cole, to our “biographical core.”63 As both courts and commentators have noted, such a shift is both triggered by, and representative of, broader societal changes in the ways in which we use technologies to communicate.64 As these technologies continue to evolve, therefore, it is likely that questions with respect to the legal regulation of informational privacy are only likely to grow.
Many of the early decisions by labour arbitrators addressing 2015 CanLIIDocs 535 issues of employee privacy in the workplace were triggered by the advent of closed-circuit television and video camera technology in the late 1970s. These cases were primarily concerned with balancing the right of employees not to be subject to the constant watchful eye of the employer as against the employer’s legitimate business interests to manage the workplace more efficiently by using surveillance to improve workplace security, minimize theft and vandalism, or more controversially, to improve productivity.65 In addressing when, and under what circumstances, employers were allowed to monitor their employees in the workplace, adjudicators showed a particular concern
62 Questions of bodily privacy have typically arisen in relation to the right of the employer to conduct drug testing, regulate the personal appearance of employ- ees, or to search the personal effects of employees. See R v Tessling, 2004 SCC 67, [2004] 3 SCR 432 at para 21 (“the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal”) [Tessling]. Territorial privacy is generally understood as the right to privacy in certain spaces, such as the home, and often becomes a concern in cases where employers conduct surreptitious surveillance of employees outside the workplace, for example when an employee on sick leave is suspected of malingering. See generally Dyment, supra note 53 (for a brief overview of the different areas of privacy) at 428-430. 63 Cole, supra note 2 at paras 47-48. 64 Jones, supra 1 at paras 67-68. 65 Unions have generally maintained that this is an inappropriate use of video sur- veillance, and many arbitrators have held that surveillance may not be used for the purpose of monitoring employee productivity except where the employer has reasonable grounds to believe that a particular employee is engaged in miscon- duct. See e.g. Pope and Talbot Ltd v Pulp, Paper and Woodworkers of Canada, Local 8 (2003), 123 LAC (4th) 115 (Munroe).
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that neither “private areas” of the workplace (such as entrances to employee washrooms or lunchrooms), nor the physical bodies of employees, should be subject to constant surveillance, and that mon- itoring of the workplace by video had to be tailored to respond to narrowly defined and well-supported purposes.66 The development of video technology also enabled employers to track their employees’ off-duty conduct more effectively, where the employer suspected an employee of malingering. Again, this early use of technology gave rise to a body of arbitral case law addressing the right of employers to ensure the appropriate use of sick leave benefits, as weighed against the right of employees to privacy over
their bodies and off-duty activities, in particular with respect to such 2015 CanLIIDocs 535 private spaces as their homes.67 In these cases, arbitrators generally held that employers could not engage in “speculative spying”68 on employees, but needed a reasonable basis to believe that the employee was engaging in misconduct. Moreover, the greater the employee’s expectation of privacy, for example, in activities in the home rather than in public, the more significant the business interest the employer had to demonstrate in order to prevail.69 As noted above, however, what constitutes an appropriate remedy where a breach of privacy occurs has been an ongoing topic of debate; some arbitrators have concluded that even if the employee’s privacy has been violated, the resulting evidence is admissible if it is relevant and probative.70 Considerations of territorial and personal privacy continue to be important in Canadian workplaces as illustrated, for example, by Irving Pulp & Paper and UFCW. Nonetheless, the decisions in Cole and Jones reflect a growing concern with a different dimension of pri- vacy, related more fundamentally to the right of employees to a kind of private “interior” space. As the Supreme Court described it in R. v. Tessling,71 informational privacy relates to an individual’s ability to control how information about him or her is communicated to others:
66 See e.g. Puretex, supra note 15. 67 See e.g. Canadian Pacific Ltd v Brotherhood of Maintenance of Way Employees (Chahal Grievance) (1996), 59 LAC (4th) 111) (MG Picher). 68 Ibid at 124. 69 Ibid. 70 AUPE, supra note 30. 71 Supra note 62.
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Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activ- ities we are entitled to shield from the curious eyes of the state . . . . This includes commercial information locked in a safe kept in a restaurant owned by the accused . . . . Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”. . . . Its protection is predicated on: “the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit.”72 As Canadians — including arbitrators, privacy commissioners and courts — have become increasingly aware of the power of informa- tion technology not only to enable the free flow of data, but also to 2015 CanLIIDocs 535 capture, record, and bank such information, these changes bring a new set of questions to the fore. When is it appropriate for employ- ers to have access to an employee’s private thoughts, interests and aspirations? How should such informational privacy be characterized and where does it fall in the hierarchy of privacy interests? Which employer interests are sufficient to outweigh an employee’s right to private thought? These considerations are highlighted by the Supreme Court’s treatment of informational privacy in Cole. While the analysis is specific to the context of the Charter, the Court’s characterization of information carried on a laptop as “highly revealing and mean- ingful”73 and as going to “the very heart of the ‘biographical core’ ”74 has implications for the analysis of privacy rights in the employment context more generally. The Court refers to information captured on IT equipment as meaningful and going to our “specific interests, likes and propensities.”75 Rather than apply a simple ownership test, the Court instead adopts a more nuanced consideration of the “totality of the circumstances,” which takes into account four factors:
(1) An examination of the subject matter of the alleged search; (2) A determination as to whether the claimant had a direct interest in the subject matter;
72 Ibid at para 23 [emphasis in original, footnotes omitted]. 73 Supra note 2 at para 49. 74 Ibid at para 48. 75 Ibid at para 47, citing Morelli, supra note 44 at para 105.
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(3) An inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) An assessment as to whether this subjective expectation of pri- vacy was objectively reasonable, having regard to the totality of the circumstances.76
In applying the test to the facts before it, the Court emphasizes that what is important is the informational content of the laptop’s hard drive,77 not the ownership of the devices themselves. This empha- sis on “substance, not form”78 is highly relevant to the employment context. What is important to the analysis is the nature of the privacy
interest at stake, together with any factors which may help to deter- 2015 CanLIIDocs 535 mine whether the employee’s expectation of privacy was reasonable in the circumstances. “The closer the subject matter of the alleged search lies to the biographical core of personal information,” writes Justice Fish for the majority, “the more this factor will favour a rea- sonable expectation of privacy.”79 The Court’s emphasis on the character of the privacy interest in internet-connected devices is striking. This is particularly clear in the Court’s analysis of whether the school board could consent on Cole’s behalf to a police search of the laptop. As Justice Fish stated, “Mr. Cole, throughout, retained a reasonable and ‘continuous’ expectation of privacy in the personal information on his work-issued laptop.”80 The Court rejected the argument that the school board could consent to the police search on Cole’s behalf, even though the board owned the equipment, because Cole maintained a “subsisting expectation of privacy”81 in the personal information stored on the laptop. Cole did not voluntarily consent to the police search of his personal infor- mation, and the employer was not in a position to give “informed” consent on his behalf.82
76 Ibid at para 40, citing Tessling, supra note 62; R v Patrick, 2009 SCC 17 at para 22, [2009] 1 SCR 579. 77 Ibid at para 41. 78 Ibid at para 40. 79 Ibid at para 46. 80 Ibid at para 72 [emphasis in original]. 81 Ibid at para 73 [emphasis in original]. 82 Ibid at paras 77-78.
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The Supreme Court further emphasized the importance of the informational privacy interest in electronic information in its recent 2014 decision, R. v. Spencer.83 In that case, the Court considered whether the police required a warrant to obtain subscriber information associated with an IP address held by an internet service provider. In finding that such information is protected by section 8 of the Charter, the Court unanimously held that the accused had a reasonable expect- ation of privacy in the information. A request for subscriber infor- mation “engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously under- taken online activities, activities which have been recognized by the
Court in other circumstances as engaging significant privacy interests 2015 CanLIIDocs 535 . . . .”84 Furthermore, Justice Cromwell wrote for the Court, “[t]he disclosure of this information will often amount to the identifica- tion of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous.”85 Although not an employment case, Spencer affirms the Court’s view that information associated with internet usage is meaningful and revealing. Adjudicators will need to take this into account in assessing the privacy rights of employees.86 Following Cole and Spencer, computers can no longer be viewed simply as a work tool, even if they are provided by an employer for the pur- poses of work. Computers, and other internet-connected devices, may also be a vehicle for deeply personal activities. As such, the personal information contained on them may require privacy protection. This does not mean, of course, that the employer’s interests in accessing the information to protect the safety and security of the workplace could not, in some circumstances, outweigh an employee’s privacy
83 Supra note 49. 84 Ibid at para 50, citing Morelli, supra note 44 at para 3. 85 Ibid at para 66. 86 While the Court in Spencer emphasized the importance of the right to infor- mational privacy, the degree to which such a right will actually be protected is open to question. Though the search was found to be unlawful in Spencer, the Court ultimately admitted the results of the search, following an application of the Grant test, on the basis that the “[e]xclusion of the evidence rather than its admission would bring the administration of justice into disrepute.” Ibid at para 81.
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interests.87 The full implications of Cole and Spencer for employment law remain, of course, to be determined. In Jones, the Ontario Court of Appeal was similarly motivated by a deep concern about the impact of information technology on the informational privacy of Canadians, and the need for the common law to evolve in response. As the Court stated: It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.88 2015 CanLIIDocs 535 In particular, the Court commented with approval on the decision in Somwar v. McDonald’s Restaurants of Canada Ltd.,89 in which an employee brought a suit against his employer for breach of invasion of privacy, and in which the Ontario Superior Court drew particular attention to the threat posed to personal privacy as a result of techno- logical developments. In Somwar, the plaintiff accused his employer, McDonald’s Restaurants, of conducting a credit check without his consent, and thereby invading his privacy. After reviewing the case law, Justice Stinson concluded: With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly) and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass and harassment may not provide
87 For example, a number of arbitrators have held that even in the absence of an employer policy regarding acceptable use of company IT resources, it should be self-evident to employees that it is unacceptable to use an employer’s email facilities to disseminate offensive information, such as pornographic material, or to use the employer’s computer system to harass another employee: see e.g. Telus Mobility, supra note 48; Consumers Gas v Communications, Energy and Paperworks Union (Primiani) [1999], OLAA No 649 (QL) (Kirkwood); Briar et al v Treasury Board (Solicitor General Canada – Correction Service) (2003), 116 LAC (4th) 418 (PSSRB); Owens Corning Canada Ltd v UNITE HERE, Local 1350 (2005), 142 LAC (4th) 62 (Levinson). 88 Jones, supra note 1 at para 68. 89 (2006), 79 OR (3d) 172, 263 DLR (4th) 752 [Somwar cited to OR].
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adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an “incremental revision” and logical extension of the existing jurisprudence.90 The Court of Appeal’s support for the reasoning in the Somwar case is of particular interest in the employment context. The trial judge in Somwar noted the increasing importance of protecting employee privacy rights in the context of rapidly evolving information tech- nology and the degree to which employers have unfettered access to employee personal information.91 The risks posed by unauthorized access to an individual’s personal information therefore required, in the Court’s view, the development of new legal tools to recognize and 2015 CanLIIDocs 535 protect individual privacy rights. The only arbitral case in which Jones has been applied since its release, Alberta v. AUPE, dealt with facts very similar to those in Somwar.92 Following the discovery that fraudulent program cheques were being passed, an over-eager investigator retained by the employer conducted credit checks on all employees in a particular department to see if any of them were experiencing financial difficul- ties and therefore would be more susceptible to carrying out a scheme to defraud the government program.93 The investigator conducted the credit checks without the employees’ knowledge or consent, by using private employee information already held on file by the employer.94 At arbitration, the employer conceded that there had been a violation of Alberta’s Freedom of Information and Protection of Privacy Act,95 and the dispute focused on the appropriate remedy for the breach.96 Relying in part on Jones, Arbitrator Sims held that an employer in possession of employee personal information has an obligation to “protect that information and ensure its use for only legitimate purposes”97 and that the misuse of such information constitutes an
90 Jones, supra note 1 at paras 30-31, citing Somwar, ibid at paras 29, 31. 91 Ibid. 92 AUPE, supra note 30 at para 20. 93 Ibid at para 2. 94 Ibid at paras 2, 5. 95 RSA 2000, c F-25. 96 AUPE, supra note 30 at para 3. 97 Ibid at para 20.
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invasion of privacy.98 Arbitrator Sims affirmed the existence of a positive obligation on employers to safeguard private employee infor- mation, as well as the liability of the employer for breaches of the right of employees to privacy in their personal information. As did the Court in Somwar, Arbitrator Sims expressed concern for the abil- ity of employees to maintain control over their private information, including in situations where that information had been disclosed to the employer for some other purpose. However, given that the unauthorized credit checks were not distributed further, only modest damages of $1,250 were awarded to each employee affected.99 Indeed, the quantum of damages in Jones and AUPE raises a
question about how effective damage awards will be at deterring 2015 CanLIIDocs 535 employers from privacy-invasive conduct, particularly in a disciplin- ary context. If arbitrators are unwilling to award damages that are likely to deter employers from violating privacy rights, there is a risk that employers will simply view privacy “damages” as a cost of doing business in achieving their disciplinary goals. Plainly put, if even an extreme breach of privacy rights would not preclude the employer from relying upon the resulting evidence for the purpose of demonstrating just cause for discipline, does this not empty the “right to privacy” of meaning? This question has yet to be addressed in a rigorous manner by arbitrators or courts.
5. CONCLUSION
As information technology continues to become ever more sophisticated and inexpensive, considerations about the impact of that technology on workplace privacy will continue to confront arbitrators
98 It remains clear, however, that legitimate employer demands for private med- ical information will not be considered a violation of the right to privacy. See e.g. Complex Services Inc v Ontario Public Service Employees Union, Local 278 (2012), 217 LAC (4th) 1; Canadian Bank Note Co Ltd v Int’l Union of Operating Engineers, Local 772, 2012 CanLII 41234; Hamilton Int’l Airport Ltd v Canadian Union of Public Employees, Local 5167, 2012 CanLII 7445 (in these cases Arbitrator Surdykowski determined that Jones did not stand for the prop- osition that asking an employee for information for a legitimate purpose violated the right to privacy; legitimate purposes could include substantiating an absence, or as permitted by legislation or the collective agreement). 99 Supra note 30 at para 35.
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and courts. Already, the ubiquity of information technology in the workplace has challenged existing legal frameworks and required an evolution in the available analytical tools. As the Court of Appeal commented in Jones: For over 100 years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy which is being threatened by science and technology to the point of surrender”. . . . The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our
most personal financial information vulnerable. Sensitive information as to our 2015 CanLIIDocs 535 health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.100 Informational privacy is an issue of pressing importance to Canadian employees, whose personal information is increasingly available to their employers. Recent decisions by Canada’s highest courts make clear that employees can claim an inherent right to control their pri- vate information vis-à-vis their employer, even if this right must be balanced against an employer’s operational interests. The challenge going forward will be to define the scope of this right, and to develop appropriate and meaningful remedies where it is violated.
100 Jones, supra note 1 at para 67 [footnotes omitted].
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05_Phillips.indd 492 15-03-24 10:57 AM Piecing Together Jones, A.B. and Cole: Towards a “Proportional” Model of Shared Accountability in Workplace Privacy
Karen Eltis*
“You can’t turn around without bumping into a privacy law issue here.” 2015 CanLIIDocs 535 – Me Christine Caron (employment lawyer)
This paper provides an overview and analysis of three recent decisions on privacy rights by Canada’s highest courts, and considers their implications for workplace privacy law, particularly the issue of employer monitoring of employees’ e-mail and internet use. In contrast to earlier case law, in which a U.S.-influenced, property-based approach to privacy prevailed, these decisions, in the author’s view, signal the emergence of a more meaningful and nuanced conception of workplace privacy. The author further argues that this concep- tion is consistent with a movement (however incremental) towards a model of “privacy self-management” in the workplace, which is characterized by two key principles — proportionality and shared accountability. This model recog- nizes that, in ensuring a proper measure of privacy protection for employees, workplace parties are under reciprocal affirmative duties. In taking action that may infringe employee privacy, the employer would be required to use means that are rationally related to legitimate business objectives and that are min- imally invasive of privacy, as well to carefully elucidate any applicable policies through the provision of privacy awareness education. Employees, for their part, would be required to accept a share of the responsibility for their own privacy, by clearly indicating to the employer what material or content they consider to be private.
* Associated Professor, Faculty of Law, University of Ottawa. The author would like to thank the Canadian Internet Registration Association (CIRA) for the generous Community Investment Program grant that supported the writing of this paper.
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1. INTRODUCTION: RESPONDING TO THE PROLIFERATION OF PRIVACY RISKS
It has been said that privacy is “at risk of becoming a real human right.”1 The exponential increase of personal information in the hands of organizations, particularly sensitive data held by many employers and their human resources departments, creates a significant rise in the risks accompanying formerly negligible privacy incidents. At one time considered too intangible to merit even token compensation, risks of harm to privacy interests have become so ubiquitous in the past three years that they require special attention.2 Legal and social changes have also increased risks of liability 2015 CanLIIDocs 535 for employers. First among those changes has been the emergence of a “privacy culture” — a process which has certainly been bol- stered by (and arguably precipitated by) the trickle-down effect of the ground-breaking Wall Street Journal investigative series titled “What They Know,”3 and the heightened attention that the main- stream media now attaches to privacy incidents. Second, as discussed below, courts have recognized a tort of intrusion upon seclusion at common law, are beginning to recognize intangible privacy harms
1 Gus Hosein, “Is Privacy at Risk of Becoming a Real Human Right? Perspectives from Europe and Developing Countries” (Deirdre G Martin Memorial Lecture on Privacy Law, delivered at the Faculty of Law, University of Ottawa, 23 February 2012) [unpublished]. 2 See e.g. JA Chandler, “Negligence Liability for Breaches of Data Security” (2008) 23:2 BFLR 223 at 232 observing: “With few exceptions, the US law- suits have been unsuccessful because of several key problems. First, the courts have held that until identity fraud occurs, there is no ‘actual harm’. The courts hold that claims for the costs of protective measures such as credit monitoring services do not relate to actual harm but to the fear of a potential future harm and so they are not recoverable.” See also Ruiz v Gap, Inc, 2010 WL 2170993 (App Ct 9th Cir Cal); Allison v Aetna Inc, No 09-2560 (ED Penn 2010); People’s United Bank and Bank of New York Mellon Inc, 2009 US Dist LEXIS 78065 (D Conn 2009); Randolph v ING Life Insurance and Annuity Co, 973 A 2d 702 at 710 (DC App Ct 2009); Cherny v Emigrant Bank, 604 F Supp 2d 605 (SD NY 2009); Ryan v Delhaize America, Inc d/b/a Sweetbay, and Hannaford Bros Co, 1:2008cv00142 (D Me 2008); Bell v Acxiom Corp, 4:06-cv-00485-WRW (ED Ark 2006). 3 Julia Angwin, “What They Know,” Wall Street Journal, online:
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(or non-pecuniary injury in civilian parlance), and have suggested that employees maintain certain privacy interests at work even when using equipment owned by their employer. Finally, both in Quebec4 and, more recently, in the common law provinces,5 Canadian courts have been increasingly willing to certify class action law- suits for privacy infringements which previously would have been summarily dismissed.6 Prior to 2011-2012, it was difficult to find examples of judicially recognized losses arising from privacy breaches. Since then, the legal environment in Canada has changed dramatically. In the words of one commentator:
[C]lass action litigation and individual actions relating to privacy breaches in 2015 CanLIIDocs 535 Canada are no longer just hypothetical, they are a new reality. The actions tend to involve disclosure of personal information through insecure disposal of rec- ords, theft and loss of unencrypted data on mobile devices, and unauthorized access to records.7 Claims related to privacy mishaps are now commonplace, and there has been an exponential multiplication in the number of cases
4 Thus, for instance, the Quebec Superior Court certified a class action against Apple Inc.: see 2013 QCCS 2805; and Gary Ng, “Quebec Court Approves Privacy Class Action Lawsuit Against Apple,” online:
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involving inadvertent communication or improper disposal of per- sonal data,8 portable devices,9 and cloud computing.10 The obvious overlap between personal and professional e-mail accounts, internet use, and peoples’ lives more generally, renders the classic “reasonable expectation” standard quasi-obsolete, or at least unhelpful in articulating and enforcing privacy rights and duties in the workplace. As further discussed below, if privacy continues to be defined by reference to reasonable expectations, technological imperatives necessarily dictate that the sphere in which one can rea- sonably claim solitude will decrease. In other words, assessing an individual’s right to privacy by reference to society’s conception of
the measure of privacy that one is entitled to reasonably expect is par- 2015 CanLIIDocs 535 ticularly awkward when such expectations are rapidly eroding, pre- cisely by reason of eventual social habituation to recurring intrusions. Mindful of the pressing challenge of bringing greater clarity to workplace privacy and critical of a reactive “clean as you go” or “putting out fires” approach, this paper proposes a combined read- ing of three seemingly distinct cases: Jones v. Tsige, A.B. v. Bragg, and R. v. Cole. The trilogy begins with Jones, in which the Ontario Court of Appeal recognized the existence of the tort of intrusion upon seclusion.11 This development arguably brings Canadian common law
8 See e.g. Speevak v Canadian Imperial Bank of Commerce, 2010 ONSC 1128, [2010] OJ No 770 (QL); MacEachern v Ford Motor Co of Canada, Ltd and John Doe Corp, infra note 10; Jackson v Canada (AG), 140 ACWS (3d) 274, 2005 CanLII 23107 (Ont Sup Ct); Waters v Daimlerchrysler Financial Services Canada Inc, 2009 SKQB 263, 79 CPC (6th) 131; Rowlands v Durham Region Health, 2012 ONSC 3948, [2012] OJ No 3191 (QL). 9 For example, in 2011 the Ontario Superior Court certified a $40 million class action lawsuit after a nurse misplaced a USB key with the personal information of those vaccinated against the H1N1 flu virus. The case was settled. 10 Ottawa Law Journal Symposium, 2014: “Cloud Computing and the Law” (27 February 2014), online:
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provinces in line with their counterparts in the United States, New Zealand, Australia and, to a lesser extent, the United Kingdom, and provides a remedy outside of the statutory privacy regimes found in several provinces and at the federal level.12 In A.B. v. Bragg Communications Inc., the Supreme Court of Canada allowed an ado- lescent to proceed anonymously with a request that an internet service provider (ISP) release the identity of the creator of a fake Facebook account which included various explicit and disturbing sexual ref- erences.13 Importantly, the Supreme Court presumed harm based on the circumstances, recognizing intangible privacy harms and using these as a basis for allowing A.B. to procede anonymously in her R. v. Cole legal action. Finally, the Court in held that a teacher had 2015 CanLIIDocs 535 a reasonable expectation of privacy at work, even when using the employer’s computer.14 In that case, the employer discovered porno- graphic images of students stored on the teacher’s school-board- issued laptop. While the employer had a computer use policy that informed employees they should not expect information kept on work computers to be private, the Court held that there nevertheless existed a privacy interest in information which the employee had clearly indi- cated was private.
12 William L Prosser, “Privacy” (1960) 48:3 Cal L Rev 383 at 389-401, as adopted by the American Restatement of Torts, which sets out the respective causes of action as follows: (i) an unreasonable intrusion upon the seclusion of another; (ii) an appropriation of the other’s name or likeness; (iii) an unreasonable publicity given to the other’s private life; and (iv) a publicity that unreasonably places the other in a false light before the public; see Restatement (Second) of the Law of Torts § 652A (1977), and for the requirements of each, see §§ 652B, 652C, 652D, 652E. See also Hosking v Runting, [2004] NZCA 34, [2005] 1 NZLR 1 followed by C v Holland, citing Jones, [2012] NZHC 2155, [2012] 3 NZLR 672; Australian Broadcasting Corp v Lenah Game Meats Pty Ltd, [2001] HCA 63, 208 CLR 199; Campbell v MGN Ltd, [2004] UKHL 22 at para 14, [2004] 2 AC 457 per Nicholls LJ. For more detailed discussion, see Thomas DC Bennett, “Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario” (2013) 59:1 McGill LJ 49, and Chris DL Hunt, “Privacy in the Common Law: A Critical Appraisal of the Ontario Court of Appeal’s Decision in Jones v. Tsige” (2012) 37 Queen’s LJ 665 for a comparative approach to privacy torts. 13 2012 SCC 46, [2012] 2 SCR 567. 14 2012 SCC 53, [2012] 3 SCR 34.
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Despite the apparent distinctiveness of these three cases, revisited in unison they herald the emergence of a far more robust and nuanced conception of workplace privacy. It is a conception predicated on proportionality, rather than the essentially tauta- ulogical reasonable expectations standard. Furthermore, it is one that demarcates itself from earlier case law in which a U.S.-style, property-based approach to privacy prevailed.15 It will be argued that this model of privacy self-management lends itself particularly well to the balanced Canadian understanding of rights and duties. When taken a step further, this article suggests that a view of privacy in the workplace predicated on shared accountability,16 and anchored
in proportionality, can and should eventually prevail. This may be 2015 CanLIIDocs 535 understood as the employer’s duty to minimally impair privacy by, inter alia, simplifying and carefully elucidating its policies — them- selves to be rationally related to employer interests — through the provision of privacy awareness education. Employees are in turn held to reciprocate by taking responsibility for their own privacy, with the imposition of an affirmative duty to specifically identify material they consider private.17
15 The author has criticized this approach elsewhere. See K Eltis, “The Emerging American Approach to E-mail Privacy in the Workplace: Its Influence on Developing Caselaw in Canada and Israel – Should Others Follow Suit?” (2004) 24:3 Comp Lab L & Pol’y J 487; “La surveillance du courrier électronique en milieu du travail: le Québec succombera t-il à l’approche permissive améric- aine?” (2006) 51 RD McGill 475, and more recently, “Can the Reasonable Person Still Be ‘Highly Offended’? An Invitation to Consider the Civil Law Tradition’s Personality-Rights Based Approach to Tort Privacy” (2008) 5 University Ottawa L & Tech J 199. 16 Accountability — a concept or mot-clé often repeated in privacy circles — was first established as a key principle by the Organisation for Economic Co-operation and Development (OECD). Accountability “shifts the focus of privacy governance to an organisation’s ability to demonstrate its capacity to achieve specified privacy objectives. It involves setting privacy protection goals for companies based on criteria established in law, self-regulation and best practices, and vesting the organisation with both the ability and the responsib- ility to determine appropriate, effective measures to reach those goals.” See M Abrams, “Data Protection Accountability: The Essential Elements” (October 2009), Hunton & Williams CILP, online:
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2. THE PROPORTIONALITY PRINCIPLE
Before discussing the cases, a word on the definition of pro- portionality for the purposes of this paper would be helpful.18 In a nutshell, “proportionality is an analytical framework used by courts in many countries in determining whether or not limitations on the exercise of rights are justified, and therefore constitutional.”19 In a recent article, Alon-Shenker and Davidov argued in favour of applying proportionality principles in the employment context and further observed: A demand that those holding power will use it carefully and responsibly finds
a concrete legal expression in the three-stage proportionality test. An expect- 2015 CanLIIDocs 535 ation that those infringing the rights of others will not do so gratuitously also materializes in the proportionality test. Ever since the seminal Oakes judg- ment, proportionality has become an important pillar of Canadian law. One cannot think about constitutional law or discuss it — in Canada as in many other countries — without referring to proportionality. We have argued that the same principle plays an important role in Canadian labour and employment law as well, a role not sufficiently acknowledged thus far. We further argued that proportionality should play an even greater and more explicit role.20 As various democratic countries struggle with the pervasive prob- lems of managing surveillance enabled by new technologies, there seems to be a convergence towards incorporating proportionality principles into workplace surveillance privacy analysis. All three cases discussed here suggest that proportionality already plays a role in Canadian workplace privacy. As I will demonstrate below, Jones imports proportionality by adopting the notion of reasonableness,21 A.B. through its discussion of seeking a balance between privacy
18 For a detailed discussion of proportionality more generally, see Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (New York: Cambridge University Press, 2012). 19 Grant Huscroft, “Proportionality and Pretense” (2014) 29:2 Const Commentary 229. 20 “Applying the Principle of Proportionality in Employment and Labour Law Contexts” (2013) 59:2 McGill LJ 375. 21 By adopting the terminology of an “unreasonable” intrusion into the seclusion; supra note 11.
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rights and the principle of open courts,22 and Cole by suggesting that sweeping or vague policies may have outlived their usefulness.23 Other jurisdictions have gone further, and incorporated pro- portionality analysis more explicitly when determining the propriety of workplace surveillance. For instance, a landmark decision of the Israeli National Labor Court held that proportionality is the guiding principle underlying the appropriate approach to workplace internet monitoring. Broadly speaking, the Court deployed an Oakes-like test (of German provenance, with emphasis on the final proportionality prong) related to Israel’s Basic Laws (deemed to enshrine human rights akin to constitutional rights), limiting surveillance to the least
restrictive means in light of the employer’s legitimate interests. 2015 CanLIIDocs 535 Guided by this logic, employers must “have explicit policies clearly and legibly outlining the nature, purpose and duration of the mon- itoring.”24 Reminiscent of the thinking underlying Cole, the Israeli court required that the policy be visibly attached to the employment agreement/policy handbook and consented to in writing.25 In addition, companies of a certain size are required to appoint a privacy officer and employers may not be able to access personal e-mail accounts without a court order.26
22 Supra note 13. 23 Supra note 14. Interestingly, Cole in this respect seems to unconsciously echo a recent Israeli National Labor Court decision, Nat’l Lab Ct 90/08 312/08, Issakov- Inbar et al v Commissioner for the Women’s Work et al [2011] (Isr); Labor Appeal no 90/08, Tali Isakov Inbar v State of Israel, Commissioner for Women Labor Law (8 February 2011). The Israeli court criticizes the employer for (a) failing to maintain a clear e-mail policy; (b) failing to evaluate less invasive alternatives for monitoring its employees; and (c) failing to obtain Isakov’s informed, willing, written consent to the monitoring activity. 24 Issakov-Inbar et al, ibid [translation: Meitar Law Firm]. 25 Ibid. 26 Finally, Israeli courts have suggested that automated monitoring or blocking software would be less invasive than human monitoring of e-mail (which pre- sumably may be true if the program has an auto-delete function rather than sim- ply carrying out a preliminary sortation).
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3. PIECING TOGETHER JONES, A.B. AND COLE
In order to integrate the analysis of these three cases, a word on each is in order. However, it exceeds the parameters of this modest piece to discuss them in any great detail.27
(a) Jones v. Tsige: Privacy Infringements Now Actionable Wrongs in Tort
In Jones, the defendant (a Bank of Montreal, or BMO, employee) used her computer to access and examine a bank account belonging to
the plaintiff (a fellow employee of the defendant). The defendant was 2015 CanLIIDocs 535 living with the plaintiff’s ex-husband, and was particularly interested in information relating to alimony payments that had been made. The defendant accessed the ex-wife’s account approximately 174 times over a period of four years on her employer’s computer system. She was only lightly disciplined by BMO, but was faced with an action by the victim claiming damages and an injunction. The action was initially dismissed in the Superior Court, where Whitaker J. held that no action for breach of privacy existed at common law.28 In his view, this area of law was not one that “requires ‘judge-made’ rights and obligations.”29 Significantly, the plaintiff prevailed on appeal.30 The Ontario Court of Appeal recognized that the law must keep pace with cul- tural and technological developments that have an impact on privacy rights.31 Citing the U.S. Restatement (Second) of Torts, Sharpe J.A. affirmed that the tort of intrusion upon seclusion was part-and-parcel
27 See generally, Bennett, supra note 12. 28 The principal argument — also rejected — involved the bank’s purported fidu- ciary duty (citing Euteneier v Lee (2005), 77 OR (3d) 621 at para 63, 260 DLR (4th) 123 (CA)). 29 2011 ONSC 1475 at para 56, 366 DLR (4th) 566. 30 Indirectly, however, as she had based her claim on the existence of a fiduciary duty. 31 Jones, supra note 11 at para 88.
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of Ontario law.32 According to this approach, privacy torts are action- able only if the impugned infringement is intentional, intruded upon the plaintiff’s seclusion, and is deemed “highly offensive to a reason- able person.”33 It is difficult to apply these criteria, established some time ago, in the digital age.34 Problematically, an individual’s right to privacy is assessed with reference to society’s conception of the measure of privacy that one is entitled to reasonably expect — the more we are watched, the more we expect to be watched. As I have argued elsewhere, such an approach tends to reinforce social tolerance of intrusions previously deemed unreasonable.35 Paradoxically, the more
we are watched, the less privacy we expect. The less we are both- 2015 CanLIIDocs 535 ered, the more we expect others to share in our complacency. That, in turn, augurs poorly for the expectation-driven standard. Therefore, if privacy continues to be defined by reference to seclusion, ubiquitous digital surveillance necessarily dictates that the sphere in which one can reasonably claim solitude will contract.36 Moreover, the seclusion component of the tort as elaborated in the United States can create additional difficulties by reason of its spa- tial and propriety constraints.37 Whereas “Americans carve out space where law may intrude and no further” (a so-called “privacy zone”), mere disclosure of personal information may not only offend a per- son’s dignity, but also affect one’s standing in the community and
32 “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”: Restatement of Torts § 652B, supra note 12, cited in Jones, supra note 11 at para 19. 33 Sharpe J.A. explained that the cause of action consisted of intentional (including reckless) conduct whereby the “defendant . . . invaded, without lawful justifica- tion, the plaintiff’s private affairs or concerns.” Jones, supra note 11 at para 71. 34 Under the English common law, the right to privacy was first recognized by virtue of its intricate link to personal property through trespass, rooting privacy in ownership. See Eltis, supra note 15. 35 Eltis, ibid. 36 Ibid. 37 Ibid.
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psychological well-being.38 As rigorously argued by Calo, unwanted observation can create privacy harms. Unwelcome mental states, anxiety, embarrassment, and fear can stem from the belief that one is being watched or monitored.39 But these harms may not properly translate in the U.S. intrusion-upon-seclusion definition of privacy harm.40 That definition tends to treat such perceptions as “subjective” and non-compensable. On the other hand, proof of economic loss is not required under the tort of intrusion upon seclusion recognized in Jones. As the Court of Appeal notes in its decision: Where the plaintiff has suffered no provable pecuniary loss, the damages
fall into the category of what Professor Stephen M. Waddams . . . describes 2015 CanLIIDocs 535 as “symbolic” and others have labeled as “moral” damages . . . . They are awarded “to vindicate rights or symbolize recognition of their infringement”. . . . I agree with Prof. Waddams’ observation that a conventional range of damages is necessary to maintain “consistency, predictability and fairness between one plaintiff and another.” The case was recently followed and its scope expanded in Hopkins v. Kay, a case involving disclosure and dissemination of hospital rec- ords.41 The Ontario Superior Court held that the existence of a statu- tory cause of action does not preclude a plaintiff from proceeding in tort (here, a class action law suit). In that case, plaintiffs brought suit for intrusion upon seclusion, alleging that close to 300 medical records had been disseminated to third parties by the Peterborough Regional Hospital without patient consent. The hospital sought to have the case dismissed, arguing that the plaintiffs had not made out a cause of action. Whereas such motions tended to be unsuccessful
38 See Sidney M Jourard, “Some Psychological Aspects of Privacy” (1966) 31:2 Law & Contemp Probs 307. According to Adrian Popovici [translation]: “In [common law] Canada, ‘privacy’ includes ‘an irreducible sphere of personal autonomy where individuals can make intrinsically personal decisions with- out state interference.’ That is the American conception as per Griswold v. Connecticut (1965), in a system where personality rights are unknown.” See A Popovici, “Le rôle de la Cour suprême en droit civil” (2001) 34 RJT 611. See also Charles Fried, “Privacy” (1968) 77:3 Yale LJ 475. 39 M Ryan Calo, “Boundaries of Privacy Harm” (2011) 86 Ind L J 1131, online:
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prior to Jones due to the often-intangible nature of privacy harm, the class action was allowed to proceed.42 Importantly, the Court pointed out that “proof of a recognized economic interest is not an element of the cause of action,” such that proof of actual loss is not required to make out the tort.43 As will be discussed below, A.B. also appears to recognize subjective harm to some extent, thus representing an important shift in thinking on this point. Jones has also been followed in various Canadian jurisdictions outside of Ontario.44 For example, the Nova Scotia Supreme Court adopted Jones in Point Lodge Ltd. v. Handshoe, and the case was sim- ilarly followed in Alberta v. Alberta Union of Provincial Employees 45
(AUPE). Even though courts in Alberta have not yet formally recog- 2015 CanLIIDocs 535 nized a tort of invasion of privacy, the AUPE decision suggests that arbitrators “will nevertheless apply the principles articulated in Jones when awarding damages for a breach of privacy.”46 Moreover, the AUPE arbitration award could create a “one-two punch” for employ- ers, whereby a finding of a breach of privacy legislation by the Office of the Information and Privacy Commissioner may be used as the basis for subsequent legal proceedings in which employees seek mon- etary damages arising from the breach.47
42 The Court concluded: “[T]he tort of breach of privacy, as alleged in the plain- tiff’s statement of claim is a claim that should be allowed to proceed.” Ibid at para 30. Furthermore, costs on the motion were awarded to the plaintiffs, in the amount of $24,000. 43 Ibid at para 14. See also Roland Hung & Rachel Ries, “Ontario Superior Court Revisits and Broadens Jones v. Tsige” (18 March 2014), online: McCarthy Tétrault, Canadian Technology Law Blog,
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(b) A.B. v. Bragg: What’s the Harm?
As previously noted, a significant obstacle to recovery for pri- vacy-related infringements has been the requirement to show harm, as traditionally defined. Subjective privacy harm was seen as too vague to merit recognition by the courts. According to Calo, “harm has often operated as a hurdle because courts have a very difficult time articulating what the harm is. They just are not sure that psycho- logical perceptions constitute a harm.”48 But on the heels of A.B. v. Bragg, this is arguably no longer the case, or at least not to the same extent. In A.B., the Supreme
Court of Canada signalled some willingness to recognize assertions 2015 CanLIIDocs 535 of intangible damages arising from privacy violations. A.B. was a 15-year-old adolescent who discovered that someone had created a fake Facebook profile of her containing explicit and disturbing sexual references. She wanted to force the internet service provider (ISP) to reveal her tormentor’s name, with a view to suing for defamation. However, A.B. was deterred from asserting her claim in court by fear of being subjected to further harassment and humiliation. Invoking her right to access to justice, she asked to proceed anonymously.49 This request was rejected by both the Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal. In a unanimous decision penned by Justice Abella, the Supreme Court of Canada held that A.B. should be allowed to proceed anonymously in her application for disclosure of the impugned user’s identity. Significantly, the adolescent plaintiff did not need to dem- onstrate specific privacy harm; rather, the Court agreed to presume harm in light of her vulnerability and based on the context. The Court pointed to the “psychological toxicity” of extreme unwanted online exposure, or cyberbullying. The Courts’s willingness to forego the demonstration of specific harm may serve to herald a more flexible construction of privacy harm, one which is open to recognizing the
48 Interview, available online:
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risk of psychological and social consequences resulting from disclo- sure of sensitive information. In other words, following the watershed decision in A.B., a fear of eventual harm will no longer be deemed unreasonable in the digital context and can accordingly provide a foundation for compensation or redress. This change could have an impact on the tort of intrusion upon seclusion, which previously required a physical intrusion. An example of similar thinking can be found in Curry v. AvMed.50 In this Florida case, company laptops were stolen with no immediately discern- ible consequences. Nonetheless, a group of customers filed a class action lawsuit based on the mere threat of subsequent identity theft,
since the laptops housed their personal information. As International 2015 CanLIIDocs 535 Association of Privacy Professionals Fellow Kelsey Finch recounts: A district court initially dismissed the case for failure to state a cognizable injury. However, in September 2012, the 11th Circuit reversed concluding that a claim of “actual identity theft arising from a data breach” causing monetary loss states sufficient injury for standing purposes and also finding a plausible connection between the breach and the plaintiffs’ instances of identity theft 10 and 14 months later. The case could have continued on negligence, contract and breach of fiduciary duty theories; however, the parties reached a settle- ment agreement in October 2013.51
(c) R. v. Cole: Private Content on Employer-Owned Equipment
Although R. v. Cole is a criminal law case that only indirectly addresses privacy in the workplace, the Supreme Court in that case put forward the proposition that employees have a reasonable expec- taton of privacy in content stored on workplace devices. Briefly, the case dealt with whether Mr. Cole’s section 8 Charter rights were infringed by the warrantless search conducted by police of his school- board-issued laptop. Police had been called after a school board tech- nician conducting routine maintenance found naked photographs of underage female students on the laptop. The Supreme Court held
50 Curry v AvMed Inc, No 11-13694 (11th Cir 2012). 51 K Finch, “The Evolving Nature of Consumer Privacy Harm,” The Privacy Adviser (1 April 2014), online:
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that the police officer required judicial authorization to conduct a search. While the school owned the laptop, that fact alone was deemed insufficient for the purposes of a criminal investigation in light of Mr. Cole’s privacy interest in its content.52 While the crim- inal component might seem to distinguish this case from the other two, the Court’s reasoning and its contextual approach to the work environment strongly suggest that Cole signals a shift to a conception of privacy in which privacy-based rights can arise despite employer property rights. The Court opined, in obiter, that a teacher had a rea- sonable expectation of privacy in relation to personal information stored on his work computer, notwithstanding the fact that the com-
puter belonged to his employer. This ran contrary to earlier case law, 2015 CanLIIDocs 535 which viewed ownership as determinative.53 Significant for our purposes is the fact that the school board computer use policy explicitly affirmed the board’s ownership of all computers and laptops, and further cautioned that “users should not assume that files stored on network servers or hard-drives of indi- vidual computers will be private.”54 The Court nonetheless held that, under the circumstances, Cole’s subjective expectation of privacy in the pictures stored in his work computer was objectively reasonable. The Court observed that . . . [e]ven as modified by practice, however, written policies are not deter- minative of a person’s reasonable expectation of privacy. Whatever the policy states, one must consider the totality of the circumstances in order to deter- mine whether privacy is a reasonable expectation in the particular situation.55 The Court went on to conclude: . . . receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. This
52 Property ownership was previously a salient factor in both Canadian and American case law: see e.g. Syndicat des travailleuses et travailleurs de Bridgestone Firestone de Joliette c Bridgestone/Firestone Inc, 91 ACWS (3d) 291, 1999 CanLII 13295 (Que CA). See also Charles Morgan, “Employer Monitoring of Employee Electronic Mail and Internet Use” (1999) 44 RD McGill 849, and the leading U.S. case Smyth v Pillsbury Co, 914 F Supp 97 (ED Pa 1996). 53 See e.g. Eltis, supra note 15. 54 Cole, supra note 14 at para 55. 55 Ibid at para 53.
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information remained subject, at all relevant times, to Mr. Cole’s reasonable and subsisting expectation of privacy.56 The employer could not negate its employees’ expectation of privacy merely by making statements in its policy intended to defeat such an expectation. This suggests that an employer can no longer rely on written policies alone but must instead provide explicit privacy awareness training to ensure (or attempt to ensure) that in most cases employees’ subjective expectations comport with privacy policies.57 As a result, the mere existence of a policy relating to employee internet use may no longer be determinative. Cole can be seen as standing for the proposition that privacy policies merely diminish,
rather than negate or extinguish, empoyee expectations of privacy in 2015 CanLIIDocs 535 the workplace. In the end, employee knowledge of policies may be more important to courts and regulators than the policies themselves. Furthermore, the fact that the computer was owned by the employer did not preclude an assertion of privacy interests, which in itself suggests a shift away from a property-oriented conception of privacy. The ownership of computers had previously been a
56 Ibid at para 73 57 Thus, for instance, one prominent firm suggests on its website: “Best practices would be to remind employees of those policies from time-to-time rather than allow a sense of privacy to develop as a result of ongoing personal use.” See Davis LLP, “Privacy of Employee Records – Supreme Court of Canada issues decision in R. v. Cole,” online:
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stumbling-block to employee privacy actions due to the importation of the American understanding of privacy as rooted in property.58 This thinking seems to follow decisions in cases such as France (Republic of) v. Tfaily, where Simmons J.A. of the Ontario Court of Appeal affirmed that university professors can reasonably expect pri- vacy in personal data stored on university-owned computers.59 Most saliently, the mere existence of a privacy policy will be insufficient to protect an employer from civil suit.60 Rather, such policies must be explained to employees in order to satisfy notice requirements and to secure consent. Employer efforts such as privacy awareness training are particularly important given the confusion that is often generated 61
by typically obscure and verbose privacy policies. 2015 CanLIIDocs 535
4. TOWARDS INTEGRATING PROPORTIONALITY AND SHARED ACCOUNTABILITY IN THE WORKPLACE PRIVACY CONTEXT
The Supreme Court in Cole decided to “leave for another day the finer points of an employer’s right to monitor computers issued
58 See Lawrence E Rothstein, “Privacy or Dignity? Electronic Monitoring in the Workplace” (2000) 19:3 NYL Sch J Int’l & Comp L 379 at 382. See also Smyth v Pillsbury Co, supra note 54 (standing for the proposition that employees do not have a reasonable expectation of privacy at work, because no “reasonable person would consider the defendant’s interception of [his] communications to be a substantial and highly offensive invasion of his privacy”). As Van den Haag remarks in the electronic surveillance context in the U.S., and indeed in the com- mon law world generally, “[p]rivacy is best treated as a property right. Property grants an owner the exclusive right to dispose of what he owns. Privacy is the exclusive right to dispose of access to one’s proper (private) domain.” Ernest van den Haag, “On Privacy,” in J Roland Pennock & John W Chapman, eds, Privacy (Atherton Press, 1971) 149 at 150-151 [citations omitted]. 59 2010 ONCA 127, 98 OR (3d) 161. As in Cole, the question was whether there were sufficient grounds to issue warrants to search the work computers of the appellant, a professor at Carleton University. Simmons J.A. noted that university professors are entitled to use their work computers for personal communications and research, and that therefore they have an objectively reasonable expectation of privacy in relation to personal electronic data. 60 See Syndicat des travailleuses et travailleurs de Bridgestone Firestone de Joliette c Bridgestone/Firestone Inc, supra note 54, criticized in Eltis, supra note 15. 61 See Vincent Gautrais, “The Color of E-consent” (2004) 1:1 U Ottawa L & Tech J 189.
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to employees.”62 Nonetheless, when the decision is read in conjunc- tion with those in A.B. and Jones, we can see that proportionality principles have steadily begun to seep into the workplace context, permeating employer obligations with regard to internet monitoring and related matters. In R. v. Oakes,63 the Supreme Court of Canada recognized the principle of proportionality as part of the analysis which must be undertaken under section 1 of the Canadian Charter of Rights and Freedoms in determining the extent to which the government may justifiably limit constitional rights. The same proportionality principle, over time, has evolved into what is essentially a three-
pronged test, which requires an evaluation of whether an impugned 2015 CanLIIDocs 535 government action — simply stated — is rationally connected to its objective, whether the objective is sought to be achieved in the least restrictive manner (minimal impairment) and finally, whether the impugned action is proportional in stricto sensu, in the sense that the benefits outweigh the harms incurred. The Oakes test has penetrated into the private law realm not by explicit endorsement, but rather by grafting a loose version of the Oakes proportionality component onto civil cases. Indeed, the three- pronged test has already been adopted in employment and labour law decisions. Alon-Shenker and Davidov posit that a number of branches of Canadian employment and labour law implicitly or explicitly bal- ance rights and reciprocal obligations using the third stage of the proportionality test in the analysis of alleged rights infringements.64 Thus, the proportionality principle has been used explicitly in disci- pline and dismissal cases when applying the just cause standard,65 and
62 Supra note 14 at para 60. 63 [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes]. 64 Supra note 20 at 380. 65 For example, Dowling v Ontario (Workplace Safety and Insurance Board) (2004), 246 DLR (4th) 65 (Ont CA), 37 CCEL (3d) 182 (containing elements of all three stages of the proportionality test); Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979), 23 LAC (2d) 227 at 230 (balancing the benefits of achieving the employer’s objective against the harms imposed upon the employee).
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implicitly in cases involving workplace discrimination,66 picketing67 and unfair labour practices.68 The balancing of rights and obligations between employers and employees in the context of privacy rights has also progressed signifi- cantly in the application of the Personal Information and Protection of Electronic Documents Act (PIPEDA).69 Section 5(3) of PIPEDA states that that “[a]n organization may collect, use or disclose per- sonal information only for purposes that a reasonable person would consider are appropriate in the circumstances.” In interpreting this provision, the Privacy Commissioner of Canada has developed a fourfold proportionality test akin to the Oakes test. Alon-Shenker and
Davidov observe that this test has been endorsed by the Federal Court 2015 CanLIIDocs 535 and in arbitration awards.70
66 See British Columbia (Public Service Employee Relations Commission) v BCGEU, [1999] 3 SCR 3, 176 DLR (4th) 1 [Meiorin], where the Supreme Court of Canada developed a three-stage test reminiscent of the Oakes test, the third prong involving a balancing of the interests and rights of the employer and those of the employees when analyzing the duty to accommodate and whether undue hardship has been reached. 67 See, for example, Unilux Boiler Corp v Fraser, 2005 CarswellOnt 4362 (WL). Alon-Shenker and Davidov, supra note 20, infer that the court issued a restrain- ing order against the union’s picketing tactics either because the union failed to demonstrate minimal impairment to the employer’s interests or because the costs of delaying the entry of employees into the workplace by more than five minutes outweighed the benefits of picketing; Ogden Entertainment Services v USWA, Local 440 (1998), 159 DLR (4th) 340, 43 CLRBR (2d) 39 (Ont Ct J (Gen Div)), where the court balanced the relative convenience to the parties, weighing the employees’ interest in impeding traffic against the right of other employees and the public to lawful entry and exit from the Corel Center; Industrial Hardwood Products (1996) Ltd v International Wood and Allied Workers of Canada, Local 2693, 2000 CarswellOnt 383 (WL) (holding that the harm caused by delaying the transport of replacement workers and obstructing their access to the workplace outweighed the benefits to the picketers). 68 See Society of Energy Professionals v Hydro One Inc (2005), 123 CLRBR (2d) 42 (Ont LRB), where the Board weighed the significance of the interference with the trade union against the benefits to the employer in achieving a legitimate business goal. 69 SC 2000, c 5 [PIPEDA]. Alon-Shenker and Davidov note that arbitrators who adjudicated privacy cases prior to PIPEDA also applied a proportionality test similar to the Oakes test. Supra note 20 at 388. 70 Ibid at 389.
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The proportionality principle also appears to be making its way into non-PIPEDA workplace privacy cases.71 Thus, for instance, in Halifax (Regional Municipality of) v. Nova Scotia Union of Public and Private Employees, Local 2,72 a Nova Scotia arbitrator concluded that the invasion of privacy caused by recording and storing all incom- ing calls for a period of one year at a call center was disproportionate to any benefit accruing to the employer, and therefore was proscribed. The cases discussed above set the stage for a more general extension of proportionality analaysis into the treatment of workplace privacy law. By recognizing as actionable a range of psychological and non-pecuniary harms, those decisions will require adjudicators to
move away from a categorical approach to one that focuses on identi- 2015 CanLIIDocs 535 fying legally protected privacy interests. At the same time, adjudica- tors will take a more contextual approach to identifying and weighing competing interests. For example, the employer’s property rights in electronic equipment will no longer automatically trump employee privacy interests. A contextual appreciation of privacy appears to be in the process of incrementally materializing and supplanting one based on property and seclusion.73 Reconciling this wider range of protected privacy interests with a more nuanced set of employer and employee interests will in turn invite consideration of whether legitimate employer interests are being pursued in a proportionate manner. According to such an approach, which this paper will refer to as “shared accountability,” privacy policies must be rationally con- nected to their objectives and impair employees’ privacy rights as little as possible. In this sense, any intrusion on privacy rights must be proportional to the objective sought to be achieved.74 But how is an employer to divine which communications are “private” in a world where peoples’ professional and personal lives
71 Ibid. 72 (2008), 171 LAC (4th) 257 (Veniot). 73 Although a reading of Jones on its own seems to suggest that the courts are adopting an outdated American tort criticized elsewhere, it quickly becomes apparent that this is not the case when that case is read together with Cole and A.B. v. Bragg. 74 Ritu Khullar & Vanessa Cosco, “Employee Privacy Rights and Drug and/ or Alcohol Testing: Getting the Balance Right” (2012) 25 Can J Admin L & Prac 237.
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increasingly overlap and there exist numerous intangible yet action- able privacy interests? Tasking employers with sole responsibility for this proved unworkable in the French context, as shown by the much-maligned decision in Nikon.75 That in turn prompted the Cour de Cassation, in the subsequent Bruno B case, to impose recipro- cal duties on employees to affirmatively label or signal content or material which they consider “personal”76 (an approach that is not dissimilar to the way in which Facebook privacy settings are con- sidered for discovery purposes), thus to a certain extent exonerating employers and facilitating accountability. From this, we can begin to see the outlines of a model of “shared
accountability” for workplace privacy, with reciprocal obligations 2015 CanLIIDocs 535 woven into the emerging proportionality analysis. Accountability, it is worth emphasizing at this juncture, has a special significance in the privacy context. While a detailed discussion exceeds the scope of this paper, it will suffice to cite the Office of the Privacy Commissioner’s brief description: Accountability in relation to privacy is the acceptance of responsibility for personal information protection . . . . Employees of accountable organizations should be aware of and understand the applicable parts of the organization’s privacy management program. Customers, partners, and service providers should likewise be made aware of and given confidence in relevant aspects of the privacy management program . . . . Finally, accountable organizations should be able to demonstrate to Privacy Commissioners that they have an effective, up to date privacy management program in place in the event of a complaint investigation or audit.77 Shared accountability places the onus on both employer and employee to shoulder responsibility for privacy management in proportion to their respective interests, ascertained contextually and purposively,
75 Nikon France SA Co v Onof, Cour de cassation [Cass], soc, Paris, 2 October 2001, Bull civ V, No 4164, online:
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with a particular focus on reciprocal duties rather than exclusively on rights. Thus, in order to exonerate themselves from liablity in the post- Cole world, employers will be required not only to respect employee privacy by using the least restrictive means to achieve their business objectives, but also to carefully explicate the effect of their privacy policies rather than merely assert their existence. On the other hand, employees will be required to make reasonable efforts to protect their own privacy and to clearly signal to the employer, in a proactive way, what material they consider private. A “shared accountability” view would recognize a positive obligation incumbent upon employ-
ees to assert privacy rights over certain data (similar to the treat- 2015 CanLIIDocs 535 ment of a litigant’s choice of privacy settings on social networks, for the purposes of discovery in a civil action78) where the existence of such rights might not be immediately apparent to the employer. This would reflect the approach taken inCole , where the fact that the school board allowed employees to password-protect their computers was considered salient in determining whether the material attracted privacy protection. In this vein, it is worth emphasizing that the Court looked at whether an employee had taken steps to reasonably limit employer access to the information. Although the Court was consid- ering the issue in the context of material targeted for search and seiz- ure, it is reasonable to see in the Court’s approach an acceptance of the basic logic of shared accountability, whereby employees should be required to carry their share of the burden in upholding privacy.
78 See e.g, Higgins v Koch Development Corp, 2013 US Dist LEXIS 94139 (SD Ind 2013). “In determining whether the privacy rights of the plaintiffs and non-parties would be violated, the plaintiffs asserted that the request violated their right to privacy because they had their Facebook accounts set on the highest level of privacy. However, the defendant had shown the relevance of the request and had taken certain steps to avoid unduly invading the plaintiffs’ privacy. Therefore, discovery of the plaintiffs’ Facebook information would not violate their right to privacy. In ruling on the privacy rights of non-parties, the district court held that photos of non-parties that ‘tag’ the plaintiffs are considered in the posses- sion, custody or control of the plaintiffs. Therefore, the court found a limited expectation of privacy for non-parties when they ‘tagged’ pictures of the plain- tiffs.” M Barley, “How private are Facebook privacy settings?” (27 September 2013), Mississippi Business Journal, online:
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5. CONCLUSION: FROM ACCOUNTABILITY TO SHARED ACCOUNTABILITY
The challenge inherent in importing a public law principle into the private realm, especially a realm as delicate and as volatile as the workplace, is to prevent the proportionality analysis from being either too narrow, thus discounting legitimate and evolving employer inter- ests, or too amorphous, thereby depriving the parties of the necessary guidance. Employers have many legitimate concerns that are height- ened by new technologies, including performance monitoring, qual- ity assurance, preservation of the integrity and security of systems,
avoidance of liability (for sexual harrassment, discrimination, defam- 2015 CanLIIDocs 535 ation and intimidation, among others), protection of trade secrets and confidential information, and at a most basic level, avoidance of lost time due to excessive personal use of those technologies, particularly social media. On the other hand, as our personal and professional lives increasingly intersect — sometimes to the point of being indis- tinguishable — it may be well unclear whether or not an e-mail (or other communication) is “private” (or whether it falls somewhere in-between). As evidenced by the “trilogy” reviewed in this paper, courts appear to be moving towards a broader recognition of privacy interests. Consequently, the imposition of affirmative duties upon employees as a corrolary to the duties to which employers are now presumably subject (if Cole’s reasoning holds sway) appears to be a helpful start towards a workable form of proportionality — one that encourages a “shared accountability” model of privacy protection. Shared accountability, firmly predicated on the principle of propor- tionality, goes beyond simple “accountability” and serves to satisfy both the dignity and the control rationales that are seen to underpin privacy protection.79
79 And which are the source of considerable debate, as they are often viewed as zero-sum alternatives (i.e. as requiring that policy-makers choose between rec- ognizing a privacy protection rationale that is predicated on control or one that is predicated on dignity).
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06_Eltis.indd 516 15-03-24 10:57 AM “The Lady Doth Protest Too Much, Methinks” – The Right to Strike, International Standards and the Supreme Court of Canada
K.D. Ewing*
This article rejects the claim — maintained, until very recently, before the ILO by the International Organisation of Employers (IOE) — that the right
to strike is not protected by international law. The author notes that in advan- 2015 CanLIIDocs 535 cing this position, the IOE focused on the interpretation of ILO Convention 87 on freedom of association, which, though it does not specifically address the right to strike, has been read as implicitly including such a right by the ILO’s independent Committee of Experts. In his view, regardless of whether or not Convention 87 includes a right to strike, that right is clearly protected by a number of other international law sources, among them the ILO Constitution, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. He also describes how the European Court of Human Rights, in developing a normative basis for the right to strike in recent ground-breaking decisions, has relied on a wide range of treaties, including ILO Convention 87. The author emphasizes that the ques- tion has important implications not only for constitutional litigation in Canada (where both the federal and provincial governments have been criticized by the ILO supervisory bodies for their frequent resort to back-to-work legislation), but for basic labour rights globally (such as in Cambodia, where the recent killing of striking workers has underlined the need for universal standards). The paper concludes with a postscript in which the author reflects on two key developments that occurred shortly before this issue of the CLELJ went to press: the Supreme Court of Canada’s recognition, in the Saskatchewan Federation of Labour case, of a right to strike under section 2(d) of the Charter of Rights and Freedoms guaranteeing freedom of association; and the concession by the IOE, less than a month after the Supreme Court’s decision, that ILO instruments do in fact protect the right to strike.
* Professor of Public Law, King’s College, London, England. This is an extended and updated version of a paper delivered at the University of Western Ontario on October 26, 2013. An earlier, unpublished version of this paper was submitted by one of the intervenors in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, a decision which is considered in part IX below.
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I
Heenan Blaikie was a great Canadian law firm. One of its many distinctions was that it served as general counsel to the Canadian Employers’ Council, which represents Canadian employers at the International Labour Organization (ILO). Indeed, Heenan Blaikie was so important that a former partner — Ms. Sonia Regenbogen — represented Canadian employers on the ILO Committee on the Application of Standards (CAS). The latter is a standing tripartite body of the International Labour Conference, which examines each year the report published by the independent Committee of Experts.
It is a mark of the distinction of Heenan Blaikie and Ms. 2015 CanLIIDocs 535 Regenbogen respectively that they should occupy this very important role at the ILO. It is, however, a position that was occupied at a time of great controversy in international labour law, with the CAS and the International Organisation of Employers (IOE) in the eye of a storm about the extent — if any — to which the right to strike is protected by international labour law. The employers are now disputing the very existence of such a right and the legitimacy of the process by which it has been created.1 At the heart of this dispute is ILO Convention 87, an inter- national treaty ratified by Canada in 1972, and now ratified by 152 other countries as well. Convention 87 deals generally with the right to freedom of association, but in doing so does not specifically address the right to strike. However, that right has been read into the general provisions of the treaty by the independent Committee of Experts on the Application of Conventions and Recommendations (CEACR), a body established with the constitutional authority of the ILO in 1926.2 The CEACR (made up of distinguished jurists) supervises the application of ILO conventions by ILO member states, and makes comments thereon.
1 See Claire La Hovary, “Showdown at the ILO? A Historical Perspective on the Employers’ Group’s 2012 Challenge to the Right to Strike” (2013) 42:4 Indus LJ 338 [La Hovary, “Showdown at the ILO”]. 2 See Bernard Gernigon, Alberto Odero & Haracio Guido, “ILO Principles Concerning the Right to Strike” (1998) 137:4 Int’l Labour Rev 441 [Gernigon, Odero & Guido, “ILO Principles”].
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Curiously, such esoteric matters are important — very important — in Canada; for what happens in obscure committees in Geneva has serious implications for legal proceedings in cities like Edmonton, Saskatoon, Toronto and of course Ottawa. Of this Ms. Regenbogen is acutely aware (as is only to be expected), writing an important article about the ILO for the Canadian Labour and Employment Law Journal, using her great knowledge of ILO procedures in what could be read as an address to the Supreme Court of Canada (SCC) about the dangers of relying on ILO conventions in the development of Charter jurisprudence.3 The article appeared shortly after Fraser,4 in a special sympo- Canadian Labour and Employment Law Journal
sium issue of the . It 2015 CanLIIDocs 535 came hot on the heels of an earlier attack on the SCC’s performance in B.C. Health Services,5 this time from a Canadian academic source, Professor Langille, claiming that the SCC was guilty of serious mis- takes in its handling of international labour standards.6 Whatever their intentions, both of these interventions appear likely to undermine the confidence of justices grappling with the difficult question of the right to strike, with which other courts are also grappling.7
3 Sonia Regenbogen, “The International Labour Organization and Freedom of Association: Does Freedom of Association Include the Right to Strike” (2012) 16:2 CLELJ 385 (as the article makes clear, other Heenan Blaikie partners were counsel to employer parties or interveners in Fraser, as well as in the B.C. Health Services and Dunmore cases referred to below). 4 Ontario (AG) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 [Fraser]. 5 Health Services and Support – Facilities Subsector Bargaining Ass’n v British Columbia, 2007 SCC 27, [2007] 2 SCR 391 [B.C. Health Services]. 6 Brian Langille, “Can We Rely on the ILO?” (2007) 13:1 CLELJ 273 [Langille, “Can We Rely on the ILO?”]; Brian Langille, “The Freedom of Association Mess: How We Got into It and How We Can Get Out of It” (2009) 54:1 McGill LJ 177 [Langille, “The Freedom of Association Mess”]. See also Brian Langille & Benjamin Oliphant, “From the Frying Pan into the Fire: Fraser and the Shift from International Law to International ‘Thought’ in Charter Cases” (2012) 16:1 CLELJ 181. For a reply, see Alan Bogg & KD Ewing, “A Muted Voice at Work? Collective Bargaining in the Supreme Court of Canada” (2012) 33:3 Comp Lab L & Pol’y J 379; KD Ewing & John Hendy QC, “Giving Life to the ILO – Two Cheers for the SCC” in Fay Faraday, Judy Fudge & Eric Tucker, Constitutional Labour Rights in Canada (Toronto: Irwin Law, 2012) at 286 [Ewing & Hendy, “Giving Life to the ILO”]. 7 See e.g. B.C. Health Services, supra note 5 at para 248 (Justice Rothstein adopts Professor Langille’s argument).
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The purpose of this article is to contest the employers’ claims and assert unequivocally that the right to strike is fully protected by international law, in a manner that has important implications for Canadian constitutional litigation. But although this is the major focus of the article, there is another purpose, which is to highlight that the controversy in Geneva does not have implications only for legal proceedings in Canada. The position now adopted by the employers has huge implications globally for the response by businesses and governments to industrial action by trade unions. These implications can be seen most vividly by recent events in Cambodia. Admittedly a long way from Canada, these events are
nevertheless important because of the sense of empowerment that 2015 CanLIIDocs 535 employers have drawn from the behaviour of the IOE. They are important also as a compelling revelation of why the question of inter- pretation now before the SCC is not a genteel parlour game for law- yers. It is one with grave implications, with the events in Cambodia a disturbing reminder of what happens in countries where these rights are traduced. But these developments are important for another reason central to the purpose of this article, which is to demonstrate that the right to strike is protected by international law. Cambodian practice reveals not only a need for universal international standards, but in doing so has generated jurisprudence before the ILO Committee on Freedom of Association (CFA) that puts beyond doubt that ILO standards pro- tect the right to strike. From thereon, the article seeks to show how that right has cascaded down various international treaties, where it is now either expressly referred to or implicitly acknowledged.
II
On January 30, 2014, the Phnom Penh Post carried an arti- cle about a paid advertisement the Post had published the previous day.8 The advertisement — which also appeared elsewhere in the local media — was run on behalf of the Garment Manufacturers’
8 Shane Worrell & Mom Kunthear, “Right to Strike ‘Fundamental,’” Phnom Penh Post (30 January 2014), online:
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Association in Cambodia (GMAC) and the Cambodian Federation of Employers and Business Associations (CAMFEBA) to attack the ILO regional office and local trade unions for misleading the Cambodian public with claims that ILO Convention 87 on freedom of association protected the right to strike. According to the employers, “[t]he right to strike is not provided for in . . . C87 and was not intended to be.”9 The employers continued: “Is the right to strike therefore a funda- mental right? NO. The right to strike is NOT a fundamental right.”10 This is extraordinary for a number of reasons. How often do argu- ments about the meaning of international labour standards figure so prominently in the national media of any country? But even more extra- ordinary is the timing of the advertisements, appearing shortly after 2015 CanLIIDocs 535 deadly protests in the Cambodian garment sector in the month before the advertisements appeared. According to the article in the Phnom Penh Post, “[t]he advertisement followed a mass strike in the garment industry that began in December and ended this month after security forces shot dead four protesters near a garment factory in the capital.”11 In the flurry of protest that followed the publication of the advertise- ment, an employers’ spokesperson denied that they had been guilty of misinformation and that their intention had simply been to “clarify the impression that workers have the right to strike absolutely — they have the right, but it is the prerogative of each country to set the conditions.”12 These views were strongly repudiated by the ILO regional office, provoking another outburst from the Cambodian employers, who demanded that the ILO retract its comments, accusing the agency of “creating tension and spreading misinformation.”13 Elaborating in a letter to the ILO, CAMFEBA claimed that “[t]he International Labour Conference (ILC) in 2013 in the Committee of Application and Standards (CAS) was extremely clear that there is absolutely no consensus regarding right to strike and Convention 87,” adding
9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 Shane Worrell, “Groups tell ILO to retract ‘right to strike’ claim,” Phnom Penh Post (6 February 2014), online:
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that “[t]he fact that the ILO makes a statement (claiming tripartite consensus) is extremely harmful and not a true representation of what is happening globally.”14 Clearly concerned that their message was not getting across in light of a robust challenge from the ILO regional office (which utterly repudiated this interpretation of Convention 87), the employers took to the letters page of the Phnom Penh Post to repeat the claim that the views of the ILO regional office “do not represent tripartite con- sensus within the ILO.”15 Although “employers respect that striking is a means of industrial action . . . this does not mean such action is a fundamental right.”16 In a chilling passage, the letter continued:
Cambodian delegates comprising of CAMFEBA, unions and government 2015 CanLIIDocs 535 were all represented at the 2013 International Labour Conference where the ILO Committee of Application of Standards (CAS) deliberated on the Right to Strike and C87. The CAS is a supervisory body and oversees complaints against governments. The 2013 meeting outcome is clear. All cases which have a challenge related to right to strike and C87 will carry the following statement moving forward: “The Committee did not address the right to strike in this case as the employ- ers do not agree that there is a right to strike recognized in C87.” This statement makes two points clear which have not been transparent before. First, there is no agreement in CAS that C87 recognises a right to strike. Secondly, because of consensus absence, CAS recognises that it is not in a position to make requests to governments to change their laws and practice regarding the right to strike.17 The International Trade Union Confederation (ITUC) pre- dictably saw things differently. Rather than hide behind dubious interpretations of ILO conventions and contrived disputes with inter- national agencies to deflect attention, the ITUC mission focused on the consequences of the state’s action, demanding that: The 23 prisoners who were arrested in the context of the recent demonstrations in the garment sector must be released immediately and charges dropped. As
14 Ibid. 15 Cambodian Federation of Employers and Business Associations, “Industrial relations and rights,” Letter to the Editor, Phnom Penh Post (7 February 2014), online:
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many were beaten, some severely, by the security forces, all necessary medical attention must be provided. As called for by the UN, a credible, independent inquiry must be established immediately to investigate the killing of garment workers on 3 January. The use of lethal force against the demonstrating workers was manifestly exces- sive and must be condemned. Those responsible for the killings must be held accountable. Trade union leaders and activists who were dismissed or suspended for partici- pating in legitimate trade union activity, including the strikes and demonstra- tions intended to seek an increase to the extremely low minimum wage rate, must be reinstated. In the case that short-term contracts of union activists were not renewed on a discriminatory basis, those workers must be re-employed.18
It is regrettable that the consequences of the IOE’s conduct 2015 CanLIIDocs 535 should be seized upon to give comfort to bodies such as CAMFEBA, in the context of a dispute in which striking trade unionists were killed. It is all the more regrettable that the IOE’s conduct should be relied on in countries like Cambodia where there are not only concerns about the killing of strikers, but also about freedom of asso- ciation more generally. Indeed, it might well have been thought that CAMFEBA had more urgent concerns to address than whether or not Convention 87 protects the right to strike, given the nature of the concerns about Cambodia that have been raised by the ILO since ratification of Convention 87 in 1999. Cambodia has a dreadful record before the ILO, and has had so for many years. It is true that Cambodia has ratified Convention 87, along with twelve other conventions (including the other seven fundamental conventions). However, it is not clear why Cambodia has taken the trouble formally to accept any of these obligations, having been revealed by its conduct as clearly having no intention of complying with their terms to the extent required. As a result, Cambodia has been exposed to the most damning criticism of the ILO supervisory bodies, including the CEACR, on matters which to my knowledge are not disputed by the IOE in its à la carte approach to supervision.
18 ITUC, “Statement on Cambodia” (13 January 2013), online:
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Since ratifying Convention 87 in 1999, Cambodia has been the subject of strong criticism by the CEACR in particular. In its most recent report the Committee repeated a number of concerns relat- ing to allegations of a serious kind, to which Cambodia has been encouraged to respond.19 The CEACR noted (again) “with regret” that the Cambodian government had (again) failed to respond to these concerns, the Committee recalling that “it had previously urged the Government to send its observations on the comments made in 2010, 2011, 2012 and 2013 by the International Trade Union Confederation (ITUC), the Cambodian Labour Confederation (CLC), and others about serious acts of violence and harassment against trade union 20
leaders and members.” 2015 CanLIIDocs 535
III
It is important to recall that the independent Committee of Experts (CEACR) has long taken the view that ILO Convention 87 includes the right to strike. It is also important to recognize that it has not raised this question in its observations relating to Cambodia, perhaps because it has bigger fish to fry. However, the opportunity to raise this question has been presented to the ILO’s other supervisory body, namely the tripartite Committee on Freedom of Association (CFA), which has also been robust in its criticisms of Cambodian law and practice on a wide range of issues relating to freedom of association. Unlike the CEACR, the CFA has expressly addressed the right to strike, which Cambodian employers rather curiously but conveniently remind us is protected by the Cambodian Constitution.21 So even if it was successful in its claim that Convention 87 does not include the right to strike, how far would this take Cambodia, the
19 ILO, Committee of Experts on the Application of Conventions and Recommendations, General Report and Observations Concerning Particular Countries, ILC.103/III/1A (Geneva: International Labour Office, 2014) at 74, online:
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IOE or CAMFEBA? The answer is not very far, for this reason: the right to strike is recognized by two ILO supervisory bodies, applying different legal instruments. One is the CEACR, responsible for the supervision of Convention 87 (along with 188 other conventions). But the other is the CFA, responsible for supervising the freedom of association guarantees in the ILO Constitution. The duty to uphold the principle of freedom of association applies whether or not the country in question has ratified any of the freedom of association conventions. This recognition of the principle of freedom of association is to be found in the preamble to the ILO Constitution, as one of the objects
which by virtue of Article 1 of the Constitution the ILO has been 2015 CanLIIDocs 535 established to promote. This statement in the preamble is reinforced by the express reference (also in Article 1) to the Declaration of Philadelphia, made in 1944 as part of the renewal of the ILO in the aftermath of the Second World War.22 The latter opens in the follow- ing manner: The Conference reaffirms the fundamental principles on which the Organisation is based and, in particular, that: (a) labour is not a commodity; (b) freedom of expression and of association are essential to sustained progress; (c) poverty anywhere constitutes a danger to prosperity everywhere . . . .23 This commitment to freedom of association is also to be found in two other declarations of general application, and though these are not constitutional documents, all member states have signed them.24
22 On the importance of the Declaration of Philadelphia, see Alain Supiot, The Spirit of Philadelphia: Social Justice vs the Total Market, translated by Saskia Brown (London: Verso, 2012). 23 Constitution of the International Labour Organisation, 10 May 1944, 15 UNTS 40, Annex (the Declaration of Philadelphia, also known as the Declaration concerning the Aims and Purposes of the International Labour Organisation, adopted at the 26th session of the ILO, Philadelphia, 10 May 1944, is published as an Annex to the ILO Constitution). 24 ILO Declaration on Fundamental Principles and Rights at Work, 86th Sess (1998) (commits member states to “respect and promote” four core principles including “freedom of association and the effective recognition of the right to collective bargaining”) [ILO Declaration on Fundamental Principles and Rights at Work]; ILO Declaration on Social Justice for a Fair Globalisation, 97th Sess (2008) (emphasizes inter alia the importance of freedom of association and col- lective bargaining) [ILO Declaration on Social Justice for a Fair Globalisation].
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The crucial feature of the CFA is that it receives complaints from trade unions alleging that freedom of association principles have been violated. As such, it hears complaints both from countries (such as Canada and Cambodia) that have ratified Convention 87 and those (such as the United States and China) that have not. Another crucial feature of the CFA is that — as already indicated — it is tripartite (yes, that means that employers are represented on the committee and play a full part in its proceedings with trade unionists and govern- ments). It will thus be a surprise to those unfamiliar with the ways of the ILO that the CFA should conclude that the constitutional principle relating to freedom of association does include the right to strike.
This means that there is a constitutional obligation arising by 2015 CanLIIDocs 535 virtue of membership in the ILO (and quite apart from ratification of Convention 87) to respect and protect the right to strike. So let’s assume for the sake of argument that the IOE is correct in its claim that Convention 87 is to be read more narrowly than the ILO Constitution, or that Cambodia were to respond to the demands of CAMFEBA to denounce Convention 87 and thereby cease to be bound by it. Neither step would remove the obligation on the part of Cambodia to respect the right to strike; it would only affect the level of scrutiny in the application of the right, which would no longer be scrutinized by the CEACR. As already pointed out, while the CEACR has so far had little to say about the right to strike in Cambodia (concentrating instead on killings and other misdeeds), the CFA has not been so silent. The CFA has not only drawn the attention of the government of Cambodia to its obligations in relation to the right to strike, but in the course of doing so made very clear that the right to strike is protected by ILO standards, from which Cambodia cannot escape by denouncing Convention 87 but only by denouncing the ILO completely and becoming an even greater pariah state than it is already. To repeat: this is because obligations relating to the right to strike arise by virtue of ILO membership, independently of ratification of Convention 87. The first complaint from Cambodia to the CFA about the right to strike was in 1997, when the CFA made clear that whatever it was supervising, it embraced the right to strike.25 It is true that the CFA
25 ILO, Freedom of Association Committee, Case No 1934 (Cambodia), Report No 316, June 1999 [Case No 1934 (Cambodia)].
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accepted that “the right to strike may be restricted or prohibited in certain limited circumstances.”26 However, it also reaffirmed that “the responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved.”27 And while accepting (consistently with the jurisprudence28) that “the right to strike may be restricted or pro- hibited in the public service,” this could be “only for public servants exercising authority in the name of the State or in essential services in the strict sense of the term.”29 In making clear that the right to strike was protected by the principle of freedom of association (how could it not be?), the CFA
repeated that while limitations and restrictions are permitted, “final 2015 CanLIIDocs 535 decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute.”30 The CFA also made it clear that “no one should be penalized for carrying out a legitimate strike,” including specific- ally dismissal.31 Revealing that the garment industry was a problem even then, the CFA proceeded once again to request the government: [R]eview the situation of the dismissed trade union leaders and workers of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question, and to keep it informed in this regard. Furthermore, the Committee has stated in the past that it would not appear that sufficient protection against acts of anti-union discrimination is granted by legislation in cases where employers
26 Ibid at para 210. 27 Ibid. 28 See Gernigon, Odero & Guido, “ILO Principles,” supra note 3. 29 Case No 1934 (Cambodia), supra note 25 at para 210 (also note that essential services were defined as “services the interruption of which would endanger the life, personal safety or health of the whole or part of the population”). 30 Ibid (the CFA requested the government “take into account these principles in the future with regard to the exercise of the right to strike”). 31 Ibid at para 211. But see United States of America, Department of State, Country Reports on Human Rights Practices 2010 (Cambodia) (“in spite of legal provisions protecting strikers from reprisals, there were credible reports that workers were dismissed on spurious grounds after organizing or participating in strikes” at 36), online: US Department of State
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can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities.32
IV
It should be clear from this brief visit to Cambodia that the right to strike is protected by ILO standards. Whatever the position under ILO Convention 87, there is an obligation to respect the right to strike as a constitutional obligation of ILO membership. This, however, is not the only problem for the employer strategy of undermining the CEACR. The other problem is that beyond the ILO the right to strike is recognized by other treaties as well, both at international 2015 CanLIIDocs 535 and regional levels. So even if the employers were able to persuade national courts that Convention 87 should be ignored on account of the CEACR assuming a jurisdiction it does not have to do something that was never intended, they still have a battery of loaded weapons pointing in their direction which it will not be possible to disarm. First amongst these — because the point is so explicit — is the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). The importance of the latter is that in the general framework of freedom of association, by Article 8(1)(d) it provides expressly for the right to strike “provided that it is exercised in con- formity with the laws of the particular country.”33 It is true that this qualification, if read literally, looks like a massive get-out-of-jail-free card for governments everywhere, potentially authorizing all manner of restrictions that have the effect of reducing the formal protection to naught. It has been pointed out, however, that this latter phrase — which has a parallel in Convention 8734 — “was not designed to
32 Case No 1934 (Cambodia), supra note 25 at para 211. 33 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 8(1)(d) [ICESCR]. 34 ILO, Freedom of Association and Protection of the Right to Organise Convention, C87, 9 July 1948. Convention 87 provides by Article 8(1) that “[i]n exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.” However, Article 8(2) provides that “the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.”
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deprive the right to strike of its meaning, but rather to highlight the requirement that strikers conform to certain procedural rules when using strike action.”35 But quite apart from anything else, it is very significant that any restrictions introduced under Article 8(1)(d) (and in relation to the other freedom of association guarantees in Article 8) should not fall below the standards of the ILO, which are established as a modern Plimsoll line for labour standards. Thus, in setting the standard below which no national system may legitimately fall, Article 8(3) of the ICESCR provides: Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and 2015 CanLIIDocs 535 Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guaran- tees provided for in that Convention.36 This latter provision serves two purposes: first it tends strongly to suggest that in 1966 there was universal acknowledgement that Convention 87 protected the right to strike, while secondly (as already pointed out) providing a limit below which national laws could not fall. It is, however, notable that Article 8(3) of the ICESCR refers to Convention 87 rather than the ILO Constitution as the standard by which the rights in Article 8(1) are to be judged. This applies to all freedom of association rights protected there and not only the right to strike. At least at a formal level this gives rise to the possibility of a two-level protection of the right to strike under the ICESCR: a higher-level protection for countries like Canada (and Cambodia) that have ratified Convention 87 and a lower-level protection for those countries (like the United States and China) that have not. It would clearly have been preferable if the standard of Article 8(3) was the standard of the ILO Constitution rather than the standard of Convention 87, though it seems unlikely that any differentiated inter- pretation of Article 8(1)(d) could be sustained in practice, and that as
35 Jeff King, An Activist’s Manual on the International Covenant on Economic, Social and Cultural Rights (Colombo, Sri Lanka: Law and Society Trust, 2003) at 73. 36 ICESCR, supra note 33, art 8(3).
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a result the standards set by the CEACR will be the default position for all countries under the ICESCR. But quite apart from the fact that the right to strike is expressly protected by the ICESCR, the right to strike has also been read into the International Covenant on Civil and Political Rights (ICCPR), which by Article 22 provides simply that: Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.37 The Human Rights Committee had originally taken the view (in a complaint against Canada) that Article 22 does not include the right to strike. Although the Committee acknowledged the decisions of the ILO supervisory agencies, and had “no qualms about accepting 2015 CanLIIDocs 535 as correct and just the interpretation of those treaties by the agencies concerned,” it also acknowledged that “each international treaty . . . has a life of its own and must be interpreted in a fair and just manner . . . by the body entrusted with the monitoring of its provisions.”38 Having regard to the ordinary meaning of the text and the draft- ing history of Article 22, the Committee concluded that those who drafted the treaty had not intended to include the right to strike. This was a view reinforced by the fact that the parallel ICESCR did include the right to strike, which was taken “to show that this right is not included in the scope of [Article 22].”39 In a strongly worded indi- vidual opinion (with which four of her colleagues agreed), Professor Rosalyn Higgins disagreed, and as is often the case it is the power- fully argued dissent that ultimately prevails, as the following pas- sages make clear (following a quick and random search which does not purport to be systematic or exhaustive). These are from a number of different complaints made in relation to the right to strike after the Higgins dissent and the complaint from Canada.
37 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art 22. 38 UN Human Rights Committee, JB at al v Canada, Communication No 118/1982, UN Doc Supp No 40 (A/41/40) 151 at para 6.2. 39 This account draws on KD Ewing, “Freedom of Association and Trade Unions” in D Harris & S Joseph, eds, The International Covenant on Civil and Political Rights and the United Kingdom (1995) at 468.
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Thus, in making clear that the position taken initially in the Canada case no longer prevails, the Human Rights Committee has said variously that:
The Committee also notes that civil servants are unduly restricted with respect to their right to participate in public affairs and the right to strike.40 (Ireland, 1993) . . .
The Committee is concerned that there is an absolute ban on strikes 2015 CanLIIDocs 535 by public servants who are not exercising authority in the name of the State and are not engaged in essential services, which may violate article 22 of the Covenant.41 (Germany, 1996) . . .
The Committee is concerned at the curtailment of the rights of mem- bers of trade unions to freedom of association, of assembly and of expression, at the high level of violence against trade union members, at the intimidation by police agents of persons taking part in peaceful demonstrations, and at the large number of strikes that are deemed illegal. It is particularly concerned about the incidents that occurred in Potosí and Chapare.42 (Bolivia, 1997) . . .
The Committee is concerned that the new Labour Code is too restrictive in providing, inter alia, for the prohibition of strikes in
40 UN Human Rights Committee, Concluding Observations: Ireland, UN Doc CCPR/C/79/Add21 (3 August 1993) at para 17. 41 UN Human Rights Committee, Concluding Observations: Germany, UN Doc CCPR/C/79/Add73 (8 November 1996) at para 18. 42 UN Human Rights Committee, Concluding Observations: Bolivia, UN Doc CCPR/C/79/Add74 (5 May 1997) at para 24.
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services that cannot be considered as essential and requiring a two- thirds majority to call a strike, which may amount to a violation of article 22. The State party should make the necessary amendments to the Labour Code to ensure the protection of the rights guaranteed under article 22 of the Covenant.43 (Lithuania, 2004) . . .
Although it is aware of the labour law reform that took place in 2005, the Committee is still concerned about continuing restrictions on
trade union rights in Chile and about reports that in practice, chan- 2015 CanLIIDocs 535 ges are made unilaterally to the working day, striking workers are replaced, and threats of dismissal are used to prevent the formation of trade unions. In many cases, it would not be practicable for work- ers to bring complaints because trials are excessively long and costly (article 22 of the Covenant).44 (Chile, 2007) . . .
While noting that the present draft Public Service Act presented to Parliament includes a provision restricting the number of public ser- vants not authorized to strike, the Committee is concerned that public servants who do not exercise public authority do not fully enjoy the right to strike (art. 22). The State party should ensure in its legis- lation that only the most limited number of public servants is denied the right to strike.45 (Estonia, 2010)
43 UN Human Rights Committee, Concluding Observations: Lithuania, UN Doc CCPR/CO/80/LTU (4 May 2004) at para 18. 44 UN Human Rights Committee, Concluding Observations: Chile, UN Doc CCPR/C/CHL/CO/5 (18 May 2007) at para 14. 45 UN Human Rights Committee, Concluding Observations: Estonia, UN Doc CCPR/C/EST/CO/3 (28 July 2010) at para 15.
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We thus now have three sources in international law independ- ently of Convention 87 by which the right to strike is clearly pro- tected (whether explicitly or implicitly), and an apparent assumption on the part of either the authors of or the supervisory bodies admin- istering these other sources that Convention 87 does include the right to strike. These three sources are respectively the ILO Constitution; the International Covenant on Economic, Social and Cultural Rights; and the International Covenant on Civil and Political Rights. But to repeat the point made several times now: it really makes no dif- ference to domestic litigation whether Convention 87 does or does not include the right to strike. Clearly it would be helpful if it does,
but there are enough other sources to put beyond doubt the claim 2015 CanLIIDocs 535 that Canada is bound by international law to recognize and to give effect to the right to strike. That is an obligation that only continues to grow.46
V
Why does this matter? Why does it matter that the right to strike is protected by a host of international treaties? To this, there appear to be two answers, to which we have already referred. The first is that it tends to undermine the employers’ claim that the right to strike is not protected by the general guarantee of freedom of association (and while we are here, if it can be implied for the purposes of the ICCPR, why would it not be implied for the purposes of Convention 87?).
46 There are additional obligations arising from ILO membership to which states (including Canada) have voluntarily subscribed, notably the ILO Declaration on Fundamental Principles and Rights at Work (1998) and the ILO Declaration on Social Justice for a Fair Globalisation (2008), supra note 24. The first report of the follow-up procedure relating to the former highlighted concerns from a number of countries (Algeria, Bolivia, Canada, Egypt, Guinea, Guyana, Honduras, Jamaica, Mali, Malta, Mauritania, Norway, Peru, Romania, Senegal) about “situations in which disputes are subject to compulsory, binding arbitration, or can be referred to such arbitration at the request of the public authorities or a single party, thus pre-empting any possibility of resort to industrial action.” See ILO, Your Voice at Work: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (Report of the Director-General) (25 May 2000) at para 103, online: ILO
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The second is that it tends to undermine the employers’ strategy to disarm Convention 87 in order to reduce its impact on domestic law. Even if the employers are correct that Convention 87 does not protect the right to strike, there is enough ordnance in the arsenal that clearly does protect the right to strike and which can readily be engaged for this purpose. This latter point is nicely illustrated by developments in the European Court of Human Rights (ECtHR), which is another court (apart from the SCC) where developments have alarmed employers, leading to the attempts to disembowel Convention 87. The pattern of developments in the ECtHR will be very familiar to Canadian labour
lawyers, even if the details might be different from the Canadian 2015 CanLIIDocs 535 experience. By Article 11(1), the European Convention on Human Rights (ECHR) protects the right to freedom of association, including the right to form and join trade unions for the protection of one’s inter- ests.47 In a trilogy of cases in the 1970s (not the 1980s), the ECtHR firmly took the view that the right to freedom of association did not include any particular form of trade union activity; it was enough that the state guaranteed to trade unions some means by which they could represent the interests of their members.48 This meant of course that there was no guaranteed right to be consulted, to bargain or to strike. In reaching these decisions, the ECtHR had regard to other international treaties, notably the European Social Charter of 1961 (ESC), also a treaty of the Council of Europe and in every sense the younger sibling of the ECHR.49 Unlike the ECHR, the ESC deals expressly with the right to bargain collectively (Article 6(2)) and the right to strike (Article 6(4)) (though it is possible to ratify the ESC without accepting all of its terms).50 In the labour trilogy in the 1970s, the ECtHR took the view that it must have been intended by the authors of the ECHR to exclude the
47 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No 11 and 14, Council of Europe, 4 November 1950, ETS 5, art 11(1). 48 National Union of Belgian Police v Belgium (1975), 1 EHRR 578. 49 European Social Charter, Council of Europe, 18 October 1961, ETS 35. 50 Ibid, arts 6(2) and 6(4); see David Harris & John Darcy, The European Social Charter, 2d ed (Ardesly, NY: Transnational Publishers, 2001) (the classic work on the ESC).
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right to be consulted, to bargain, and to strike, for otherwise it would have meant that in 1961 the Council of Europe would be presumed to have taken a step backwards, a presumption the Court was unwilling to make.51 The step backwards would arise because of the possibility of ratifying while accepting only some of the provisions of the ESC. If full labour rights were already protected by the ECHR in 1950, the right of selective ratification would mean that a member state could choose not to accept an obligation to which it was already bound. This negative use of other international treaties was, however, to change, most notably in Wilson and Palmer v. United Kingdom52 (decided, Dunmore53 Wilson and Palmer
coincidentally, in the same year as ). 2015 CanLIIDocs 535 was important for turning the tide on Article 11(1), with the ECtHR, for what may have been the first time, upholding a complaint that the anti-union conduct of an employer violated the rights of workers. The conduct in question was the making of financial inducements to workers to persuade them to give up collective bargaining protection, conduct which in the United Kingdom at the time was not (and per- haps still is not) an unfair or unlawful practice.54 In the same way that the SCC fumbled its way in the direction of ILO material in Dunmore, so the ECtHR based its reasoning in part on ILO Conventions 87 and 98, as well as Articles 5 and 6 of the ESC. But the ECtHR also referred to jurisprudence of ILO super- visory bodies (in this case not the CEACR but the CFA). In a crucial passage, the ECtHR held: Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. The Court notes that this aspect of domestic law has been the subject of criticism by the Social
51 See M Forde, “The European Convention on Human Rights and Labor Law” (1983) 31:2 Am J Comp L 301. 52 No 30668/96, [2002] ECHR 552, 35 EHRR 20 [Wilson and Palmer]; see also KD Ewing, “The Implications of Wilson and Palmer” (2003) 32:1 Indus LJ 1. 53 Dunmore v Ontario (AG), 2001 SCC 94, [2001] 3 SCR 1016. 54 See Alan Bogg, “The Mouse that Never Roared: Unfair Practices and Union Recognition” (2009) 38:4 Indus LJ 390 (account of the United Kingdom’s dis- mal unfair labour practice legislation).
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Charter’s Committee of Independent Experts and the ILO’s Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its posi- tive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.55 Since Wilson and Palmer the tide has turned completely, cul- minating in the decision of the ECtHR in Demir and Baycara v. Turkey56 (decided, in another uncanny coincidence, only a year after the path-breaking decision of the Supreme Court of Canada in B.C. Health Services57). In Demir and Baycara the ECtHR was concerned
with the breach of a collective agreement by a local authority and 2015 CanLIIDocs 535 the annulment of the agreement by the Turkish Court of Cassation. In holding that this amounted to a violation of the ECHR Article 11, the ECtHR expressly overruled the labour trilogy on the ground that the ECHR was a “living instrument” (thereby repudiating the original intent approach in the trilogy) and that it was necessary for its con- struction to keep pace with changing developments. These develop- ments included changes in international law relating to the protection of labour rights; the ECtHR highlighted a number of treaties which it felt constrained by when construing the ECHR. These treaties included not only ILO Conventions 87, 98 and 151, but also the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the European Social Charter, and the EU Charter of Fundamental Rights. In referring to these treaties, the ECtHR also referred freely to the jurisprudence of the supervisory bodies, includ- ing the CEACR and the CFA, as well as the Social Rights Committee of the Council of Europe (which is responsible for the supervision of the European Social Charter). And in referring to these treat- ies in the interpretation of the ECHR, the ECtHR did so unembar- rassed or unencumbered by the fact that Turkey had not ratified the
55 Wilson and Palmer, supra note 52 at para 48. 56 No 34503/97, [2008] ECHR 1345, (2009) 48 EHRR 54; see also KD Ewing & John Hendy QC, “The Dramatic Implications of Demir and Baycara” (2009- 2010) 15:2 CLELJ 165 [Ewing & Hendy, “Demir and Baykara”]. 57 B.C. Health Services, supra note 5.
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appropriate provisions of the European Social Charter, and by virtue of not being a member of the European Union (though it is a mem- ber of the Council of Europe) was not in a position to ratify the EU Charter of Fundamental Rights. In so doing, however, the ECtHR is not saying these standards are binding through the vehicle of the ECHR, but that they are important in scoping the normative content of ECHR guarantees. Having made these moves in relation to collective bargaining, it was a short step to apply the same approach and reasoning to the right to strike. This has been done, but not yet by the ECtHR.58 Although the ECtHR has emphasized the seminal importance of Convention
87, a notable feature of one of the cases on the right to strike is that in 2015 CanLIIDocs 535 its analysis of relevant international material the Court found it more helpful to rely on Convention 98 than on Convention 87 (in relation to which Article 3 was not mentioned) and on the Digest of Decisions of the CFA as much as the relevant reports of the CEACR.59 While no one should begin to underestimate the importance of Convention 87, by the same measure nor should employers assume that without it other international treaties would be unable to fill any gap that their campaign might leave (in the unlikely event that their campaign were to succeed).
VI
These fast-moving developments in the European Court of Human Rights (ECtHR) have been dramatically reinforced by the immensely important decision in National Union of Rail, Maritime and Transport Workers (RMT) v. United Kingdom.60 It is true that in this case the applicants were unsuccessful in a challenge to two aspects of British law relating to the right to strike. The first was the mandatory notices that must be given to employers before indus- trial action may be taken, these far exceeding in their detail anything that must be done by trade unions in any other country with which I
58 Ewing & Hendy “Demir and Baykara,” supra note 56 (citing three cases from Turkey and one from Russia). 59 Danilenkov v Russia, No 67336/01, [2009] ECHR 1243, IHRLR 3614. 60 RMT v United Kingdom, No 31045/10, [2014] [RMT].
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am familiar. The second was the total ban on secondary, sympathy and solidarity action that has existed in the United Kingdom since 1990. But although the union was unsuccessful, the approach of the ECtHR will nevertheless cause some concern in the boardrooms of corporate Canada. First, the ECtHR made clear the continuing importance of other international legal instruments, referring to Convention 87 and the jurisprudence of the CEACR on both the notice requirements and the restrictions on secondary action, noting in the case of the CEACR that “in its consideration of the United Kingdom’s observance of Convention 87, the Committee of Experts has repeatedly criticized 61
the fact that secondary strikes are illegal.” Indeed the ECtHR dis- 2015 CanLIIDocs 535 cussed in some detail the evolving jurisprudence of the CEACR in relation to the United Kingdom in particular, from the time of its first consideration of the matter in 1989 to landmark observations in 1995 and more recently in 2012.62 While this continued reliance on the CEACR tends to undermine the position of the IOE, consistent with what has been said above, the ECtHR also referred to a “wealth of international law materials”63 to support the view that the right to strike is protected by international labour law. These include the jurisprudence of the CFA, to which reference was made for the proposition that: A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are sup- porting is itself lawful. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association.64 And while it is true that no reference was made to either the ICCPR or the ICESCR, it is also true that reference was made to the European Social Charter (and the jurisprudence of the European Committee of
61 Ibid at paras 32-33. 62 Ibid at para 33. 63 Ibid at para 92. 64 Ibid at para 31 (referring to International Labour Office,Freedom of Association: Digest of the Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th (revised) ed (Geneva: ILO, 2006) at paras 534, 538).
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Social Rights), as well as the EU Charter of Fundamental Rights.65 Both of these instruments expressly protect the right to strike (albeit in neither case in an unqualified manner). Second, the decision is important also for considering and dis- missing the view that Convention 87 does not include the right to strike. Here the ECtHR expressly endorsed the position adopted in Demir and Baycara v. Turkey66 that in interpreting Article 11(1) of the ECHR, the ECtHR “can and must take into account elements of international law other than the Convention,” as well as “the inter- pretation of such elements by competent organs,” which for this pur- pose clearly included the CEACR.67 Indeed not only did the ECtHR
subscribe to the view that Convention 87 includes the right to strike, 2015 CanLIIDocs 535 it expressly dismissed government claims — reflecting those of the IOE — that the CEACR was not competent to provide an authorita- tive interpretation of Convention 87.68 Reference was also made to a recent report of the CEACR in which it was stated: As regards the interpretation of ILO Conventions and the role of the International Court of Justice in this area, the Committee has pointed out since 1990 that its terms of reference do not enable it to give definitive interpreta- tions of Conventions, competence to do so being vested in the International Court of Justice by article 37 of the Constitution of the ILO. It has stated, nevertheless, that in order to carry out its function of determining whether the requirements of Conventions are being respected, the Committee has to con- sider the content and meaning of the provisions of Conventions, to determine their legal scope, and where appropriate to express its views on these matters. The Committee has consequently considered that, in so far as its views are not contradicted by the International Court of Justice, they should be considered as valid and generally recognized. The Committee considers the acceptance
65 RMT, supra note 60 at para 17. Article 28 of the EU Charter provides that “[w]orkers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action” (this too is subject to other permitted restrictions that need not be men- tioned here). EC, Charter of Fundamental Rights of the European Union, [2010] OJ, C 83/02. 66 Supra note 56. 67 RMT, supra note 60 at para 85. 68 Ibid at para 96.
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of these considerations to be indispensable to maintaining the principle of legality and, consequently, to the certainty of law required for the proper func- tioning of the International Labour Organization.69 But notwithstanding the above, in a clear snub to the IOE the ECtHR did not consider it necessary to review the CEACR’s role “as a point of reference and guidance for the interpretation of certain provisions of the Convention.”70 And in compounding the snub to the IOE, the ECtHR expressly referred to the disagreements voiced at the 101st International Labour Conference, 2012, but dismissed these after noting from the record of the proceedings that “the disagree- ment originated with and were confined to the employer group.”71
Moreover: 2015 CanLIIDocs 535 The Governments who took the floor during that discussion are reported as saying that the right to strike was ‘well established and widely accepted as a fundamental right’. The representative of the Government of Norway added that her country fully accepted the Committee of Experts’ interpretation that the right to strike was protected under Convention No. 87.72 Third and most obviously, employers are likely to be discom- fited by the decision of the ECtHR unequivocally to confirm as a result that at least for the purposes of ECHR Article 11, the principle of freedom of association includes the right to strike. Referring to the four Turkish cases above, the ECtHR recalled that it had “already decided a number of cases in which restrictions on industrial action were found to have given rise to violations of Art 11,” and accepted that these cases illustrated that “strike action is clearly protected by Art 11.”73 Indeed not only did the ECtHR endorse the earlier juris- prudence, the British government also accepted that “the right under Art 11 normally implied the ability to strike.”74 And while the ECtHR
69 ILO, Committee of Experts on the Application of Conventions and Recommendations, General Survey Concerning Labour Relations and Collective Bargaining in the Public Service, Collective Bargaining in the Public Service: A Way Forward, ILC.102/III/1B (Geneva: International Labour Office, 2013) at para 8. 70 RMT, supra note 60 at para 97. 71 Ibid. 72 Ibid. 73 Ibid at para 84. 74 Ibid at para 62 (predictably the government also argued that the right was “by no means an absolute right”).
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held that the right to strike is protected, it went further, by accepting that “the taking of secondary industrial action by a trade union, including strike action, against one employer in order to further a dispute in which the union’s members are engaged with one another must be regarded as part of trade union activity covered by Art 11.”75 It is true — as already suggested — that the RMT’s application was unsuccessful, to the great disappointment of British trade unions struggling with the legacy of Thatcher’s trade union laws. But in view of the foregoing crucially important developments in the ECtHR on the role of the CEACR and the employers’ stunt at the ILC in 2012 on the right to strike, the failure of the claim on its facts will provide
little comfort for Canadian employers now litigating desperately to 2015 CanLIIDocs 535 keep the right to strike out of the Charter. The question now is not whether the right to strike can be excluded from the protection of the right to freedom of association, but whether limitations are permis- sible in the circumstances of a particular case. The balance has swung in favour of the trade unions. It is no longer for them to justify the inclusion of the right to strike as a matter of principle; it is for govern- ments and employers to justify specific exclusions and restrictions as and when they are challenged. As the RMT case showed, that may not always be difficult.
VII
So the right to strike is protected not only by Convention 87 but also by a range of other treaties. To the extent that one of the purposes of the employers’ offensive is to disarm unions in courts such as the ECtHR, it is not clear how it could possibly succeed, as the experience of the latter court reveals. In developing the normative base of the right to strike, the ECtHR has relied on a wide range of treaties, including Convention 87, though this by no means is the only instrument relied upon. And despite the concerns of employers that reliance on ILO principles would unleash a far-reaching right to strike in national law, the ECtHR provided a fairly compelling response. None of this is new, with many of the foregoing points being rehearsed in the SCC by Dickson C.J.C. in his visionary dissenting
75 Ibid at para 77.
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judgment in the Alberta Reference in 1987.76 Reading Charter guar- antees relating to the right to association expansively, the Chief Justice referred to Convention 87, acknowledging that the “decisions of the Committee on Freedom of Association and the Committee of Experts are not binding,”77 though nevertheless paying due respect to the authority and expertise of these bodies, as well as Commissions of Inquiry established under the ILO Constitution, Article 26. In doing so, the Chief Justice said: The general principle to emerge from interpretations of Convention No. 87 by these decision making bodies is that freedom to form and organize unions, even in the public sector, must include freedom to pursue the essential activ- ities of unions, such as collective bargaining and strikes, subject to reasonable 2015 CanLIIDocs 535 limits.78 Although reference was made to the Committee of Experts (CEACR), this was overshadowed by Chief Justice Dickson’s examination of the jurisprudence of the Committee on Freedom of Association (CFA), especially as it applied to Canada.79 But it was not only Convention 87 to which the Chief Justice referred; he referred also to the two UN covenants, before concluding with the following summary of the relevant international law: The most salient feature of the human rights documents discussed above in the context of this case is the close relationship in each of them between the concept of freedom of association and the organization and activities of labour unions. As a party to these human rights documents, Canada is cognizant of the importance of freedom of association to trade unionism, and has undertaken as a binding international obligation to protect to some extent the associational freedoms of workers within Canada. Both of the UN human rights Covenants contain explicit protection of the formation and activities of trade unions sub- ject to reasonable limits. Moreover, there is a clear consensus amongst the ILO adjudicative bodies that Convention 87 goes beyond merely protecting the formation of labour unions and provides protection of their essential activities — that is of collective bargaining and the freedom to strike.80
76 [1987] 1 SCR 313, 38 DLR (4th) 161 [Alberta Reference]. See also TJ Christian & KD Ewing, “Labouring under the Canadian Constitution” (1988) 17 Indus LJ 73 (Professor Christian represented AUPE in this landmark case). 77 Ibid at para 67. 78 Ibid at para 68. 79 Ibid at paras 69-71. 80 Ibid at para 72.
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This is not a conclusion that would have been altered if the CEACR had been air-brushed from the script, as proposed today by the IOE. It is of course the case — as the Chief Justice acknowledged — that the SCC is not “bound by the norms of international law in interpreting the Charter.”81 He did accept, however, that “these norms provide a relevant and persuasive source for interpretation of the provi- sions of the Charter, especially when they arise out of Canada’s inter- national obligations under human rights conventions.”82 Perhaps more to the point, it is also the case that this was a minority judgment, with the majority showing little appetite for engaging with Canada’s inter- national legal obligations in construing Canada’s domestic charter, con- tent, it seems, that domestic law should be pitched at a lower standard. 2015 CanLIIDocs 535 But that appears to have changed following B.C. Health Services, where a majority accepted what had been a minority position, that “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.”83 Indeed Dickson C.J.C. anticipated some 30 years ago many of the other sentiments now expressed by the new majority. It is true of course that the recent engagement by the SCC with the ILO has been controversial, and has given rise to stinging criticism from Professor Langille in particular, developing a line of argument subsequently endorsed by Justice Rothstein in Fraser.84 But the criticism itself is by no means free from controversy, and it is certainly answerable. The issue concerning Langille, however, was not whether Convention 87 includes the right to strike, but whether the SCC was correct in relying on Convention 87 for its sourcing of the duty to bargain in good faith. As my colleague John Hendy Q.C. and I have explained else- where, this argument was of little substance.85 It may well be true that the right to bargain collectively is to be found more prominently in Convention 98, which Canada has not ratified. But it is also true that Canada is bound to promote collective bargaining simply by virtue
81 Ibid at para 60. 82 Ibid. 83 B.C. Health Services, supra note 5 at para 70. 84 Langille, “Can We Rely on the ILO?” and Langille, “The Freedom of Association Mess,” supra note 6 (these two papers developed a line of argumentation later adopted by Rothstein J in Fraser, supra note 4 at para 248). 85 Ewing & Hendy, “Giving Life to the ILO,” supra note 6.
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of its membership of the ILO. The failure to do so in some cases has led to the most searing criticism of Canada by the CFA.86 And Canada is bound to promote collective bargaining not only by obli- gations assumed on joining the ILO, but also by virtue of obligations assumed over the years as a member of the organization. Apart from the seminal Declaration of Philadelphia (1944), Canada has accepted the ILO Declaration on Fundamental Principles and Rights at Work (1998), which clearly embraces the right to bargain collectively.87 But this is not in any event a concern that should occupy our attention for too long. If, as suggested in B.C. Health Services (endors- ing Dickson C.J.C.), the Charter is to be guided by Canada’s inter- Charter national obligations, then it is difficult to see how the could be 2015 CanLIIDocs 535 construed to exclude the right to strike. Canada has quite clearly ratified Convention 87, and the ILO bodies responsible for its supervision have clearly taken the view that it includes the right to strike, however much that view might now be disapproved of and resented by employers.88 This both places an obligation on the SCC to give effect to “principles that Canada has committed itself to uphold,”89 as well as assists the Court in determining what the content of these principles should be for the purposes of the Charter. The important point here is that the right to strike is not unqualified, but “subject to reasonable limits.”90
86 ILO Freedom of Association Committee, Case No 2324 (Canada), Report No 336 (March 2005) at para 283 [Case No 2324 (Canada)] (conduct of government “deplored”). 87 See generally Ewing & Hendy, “Giving Life to the ILO,” supra note 6. 88 See Alfred Wisskirchen, “The Standard-Setting and Monitoring Activity of the ILO: Legal Questions and Practical Experience” (2005) 144:3 Int’l Labour Rev 253 (a fuller account of the employers’ change of position following the end of the Cold War). 89 B.C. Health Services, supra note 5 at para 71. 90 Alberta Reference, supra note 76 at para 68. Note that in extending the right to free- dom of association to include the right to strike, the ECtHR was equally anxious to stress the constrained nature of the right. Thus, according to the ECtHR, “the right to strike was not absolute and could be subject to certain conditions and restric- tions,” concluding that “the principle of trade union freedom could be compatible with a prohibition of strikes by civil servants exercising functions of authority on behalf of the State”: Enerji Yapi-Yol Sen v Turkey, No 68959/01, [2009] ECHR 2251. It may also be noted that the first international treaty expressly to recognise the right to strike (the ESC) did so subject to conditions and restrictions, both as to the content of the right and the circumstances in which it could be removed.
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But although Langille’s concerns have no relevance here by virtue of Canada’s ratification of Convention 87, it is true that the SCC could still stubbornly say that Convention 87 does not include the right to strike with sufficient clarity because of the doubts sown by the IOE and the persuasive advocacy of its lawyers. But even if the SCC were to take that view and were to repudiate the views most recently adopted by the ECtHR, this does not help the employers very much, for reasons perhaps by now over-laboured in this paper. It simply takes us back to Dickson C.J.C. and to the reality that the right to strike is protected by the ILO Constitution, the two UN Covenants (more strongly today than in 1987), and the two ILO Declarations
of 1998 and 2008. Either way, it is impossible to avoid the logic 2015 CanLIIDocs 535 that Canada has obligations under international law relating to the right to strike.
VIII
So what would be the effect of the Supreme Court of Canada holding that the right to strike is protected by section 2(d) of the Charter? As a result of the permissible limits on the right to strike acknowledged by the ILO supervisory bodies, my knowledge of Canadian labour law leads me to think that the likely impact would be limited and restrained.91 It ought not to present any serious problems for the structure of Canadian labour law, the essential features of which on the right to strike would appear to be consistent with obli- gations under Convention 87. It must be emphasized that the super- visory bodies have developed a right from the text of Convention 87 and from the constitutional principle of freedom of association but subjected it to important limits.92 It ought to also be emphasized that
91 See Gernigon, Odero & Guido, “ILO Principles,” supra note 2; see also ILO, Committee of Experts on the Application of Conventions and Recommendations, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, Giving Globalization a Human Face, ILC.101/III/1B (Geneva: International Labour Office, 2012) at 46-65; and KD Ewing, “Myth and Reality of the Right to Strike as a ‘Fundamental Labour Right’ ” (2013) 29:2 Int’l J Comp Lab L & Ind Rel 145. 92 Ibid (as the CEACR itself has emphasized).
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the jurisprudence of the supervisory bodies should be seen as a source of guidance to a body like the SCC rather than a source of subversion for an entire labour law system. So much is revealed by the decision of the ECtHR in the RMT case, where recognition of a fully-fledged right to strike did not lead to legal restrictions being held in breach of the ECHR, Article 11(1). The challenge to the notice provisions failed on grounds of admissibility, while the challenge to the secondary action restrictions were saved by ECHR, Article 11(2), which is similar in purpose (and in terms) to the Charter, section 1. Although the British restrictions on secondary action were at the extreme end of the regulatory approaches in the
Council of Europe, they were upheld in this case as falling within the 2015 CanLIIDocs 535 margin of appreciation the ECtHR allows to member states in restrict- ing certain ECHR rights. The principle of the margin of appreciation is a principle associated with the supervision by an international court of 47 different countries. It is not a principle appropriate for applica- tion by a national court enforcing national law. But if it upholds the expanded notion of freedom of association, it will be for the SCC to apply its own principles to determine to what extent deference should be shown to the legislature (in this case federal and provincial legisla- tures) on matters relating to industrial action. No one should be under any illusions about what is likely to hap- pen in these circumstances, especially in common law jurisdictions which have inherited a strong institutional bias against trade union- ism, collective bargaining and the right to strike. But this is not to say that recognition of the right to strike will have no impact on Canadian labour law or the conduct of Canadian governments. It is notable that there are more CFA complaints against Canada than against any other G7 country, which is all the more notable for the fact that Canada is the smallest country (in population terms) of the G7. Given that there have been 95 closed CFA complaints from Canada (with another three still active), it would be highly improbable if the interpretation of the Charter to include the right to strike were to have no impact. True, not all of these cases deal with the right to strike: some are concerned with the exclusion of different categories of workers from collective bargaining rights while others focus on the suspension of bargaining rights by the extension of collective agreements for work- ers otherwise covered. But many of the cases are concerned with the right to strike, and in particular with the immensely intolerant and uniquely Canadian practice of legislating strikers back to work.
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No one should be in any doubt that this practice is a clear — and it seems willful — violation of international labour standards, Canada having been routinely criticized by the ILO supervisory bodies for the ready resort to the practice by federal and provincial governments. To this end there has been a long running dispute between the CFA and the Government of Ontario about the use of back-to-work legislation in the education sector. In 2004 this led to condemnation (the word is chosen with care) of the Ontario Government by the CFA, which made it clear that — apart from anything else — it is possible to ban strikes only in essential services (provided safeguards are put in place) and that education is not an essential service as normatively
determined by the ILO supervisory bodies. According to the CFA: 2015 CanLIIDocs 535 [T]he right to strike is one of the legitimate and essential means through which workers and their organizations may defend their economic and social interests [Digest, op cit, paras. 474-475] subject to certain limited exceptions, which do not include the education sector [Digest, op cit, para. 545]. While the Committee recognizes that unfortunate consequences may flow from a strike in a non-essential service, these do not justify a serious limitation of the right to strike unless they become so serious as to endanger the life, personal safety or health of the whole or part of the population.93 In this and other cases the CFA was critical not only of the fact that the government imposed the ban in a sector which was not essential, but also of the impatient and disproportionate nature of the government’s intervention. In the Ontario case the CFA was “[un]convinced that there existed, in the circumstances and at this early stage of the dispute, a situation which warranted the legisla- tive action taken by the Government.”94 In another case from British Columbia involving ferry services (also not an essential service), the CFA was clearly concerned that the government had intervened with legislation as a first rather than a last resort, in the case of “a legal strike that had barely lasted 48 hours; a partial suspension of the strike by the union; and negotiations under way.”95 Also telling is the CFA’s reasons for opposing back-to-work legislation: Recourse to back-to-work legislation that unilaterally imposes the position of one of the bargaining partners, as opposed to having recourse to existing
93 ILO Freedom of Association Committee, Case No 2305 (Canada), Report No 335 (November 2004) at para 505 [Case No 2305 (Canada)]. 94 Ibid. 95 Case No 2324 (Canada), supra note 86 at para 282.
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mechanisms that benefited from the confidence of the unions concerned (as shown by their own offer to refer the outstanding issues to binding arbitration) clearly cannot be considered to be conducive to stable and harmonious indus- trial relations in which the parties may be confident.96 In view of Canada’s record before the CFA, the latter has taken to express itself in forthright terms. In the case involving Ontario in 2004, the CFA said that it: [D]eeply deplores that the Government should have decided, for the third time in a few years (September 1998, November 2000, June 2003) to adopt such an ad hoc legislation which creates a situation where educational institutions and education workers theoretically have a legal right which, in practice however, is taken away from them when they exercise it. The Committee considers that repeated recourse to such legislative restrictions can only in the long term 2015 CanLIIDocs 535 destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights granted to workers and their union by the general legislation.97 These comments fell on deaf ears, and were repeated in 2011 when the CFA again “deeply deplored” the decision of Ontario, “for the fourth time in about ten years” to “adopt ad hoc legislation which brings to an end, in a unilateral manner, a lawful strike in the educa- tion sector.”98 Canadian governments have also been “strongly urged” to “refrain in future from adopting such back-to-work legislation, and to use the adjudication process provided for in the legislation to resolve bargaining impasses.”99 Perhaps this does not matter. Perhaps it is acceptable for Canada to treat its international obligations with contempt. Perhaps it is acceptable for Canada to be exposed to this unusually strong critical diplomatic language. And perhaps it is OK for Canada to be at the bottom of the G7 league table, its position consolidated there when the standings are adjusted for population. If so, it is very surprising, raising questions not only about Canada’s reputation and standing, but
96 ILO Freedom of Association Committee, Case No 2349 (Canada), Report No 337 (June 2005) at para 406 [Case No 2349 (Canada)]. 97 Case No 2305 (Canada), supra note 93 [emphasis added]. 98 ILO Committee on Freedom of Association, Case No 2803 (Canada), Report No 360 (June 2011) at para 341. 99 Case No 2349 (Canada), supra note 96 at para 406.
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more fundamentally about Canada’s understanding of its expressed commitment as a country “founded upon principles that recognize the supremacy of God and the rule of law.”100 The rule of law is of course a highly contested principle, no less so in the United Kingdom when the Constitutional Reform Act 2005, section 1 boldly proclaimed that “this Act does not adversely affect the existing constitutional princi- ple of the rule of law,”101 without defining what that principle means. But in an important lecture delivered at the University of Cambridge in 2006, Britain’s most celebrated judge in modern time was under no doubt that: [T]he existing principle of the rule of law requires compliance by the state
with its obligations in international law, the law which whether deriving from 2015 CanLIIDocs 535 treaty or international custom and practice governs the conduct of nations. I do not think this proposition is contentious.102 Nor do I. So what about Canada? If Canada is to be a country in which “the rule of law requires compliance by the state with its obligations in international law,”103 it is clear that the international agencies need some help from the domestic courts. This is not to enforce international law, but to allow international law to inform the substance of national constitutional law, as the SCC has already indi- cated is appropriate. If this happens, the principal effect of adopting the ILO standard on the right to strike into domestic law would be to expose back-to-work legislation to judicial scrutiny, sparing the nation the obloquy of constant international criticism. This does not mean that there may not be back-to-work legislation in the future. But it does mean that the back-to-work legislation would have to be confined to sectors which are essential services “in the strict sense of the term,” in the way that term is defined by the ILO supervisory bodies. It would also mean that the back-to-work legislation would have to make provision for independent and binding arbitration of the
100 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, Preamble. 101 Constitutional Reform Act 2005 (UK), c 4, s 1. 102 Lord Bingham, “The Rule of Law” (2007) 66:1 Cambridge LJ 67 at 81. 103 Ibid.
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dispute in place of the unilateral imposition of terms to the benefit of one of the parties.104
IX
Which brings us back by way of conclusion to the claims by Ms. Regenbogen and the IOE that the CEACR has no authority to determine the meaning of ILO conventions, but exists only to “[note] the manner in which member states interpret conventions.”105 It is clear that this anxiety is directed in part specifically to developments in Canada, in relation to which Kloosterman and Regenbogen write:
For example, in Canada in a decision of the Supreme Court of Canada 2015 CanLIIDocs 535 the majority agreed with a dissenting judgment in an earlier case that the ILO Committee on Freedom of Association (“CFA”) and the CEACR’s
104 It ought to be noted that the SCC has been here in the past. The inquiry about the circumstances in which the right to strike is protected arose inexorably from the dissents in the Alberta Reference, leading to the express consideration in RWDSU of the circumstances in which back-to-work legislation can be sus- tained under the Charter: RWDSU v Saskatchewan, [1987] 1 SCR 460, 38 DLR (4th) 277. The judgments of Dickson C.J.C. and Wilson J. provide a glimpse of the type of exercise that would be involved were the majority of the SCC now to decide that the right to strike is protected by section 2(d) of the Charter. Affirming the point already made, these judgments make clear that such legis- lation would not necessarily be prohibited, though it would be subject to scrutiny and would require justification. Dickson C.J.C. and Wilson J. offered different visions of the intensity of that scrutiny and the required justification: the former open to criticism for yielding too easily to government arguments about the effect of the strike, while the latter was closer to the ILO standard by holding that the dairy industry in Saskatchewan was not an essential service even though it may have been important to the provincial economy. In cases of strikes which involve important sectors, the ILO position has been that the government must work harder to resolve the dispute and should “establish a voluntary and effect- ive mechanism which could avoid and resolve labour disputes to the satisfaction of all parties concerned; if, despite the existence of such a mechanism, the work- ers decide to take industrial action, a minimum service could be maintained with the agreement of the parties concerned”: Case No 2305 (Canada), supra note 93 at para 282; see also ILO Freedom of Association Committee, Case No 1985 (Canada), Report No 316 (June 1999) (postal service not an essential service). 105 John Kloosterman & Sonia Regenbogen, “The Right to Strike? The ILO’s Freedom of Association Convention” (2012) Ius Laboris at 3, online:
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interpretations of freedom of association not only “supported” the idea that there is a right to collective bargaining in international labour law, but also suggested that this right should be recognized in Canada under the Canadian Charter of Rights and Freedoms.106 In providing an opportunity to conclude this paper, these remarks not only reveal the concerns of the IOE but also the weakness of their position. Their argument about the interpretation of Convention 87 and the authority of the CEACR need not be pursued here; not only has it attracted little public support, but it has been almost universally denounced in the scholarly literature.107 But before moving on, we should pause to reflect on Cambodia, which is very instructive. This was a case in which trade unionists were assassinated — that is to 2015 CanLIIDocs 535 say, they were murdered. It is difficult to contemplate a more grave violation of the right to freedom of association. Are the employers and their representatives saying that Convention 87 is not engaged because the assassinations took place while the individuals in ques- tion were on strike and/or because they were taking part in a strike? Is this really what they are saying? Really? If not, some clarification is urgently called for. What is so utterly depressing about the employers’ position is that even if it is the case that the death of trade unionists at the hands of the state or others while on strike is not a breach of Convention 87, it would make absolutely no difference to the substantive obli- gations of countries like Canada, where such things appear not now to happen. As Kloosterman and Regenbogen suggest, the right to
106 Ibid. According to his San Francisco law firm’s website, Kloosterman “advises and defends a wide range of employers, from start-up companies to multi-na- tional corporations. He counsels employers on every aspect of the employment relationship from hiring to dismissal and all areas in between. His practice emphasizes international labor and employment issues, international labor standards, labor-management relations and complex litigation, including arbi- tration.” Moreover, “John is an acknowledged expert on international labor standards, with experience in negotiating and drafting international labor stan- dards, and advising on compliance issues. He is a member of the US delegation to the International Labour Organization (ILO), the United Nations agency responsible for overseeing international labor standards. John currently sits on the ILO’s Committee on the Application of Standards,” online: Littler Mendelson
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strike is recognized by other supervisory bodies applying wider con- stitutional principles of the ILO (freedom of association), albeit prin- ciples understandably informed by narrow legal texts (Convention 87). And as explained above, Canada’s obligations to these principles would remain extant even if the IOE is correct in its interpretation of Convention 87 and the role of the CEACR. Just as Canada is bound to promote collective bargaining despite not having ratified Convention 98, so Canada is bound to respect the right to strike, even were it not protected by Convention 87 (which in any event is not the case).108 But there is in any event another reason why the employers’ posturing seems pointless if not counter-productive. As the Supreme
Court of Canada pointed out, the ILO is not the only source for the 2015 CanLIIDocs 535 right to strike in international law, it being included expressly in the ICESCR and impliedly now in the ICCPR. Given that “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified,”109 it really makes no difference whether the right to strike is protected by Convention 87 or not. Except paradoxically to this extent: if the interpretation of these latter treaties on the right to strike is to break free of their moorings in Convention 87, it will require the UN supervisory bodies to develop their own principles relating to the right to strike, which cannot be expected to be as well-informed or perhaps even as restrained as those of the CEACR. Apart from adopting a position that has been so hotly contested and deeply resented, the employers’ stand on the right to strike thus appears to have had some unfortunate unintended consequences, to be of little practical significance to the objective being pursued, and to be potentially counter-productive. That is quite an achievement, or at least it would have been had the employers’ position prevailed. By way of a postscript, there have been two spectacular developments since this article went to press, the first of which was the decision of the SCC in the “right to strike” case,110 the litigation relating to which was the initial prompt for this paper. That is a decision about which many words will be written in celebration of the belief that “the arc
108 See Ewing & Hendy, “Giving Life to the ILO,” supra note 6. 109 B.C. Health Services, supra note 5 at para 70. 110 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4.
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bends increasingly towards workplace justice.”111 The latter phrase is likely to be much quoted, though it is not one that will resonate very loudly in many parts of the world, where it would be a cruel carica- ture of reality. For the moment, however, we must acknowledge the immensely significant decision of the SCC and the lucid judgment of Justice Abella, rescuing the dissent of Dickson C.J.C. in the Alberta Reference.112 It is now clear that the right to strike is protected by the Charter, the Court having made it equally clear only a week earlier that the right to bargain collectively is also protected.113 In reaching this momentous decision on the right to strike (about which reser-
vations, qualifications and questions will doubtless be discussed by 2015 CanLIIDocs 535 others in the months and years to come), it is important to note that the Court was heavily influenced by international human rights stan- dards in its interpretation of section 2(d). After referring to the two UN Covenants of 1966, Justice Abella said: Canada is a party to the International Labour Organization (ILO) Convention (No. 87) concerning freedom of association and protection of the right to organize, ratified in 1972. Although Convention No. 87 does not explicitly refer to the right to strike, the ILO supervisory bodies, including the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations, have recognized the right to strike as an indissociable corollary of the right of trade union association that is pro- tected in that convention . . . . Striking, according to the Committee of Experts, is “one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests”: Freedom of Association and Collective Bargaining (1994), at para. 147 . . . .114 This decisive repudiation of the employers’ arguments — on ILO Convention 87 and the Committee of Experts — has made the position taken by the IOE at the ILO untenable. It seems that no one accepts the employers’ view on these two related questions,115 the
111 Ibid at para 1. 112 Ibid, especially at paras 62-63. 113 Mounted Police Association of Ontario v Canada (AG), 2015 SCC 1. 114 Saskatchewan Federation of Labour, supra note 110 at para 67. 115 Indeed it seems that the employers themselves have little confidence in their position, having rejected a request from the ITUC that the matter be referred to the International Court of Justice for resolution under ILO Constitution, Article 37(1).
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ECtHR reinforcing the point with two post-RMT decisions in which the right to strike is fully endorsed as a feature of freedom of associ- ation.116 It is nevertheless extraordinary that in the second develop- ment since this paper was written, the employers appear to have capitulated spectacularly. In a Joint Statement between the ITUC and the IOE concluded on the eve of a special tripartite meeting in Geneva less than a month after the SCC decision, it was now accepted that [t]he right to take industrial action by workers and employers in support of their legitimate industrial interests is recognized by the constituents of the International Labour Organisation.117 Even more important was the acceptance by both parties of the man- date of the Committee of Experts, as that mandate had been explained 2015 CanLIIDocs 535 by the Committee itself: The Committee of Experts undertakes an impartial and technical analysis of how the Conventions are applied in law and practice by member States, while cognizant of different national realities and legal systems. In doing so, it must determine the legal scope, content and meaning of the provisions of the Conventions.118 It is unclear how far this volte-face by the employers has been informed by the important decisions of the SCC and the ECtHR. The influence of the former in the ILO proceedings is to be seen, however, in the reference to it by the U.S. government representative at the spe- cial tripartite meeting in February.119 Speaking powerfully in defence of the right to strike, the latter noted that
116 The RMT decision of the ECtHR is discussed above, in part VI. For an account, see A Bogg & KD Ewing, “The Implications of the RMT Case” (2014) 43 Indus LJ 221. The post-RMT cases are Tymoshenko v Ukraine (Application No 48408/12, Judgment 2 October 2014), and Hrvatski Lijecˇnicˇki Sindikat v Croatia (Application No 36701/09, Judgment 24 November 2014). 117 ILO, Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (1987), in relation to the right to strike and the modalities and practices of strike action at national level, 23-25 February 2015, TMFAPROC/2015/2. The Joint Statement of the Workers’ and Employers’ Group appears in Appendix 1. 118 Ibid, referring to ILO, Report of the Committee of Experts on the Application of Standards, Report III (Part 1A) (Geneva, 2015), at para 29. 119 U.S. Department of Labor, “US Government to ILO: Right to Strike is Protected Under International Conventions,” 23 February 2015, online:
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. . . in numerous other countries, and most recently in Canada in January 2015, the right to strike has been held to be an essential and indispensable compon- ent of a meaningful collective bargaining process in its labor relations system. Legislatures and courts as well as legal scholars throughout the world have similarly underscored the necessary and ineluctable relationship between the right to freedom of association and the right to strike.120 A new symbiosis appears to be emerging between international labour law and constitutional law, which IOE misjudgment has served only to encourage and develop. Nourished and enriched by the SCC, con- stitutional law has thus reinforced international law in a way that should help workers not only in Canada, but also in Cambodia and many other spots in between. That is an achievement. 2015 CanLIIDocs 535
120 Ibid.
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07_Ewing.indd 556 15-03-24 10:58 AM Du caractère multidimensionnel des tactiques antisyndicales : constats empiriques québécois
Mélanie Laroche, Marie-Ève Bernier et Mathieu Dupuis*
L’utilisation de tactiques antisyndicales — manœuvres de l’employeur visant à empêcher l’implantation d’un syndicat dans son entreprise, à contrôler ou à supprimer le syndicat en place — a attiré l’attention de plusieurs cher- cheurs internationaux. Ces recherches, qui s’intéressent notamment au déclin
syndical, ont démontré une intensification du recours à ces tactiques, leur 2015 CanLIIDocs 535 diversité ainsi et la variation de leurs impacts selon le contexte, le moment et leur fréquence d’utilisation. L’encadrement juridique des rapports collectifs au Canada étant perçu comme favorable aux activités syndicales, peu d’études ont été consacrées à l’utilisation des tactiques antisyndicales sur ce territoire. Grâce à une approche interdisciplinaire, le présent article tente de combler cette lacune tant du point de vue théorique (approche des relations industrielles) qu’empirique (analyse jurisprudentielle). De manière plus spécifique, notre étude cherche à mieux comprendre les stratégies antisyndicales et à analyser empiriquement, à l’aide d’une typologie construite à cette fin, leur utilisation dans le contexte québécois à partir des cas entendus par la Commission des relations du travail du Québec (CRT) entre 2002 et 2012. Au total, 250 décisions et 70 cas distincts ont été étudiés pour les fins de la recherche. Ces dispositions interdisent l’ingérence de l’employeur dans les affaires syndicales ainsi que l’in- timidation et les représailles à l’endroit des salariés qui exerce un droit prévu au Code du travail. Ce choix méthodologique s’explique par le fait qu’en 2002, la portée de ces articles a été élargie. En plus de permettre les recours pénaux, ces dispositions offrent désormais des recours de nature civile, ce qui peut les rendre plus intéressants aux yeux des salariés. Cette étude jurisprudentielle nous a à la fois permis de faire ressortir le caractère multidimensionnel de ces tactiques et de proposer une typologie révisée. Nous avons aussi constaté que les employeurs utilisent davantage les stratégies qui visent la suppression des syndicats, les tactiques jugées les plus agressives, une tendance comparable à ce que l’on observe aux États-Unis.
* Respectivement professeure agrégée à l’École de relations industrielles de l’Uni- versité de Montréal, candidate au doctorat à la Faculté de droit de l’Université de Montréal et candidat au doctorat l’École de relations industrielles de l’Université de Montréal. Les auteurs sont associés au Centre de recherche interuniversitaire sur la mondialisation et le travail (CRIMT).
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1. INTRODUCTION
Au cours des deux dernières décennies, plusieurs organisations syndicales québécoises ont tenté de pénétrer des secteurs d’activités situés hors de la zone syndicale traditionnelle, notamment ceux de la restauration rapide et de la vente au détail. Certaines de ces tentatives — pensons aux cas de McDonald’s, Walmart et Couche-Tard — ont mené à des affrontements sur la question de la reconnaissance du droit à la syndicalisation. Ces cas, qui ont défrayé la manchette, sont devenus de véritables symboles de la lutte judiciaire pour la recon- naissance syndicale.
Pourtant, malgré l’attention médiatique accordée à ces cam- 2015 CanLIIDocs 535 pagnes, peu de travaux au Québec — et au Canada — se sont attar- dés à situer ces phénomènes théoriquement et empiriquement1. Deux pistes d’explications sont généralement proposées pour expliquer ce plus faible intérêt des chercheurs : d’une part, la présence d’un cadre juridique qui protègerait davantage les activités syndicales en com- paraison avec celui des États-Unis et d’un nombre croissant de pro- vinces canadiennes (procédure accélérée d’accréditation, restrictions relatives aux pratiques déloyales et processus d’arbitrage de première convention collective, etc.) et d’autre part, le fait que les employeurs québécois accepteraient traditionnellement la syndicalisation2. Des
1 Voir les travaux de : Terry Thomason et Silvanna Pozzebon, « Managerial Opposition to Union Certification in Quebec and Ontario » (1998) 53 : 4 RI 750 [Thomason et Pozzebon] ; Karen J Bentham, « Employer Resistance to Union Certification : A Study of Eight Canadian Jurisdictions » (2002) 57 : 1 RI 159 [Bentham] et Felice Martinello et Charlotte Yates, « Union and Employer Tactics in Ontario Organising Campaigns » dans David Lewin et Bruce E Kaufman, dir, Advances in Industrial and Labor Relations, vol 13, Bingley (UK), Emerald Group, 2004, 157 [Martinello et Yates]. 2 Jean Boivin, « La place et le rôle des employeurs dans un système de relations industrielles » dans Jean Boivin, dir, Introduction aux relations industrielles, 2ème éd, Montréal, Gaëtan Morin Éditeur, 2010, 22 à la p 37 [Boivin] et Thomason et Pozzebon, supra note 1.
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travaux montrent toutefois que l’opposition patronale à la syndicali- sation se fait bel et bien sentir en sol canadien3, bien que de manière moins marquée qu’aux États-Unis4, d’où la pertinence de l’étudier d’autant que la législation du travail canadienne semble imposer des difficultés croissantes à l’organisation des travailleurs5. A contrario de cette tendance québécoise plusieurs chercheurs anglo-saxons ont cherché à identifier et classifier les tactiques anti- syndicales, en plus d’évaluer leurs impacts sur les campagnes de syndicalisation6. Aux États-Unis, où s’est développée une véritable industrie vouée à l’évitement syndical au cours des trois dernières décennies7, les recherches sont en effet très riches sur le plan empi-
rique. Elles démontrent un intérêt constant pour la question du droit 2015 CanLIIDocs 535
3 Peter G Bruce, « On the Status of Workers’ Rights to Organize in the United States and Canada » dans Sheldon Friedman et al, dir, Restoring the Promise of American Labor Law, Ithaca (New York), ILR, 1994, 273 ; Ishak Saporta et Bryan Lincoln, « Managers’ and Workers’ Attitudes Toward Unions in the U.S. and Canada » (1995) 50 : 3 RI 550 et Chris Riddell, « Union suppression and certification success » (2001) 34 : 2 Canadian Journal of Economics 396. 4 Martinello et Yates, supra note 1 ; Chris Riddell, « Union certification success under voting versus card-check procedures : Evidence from British Columbia, 1978-1998 » (2004) 57 : 4 Indus & Lab Rel Rev 493. 5 Gregor Murray, « Syndicats locaux et restructuration des milieux de travail: introduction » (2001) 56 : 2 RI 240. 6 Voir notamment : Donald F Roy, « Fear stuff, sweet stuff and evil stuff : mana- gement’s defenses against unionization in the South » dans Theo Nichols, dir, Capital and Labour : Studies in the Capitalist Labour Process, London, Athlone Press, 1980, 395 [Roy] ; et Gregor Gall, « British employer resistance to trade union recogntion » (2004) 14 : 2 Human Resource Management Journal 36 [Gall, « British employer »]. 7 John Logan, « The Union Avoidance Industry in the United States » (2006) 44 : 4 British Journal of Industrial Relations 1080 [Logan].
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d’association et de la reconnaissance syndicale8. Nous retenons de ces différents travaux que ces stratégies sont de plus en plus utilisées, qu’elles prennent de multiples formes et qu’elles auront des effets variés selon le contexte, le moment, et leur fréquence d’utilisation. Dans cette lignée, notre étude cherche à mieux comprendre les stratégies antisyndicales et à analyser empiriquement leur utili- sation dans le contexte québécois à partir des cas entendus par la Commission des relations du travail du Québec (CRT) depuis sa créa- tion en 2002. De manière plus spécifique, notre recherche analyse les formes et les combinaisons possibles des stratégies antisyndicales
utilisées par les employeurs, lesquelles reflètent l’intensité de leur 2015 CanLIIDocs 535 animus antisyndical. Elle propose ainsi de réfléchir sur l’antisyndica- lisme dans un contexte où l’opposition patronale est reconnue comme
8 Voir notamment : Thomas F Reed, « Do Union Organizers Matter? Individual Differences, Campaign Practices, and Representation Election Outcomes » (1989) 43 : 1 Indus & Lab Rel Rev 103 [Reed] ; John J Lawler, Unionization and Deunionization: Strategy, Tactics, and Outcomes, Columbia (South Carolina), University of South Carolina Press, 1990 [Lawler] ; Richard B Freeman et Morris M Kleiner, « Employer Behavior in the Face of Union Organizing Drives » (avril 1990) 43 : 4 Indus & Lab Rel Rev 351 [Freeman et Kleiner] ; Richard B Peterson, Thomas W Lee et Barbara Finnegan, « Strategies and Tactics in Union Organizing Campaigns » (1992) 31 : 2 Industrial Relations : A Journal of Economy and Society 370 [Peterson et al] ; Kate Bronfenbrenner, « Employer behavior in certification elections and first-contract campaigns: Implications for labor law reform » dans Sheldon Friedman et al, dir, Restoring the Promise of American Labor Law, Ithaca (New York), ILR, 1994, 75 [Bronfenbrenner, « Employer behavior »] ; Kate Bronfenbrenner, « Final Report: The Effects of Plant Closing or Threats of Plant Closing on the Right of Workers to Organize », Supplement to Plant Closings and Workers Rights : A Report to the Council of Ministers by the Secretariat of the Commission for Labor Cooperation, Dallas, Bernan Press, 1996 [Bronfenbrenner, « Final Report »] ; Kate Bronfenbrenner, « The Role of Union Strategies in NLRB Certification Elections » (1997) 50 : 2 Indus & Lab Rel Rev 195 [Bronfenbrenner, « Role »] et Kate Bronfenbrenner, « No Holds Barred : The Intensification of Employer Opposition to Organizing », Washington, American Rights at Work Education Fund & Economic Policy Institute (briefing paper no 235), 2009 [Bronfenbrenner, « No Holds »].
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étant une cause importante du déclin de la densité syndicale9 et où les syndicats s’interrogent sur les stratégies à mettre en place pour faci- liter l’organisation des non-syndiqués. Notre analyse vise également à cerner les moments privilégiés par les employeurs pour mobiliser des tactiques antisyndicales, que ce soit avant le dépôt d’une requête en accréditation ou même lors du renouvèlement d’une convention collective. Les constats tirés de cette analyse ont permis de construire une typologie plus élaborée des stratégies antisyndicales déployées par les employeurs, particulièrement en ce qui concerne le type de tactiques utilisées, mais aussi du moment où ils mobiliseront les différentes stratégies.
Cet article suit une démarche en trois temps. Nous faisons 2015 CanLIIDocs 535 d’abord un bref survol des approches classiques des stratégies patronales à l’égard de la syndicalisation. Nous présentons ensuite les résultats qui émergent de notre analyse des décisions de la CRT en regard des plaintes déposées pour pratiques déloyales du travail. Nous proposons enfin une discussion autour des principaux constats de la recherche en plus de proposer une typologie des stratégies anti- syndicales, laquelle sera sans doute utile autant pour les chercheurs intéressés à cette problématique que les praticiens, qu’ils soient des milieux patronaux, syndicaux ou gouvernementaux. Au final, nous croyons que notre recherche permet de mieux comprendre les straté- gies patronales face à la syndicalisation, une contribution importante à une époque où l’acteur syndical est placé devant de multiples défis pour assurer sa survie.
2. LES APPROCHES CLASSIQUES DES STRATÉGIES PATRONALES À L’ÉGARD DE LA SYNDICALISATION ET LA TYPOLOGIE PROPOSÉE
Différents travaux, tant théoriques qu’empiriques, ont tenté de comprendre les stratégies patronales à l’égard de la syndicali- sation, relevant au passage qu’elles changent de forme ou qu’elles
9 Gary N Chaison, et Joseph B. Rose, « The Macrodeterminants of Union Growth and Decline » dans George B Strauss, Daniel Gallagher et Jack Fiorito, dir, The State of the Unions, Madison, WI : Industrial Relations Research Association, 2001, 3 et Gregor Gall et Tony Dundon, Global anti-unionism : nature, dyna- mics, trajectories and outcomes, London, Palgrave, 2013.
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varient en intensité selon le moment où elles seront utilisées (avant ou après l’accréditation). En ce sens, les auteurs distinguent d’abord la stratégie d’acceptation de la stratégie d’opposition10. Bien que les employeurs vont, dans une très forte majorité (71%), préférer un environnement non syndiqué, voire considérer l’arrivée d’un syndicat comme le symptôme d’une mauvaise gestion de l’entreprise, certains d’entre eux demeurent neutres ou respectent le choix des salariés11. Rappelons néanmoins que Martinello et Yates démontrent que l’ac- ceptation des syndicats sans le recours à des tactiques antisyndicales est rare et que l’opposition des employeurs à la syndicalisation ne serait pas un phénomène typique des États-Unis, mais une réalité bien 12
présente au Canada et au Québec . 2015 CanLIIDocs 535 D’autres auteurs mettent plutôt l’accent sur la thèse de la contre-mobilisation, laquelle présente les intérêts des employeurs et des salariés comme étant opposés et considèrent que l’acteur patronal tentera inévitablement de contrer les efforts d’organisa- tion syndicale13. Selon cette thèse, l’opposition des employeurs à la
10 Les termes stratégies, campagnes et tactiques désignent différents niveaux d’abstraction. En voici les définitions : 1. Stratégie : fait référence au degré d’op- position de l’employeur à l’acteur syndical (acceptation ou opposition) et précise le but général visé par les stratégies antisyndicales (substitution ou suppression). 2. Campagne : il s’agit d’un ensemble d’actions menées avec une intention pré- cise pas l’employeur (cooptation, contrôle, peur, blocage). 3. Tactique : il s’agit des moyens concrets utilisés par l’employeurs dans le cadre d’une campagne antisyndicale (distribuer de la littérature antisyndicale, congédiements, créer des comités antisyndicaux, promesses d’améliorer les conditions de travail, moyens dilatoires etc.). 11 Mark Thompson, « The Management of Industrial Relations » dans Morley Gunderson, Allen Ponak et Daphne Gottlieb-Taras, dir, Union-Management Relations in Canada, 4e éd, Toronto, Addison Wesley-Longman, 2001, 117. Un exemple récent de cette acceptation de la syndicalisation est celui de la multina- tionale Volkswagon qui s’est publiquement engagé à demeurer neutre dans la campagne d’organisation de travailleurs de l’usine de Chattanooga, Tennessee. Voir Brent Snavely, « VW, UAW Cooperate Before Election Begins » (11 février 2014), en ligne : USA Today
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syndicalisation doit être davantage considérée comme un élément idéologique reflétant une volonté de préserver leurs prérogatives dans l’entreprise et elle peut varier en intensité14. Selon leur degré d’oppo- sition à la syndicalisation, les employeurs peuvent opter pour deux types de stratégies: les stratégies suppressives et les stratégies subs- titutives. D’une part, il y a les employeurs qui cherchent à supprimer le syndicat par l’imposition de « coûts » aux travailleurs qui pour- raient lui être favorables. Ils peuvent alors recourir à des pratiques telles que l’intimidation des travailleurs, les menaces de fermeture ou l’embauche de consultants afin d’éliminer le syndicat15. D’autre part, certains employeurs tentent plutôt de se substituer au syndicat par
l’augmentation des « bénéfices » des employés. Ils les incitent ainsi 2015 CanLIIDocs 535 à ne pas y adhérer16. Cette stratégie patronale, basée sur l’évitement syndical, mise sur l’engagement des salariés et la présence de canaux leur offrant une « voix » dans l’entreprise17. Bien qu’utile, cette première classification des stratégies anti- syndicales comporte des limites évidentes : elle ne rend ni compte de leur complexité, ni des ambiguïtés de certaines manifestations d’opposition des employeurs18. En pratique, les stratégies de sup- pression et de substitution ne sont pas des réalités irréconciliables et mutuellement exclusives, les employeurs pouvant en effet les utiliser simultanément ou en alternance. Ces deux idéaux-types ne prennent donc pas en compte le caractère dynamique de la relation d’emploi19.
14 Tony Dundon, Brian Harney et Niall Cullinane, « De-collectivism and manage- rial ideology : towards an understanding of trade union opposition » (2010) 4 : 3 Int’l Journal of Management Concepts and Philosophy 267. 15 Roy, supra note 6 ; Gall, « British employer », supra note 6 ; Logan, supra note 7 ; Edmund J Heery et Melanie Simms, « Employer Responses to Union Organising : Patterns and Effects » (2010) 20 : 1 Human Resource Management Journal 3. 16 Peter Turnbull, Paul Blyton et Geraint Harvey, « Cleared for take-off? Management-labour partnership in the European civil aviation industry » (2004) 10 : 3 Eur J Indus Rel 287. 17 Michael Marchington, « Employee voice systems » dans Peter Boxall, John Purcell et Patrick Wright, dir, The Oxford Handbook of Human Resource Management, Oxford et New York, Oxford University Press, 231. 18 Gall, « British employer », supra note 6. 19 Jim Kitay et Michael Marchington, « A review and critique of workplace indus- trial relations typologies » (1996) 49 : 10 Human Relations 1263.
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L’élaboration d’une typologie plus étoffée des réactions patronales face à la syndicalisation s’avère donc nécessaire. Notre conception des stratégies antisyndicales nous mène à prendre en considération non pas uniquement leur finalité (suppres- sion ou substitution des syndicats), mais intègre également les conclu- sions de Bentham qui démontrent la nécessité d’analyser l’impact de la résistance des employeurs à la fois sur l’obtention de l’accréditation syndicale, mais aussi sur le maintien d’une relation de négociation collective20. Bien que nous soyons conscients que l’encadrement des rapports collectifs au Québec et dans certaines provinces canadiennes, et plus spécifiquement les procédures d’accréditation accélérées, est
susceptible de réduire l’utilisation des pratiques antisyndicales, il ne 2015 CanLIIDocs 535 permet pas de les éliminer complètement21. Il en va de même pour la survie du syndicat: une fois l’accréditation obtenue, la solidarité syn- dicale ou l’appui des travailleurs peut s’éroder si l’employeur déploie des stratégies antisyndicales22. Une victoire syndicale remportée à l’étape de l’accréditation ne garantit donc aucunement le maintien d’une relation de négociation bipartite entre parties institutionnalisées au sein de l’entreprise. Notre recension des travaux théoriques et empiriques antérieurs qui ont étudié les stratégies antisyndicales nous permet également de distinguer quatre (4) grands types de campagnes antisyndicales : deux qui appartiennent à la catégorie des stratégies de substitution, la campagne de cooptation et la campagne de contrôle, et deux autres appartenant aux stratégies de suppression, les campagnes de peur et de blocage. La campagne de cooptation vise à éviter la syndicalisation de l’entreprise en démontrant son inutilité. En ce sens, l’employeur fera
20 Bentham, supra note 1. 21 Le Code du travail prévoit, à son article 21, qu’une association de salariés qui a obtenu l’appui de « la majorité absolue des salariés d’un employeur » doit être accréditée. Ainsi, « l’accréditation des syndicats au Québec [. . .] se fait normalement par simple comptage des cartes d’adhésion, l’ordonnance d’un scrutin demeurant l’exception » (Michel Coutu, Laurence Léa Fontaine, Georges Marceau et Urwana Coiquaud, Droit des rapports collectifs du travail au Québec, vol 1 : Le régime général, Cowansville, Yvon Blais, 2013 au para 9 [Coutu et al]). 22 Bronfenbrenner, « Employer behavior », supra note 8.
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la promesse d’améliorer ou améliorera effectivement les salaires et les conditions de travail dans l’espoir de diminuer la propension à la syndicalisation de ses travailleurs23, ce qui dans les termes de Barbash correspond au « cryptobargaining »24. Certains employeurs rattache- ront même explicitement les améliorations promises à l’échec de la campagne de syndicalisation25. Les employeurs peuvent également miser sur des formes plus avancées de communication : adoption d’une politique de porte ouverte qui permet aux employés d’expri- mer leur mécontentement26 ou de formuler leurs doléances, création d’espaces de consultation non syndiqués27 ou mécanismes de réso- lution de problèmes et de différends. Les employeurs visent en fait
à mettre en place une voie alternative à l’implantation d’un syndicat 2015 CanLIIDocs 535 dans l’organisation. La campagne de contrôle regroupe les stratégies permettant à l’employeur de limiter les conséquences de l’accréditation sur son entreprise28. Si, au Canada et au Québec, le système de monopole de représentation syndicale et le processus d’accréditation restrei- gnent les actions des employeurs en cette matière, certains tentent néanmoins de contrôler l’association de salariés. Il peut s’agir, entre autres, de la mise en œuvre de tactiques informelles favorisant l’ac- créditation d’un syndicat jugé « modéré »29 ou de la création de
23 Bronfenbrenner, « No Holds », supra note 8 ; Tony Dundon et Paul J Gollan, « Re-conceptualizing voice in the non-union workplace » (juillet 2007) 18 : 7 Int’l Journal of Human Resource Management 1182 ; Martinello et Yates, supra note 1 ; Thomason et Pozzebon, supra note 1 ; Peterson et al, supra note 8 ; Reed, supra note 8. 24 Jack Barbash, « Like Nature, Industrial Relations Abhors a Vacuum. The Case of the Union-Free Strategy » (1987) 42 : 1 RI 168. 25 Tom Juravich et Kate Bronfenbrenner, « Preparing for the Worst : Organizing and Staying Organized in the Public Sector » dans Kate Bronfenbrenner et al, dir, Organizing to Win : New Research on Union Strategies, Ithaca (New York), Cornell University Press, 1998, 263. 26 Gregor Gall, « Employer opposition to union recognition » dans Gregor Gall, dir, Union organizing : campaigning for trade union recognition, Londres, Routledge, 2003, 79 [Gall, « Employer opposition »]. 27 Gall, « British employer », supra note 6 ; Boivin, supra note 2. 28 Gall, « British employer », supra note 6. 29 Tony Dundon et Niall Cullinane, « The ideology of union busting » (2006) 13 : 2 Int’l Union Rights Journal 5 [Dundon et Cullinane] ; Gall, « British employer », supra note 6.
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syndicats de boutique30. Si les travailleurs décident de s’organiser, l’employeur préfère alors choisir le syndicat qu’il juge approprié et qui lui permet de limiter les coûts et les conséquences de la syndica- lisation. Ainsi faisant, un syndicat jugé « affairiste » sera préféré à un syndicat davantage « combatif ». Dans les cas extrêmes, cette straté- gie peut mener à la conclusion d’un accord factice qui ne comporte que peu d’avantages pour les travailleurs31. Les syndicats accepteront alors les termes du contrat collectif imposé par l’employer par crainte de ne pas être reconnus ou tout simplement parce qu’ils sont dominés par l’employeur. La campagne de peur vise trois principaux objectifs : d’abord,
empêcher les militants syndicaux d’organiser les travailleurs ; 2015 CanLIIDocs 535 ensuite, décourager les autres militants de demeurer actifs au sein du syndicat ; et enfin, faire peur aux travailleurs et diminuer le support qu’ils offrent au syndicat32. Plusieurs recherches ont d’ailleurs permis de relever les différentes tactiques associées à la campagne de peur : organisation de rencontres devant un auditoire captif, surveillance des employés et des sympathisants syndicaux (écoute électronique, interception de courriels, infiltration des réunions syndicales, etc.), distribution de la littérature antisyndicale (pamphlets ou lettres aux employés)33, présentation de vidéos antisyndicales34, constitution de
30 Gall, « Employer opposition », supra note 26 et Gall, « British employer », supra note 6. 31 Rae Cooper, Brandon Ellem et al, « Anti-unionism, Employer Strategy, and the Australian State, 1996-2005 » (2009) 34 : 3 Lab Stud J 339 ; Dundon et Cullinane, supra note 29 et Gall, « British employer », supra note 6. 32 Gall, « British employer », supra note 6. 33 Bronfenbrenner, « No Holds », supra note 8 ; Dundon et Cullinane, supra note 29 ; Lawler, supra note 8 ; Freeman et Kleiner, supra note 8 ; Peterson et al, supra note 8 ; Thomason et Pozzebon, supra note 1 ; Bentham, supra note 1 ; John Drotning, « NLRB Remedies for Election Misconduct : An Analysis of Election Outcomes and their Determinants » (1967) 40 : 2 Journal of Business 137 ; Martinello et Yates, supra note 1. 34 Bronfenbrenner, « No Holds », supra note 8 ; Martinello et Yates, supra note 1 ; Carol Pier, « Discounting Rights – Wal-Mart’s Violation of US Workers’ Right to Freedom of Association » (2007) 19 : 2 Human Rights Watch, en ligne :
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comités antisyndicaux35 en vue de convaincre les employés des dan- gers liés à la syndicalisation, menaces de représailles, congédiement pour activités syndicales, menaces de fermeture, etc. Enfin, la campagne de blocage regroupe des tactiques qui per- mettent d’imposer des obstacles à la reconnaissance du syndicat36 et à la conclusion d’une convention collective37. Espérant résister à la syndicalisation de leur entreprise, les employeurs auront fréquem- ment recours à des consultants ou à des avocats spécialisés dans les techniques d’évitement syndical38. Ils peuvent également mobiliser des moyens administratifs tels que des objections et des demandes de reports, en vue de gagner du temps avant la tenue d’un vote 39
d’accréditation . Dans le même sens, ils peuvent inciter les salariés 2015 CanLIIDocs 535 ayant signé une carte de membre à démissionner du syndicat avant le dépôt de la requête en accréditation40, soit par la signature de péti- tions par les employés qui s’y opposent ou encore par l’utilisation de la sous-traitance dans le but de diviser l’unité d’accréditation41. Certains d’entre eux limiteront l’accès des représentants syndicaux
35 Bronfenbrenner, « Employer behavior », supra note 8 ; Bronfenbrenner, « Role », supra note 8 ; Bronfenbrenner, « No Holds », supra note 8 ; Martinello et Yates, supra note 1 ; Lawler, supra note 8 ; Richard W Hurd et Joseph B Uehlein, « Patterned responses to organizing : Case studies of the union-bus- ting convention » dans Sheldon Friedman et al, dir, Restoring the Promise of American Labor Law, Ithaca (New York), ILR, 1994, 61. 36 Gall, « Employer opposition », supra note 26 et Gall, « British employer », supra note 6. 37 Boivin, supra note 2 et Gall, « Employer opposition », supra note 26. 38 Voir par exemple : Bronfenbrenner, « Employer behavior », supra note 8 ; Bronfenbrenner, « Final Report », supra note 8 ; Bronfenbrenner, « Role », supra note 8 ; Bronfenbrenner, « No Holds », supra note 8 ; Gall, « Employer opposi- tion », supra note 26 ; Reed, supra note 8 ; Thomason et Pozzebon, supra note 1 ; Bentham, supra note 1 ; Martinello et Yates, supra note 1 ; Lawler, supra note 8 ; Freeman et Kleiner, supra note 8 ; Kate Bronfenbrenner et Tom Juravich, « It Takes More than Housecalls : Organizing to Win with a Comprehensive Union-Building Strategy » dans Kate Bronfenbrenner et al, dir, Organizing to Win : New Research on Union Strategies, Ithaca (New York), ILR Press, 1998 à la p 19. 39 Gall, « Employer opposition », supra note 26. 40 Cette tactique est similaire à la distribution de formulaires de démissions syndi- cales dans l’étude de Gall (« Employer opposition », supra note 26) réalisée dans un contexte britannique. 41 Gall, « British employer », supra note 6.
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aux lieux de travail ou encore empêcheront les militants de solliciter les travailleurs sur les lieux de travail42. D’autres tactiques patronales, légales ou non, peuvent être mobilisées à la suite de l’accréditation du syndicat en vue de bloquer les négociations et empêcher la conclusion d’une convention collec- tive43. Si, au Canada et au Québec, l’arbitrage de première convention collective restreint le recours à de telles stratégies, il n’en demeure pas moins que cette protection n’est offerte que pour une durée limi- tée44. Dès l’expiration de cette première convention collective, les stratégies de blocage des négociations pourront réapparaître. Notons également que malgré la nomination d’un tel arbitre, l’accréditation
syndicale peut être révoquée ou l’établissement visé par l’accrédi- 2015 CanLIIDocs 535 tation fermé45. En vue de paralyser les négociations, les employeurs peuvent aussi : refuser de communiquer avec les représentants syndi- caux46 ou de répondre à leur correspondance47 ainsi qu’à des requêtes
42 Lawler, supra note 8 et David Peetz, «Decollectivist strategies in Oceania» (2002) 57 : 2 RI 252. 43 Bronfenbrenner, « Employer behavior », supra note 8. 44 Un tel arbitrage intervient à la suite de l’échec du processus de conciliation, à la demande de l’une des parties. Le Ministre du travail désigne alors un arbitre qui joue, dans un premier temps, un rôle de médiateur. S’il constate l’impossibilité pour les parties de parvenir à une entente, l’arbitre « doit décider de déterminer le contenu de la première convention collective ». Une telle décision met fin à la grève ou au lock-out en cours, le cas échéant (voir respectivement les art 93.1 à 93.5 du Code du travail). Cette mesure, adoptée en 1977, s’explique par la dureté des « conflits de travail [. . .] lors de la négociation d’une première convention collective [. . .] ». Elle a un « effet modérateur sur de tels conflits, tout en favo- risant la reconnaissance effective par l’employeur de la présence syndicale dans l’entreprise » (Coutu et al, supra note 21 au para 432). 45 Entre 2002 et 2011, c’est 2,99% des dossiers qui ont été fermés en raison de la révocation d’un syndicat et 0,6% par la fermeture d’un établissement. Ces moyennes sont tirées du Résumé statistique sur l’arbitrage de première conven- tion, publié annuellement sur le site officiel du Ministère en travail (Ministère du Travail, « Arbitrage » (15 septembre 2012), en ligne : Ministère du Travail du Québec
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d’informations48, ne pas participer aux réunions organisées ou s’y présenter en retard, allonger les caucus ou encore limiter leurs dis- ponibilités pour organiser des rencontres49. Les employeurs auront donc recours à de nombreuses tactiques qui contribueront à rendre le processus de négociation plus complexe et ardu pour le syndicat par la négociation de surface ou de mauvaise foi50. Ces constats nous amènent à nous questionner quant à l’utili- sation de ces tactiques par les employeurs québécois. Nous avons privilégié une approche permettant une analyse sociologique des décisions rendues par la CRT du Québec, ces dernières constituant des sources de données importantes en regard de notre objet d’étude
puisqu’elles présentent les faits d’une affaire le plus exactement pos- 2015 CanLIIDocs 535 sible, nous permettant ainsi de mieux saisir la nature et l’intensité des stratégies antisyndicales. Soulignons également que le Québec reçoit peu d’attention dans les études comparatives canadiennes portant sur l’opposition patronale à la syndicalisation, ce qui confère une certaine originalité à nos travaux.
3. MÉTHODOLOGIE DE LA RECHERCHE
Pour analyser empiriquement l’antisyndicalisme des employeurs québécois, nous avons procédé à l’analyse de décisions impliquant le recours à des pratiques déloyales. De manière plus spécifique, notre recherche s’est concentrée sur les décisions en lien avec les articles
48 Bronfenbrenner, « Employer behavior », supra note 8. 49 Bronfenbrenner, « Employer behavior », supra note 8 et Gall, « British employer », supra note 6. 50 Ibid.
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12, 13 et 14 du Code du travail du Québec51. La sélection des articles 12 à 14 du Code du travail s’explique par la protection particulière qu’ils offrent aux travailleurs ainsi qu’aux associations de salariés, protection susceptible d’illustrer la variété des types de campagnes présentés dans notre typologie. L’article 12 concerne spécifique- ment les manœuvres d’entrave et de domination de l’association de salariés. En interdisant l’entrave des activités syndicales, l’article 12 restreint notamment la liberté d’expression de l’employeur. Si ce dernier peut communiquer avec ses salariés, ses propos doivent être véridiques et ne contenir ni menace ni promesse visant à décourager 2015 CanLIIDocs 535
51 RLRQ, c C-27 [ci-après Ct)]. Ces dispositions, qui correspondent aux articles 70, 72 et 76 du Labour Relations Act de l’Ontario (LRO 1995, c 1) et les articles 5, 6 et 9 du Labour Relations Code de la Colombie-Britannique (LRBC 1996, c 244), se lisent comme suit : 12. Aucun employeur, ni aucune personne agissant pour un employeur ou une association d’employeurs, ne cherchera d’aucune manière à dominer, entraver ou financer la formation ou les activités d’une association de sala- riés, ni à y participer. Aucune association de salariés, ni aucune personne agissant pour le compte d’une telle organisation n’adhérera à une association d’employeurs, ni ne cherchera à dominer, entraver ou financer la formation ou les activités d’une telle association ni à y participer. 13. Nul ne doit user d’intimidation ou de menaces pour amener quiconque à devenir membre, à s’abstenir de devenir membre ou à cesser d’être membre d’une association de salariés ou d’employeurs. 14. Aucun employeur, ni aucune personne agissant pour un employeur ou une association d’employeurs ne doit refuser d’employer une personne à cause de l’exercice par cette personne d’un droit qui lui résulte du présent code, ni chercher par intimidation, mesures discriminatoires ou de repré- sailles, menace de renvoi ou autre menace, ou par l’imposition d’une sanc- tion ou par quelque autre moyen à contraindre un salarié à s’abstenir ou à cesser d’exercer un droit qui lui résulte du présent code. Le présent article n’a pas pour effet d’empêcher un employeur de suspendre, congédier ou déplacer un salarié pour une cause juste et suffisante dont la preuve lui incombe.
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l’adhésion syndicale52. L’employeur ne peut, par exemple, menacer de fermer l’établissement pour motifs antisyndicaux53. Les salariés doivent de plus être libres d’écouter ses propos. Les rencontres obligatoires (rémunérées ou non) ou pendant les heures de travail sont donc à proscrire54. L’article 12 interdit également la prise de contrôle de l’association par l’employeur puisqu’une association dominée « ne défend pas les intérêts des salariés, mais plutôt ceux de l’employeur, lequel oriente, dans l’ombre, ses activités tout en la soutenant de diverses manières [. . .] »55. Le fait qu’un employeur finance une association, qu’il mette à sa disposition des locaux et des équipements, qu’il favorise une association plutôt qu’une autre
ou s’ingère dans le choix des dirigeants syndicaux sont des indices 2015 CanLIIDocs 535
52 Voir par exemple : Syndicat des employées et employés professionnels et de bureau, section locale 57 c Caisse populaire Desjardins de Côte St-Paul, [1993] TT 435, DTE 93T-643 (TT) (appel rejeté : DTE 94T-57 (CS) ; Syndicat cana- dien des communications, de l’énergie et du papier, section locale 194 c Disque Améric inc, [1996] TT 451, DTE 96T-835 (TT) [Disque Améric] ; Syndicat des employées et employés de soutien de l’Université Concordia, secteur technique (CSN) c Université Concordia, [2005] RJDT 1691 (CRT), DTE 2005T-997 (CRT) et Bernard c Métallurgistes unis d’Amérique, section locale 9414, 2003 QCCRT 0406, [2003] RJDT 143 (CRT), DTE 2007T-77 (CRT) (révision en vertu de l’article 127 refusée : DTE 2008T-140 (CRT) [Bernard]. 53 Voir par exemple : Syndicat des travailleurs en communication, électronique, électricité, techniciens et salariés du Canada (CTC – FTQ) c Schwartz, [1986] TT 165 ; Bourget c Matériaux BGB ltée, DTE 95T1257, [1995] AZ95147099 (TT) ; Syndicat des employés de la société chimique Laurentide Inc c Lambert, DTE 85T523, [1995] AZ85147077 (TT) ; Teamsters – Conférence des communi- cations graphiques, section locale 555M c Joncas Postexperts inc, 2008 QCCRT 249 ; Section locale 175 du Syndicat canadien des communications, de l’énergie et du papier (SCEP) c PetroCanada, 2008 QCCRT 246. Il ne peut pas non plus fermer l’établissement pour motifs antisyndicaux. À ce sujet, voir : Asselin c Lord, DTE 85T193, [1985] AZ85147041 (TT). 54 Voir par exemple : Disque Améric, supra note 52 ; Bernard, supra note 52 et Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 501 c Charcuterie Tour Eiffel inc (Division Charcuterie de Bretagne), 2004 QCCRT 0028. 55 Coutu et al, supra note 21 au para 240.
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de domination56. L’article 13, quant à lui, protège les salariés contre l’intimidation. Cet article trouve application lorsque les propos ou les agissements de l’employeur créent une crainte ou une appréhension réelle chez le travailleur, que cette crainte ait ou un effet ou non sur son appartenance à un syndicat57. Finalement, l’article 14 interdit les représailles et la discrimination envers les salariés qui font valoir un droit protégé par le Code du travail. Il permet ainsi de sanctionner un employeur qui refuse d’embaucher un travailleur58 ou qui menace ses employés de sanctions disciplinaires pour cause d’activités syndi- cales59. Rappelons qu’à la différence des articles 15 à 17 du Code du travail, les articles 12 à 14 ne créent pas de présomption légale et le
syndicat qui les invoque doit démontrer l’intention antisyndicale de 2015 CanLIIDocs 535 l’employeur60. La complémentarité de ces dispositions permet, par l’étude de cas variés, de confronter notre typologie avec la réalité. Ce choix méthodologique s’explique également par le fait qu’en 2002, la portée
56 Voir par exemple : Syndicat des employés de Mauricie Toyota c Syndicat natio- nal de l’automobile, de l’aérospatiale, du transport et des autres travailleurs et travailleuses du Canada (TCA – Canada), 2007 QCCRT 0317 [Toyota], DTE 2007T-613 ; Syndicat des employées et employés de Tremcar Iberville c Métallurgistes unis d’Amérique, section locale 9414, DTE 99T-220 (TT) et Syndicat des professionnelles et professionnels des affaires sociales du Québec (SPPASQ-FP-CSN) c Hôpital Louis-H Lafontaine, [2006] RJDT 73 (CRT), DTE 2006T-70 (CRT). 57 Lagacé c Laporte, [1983] TT 354, [1983] AZ-83147103 (TT) à la p 10. 58 Voir par exemple : Boivin c Comité conjoint de l’industrie et de la confection pour dames au Québec, [1981] TT 28 et Ross c Université du Québec à Rimouski, DTE 84T-716 (TT). Voir également : S . . . D . . . c Gouvernement du Québec (Société de l’assurance automobile du Québec), 2009 QCCRT 0034, [2009] AZ-50535353 (CRT). 59 Fleurent et Compagnie Wal-Mart du Canada, 2005 QCCRT 0095 [Fleurent]. 60 Plourde c Compagnie Wal-Mart du Canada Inc, 2009 CSC 54, [2009] 3 RCS 465 au para 32 [Plourde].
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des articles 12 à 14 du Code du travail a été élargie61. Désormais, en plus de permettre les recours pénaux, ces dispositions offrent des recours de nature civile, ce qui peut les rendre plus intéressants aux yeux des salariés62. Ce changement législatif nous permet donc de circonscrire la période couverte par la recherche, celle-ci s’étendant de novembre 2002, moment d’entrée en vigueur des nouvelles dis- positions et de la création de la Commission des relations de travail (CRT), au 6 septembre 201263. Finalement, afin d’assurer la constance dans l’analyse des déci- sions, nous avons eu recours à une grille de lecture permettant d’iden- tifier les campagnes présentes dans chaque décision retenue, puis de
relever les différentes tactiques antisyndicales utilisées à partir d’une 2015 CanLIIDocs 535 liste préétablie. Chaque cas retenu sanctionne une infraction au Code du travail. Cependant, toutes les tactiques ne sont pas nécessairement sanctionnées légalement (par exemple, promettre d’améliorer les salaires, utiliser des consultants etc). Elles ont tout de même été consi- dérées lors de notre analyse puisqu’elles sont largement reconnues au sein du champ des relations industrielles. Les tactiques antisyndicales incluses dans la grille ont été identifiées lors de la recension de la lit- térature. Nous avons cependant laissé cette grille ouverte de manière
61 Ces modifications, apportées par la Loi modifiant le Code du travail, instituant la Commission des relations du travail et modifiant d’autres dispositions légis- latives (LQ 2001, c 26, art 63), élargissent les pouvoirs de réparation de la CRT. Depuis, cette dernière peut, en plus d’imposer des sanctions pénales, notamment émettre des ordonnances de sauvegarde (art 118 (3) Ct), ordonner la cessation d’un acte contraire au Code (art 119 (1) et (2) Ct) et rendre toute décision qu’elle juge appropriée (art 118 (6) Ct). Notons que dans l’arrêt Plourde c Compagnie Wal-Mart du Canada Inc, le juge Binnie indique, au nom de la majorité, que la CRT peut utiliser ces pouvoirs étendus lors de recours basés sur les articles 12 à 14 du Ct, mais non lors des recours basés sur les articles 15 à 19 (Plourde, supra note 60 aux para 12 et 39). 62 En plus des nouveaux remèdes que peut imposer la CRT, soulignons également que le fardeau de preuve est plus facile à assumer en matière civile (prépondé- rance de preuves) qu’en matière pénale (hors de tout doute raisonnable). À ce sujet, voir par exemple : Coutu et al, supra note 21 au para 243. 63 Il est à noter que trois décisions composant notre échantillon ont été rendues en 2003 par le Tribunal du travail, mais dont les faits reprochés remontent avant la modification duCode du travail en novembre 2002. Nous avons conservé ces décisions dans notre échantillon puisqu’elles permettent néanmoins de vérifier empiriquement la pertinence de notre typologie.
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à découvrir de nouvelles tactiques qui n’auraient pas fait l’objet d’une étude antérieurement. Ce mouvement itératif entre la littérature et nos cas pratiques nous a permis d’élaborer une typologie plus raffi- née des stratégies patronales antisyndicales qui tient compte à la fois des objectifs poursuivis par les employeurs qui y ont recours et du moment où ils y ont recours. La méthodologie utilisée pour les fins de la recherche comporte deux limites importantes. La première concerne l’étendue de notre étude : notre analyse portant sur les décisions rendues par la CRT, les stratégies antisyndicales n’ayant pas fait l’objet d’une plainte et celles invoquées dans les plaintes réglées hors cour n’ont pas été prises en
considération. Ainsi faisant, certaines tactiques antisyndicales uti- 2015 CanLIIDocs 535 lisées par les employeurs québécois peuvent avoir échappé à notre analyse. La seconde a trait à la mesure de l’intensité des tactiques antisyndicales. En ce sens, lors de notre analyse, le fait qu’un ou plusieurs militants syndicaux aient été victimes d’intimidation ou de représailles ont été mis sur le même pied. Or, il va de soi que l’effet d’un congédiement pour implication syndicale est différent de celui d’une dizaine de congédiements. De même, une missive contenant des propos antisyndicaux n’a certainement pas le même effet si l’em- ployeur la transmet par courrier ou si elle est livrée en mains propres, par huissier. Ici encore, nous pouvons supposer que non seulement le mode de livraison peut engendrer plus ou moins de peur chez le destinataire, mais également que l’employeur en est conscient.
(a) Le corpus d’analyse
Les décisions retenues pour les fins de l’étude ont été sélec- tionnées à partir d’une base de données juridique, Azimut, qui publie notamment les décisions rendues par les juridictions compétentes en matière de travail. Elle permet ainsi d’accéder aux décisions ren- dues par la Commission des relations de travail, instance habilitée à trancher un litige portant sur les tactiques antisyndicales au Québec et d’en faire le suivi devant les différentes instances, s’il y a lieu. Une première interrogation de cette base de données nous a permis de relever 250 occurrences citant les articles 12 à 14 du Code du travail. Certaines décisions étant fondées sur plus d’une disposi- tion législative, nous avons éliminé les décisions redondantes, puis regroupé en cas les décisions complémentaires impliquant les mêmes
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parties64. N’ont ensuite été retenus que les cas où il y a recours à une tactique antisyndicale par l’employeur, soit directement, soit par l’in- termédiaire de salariés ou d’un syndicat rival65. Au total, notre corpus d’analyse est donc composé de 70 cas : 40 cas (57%) où seul l’article 12 Ct est cité, 8 cas (12%) où les articles 12 et 14 Ct sont cités ; 7 cas (10%) où les articles 12 et 13 Ct sont cités, 3 cas (4%) où les articles 13 et 14 Ct sont cités et 12 cas (17%) où les articles 12, 13 et 14 Ct sont cités. Notons également que, parmi nos décisions, il y en a deux où c’est la partie patronale qui soutient qu’il y a une entorse à l’article 13. Les particularités de ces décisions ont été prises en compte.
4. RÉSULTATS 2015 CanLIIDocs 535
Dans cette section, nous présentons les principaux résultats de l’analyse de notre corpus de décisions. Cette présentation se divise en quatre sous-sections : le moment d’utilisation des tactiques antisyn- dicales, le type de stratégies mobilisées, l’utilisation de combinaison par les employeurs et, finalement, les contributions de cette analyse à une nouvelle typologie des stratégies antisyndicales.
(a) À quel moment l’employeur a-t-il recours à des tactiques antisyndicales?
Notre analyse des travaux antérieurs nous a permis d’identi- fier trois périodes au cours desquelles l’employeur était susceptible d’utiliser des tactiques antisyndicales: 1) avant le dépôt de la requête en accréditation (campagne d’organisation syndicale) ; 2) entre le dépôt de la requête en accréditation et la décision de la CRT ; 3) entre
64 Par exemple, lorsque dans une affaire, nous retrouvons, en plus de la décision rendue par la CRT, une décision en révision judiciaire rendue par la Cour supé- rieure, puis un appel de la révision devant la Cour d’appel, nous avons réuni ces trois décisions ensemble. Nous parlons alors de cas plutôt que de décisions. 65 Les décisions retenues sont des ordonnances provisoires émises à la demande d’un syndicat, des demandes d’accréditation, des plaintes entendues sur le fond (au moins partiellement en faveur du syndicat), ou des moyens dilatoires présen- tés par l’employeur (rejetés par la CRT). Notre objectif était d’identifier la nature et le contexte des tactiques antisyndicales au Québec et non d’évaluer, à ce stade de notre recherche, la sanction appliquée à chaque tactique.
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l’accréditation et la conclusion de la première convention collec- tive. À la lumière de nos résultats, il ressort pourtant clairement que l’étude des stratégies antisyndicales doit également s’effectuer après la conclusion d’une première convention collective tout en tenant compte du contexte dans lequel les tactiques sont utilisées. Ainsi, dans 25 de nos cas, le recours à des tactiques antisyn- dicales se produit avant la conclusion d’une première convention collective. Ces cas se répartissent comme suit : 11 cas avant le dépôt de la requête en accréditation, 12 cas entre le dépôt de la requête et l’accréditation ainsi que 10 cas entre l’accréditation et la conclusion de la première convention collective66. Nous retrouvons donc 45 cas
où les tactiques ont lieu après la conclusion d’une première conven- 2015 CanLIIDocs 535 tion collective67. Considérant ce résultat, nous avons ajouté une qua- trième période, celle de l’après-signature de la première convention collective, aux trois périodes initialement retenues. Au cours de cette période, nous avons identifié certains contextes particuliers qui ont mené à l’utilisation de stratégies antisyndicales : la période de marau- dage en champ non libre (6 cas), les négociations pour le renouvel- lement de la convention (21 cas), la réaction à l’exercice d’un droit syndical (9 cas)68, en présence de relations de travail généralement tendues (3 cas) ou lors du changement des caractéristiques du travail ou de l’entreprise (8 cas)69. En ce qui concerne les périodes de négociation collective et de maraudage, les cas retenus nous ont permis d’observer que les tactiques antisyndicales peuvent être utilisées tant dans un contexte de première convention collective que dans celui du renouvellement d’une convention. En ce sens, nous avons relevé 10 cas où les tac- tiques antisyndicales étaient utilisées dans un contexte de première
66 Parmi les cas ayant eu lieu avant la conclusion de la première convention col- lective, six cas s’étendent sur plus d’une période. Une fois les répétitions de cas éliminées, 25 cas distincts se retrouvent dans cette période. 67 Deux cas s’étendent sur plus d’une période. Une fois les doublons éliminés, 45 cas distincts se situent dans cette période. 68 Il s’agit, par exemple, d’une réaction à l’intégration d’un travailleur à un comité patronal-syndical, au dépôt d’un grief ou au changement d’affiliation syndicale. 69 Il peut s’agir du transfert ou d’une cession d’une partie d’entreprise, de la ferme- ture de l’entreprise ou d’une partie de l’entreprise ou de changements apportés aux conditions de travail des salariés.
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convention collective70 et 21 cas de renouvellement de convention collective71. Finalement, nous avons répertorié 3 cas où la négociation ou le maraudage découlait d’une modification de l’unité d’accrédi- tation à la suite d’un changement législatif ou d’une requête syndi- cale72. Ces cas sont particuliers puisqu’il ne s’agit ni d’une première accréditation syndicale ni d’un simple renouvellement de convention collective.
(b) Les campagnes utilisées
(i) La campagne de cooptation 2015 CanLIIDocs 535 La campagne de cooptation, peu utilisée dans notre échantillon (5 cas, 10 tactiques), est présente sous la forme de promesses d’amé- liorer ou d’amélioration effective des conditions de travail et des salaires dans ces cinq cas. Cependant, contrairement à nos attentes, elle n’a pas pour unique but d’inciter les salariés à ne pas adhérer à un syndicat (2 cas), mais également à les inciter à se désyndicaliser
70 Il y a 7 cas pendant les négociations et 3 cas pendant celle de maraudage. Voir par exemple : CSN c Couche-Tard, 2011 QCCRT 0592, 2012EXPT-193, DTE 2012T-60 — regroupée avec Syndicat des travailleuses et travailleurs des Couche-Tard de Montréal et Laval – CSN et Couche-Tard inc, 2011 QCCRT 0449 [cas Couche-Tard] et Travailleuses et travailleurs unis de l’alimentation et du commerce, section locale 503 c Miralis inc, 2012 QCCRT 0211, 2012EXPT- 1138, DTE 2012T-384. 71 Il y a 21 cas pendant les négociations et 4 cas pendant celle de maraudage. Voir par exemple : Parenteau c Villa du Boisé inc 2010 QCCRT 0591 et Bernard, supra note 52. Ce constat rejoint celui de certains auteurs ayant établi que le maintien de l’accréditation peut s’avérer aussi, sinon plus difficile, que l’obten- tion d’une accréditation syndicale. 72 Syndicat de la santé et des services sociaux d’Arthabaska-Érable (CSN) c Centre de santé et de services sociaux d’Arthabaska-Érable, 2006 QCCRT 0276, DTE 2006T-634, [2006] RJDT 1073 (CRT) ; Coupal c Saint-Jérôme (Ville de), 2006 QCCRT 0143 (maintenue par 2007 QCCS 1007, DTE 2007T-309 ; requête pour permission d’appeler rejetée : [2007] AZ-50472685 (CA), 17 mai 2007) [Coupal] et Syndicat de l’hôtellerie de la Mauricie (CSD) c Auberge du Lac Sacacomie inc, 2010 QCCRT 0425, regroupée avec Syndicat de l’hôtellerie de la Mauricie (CSD) c Mouchès, 2010 QCCRT 0436 [cas Sacacomie].
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(3 cas)73. De plus, dans trois de nos cas, l’employeur avait aussi tenté d’influencer le choix des employés par l’instauration de nouveaux canaux de communication. Cette tactique est déployée autant avant (2 cas) qu’après (1 cas) la conclusion d’une première convention collec- tive. Elle vise ainsi à démontrer l’inutilité d’un syndicat en offrant un substitut aux mécanismes traditionnels de représentation syndicale (la création d’un comité de salariés qui pourra discuter des conditions de travail au lieu d’un comité syndical de négociation, par exemple)74. Fait intéressant, lors de notre analyse, nous avons remarqué que la campagne de cooptation n’est jamais utilisée seule. En fait, elle est toujours combinée à deux ou trois autres campagnes (contrôle,
peur ou blocage). Les cinq cas répertoriés sont également des cas où 2015 CanLIIDocs 535 les employeurs ont eu recours à plusieurs tactiques différentes. Dans quatre des cinq cas, les employeurs ont utilisé, toutes campagnes confondues, de 7 à 11 moyens différents afin de contrecarrer les acti- vités syndicales.
(ii) La campagne de contrôle
Quant à la campagne de contrôle, qui consiste à dominer ou empêcher la formation d’une association de salariés, nous retrou- vons les tactiques préalablement identifiées dans 17 de nos cas (22
73 Voir par exemple : Travailleuses et travailleurs unis de l’alimentation et du com- merce, section locale 501 c Charcuterie Tour Eiffel inc (division Charcuterie de Bretagne), 2003 QCCRT 0676, DTE 2004T-190 — regroupée avec Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 501 c Charcuterie Tour Eiffel inc (Division Charcuterie de Bretagne), 2004 QCCRT 0028 [cas Charcuterie Tour Eiffel] ; 3680711 Canada inc c Syndicat des tra- vailleuses et travailleurs de H Paulin (6 mai 2003), DTE 2003T-744, [2003] AZ-50173547 (TT), confirmantSyndicat des travailleuses et travailleurs de H Paulin (CSN) et H Paulin & Co (21 novembre 2001), [2001] AZ-50105788 (CT) [cas Paulin] et Syndicat des quincailleries et commerces de Québec inc (CSD) c Canac-Marquis Grenier ltée, 2005 QCCRT 0297 (suivie par : sursis d’exécu- tion rejeté : 2005 QCCRT 0394 ; révision du sursis d’exécution accueillie : (22 juillet 2005) DTE 2005T-721 ; [2005] AZ-50325675 (CS) ; révision judiciaire accueillie en partie : [2005] AZ-50778076 (CS) ; requête en révision accueillie en partie : 2005 QCCRT 0663 [cas Canac-Marquis]. 74 Avant l’accréditation : cas Paulin, supra note 73. Pour inciter à la désyndicalisa- tion : Bernard, supra note 52 et Charcuterie Tour Eiffel, supra note 73.
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tactiques). Dans 8 cas impliquant une rivalité syndicale, des éléments factuels démontrent que l’employeur a tenté de favoriser l’accrédi- tation de l’une des associations syndicales plutôt qu’une autre. Une telle préférence peut se manifester de différentes manières : laisser circuler les agents syndicaux d’une association dans l’entreprise tout en interdisant la présence des agents de l’autre syndicat75; fermer les yeux sur l’intimidation faite par le syndicat favorisé76; régler rapide- ment des griefs afin de bien faire paraître le syndicat en place77; sur- veiller et exercer des représailles contre des travailleurs contestataires qui désirent un changement d’allégeance78, etc. L’employeur peut également chercher à faire accréditer un « syndicat de boutique » (3 79
cas) et à conclure une convention collective avec ledit syndicat (2 2015 CanLIIDocs 535 cas)80. Une telle entente peut être qualifiée de factice puisque, dans les faits, la négociation se déroule entre l’employeur et un conseil exécutif syndical qu’il contrôle. Finalement, l’employeur peut, au cours de la période de négociation, tenter de prendre le contrôle de
75 Voir par exemple le cas Canac-Marquis, décision de la CRT, supra note 73 au para 20, qui rapporte que l’employeur avait antérieurement permis la circulation des représentants d’un syndicat, mais expulsé ceux de l’autre syndicat. 76 Voir par exemple le cas Syndicat canadien des communications, de l’énergie et du papier (SCEP), section locale 197 c Solive ajourée 2000 inc et Syndicat des employés de SA 2000, 2007 QCCRT 0582, suivie par une requête en sursis d’exécution de l’ordonnance d’un scrutin secret refusée (2008 QCCRT 0019) et de deux requêtes en révision (décisions non rendues au 7 juin 2013) [cas Solive ajourée]. 77 Voir par exemple le cas Solive ajourée, supra note 76. 78 Poudrier Frères ltée et Métallurgistes unis d’Amérique, section locale 7531 (Yvan Bergeron), [2006] RJDT 1559 (TA), DTE 2006T-639 [Poudrier]. 79 Cas Charcuterie Tour Eiffel, supra note 73 ; Toyota, supra note 56 et Syndicat des employés de Camtruck et Camtruck, 2011 QCCRT 0456. 80 Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 500 c Provigo Distribution inc, 2003 QCCRT 0236 et Syndicat des tra- vailleurs de Fonderie Fondalco (CSN) c Syndicat des salariés de la Fonderie Fondalco, DTE 2003T-542, [2003] AZ-50171141 (TT), infirmantSyndicat des salariés de la Fonderie Fondalco et Syndicat des travailleurs de Fonderie Fondalco (CSN), DTE 2003T-21, [2003] AZ-50149741 (CT) [Fondalco].
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la négociation collective en discutant avec un salarié qui n’assume aucune fonction syndicale (1 cas)81. À la suite de notre analyse, la définition de cette campagne a été élargie afin d’y inclure plusieurs tactiques restreignant les activi- tés syndicales. Parmi celles-ci, nous retrouvons le fait d’entraver le processus de griefs par un contrôle inhabituel des libérations syndi- cales (3 cas)82, d’inciter les salariés à retirer leur grief (2 cas)83 et de demander la révocation d’une accréditation syndicale afin de nuire au traitement des griefs toujours pendants à la suite de la fermeture de l’entreprise84. L’employeur peut aussi limiter la liberté d’expres- sion du syndicat (2 cas85). Dans les deux cas concernés, l’employeur
modifie les conditions de travail des syndiqués. Ces changements 2015 CanLIIDocs 535 ayant un impact direct sur les services offerts à la population, l’em- ployeur a cherché à empêcher le syndicat d’en informer le public.
(iii) La campagne de peur
La campagne de peur, par laquelle on souhaite dissuader les tra- vailleurs d’adhérer à un syndicat, est la plus utilisée dans notre corpus d’analyse (48 décisions, pour un total de 108 tactiques). Ce résultat n’est guère surprenant : la campagne de peur est bien couverte par la
81 Cas Sacacomie, supra note 72. Dans cette affaire, un salarié, ayant agi comme briseur de grève, organise une assemblée générale au nom du syndicat, annonce la fin de la grève et demande la reprise des négociations. L’employeur fait alors preuve d’aveuglement volontaire et tient pour avérée la fin de la grève. Sans l’intervention de la CRT, les négociations auraient pu être menées avec ce salarié et une entente factice aurait pu être conclue. 82 Poudrier, supra note 78 ; Syndicat des professionnelles et professionnels en soins infirmiers et cardiorespiratoires de Drummondville (FIQ) et Centre de santé et de services sociaux Drummond, 2010 QCCRT 0613 [Soins infirmiers] et 3539491 Canada inc c Syndicat des Métallos, section locale 2843, 2012 QCCRT 0028 [3539491 Canada]. 83 Soins infirmiers, supra note 82 et Poudrier, supra note 78. 84 3539491 Canada, supra note 82. 85 Syndicat des employées et employés de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000, Syndicat canadien de la fonction publique et Hydro-Québec, 2012 QCCRT 0084 et Desfossés c Société de transport de Sherbrooke et Commission des relations du travail, 2011 QCCA 119 (rétablis- sant 2007 QCCRT 0556, DTE 2007T-1012 ; infirmant 2009 QCCS 600, DTE 2009T-195 (rectifié le 24 février 2009)).
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littérature recensée, ce qui nous avait permis de pré-identifier douze tactiques caractéristiques, facilitant son repérage lors de l’analyse. Une telle fréquence s’explique notamment par la forte utilisation des tactiques telles que l’intimidation, le harcèlement, les représailles et le renvoi des militants syndicaux. Ces tactiques sont couramment uti- lisées lors d’un processus d’organisation syndicale, mais également après la conclusion d’une première convention collective. Au total, nous avons relevé 35 cas où ce type de tactiques est utilisé. Parmi les autres tactiques ayant la cote, nous retrouvons la distribution de littérature antisyndicale aux salariés (15 cas ; dont deux cas où l’em- ployeur fait livrer les missives par huissier)86, le discours devant un 87
auditoire captif (10 cas) , les rumeurs ou menaces de fermeture ou 2015 CanLIIDocs 535 de délocalisation (10 cas)88 et les réunions en petits groupes (8 cas)89. À l’inverse, la mise sur pied de comités antisyndicaux (3 cas)90, et la présentation de vidéos antisyndicales (1 cas)91 sont rares. Notre analyse de la jurisprudence nous amène à modifier la période où la campagne de peur est utilisée. Si les travaux antérieurs ont démontré que les employeurs avaient tendance à utiliser les tac- tiques associées à ce type de campagne au moment de l’accréditation, notre analyse démontre qu’elles sont plutôt utilisées à tout moment
86 Syndicat national des travailleuses et travailleurs des pâtes et cartons de Jonquière inc (usine pâte) (CSN) et Cascades Fjordcell, division de Cascades Canada inc, 2005 QCCRT 0132 (annulée par 2006 QCCS 1815 ; permission d’appeler accueillie en partie : 2006 QCCA 754 [2006] ; appel accueilli : 2007 QCCA 1765, DTE 2008T-40) [Cascades]. Dans cette affaire, vu le règlement du conflit, puis la fermeture de l’usine, le dossier n’a pas été retourné devant la Cour supérieure afin qu’elle se prononce sur les autres motifs de révision. 87 Voir par exemple : Bernard, supra note 52 et Syndicat des travailleuses et tra- vailleurs de l’environnement Safety-Kleen (CSN) c Safety-Kleen Canada inc, DTE 2004T-1158, [2004] AZ-50274844 (TT). 88 Voir par exemple : Bernard, supra note 52 et le cas Solive ajourée, supra note 76. 89 Voir par exemple le cas Charcuterie Tour Eiffel, supra note 73. 90 Cas Charcuterie Tour Eiffel, supra note 73 ; Fleurent, supra note 59 et Syndicat des travailleuses et travailleurs du Mount Stephen Club – CSN Requérant c Mount Stephen Club (9166-1389 Québec inc) et 9166-9093 Québec inc, 2011 QCCRT 0499 — regroupée avec Syndicat des travailleuses et travailleurs du Mount Stephen Club – CSN c Mount Stephen Club (9166-1389 Québec inc) et 9166-9093 Québec inc et Alain Major, 2012 QCCRT 0005 [cas Mount Stephen]. 91 Cas Couche-Tard, supra note 70.
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par l’employeur, même une fois que l’accréditation est obtenue. Il convient aussi de préciser que ces tactiques ne s’adressent pas qu’aux militants syndicaux : les sympathisants syndicaux, les travailleurs exerçant leurs droits (par exemple, déposer un grief) ainsi que tous les travailleurs qui pourraient être tentés de se syndiquer sont aussi visés. Compte tenu de la gamme étendue des tactiques qui sont associées à la campagne de peur, de la variété des moments où elles peuvent être mobilisées et des nombreuses personnes qui sont visées par ces der- nières, rien d’étonnant que leur efficacité soit reconnue dans plusieurs travaux. De plus, nos constats soulèvent une question importante quant à l’effet dissuasif de stratégies aussi agressives que celles mobi-
lisées dans le cadre d’une campagne de peur sur les travailleurs autres 2015 CanLIIDocs 535 que ceux directement visés par l’employeur, particulièrement dans le cas d’une entreprise multi-établissements. Comme le démontre en effet Bronfenbrenner, « the impact of plant closings and threats of plant closings during organizing campaigns goes well beyond the individual workers in the unit being organized »92.
(iv) La campagne de blocage
La campagne de blocage est également répandue au sein de notre échantillon: nous la retrouvons dans 50 cas (91 tactiques). Il s’agit, encore ici, d’une campagne amplement abordée dans la lit- térature, ce qui a permis de pré-identifier onze tactiques (voir le tableau 1). Dans notre corpus d’analyse, la tactique la plus couram- ment utilisée est celle de la négociation de mauvaise foi (20 cas). Celle-ci se produit notamment quand l’employeur nie le rôle de négociateur aux représentants syndicaux et qu’il transmet ses offres directement aux salariés (8 cas), soit pour les inciter à faire pression sur leurs représentants syndicaux, soit pour miner leur confiance93. D’autres tactiques sont également présentes pendant la période de
92 Bronfenbrenner, « Final Report », supra note 8, à la p. 26. 93 Voir par exemple : Syndicat des travailleuses et travailleurs du Marriott Château Champlain-CSN et 9006-6051 Québec inc, 2010 QCCRT 0572, regroupée avec Therriault c Syndicat des travailleuses et travailleurs du Marriott Château Champlain – CSN, 2011 QCCS 1954, DTE 2011T-306 et Syndicat canadien de la fonction publique, section locale 4290 c Municipalité de Sainte-Béatrix, 2004 QCCRT 0527, désistement en Cour supérieure (7 janvier 2005) [Ste-Béatrix].
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négociation : inciter les syndiqués à forcer le départ du président du syndicat lors d’une assemblée94, diffuser des informations (nom, date d’embauche, nombre hebdomadaire d’heures travaillées, jours de chômage, formation, etc.) sur les salariés afin de mettre de la pression sur eux95, recourir à des briseurs de grève, et ce, malgré l’interdiction faite par l’article 109.1 du Code du travail96 ou au lock-out. Ce der- nier peut être illégal97 ou être utilisé dans un contexte de négociation de mauvaise foi98. L’utilisation de différents moyens dilatoires et recours légaux, allant du report de rencontres ou d’audiences à la contestation de la compétence des instances, de l’unité d’accréditation ou de la repré- 99
sentativité syndicale, revient également à plusieurs reprises (15 cas) . 2015 CanLIIDocs 535 Il y a d’ailleurs, au sein de notre corpus, deux plaintes déposées par la partie patronale et fondées sur l’article 13 du Code du travail. Ces plaintes peuvent être, lorsqu’elles ne sont pas fondées, considérées comme des tactiques antisyndicales. Dans les cas que nous avons répertoriés, les employeurs affirment que les syndicats forcent les salariés à y adhérer, alors que les commissaires concluent que rien
94 Coupal, supra note 72. Cette tactique s’apparente à la division du comité de négociation ou à l’utilisation d’une pétition pour empêcher la syndicalisation. 95 Dans une petite municipalité, Sainte-Béatrix, « où tout le monde se connaît y inclus les employés municipaux qui font partie de la communauté », l’employeur publie de telles informations dans le journal local. Alors que les employés muni- cipaux sont en grève, il invite les citoyens à convaincre les salariés qu’ils sont bien traités et que le conflit doit cesser (Ste-Béatrix, supra note 93). 96 Cas Sacacomie, supra note 72. 97 Dans cette affaire, l’employeur a mis à pied 162 cols bleus auxiliaires le jour de l’assemblée syndicale portant sur l’exercice de moyens de pression (Syndicat des employés manuels de la Ville de Québec, section locale 1638 – Syndicat canadien de la fonction publique c Ville de Québec, 2012 QCCRT 0198). 98 Syndicat national des employés de garage du Québec inc c Trois-Rivières Nissan inc, 2011 QCCRT 0133 et Cascades, supra note 86. 99 Voir par exemple Groupe Dynamite inc c Conseil du Québec – Unite Here, 2006 QCCRT 0587 au para 89 [Groupe Dynamite] où le Commissaire conclut « que l’employeur et un groupe d’intervenants ont utilisé toutes les mesures possibles pour retarder l’accréditation de l’association de salariés. [. . .] Il n’est donc pas surprenant que les intervenants aient eu de la difficulté à répondre aux demandes de précisions formulées par la Commission et qu’encore à la toute fin ils utilisent des manœuvres dilatoires pour allonger le débat ».
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ne soutient les affirmations des employeurs100. D’ailleurs, dans l’un des cas, le commissaire rappelle que le syndicat dispose du droit à la liberté d’expression et conclut qu’il « serait nettement exagéré de museler et de brimer [sa] liberté d’expression »101. Dans l’autre cas, l’employeur utilise l’article 13 afin de connaître l’identité des salariés ayant signé une carte d’adhésion, une information à laquelle il n’a pas légalement droit en vertu de l’article 36 du Code du travail102. L’embauche par l’employeur d’un consultant spécialisé dans la gestion de la syndicalisation d’une entreprise est, quant à elle, une tactique difficile à détecter et ne se retrouve que dans trois de nos cas. Précisons qu’ont seulement été retenus les cas où le recours ou la
possibilité d’un recours à un tel consultant sont explicités. Ceci nous 2015 CanLIIDocs 535 a permis d’identifier un cas où une psychologue tient des propos anti- syndicaux lors d’une fête où sont conviés les travailleurs103 ainsi que deux cas où l’employeur menace de recourir à de tels consultants104. Ceci étant dit, plusieurs autres cas, de par leur complexité et la mul- tiplication des recours, laissent croire qu’un tel spécialiste pourrait avoir été chargé du dossier105. La campagne de blocage inclut aussi les tentatives de l’em- ployeur d’affecter la représentativité syndicale que ce soit par des mises à pied, par l’embauche de travailleurs106 ou par l’élimination d’une unité ou d’une partie d’unité d’accréditation. Cette dernière
100 Groupe Aldo c Conseil du Québec – Unite Here, 2006 QCCRT 0071 [Aldo] au para 22. Voir aussi Groupe Dynamite, supra note 99 au para 38. 101 Aldo, supra note 100 au para 25. 102 Groupe Dynamite, supra note 99 au para 38. 103 Bernard, supra note 52. 104 Syndicat des professionnelles d’organismes communautaires du Bas St-Laurent (CSN) c Atelier de travail Jeunesse (Carrefour Jeunesse-Emploi Rimouski- Neigette), 2011 QCCRT 0209 (décision en révision judiciaire non rendue au 8 novembre 2013) et Haut du formulaire Syndicat québécois des employées et employés de service, section locale 298 (FTQ) c Services à domicile de la région de Matane, 2011 QCCRT 0149. 105 L’élaboration d’une liste de critères permettant de repérer, de par l’historique d’une affaire ou d’une entreprise, les cas où il y a présence de tels consultants serait un outil intéressant à développer dans le cadre d’une nouvelle recherche. En ce sens, il serait également judicieux de pouvoir déterminer à quel stade de la campagne de syndicalisation les consultants sont intervenus, ce que les faits rapportés dans les cas retenus ne nous permettent pas de faire. 106 Cas Charcuterie Tour Eiffel (décision 2003), supra note 73 au para 16.
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possibilité est parfaitement illustrée par un cas où l’employeur abolit unilatéralement 76 postes syndiqués, ce qui prive le syndicat d’une partie importante de ses officiers « dans un contexte de renouvel- lement de la convention collective et de l’arbitrage de différend en cours »107. Le commissaire en conclut que le syndicat « se voit ainsi déstabilisé, fragilisé et affaibli dans son rapport de force avec l’em- ployeur »108. Notons qu’ici, l’abolition ne se fait pas dans un contexte où il y a un manque de travail puisque l’employeur « crée de façon concomitante, un nombre équivalent de postes non syndiqués »109. Notons que le refus d’obtempérer avec les représentants syn- dicaux, par exemple en refusant de fournir la liste des salariés, se 110
retrouve également dans 12 cas . La limitation de l’accès du syn- 2015 CanLIIDocs 535 dicat aux travailleurs, soit en lui refusant l’accès aux lieux phy- siques de travail, soit en bloquant les voies de communication entre le syndicat et ses membres (retirer les informations affichées sur le babillard syndical, interdire l’utilisation d’équipement de l’entre- prise, etc.) est présente dans 8 cas111. En ce qui concerne le blocage des voies de communication, un commissaire a rappelé que « [l]es
107 Association des pompiers professionnels de Québec inc c Québec (Ville de), 2010 QCCRT 0210 au para 63 108 Ibid au para 63. 109 Ibid au para 64. 110 Voir par exemple le cas Mount Stephen, supra note 90, décision de 2012, où l’employeur cherche à gagner du temps en refusant les dates des séances de négociation proposées par le syndicat. Lorsqu’il y a finalement rencontre, l’em- ployeur refuse de négocier sous prétexte que le projet de convention proposée par le syndicat est incomplet et qu’en conséquence, il ne peut négocier. Au lieu de négocier, l’employeur fermera finalement l’établissement. Voir égale- ment : Travailleurs unis du pétrole du Canada, section locale 121 du Syndicat canadien des communications, de l’énergie et du papier et Shell Canada ltée, 2010 QCCRT 0558, DTE 2010T-812. Dans cette affaire, l’employeur refuse de reconnaître les représentants syndicaux puisqu’ils ont été mis à pied. Vu le contexte difficile, le Commissaire en vient à la conclusion que de « priver le Syndicat et ses membres de leurs représentants élus, et en particulier de leur président qui est en poste depuis de nombreuses années, c’est modifier de façon substantielle le rapport de force entre les parties et, à toutes fins pratiques, décapiter le Syndicat » (para 57). 111 Voir par exemple : Syndicat des travailleuses et travailleurs du Centre de santé et services sociaux de Québec-Sud (CSN) c Centre de Santé et des services sociaux, 2012 QCCRT 0312 aux para 9 et ss [Québec-Sud].
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communications du Syndicat avec ses membres constituent une assise fondamentale de l’activité associative », qu’ « un syndicat doit pou- voir bénéficier d’une grande liberté d’expression et être à l’abri des représailles de l’employeur » pour remplir ses fonctions, a fortiori en période de négociation collective112.
(c) Les combinaisons
Dans notre section méthodologique, nous avons souligné que notre grille d’analyse ne permettait pas de quantifier l’intensité des tactiques, ni d’expliquer comment la même tactique, utilisée de deux
manières différentes, permettait d’obtenir un effet plus ou moins 2015 CanLIIDocs 535 grand chez les travailleurs. Il est toutefois possible de mesurer l’inten- sité de l’opposition patronale à la syndicalisation par l’étude des com- binaisons des différents types de campagnes et de tactiques utilisées. L’analyse du nombre de périodes sensibles visées par les campagnes syndicales contribue aussi à atteindre cet objectif. Notre hypothèse rejoint les travaux antérieurs réalisés sur le sujet et suggère que plus le nombre de campagnes et de tactiques antisyndicales utilisées est élevé, plus l’opposition patronale est forte. Il en va de même pour les liens que nous établissons entre le nombre de périodes sensibles visées et l’intensité des campagnes menées.
(i) Combien de tactiques différentes l’employeur utilise-t-il?
Plusieurs cas (29) ne présentent qu’une seule stratégie et peu de tactiques (d’une à quatre). Il s’agit de cas peu complexes, où le cli- mat de travail semble généralement serein ou neutre. C’est le recours à deux stratégies qui est le plus populaire au sein de notre corpus d’analyse (34 cas, de 2 à 10 tactiques par cas). Nous avons également identifié plusieurs cas où la partie patronale employait 3 campagnes différentes (6 cas, de 4 à 8 tactiques), ce qui démontre la présence d’un animus antisyndical assez fort. Finalement, dans un cas extrême, l’employeur a utilisé quatre campagnes différentes (11 tactiques)113. En ce qui concerne le nombre de tactiques utilisées, dans la majorité des cas (54), entre 1 et 4 tactiques sont employées. Dans 14
112 Ibid au para 31. 113 Cas Solive ajourée, supra note 76.
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cas, les employeurs utilisent de 5 à 9 tactiques et, finalement, dans deux cas plus extrêmes, de 10 à 11 tactiques sont mobilisées114. Ces cas sont particulièrement complexes et indiquent une forte volonté de nuire aux activités syndicales, tant avant l’obtention de l’accrédita- tion que par la suite.
(ii) À quels moments les différentes stratégies sont-elles utilisées?
En ce qui a trait aux périodes où les stratégies antisyndicales sont les plus susceptibles d’être utilisées, nous retrouvons, encore ici, des possibilités de combinaisons. Si, dans la majorité de nos cas (62), la
plainte ne concerne qu’une période sensible, nous avons tout de même 2015 CanLIIDocs 535 identifié plusieurs cas où deux périodes sont visées (6 cas). Il y a égale- ment deux cas où les tactiques antisyndicales touchent trois des quatre périodes identifiées, à savoir : avant le dépôt de la requête en accrédi- tation ; entre le dépôt de la requête en accréditation et la décision de la CRT ; et avant la conclusion d’une première convention collective115. De notre analyse, nous retenons ce qui suit : il existe non seule- ment plusieurs campagnes et tactiques permettant de nuire à l’organi- sation ou aux activités syndicales, mais il est également possible de les agencer de plusieurs façons. Selon le contexte particulier de l’en- treprise, les relations du travail existantes et le stade de l’organisation syndicale, la partie patronale peut tenter de maximiser l’effet des stra- tégies antisyndicales utilisées en les combinant de différentes façons.
(d) Une typologie révisée des stratégies antisyndicales
L’objectif de notre recherche était d’analyser les formes et les combinaisons possibles des stratégies antisyndicales de même que les moments privilégiés pour les mobiliser. Nous voulions aussi confron- ter les types de campagnes et les tactiques répertoriées dans la littéra- ture à la réalité québécoise. La méthodologie de recherche privilégiée a permis de révéler que les employeurs utilisent un large éventail de moyens pour s’opposer à la syndicalisation: l’analyse de nos cas a en effet cerné différentes tactiques qui n’ont pas été répertoriées jusqu’à
114 Cas Charcuterie Tour Eiffel, supra note 73 et le cas Mount Stephen, supra note 90. 115 Fondalco, supra note 80 et le Cas Couche-Tard, supra note 70.
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présent dans les différents travaux analysant les stratégies patronales qui visent à éviter la syndicalisation et qui n’avaient donc pas été intégrées initialement dans notre grille d’analyse. Nos observations ont en effet mis en évidence de nouvelles tactiques aux campagnes de contrôle et blocage. Tel qu’établi, la campagne de peur a largement été documentée dans la littérature et notre analyse jurisprudentielle n’a pas permis de mettre en évidence de nouvelles tactiques qui lui sont associées. Il en est de même pour la campagne de cooptation. Par contre, nous avons pu constater le fait que cette campagne n’est jamais utilisée seule: elle est toujours combinée à au moins une autre campagne (contrôle, peur ou blocage) et est présente dans des cas
complexes. Ainsi, dans quatre cas, l’employeur aura recours de 6 à 2015 CanLIIDocs 535 11 tactiques antisyndicales, celles-ci se trouvant dans les quatre cam- pagnes de notre typologie116. Notons également que 2 cas s’étendent sur 3 périodes sensibles117. Ces derniers éléments pourraient signifier que le recours à la campagne de cooptation révèle un fort animus antisyndical chez l’employeur. La temporalité des campagnes a aussi été révisée. Contrairement aux études antérieures118, nos résultats révèlent que les campagnes de cooptation et de peur ne sont pas utilisées uniquement avant l’obten- tion de l’accréditation syndicale, mais bien également au moment de négocier la première convention collective et même après. Ces obser- vations nous permettent alors de proposer une typologie des stratégies antisyndicales (tableau 1) qui tient compte à la fois des objectifs visés par les employeurs (substitution ou suppression des syndicats), mais aussi des moments où ils les utilisent. En ce qui a trait au contenu des campagnes, notre principale contribution est de raffiner et d’ajouter des tactiques utilisées par les employeurs. Mentionnons que les clas- sifications proposées, bien qu’élaborées avec beaucoup de rigueur, ne sont pas toujours parfaitement étanches. Il est donc possible que certaines tactiques se situent à la frontière d’une ou de plusieurs cam- pagnes. Ce tableau offre également un résumé des résultats qui émer- gent de notre recherche jurisprudentielle puisqu’il indique le nombre de cas de notre échantillon d’analyse dans lesquels les tactiques spé- cifiques ont été mobilisées.
116 Cas Paulin, supra note 73, cas Canac-Marquis, supra note 73, Bernard, supra note 52 et cas Charcuterie Tour Eiffel, supra note 73. 117 Fondalco, supra note 80 et le Cas Couche-Tard, supra note 70. 118 En particulier celle de Gall, « British employer », supra note 6.
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5. CONCLUSION
Cette recherche, qui constitue un premier pas dans l’étude des stratégies antisyndicales au Québec, révèle que les employeurs qué- bécois ont utilisé une gamme étendue de tactiques pour combattre la syndicalisation dans les milieux de travail. Elle démontre également que la façon dont sont utilisées ces tactiques varie d’un cas à l’autre, et ce, tant en ce qui concerne la nature des tactiques, leur combinaison et le ou les moments où elles sont déployées. Notre analyse de ces tac- tiques antisyndicales a aussi permis de constater que les employeurs ont davantage eu recours à des stratégies qui visent la suppression des
syndicats plutôt que leur substitution, une tendance comparable à ce 2015 CanLIIDocs 535 que l’on observe aux États-Unis119. Il convient également de rappe- ler que ces constats ne découlent que des plaintes déposées en vertu des articles 12 à 14 du Code du travail. Or, celles-ci ne représentent qu’une portion des outils mis à la disposition des salariés afin de protéger le droit d’association. En ce sens, les tactiques antisyndicales peuvent être sanctionnées sur des bases juridiques autres, notam- ment les articles 15 à 17 et 53 du Code du travail120. Une étude des plaintes fondées sur ces articles permettrait certainement de mieux saisir les dynamiques des tactiques de peur, de contrôle et de blo- cage. Quant à la campagne de cooptation, sa faible présence au sein de notre corpus s’explique peut-être par l’un des motifs suivants : son efficacité, la difficulté qu’ont les salariés et les syndicats à la reconnaître ou la liberté d’expression dont bénéficie l’employeur121.
119 Bronfenbrenner, « No Holds », supra note 8. 120 Alors que les articles 15 à 17 protègent le salarié qui exerce un droit prévu par le Code du travail, l’article 53 prévoit l’obligation de négocier de bonne foi et avec diligence. 121 Voir par exemple le cas Charcuterie Tour Eiffel, supra note 73. Dans cette affaire, l’employeur propose la mise sur pied d’un comité composé de représentants de l’employeur et de travailleurs provenant des diverses sections de l’usine. Ce comité aurait pour mandat d’élaborer un manuel des conditions de travail. Le commissaire considère, dans un premier temps, qu’une telle proposition relève de la liberté d’expression de l’employeur, et ce, même si ce dernier savait qu’il y avait une campagne d’organisation syndicale en cours et avait déjà intimidé un salarié afin de l’inciter à cesser ses activités syndicales. Cependant, à partir du moment où l’employeur a forcé les salariés à accepter la création d’un tel comité, le commis- saire conclut qu’il s’agit d’une tactique antisyndicale. La tactique de cooptation, pourtant bien connue dans la littérature, n’est pas donc pas suffisante pour que le commissaire admette la violation des articles 12 et 13 du Code du travail.
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De nouvelles recherches seront toutefois nécessaires pour valider ces hypothèses. De par son étude d’un aspect des stratégies des employeurs québécois, souvent négligées dans les travaux comparatifs, nos recherches fournissent un premier apport à la littérature en démon- trant clairement la présence des tactiques antisyndicales au Québec, et ce, malgré un cadre juridique réputé comme étant le plus sévère en Amérique du Nord. Notre redéfinition de la typologie des stratégies antisyndicales contribue également à l’avancement des connaissances puisqu’elle permet de mieux appréhender le comportement patronal. L’analyse de notre corpus de décisions nous permet de raffiner cette
typologie, en particulier en ce qui a trait aux tactiques mobilisées par 2015 CanLIIDocs 535 les employeurs québécois, une des principales contributions de notre étude. L’intérêt empirique de la recherche va cependant au-delà de cette catégorisation : les résultats obtenus nous incitent à documenter ces stratégies sous de nouveaux angles. En effet, certains des cas analysés nous amènent à réfléchir sur les impacts des stratégies anti- syndicales autant sur les salariés que sur les organisations syndicales concernées. S’il est vrai que le recours à ces stratégies peut réduire les chances d’accréditation, nous pouvons croire que l’opposition véhé- mente d’une entreprise peut également avoir des répercussions sur les travailleurs d’un autre établissement du même employeur, voire même sur les travailleurs d’un même secteur ou d’une même région. Le recours à de telles stratégies pourrait donc avoir un effet au-delà des unités d’accréditation qu’elles visent directement. Finalement, la nature des tactiques utilisées, la manière dont elles sont déployées ainsi que leur impact sur le droit d’associa- tion constituent des informations cruciales pour les chercheurs qui s’intéressent à l’effectivité du droit des rapports collectifs de tra- vail au Québec. Certaines tentatives de syndicalisation démontrant que le droit du travail québécois ne protège pas adéquatement ceux qui veulent s’organiser collectivement (Walmart, Couche-Tard, McDonald’s), l’identification des stratégies les plus susceptibles de contrer les campagnes d’accréditation et de nuire à sa survie est donc essentielle. Nos constats démontrent que malgré les articles 12 à 14 du Code du travail, dispositions interdisant spécifiquement les pra- tiques déloyales, certains employeurs persistent dans leurs comporte- ments antisyndicaux.
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Dès lors, deux pistes d’explications devront être explorées dans les recherches futures. D’abord, nos résultats peuvent suggérer que de nombreuses tactiques reconnues ne font pas l’objet d’un nombre important de plaintes par les syndicats, soit parce que ces derniers ne peuvent les identifier avec précision, soit qu’ils jugent que les ressources nécessaires pour faire reconnaître leur droit sont trop importantes par rapport aux bénéfices qu’ils pourront en retirer. La deuxième piste d’explication s’inspire des travaux de Slinn (2008) et suggère que la persistance de l’antisyndicalisme patronal est la résultante des sanctions peu dissuasives des comportements illégaux. Cette auteure ajoute que le tribunal étudié, le Labour Relations Board
(LRB), n’userait pas de la pleine mesure des pouvoirs de redresse- 2015 CanLIIDocs 535 ment qui lui sont accordés en matière de pratiques déloyales. Les conséquences qui découlent des sanctions imposées sont ainsi jugées inadéquates, ce qui justifierait un renforcement des dispositions législatives en cette matière. Les constats de Slinn (2008) seraient aussi généralisables à d’autres juridictions des provinces et territoires canadiens, comme le Québec, puisque les interdictions concernant les pratiques déloyales et l’étendue des pouvoirs de réparation des différentes commissions des relations du travail sont similaires. Nos résultats ne permettent certes pas de trancher la question de l’effectivité des règles en vigueur en matière de pratiques déloyales, mais leur éclairage montre la nécessité de poursuivre la recherche dans ce domaine. À l’heure où les chercheurs et les praticiens s’in- terrogent sur les moyens de maintenir l’accès à la syndicalisation et de protéger le droit d’association, de telles données permettront de mieux connaître — et conséquemment de mieux prévenir et sanc- tionner — les tactiques antisyndicales. Considérant que certains cher- cheurs ont noté une intensification de l’utilisation de ces tactiques dans certaines juridictions nord-américaines122, l’effectivité du droit et la protection du droit d’association constituent des enjeux impor- tants pour les années à venir.
122 Bronfenbrenner, « No Holds », supra note 8.
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TABLEAU 1 Typologie des Réactions Patronales a la Syndicalisation
Stratégies de substitution
Nb de Périodes* Tactiques cas 1 2 3 4 Cooptation Amélioration des 5 X X X conditions de travail s’il n’y a pas accréditation ou si désyndicalisation Améliorer les communications 3 X X X
employeurs / salariés pour 2015 CanLIIDocs 535 empêcher la syndicalisation ou miner la crédibilité syndicale Contrôle Créer un syndicat de boutique 3 X X X S’assurer qu’un syndicat 8 X X accrédité est modéré Nuire au processus de griefs 3 X Contrôler ce que les travailleurs 2 X peuvent dire aux médias Contrôler les demandes de 3 X libérations syndicales Conclusion d’une entente 2 X factice Profiter d’une division dans les 1 X rangs syndicaux pour prendre le contrôle de la négociation Stratégies de suppression Peur Intimidation, harcèlement, 33 X X X X représailles Liste noire des militants 6 X X Menaces envers les militants 7 X X X syndicaux Interrogation des employés 7 X X X X Surveillance des militants 8 X X X syndicaux Comités antisyndicaux 3 X X X Discours devant un auditoire 10 X X X X captif
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Nb de Périodes* Tactiques cas 1 2 3 4 Littérature antisyndicale 15 X X X Réunions en petits groupes 8 X X X Menaces ou rumeurs de 10 X X X délocalisation / fermeture Présentation d’une vidéo 1 X antisyndicale Blocage Limiter l’accès du syndicat aux 8 X X X travailleurs
Utilisation des moyens 15 X X X X 2015 CanLIIDocs 535 administratifs / légaux Pétition des employés 5 X X X Inciter à démissionner du 8 X X X X syndicat Négociation de mauvaise foi 20 X X Recours à la sous-traitance 3 X Refuser de répondre aux 12 X X demandes syndicales Recours à des consultants 3 X X X Diffusion publique 1 X d’informations sur les salariés Lock-out 3 X X Inciter les membres à voter 1 X contre le président du syndicat pendant les négos Diviser le comité syndical de 6 X X négociation Éliminer l’unité de négociation 2 X Recours à des briseurs de grève 1 X Négociation dure 1 X
Notes : (*) Nos observations ont permis d’identifier à quel moment les tactiques antisyndicales sont utilisées par l’employeur. Notre classement prévoit les 4 périodes suivantes : Période 1 : Avant le dépôt de la requête en accréditation Période 2 : Entre le dépôt et l’accréditation Période 3 : Entre l’accréditation et la conclusion de la 1ère convention collective Période 4 : Après la conclusion de la première convention collective
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08_Laroche.indd 594 15-03-24 10:58 AM Much Ado: Evaluating the Collective Agreement Amendments in the BIA and CCAA
Nick E. Milanovic*
This article considers the effect of recent statutory amendments that recognized the legal status of the collective agreement as a binding source of rights and obligations during the employer’s insolvency. The author reviews the law prior to, and after, the amendments along with interview responses
of leading insolvency practitioners in determining whether those amendments 2015 CanLIIDocs 535 unduly interfered with or prevented the successful restructuring of distressed businesses. In his view, most of the early jurisprudence setting aside collective agreements to which the debtor company was a party distorted the development of the law in this area, weakened the legitimacy of the insolvency process, and generated unnecessary conflict in the midst of restructuring efforts. By contrast, the amended provisions, by recognizing that collective agreements remain in force during an employer insolvency, have restored proper balance to the law, fostered voluntary negotiations among the parties, and reduced unnecessary liti- gation between debtors and unions. Importantly, the reforms have transformed court-centered conflict over the status of the collective agreement into product- ive negotiations focused on the rescue of distressed businesses. As a result, the paper maintains, the reforms have brought positive change to the restructuring process, by facilitating the efforts of stakeholders trying to salvage the company.
* Adjunct Professor, Department of Law and Legal Studies, Carleton University. An earlier version of this article was written for the Canadian Insolvency Foundation (CIF) and was funded by the Seventh Annual Lloyd Houlden Research Fellowship. I am grateful to the CIF for funding my research and making this paper possible. This essay is dedicated to the memory of Professor Bernard Adell, who inspired its creation, fostered its early development and gave shape to it with his insightful editorial comments. I am appreciative of the hard work performed on my behalf by Michael De Luca and Dragana Polovina-Vukovic. I would like to acknowledge the participants who kindly took their valuable time to discuss this topic with me. Finally, I would like to thank the Department of Law and Legal Studies at Carleton University for their support while I wrote this paper. The views expressed in this article are my own and should not be attributed in any way to the CIF or any other individual or organization.
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1. INTRODUCTION
For many years, disputes between debtor employers and their trade unions over the enforceability of collective agreements gen- erated a high-stakes contest about the legal validity of those agree- ments during bankruptcy. By 2009, after almost 15 years of discord in the case law, the time was ripe for legislative reform resolving the legal status of collective agreements during an insolvency. At that time, a number of amendments to bankruptcy legislation came into effect, including the addition of section 65.12 of the Bankruptcy and Insolvency Act1 (BIA) and section 33 of the Companies’ Creditors Arrangement Act CCAA 2
( ). Among other things, these reforms man- 2015 CanLIIDocs 535 dated that collective agreements would remain in force during insol- vency proceedings unless the parties voluntarily agreed to revise their bargain. The reforms permitted debtor employers to ask courts to issue a notice to bargain to their union(s) formally indicating a desire to bargain a new collective agreement, which then obligated parties to negotiate in good faith to reach a new agreement. When first proposed, these reforms led insolvency profession- als to express concern that they would create an incentive to sim- ply liquidate businesses, as labour unions were not viewed as being predisposed to accept reductions in their terms and conditions of employment in order to rescue a flagging business.3 Nonetheless,
1 RSC 1985, c B-3. 2 RSC 1985, c C-36; see also s 32(9)(b) of the CCAA for a similar provision. The notice to bargain provisions are found at BIA, s 65.12(1) and CCAA, s 33(2). 3 Although the concerns of insolvency professionals, noted above, may be at odds with the history of restructuring experience in some cases, such as Algoma Steel and Air Canada, skepticism of the willingness of labour unions to voluntarily compromise their agreements formed a central reaction of those professionals to the proposed amendments. See the testimony of Andrew Kent of the Insolvency Institute of Canada, Standing Committee on Industry, Natural Resources, Science and Technology, 38th Parl, 1st Sess, No 064 (17 November 2005) at 11. His concerns were echoed among insolvency practitioners, who characterised the amendments as “flawed and unbalanced” because labour unions some- times “overreached,” impairing the debtor’s ability to restructure. See Peter P Farkas, “To Repudiate or not?” CA Magazine (June-July 2008), online:
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Parliament enacted the amendments in the face of such misgivings, without conducting a meaningful examination of the expected effect of its proposed reforms.4 In the ensuing years, no study has attempted to understand their practical implications. This paper aims to review the consequences of these amend- ments for the law and for insolvency practice in Canada. It will evalu- ate the effects of adding section 65.12 to the BIA and section 33 to the CCAA. In particular, it will examine whether the amendments recognizing the legal status of the collective agreement have unduly interfered with, or generally prevented, the restructuring of union- ized businesses subject to insolvency proceedings. This paper con-
tends that, in general, distressed companies have not suffered undue 2015 CanLIIDocs 535 hardship as a result of the reforms, nor have the reforms commonly prevented restructuring of troubled companies that are parties to a collective agreement. Instead, my analysis suggests that the amend- ments have reinforced the purposes of the law, fostered voluntarism among parties, and lessened unnecessary litigation between debtor employers and their labour unions. Taken together, these develop- ments indicate that the amendments have introduced a measure of constructive change into the efforts of stakeholders to rescue dis- tressed businesses. The second part of this study sets the scene by reviewing the jurisprudence that challenged the status of the collective agreement in insolvency law. This brings into clear focus how case law prior to the amendments affected the ability of stakeholders to restructure failing enterprises. The final section explores how the statutory reforms have affected the law and restructuring practice in the five years follow- ing their proclamation. It begins by setting out the amendments and describing their content. It then explores the potential repercussions of Parliament’s amendments on restructuring efforts and examines recent decisions implementing the amendments, in order to under- stand whether these alterations are being fully utilized. Finally, it
4 Jacob Ziegel, “Canada’s Dysfunctional Insolvency Reform Process and the Search for Solutions” (2010) 26 Business & Finance Law Review 63 at 73 & 75. See also Jacob Ziegel, “The Travails of Bill C-55” (2005) 42 Can Bus LJ 441, and Jacob Ziegel, “Bill C-55 and Canada’s Insolvency Reform Process” (2006) 43 Can Bus LJ 76 for an excellent review of the political process informing the passage of the 2008 bankruptcy and insolvency amendments.
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examines the views of several leading lawyers practising in this area in order to understand whether the legislative changes impair the abil- ity of stakeholders to effectively restructure distressed businesses. The essay concludes by commenting on the impact of the statutory changes on the law and on the present ability of parties to pilot their way through a financial calamity.
2. BANKRUPTCY CASE LAW AND THE LEGAL STATUS OF THE COLLECTIVE AGREEMENT
Despite assertions to the contrary,5 Canadian courts have in the
past ruled that collective agreements could be terminated, disclaimed, 2015 CanLIIDocs 535 or suspended during insolvency proceedings. As we will see, this jurisprudence permitting collective agreements to be set aside or sus- pended distorted the development of the law in this area, weakened the legitimacy of the insolvency process and generated unnecessary conflict during reorganization efforts. Over many years, the case law evolved to accept the opposite proposition, namely, that a collective agreement could be terminated only in accordance with the applic- able labour relations statute in specific circumstances such as aban- donment, fraud or a failure to bargain.6 To understand the effect of bankruptcy litigation upon the law, and the effect of the subsequent statutory amendments, we must closely trace the development of the jurisprudence.
(a) Rulings that Collective Agreements Terminate upon Bankruptcy
In 1994, the Ontario Court of Appeal issued its decision in St. Mary’s Paper Inc. — a case that greatly influenced the legal status
5 See Ian Klaiman, “Chapter c. 47, Opening But Not Resolving Collective Bargaining: A Proposal for Mandatory Arbitration on Negotiation Impasse” (2011) 26 Business & Finance Law Review 136 at 138; Richard H McLaren, Canadian Commercial Reorganization: Preventing Bankruptcy (Aurora, Ont: Canada Law Book, 2006) at 3-46 to 3-51; and see Ziegel, “Bill C-55 and Canada’s Insolvency Reform Process,” supra note 4 at 85. 6 GMAC Commercial Credit Corp – Canada v TCT Logistics Inc, 2006 SCC 35 at para 50, [2006] 2 SCR 123.
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of collective agreements in insolvency law, even though it was, on its face, concerned with other matters.7 This ruling was disconcert- ing to many insolvency practitioners as it required a trustee to pay the debtor’s pension shortfall under the Ontario Pension Benefits Act (PBA).8 The trustee in St. Mary’s Paper had entered into an agree- ment to engage unionized employees of the debtor employer in order to operate a failing paper mill. This agreement reduced vacation, pen- sion plan and other payments owed to the employees. A majority of the Court of Appeal found the trustee liable for the pension short- fall because it had operated the business and agreed to continue to make payments into the pension plan. The majority noted that the BIA
included specific provisions limiting the trustee’s personal liability in 2015 CanLIIDocs 535 environmental matters but did not specifically “shelter a trustee from liabilities arising out of taxation or employment statutes.”9 However, in a strongly worded dissent, Justice Rosalie Abella opined that the trustee was under no obligation in law to carry on the business of the paper mill. In her view, the trustee agreed to do so only because it disclaimed responsibility for any other obligations.10 She noted that the trustee was not a successor employer, because it had not been declared to be one by the Ontario Labour Relations Board (“OLRB” or “Board”), and the OLRB had exclusive jurisdic- tion to make such a declaration with respect to unionized workplaces. Although Abella J.A. pointed out that the trustee was not at liberty to operate the business without regard to employment laws that “seek to protect workers from exploitation,”11 she noted that “contracts of employment with the employees, including collective agreements, terminate with a bankruptcy.”12 Justice Abella’s views concerning the legal status of the collective agreement would transform the evolution of the case law on this point.
7 [1994] 19 OR (3d) 163 (CA). 8 Murray Gold & Stephen Wahl, Submissions of the Canadian Labour Congress to the Senate Banking Committee Regarding Reform of Canada’s Insolvency Laws (17 September 2003) at 12-15. 9 St. Mary’s Paper, supra note 7 and see s 14.06(1.2) of the BIA for the statute’s present limitation on successor liability. 10 Ibid at para 4. 11 Ibid at para 17. 12 Ibid at para 18.
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In Re 588871 Ontario Ltd.,13 a trustee sought an order affirming that all legal proceedings against it were stayed by operation of sec- tion 215 of the BIA, which barred, except by leave of the court, any action “against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to” the BIA. The trade union representing employees of the debtor employer requested leave of the court to pursue a successor employer application before the Ontario Labour Relations Board. Citing an inherent conflict between the exclusive jurisdiction of the OLRB to attribute successor liability and what he termed “the rule” in St. Mary’s Paper that a collective agreement
terminates upon bankruptcy, Justice Spence denied the union’s appli- 2015 CanLIIDocs 535 cation. In his view, the leave provisions of the BIA were designed to ensure that the purposes of the statute could be achieved without undue interference arising from other proceedings. Granting leave to the trade union would be tantamount to permitting the Board to make determinations inconsistent with bankruptcy law. In Justice Spence’s view, if a trustee could be found to be a successor employer, “no Trustee would ever undertake to carry on that business and that could thwart the proper operation of the BIA.”14 As a result of this rul- ing, Justice Abella’s view that collective agreements terminate upon bankruptcy was, for the first time, adopted as the substantive basis for a decision and given the force of law. One year later, a Nova Scotia court, in Associated Freezers of Canada Inc.,15 also adopted the dissenting opinion set out in St. Mary’s Paper. In this case, Justice MacDonald granted an application by a trustee to stay proceedings launched by a trade union at the Nova Scotia Labour Relations Board (“NSLRB” or Labour Board). Accepting Justice Abella’s statement that a collective agreement ter- minates upon bankruptcy,16 MacDonald J. indicated that the trade
13 [1995] OJ No 1466 (QL) (Ct J (Gen Div)). See s 215 of the BIA, supra note 1, for the entire provision. 14 Ibid at para 18. 15 (1995), 149 NSR (2d) 385, [1995] NSJ No 457 (QL) (SC). 16 Ibid.
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union required leave of the court in order to pursue its applications before the NSLRB.17 He acknowledged labour law precedent for the notion that the collective agreement does not terminate on the appointment of a court-appointed receiver,18 but nevertheless rea- soned that in bankruptcy, employment terminates, and “[w]ith no employment there can be no collective agreement.”19 This ruling was affirmed by the Nova Scotia Court of Appeal in a brief decision.20 With these judgments, the view that collective agreements terminate with bankruptcy attained an authoritative status in law.
(b) Rulings that Collective Agreements May
Subsist Despite Bankruptcy 2015 CanLIIDocs 535
However, the initial assessment that a collective agreement did not survive the employer’s bankruptcy would later be subjected to closer scrutiny by various appeal courts. In Saan Stores Ltd.,21 the Nova Scotia Court of Appeal affirmed a lower court ruling that refused to quash a Labour Board decision declaring a purchaser of assets to be a successor employer bound by the debtor’s collective agreement. Saan Stores acquired retail outlets from the trustee after Greenberg Stores had declared bankruptcy. Greenberg had acquired its retail stores from Metropolitan Stores in 1994, and the union had a collect- ive agreement with Metropolitan that was recognized by Greenberg. In 1997, Greenberg declared bankruptcy in an effort to reorganize. Its
17 Furthermore, Justice MacDonald considered whether section 69.3 of the BIA, which prohibited creditors from commencing any other proceeding on a claim provable in bankruptcy, precluded the trade union’s application to the Labour Board. MacDonald J. concluded that matters such as vacation pay were dic- tated by pre-bankruptcy activities and were provable claims in bankruptcy that required a stay of proceedings. Since this ruling, the Nova Scotia Court of Appeal has specifically ruled that a successorship application does not require leave of the court and is not a provable claim in bankruptcy, because such claims are not the obligation of the bankrupt employer but of the purchaser. See Saan Stores, infra note 21 at para 58. 18 Ibid at para 26. 19 Ibid at para 28. 20 Associate Freezers of Canada Inc, [1996] NSJ No 202 (QL). 21 Saan Stores Ltd v United Steelworkers of America, Local 596, [1999] NSJ No 31 (QL).
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parent company owned each of Metropolitan, Greenberg, and Saan Stores. A trustee was appointed and, on the same day, the trustee sold Greenberg’s assets to Saan Stores. After the sale, Saan Stores took the position that the collective agreement and the union’s certification applicable to Greenberg were terminated by the bankruptcy. Justice Hallett, writing for a unanimous Court of Appeal, indi- cated that the employment of unionized employees was terminated by the bankruptcy. However, that did not in and of itself terminate the benefits to which the employees were entitled by virtue of the labour relations scheme. The Court pointed out that the sale of business pro- visions in the Trade Union Act22 were unaffected by the bankruptcy
and therefore unaltered by the termination of the employment rela- 2015 CanLIIDocs 535 tionship between the bankrupt and the former employees. The Court held that, by operation of the statute, the terms of employment found in the collective agreement were to govern the new employment rela- tionship between the purchaser and the unionized employees.23 In so ruling, Justice Hallett explicitly rejected the trustee’s argument that the labour relations legislation could not apply to the situation because a disposition did not occur between the predecessor employer and the purchaser. The Court said that the reality (as opposed to the form) of the sale was that it was a disposition from the predecessor to Saan Stores orchestrated by their common parent company.24 In any event, it was open to the Labour Board to find that Saan Stores was indeed the successor employer bound by the collective agreement.25 The conclusion that collective agreement rights could bind a purchaser of assets from a trustee after bankruptcy proceedings was followed by a decision recognizing the validity of the collect- ive agreement during insolvency proceedings. In Jeffrey Mine Inc.,26 the Québec Court of Appeal unanimously decided that a Monitor
22 RSNS 1989, c 475. 23 Saan Stores, supra note 21 at para 66. 24 Ibid at para 68. 25 See also 129410 Canada Inc, [2001] CCS No 19042 (QL), where the Québec Labour Court determined that the event of the bankruptcy itself was irrelevant to the acquisition of bargaining rights in relation to a successor employer obtaining the business from the trustee. 26 Syndicat national de l’amiante d’Asbestos inc v Jeffrey Mine Inc, [2003] QJ No 264 (QL).
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appointed pursuant to the CCAA was bound by a collective agree- ment. The Monitor had directed the debtor business with a reduced complement of employees and eventually entered into a major new contract with a foreign company. The Monitor brought a motion27 seeking approval to disclaim the collective agreement because of what it said were the excessive costs associated with certain bene- fits plans. The Monitor pointed to the pension plan, vacation days, retirees’ life insurance, and other costs provided for in the collect- ive agreement, and argued that such costs would not make the new contract economically worthwhile. The Monitor also noted that the project would allow it to recall the bulk of the workforce from layoff
for the duration of the contract. The trial judge allowed the request 2015 CanLIIDocs 535 (without rising) and issued an order that the Monitor did not have to comply with the collective agreement. The Québec Court of Appeal held that the Monitor was in a similar situation as a liquidator and that the property and civil rights of Jeffrey Mine Inc. had not devolved to it as a consequence of the insolvency. As a result, the Monitor could not be considered the employer instead of the debtor: after all, its acts were made in the debtor’s name.28 It also concluded that as nothing in the lower court’s
27 Ibid at para 18. 28 Ibid at paras 35-37. The decision in Jeffrey Mine denying that employment obli- gations existed between the Monitor and the employees is reminiscent of the Ontario Court of Appeal’s decision in Royal Oak Mines, [2001] OJ No 562 (QL). In that case, the Court ruled that a receiver was not responsible for con- tributions to the employees’ pension plan because those payments remained the responsibility of the debtor employer, even though it could not afford to meet such obligations. While the receiver was, by virtue of a court order, to guide and control Royal Oak, the debtor company retained possession of the mines and continued to employ its employees. In the Court’s view, the interim receiver held wide authority to manage and alienate the assets but did not come under an obligation to carry on the business affairs of Royal Oak. Consequently, Royal Oak had the obligation to pay pension benefits under the collective agreement and was required to provide notice of termination under the relevant statute. The Court further held that, pursuant to section 47(2) of the BIA, it had authority to issue an order relieving the employer from making payments into a pension plan. However, neither in Royal Oak nor in Jeffrey Mine did the court specifically consider whether the receiver could be considered the employer as a result of a common employer declaration under the applicable labour relations legislation.
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orders terminated the trade union’s certification, that certification was still in effect. Since the certification remained valid, the Monitor had to respect the union’s exclusive representation rights.29 The Court rea- soned that “nothing in the CCAA authorizes the monitor or the court to unilaterally determine the consideration payable to the supplier of goods or services to the debtor.”30 It followed that the consider- ation payable to the workers must be provided for in the collective agreements, which included the salaries and other benefits payable at the time of the initial order. Justice Dalphond, writing for the Court, indicated that the difference in the terms of employment before and after the order amounted to a modification of the former employ-
ees’ working conditions. In his view, a monitor could not disclaim 2015 CanLIIDocs 535 a collective agreement, given the attendant legislative framework which makes the collective agreement a “truly original instrument rather than a mere bilateral contract.”31 Justice Dalphond’s ruling entrenched the legal status of the collective agreement, by underscor- ing the rights flowing from the union’s original certification rather than the rights arising from a successor employer declaration. Like Hallett J.A. in Saan Stores, Justice Dalphond found that the continued existence of the collective agreement was based on the applicable labour relations statute.
29 Ibid at paras 45-46. The Court noted that the Monitor’s action in dismissing 60 unionized employees who had worked for the debtor under a valid collect- ive agreement, and then immediately rehiring them on the basis of individual contracts of employment, violated the union’s representation rights and was therefore illegal. 30 Ibid at para 50. 31 Ibid at para 53.
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(c) Rulings that Collective Agreements Are Suspended during Bankruptcy
At the time the decision in Jeffrey Mine was issued, it was widely regarded as a high-water mark32 for the subsistence of collect- ive agreement rights during insolvency. Soon afterwards, Ontario’s highest court of record attempted to fashion its own unique view of the place of collective agreement rights during insolvency. In Royal Crest Lifecare Group Inc.,33 a company operating a chain of 17 nursing and retirement homes was petitioned into bankruptcy. The court-appointed trustee proposed to carry on business while it
searched for a new buyer. However, the trustee did not recognize the 2015 CanLIIDocs 535 various collective agreements, failing to deduct or remit union dues or pension plan payments, nor did it recognize grievances filed by the trade unions. On the first day of the bankruptcy, the trustee applied to the Court for an order that it was not, among other things, bound by the debtor’s collective agreements.34 Predictably, the trade unions resisted and asked the Court for leave to apply to the OLRB for a declaration that the trustee was indeed a successor employer.
32 Since Jeffrey Mine, the Québec Court of Appeal has adopted the reasoning of Justice Dalphond and applied it to contracts related to employment other than collective agreements. See also Uniforêt inc c 9027-1875 Québec inc, [2003] JQ no 8125 (QL) at para 1. In that decision, the Monitor suspended the employer’s contribution to an entity that managed an employee profit-sharing plan, which was derived from the earnings of the insolvent company. The Québec Court of Appeal interpreted Jeffrey Mine to prevent the unilateral alteration of the terms and conditions of work by the Monitor where it was granted the power to continue the operation of an insolvent company. As a result, the Monitor could not simply cancel employee profit-sharing payments post-filing, as these payments were part of the employees’ working conditions. See also P Bélanger, “Bankruptcy, Collective Agreements, and Employment Contracts: What Obligations are Transmitted to the Purchaser of a Bankrupt Business?” in JP Sarra, ed, Annual Review of Insolvency Law 2004 (Toronto: Carswell, 2005) at 255-281, contending that Uniforêt was a very generous interpretation of Jeffrey Mine. 33 [2003] OJ No 756 (QL). The reader should be aware that the author was counsel to several bargaining agents in this litigation. 34 Ibid at para 2.
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Justice Farley dismissed the trustee’s motion, referring to Hallett J.A.’s opinion in Saan Stores as a thoughtful analysis of the situation at hand.35 Justice Farley also questioned the statement of Abella J.A. that collective agreements terminate on bankruptcy, as no legal analy- sis was provided in support of that proposition.36 As a result, Farley J. refused to issue a declaration that the trustee was not bound by the collective agreements.37 On the other hand, he explained that it would be undesirable to “saddle”38 the trustee with heavy personal liability, given its role as a realizer of the assets. As long as the trustee oper- ated the debtor’s business in a reasonable manner, with due dispatch in order to realize the assets, and did not slip into the role of the
employer, the trustee would not be subject to successor liabilities. 2015 CanLIIDocs 535 The unions’ leave application was therefore also denied. However, if the trustee began to act more as an employer than as a diligent realizer of the debtor’s assets, the motion could be re-initiated. In light of this finding, Justice Farley indicated that the collective agreement was not terminated for all purposes but rather was “put into suspended animation, to be revived if, as, and when a purchaser with a personal economic interest in the business acquires the business.”39 The trade unions appealed. A majority of the Court of Appeal40 noted that a party seeking to challenge a decision by a trustee must obtain the permission of the court pursuant to the leave provisions found in section 215 of the BIA. Justice MacPherson, writing for the majority, indicated “it was sim- ply too early to attach formal, and final, legal labels to the relationship
35 Saan Stores, supra note 21. See J MacDonald, “Successor Employer Issues for Trustees in Bankruptcy” (2004) 16 Comm Insolvency R 43 at 44 for the propos- ition that Justice Farley adopted the Saan Stores ratio in his judgment. 36 Royal Crest, supra note 33 at para 22. 37 Ibid at para 33. 38 Ibid at para 24. 39 Ibid at para 30. 40 Canadian Union of Public Employees, Locals 1712, 3009, 2225-06 and 2225-12 v Royal Crest Lifecare Group Inc, [2004] OJ No 174 (QL), application for leave to appeal to SCC dismissed [2004] SCCA No 104 (QL).
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between the trustee and the employees.”41 Even though its decision likewise permitted the unions to return to court to establish its claims, the Ontario Court of Appeal seemed to affirm the existence and importance of collective agreements while paradoxically hindering their enforcement during bankruptcy proceedings.
(d) The Supreme Court Rules that Collective Agreements Retain Legal Status during Bankruptcy
Subsequently, in T.C.T. Logistics,42 the Supreme Court of Canada rejected the Ontario Court of Appeal’s approach in favour of one that
recognized the collective agreement as a subsisting source of rights and 2015 CanLIIDocs 535 obligations, thereby overturning case law that derogated from the legal status of a collective agreement during an insolvency. T.C.T. Logistics Inc. operated a number of sites in the United States and Canada, includ- ing a warehousing business located in Toronto, Ontario. The company became insolvent and its largest secured creditor, GMAC Commercial Credit Corporation – Canada, succeeded in obtaining an order appoint- ing KPMG as an interim receiver. Later, KPMG was appointed trustee in bankruptcy and entered into an agreement to sell most of the debt- or’s warehousing business to Spectrum Supply Chain Solutions Inc.43 The trustee terminated all employees prior to the closing of certain transactions and Spectrum re-hired a number of the employees without regard to seniority and certain pension and vacation provisions under
41 Ibid at para 35. The Ontario Labour Relations Board’s jurisprudence indicated that the acquisition of a business on the day of the transaction itself can resolve the question of whether collective agreement rights transfer with the business. No extra time is necessarily required to pass before a legal relationship can be firmly set in place by law in a sale proceeding. See County of Hastings, [2002] OLRB Rep (November/December) 1031 and Daynes Health Care Ltd, [1983] OLRB Rep (May) 632. The Board’s approach concerning prematurity of a sale- of-business application was specifically developed in the context of bankruptcy and insolvency matters. See Jeffrey Sack, C Michael Mitchell & Sandy Price, Ontario Labour Relations Board Law and Practice, 3d ed (looseleaf) (Toronto: LexisNexis Butterworths, 1997) at paras 6.1 to 6.76 for a review of the sale-of- business and related-employer provisions. 42 GMAC Commercial Credit Corp Canada v TCT Logistics Inc, supra note 6, on appeal from GMAC Commercial Credit Corp Canada v TCT Logistics Inc, [2004] OJ No 1353 (QL) (CA). 43 Ibid (CA) at paras 10-16.
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the existing collective agreement. The trade union responded by filing applications with the OLRB, in part to maintain its members’ collect- ive agreement rights with Spectrum. The OLRB,44 the Superior Court45 and the Court of Appeal46 all declined to grant the union direct access to the Labour Board to hear its applications. In a 7-to-1 decision, the Supreme Court of Canada held that a bankruptcy court could not deny a trade union leave to apply to the Labour Board for a declaration that a trustee or third-party purchaser was a successor employer, unless its claim was frivolous, manifestly without merit or disclosed no cause of action. Justice Rosalie Abella, writing for the majority, held that the bankruptcy judge had erred in not
granting leave to the union to bring a successor employer application 2015 CanLIIDocs 535 against the interim receiver.47 In this connection, the majority adopted Justice MacPherson’s dissenting view in the Court of Appeal that the proper test in determining a union application for leave to pursue Labour Board proceedings was that set out in Mancini (Bankrupt) v. Falconi.48 In short, leave against a trustee may be granted if the action discloses a cause of action and is not frivolous, vexatious or manifestly unmeritorious. The court determining the matter need not make a final assessment of the merits of the claim before it grants leave. Justice Abella’s decision preserved the effect of the ruling from the court below in other important ways. In the Ontario Court of Appeal majority opinion, Feldman J.A. abandoned the analysis in Royal Crest Lifecare Group concerning the suspension of the collect- ive agreement during bankruptcy. Rather, she approached the issue by adding an interpretive twist to Justice Abella’s original proposition in St. Mary’s Paper that “contracts of employment with the employ- ees, including collective agreements, terminate with a bankruptcy.”
44 Industrial Wood & Allied Workers of Canada v Spectrum Supply Chain Solutions Inc, [2002] OLRD No 2866 (QL). 45 GMAC Commercial Credit Corp Canada v TCT Logistics Inc, [2003] OJ No 1603 (QL) (Sup Ct J). 46 TCT Logistics (CA), supra note 42 at para 33. 47 TCT Logistics (SCC), supra note 6 at paras 57-59 & 64. 48 (1993), 61 OAC 332. See Justice MacPherson’s dissent in the Court of Appeal, supra note 42 at paras 113-114, asserting Mancini as the leading decision on determination of leave applications; see also his majority decision in Royal Crest Lifecare Group, supra note 40 at para 25, where he similarly viewed Mancini as the controlling authority in such matters. See TCT Logistics (SCC), supra note 6 at para 57 for a statement of the test found in Mancini.
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In Feldman J.A.’s view, the phrase used in St. Mary’s Paper really meant that to “the extent that an employee’s contract of employment with a bankrupt employer is contained in a collective agreement, the employee’s contract is terminated on bankruptcy.”49 Feldman J.A. thus concluded that although employment ceases, a collective agree- ment did not necessarily terminate upon bankruptcy. In the result, the Court of Appeal held that a collective agreement could only be ter- minated pursuant to the applicable labour relations statute governing specific occurrences such as abandonment, fraud or a failure to bar- gain.50 In so holding, Justice Feldman expressly adopted the decisions in Saan Stores51 and Jeffrey Mine52 regarding the legal status of the
collective agreement. In effect, the Courts of Appeal in Nova Scotia, 2015 CanLIIDocs 535 Québec and Ontario all agreed that collective agreement rights con- tinued to operate despite insolvency. By cautioning bankruptcy courts not to unnecessarily interfere with employee rights when interpreting insolvency statutes,53 and by opting not to disturb the various appeal court decisions on the question of subsistence of collective agreement rights, the Supreme Court implicitly recognized that the collective agreement continued to have the force of law during insolvency. In the three years between the decision in T.C.T. Logistics and the proclamation of the amendments to the BIA, bankruptcy courts began to accept that the collective agreement remained in force during insolvency without controversy or extensive comment.54 Collective agreements were recognized as having legal force, yet were treated
49 See TCT Logistics (CA), supra note 42 at para 49, and supra note 7 for Justice Abella’s original statement. 50 Ibid at para 50. 51 Saan Stores, supra note 21. 52 Jeffrey Mine, supra note 26. 53 TCT Logistics (SCC), supra note 6 at para 51. 54 See Abitibibowater inc (Arrangement relatif à), [2009] JQ no 4473 (QL) at paras 25-28, where the Québec Superior Court ruled that the company could not unilaterally rescind early retirement provisions it had negotiated in a collective agreement. For other cases briefly commenting upon the impact of collective agreement rights during insolvency after TCT Logistics but before the amend- ments, see Collins & Aikman Canada Inc, [2007] OJ No 4186 (QL) (Sup Ct J), Textron Financial Canada Ltd v Beta Ltee/Beta Brands Ltd, [2007] OJ No 2998 (QL) (Sup Ct J), and Fraser Papers Inc, [2009] OJ No 3188 (QL) (Sup Ct J). See also Sean Dewart, “Trial Level Reponses to the T.C.T. Case” (Paper delivered at Building Bridges: Discussing Labour Issues in Restructuring Proceedings, Ontario Bar Association, 24 April 2009) [unpublished].
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like other contracts, in that they were made subject to the initial order of the bankruptcy court suspending debts, such as severance and termination pay, pending the resolution of the insolvency.55 Among other things, recognition of the legal status of the collective agree- ment caused CCAA applications to flourish, as court appointees care- fully avoided incurring any personal liability that could result from taking over unionized businesses under the BIA.56
(e) Implications of the Earlier Jurisprudence for Labour Relations and Restructuring
Rulings by bankruptcy judges which allowed the disclaimer 2015 CanLIIDocs 535 of collective agreements during insolvency proceedings created a rupture in the application of labour law to distressed companies. Collective agreements are founded in statute, and they are ordinarily not required to conform to legal doctrines which might terminate their operation.57 A collective agreement cannot operate according to its terms if common law concepts can be invoked to eradicate it even though the agreement has not statutorily expired.58 Moreover,
55 See Re Nortel Networks Corp, [2009] OJ No 2558 (QL) (Sup Ct J), where the Court denied the union’s request that the debtor company be required to pay ter- mination pay and severance pay, as well as other amounts, to former employees. The appeal was denied on its merits in Re Nortel Networks Corp, [2009] OJ No 4967 (QL) (CA), leave to appeal to SCC denied [2009] SCCA No 531 (QL). See also TQS, [2008] QJ No 7151 (QL) (CA) and Fraser Papers Inc, supra note 54, for the proposition that the court can suspend payments arising from a collective agreement if the employees did not provide service after the initial order. 56 Section 14.06 of the BIA now protects trustees from liability in its dealings with the debtor’s employees for the period of time occurring before its appointment. If the trustee continues the business or employment of employees, the trustee is not by reason of that fact alone to be held personally liable for any claims against the debtor that arose before its appointment. 57 R MacDowell, “Labour Arbitration – The New Labour Court?” (2000) 8 CLELJ 121 at 124. 58 M Mitchnick & B Etherington, Labour Arbitration in Canada (Toronto: Lancaster House, 2006) at 16-4. The Court of Appeal in Jeffrey Mine, supra note 26 at para 53, made essentially the same point as did Laskin CJ in McGavin Toastmaster Ltd v Ainscough (1975), 54 DLR (3d) 1 (SCC) concerning the legal status of collective agreements: Dalphond JA rhetorically queried why collective agreements should be cancelled “if the certifications remain in effect and, as a result, the employer is obligated to negotiate with the appropriate union the conditions applicable to a new delivery of services by employees contemplated by the said certifications?”
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the fact that no employees remained employed at any point in time was never sufficient to invalidate a collective agreement in labour law.59 For some time, grievance arbitrators acknowledged this state of affairs even where each and every employee had been termin- ated as a result of the discontinuance of a business.60 Bankruptcy judges differed from labour arbitrators in their approach to the valid- ity of collective agreements in hard times. However, to invoke Lord Denning’s famous dictum, there could not be “one law for arbitrators and another for the court” — there had to be, rather, “one law for all.”61 The jurisprudence allowing disclaimer of collective agreements created a conceptual schism which the law could not easily bear.
Until T.C.T. Logistics, the jurisprudence suspending or derogating 2015 CanLIIDocs 535 collective agreements symbolized the collapse of a longstanding bar- gain between labour and capital vital to the operation of day-to-day labour relations. The grievance arbitration procedure deemed to form part of every collective agreement ensured that unionized employees had access to an enforcement mechanism for a host of substantive rights,62 including those based on the Charter63 and on human rights and employment standards statutes.64 The effect of a bankruptcy ruling that terminated a collective agreement was decisive, since
59 See Coulter Mfg Ltd and United Automobile Workers, Local 222 (1973), 1 LAC (2d) 426 (Weatherill) and Vulcan Containers Ltd, [1997] OLRB Rep (July/ August) at para 63. 60 Canada Safeway Ltd, [2002] OLRB Rep (November/December) 997 at para 46. 61 See the comments of Lord Denning in David Taylor & Sons Ltd v Barrett, [1953] 1 All ER 843 (CA). See also Toronto (City of) v Canadian Union of Public Employees, Local 79, 2003 SCC 63, 3 S.C.R. 77, where LeBel J similarly noted there is only “one law for all” in overturning an arbitration ruling that had rejected a criminal court’s findings in a matter arising from the same set of facts. 62 Weber v Ontario Hydro, [1995] 2 SCR 929. See ss 48(1) and (2) of the Ontario Labour Relations Act, 1995, SO 1995, c 1, Sch A, which provide, in part, “for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.” 63 Cuddy Chicks Ltd v Ontario (Labour Relations Board), [1991] 2 SCR 5. 64 Parry Sound (District) Social Services Administration Board v OPSEU, Local 324, [2003] 2 SCR 157.
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there could be no breach of an agreement that was not operative.65 Grievance arbitration hearings66 could not lawfully be initiated on the merits of a dispute, as a valid and enforceable collective agreement enabling such litigation did not exist.67 The lapse in enforceability of the collective agreement during insolvency pointed to a larger break- down in the operation of law on the shop floor. Our modern labour relations scheme was designed to attenuate and manage labour conflict by sustaining an accord that rested upon the legal enforceability of the labour contract. In essence, unionized employees were provided with legal protection in their collective employment relationship with the employer in exchange for their
subordination to the daily control of management. As a part of this 2015 CanLIIDocs 535 exchange, government guaranteed enforceable legal agreements in the workplace that could readily resolve disputes over the employer’s direction of the workforce.68 However, when the legal recognition of
65 Donald JM Brown & David M Beatty, Canadian Labour Arbitration, 3d ed (looseleaf) (Aurora, Ont: Canada Law Book, 2006 ) at 4-31; and see Stephen Wahl, “Bankruptcy and Insolvency: High Stakes Poker at the Collective Bargaining Table” in Janis P Sarra, ed, Annual Review of Insolvency Law 2004 (Toronto: Carswell, 2005) at 245, where he notes that labour law in Canada recognizes the primacy of collective worker representation as the key element in the promotion of workers’ rights and freedoms as well as in national economic growth. In this connection, the BIA provides for a regime of collective action on behalf of creditors, through the trustee, for the realization and equitable distribu- tion of the assets of the bankrupt. The author notes that when labour relations law collides with bankruptcy and insolvency law, the interrelationship between two collective bargaining regimes is at stake. The property interests of business per- sons are weighed against the labour, human and employment rights of workers. 66 One arbitration award that addresses bankruptcy matters is HJ Jones-Sons Ltd and Communications, Energy and Paperworkers Union, Local 517-G (2008), 179 LAC (4th) 439 (Sheehan) at para 28, where the arbitrator held that section 69.3(1) of the BIA, which prevents actions for the recovery of a claim provable in bankruptcy, did not apply to the proceedings before him. Arbitrator Sheehan determined that “the integrity of the grievance arbitration process and an affirm- ation of the belief that arbitration is the only proper forum for the resolution of issues associated with analysing and applying provisions of a collective agree- ment” required that he assert jurisdiction over the matter. 67 Labour Law Casebook Group, Labour & Employment Law: Cases, Materials and Commentary (Irwin Law: Toronto, 2004) at 2. 68 Ibid.
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the collective agreement fell into uncertainty, so did the role played by a key partner in that bargain. The dismantling of the collective agreement interfered with the institutional role of trade unions during insolvency. Bargaining col- lectively with an employer to secure a collective agreement is why employees join a union, and it is why unions seek the right to repre- sent employees.69 Without effective bargaining agent representation, the termination or suspension of collective agreements risked pushing unionized employees into unpredictable self-help measures to resolve their disputes with debtor employers.70 These difficulties were further complicated by the negative eco-
nomic implications for workers affected by the early jurisprudence 2015 CanLIIDocs 535 permitting collective agreements to be disclaimed. In most cases, a decision setting aside the labour contract relieved receivers of collect- ive agreement obligations, meaning that other stakeholders received a larger realization than would otherwise have been possible.71 In this connection, if compliance with a collective agreement fettered the stakeholder’s ability to maximize the value of the company,72 then a trustee (or debtor employer under the CCAA) might be tempted to
69 Ibid at 391 70 See Royal Oak Mines, supra note 28 at para 22, where the Court of Appeal noted the trustee’s concern that workers would go on strike unless certain working conditions were not abided by during bankruptcy. See also TCT Logistics, supra note 42 at para 59, where the Court of Appeal, borrowing from Farley J. at paras 31-32, acknowledged the same concern in a more muted way, observing that disgruntled unions and employees could cause value to evaporate unless measures were taken to address their concerns. Of course, it can never be eas- ily assessed at the outset of bankruptcy proceedings whether employees will voice their demands for better working conditions by taking collective action, or will simply quit. Finally, see Keith Yamauchi, “Collective Agreements in the Context of Corporate Reorganization: The Canadian and American Models” (2005) 11 CLELJ 295 at 316, where the author notes that the American courts in Teamsters, Local 807 v Carey Transportation Inc, 816 F (2d) 82 at 93, overtly recognized “the likelihood and consequences of a strike if the bargaining agree- ment is voided” during bankruptcy. 71 David E Baird & Ronald B Davis, “Labour Issues” in Stephanie Ben-Ishai & Anthony Duggan, eds, Canadian Bankruptcy & Insolvency Law (Markham, Ont: LexisNexis, 2007) at 91. 72 E Laius, “Trustees in Bankruptcy & Successor Employers,” Bankruptcy & Insolvency Law Newsletter (Fall 2003) at 1.
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ask a court to set aside a collective agreement in order to maximize available savings.73 As a result, there was an underlying incentive for insolvent companies, senior creditors and others to resort to litigation. The “dynamic tension”74 created by the uncertainty of such litigation might, from time to time, be leveraged into an agreement by the par- ties in order to avoid an unfavourable legal result for the trade union. Nonetheless, even though disclaiming collective agreements might be viewed by labour law outsiders75 as an acceptable strategy,76 it was not viewed as a just outcome by unionized employees, who were now bound to accept the significant burdens of bankruptcy decisions without receiving any appreciable benefit from those same rulings.
The early decisions which interfered with collective agreements 2015 CanLIIDocs 535 helped to delegitimize the insolvency process in the eyes of trade unions, thus destabilizing and alienating a key stakeholder — one who could potentially cooperate with other stakeholders to resolve the economic crisis threatening the debtor employer. Rescue efforts that attempted to force the hands of unions by threatening their continued
73 Standing Senate Committee on Banking, Trade and Commerce (Hon RH Kroft, Chair), Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act (November 2003), at 11 and chap 5, did not point to any examples of a corporate insolvency in Canada that had been directly caused by collective agreement rights. 74 DJ Miller, Hugh O’Reilly, Robert Thornton & Amanda Darrach, “Charting A New Course: Best Practices When Dealing with Employees, Retirees and Union Stakeholders in a Restructuring” (Conference paper delivered at the Annual Review of Insolvency Law, 8 February 2013) at 2. 75 R MacDowell, supra note 57 at 152. It is widely accepted that courts have no original jurisdiction to pronounce on labour law, no particular expertise in the subject matter, no familiarity with the full range of statutes that come into play, and no experience with the institutional realities of labour law. Consequently, it should not be entirely unexpected that judges might remove a load-bearing post that supports the edifice of modern labour relations in the workplace. 76 Yamauchi, supra note 70, outlines a bankruptcy model, based on the American system, for Canadian restructuring negotiations that would permit a court to reject a collective agreement in the course of bankruptcy.
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viability were ventures that risked failure or prolonged delay.77 The energy and conflict expended in this contest distracted and impeded the reorganization attempts of stakeholders by burdening rescue efforts with unnecessary litigation.78 This discord ultimately created a less efficient restructuring process for all stakeholders.
3. REFORMS TO THE BIA AND CCAA WITH RESPECT TO THE EFFECT OF COLLECTIVE AGREEMENTS
On September 18, 2009, after an extended legislative process, the statutory amendments concerning collective agreements were 79
brought into force. These changes arose in the course of a lengthy 2015 CanLIIDocs 535 phase of bankruptcy reforms that began in about 2002. Two signifi- cant sets of amendments to Canada’s insolvency legislation were brought forward in Bills C-55 and C-62. Introduced in 2005, Bill C-55 sought to implement a number of employment-related changes, including the provision of payment of unpaid wages to employees whose employer had gone into bankruptcy; other changes addressed super-priorities for wages and unremitted pension contributions. Importantly, Bill C-55 also included reforms designed to clarify the treatment of collective agreements in the BIA and CCAA during insol- vency. The forging of the amendments relating to collective agree- ments in the midst of a larger wave of bankruptcy and insolvency reform was not without controversy.
77 Miller et al, supra note 74 at 5. 78 Janis P Sarra, Rescue! The Companies’ Creditors Arrangement Act, 2d ed (Toronto: Thomson Carswell, 2007) at 203. 79 See generally Stephanie Ben-Ishai, Bankruptcy Reforms 2008 (Toronto: Thomson Carswell, 2008) at ix to xi and 107-110 for a detailed discussion of the substantive reforms noted above.
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(a) Origins of the Legislative Reforms
During debates over the reforms, Members of Parliament80 initially expressed some confusion as to whether bankruptcy judges were actually setting aside collective agreements during insolvency proceedings.81 Joe Fontana, the Minister of Labour and Housing,82 repeatedly indicated that there was a need to protect workers dur- ing insolvency by guarding against judicial changes to collective agreements. He then assured Parliamentarians that under the pro- posed legislation, “[t]he court will not have the authority to unilat- erally terminate or modify the collective agreement. If the parties do
not agree to amend the collective agreement the existing collective 2015 CanLIIDocs 535 agreement remains in force.”83 Government members of Parliament and Ministers asserted that if the parties did not agree to amend the collective agreement, the existing labour contract “would remain in place and could not be changed by courts.”84 However, the Ministerial interpretation of the reforms ignored the plain language found in the balance of the amendments. It was
80 Compare the comments of Pat Martin (Winnipeg Centre, NDP) in House of Commons Debates, 38th Parl, 1st Sess, No 140 (29 September 2005) at 8196 (“we checked this out and had it confirmed recently, a judge may unilaterally and arbitrarily alter the terms and conditions of a collective agreement of the employ- ees”) with the statement of David Christopherson (Hamilton Centre, NDP) in House of Commons Debates, 38th Parl, 1st Sess, No 140 (29 September 2005) at 8198, who later on the same day noted: “However, we cannot adequately deal with section 33 until there is an absolute determination as to whether or not, under existing legislation in its entirety, a judge is allowed the power to step in, in the case of bankruptcies and restructuring, and unilaterally order that collect- ive agreements be changed.” 81 See Klaiman, supra note 5 for comments suggesting that prior to these reforms, judges did not disclaim collective agreements. 82 See the comments of Hon Joe Fontana (for the Minister of Finance), House of Commons Debates, 38th Parl, 1st Sess, No 140 (28 September 2005) at 8167, noting the need to protect vulnerable workers and provide fairer treatment during insolvency to employees. 83 See comments of Labour Minister Joe Fontana, Standing Committee on Industry, Natural Resources, Science and Technology, 38th Parl, 1st Sess, No 060 (1 November 2005) at 9. 84 Ibid at 8.
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arguable that the reforms continued to permit the displacement of the terms and conditions of collective agreements during insol- vency through the granting of a court motion approving the service of a notice to bargain.85 This became clear when the insolvency amendments were reviewed in conjunction with pre-existing labour law requirements pertaining to collective agreements. The New Democratic Party therefore required two further amendments to make sure that Bill C-55 would preclude the courts from tampering with collective agreements.86 As a result, the Bill C-55 amendments to both the BIA and CCAA87 recognize that “any collective agreement that the insolvent
person and the bargaining agent have not agreed to revise remains 2015 CanLIIDocs 535 in force.”88 However, if the parties do not voluntarily agree to revise any of the provisions of the collective agreement, a debtor employer may “apply to the court for an order authorizing the insolvent person to serve a notice to bargain under the laws of the jurisdiction gov- erning collective bargaining between the insolvent person and the
85 For instance, see BIA, s 65.12(1), which reads, in part: “An insolvent person . . . who is a party to a collective agreement and who is unable to reach a voluntary agreement with the bargaining agent to revise any of its provisions may, on giving five days notice to the bargaining agent, apply tothe court for an order authorizing the insolvent person to serve a notice to bargain under the laws of the jurisdiction governing collective bargaining between the insolvent person and the bargaining agent [emphasis added]. A notice to bargain is a communica- tion by the employer or union, following certification or prior to the expiry of a collective agreement, of a desire to bargain with a view to reaching or renewing a collective agreement; after notice to bargain has been given, the parties are under a statutory obligation to bargain in good faith. See Jeffrey Sack & Ethan Poskanzer, Labour Law Terms: A Dictionary of Canadian Labour Law (Toronto: Lancaster House, 1984) at 105. 86 See Ziegel, “Canada’s Dysfunctional Insolvency Reform Process,” supra note 4 at 72. 87 For the legislative amendments being discussed herein, see generally the BIA, supra note 1, s 60 as amended by the Wage Earner Protection Program Act, SC 2005, c 47, s 44; and the CCAA, supra note 2, s 33 as amended by the Wage Earner Protection Program Act, ibid, s 131. See also the papers by Ziegel, supra note 4 for a detailed discussion of the legislative process. 88 BIA, s 65.12(6) and CCAA, ss 33(1) and (8). See also CCAA, s 32(9)(d), which deems collective agreements to be an exception to the types of executory con- tracts that can be disclaimed.
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bargaining agent.”89 In order for such an application to be granted, the debtor employer must prove that a viable compromise or plan could not be arrived at under the existing collective agreement, that it made good faith efforts to renegotiate the agreement, and that the failure to provide a notice to bargain would cause irreparable damage to the employer.90 If the notice to bargain order is granted, the union may obtain its own order requiring disclosure of financial information relevant to collective bargaining with the debtor employer.91 After proceedings have commenced, and if the parties to the collective agreement agree to revise it, the “bargaining agent that is a party to the agreement has a claim, as an unsecured creditor, for an amount
equal to the value of concessions granted by the bargaining agent 2015 CanLIIDocs 535 with respect to the remaining term of the collective agreement.”92 Finally, the vote of the creditors regarding a plan of arrangement or a proposal may not be delayed solely because the period provided in the laws of the particular jurisdiction governing collective bargaining has not expired.93 These reforms respect the sanctity of the collective agreement and establish the conditions under which a judge might require the debtor employer and the union to negotiate a revised labour con- tract.94 The wording of section 65.12(6) of the BIA and sections 33(1) and 33(8) of the CCAA seems straightforward: the collective agree- ment status quo prevails in insolvency unless the debtor employer and trade union voluntarily agree otherwise. The wording employed
89 BIA, s 65.12(1) and CCAA, s 33(2). See also s 17 of the Ontario Labour Relations Act, 1995, supra note 62, which imposes similar disclosure obligations on the parties during collective bargaining. 90 BIA, s 65.12(2) and CCAA, ss 33(2) and (3). 91 BIA, s 65.12(5) and CCAA, s 33(6). 92 BIA, s 65.12(4) and CCAA, s 33(5). A similar claim for compensation on account of concessions by the bargaining unit was advanced in the Air Canada restructur- ing prior to the amendments. See #2 Interview of Insolvency Counsel by Author (4 December 2012). 93 BIA, s 65.12(3) and CCAA, s 33(4). 94 Paul H Meier, “Companies’ Creditors Arrangement Act (“CCAA”) Reform and the Treatment of Collective Agreements in the Restructuring Process,” Canadian Bar Association National Labour and Employment Law Section Newsletter (August 2006), online:
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by the statutory reforms in the BIA and CCAA prevents courts from terminating, disclaiming, suspending or otherwise altering the col- lective agreement.95 Although the court cannot issue such orders, the debtor employer and the bargaining agent may negotiate revisions modifying the existing agreement. These provisions preclude lenders, or other third parties, from interfering in any collective bargaining which may take place in order to rework the labour contract.96 On the other hand, the amendments allow judges to issue an order which may eventually have the effect of setting aside the terms and conditions of the collective agreement. This outcome was not explicitly contemplated by legislators during the public review of
the statute enacting these changes. Where a debtor employer and its 2015 CanLIIDocs 535 union fail to freely revise provisions of the collective agreement, the court has jurisdiction to grant an order authorizing the debtor to serve a “notice to bargain” on the bargaining agent.97 In other words, the statutes create a mechanism for the debtor employer to force the employees’ union to meet and bargain with it even though the col- lective agreement has not come to an end in law.98 This subjects the union to a compulsory legislative timetable and statutory bargaining obligations.99 Where a “notice to bargain” has been served on a party to a collective agreement, it triggers a statutory duty to bargain under labour laws that require parties to negotiate in good faith and to make
95 Roderick J Wood, Bankruptcy and Insolvency Law (Toronto: Irwin Law, 2009) at 374. 96 Sarra, supra note 78 at 203. 97 BIA, s 65.12(1) and CCAA, s 33(2). 98 Wood, supra note 95 at 375. Unlike notice to bargain provisions in Canadian labour legislation, the provisions in the BIA and the CCAA are only open to use by employers. Normally, both parties to a collective agreement in labour law may initiate formal bargaining pursuant to the relevant labour statute. There was no rationale provided in the Parliamentary debates or the BIA and CCAA Briefing Books (infra note 105) for the extension of these provisions to employers but not to unions. As we will see below, the advent of open collective agreements during restructuring gives trade unions increased bargaining leverage in restructuring negotiations with debtor employers, which may help to explain why access to this process was denied to unions. 99 The provisions noted herein on negotiating a collective agreement are largely extracted from Labour Law Casebook Group, supra note 67 at 391-393.
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“every reasonable effort” to reach a collective agreement.100 The par- ties remain under the duty to bargain — that is, to continue to try to reach a settlement — until they attain a new collective agreement. During this time the terms and conditions of employment that apply during bargaining cannot be unilaterally altered if those items are typically the subject of negotiations. As a result, the employer must go to the bargaining table and seek to negotiate changes prior to alter- ing working conditions.101 This “bargaining freeze” terminates when a new collective agreement is executed or when the parties reach a legal impasse.102 Upon the termination of the freeze, even though the duty to bargain in good faith continues to apply, the employer
may unilaterally change the terms and conditions of work if there is 2015 CanLIIDocs 535 no collective agreement in force. Of course, the bargaining agent is not required to accept unilateral changes instigated by the employer. However, at that point in restructuring negotiations, the practical choice facing the union is either to accept the unilateral changes or to engage in a work stoppage that will risk the liquidation of the debtor company. The underlying purpose of these legislative changes was to promote bargaining between debtors and unions in order to salvage distressed companies. If the employer views the labour contract as being too burdensome, the BIA and CCAA permit parties to bargain their own solution to the insolvency within the terms of traditional
100 See Royal Oak Mines v Canada (Labour Relations Board), [1996] 1 SCR 369, where the content of the duty to bargain in good faith and the reasonable efforts obligation were explained by the Supreme Court of Canada. Note that the duty to bargain may not apply to collective agreement negotiations in insolvency situations, as section 65.12(6) of the BIA and section 33(8) of the CCAA indi- cate that the existing collective agreement “remains in force.” In cases where a collective agreement exists, there can be no violation of the duty to bargain. See St. Raphael’s Nursing Home, [1983] OLRB Rep (August) 1370 and Ready Bake Foods Inc, [2007] OLRB Rep (January/February) 166. 101 For an Ontario case, see Royal Ottawa Health Care Group, [1999] OLRB Rep (July/August) 711. 102 The way in which the bargaining freeze may be terminated varies across Canadian jurisdictions. For instance, under the Alberta Labour Relations Code, RSA 2000, c L-1, s 128, and the British Columbia Labour Relations Code, RSBC 1996, c 244, s 45(2), the freeze operates until there is an actual lawful strike or lockout, whereas under the Ontario Labour Relations Act, 1995, supra note 62, s 86(1), and the Newfoundland and Labrador Labour Relations Act, RSNL 1990, c L-1, s 74(b), the freeze remains in effect only until such time as a strike or lockout would be lawful.
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labour law. In this way, the legislature endorsed Canada’s public policy commitment to voluntary collective bargaining, by placing the economic challenges facing the failing business in the hands of the parties and removing courts from collective agreement disputes.103 In addition, other provisions in the reforms support efforts by the parties to reach a compromise with respect to collective agree- ment obligations. For instance, by enabling unions to acquire more financial information regarding the debtor company through a dis- closure order,104 bargaining agents are provided with an opportunity to make informed decisions in order to help them reach agreements with their employers.105 As well, the amendments provide bargaining 2015 CanLIIDocs 535
103 Ibid. In this connection, the federal government specifically considered and rejected including a provision in the reforms along the lines of §1113 of the United States Bankruptcy Code, which allows the debtor company to disclaim or modify an existing collective agreement. See the comments of Minister Joe Fontana, Standing Committee on Industry, Natural Resources, Science and Technology, 38th Parl, 1st Sess, No 060 (1 November 2005) at 10 & 14. See also Yamauchi, supra note 70 for a comprehensive treatment of the American model, and Andrew B Dawson, “Collective Bargaining Agreements in Corporate Reorganizations” (2010) 84 Am Bank LJ 101 for a critique of the U.S. system, noting that the standard interpretation of the U.S. Bankruptcy Code always results in the same finding: debtors are allowed to reject their collective agreements. 104 BIA, s 65.12(5) and CCAA, s 33(6). As of the end of November 2014, there was no case law regarding these sections. However, it may be difficult to deter- mine the existence of a concession when alterations are made to a pension plan incorporated in a collective agreement, as it would depend upon the effect of the concession on plan members. Furthermore, the creation of a new claim in favour of unions in respect of concessions made in bargaining may affect the voting on a plan of arrangement. Normally, although pension plans vote their claims, concessions provided by unions may affect the identity of the party holding the claim and create an important advantage for trade unions in restruc- turing talks. See Miller et al, supra note 74 at 18-19. 105 Briefing Book, An Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act and to make consequential amendments to other Acts, CCAA s 33 at 3 (online:
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agents with a right to an unsecured claim against the debtor in a value equivalent to that of concessions made in collective bargaining. Not only does this provision treat unions like other parties to an agree- ment with the debtor, it introduces an incentive to agree to contract revisions, as a portion of any concession granted may be partially recouped through the claims process.106 As a result, like other col- lective agreement claims that were unsecured prior to the stay of proceedings, bargained concessions cannot be collected from the dis- tribution pool until the conclusion of the insolvency process. In summary, under the statutory amendments, the existing col- lective agreement between the parties can be altered in only one of
two ways. First, the parties may voluntarily agree to amend the exist- 2015 CanLIIDocs 535 ing collective agreement.107 Second, if the debtor employer is permit- ted to serve a notice to bargain on the bargaining agent, it may engage in hard bargaining, unilaterally insisting on changes to the point of impasse, which may permit the terms and conditions of the collect- ive agreement to be displaced if the labour contract expires during bargaining. In such a situation, the parties may or may not ultimately agree on the terms of a new collective agreement. However, in either event, the labour contract will be displaced (and possibly replaced) as a direct result of the “notice to bargain” issued by the bankruptcy court. Consequently, the reforms do allow for further discord where federal or provincial labour law permits the terms and conditions of the previous collective agreement to be displaced after bargaining to impasse. However, as noted below, given the realities at play in current work-out talks, this situation may not arise for some time.
106 BIA Briefing Book and CCAA Briefing Book, ibid, at 9 and 3, respectively. 107 A patchwork of regulation exists across Canada regarding the early termin- ation of collective agreements. For instance, seven jurisdictions require the Labour Board’s consent in the first year of the collective agreement’s oper- ation. In Ontario and New Brunswick, the Labour Board can order early ter- mination at any time upon the joint application of the parties. See George W Adams, Canadian Labour Law, 2d ed (looseleaf) (Aurora, Ont: Canada Law Book, 2013) at para 12.400; and Kitchener Frame Ltd v National Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local 1451, [2011] OLRD No 3348 (QL) for an example of an early termina- tion application arising from insolvency in Ontario.
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(b) Recent Litigation Interpreting the Statutory Amendments
Recent judgements applying the statutory amendments have focused on the effect of the legal status of the collective agreement upon employer insolvency. In the five-year period immediately after the implementation of the collective agreement reforms to the BIA and the CCAA, the courts have had very few opportunities to interpret and apply the amended statutory provisions.108 In Re Canwest Global Communications Corp.,109 the Ontario Superior Court considered the implications of the addition of section 33(1) to the CCAA.110 Justice S.E. Pepall (as she then was) dismissed a motion by a union for
an order to have the debtor satisfy severance and termination pay 2015 CanLIIDocs 535 obligations in accordance with the collective agreements. The union had taken the position that the employees in question had provided post-filing service and were entitled to the payments in accordance with their labour contracts. The debtor submitted that the employees’ employment entitlements were not converted into post-filing obliga- tions simply because they had been actively employed following the initial order. In the Court’s judgment, the amendments did not alter long-established law,111 as set out in Jeffrey Mine, stipulating that the collective agreement remains in effect during insolvency.112 In the Court’s view, the issue raised by the union’s argument was whether section 33 altered the treatment of termination and severance obli- gations as unsecured claims. Rejecting the union’s position, Justice Pepall held that while section 33 maintains the terms and conditions contained in the collective agreement, it does not alter the priorities or status of the claims in question.113 She stated that if Parliament had
108 As of the end of November 2014, there were no BIA cases interpreting the amendments and only two decisions interpreting the CCAA provisions found in s 33(1). 109 [2010] OJ No 2544 (QL). 110 CCAA, s 33(1). As noted above, this section provides that “any collective agree- ment that the company has entered into as the employer remains in force, and may not be altered except as provided in this section or under the laws of the jurisdiction governing collective bargaining between the company and the bar- gaining agent.” 111 For example, see Re Nortel Networks, supra note 55. 112 Ibid at para 16. 113 Ibid at para 32.
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intended to effect such a “significant amendment,” whereby sever- ance and termination payments (and all other payments under a col- lective agreement) would take priority over secured claims, it would have done so expressly.114 Accordingly, employees were entitled to termination and severance payments but the obligation to pay those unsecured claims was stayed and subject to compromise in the plan of arrangement. At about the same time, the Québec Superior Court faced a similar issue relating to insurance premiums. In White Birch Paper Holding Co.,115 Justice Robert Mongeon denied a union’s motion to declare that a debtor was bound to continue insurance payments
for the health and welfare benefits of former employees. The union 2015 CanLIIDocs 535 argued that the obligation to pay insurance premiums arose from the collective agreement, which had not been revised by the parties, so the suspension of payments constituted a violation of section 33 of the CCAA, which maintains the legal force of the collective agree- ment during insolvency.116 The debtor employer responded that the provisions did not form part of the collective agreement, but even if they did, the persons at issue were retirees, not employees.117 After the Court determined that it (as opposed to a grievance arbitrator) had the jurisdiction to deal with the dispute, given that the matter was fundamentally about the effect of an initial order,118 the judge turned to the question of the scope of the reforms recognizing the legal status of the collective agreement found in section 33 of the CCAA. In the Court’s view, the union’s argument would require all employment obligations (including incorporated pension plans) to be enforced despite the initial order, which would entail excluding “the entire collective labour relations process from the application of the CCAA,” except with respect to a court issuing a notice to bargain under the Act.119 The Court expressed the view that the amendments merely codified the existing case law binding debtor companies to honour collective agreements under the CCAA.120 After considering
114 Ibid at para 33. 115 [2010] QJ No 5701 (QL). 116 Ibid at paras 3-16. 117 Ibid at para 15. 118 Ibid at paras 20-29. 119 Ibid at para 32. 120 Ibid at para 36.
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Minister Fontana’s remarks about the operation and effect of the CCAA collective agreement reforms, the Court, relying on prior case law,121 concluded that collective agreements continued to apply during insolvency “provided that they refer only to employees who continue to work.”122 In Justice Mongeon’s view, Parliament did not intend to extend the operation of collective agreements beyond these principles, because that would have given unions complete power over the success or failure of any restructuring under the CCAA.123 If the CCAA is interpreted according to its purpose, which is to enable distressed companies to avoid the pressure of their contractual obli- gations, then section 33 could not “be made so inflexible that the
Union would be, for all practical purposes, in a near absolute position 2015 CanLIIDocs 535 of control over the restructuring process.”124 Consequently, section 33 should be applied to situations where “employees of a bargaining unit continue to perform work after an initial order has been issued. Otherwise, the spirit of the entire corporate reorganization process under the CCAA would suffer as a result.”125 There are some lessons worth noting in these decisions. To date, union requests to enforce a collective agreement according to its strict terms, despite the initial bankruptcy or insolvency order, have been denied by the courts. In light of these decisions, and the absence of other case law, the reforms cannot be said to have had an important effect upon priorities set by insolvency laws. However, Mongeon J. did not need to suggest that the collective agreement applies only to active employees. The case law,126 the BIA and CCAA amendments, and labour statutes across Canada are clear — the collective agree- ment continues to apply despite insolvency, unless very specific and limited conditions are met. The continued legal status of collective agreements is of course important to bargaining unit employees, even if the immediate effects of many of its terms are postponed by the stay. The terms and conditions found in collective agreements assist
121 Specifically, he relied upon Jeffrey Mine, supra note 26, Re Nortel Networks, supra note 55 and Royal Oak Mines, supra note 28. 122 White Birch, supra note 115 at para 47. 123 Ibid at para 48. 124 Ibid at para 59. 125 Ibid at para 61. 126 For instance, see TCT Logistics (CA), supra note 42, Saan Stores, supra note 21, and Jeffrey Mine, supra note 26 and accompanying text.
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unions to establish the parameters of their claims for employees dur- ing insolvency, whether or not actively employed, and also establish the rates of pay and terms of work for employees who are retained to provide services after an initial order.
(c) Restructuring Negotiations in Unionized Workplaces
To understand the true impact of the statutory reforms on rescue efforts, one must turn from an examination of principles applied in the courtroom to an investigation of the work-out arrived at by the prin- cipals in the boardroom.127 Bankruptcy plans devised by stakehold-
ers normally advance or reject numerous proposals prior to seeking 2015 CanLIIDocs 535 approval of the courts for a specific rescue plan.128 As a result, much of the “real action” during insolvency takes place during informal bargaining sessions between debtor and creditors. To understand the actual consequences of the statutory amendments, it is necessary to appreciate their impact on rescue talks.129 The author conducted detailed interviews with leading coun- sel about the effects, if any, on rescue talks of the legal status of the collective agreement and the new notice to bargain provisions.130 The interviews focused on whether the legal status of the collect- ive agreement placed significant obstacles before debtors and unions in arriving at revised collective agreements, and if so, what those obstacles were and whether they tipped rescue negotiations toward failure. Based on these interviews, this part of the paper outlines the nature of restructuring discussions after the amendments, and then offers an analysis of the effect of the reforms.
127 Miller et al, supra note 74 at 1. 128 Ibid. 129 Ronald Coase, “The Problem of Social Cost” (1961a) 3 JL & Econ 1, demon- strating that parties will bargain around legal rules in order to achieve more efficient results. 130 A survey of members of the Canadian Bar Association and the Canadian Insolvency Foundation was circulated which attempted to build on the inter- views but did not garner enough responses to produce a statistically valid result. The results of that survey are available at
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The goal of the interviews was to acquire a sophisticated under- standing of the dynamics afoot in post-amendment restructuring negotiations addressing collective agreement matters. In addition, the interviews were meant to provide a forum for a frank assessment of the impact of the reforms, if any, upon insolvency practice from the perspectives of both debtor and union counsel. A small target popu- lation was identified that possessed significant experience in this area of law. Twelve insolvency lawyers across Canada were contacted to participate in a 90- to 120-minute, non-attributable, face-to-face interview with the author. The contact list was constructed from pub- lished decisions in insolvency law, public speaking engagements on
insolvency matters and peer-reviewed ratings of counsel practising 2015 CanLIIDocs 535 insolvency law. The list was evenly divided between counsel repre- senting business stakeholders (debtors, secured creditors, lenders and so on) and those representing trade unions. Seven counsel agreed to an interview, of whom four exclusively represented trade unions, two exclusively represented debtors, and one represented both unions and debtors. The interviews were con- ducted in the first week of December 2012. Approximately half of the interviewees had more than 20 years’ experience practising insol- vency law in cases where collective agreement rights had been at stake. One counsel had less than 10 years’ experience at the bar. The balance of counsel possessed between 10 and 20 years’ experience dealing with insolvency and collective agreement issues. All but one counsel had appeared at all levels of court litigating insolvency and labour law matters. Finally, four insolvency lawyers spent between 10 and 30 percent of their practice dealing with insolvency and labour law matters, while three lawyers devoted between 70 and 100 percent of their practice to these issues. In addition, these individuals all had experience with one or more of the most noteworthy commercial restructurings in recent memory that involved collective agreement rights. The interview respondents, on the whole, can fairly be charac- terized as leading counsel in insolvency law, with significant involve- ment in insolvencies where collective agreements played a role. The author posed 15 questions131 focused on the intersection of insolvency law and labour law, which were used as departure points
131 Ibid, Appendix A.
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to foster an in-depth discussion of the realities of restructuring nego- tiations in light of the statutory amendments. The questions were oral and open-ended, and centered on the respondents’ insolvency experi- ence with collective agreements and the effect of reforms upon rescue talks. The responses were recorded and transcribed by the author and reviewed for errors. The substance of the answers was reviewed to identify general themes and any evident trends that might exist. The content was organized thematically to reveal any patterns in the answers. The findings of the in-depth interviews suggest that difficult, yet successful, restructuring negotiations continue to take place after the statutory reforms. 2015 CanLIIDocs 535 (d) The Nature of Work-Out Talks Involving Collective Agreement Rights, Post-Amendments
The creation of a rescue plan is largely a bargaining process among creditors, in which the debtor seeks the informal support of influential creditors for the plan before filing it with the court. While the form of these agreements varies widely, they tend to include some combination of approaches: extending the time for repaying debts; accepting only a partial debt repayment; and converting debt into equity or liquidating some of the debtor’s assets in order to pay down arrears. Normally, wage costs arising from a collective agreement are not the dominant factor that contributed to the insolvency. Rather, the cost of contract administration, along with unionized work rules and the presence of any defined benefit pension plans, tends to ele- vate debtor costs above the cost structure of competitor companies.132
132 #1 Interview of Insolvency Counsel by Author (4 December 2012), #2 Interview of Insolvency Counsel by Author (4 December 2012), #3 Interview of Insolvency Counsel by Author (5 December 2012), #5 Interview of Insolvency Counsel by Author (6 December 2012), #6 Interview of Insolvency Counsel by Author (6 December 2012). Although not typical, some insolvencies nego- tiations, such as that at Air Canada, focused significantly on the reduction of financial aspects of the collective agreement. Interviews #3 and #4 represented debtor employers and other business stakeholders exclusively, while the bal- ance of interviews mainly, but not exclusively, represented trade unions in insolvency matters. One of the lawyers who represented trade unions also represented secured creditors and other business stakeholders.
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Managing excessive costs attributable to the collective agreement then becomes an important factor in rescuing the business.133 If the debtor employer cannot undertake a balance sheet restruc- turing, it will usually explore revising the collective agreement in order to trim costs.134 In the past, the potential for an order disclaiming the collective agreement led some stakeholders to repudiate the labour contract and to unilaterally impose concessions in unionized work- places.135 However, the amendments changed that dynamic, replacing unilateral action with a requirement to enter bilateral and sometimes multilateral discussions with trade unions. In these situations, the debtor employer’s need for collective agreement concessions will
usually lead its legal counsel, along with the Chief Restructuring 2015 CanLIIDocs 535 Officer, to involve the union(s) in talks designed to revise certain aspects of the collective agreement.136 The decision to negotiate by the debtor employer is directly influenced by its ability to use key aspects of the statutory amendments. The combination of subsections 65.12(1), (2) and (6) of the BIA, and subsections 33(1), (2), (3) and (8) of the CCAA — which ensures that the collective agreements remain in force during insolvency and permits a court to allow a notice to bargain to be issued to the union — has widely caused debtor companies to forego litigation with their unions and to turn rather to collective agreement negotia- tions.137 While the provisions maintaining the status of the collective
133 However, interviews indicated that if labour costs seem to have played a sig- nificant role in the insolvency, and a collective agreement(s) is in effect, then debtor counsel will normally engage in-house counsel or human resources pro- fessionals to analyse the effect of the labour contract upon the competitiveness of the distressed company. 134 #1 Interview with Insolvency Counsel by Author (4 December 2012), #2 Interview with Insolvency Counsel by Author (4 December 2012), #3 Interview of Insolvency Counsel by Author (5 December 2012), #4 Interview of Insolvency Counsel by Author (5 December 2012), #5 Interview with Insolvency Counsel by Author (6 December 2012), #6 Interview with Insolvency Counsel by Author (6 December 2012). See Collins & Aikman Canada, supra note 54, as an example of a pre-amendment insolvency that required no revisions to any of a number of collective agreements in order to restructure. 135 #1 Interview of Insolvency Counsel by Author (4 December 2012). 136 #4 Interview of Insolvency Counsel by Author (5 December 2012). 137 BIA, s 65.12(2) and CCAA, ss 33(2) & (3).
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agreement operate automatically, those permitting a notice to bargain are discretionary in nature. The likelihood that a debtor employer will be allowed to use the notice to bargain provisions is encumbered by their exacting terms. First, the existence of sincere voluntary negotiations would obviate the need for, and make unavailable, an order compelling the union to bargain — rendering the provision inoperable in all but the most extreme cases of a recalcitrant union rejecting all solicitations from the debtor employer to bargain. Although that outcome may reflect Parliament’s intention to allow alteration of collective agree- ments only where both parties agreed, it significantly restricts the
ability of a debtor to rely on the notice to bargain provisions if volun- 2015 CanLIIDocs 535 tary talks fail. Second, the debtor employer must demonstrate “irreparable damage to the company” before the court can permit the issuing of a notice to bargain. Based upon the plain meaning of the words in the statutes, a court should find that irrecoverable harm or irremediable impairment is likely before an order can be granted. Yet the mere possibility of voluntary discussions between the parties must weaken claims that irreversible harm is probable, because it would be con- ceivable that collective agreement revisions could still be achieved. The debtor’s task of proving that irreparable damage would likely occur is made more difficult by the mere fact of ongoing negotiations, since such negotiations hold out the possibility of avoiding permanent harm to the employer. Determining the probability that further col- lective bargaining negotiations would probably not yield an adequate arrangement is an extremely difficult undertaking for even the most seasoned labour expert. If the likelihood of irreparable harm seems unclear, a court may want to act prudently and exhaust the possibility that the parties may resolve their financial difficulties on their own, instead of issuing an order that forces mandatory negotiations when voluntary bargaining has yet to run its course. Third, if a trade union is engaged in voluntary negotiations with the debtor employer (a precondition for a notice to bargain order), agreement to just one revision of the collective agreement will undermine the employer’s ability to later compel further collect- ive bargaining. As the inability to agree on any collective agreement revisions is the standard debtors must meet as a condition preced- ent to using the notice to bargain provisions, voluntary bargaining
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sessions that agree to even minimal alterations will place those talks beyond the scope of an order. As the amendments require the parties to attempt to voluntarily bargain revisions to the collective agreement before requesting court assistance, unions are provided with a stra- tegic opportunity to block recourse to the notice provisions by agree- ing to minor concessions if they decide significant concessions must be avoided.138 As it is extremely rare for a trade union to flatly refuse to discuss revisions to its collective agreements,139 debtor employers may find that voluntary negotiations preclude them from later turning to a judge to issue a notice to bargain order if they are not satisfied with the extent of concessions acquired from the union.
Finally, and most importantly, although it is possible for a 2015 CanLIIDocs 535 debtor to overcome the legal formalities involved in obtaining the order, the prospect of the debtor doing so seems somewhat remote, given the preference of stakeholders for “real time” rescue talks.140 The time involved in obtaining such an order, along with the time required to force a reluctant union to compromise its agreement through litigation by obtaining a mandatory bargaining order, sig- nificantly erodes the incentive of a debtor employer to seek an order in the first place.141 The statutory timetable mandated by collective bargaining is not an expedited process. Moreover, the debtor risks harming negotiation with its union(s) when it forces them into man- datory discussions, even if it can bear the timetable associated with that litigation. The prospect of a rescue based on union concessions becomes more remote with delay and increased labour tension. As a result, the failure of the reforms to provide a practicable legal process to “kick start” collective bargaining through the notice to bargain provisions has forced the parties to begin that dialogue on their own.
138 BIA, ss 65.12(1) & (2) and CCAA, ss 33(2) & (3). 139 #1 Interview of Insolvency Counsel by Author (4 December 2012) and #3 Interview of Insolvency Counsel by Author (5 December 2012). During the Stelco restructuring, the United Steelworkers, Local 1005, located in Hamilton, Ontario, adamantly refused to negotiate alterations to its collective agreement with the debtor employer. However, the union’s complete rejection of revisions to the labour contract is likely explained by the odd reality that the employer began to be profitable shortly after CCAA proceedings were initiated. 140 #3 Interview of Insolvency Counsel by Author (5 December 2012) and #4 Interview of Insolvency Counsel by Author (5 December 2012). 141 Ibid.
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Restructuring talks necessitate a pragmatic discussion if the distressed business is to survive, as there may be no prospect of bargaining after bankruptcy. As a result, the debtor employer is left with the reality that the most practical way to alter the agreement is to persuade the union to voluntarily negotiate a new, cost-effective labour contract.142 Consequently, debtor employers have had to adjust their normal bargaining tactics to engage labour unions in meaningful collective bargaining. As the legislation makes it improbable that a debtor company could open a collective agreement in a timely way through the use of notice to bargain provisions, debtor employers tend to take a “lay all your cards on the table and make a reasonable 143
proposal” approach with the union. Given the fact that many large 2015 CanLIIDocs 535 unions today have prior insolvency experience to guide them in nego- tiations, they are often well equipped to make the necessary trade-offs to rescue a business.144 Though the statutory reforms do not require unions to negotiate labour contract changes with the debtor employer, as a practical matter, looming economic disaster and trade unions’ need to protect their members encourages bargaining to revise col- lective agreements. Prior to the enactment of the reforms, business-oriented stake- holders and others145 argued that trade unions would be provided with
142 #1 Interview with Insolvency Counsel by Author (4 December 2012), #2 Interview with Insolvency Counsel by Author (4 December 2012), #3 Interview of Insolvency Counsel by Author (5 December 2012), #4 Interview of Insolvency Counsel by Author (5 December 2012), #5 Interview with Insolvency Counsel by Author (6 December 2012), #6 Interview with Insolvency Counsel by Author (6 December 2012) and #7 Interview with Insolvency Counsel by Author (6 December 2012). 143 #3 Interview of Insolvency Counsel by Author (5 December 2012). 144 Ibid. 145 See the testimony of Andrew Kent, supra note 3 at 6-7. See also Legislative Review Task Force (Commercial) of the Insolvency Institute of Canada and the Canadian Association of Insolvency and Restructuring Professionals, Report on the Commercial Provisions of Bill C-55, online: 09_Milanovic.indd 632 15-03-24 10:59 AM EVALUATING THE COLLECTIVE AGREEMENT AMENDMENTS 633 a “functional veto” over rescue talks, as the labour-related reforms did not include a third-party mechanism to impose an agreement if a recalcitrant union refused concessionary bargaining. Counsel repre- senting debtor employers and senior creditors complained that the amendments removed the “dynamic tension” that was present in res- cue talks when the court could impose an unfavourable outcome upon trade unions — i.e. by setting aside their collective agreements. The possibility that a collective agreement would be terminated provided a significant incentive to negotiate reductions. It was feared that if the statutory amendments gave iron-clad protection to a labour union’s collective agreements, they would permit the bargaining agent to sim- 146 ply sit on its hands and do nothing but risk liquidation. 2015 CanLIIDocs 535 Despite the absence of a third-party neutral with the power to legally impose an agreement, trade unions have come to appreciate that it is in their “collective interests to bargain for a timely and posi- tive outcome.”147 This realization is borne out of the trade union’s tactical and strategic self-interest in rescue talks. First, if a restructuring agreement has crystallized without union input, and is then presented to the bargaining agent as a fait accompli, the interests of unionized employees will not likely be well repre- sented in the agreement. Practically speaking, the pressure in court to accept a plan or compromise that was approved by all stakeholders, except the union(s), will be enormous. Bargaining agents put in this position will have been tactically outmaneuvered in the contest to influence the rescue of the distressed company. Typically, a union will want to avoid that situation and to influence negotiations in such a way as to preserve as many unionized jobs as possible while maxi- mizing protection for key employee benefits such as a pension plan.148 As a result, it is important for union counsel to quickly insert their client into rescue negotiations so that the debtor employer and the secured creditors take account of the union’s priorities at the front 146 #3 Interview of Insolvency Counsel by Author (5 December 2012), #4 Interview of Insolvency Counsel by Author (5 December 2012). 147 Sarra, supra note 78 at 203. 148 #1 Interview of Insolvency Counsel by Author (4 December 2012), #2 Interview of Insolvency Counsel by Author (4 December 2012) and #6 Interview of Insolvency Counsel by Author (6 December 2012). 09_Milanovic.indd 633 15-03-24 10:59 AM 634 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] end of the bargaining process.149 The only means by which the debtor will want to address the union’s priorities is to voluntarily “open the collective agreement” for bargaining. Otherwise, the union has little to offer the other parties in the reorganization talks.150 This approach is widely employed by unions that are trying to avoid being mar- ginalized in restructuring discussions. Rescue talks allow unions a significant opportunity to maximize the economic security of their members post-rescue. However, the ability of unions to achieve their goals is moderated by the economic and legal realities of insolvency. Many labour unions appreciate that they are in a perilous place in restructuring talks. For example, the debtor may use its extensive management rights under the existing collective agreement to direct 2015 CanLIIDocs 535 its enterprise and unilaterally terminate or permanently reduce its operations without any consultation.151 In addition, the debtor and other creditors may set the agenda by bargaining over where, when, and how much to invest in the distressed company, without union input.152 Moreover, as labour is dependent upon capital for employ- ment, no responsible union153 can easily dismiss a legitimate demand to alter the terms of work so as to retain as much of its members’ employment as possible. In this context, if the union is to affect the outcome of restructuring talks, it must act quickly and insert itself into the negotiations by having something to offer its counterparts.154 In this way, unions become meaningful players in a restructuring. To have bargaining strength in dealing with other stakeholders, unions must open their collective agreements to revisions. Opening a collective agreement provides the union with real leverage by trad- ing potential concessions for a commanding position in the rescue 149 Ibid. 150 Ibid. 151 Sarra, supra note 78 at 200. 152 Harry Glasbeek, “Voluntarism, Liberalism, and Grievance Arbitration: Holy Grail, Romance, and Real Life” in Geoffrey England, ed, Essays in Labour Relations Law (Don Mills, Ont: CCH Canadian, 1986) 57 at 84-86. 153 See the submission by the United Steelworkers of America to Canada, Senate, Standing Committee on Banking, Trade & Commerce, Proceedings of the Standing Committee on Banking, Trade & Commerce, Issue 24 (17 September 2003) at 24. 154 #1 Interview of Insolvency Counsel by Author (4 December 2012) and #5 Interview of Insolvency Counsel by Author (6 December 2012). 09_Milanovic.indd 634 15-03-24 10:59 AM EVALUATING THE COLLECTIVE AGREEMENT AMENDMENTS 635 talks.155 By using the “chip of the open collective agreement,” the bargaining agent may be able to act as if it were, in effect, the first secured creditor — sometimes to the “horror of secured creditors.”156 For instance, a union might propose hefty wage and benefit increases in an open collective agreement to potential buyers it does not favour, but an economically appropriate collective agreement to other bid- ders, as long as they are willing to accept certain employment and benefit assurances in a renewed collective agreement.157 Like an entrepreneur, it may even demand an ownership share in the debtor employer in exchange for its consent to collective agreement changes. Alternatively, it may scuttle the ownership aspirations of purchasers 158 by rejecting concessions required by a buyer it does not favour. 2015 CanLIIDocs 535 In other words, unions can manipulate economic uncertainty159 per- taining to the insolvency in order to ensure that a rescue plan takes account of the workplace concerns of bargaining unit employees in a revised collective agreement. However, the aspirations of a union to control the restructur- ing will be strongly resisted by debtor employers. They will temper union demands by threatening to liquidate the business and to pub- licly tie the failure of rescue talks to the demands of the union.160 The union will weigh the possibility of that outcome prior to reaching any restructuring agreement. A union’s agreement to a rescue plan, like buy-in from other stakeholders, largely hinges on the plan’s eco- nomic appeal to its principals. 155 #5 Interview of Insolvency Counsel by Author (6 December 2012). 156 Ibid. 157 Ibid. 158 Consider the Stelco insolvency, in which the bargaining agents took an active role in bringing in a financer to the negotiation table and offered amenable collective agreement terms due to the financier’s bid (#1 Interview with Author, 6 December 2012). In the Air Canada bankruptcy, the unions’ active opposition to Trinity Time Investments $650-million investment led the financer to walk away from its proposal, given that the unions would not agree to additional benefits concessions. See Air Canada Timeline, CBC News (2 April 2004), online: 09_Milanovic.indd 635 15-03-24 10:59 AM 636 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] In this back-and-forth, unions tend to agree to collective agree- ment concessions when their officers and members believe that the employer’s claims of hardship are credible, that concessions could save employment and reverse the economic misfortunes of the employer, and that reductions will not be needed again, or at least not in the foreseeable future.161 However, if concessions are viewed as excessive or if there is seething dissatisfaction among union members arising from prior labour-management relations, unions will resist concessionary bargaining, thereby risking both job loss and company liquidation.162 This unique form of voluntary collective bargaining there- fore places an extraordinary premium on the successful revision of 2015 CanLIIDocs 535 labour contracts by the parties. If they fail, the parties jeopardize the viability of the debtor company, its bargaining agents, and all employment. Notably, however, it has not been the experience of counsel interviewed that rescue talks have been negatively influenced by the preservation of the legal status of the collective agreement and the notice to bargain provisions. Although none of the legal coun- sel categorically ruled out the possibility that disputes over a labour contract could scuttle a rescue plan, the consensus among employer and union counsel was that this risk was not a predominant feature of post-amendment insolvency practice.163 Furthermore, with one excep- tion, all insolvency counsel interviewed suggested that the statutory reforms regarding the status of collective agreements had not caused excessive or undue hardship preventing stakeholders from rescuing a distressed company.164 In this respect, the experience of the majority of insolvency coun- sel interviewed is consistent with the views of a wide cross-section 161 Gary Chaison, “Airline Negotiations and the New Concessionary Bargaining” (2007) 28:4 J Labor Res 642 at 647. 162 Ibid at 653. See also note 176 infra. 163 Ibid. 164 Ibid. The only insolvency counsel who felt that the reforms had resulted in undue hardship based this view upon the idea that they gave unions a func- tional veto over the restructuring. However, even he could not point to a single instance since the reforms when a collective agreement had prevented suc- cessful restructuring. See #4 Interview of Insolvency Counsel by Author (5 December 2012). 09_Milanovic.indd 636 15-03-24 10:59 AM EVALUATING THE COLLECTIVE AGREEMENT AMENDMENTS 637 of insolvency professionals across Canada, who reported that they have not encountered problems with either the statutory require- ments that preserve the legal force of collective agreements or the provisions that provide for collective bargaining during an insolvency proceeding.165 In light of the foregoing, it does not seem plausible that the statutory reforms recognizing the legal status of the collect- ive agreement have widely upended the efforts of stakeholders to restructure unionized debtors. If the experience of leading insolvency counsel is to be believed, these reforms have, on the contrary, assisted restructuring efforts by providing an impetus to parties to negotiate a rescue plan that amends the labour contract as a means of saving the distressed business. 2015 CanLIIDocs 535 (e) Evaluating the Broader Effect of the Reforms Respecting Collective Agreements Professor Paul Weiler has observed that bargaining the terms and conditions of a collective agreement is an “intrinsically valuable experience in self-government.”166 In the vernacular of the Supreme Court, collective bargaining promotes the “values of human dignity, equality, liberty, and respect for the autonomy of the person.”167 Bargaining gives employees an opportunity to influence the estab- lishment of workplace rules and provides them with a level of control over their lives.168 As a result, collective bargaining “emerges as the 165 Janis Sarra, “Examining the Insolvency Toolkit: Report of the Public Meetings on the Canadian Commercial Insolvency Law System” (July 2011) at 141, online: Canadian Association of Insolvency and Restructuring Professionals (CAIRP) 09_Milanovic.indd 637 15-03-24 10:59 AM 638 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] most significant collective activity through which freedom of associ- ation is expressed in the labour context.”169 It is a fundamental legal right of employees, one which includes a good faith obligation on the part of employers to recognize unions and engage in genuine negoti- ations and to respect the bargain entered into by the parties.170 These rights encompass a voluntary process of discussion that should gen- erally be free from the unilateral imposition of law.171 By preventing the termination of the labour contract, Parliament in its package of reforms endorsed the purposes of collective bargaining, and the fruit it may yield, as important institutions entitled to the positive pro- tection of the law.172 In turn, the validation of collective bargaining contained in the reforms operates to bolster work-out efforts. 2015 CanLIIDocs 535 On the face of the reforms, the provisions permitting the court to authorize a debtor company to issue a notice to bargain173 to the union held out the potential of further conflict between the parties. The statutory amendments invited the use of court proceedings as a means to force negotiated concessions or even, in limited circumstances, to displace the existing terms and conditions of the collective agreement. However, the notice to bargain provisions in the BIA and CCAA have not been widely used. Debtors appear to consider them impracticable. Restoring collective agreements to their full effect in law appears instead to have the effect of requiring debtor employers facing labour costs issues to engage in voluntary collective bargaining with their unions. Basic economic and legal considerations motivate unions and debtor employers to reach agreement. On the one hand, the reforms require debtor employers to deal with unions if, going forward, they want labour costs to be reduced. On the other hand, the company’s impending bankruptcy forces bargaining agents to carefully consider which collective agreement rights might be altered to help rescue the business. Debtor employers now use the threat of liquidation in order to leverage a “savage process of forced concessions”174 designed to 169 Ibid at para 66. 170 Ibid at para 77. 171 Ibid. 172 Weiler, supra note 166. 173 BIA, ss 65.12(1) & (2) and CCAA, ss 33(2) & (3). 174 Courtney Pratt & Larry Gaudet, Into the Blast Furnace: The Forging of a CEO’s Conscience (New York: Random House, 2008) at 81. 09_Milanovic.indd 638 15-03-24 10:59 AM EVALUATING THE COLLECTIVE AGREEMENT AMENDMENTS 639 pare down the terms of the labour contract when necessary.175 The interviews suggest that unions have generally responded by opening their collective agreements and leveraging the uncertainty involved in rescue talks to advance their strategic goals on behalf of their mem- bers, rather than by obstructing efforts to trim provisions of the col- lective agreement.176 Contrary to the concern expressed by some insolvency profes- sionals before the passage of the reforms, the absence of court inter- vention has not undermined the willingness of trade unions to reopen collective agreements. The interviews also suggest that the voluntary restructuring talks occurring post-amendments have not resulted in widespread liquidations or undue hardship for debtor employers that 2015 CanLIIDocs 535 prevent collective agreements from being revised. Debtor employers and their unions appear to have been able to successfully address insolvency issues since the reforms took effect. The contest between the parties has been transformed from one of pursuing their rights in court into voluntary negotiation over the terms on which the business will be run post-rescue. In this way, the heightened prominence of voluntarism in restructuring negotiations affords trade unions a rare opportunity to address issues that lie at the core of entrepreneurial control of the debtor employer, thereby permitting them to positively contribute to the competitiveness of the business going forward.177 In other words, the debtor employer and union move closer to an equal part- nership178 during rescue talks than would have occurred if the collect- ive agreement had been discarded in law. In fact, rescue agreements that adroitly balance the interests of each party may actually contain 175 Wahl, supra note 65 at 245. 176 See “Union Turns Down Final Offer,” Sault Ste. Marie News Leader (22 March 2007) 1 for an example of a union’s overwhelming rejection of an employer’s concessionary demand for a long-term wage cut, in the face of the bankruptcy court’s prior liquidation order that would close the facility within 40 days. 177 Katherine Van Wezel Stone “The Post-War Paradigm in American Labor Law” (1981) 90 Yale LJ 1509 at 1510. 178 Brian Langille, “‘Equal Partnership’ in Canadian Labour Law” (1983) 21 Osgoode Hall LJ 496. 09_Milanovic.indd 639 15-03-24 10:59 AM 640 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] improvements for employees and employers alike.179 Whatever the specific terms of a settlement,180 the statutory reforms provide the debtor with a clear incentive to engage in discussion with its union(s), thus enlisting their help in salvaging the business.181 4. CONCLUSION The early insolvency case law that challenged the legal status of the collective agreement created uncertainty surrounding its legal effect during insolvency. Those decisions not only interfered with the normal adjudication of labour law disputes arising from collective agreements during an insolvency, but also affected the restructuring 2015 CanLIIDocs 535 of unionized businesses. This jurisprudence overturned a longstand- ing arrangement between capital and labour concerning the proper resolution of workplace disputes. In the eyes of unions, these deci- sions undermined the legitimacy of the insolvency process, as already vulnerable employees would be rendered more vulnerable182 to mar- ket forces when they received less from an insolvency proceeding. Bankruptcy jurisprudence thus threatened the institutional role of unions in the workplace. Unions reacted to such decisions by resorting to litigation in order to defend the force and effect of collective agree- ments, thereby delaying, or risking the failure of, the restructuring effort. The heightened conflict between debtors and unions meant that parties were distracted by litigation when they should have focused on negotiating a renewed labour contract that had the potential to help expeditiously resolve the insolvency. 179 A negotiating process between the receiver, trustee or monitor involving trade unions has always held out some promise of improving rights for bargaining unit employees. See Wahl, supra note 65 at 251 and note 180, infra, for an example of such a pre-amendment agreement. 180 In December 2007, a settlement agreement in TCT Logistics between the union and Spectrum Supply Chain Solutions was ratified. The resolution required the union to abandon its representational rights with the employer in exchange for a payment that equalled about 90% of the monies owed to bargaining unit employees at the time of the employer’s closure. 181 Wood, supra note 95 at 310. 182 Wallace v United Grain Growers Ltd, [1997] 3 SCR 701 at paras 93-95. 09_Milanovic.indd 640 15-03-24 10:59 AM EVALUATING THE COLLECTIVE AGREEMENT AMENDMENTS 641 However, by shielding “all employment rights” in insolvency situations,183 the Supreme Court of Canada’s decision in T.C.T. Logistics implicitly ensured that the collective agreement would again be the foundation of the terms and conditions of work for organized employees.184 Amendments to the BIA and CCAA now explicitly rec- ognize the legal status of the collective agreement during insolvency, and provide statutory machinery to issue a notice to bargain a new collective agreement. Parliament has reinforced the incentives for debtor employers and their unions to voluntarily bargain a resolu- tion to the insolvency. A debtor employer that wishes to alter the collective agreement as part of a strategy for saving the business is now required to negotiate changes with its union(s). In fact, the 2015 CanLIIDocs 535 interviews with insolvency counsel that are summarized in this paper strongly suggest that debtor employers have forgone use of the notice to bargain provisions to mandate such negotiation, given the num- erous practical impediments that would arise. It appears, rather, that employers choose to engage voluntarily in collective bargaining. On the other hand, though the reforms permit unions to formally main- tain their collective agreements with the debtor employer, in practice they appear to participate voluntarily in restructuring negotiations and to open collective agreements in the interests of improving their members’ prospects post-restructuring. Importantly, post-amendment collective agreement negotiations do not appear to have prevented restructuring or impeded rescue efforts. The reforms have replaced a recurring legal dispute about the place of the collective agreement during insolvency with a system that provides incentives for meaning- ful negotiation to rescue distressed businesses facing bankruptcy. In light of the foregoing, Parliament’s collective agreement amendments have introduced positive change to the restructuring process, by help- ing stakeholders to rescue unionized employers facing financial ruin. 183 TCT Logistics (SCC), supra note 6 at paras 43-51. 184 Weiler, supra note 166 at 30-32. 09_Milanovic.indd 641 15-03-24 10:59 AM 2015 CanLIIDocs 535 09_Milanovic.indd 642 15-03-24 10:59 AM State Immunity and Employment Relations in Canada Richard L. Garnett* Canada’s federal State Immunity Act, 1985 grants to foreign states a pre- sumptive immunity from actions in the Canadian courts, subject to important exceptions. One such exception is set out in section 5 of that Act, which applies when the proceedings relate to “commercial activity.” This paper argues that Canadian courts and tribunals in labour and employment cases have been incon- sistent in their interpretation of the scope of the exception for commercial activity, and thus in the extent to which they have been prepared to uphold foreign states’ 2015 CanLIIDocs 535 claims to immunity. Advocating for what is termed the “liberal” approach, as enunciated in the leading case of Re Canada Labour Code, the author discusses the case law to demonstrate the varying degrees to which this approach has been followed. His preference for the liberal approach, which focuses on the roles and responsibilities of the employee, is informed by a comparative analysis of American, European, and Australian legislation and jurisprudence. Ultimately, it is argued that state immunity in employment cases should generally be restricted to two situations: individual employee claims where the employee is a high-rank- ing diplomat, civil servant or military official with the foreign state; and col- lective employee claims brought against a foreign state employer in a highly sensitive location such as a military base, embassy or consulate. 1. INTRODUCTION The immunity of foreign states in employment disputes is an issue which has increasingly arisen before Canadian courts and tribu- nals. Typically, such disputes have fallen into two groups. The first is where an individual employee brings an action against his or her foreign state employer for wrongful or unjust dismissal. The second is where a body representing workers, such as a trade union, seeks certification as the employees’ bargaining agent under Canadian labour legislation. In both types of action foreign state employers have raised the defence of state immunity. * Professor of Law, The University of Melbourne, Consultant, Herbert Smith Freehills. 10_Garnett.indd 643 15-03-24 10:59 AM 644 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] State immunity is a doctrine derived from public international law whereby a foreign state may not be subjected to the jurisdiction of another state’s courts without its consent. Until the Second World War it was generally accepted in customary international law that a state could never be impleaded as a party before a foreign country’s courts. The foreign state was said to enjoy absolute immunity from adjudication. The absolute immunity rule, while rejected by some European states even before 1945,1 came under greater pressure after the end of the Second World War as states (particularly developing countries) began to engage increasingly in commercial activities, commonly with corporations of the developed world. As a result, the 2 idea developed in the jurisprudence of European civil law countries 2015 CanLIIDocs 535 that it was no longer appropriate for a state to enjoy all the privileges of statehood where it was acting in a manner similar to a private entity, for example, as a party to a commercial transaction. In such a circumstance, the state was considered to have “shed” its sovereignty voluntarily and so would be unduly advantaged by being able to claim immunity from the jurisdiction of another state’s courts. Accordingly, a new rule of restrictive immunity emerged based on the distinction between acts jure imperii and acts jure gestionis. Acts jure imperii are those of a particularly sovereign or govern- mental nature that no private person would or could ordinarily perform. By contrast, acts jure gestionis are those which although performed by governments, could be equally performed by private persons.3 While this distinction originated in European civil law coun- tries,4 it began to be accepted by common law courts and legislatures from the 1970s.5 In Canada the State Immunity Act (SIA)6 codified 1 For example, Belgium and Italy; see Hazel Fox & Philippa Webb, The Law of State Immunity, 3d ed (Oxford, Oxford University Press, 2013) at 152-153 for discussion and references. 2 For example, Switzerland, Germany, Austria and France; ibid at 154-159. 3 Ibid at 99. 4 Supra note 1. 5 See, in the United Kingdom, State Immunity Act 1978 (UK), c 33; Trendtex Trading Corp v Central Bank of Nigeria, [1977] 2 WLR 356. See also, in the United States, Foreign Sovereign Immunities Act of 1976, Pub L No 94-583, 90 Stat 2891; Alfred Dunhill of London Inc v Republic of Cuba, 425 US 682 (US 1976). 6 RSC 1985, c s-18 [SIA]. 10_Garnett.indd 644 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 645 it,7 granting a presumptive immunity from local court jurisdiction to a foreign state subject to a series of exceptions. The most significant of these for present purposes is set out in section 5, which applies where the proceedings relate to “commercial activity” engaged in by the state. Based on the practice of a clear majority of states, the principle of restrictive immunity now almost certainly represents customary international law, as was noted in 1989 by the Special Rapporteur of the International Law Commission.8 The principle of restrictive immunity has also been adopted in the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property.9 2015 CanLIIDocs 535 2. THE AMERICAN PRECEDENT The legislative history to the Canadian provision (section 5 of the SIA, above) is scant in the specific context of employment claims but it is suggested that the commentary to the similarly-worded pro- vision in the United States legislation, section 1605 of the Foreign Sovereign Immunities Act of 1976 (FSIA),10 may be helpful for Canadian courts. The U.S. legislative history provides that “commer- cial activity” must be distinguished from conduct which is public or governmental in nature. The material further states that the employ- ment of “diplomatic, civil service or military personnel” would be public or governmental in nature but not the employment of U.S. citizens or third-country nationals in the U.S.11 Further, the history 7 See Ross Hornby, “State Immunity, Re Canada Labour Code: A Common Sense Solution to the Commercial Activity Exception” (1992) 30 Can YB Int’l Law 301 at 301-302; Amaratunga v Northwest Atlantic Fisheries Organization, 2013 SCC 66 at para 28, [2013] 3 SCR 866 (Le Bel J). 8 Motoo Ogiso spoke of “a clear and unmistakeable trend towards recognition of the principle that the jurisdictional immunity of states is not unlimited”; Fox & Webb, supra note 1 at 163-164. See also Ian Brownlie, Principles of Public International Law, 6th ed (Oxford: Oxford University Press 2003) at 332-333. 9 2 December 2004, 59th Sess, UN Supp A/59/49 (not yet entered into force, Article 30), online: 10_Garnett.indd 645 15-03-24 10:59 AM 646 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] provides that the “engagement of laborers, clerical staff or public rela- tions or marketing agents” is also considered a commercial activity.12 Some general points can be drawn from the American legis- lative history. First, the reference to “diplomatic and civil service personnel” on the one hand and “laborers and clerical staff” on the other suggests a distinction in application of the immunity rule based on the status and position of the employee. The idea is that the more senior or policy-oriented the position of the employee, the more likely immunity will be found. The reasoning appears to be that such employees are closer to the sovereign core and security interests of the foreign state. Hence it is almost certain that all staff holding dip- lomatic rank at embassies and consulates, high-ranking civil service 2015 CanLIIDocs 535 officials, and advisors at military installations would be unable to sue their employer in a U.S. court. In contrast, employees engaged in dut- ies indistinguishable from work customarily performed in the private sector should not have their actions barred by immunity. It is not clear, however, whether all subordinate or ancillary staff such as clerks and secretaries can bring claims. An important additional factor to be considered is the context or location of employ- ment. According to this view, if an employee at any level is employed at a highly sovereign workplace such as an embassy or a military base, immunity should automatically and always be granted on the basis that any inquiry into a foreign state’s activities in such places would be excessively intrusive and detrimental to its sovereignty. By contrast, a foreign state-owned school or trading corporation may be little different from an equivalent entity in the private sector, and allowing an employee’s claim to proceed would have negligible impact on the foreign state’s sovereignty. The U.S. legislative history is ambiguous on this issue. On the one hand it may suggest that, in the context of diplomatic or con- sular missions, only officers holding diplomatic or consular rank are prevented from suing. On the other, it may suggest that all persons at missions and military bases are so excluded. In the American juris- prudence there seems to be a trend towards deciding immunity ques- tions primarily by reference to the status and duties of the employee. The leading case is perhaps Holden v. Canadian Consulate,13 where 12 Ibid at 108. 13 92 F (3d) 918 (9th Cir 1996). 10_Garnett.indd 646 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 647 a commercial officer within the trade and investment section of a Canadian consulate was held entitled to bring claims for sex and age discrimination and breach of an employment contract against her foreign state employer. The Court in Holden stated that immun- ity would apply if the employee either came within the category of civil servant or formed part of the consulate’s diplomatic person- nel.14 The employee was found not to be a civil servant, as she was not entitled to tenure and received no benefits or civil service pro- tection from the foreign state employer.15 Nor was she a diplomat; although the employee was on the staff of the consulate, she was engaged in promotion and marketing activities, and was not privy to governmental policy deliberation or policy-making. Further, the 2015 CanLIIDocs 535 plaintiff did not speak for the Canadian government. Nor as a U.S. citizen was she allowed inside the consulate unless in the company of a Canadian foreign service officer. Similarly, in El-Hadad v. United Arab Emirates,16 an Egyptian national employed as an accountant in the U.A.E. Embassy was able to sue his employer on the basis that he was not a civil servant, had no role in the creation of govern- ment policy, and to the extent he carried out such policy, his duties were “ministerial not discretionary.”17 In essence, the employee was engaged in standard accounting work. In contrast, immunity was upheld in the case of an adviser to the Saudi Arabian Mission to the United Nations,18 where the employee’s role involved attendance at diplomatic meetings, conducting research, writing memoranda and speaking on behalf of the mission. Another factor in the U.S. jurisprudence which may be instruct- ive for Canadian observers is the nationality of the employee. Where an employee holds the nationality of the host state or that of a third country, courts are more likely to take jurisdiction. If the employee has the same nationality as the foreign state employer, a stronger case for the imposition of immunity exists. The rationale for this view is that the host country has a stronger interest in providing a forum for protection of its own local employees but much less concern with 14 Ibid at para 13. 15 Ibid. 16 496 F (3d) 658 (DC Cir 2007). 17 Ibid at 668. 18 Hijazi v Permanent Mission of Saudi Arabia to the United Nations, 403 Fed Appx 631 (2d Cir 2010), US App Lexis 26140 (US Ct App). 10_Garnett.indd 647 15-03-24 10:59 AM 648 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] the rights of employees who are the foreign state’s own nationals. Indeed in the latter situation, for the host country’s court to exercise jurisdiction over such a dispute may offend its interest in comity and good relations with the foreign state. Accordingly, immunity was imposed in a recent U.S. case involving suits by two Mexican nation- als employed at the Mexican Consulate,19 even though the plaintiffs were not in senior positions or engaged in high-level policy deliber- ation. Given the normally limited local interest in a dispute between two parties from a foreign country, the doctrine of forum non con- veniens, applicable in both U.S.20 and Canadian law,21 would seem to reinforce this conclusion. A further relevant factor in resolving immunity disputes in for- 2015 CanLIIDocs 535 eign state employment cases, which is not expressly referred to in the U.S. legislative history, is the nature of the claim brought by the employee. Under this rubric, actions which intrude upon the sover- eignty of the foreign state may be distinguished from those which relate only to the “economic” aspects of the employment relationship. For example, a claim that potentially involves an investigation into the hiring practices or policies of a foreign state is possibly more prob- lematic than an action for unpaid wages. However, as will be argued below, courts should be vigilant not to take at face value claims by a foreign state of harm to its sovereignty. This is particularly important in the absence of clear evidence that such damage is likely, especially where the claim is by an individual employee. Otherwise, many meri- torious employee claims would be excluded. Given the similar wording of the Canadian statutory provisions to their U.S. counterparts in their reference to “commercial activ- ity,” the U.S. legislative and jurisprudential history might have been thought useful guidance as to when immunity should be granted in a foreign state employment case before a Canadian court or tribunal. While that history has not in fact been referred to in the Canadian 19 Sanchez-Ramirez v Consulate General of Mexico in San Francisco, F Supp (2d) (ND Cal 2013), 2013 WL 4013947. 20 Piper Aircraft v Reyno, 454 US 235 (1981). 21 Amchem Products Inc v British Columbia Workers Compensation Board, [1993] 1 SCR 897, 102 DLR (4th) 96. The doctrine holds that a court may decline to exercise its jurisdiction where another court is more appropriately situated to hear the matter. 10_Garnett.indd 648 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 649 cases to date, it is interesting to note that the themes identified above (the status of the employee, the place of employment, the nationality of the employee, and the nature of the claim) have all been influential, as the following discussion shows. 3. INDIVIDUAL EMPLOYEE CLAIMS The leading Canadian case on state immunity and employment relations is the decision of the Supreme Court of Canada in United States of America v. Public Service Alliance of Canada (Re Canada Labour Code).22 While this case concerned a collective action by a trade union against a foreign state employer (and will be discussed 2015 CanLIIDocs 535 more fully below in that context), the Court made an important state- ment about the application of state immunity to claims by individ- ual employees. Re Canada Labour Code involved a military base in Canada controlled by the United States where, in addition to U.S. and Canadian military personnel, a number of Canadian citizens were employed. Although the base itself was a highly sensitive com- munications installation, the civilian staff were engaged in routine maintenance support. In 1987 the Public Service Alliance of Canada (PSAC) brought an application before the Canada Labour Relations Board for certification as the bargaining agent of the installation’s civilian personnel.23 The United States government, as the employer, pleaded immunity from jurisdiction. The Supreme Court upheld the claim to immunity by a majority of 3 to 2. The issue for the Court was whether the proceedings “related to any commercial activity” of the foreign state within the terms of section 5(1) of the SIA.24 The Court noted that the entry by the U.S. into a contract of employment with an individual Canadian civilian maintenance worker was “commercial activity” on the basis that a bare contract of employment was commercial in nature.25 This con- clusion was not affected by the sovereign context of the military base. The Court therefore took a restrictive approach to the granting of 22 [1992] 2 SCR 50, 91 DLR (4th) 449; this decision was recently endorsed by the Supreme Court in Amaratunga, supra note 7. 23 Now the Canada Industrial Relations Board. 24 Supra note 6. 25 Supra note 22 at 79. 10_Garnett.indd 649 15-03-24 10:59 AM 650 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] immunity in individual employee actions. While no mention was made of the rank of the employee, the political sensitivity of the work- place or the nature of the claim brought, the Court did refer to claims by “Canadian civilian workers,” which suggests that nationality and the nature of the duties performed by the employee will be relevant in the decision to grant immunity. Hence, while a claim by a U.S. national military worker would likely be barred, an action brought by a Canadian civilian against a foreign state employer would appear to be admissible. Presumably, had the action in Re Canada Labour Code involved a suit by an individual employee against the United States government, no plea of immunity would have been available. Yet it needs to be remembered that the Supreme Court’s statement 2015 CanLIIDocs 535 regarding individual employee claims was strictly obiter, since the action in Re Canada Labour Code was a collective proceeding. The Court in fact drew a sharp distinction between the collective labour claim at issue and an individual suit for breach of contract. Unlike a claim arising from “a bare contract for employment services,” the applicant union’s collective action sought to impose a statutory regime for regulating labour relations on the foreign military base. Such an action would involve an inquiry into the management and operations of the base, in particular the structuring of work, with scope for significant intrusion into the foreign state’s sovereignty.26 Later Canadian cases involving claims by individual employees have not been consistent in their approach to the immunity issue. It may be useful to examine them both chronologically and according to the nature of the workplace involved, to determine if a clear trend has emerged. As will be seen, the liberal approach to individual employee claims which the Supreme Court espoused in Re Canada Labour Code has been overlooked by some courts and tribunals. (a) Commercial Workplaces An early Canadian decision is Lovell v. New Zealand Tourist Board,27 which concerned a suit by a Canadian national employed as a marketing officer for a foreign state tourist board. The plaintiff had 26 Ibid at 79-82. 27 37 ACWS (3d) 930, 1992 CanLII 1502 (BCSC). 10_Garnett.indd 650 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 651 been made redundant and the employer had allegedly failed to pay him a severance package on layoff in accordance with the terms of his employment contract. The defendant’s plea of immunity was rejected by the Court on the ground that the employee’s claim was simply for the enforcement of a term in an employment contract providing for a severance payment upon layoff. Justice Harvey could not see how “the dignity of New Zealand sovereignty could be affected” if the Court were to accept jurisdiction over this matter.28 In rejecting immunity, the Court therefore focused on the nature of the employee’s claim and the fact that it would not intrude upon the foreign state’s sovereignty. Such an outcome is entirely con- sistent with the instruction regarding individual employee claims in 2015 CanLIIDocs 535 Re Canada Labour Code, though the Court in Lovell did not have to decide whether all individual employee claims would be admissible. The claim concerned purely economic aspects of the employment relationship and no inquiry was needed into the employer’s hiring practices or policies, such as may arise in a wrongful dismissal or discrimination action. The Lovell case was, therefore, a relatively simple one. The next decision, Gilligan v. Ministry of Labour and Swedish Trade Council and Swedish Trade Office (Canada) Inc.,29 also endorsed the approach suggested in Re Canada Labour Code. Ms. Gilligan claimed that the termination of her employment by the Swedish Trade Council was in violation of the maternity leave pro- visions of the Employment Standards Act, 2000.30 The claimant was employed as a receptionist/secretary at the Council, whose mission was to help Swedish companies establish themselves in Canada by providing marketing research and assistance with export inquiries, for a fee. The Council shared an office with the Swedish Consulate and the claimant admitted that she answered some telephone inquiries for the Consulate and helped people with visas and work permits. The Council pleaded immunity from jurisdiction, which was rejected by the adjudicator. 28 Ibid. 29 [1998] OESAD No 5 (QL) (Ontario Ministry of Labour, Office of Adjudication). 30 SO 2000, c 41, s 53(1). 10_Garnett.indd 651 15-03-24 10:59 AM 652 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] The adjudicator noted that, unlike Re Canada Labour Code, the context in which the employment took place was entirely com- mercial, with “the mandate of the . . . Council . . . [being] entirely devoted to encouraging and facilitating the commercial activities of Swedish companies.”31 Importantly, the adjudicator also noted and approved the distinction drawn in Re Canada Labour Code between individual and collective claims, arguments for immunity being less compelling in the former category. The adjudicator observed that a collective claim such as for union certification is likely to “have a significantly more far-reaching impact on an employer’s ability to manage an enterprise” than a purely individual claim by an employee, 32 which is much less intrusive upon a foreign state’s sovereignty. 2015 CanLIIDocs 535 Hence, immunity was denied in this case, the primary reasons being the commercial context of employment and the fact that the claim was brought by an individual employee. The 2002 decision of the Quebec courts in Orvieto c Italie33 continued the trend of denying immunity in workplaces which are not politically sensitive. Orvieto concerned an action for wrong- ful dismissal by a Canadian national employee against the Italian Trade Commission. Without making reference to the duties or responsibilities of the employee, the Quebec Superior Court rejected the employer’s plea of immunity on the basis that its activities were wholly commercial in nature. As the Court noted, the Commission’s purpose was to promote trade between Italy and Quebec, and to bring together Quebec and Italian merchants.34 The Commission was there- fore clearly distinguishable from an embassy or consulate because of its focus on business activities.35 More recently, in Kais v. Abu Dhabi Education Council,36 a Canadian citizen was recruited by the Abu Dhabi Education Council (ADEC) to work as an educational adviser at a school in Abu Dhabi. The ADEC was established in accordance with the laws of Abu Dhabi and, while a separate corporate body with legal personality, 31 Supra note 29 at para 31. 32 Ibid at para 29. 33 2001 CanLII 15809 (CS Qc), aff’d 2002 CanLII 62176 (CA Qc). 34 Ibid at para 6. 35 Ibid at para 5. 36 2011 ONSC 75, 196 ACWS (3d) 1022. 10_Garnett.indd 652 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 653 it was part of the government because it was financed by the state and implemented government policy. Shortly before the plaintiff left Canada to take up her position, she was informed by the ADEC that it would not proceed with the hiring because the U.A.E. government had refused to issue a visa. The plaintiff sued for breach of contract and the defendant state employer sought a stay of proceedings on the ground that the action had no real and substantial connection with Ontario. In the course of resolving this issue, the Court examined whether the ADEC was entitled to state immunity. The Court rejected the claim to immunity, noting that the nature of the employment con- tract was to “assist math teachers in [schools in] Abu Dhabi,”37 which was clearly commercial activity. Although the reason for the termina- 2015 CanLIIDocs 535 tion of the employee’s contract may have been for state purposes such as security or immigration, no specific “challenge is made here to the foreign state’s power to control such issues.”38 All that was in issue in Kais was “whether the particular contract was breached.”39 The Court therefore focused on the commercial, non-sovereign context of employment — an educational facility — in deciding that immunity should not be granted. The fact that sovereign policies may have been engaged in the decision to terminate the employment contract did not dissuade the Court from its primary view that the matter was com- mercial. In this respect, the case is similar to Gilligan and Orvieto, and is indicative of a clear trend of refusing immunity in cases involv- ing commercial workplaces. (b) Sovereign Workplaces The next series of cases reveals a possible retreat from the liberal approach to individual employee claims advocated in Re Canada Labour Code. In some cases the retreat is justified; in others it arguably represents an excessive deference to the interests of for- eign states. Butcher v. Saint Lucia40 concerned a claim for breach of contract brought by a consul-general and principal representative of 37 Ibid at para 47. 38 Ibid. 39 Ibid. 40 (1998), 79 ACWS (3d) 815, 38 CCEL (2d) 269 (Ont Ct J (Gen Div)), aff’d [1999] OJ No 1234 (QL) (CA). 10_Garnett.indd 653 15-03-24 10:59 AM 654 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] the Saint Lucia government in Toronto. The foreign state was held entitled to immunity on the basis that the performance of the role of consul-general “is an activity of a sovereign nature” and the claim related to such activity.41 The Court felt that it would be a serious intrusion of a foreign state’s sovereignty if a local court were to adjudicate the right of a state to determine who will be in charge of its missions. “A consul general represents a state in the same way as an ambassador. Each country is entitled to retain control over the choice of such individuals and their tenure in this capacity.”42 A foreign gov- ernment “should not have to justify to a Canadian court how it makes its decisions regarding the appointment of its representatives, such as consuls, or how it decides to suspend the services of anyone in such 2015 CanLIIDocs 535 a position.”43 It is for the foreign state alone to decide how and when its consulates will be established, who will be in charge and how its “image abroad” will be managed. The overriding factor in the Butcher case was the role and status of the employee when combined with the politically sensitive place of employment. Not only did the employee occupy a position at the highest level of government of the foreign state; he also performed this role in a consulate. Such facts make an argument as to the likely harm to the foreign state’s sovereignty almost irrefutable. A state’s system or policies for choosing its senior representatives abroad could be severely compromised if subject to review by another country’s courts. The interests of the foreign state rightly take precedence in this situation. The next group of Canadian cases is more problematic. In Greco v. Holy See,44 a U.S. citizen employed as an administrative assistant at the Embassy of the Holy See in Ottawa was held entitled to sue for breach of contract to recover moneys due but not paid under the terms of her employment contract. However, the employee was not able to bring a separate claim for wrongful dismissal. The latter claim was barred because it would involve an examination of the reasons and circumstances of the dismissal, which would necessarily entail 41 Ibid at para 16. 42 Ibid at para 18. 43 Ibid at para 19. 44 [2000] OJ No 5293 (QL) (Ont Sup Ct), Charbonneau J. 10_Garnett.indd 654 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 655 an inquiry into the foreign state’s personnel management practices in the embassy. Such an investigation would “have a significant impact on the sovereign right of the defendant state to control and regulate its own workforce.”45 This analysis distinguishes purely economic claims, such as breach of contract, from those which require an investigation into the conduct or labour practices of the foreign state employer, with the latter issue perceived as having a greater impact on sovereignty. With respect, however, the Court in the Greco case may have exaggerated the degree of harm to the foreign state by entertaining a wrongful dismissal claim in this context, given the relatively junior and non- policy-oriented position held by the employee. In this regard, it is 2015 CanLIIDocs 535 interesting to compare the decision of Charbonneau J. in Greco with the original judgment of Master Beaudoin in the same case.46 Master Beaudoin denied the foreign state’s pleas of immunity for both claims, finding no evidence that the duties performed by the plaintiff employee “touched on sovereign aspects” of the foreign state.47 The employee’s functions were similar to those of a secretary, she had no diplomatic passport and no “access to any information that was vital to the security” of the foreign state.48 Although the employee was not a Canadian national, neither did she hold the citizenship of the employer state and so as a third-country national, she should be entitled to the protective jurisdiction of the Canadian courts. The United States legislative history to the FSIA, discussed above, sup- ports this conclusion. The reasoning of Master Beaudoin is arguably more compelling than that of Charbonneau J. The effect of Charbonneau J.’s approach is to exclude all wrongful dismissal actions brought by employees at embassies and consulates, regardless of their rank and position. This result would seem to be unjust, particularly in cases where such employees are local nationals who perform roles similar to those existing in the private sector. To say that every such case must involve a detailed investigation into the hiring practices of the foreign 45 Ibid at para 6. 46 See [1999] OJ No 2467 (QL) (Ont Sup Ct). 47 Ibid at para 12. 48 Ibid at para 11. 10_Garnett.indd 655 15-03-24 10:59 AM 656 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] state seems overblown, since in many wrongful dismissal cases the primary concern and focus will be on the conduct of the individual employee and his or her performance. In any event, even if such an investigation is required, the interest of the employee in securing redress should arguably take priority over the foreign state’s con- cern for its sovereignty. This is particularly true given the increased concern in both public international law49 and domestic law50 for pro- tection of individual rights. Master Beaudoin, in focusing on the role and responsibilities of the employee, takes a more nuanced approach, which seeks to balance the interests of foreign state and employee more directly rather than simply accepting the state’s blanket asser- tions of possible harm and intrusion. 2015 CanLIIDocs 535 Finally, it is worth noting that the Court in Greco recognized that in an appropriate case a plaintiff employee may be able to circumvent state immunity by pleading his or her case as one of “personal or bodily injury occurring in Canada,” which is another exception to immunity under section 6(a) of the SIA. While Charbonneau J. dis- missed this claim on the facts, as no physical injury had been shown by the employee, in an early decision on immunity and employment, MacFarlane v. United States,51 it was held that a claim for mental dis- tress would satisfy this exception. Conceivably, with the right facts, an employee could consider raising a claim in tort as an alternative or additional strategy to a contract suit. Another disturbing case from the point of view of foreign state employees is the decision of the Human Rights Tribunal of Ontario in Bentley v. Consulate General of Barbados.52 In Bentley, an employee complained that she had been dismissed from her position as secretary at the consulate due to sex discrimination, in breach of the Human 49 See e.g. Council of Europe, European Convention on Human Rights, 4 November 1950, art 6 of which provides that “in the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” See also the International Covenant on Civil and Political Rights, 16 December 1966, art 14(1). 50 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 is a salient example. 51 1987 CarswellOnt 2859 (WL Can) (Ont Dist Ct). 52 2010 HRTO 2258, [2010] OHRTD No 2260 (QL). 10_Garnett.indd 656 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 657 Rights Code.53 The Tribunal upheld the employer’s claim to immun- ity and, in doing so, largely followed the reasoning of Charbonneau J. in the Greco case. Allowing the claim to proceed would “necessarily require the Tribunal to examine the reasons for and the circumstances of the plaintiff’s departure from the respondent’s employ as well as the respondent’s reasons for hiring someone other than the applicant on a permanent basis.”54 Such an inquiry would therefore “constitute an unacceptable interference with the sovereign right of the defendant state to control and regulate its own workforce.”55 Thus, the politically sensitive nature of the Consulate was a relevant factor, the operation and management of such a place not being considered an appropriate subject for review by Canadian tribunals. 2015 CanLIIDocs 535 Again, similar to the reasoning of Charbonneau J. in Greco, no mention was made of the rank or duties of the employee or the extent to which sensitive policy issues would genuinely be exposed by hearing her complaint about sex discrimination. An observer is therefore left with the distinct sense that the liberal approach to indi- vidual employee claims espoused in Re Canada Labour Code has been forgotten and replaced by an excessive zeal to protect the inter- ests of foreign states. A further interesting question, although not within the scope of this paper to address in depth, is whether this decision may be chal- lenged on the ground that it infringes section 15(1) of the Canadian Charter of Rights and Freedoms.56 This section provides that every individual is equal before and under the law and has a right to equal protection and equal benefit of the law without discrimination, includ- ing discrimination based on gender. Perhaps even more interesting would be the inevitable Charter section 1 analysis that would follow a finding that the claimant’s section 15 rights had been infringed. It might be expected that, at the proportionality stage, the analysis would follow the one that is advocated in this paper, i.e. examining the role and responsibilities of the employee. Taking this approach it is foreseeable that the court would find that a foreign state’s immunity 53 RSO 1990, c H-19. 54 Supra note 52 at para 43. 55 Ibid. 56 Supra note 50. 10_Garnett.indd 657 15-03-24 10:59 AM 658 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] interests do not justify infringing the equality rights of an employee. If such an argument were successful, then immunity could not be afforded to a foreign state in circumstances in which discrimination in employment was alleged based on race, nationality, ethnic origin, age or sex. The decision of the Quebec Court of Appeal in Morocco c El Ansari57 also involved the granting of immunity to a foreign state employer, although in arguably more defensible circumstances. The facts are complex but need to be explored. The El Ansari case con- cerned a dual Moroccan-Canadian national who joined the Moroccan civil service in 1959 and was made a permanent member in 1967 with the title of implementation officer. The claimant worked at a number 2015 CanLIIDocs 535 of Moroccan diplomatic missions between 1961 and 1991, in private secretary roles, all located outside Canada. In 1991 she immigrated to Canada but initially had no posting there. In 1993 El Ansari was informed by the Moroccan government that a position was available in its consulate in Montreal but was told that she would have to return to Morocco to finalize the hiring formalities. In 1996 she obtained Canadian citizenship and in 1997 was transferred to the Moroccan Embassy in Ottawa, where she worked until her contract was termin- ated in August 2000 and she was removed from the Moroccan civil service. From April 1999 the Moroccan government had requested that El Ansari return to Morocco for reassignment; she had repeat- edly tried to avoid being recalled and sought a transfer back to the consulate in Montreal instead. After she was removed from her post, El Ansari commenced proceedings in the Moroccan courts for unpaid wages and reinstatement as a civil servant. She also sued for damages for unjust dismissal in Canada; Morocco pleaded immunity. While the Quebec Superior Court allowed the claim to pro- ceed, the Court of Appeal upheld the employer’s right to immunity. The Court of Appeal noted that El Ansari was not a diplomat “and her duties did not touch on the heart of the diplomatic activities of Morocco.”58 Yet immunity was still held to be justified on the basis that she had been a longstanding member of the Moroccan civil ser- vice, her employment was regulated by Moroccan law and overseen 57 2010 QCCA 2256, 196 ACWS (3d) 992. 58 Ibid at para 78. 10_Garnett.indd 658 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 659 by the Foreign Affairs Department in Morocco, she received benefits available only to civil servants, and while she was a dual national, she owed her position as a civil servant to the fact that she was a Moroccan citizen. Moreover, El Ansari paid no income taxes in Canada, nor did her employer contribute to the Canada Pension Plan. Finally, she had already commenced proceedings in Morocco con- cerning her remuneration and dismissal as a civil servant.59 On these facts, the Court of Appeal concluded, the employment relationship between El Ansari and the Moroccan government was “clearly an internal management problem”60 into which the Canadian courts should not intrude. Intervention would directly infringe the sover- eignty of Morocco. 2015 CanLIIDocs 535 On analysis, the El Ansari case is somewhat problematic, since the employee was not in the same category as the consul-general in Butcher, nor was she a senior government or military adviser with responsibility for policy formulation and direction. Yet, as the Court noted, she was a longstanding member of the Moroccan civil service, with all the entitlements of that position, and her employ- ment was closely controlled and regulated by the Moroccan gov- ernment. Arguably this was a case in which the Canadian interest in adjudication was limited, despite the fact that the claimant also held Canadian nationality. Nevertheless, a troubling aspect of the Court’s judgment is that it scarcely examined the nature of El Ansari’s duties or func- tions to assess whether determining her claim for unjust dismissal really would have infringed the sovereignty of the employer state. The judgment speaks only of El Ansari being an “implementation officer” or “private secretary” without explaining what those roles entailed. The present author is therefore left with some concern with the approach in this case, while acknowledging that the Court’s deci- sion is defensible. The next group of cases, apparently bucking the trend, reveals a greater willingness to allow individual employees’ claims to proceed, despite the fact that the workplace may be sovereign in nature. In this respect, these decisions adhere more closely to the broad instruction 59 Ibid. 60 Ibid at para 79. 10_Garnett.indd 659 15-03-24 10:59 AM 660 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] in the Re Canada Labour Code case, which suggests that individ- ual employee actions should generally be admitted, regardless of the place of employment. Zakhary v. United States61 involved an employee complaint under the Canada Labour Code. The employee, a Canadian national who worked as a clerk at the U.S. consulate, brought a claim for reinstatement following an alleged unjust dismissal under section 240 of the Code.62 The adjudicator allowed the claim to proceed, relying heavily on the functions and duties performed by the employee. The tribunal noted that the employee’s position first entailed being a cash- ier and then progressed to collecting fees and meeting and greeting persons seeking to obtain or renew passports, scanning their appli- 2015 CanLIIDocs 535 cations and transmitting them to the specialist passport issuers. The adjudicator distinguished the Re Canada Labour Code case, which was a collective claim in relation to a military base and gave rise to a greater risk of harm to the foreign state’s sovereignty.63 Zakhary, by contrast, involved “an individual contract of employment in a purely administrative position.”64 The adjudicator specifically acknowledged and approved the distinction drawn in Re Canada Labour Code between individual and collective claims, noting that in general, an employee should be entitled both to enforce an individual contract in the courts and to bring a complaint to a labour tribunal. This was the first time that a Canadian court or tribunal had applied the analysis of the Supreme Court. Further, the adjudicator in Zakhary said, the reasons for the employee’s dismissal “had nothing to do with national security or any other reason that would draw an inference that a Canadian adjudica- tion body reviewing the termination was interfering in any real way with the USA’s sovereignty.”65 It would seem that clear evidence of such harm is required, for example, that permitting such a claim to proceed would compromise the national security of the foreign state. Since few cases involving low-level employees performing routine duties would present those considerations, immunity should rarely be 61 [2012] CLAD No 94 (QL), 2012 CanLII 15690 (Slotnick). 62 Canada Labour Code, RSC 1985, c L-2, s 240. 63 Supra note 61 at para 31. 64 Ibid. 65 Ibid. 10_Garnett.indd 660 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 661 available. The adjudicator also saw no problem in issuing a remedy of reinstatement,66 which is interesting since, as discussed below, there is some consensus in the practice of other countries that such a remedy should not be imposed on foreign state employers because of its oppressive nature. Yet the fact that the tribunal was willing to so do in Zakhary shows just how far it was prepared to recognize the interests of the employee. The approach taken in Zakhary is certainly the most sympa- thetic to employees so far in the Canadian jurisprudence and is a welcome reminder of the approach and direction intended by the Supreme Court in Re Canada Labour Code. By focusing closely on the duties and functions of the employee, a nuanced and sensible 2015 CanLIIDocs 535 result is reached, one which examines closely whether the claim really does affect a foreign state’s sovereignty as opposed to simply being assumed to do so. As will also be noted below, the adoption of this analysis in Zakhary corresponds closely to the customary inter- national law standard employed by the majority of nation-states on the issue of employee rights and state immunity. The most recent decision in which the issue has been fully con- sidered continues the pro-employee trend. Roy v. South Africa67 con- cerned an employee who had been in the position of assistant consular for immigration at the South African consulate and who complained of wrongful dismissal. The Court noted that the employee was respon- sible for the processing of visa and permit applications, diplomatic protocol, maintenance orders, pension and revenue matters, customs declarations, birth, marriage and death certificate processing, e-mail inquiries and personal interviews. The employee was found to hold “a senior professional position” in the High Commission’s immigration section.68 The reason given for the employee’s dismissal was that immigration and consular services had been consolidated, resulting in a reduction in the number of positions at her level. Again, the Court denied immunity. It noted that while the employee held a sen- ior role, it was not of the same nature in terms of status as the plaintiff 66 Ibid at para 53. 67 2013 ONSC 4633, 230 ACWS (3d) 1024. 68 Ibid at para 48. 10_Garnett.indd 661 15-03-24 10:59 AM 662 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] consul-general in Butcher; in particular, she was not a diplomat or civil servant of the South African government.69 The employee did not participate in the creation of government policy or its administration. She carried out directions [and] . . . was not privy to political deliberations. She could not speak for the government in its decision-making . . . . [H]er role was an administrative and client service driven role.70 Nor were the reasons given for the employee’s dismissal “security based.” Rather, they were simply a result of the consolidation of gov- ernment services — in effect, administrative cost-cutting.71 Again, similar to Zakhary, close attention was paid by the Court to the employee’s duties and role, in particular, to the degree to which she was engaged in sensitive policy matters as the primary 2015 CanLIIDocs 535 criterion for determining whether immunity applied. Even though a workplace is highly sovereign in nature, this fact alone does not exclude judicial review of the foreign state’s conduct. The employ- ee’s interest in securing redress is a powerful consideration that must be given weight. (c) A Comparative Perspective It is important to note, in support of the approach taken in Zakhary and Roy focusing on the employee’s role, that a number of other countries have taken a similar view in the context of embassy and consulate employment disputes. The U.S. legislative history and decisions under the FSIA have already been mentioned. In Australia, an analogous division between types of employees has been created. Section 12(1) of the Foreign States Immunities Act 198572 creates a general presumption of non-immunity in the case of employment contracts where the contract is made in Australia or to be performed there. Section 12(3) however re-imposes immunity where the employee is a national of the foreign state employer and not a resident of Australia. The practical effect of this provision is to exclude almost all actions by members of the civil service of the foreign state, since 69 Ibid at para 56. 70 Ibid at para 61. 71 Ibid at para 56. 72 Foreign States Immunities Act 1985 (Cth). 10_Garnett.indd 662 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 663 the laws of most countries require civil servants to hold the nation- ality of the state which they represent. Section 12(5) of the Act pro- vides that immunity also applies where the employee is (a) a member of the diplomatic staff of a mission as defined in article 1(d) of the Vienna Convention on Diplomatic Relations 1961, or (b) a “consular officer” as defined in the Vienna Convention on Consular Relations 1963. Under section 12(6), immunity is further recognized where (a) the employee is a “member of the administrative and technical staff of a mission” as defined in article 1(f) of the Vienna Convention on Diplomatic Relations 1961, or (b) a “consular employee” as defined in article 1(e) of the Vienna Convention on Consular Relations 1963, unless the member or employee was a permanent resident of Australia 2015 CanLIIDocs 535 at the time the contract was made. An intermediate position to immunity and employment claims is therefore taken by the Australian legislature. Immunity will be granted where the employee is a national of the foreign state (unless he or she is also a permanent resident of Australia), a member of the diplomatic or consular corps, or holds an administrative or technical position in the mission (unless he or she is a permanent resident of Australia). Accordingly, a gardener at the Kuwait Embassy,73 a sec- retary/typist at the Indian Consulate74 and a driver/receptionist at the Libyan Embassy,75 were permitted to sue for damages for wrongful dismissal, as they were all Australian permanent residents.76 Section 29(2) of the Act, however, provides that a court may not order reinstatement of an employee, which means that the remedy in the Zakhary case could not have been given by an Australian tribunal. Note that this is also the position under article 11(2)(c) of the 2004 United Nations Convention on Jurisdictional Immunities of States 73 Robinson v Kuwait Liaison Office (1997), 145 ALR 68, [1997] IRCA 170 (AustLII) (Industrial Relations Court of Australia). 74 Thomas and Consulate General of India, [2002] NSWIR Comm 24 (New South Wales Industrial Relations Commission). 75 Hussein v Libya (10 August 2006), PR973596, online: Australian Industrial Relations Commission 10_Garnett.indd 663 15-03-24 10:59 AM 664 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] and Their Property,77 which is discussed below. Here, therefore, it is the nature of the remedy sought which is determinative of immunity. In France, a series of cases before the country’s highest court, the Cour de Cassation, has allowed claims to proceed against foreign states by a number of low-level embassy workers such as a nurse/sec- retary,78 an assistant in the media section79 and a caretaker,80 for the reason that they had not been charged with “any special responsibility for the performance of the public service of the Embassy.”81 A focus on the role and duties of the employee is therefore again apparent. By contrast, the legislation of some countries, such as the United Kingdom, imposes immunity in respect of claims brought by all dip- 82 lomatic and consular staff, whatever the position held. Nevertheless, 2015 CanLIIDocs 535 it is arguable that this absolute bar on recovery for mission employ- ees is a minority view, at least since the adoption of the United Nations Convention on Jurisdictional Immunities of States and Their Property83 and its application in two recent decisions of the European Court of Human Rights. Article 11(1) of the Convention provides for a general exception to state immunity in a proceeding which relates to a contract of employment, unless under article 11(2) the employee (a) “has been recruited to perform particular functions in the exercise of governmental authority,” (b) the employee is a diplomatic agent or consular officer, (c) “the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individ- ual,” or (d) “the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State.” 77 Supra note 9. 78 Barrandon v USA, 116 ILR 622 (1998). 79 Coco v Argentina, Cass soc, 2 April 1996, (1996) Bull V 136, No 94-40199, 113 ILR 491. 80 Saignie v Embassy of Japan, 113 ILR 492 (1997). 81 Ibid at 493. 82 State Immunity Act 1978 (UK) c 33, s 16(1). The position in New Zealand, Ireland and Germany is similar; see Richard Garnett, “The Precarious Position of Embassy and Consular Employees in the United Kingdom” (2005) 54:3 ICLQ 705 at 713. 83 Supra note 9. 10_Garnett.indd 664 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 665 While initial commentary suggested that the rights of embassy and consular employees were inadequately protected under the Convention,84 recent decisions of the European Court of Human Rights indicate otherwise. In Cudak v. Lithuania,85 the Court declared that the Convention represented customary international law on the subject of state immunity,86 going on to hold that a Lithuanian switch- board operator employed by the Polish Embassy in Lithuania could sue her employer in the Lithuanian courts for wrongful dismissal on the basis that she did not perform “particular functions in the exercise of government authority” under article 11(2)(a) of the Convention.87 The same result was reached in Sabeh El Leil v. France88 in respect of an accountant at the Kuwaiti Embassy in Paris whose employment 2015 CanLIIDocs 535 had been terminated. This employee was held entitled to sue Kuwait for wrongful dismissal in the French courts. It appears, therefore, that the approach in the Canadian cases of Roy and Zakhary, which generally permits recovery by routine work- ers at diplomatic and consular missions, is supported by the arguably prevailing international law position. However, this view rests on only two recent decisions — one by a labour code adjudicator, and the other by a single judge in Ontario. The lack of clarity regarding the current position in Canadian law is underlined by the most recent decision on individual employee claims. Nevertheless, this case was concerned only with the question of whether to grant leave to appeal from a first-instance judgment and therefore has no precedential status. Rawaaj Inc v. Royal Embassy of Saudi Arabia89 involved a plaintiff (Alnasr) who was hired by the Cultural Bureau of the Royal Embassy of Saudi Arabia in Canada to perform work as an academic adviser. Two months after Alnasr was hired, his employment was terminated, when the Cultural Bureau determined that he lacked the skills or attitude required to perform the role.90 The plaintiff sued for breach of contract. Kershman J., the 84 See e.g. Garnett, supra note 82 at 717. 85 [GC], No 15869/02 [2010] III ECHR 153, 51 EHRR 15. 86 Ibid at para 67. 87 Ibid at para 69. 88 [2011] IRLR 781, 54 EHRR 14. 89 2014 ONSC 1473, 119 OR (3d) 193. 90 Ibid at para 7. 10_Garnett.indd 665 15-03-24 10:59 AM 666 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] motions judge, rejected the defendant’s plea of immunity, concluding that the role of an academic adviser “did not touch on the Sovereign Affairs of the State of Saudi Arabia,” and that the dispute between the parties related to commercial activity under section 5 of the SIA.91 The defendant foreign state sought leave to appeal from Kershman J.’s decision, which was granted by Smith J. of the Ontario Superior Court of Justice. Rule 62.02(4) of the Ontario Rules of Civil Procedure provides that leave to appeal shall not be granted from a decision “unless (a), there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it 92 is . . . desirable that leave to appeal be granted.” The Court held 2015 CanLIIDocs 535 that the Re Canada Labour Code and Greco cases, discussed above, were examples of such “conflicting judgments,” as they supported a finding of immunity where determination of the employee’s claim would interfere with the autonomy and sovereignty of the foreign state (which the Court suggested may be the case here). Yet, as noted, courts in more recent decisions such as Roy and Zakhary have focused instead on the duties of the employee in determining whether immun- ity should be granted. It is hoped that the appellate court in Rawaaj will follow this approach, in the interests of avoiding over-protection of foreign states in employment cases. (d) Summation This would be a good place to conclude the discussion of indi- vidual employee suits against foreign states under Canadian law. While some confusion remains, it seems that courts and tribunals have finally reached a balanced and just position which accords with the approach in other countries. Where an employee is engaged in a com- mercial workplace, which is broadly equivalent to that existing in the private sector, then in general there should be no right of the foreign state employer to claim immunity. Similarly, where the employee is working in a highly sovereign location, such as an embassy or a military base, immunity should be accorded only where it is clearly 91 Ibid at para 8. 92 RRO 1990, Reg 194. 10_Garnett.indd 666 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 667 demonstrated that allowing the matter to proceed would cause harm to the state’s sovereignty. If the employee’s duties are routine, low- level and involve no policy function then immunity should rarely be granted, especially where the employee is a Canadian national and resident. However, where the employee occupies a senior position in the government of the foreign state with close involvement in deci- sion-making, and has the nationality of the employer, the argument for immunity is much stronger. As the preceding discussion of the case law demonstrates, the matter must be regarded as uncertain until the Supreme Court has the opportunity to consider it again. 4. COLLECTIVE EMPLOYEE CLAIMS 2015 CanLIIDocs 535 Two very recent disputes before Canadian tribunals have involved collective employee claims against foreign states. Before considering these cases, it is important to return to the Supreme Court decision in Re Canada Labour Code,93 which remains the leading authority on the issue. As mentioned above, the case concerned a military base in Canada controlled by the United States in which a number of Canadian civilians are employed. While the staff were engaged in routine maintenance work, the base itself was a highly sensitive communications installation. In 1987 the Public Service Alliance of Canada filed an application for union certification of the civilian per- sonnel before a labour tribunal, the Canada Labour Relations Board (as it then was). The United States government claimed immunity from jurisdiction, which was granted by a majority of the Supreme Court. The key points for the majority in conferring immunity were the politically sensitive and highly sovereign context of employment, combined with the particular nature of a collective claim, which the Court said was likely to interfere with the sovereignty of the for- eign state employer. The Court noted that under such a collective bargaining scheme, the employer would be powerless to terminate a strike called by employees and the Board would have extensive powers to inquire into aspects of the internal affairs of the base. 93 Supra note 22. 10_Garnett.indd 667 15-03-24 10:59 AM 668 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] In its bid to overcome immunity, the applicant union sought to rely upon the decision of the U.S. Second Circuit Court of Appeals in Goethe House (German Cultural Center) v. National Labor Relations Board.94 Goethe House involved a petition to the U.S. Board for union representation on behalf of non-German employees at a non- profit organisation for cultural, educational and information exchange subsidised by the German government. The U.S. court rejected the foreign state’s request for immunity, holding that the claim by the union did not cover German workers and would not “interfere with Goethe House’s implementation of West German cultural foreign policy.”95 All that was involved in the union’s petition were economic issues — wages, hours and other conditions of employment, and so 2015 CanLIIDocs 535 the cultural mission of the centre would be unaffected. The Supreme Court of Canada in Re Canada Labour Code distinguished Goethe House on the ground that a military base and a cultural centre related to state activities “of a completely different order,” with the base operating “in an environment of secrecy, discipline and security.”96 Consequently, the sovereign nature of the workplace was decisive in the finding of immunity in Re Canada Labour Code. Practice in other countries supports the view that immunity should generally apply in the case of collective claims at sensitive locations. For example, an Italian court had to consider an action by a union, brought on behalf of administrative and clerical workers at a consulate, alleging discrimination against union members.97 The Court held that if such a claim were to proceed, it would be required under Italian labour law to conduct investigations into employment practices of the foreign state and issue mandatory orders with respect to them. The effect would be to interfere substantially in the power of the employer to organize its offices and hence erode its sovereignty, particularly in the context of a consulate. By contrast, an Italian public body was permitted to bring an action on behalf of civilian workers at a foreign state-owned military base for the payment of 94 869 F (2d) 75 (2d Cir 1989). 95 Ibid at 79. 96 Supra note 22 at 87. See also State Bank of India v National Labor Relations Board, 808 F (2d) 526 (7th Cir 1986). 97 Italian Trade Union for Embassy and Consular Staff v United States, 65 ILR 338 (1981). 10_Garnett.indd 668 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 669 social security contributions, since such a dispute did not concern an act made by a foreign state in the exercise of its sovereign powers.98 Given the sovereign nature of the workplace, that case is probably exceptional, although it may possibly be reconciled with Re Canada Labour Code on the basis that the claim was simply one for recovery of money and would not lead to, for example, a review of whether management practices at the base were unjust. Outside the sphere of sovereign workplaces, the Goethe House99 and State Bank of India100 cases show that collective employee actions should generally be per- mitted, as problems of interference with state security are much less likely to be present. The very recent Canadian decisions on collective employee 2015 CanLIIDocs 535 claims and state immunity are consistent with this position. The leading case is a ruling of the Ontario Superior Court of Justice (Divisional Court), in Defense Contract Management Agency – Americas (Canada) v. Public Service Alliance of Canada.101 The DCMA is a branch of the United States government responsible for the administration of U.S. Department of Defense contracts for the procurement in Canada of supplies, services and weapons for the U.S. military. It acts under the authority, direction and control of the U.S. Secretary of Defense. The DCMA employs both U.S. and Canadian military as well as civilian personnel. The Public Service Alliance of Canada filed an application to be certified as the bar- gaining agent for DCMA’s Canadian civilian employees, whose jobs were in such areas as information technology, property management, production surveillance and contract administration. The Ontario Labour Relations Board found the DCMA to not be immune from 98 Catania Court of Appeal, 20 October 2010, extracted in (2011) 47 Rivista di Diritto Internazionale Privato e Processuale 747. 99 Supra note 94. 100 Supra note 96. Immunity was denied by a U.S. court in the context of a collective employee claim against a foreign state-owned bank on the basis that the employer was engaged in commercial activity. More recently, see Islamic Saudi Academy, NLRB No 05-RC-080474 (Decision and Direction of Election), online: http://www.nlrb.gov/case/05-RC-080474?page=1; the U.S. NLRB allowed a collective claim to proceed on behalf of employees at a school established by the Saudi Arabian government in the U.S. 101 2013 ONSC 2005, 362 DLR (4th) 451. 10_Garnett.indd 669 15-03-24 10:59 AM 670 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] its jurisdiction for two reasons.102 First, the DCMA was held to have waived its immunity by submitting to the tribunal’s jurisdiction,103 and second, the action in question involved commercial activity.104 The Ontario Court upheld the DCMA’s challenge to both find- ings. On the issue of waiver, the Court found on the facts that the DCMA had not submitted to Canadian jurisdiction. Regarding the second issue, the Court held that the case was indistinguishable from Re Canada Labour Code. The Board, in rejecting immunity, had focused on the broad purpose of the DCMA’s operations — over- seeing contract administration — and found that to be commercial activity. The Court disagreed with this approach, reasoning that the contracts in question had to be examined in their context. They were 2015 CanLIIDocs 535 not ordinary commercial agreements but arrangements for the sup- ply of weapons and other military material for the U.S. government. Such activity was, in the Court’s view, clearly sovereign in nature,105 as it was “undertaken on behalf of the U.S. government in order to meet military and defence needs and in accordance with American laws and regulations.”106 The Court observed that the operations of DCMA were “structured to facilitate military preparedness in the U.S. which is a sovereign objective.”107 Further, the Court said, just as in Re Canada Labour Code, applying Ontario’s collective bargaining regime to the DCMA would be a clear “interference with sovereign activity” by the U.S.,108 as decisions about employment-related mat- ters would be subject to scrutiny by the Board. The result in the DCMA case seems entirely predictable in light of the decision in Re Canada Labour Code. Both decisions involved highly sensitive workplaces and collective applications on behalf of groups of employees. While in principle all employees should be entitled to union representation, on balance this objective must bow to the need to protect the security interests of the foreign state in cer- tain cases and the concern of the host state in maintaining harmonious 102 2012 CanLII 50147. 103 Ibid at para 61. 104 Ibid at para 74. 105 Supra note 101 at para 62. 106 Ibid at para 63. 107 Ibid at para 65. 108 Ibid at para 63. 10_Garnett.indd 670 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 671 inter-governmental relations. Further, as the Italian cases referred to above show, the approach of the Ontario court in DCMA is con- sistent with the general international law position regarding collective employee claims in sensitive workplaces. The other recent Canadian decision on collective employee actions and state immunity is more contentious and has been the subject of multiple proceedings before labour relations boards and courts. In United Mexican States v. British Columbia Labour Relations Board,109 a Canadian trade union had been certified as col- lective bargaining agent on behalf of Mexican employees who were working in Canada under a joint Canada-Mexico intergovernmental scheme called the Seasonal Agricultural Workers Program (SAWP). 2015 CanLIIDocs 535 The workers were employed by a Canadian company, Sidhu & Sons Nursery Ltd., and a number of the employees brought a decertifica- tion application to remove the union as agent under section 33(2) of the B.C. Labour Relations Code.110 The union responded by bringing a motion alleging an unfair labour practice, namely, that the Mexican government and the employer had engaged in improper interference with the decertification process such that the decertification vote did not reveal the employees’ true wishes. Both the Mexican government and the employer were named as respondents to the proceeding. The matter first came before the British Columbia Labour Relations Board in February 2012 in United Food and Commercial Workers Int’l Union, Local 1518 v. United Mexican States.111 The Board held that Mexico was entitled to state immunity on the basis that its conduct did not fall within the commercial activity exception. It emphasized that Mexico was not an employer in this case but a partner with the Canadian government in an intergovernmental agree- ment. The Mexican government’s role in the SAWP was to nego- tiate and administer the program in conjunction with the Canadian government and to make available a pool of Mexican workers to carry out duties for employers in Canada after assessing the workers’ health, immigration status and general capability. Mexico obtained no remuneration from the SAWP. Hence, the only commercial activity 109 2014 BCSC 54, 7 WWR 584. 110 RSBC 1996, c 244. 111 (2012), 207 CLRBR (2d) 1, 2012 CanLII 3952 (BCLRB). 10_Garnett.indd 671 15-03-24 10:59 AM 672 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] in this case was that conducted by the workers and their Canadian employers.112 The Board therefore rejected the union’s argument that the SAWP was akin to a commercial transaction for the supply of labour.113 Instead, it was more accurately characterized as a diplo- matic arrangement between two governments, in which Mexico used its position as a sovereign state to provide workers for the Canadian agricultural industry. As a result, Mexico was entitled to state immunity and the Board had no remedial power to make any orders against Mexico.114 Yet the Board, in an interesting and important finding, held that while Mexico enjoyed immunity as a party from the proceedings and so could not be directly sued, “facts arising with respect to the 2015 CanLIIDocs 535 actions of Mexico are relevant and important” in determining whether interference with the decertification process occurred.115 The Board therefore accepted that evidence concerning Mexico’s conduct may be admissible in the proceedings against the employer alleging inter- ference with the decertification application. Accordingly, the Board refused to strike out the union’s complaint against the employer. Both determinations by the Board were challenged in subse- quent proceedings. On the question of whether Mexico could be directly sued by the union, the Board in January 2013 refused to reconsider its decision of February 2012, holding again that Mexico’s conduct in reaction to the SAWP was clearly sovereign in nature. Consequently, Mexico could not be joined to the proceedings due to state immunity.116 This conclusion has not been the subject of further proceedings and seems entirely reasonable, given that the SAWP was an agreement between sovereign nation-states. On the second determination, in September 2012 the Board heard an application by Mexico seeking a ruling that the Board had no power to hear evidence concerning its alleged interference with 112 Ibid at para 37. 113 Ibid at para 38. 114 Ibid at para 46. 115 Ibid at para 47. 116 Certain Employees of Sidhu & Sons Nursery Ltd v Certain Employees of Floralia Plant Growers Ltd (2013), 224 CLRBR (2d) 105, 2013 CanLII 2951 (BCLRB). 10_Garnett.indd 672 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 673 the certification process.117 The doctrine of state immunity, it was argued, did not merely prevent a foreign state from being sued before a Canadian court or tribunal; it also operated to prohibit such a body from inquiring at all into the conduct of a foreign government. The Board rejected Mexico’s argument. The relevant legislation, which was not considered in the first Board hearing, was closely examined in this proceeding. Section 33(6) of the Labour Relations Code gives the Board the power to “refuse to cancel the certification of a trade union as a bargaining agent for a unit . . . in any case where . . . (b) the Board considers that because of improper interference by any person a representation vote is unlikely to disclose the true wishes of the 118 employees.” According to the Board, the purpose of this provision 2015 CanLIIDocs 535 is to “ensure decertification applications are not subject to improper interference by any person.”119 The Act therefore allows the Board “to look at the totality of the evidence in determining the effects of actions of both parties and non-parties to an application.”120 According to basic principles of statutory interpretation, Mexico — while not a direct party to the proceeding — nonetheless came within the meaning of “any person” under section 33(6)(b), and so evidence could be admitted concerning its conduct and findings of fact made. As a non-party, however, Mexico was not subject to the Board’s orders. Such a finding was also held not to conflict with the SIA, since the immunity doctrine does not confer “an absolute pro- hibition on courts or administrative tribunals finding facts or coming to conclusions concerning the actions of third party states,” particu- larly “where findings are for the purpose of litigation that does not involve the state.”121 In March 2013 Mexico filed an application for reconsideration of the Board’s September 2012 decision.122 The Board rejected the challenge to its earlier ruling, holding that the immunity doctrine 117 Certain Employees of Sidhu & Sons Nursery Ltd v Sidhu & Sons Nursery Ltd (2012), 219 CLRBR (2d) 64, 2012 CanLII 55976 (BCLRB). 118 RSBC 1996, c 244. 119 Supra note 117 at para 48 [emphasis added]. 120 Ibid. 121 Ibid at para 52. 122 Certain Employees of Sidhu & Sons Nursery Ltd v Sidhu & Sins Nursery Ltd (2013), 224 CLRBR (2d) 132, 2013 CanLII 10985 (BCLRB). 10_Garnett.indd 673 15-03-24 10:59 AM 674 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] applied only where the state was a respondent or defendant to a pro- ceeding. This conclusion flowed from the wording in section 3(1) of the SIA, which speaks of immunity “from the jurisdiction” of the Canadian courts.123 Had Parliament intended to create a wider shield of immunity for foreign states’ conduct, one which would extend to proceedings in which a state’s interests could be affected, broader language would have been used. Most recently, in January 2014, Mexico sought judicial review of the Board’s March 2013 decision in the British Columbia Supreme Court.124 The Court upheld the decision of the Board and in doing so, provided a slightly wider interpretation of the scope of state immunity. The Court initially noted that while the immunity pro- 2015 CanLIIDocs 535 tects a foreign state from legal processes of the host state, it does not entirely exclude the latter’s jurisdiction or law.125 The object of the international law of state immunity, which is codified in the Canadian SIA, “is not to preserve the dignity of foreign states or to prevent their embarrassment in a colloquial sense, but rather to protect for- eign states from domestic proceedings that would . . . interfere with their autonomy in performing their sovereign functions.”126 Hence, the doctrine can apply only in circumstances where the foreign state’s legal interests could be affected by the judgment of the domestic court. This situation will arise where the foreign state is a party to the proceedings, or even where it is not a party, if its property is threatened with seizure. Such a conclusion was held to flow from the expression “immune from the jurisdiction” in section 3(1) of the SIA, which means “authority to adjudicate over the foreign state.”127 Applying these principles in the context of a section 33(6) dec- ertification application, it was perfectly permissible for the Board to make findings regarding the sovereign or public aspects of Mexico’s conduct where Mexico was not a party, no remedy was sought against Mexico, and no claim advanced against any of Mexico’s property, since Mexico’s legal interests would not be affected.128 In the Court’s 123 Supra note 6. 124 Supra note 109. 125 Ibid at para 72. 126 Ibid at para 90. 127 Ibid at para 98. 128 Ibid. 10_Garnett.indd 674 15-03-24 10:59 AM STATE IMMUNITY AND EMPLOYMENT RELATIONS IN CANADA 675 view, to accept Mexico’s argument would place a significant burden “on courts and tribunals to be vigilant about ensuring that no evidence is ever admitted in any case regarding a foreign state’s sovereign or public conduct even though the state’s legal interests were not in issue.”129 In the absence of express language, Parliament should not be presumed to have imposed such a burden on the courts. Therefore, while it may be impermissible for a Canadian court to impose Canadian labour law on a foreign state employer where there is a clear risk of interference with sovereign functions (as in Re Canada Labour Code), “[i]t is quite another thing to ignore conduct of a for- eign state that is relevant to the imposition of Canadian labour law on 130 a Canadian employer.” Further, “a determination by the Board that 2015 CanLIIDocs 535 Mexico’s conduct has legal consequences for Canadian employers and their employees does not interfere with Mexico’s autonomy” or “purport to regulate, change, or interfere with Mexico’s conduct.”131 It merely acknowledges that “Mexico’s conduct can have consequences for others under Canadian law.”132 The judgment of the British Columbia court in the United Mexican States case is likely to be highly significant both within Canada and abroad on the issue of employment rights and state immunity. Consistent with the recent trend in Canadian decisions, the Court was not prepared to accept vague and abstract appeals to sovereignty by foreign states as a basis for applying state immunity, particularly where compelling local interests exist in favour of adjudi- cation. There must be clear evidence that a foreign state’s sovereign functions would be impaired by having its conduct considered in a decertification proceeding. Here, as the Court said, the proceedings involved a Canadian employer and employees working in Canada, and there was a strong public interest in ensuring that a Canadian 129 Ibid at para 99. 130 Ibid at para 133 [emphasis added]. 131 Ibid. 132 Ibid. In the “final decision” on decertification, the Board confirmed that the effect of the British Columbia Supreme Court judgment was that the Board “had no power to make any orders against Mexico to cease and desist from . . . activities now or in the future”; Certain Employees of Sidhu & Sons Nursery Ltd v Sidhu & Sons Nursery Ltd (2014), 241 CLRBR (2d) 1 at para 81, 2014 CanLII 12415 (BCLRB). 10_Garnett.indd 675 15-03-24 10:59 AM 676 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] labour tribunal was able to obtain all the evidence that was necessary to properly adjudicate the matter. To exclude such evidence simply because it happened to emanate from a foreign state, and where the state faced no legal sanction or consequences by its admission, would go too far and weaken the effectiveness of Canadian labour legis- lation.133 Such a view is consistent with the international law rules of state immunity, which do not demand that a foreign state be totally exempted from the operation of the host state’s legal system. 5. CONCLUSION The outcome in United Mexican States also accords with the 2015 CanLIIDocs 535 view of this author that state immunity in employment cases should, in general, be restricted to two specific situations: first, an individ- ual employee action where the employee holds diplomatic, consular, senior civil service or military rank in the foreign state; and second, a collective employee claim against a foreign state employer on behalf of a group of employees working in a highly sensitive location, such as a military base, an embassy or a consulate. Retaining immunity for these exceptional cases will adequately protect foreign states’ legitimate security interests, while ensuring that employees of for- eign states in Canada receive appropriate redress and do not suffer discrimination simply because of their (possibly fortuitous) choice of employer. Canadian courts and tribunals have an opportunity to lead the way on an issue of considerable importance in international labour law, by upholding the rights of employees of foreign states — and limiting state immunity to exceptional cases is an essential step in this process. 133 Of course, where Canadian employment legislation (for example, the Ontario Employment Standards Act, 2000, supra note 30, s 3(3)) expressly does not apply to “an employee of an embassy or consulate of a foreign nation,” then a finding of non-immunity will be of little value to the foreign state employee: Reyes v Embassy of Ecuador, 2006 CanLII 40457 (Ont LRB). 10_Garnett.indd 676 15-03-24 10:59 AM BOOK REVIEW The Unfolding of American Labor Law: Judges, Workers and Public Policy Across Two Political Generations, 1790-1850 Jeffrey Steven Kahana El Paso, Texas: LFB Scholarly Publishing, 2014, 376 pp. Paul Craven* 2015 CanLIIDocs 535 Jeff Kahana has written a thoughtful and intriguing reinterpret- ation of the emergence of a distinctively American employment and labour law in the first sixty years of the republic. He takes on what he characterizes as the “received wisdom” (not so long ago the refresh- ingly new approach) of Christopher Tomlins and others who argued that American jurisprudence after the revolution reimported English employment law principles of domination and subordination to undermine worker democracy and strengthen capitalist accumulation. Kahana argues by contrast that the first generation of jurists repudi- ated the English common law of master and servant, substituting contract for status, while the second (epitomized by Massachusetts chief justice Lemuel Shaw) fashioned a new common law of labour and employment founded in American communitarian experience and a logic of individual responsibility. This golden age of American labour law ended after the Civil War when, Kahana suggests in a brief postscript, what had formerly unfolded rapidly unravelled as the courts abandoned “any analysis of the social consequences of legal decisions and instead resting their opinions on a standard doctrinaire * Paul Craven is an arbitrator and academic who has written widely on Canadian labour and legal history. His most recent book is Petty Justice: Low Law and the Sessions System in Charlotte County, New Brunswick 1785-1867 (Toronto: University of Toronto Press, for the Osgoode Society for Canadian Legal History, 2014). 11_Craven.indd 677 15-03-24 11:03 AM 678 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] footing, [they] became mired in an increasingly complex approach to legal problems”1 in what had become a class-divided society. Although Kahana refers throughout to “labor law,” his argu- ment has two main moments, one having to do with employment law (master and servant) and the other with labour law (associations and conspiracies). These moments roughly coincide with the first and second post-Revolutionary generations, although Shaw’s enunciation of the fellow servant rule in Farwell 2 (1842) falls squarely in the second generation. Kahana’s accounts of both moments are interest- ing and instructive although I did not find them entirely persuasive for three main reasons. The first, and least compelling, is that several of his arguments are rooted in an account of legal culture which seems 2015 CanLIIDocs 535 to me to put the cart before the horse, having more to do with fash- ions in constructing reasons than with the underlying determinants of outcomes. The second is that Kahana’s “common law” is a very slippery and mutable conception: more on this below. The third is that “American Labor Law” turns out to be largely or essentially the law about free white adult male craft workers in Massachusetts and Pennsylvania. While Kahana notes that the Virginian St. George Tucker’s American version of Blackstone’s Commentaries (1803) “reveal[ed] how chattel slavery, not recognized under the common law of England, was the principal source of unfreedom endorsed by early American law — and one that overrode all other forms of servitude,”3 the persistence of black enslavement plays little or no part in his account of the subsequent “unfolding.” This also tends to undermine Kahana’s notion of a distinctly American common law of employment, because while in England the common law was made by extending royal sovereignty over local jurisdictions, in America 1 Jeffrey Steven Kahana, The Unfolding of American Labor Law: Judges, Workers and Public Policy Across Two Political Generations, 1790-1850 (El Paso, Texas: LFB Scholarly Publishing, 2014) at 313. 2 Farwell v Boston and Worcester Railroad, 45 Mass (4 Met) 49 (1842), in which a locomotive engineer sued his employer for damages suffered in an industrial accident resulting from the negligence of a switch operator. The court held that the employer was not liable to the plaintiff for damages caused by a fellow employee. 3 Kahana, supra note 1 at 46. 11_Craven.indd 678 15-03-24 11:03 AM THE UNFOLDING OF AMERICAN LABOR LAW 679 southern dependence on slavery fostered states’ rights and frustrated the development and hegemony of a federal law common to all of them. Kahana acknowledges that the Jeffersonian alternative to com- mon law — codification — was rejected despite having vocal adher- ents well into the second generation, but he does not explain why the majority of American jurists and legislators continued to prefer the common law model. The first moment emphasizes how American jurists of the late eighteenth century repudiated the status distinctions in the English common law of master and servant, celebrating instead a contractual model of free employment. Kahana is very good at identifying the rhetoric of American exceptionalism in this period, which after all 2015 CanLIIDocs 535 began with hard-fought-for independence from Britain and ended in another round of warfare between the two nations. There can be little doubt, on his showing, that American jurists, legislators, treatise-writers and newspaper editors spilled endless volumes of ink proclaiming the superiority of American free employment over the corrupt and hierarchical English system. What is less clear, however, is the accuracy of their depiction (which in places becomes Kahana’s depiction as well) of the law of master and servant in England at the relevant time. At best, the American notion of English common law seems to have been frozen at Blackstone. Kahana recites and seems to accept the idea that English masters were entitled to whip their adult servants; the reality by the time of the Revolution was that such mistreatment afforded grounds for release from employ- ment. Similarly, he seems to follow the contemporary American commentators in the belief that in England wages were fixed judi- cially, while in fact wage-setting under the Elizabethan Statute of Artificers had largely lapsed well before 1776.4 Moreover, the shift from status to contract was not a peculiarly American development. As Orth writes of English employment law, “[w]hen wage-setting by the justices of the peace faltered and Parliament proved unable to manage the minutiae of economic regulation, a new legal mechanism 4 See generally Douglas Hay, “England, 1562-1875: The Law and Its Uses” in Douglas Hay & Paul Craven, eds, Masters, Servants, and Magistrates in Britain & the Empire, 1562-1955 (Chapel Hill: University of North Carolina Press, 2004) 59-116. 11_Craven.indd 679 15-03-24 11:03 AM 680 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] for determining wages and hours was required: contract was chosen by default.”5 Pace Kahana, English “common law” did not award specific performance of employment contracts, although penal master and servant legislation certainly had much the same effect on workers who fell within its grasp, to whom magistrates would offer a choice between returning to work immediately or after a term in jail. As this example suggests, Kahana’s idea of what constituted the English common law of employment conflates judicial pro- nouncements with statutory provisions. The difficulty is that with the exception of the Elizabethan statute, the English acts postdated the founding of the thirteen colonies and so had not been part of American law even in the colonial period. Most of the colonies had 2015 CanLIIDocs 535 enacted master and servant legislation (and, in the south, master and slave legislation) but these acts did not mirror the English statutes and in many cases applied only to apprentices and indentured servants on written contracts of long duration.6 Nor was the Elizabethan statute widely received in law or in practice. My point is that the rhetoric about repudiating the English law of master and servant in the early Republic did not require a substantive change in the law of employ- ment in America. Republican law about white employment did not incorporate the statute-based penal provisions of English master and servant law, but neither had the law of the American colonies. The law about master and slave in the new republic was harsher by far than English master and servant law, and largely congruent with its colonial antecedents. A neat illustration of this is the employment law of the Loyalist colonies, Upper Canada and New Brunswick, both of them created 5 John V Orth, “Contract and the Common Law” in Harry N Scheiber, ed, The State and Freedom of Contract (Stanford: Stanford University Press, 1998) at 62, and see (at 60) Orth’s reference to the Shaw judgments to show that “in both countries, the rethinking of labor in terms of contract, the invention (so to speak) of the contract of employment, seemed to solve many problems.” 6 Christopher Tomlins, “Early British America, 1585-183: Freedom Bound” in Hay & Craven, supra note 4, 117-152. 11_Craven.indd 680 15-03-24 11:03 AM THE UNFOLDING OF AMERICAN LABOR LAW 681 to absorb the influx of refugees from American republicanism.7 In Upper Canada the English statutes were considered inapplicable to the state of the colony as soon as the question was raised in the courts. A penal local enactment was adopted in 1847 but sparsely used except for wage recovery by workers and to attack trade union organ- izing efforts: the penal provisions were repealed in 1877. In New Brunswick there is no evidence that any English employment statutes were received and the domestic penal legislation (1826) applied only to indenture and to seamen. So independence from Britain was not a necessary condition for rejecting English penal employment law either in principle or in practice. Moreover, English common law was not frozen at Blackstone. 2015 CanLIIDocs 535 As Douglas Hay has shown, English employment law became harsher both in its provisions and its enforcement after the turn of the nine- teenth century than it had been when America gained independence, for socioeconomic reasons comparable to those that resulted in the unravelling of Kahana’s American golden age after the Civil War.8 The fiercer English approach rested in part on new master and servant statutes (and to a lesser degree on the combination acts), but also on more meticulous judicial efforts to force the employment relationship into a contractual mould. Much of this was directed at combating trade unionism. Both the master and servant acts and English legal intolerance of trade unionism came to their legislated ends in the late 1860s and early 1870s, precisely the period of American law’s new 7 Paul Craven, “The Law of Master and Servant in Mid-Nineteenth-Century Ontario” in David H Flaherty, ed, Essays in the History of Canadian Law I (Toronto: University of Toronto Press, for the Osgoode Society, 1981) 175- 211; Jeremy Webber, “Labour and the Law” in Paul Craven, ed, Labouring Lives: Work and Workers in Nineteeth-Century Ontario (Toronto: University of Toronto Press, for the Ontario Historical Studies Series, 1995) 105-203; Paul Craven, “‘The Modern Spirit of the Law’: Blake, Mowat and the Breaches of Contract Act, 1877” in Blaine Baker & Jim Phillips, eds, Essays in the History of Canadian Law VIII (Toronto: University of Toronto Press, for the Osgoode Society, 1999) 142-170; Paul Craven, “Canada, 1670-1935: Symbolic and Instrumental Enforcement in Loyalist North America” in Hay & Craven, supra note 4, 175-218; and see Claire Mummé, “‘That Indispensable Figment of the Legal Mind’: The Contract of Employment at Common Law in Ontario, 1890- 1979,” Ph.D. dissertation, York University, Toronto, 2013, chap 1. 8 See supra note 4. 11_Craven.indd 681 15-03-24 11:03 AM 682 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] onslaught on labour. My point is that a more sophisticated account of the shifting relationship between English and American employment law would have to plot their divergences and convergences against trends in their respective political economies. Kahana’s second moment has to do with the legitimacy of workers’ combinations in restraint of trade. His account focuses on first-generation “closed shop” disputes in Philadelphia (1806), New York (1809) and Pittsburgh (1815) and Shaw’s second-generation appellate decision in Hunt 9 (1842). Kahana maintains that the English common law crime of conspiracy focused on subversion and sedi- tion while in first-generation America the tendency to paranoia about associational activity led the courts to ask whether associational rules 2015 CanLIIDocs 535 usurped popular sovereignty. This was also at the core of the trial at first instance in Hunt but on appeal Shaw held that where neither the objects of the association nor the means it adopted to pursue them were unlawful there was no conspiracy. Shaw reached this conclusion from the proposition that associations were not per se illegal and could in fact be beneficial to the community generally. This determin- ation had limited effect because it was premised on the assumption that there was no contractual obligation either between the employer and the unionized workers who threatened to withdraw their labour if he did not dismiss a non-member, or between the employer and the worker complained of. From a labour law perspective, Hunt meant that under employment at will (or the “minute contract”) it was not unlawful for workers to threaten to quit their jobs in a collective pro- test against an employer’s breach of their association’s domestic rules (or actually to do so), so long as their purpose was to protect their own conditions of employment rather than to harm the employer. Kahana’s efforts to distinguish the underlying reasoning of both the first- and second-generation American conspiracy decisions from the English “common law” come into question for reasons sim- ilar to those already discussed in the master and servant context. As some of the commentators he quotes recognized, the English law of trade union conspiracy rested substantially on the provisions of 9 45 Mass (4 Met) 111 (1842), in which an employee who was not a member of a trade union attempted unsuccessfully to prosecute his unionized fellow employ- ees for requiring his employer to dismiss him in accordance with their closed shop rule. See further discussion below. 11_Craven.indd 682 15-03-24 11:03 AM THE UNFOLDING OF AMERICAN LABOR LAW 683 the combination acts (which were enacted, repealed and re-enacted between 1799 and 1825). While it is true that the acts of 1799 and 1800 were at least partly motivated by fears of Jacobin sedition and a general strike for political change, the 1825 act was much more directly an attack on trade unionism and collective bargaining as being in restraint of trade. Elsewhere I have argued that in Loyalist Upper Canada (Canada West, Ontario) workers’ combinations were only successfully prosecuted when they employed unlawful means to pursue their lawful objectives.10 The English combination acts were passed after the creation of the colony and were not received into its law, although it continued to be bound by English common law. Once again, independence from Britain was not a necessary condition for 2015 CanLIIDocs 535 a common law treatment of worker associations very similar if not identical (justificatory rhetoric aside) to that pronounced in repub- lican America. The biggest fly in Kahana’s ointment, though, is Shaw’s expli- cation and endorsement of the fellow servant rule in the famous occu- pational injury case of Farwell v. Boston and Worcester Railroad.11 Kahana recognizes the universal opprobrium heaped upon this deci- sion by generations of labour and employment law scholars and he goes so far as to acknowledge that Shaw might have misunderstood the railway workplace. Nevertheless, he argues at length (and with two full chapters of advance legal-cultural preparation) for a reading that emphasizes Shaw’s overriding concern for public and worker safety in a “symbiotic system of social organization and interaction [that] was designed to promote progress while securing the safety of the public”12 and so “addressed issues of governance and public con- cerns,” looking “beyond the specific rights and duties of employers and employees in order to raise a general standard of social respons- ibility.”13 Judicial biography and intent aside, however, the fellow servant rule, along with the doctrines of contributory negligence and 10 Paul Craven, “Workers’ Conspiracies in Toronto, 1854-72” (Fall 1984) 14 Labour/Le Travail 49-70. For a dissenting view, Eric Tucker, “‘That Indefinite Area of Toleration’: Criminal Conspiracy and Trade Unions in Ontario, 1837- 77” (Spring 1991) 27 Labour/Le Travail 15-54. 11 Supra note 2. 12 Kahana, supra note 1 at 309. 13 Ibid at 310. 11_Craven.indd 683 15-03-24 11:03 AM 684 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] voluntary assumption of risk that are also at least implied by Shaw’s decision, required injured workers to bear the full burden of occu- pational hazards, not only in America, but in Britain and Canada as well. Although Shaw did not rely entirely on the recent (and equally novel) decision in the English case of Priestly v. Fowler 14 (1837), which was argued at some length before him, his appreciation of the employment relationship in Farwell was as facetious and flawed as Lord Abinger’s there, and despite the differences in their reasoning (if Abinger can be said to have reasoned) the ultimate outcome was the same. Kahana makes an interesting and quite persuasive case for Shaw’s goodwill and good faith in Farwell but there remains a large gap between explaining the motivation and justifying the result. 2015 CanLIIDocs 535 This is very much a book about the interaction of law and ideol- ogy, and in that respect it succeeds quite well. At various points, however, where justificatory rhetoric is reified into legal-historical fact, the argument falters. That it suited some American jurists and commentators to present a demonized view of English common law is important in itself, but it is unsafe to rely on that view for com- parative or evaluative purposes. The Unfolding of American Labor Law is well worth reading for its largely internal account of chan- ges in American habits of legal reasoning loosely coupled to broad- brush depictions of social and cultural change and for its interesting intellectual biography of Lemuel Shaw. Readers will have to look elsewhere for a history of American employment and labour law that is rooted in the workplace and the broader political economy, or for a comparative history that fairly assesses the similarities and differences in the development of labour law in America and other common law jurisdictions. 14 3 Meeson & Welsby 1 (Ex 1837), and see Michael Ashley Stein, “Priestly v. Fowler (1837) and the Emerging Tort of Negligence” (2003) 44:3 BCL Rev 689-731. Lord Abinger denied Priestly damages against his employer for injuries occasioned by the collapse of an overloaded cart because to grant the claim would empower domestic servants to sue their masters for uncomfortable beds or unpalatable meals. 11_Craven.indd 684 15-03-24 11:03 AM BOOK REVIEW Young Man with a Red Tie: A Memoir of Mandela and the Failed Revolution, 1960-1963 Bob Hepple Johannesburg: Jacana Media, 2013, 199 pp. Michael Lynk* 2015 CanLIIDocs 535 Sir Bob Hepple is one of the pre-eminent labour law scholars in the world today. A former Master of Clare College at the University of Cambridge, a Fellow of the British Academy, and a chair of the Industrial Tribunals as well as of the Commission on Racial Equality in Great Britain, Hepple was knighted for his contributions to British and international law in 2004. These contributions include a ground-breaking book on racial discrimination at work (1968),1 an influential report on the need for a new legal framework for equality rights in Britain (2000),2 a major comparative study on the making of labour laws in Europe (1986),3 and the drafting of a labour code for the newly independent Namibia in the early 1990s. Among Canadian labour lawyers and legal academics, Hepple is probably best known for his Labour Laws and Global Trade (2005),4 a seminal investi- gation into the detrimental challenges posed by globalization to the world of work, and the need to think beyond national regulation to * Associate Professor, Faculty of Law, Western University, London, Ontario. 1 Bob Hepple, Race, Jobs and the Law in Britain, 2d ed (Harmondsworth, UK: Penguin Books, 1970). 2 Bob Hepple, Mary Coussey & Tufyal Choudhury, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart, 2000). 3 Bob Hepple, ed, The Making of Labour Law in Europe: A Comparative Study of Nine Countries up to 1945 (London: Mansell, 1986; reprint edition: Oxford: Hart, 2010). 4 Bob Hepple, Labour Laws and Global Trade (Oxford: Hart, 2005). 12_Lynk.indd 685 15-03-24 11:04 AM 686 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] protect and enhance working conditions in both the developed and developing worlds. But before Hepple’s illustrious intellectual career in Britain — which now spans 50 years — he was a young activist lawyer in his native South Africa during the early 1960s. During this period, he was a legal advisor to Nelson Mandela, legal counsel to the insurgent trade union movement, a member of the outer circles of the revolu- tionary leadership struggling against apartheid, a political prisoner and, ultimately, a political exile. Hepple’s recently published memoir of this period — Young Man with a Red Tie — is an absorbing chron- icle of his formative years during a particularly tumultuous time in South Africa’s history. After describing his own upbringing in a polit- 2015 CanLIIDocs 535 ically-active home in Johannesburg, Young Man with a Red Tie turns its focus towards the momentous period between the Sharpeville mas- sacre in March 1960, when South African police killed 69 unarmed demonstrators, and the aftermath of the infamous police raid on the Rivonia farm in July 1963 that resulted in the arrest of a number of the leading members of the African National Congress and the South African Communist Party, including Hepple. The backstory to Hepple’s many contributions to labour law was forged in this harsh era, when the political and legal structures of apartheid hardened, and social justice was both absent and urgently needed. Tony Benn, the erudite British Labour politician and writer, once observed that no significant social rights movement in history has ever achieved success without first enduring a string of failures and defeats. These defeats are indeed necessary, he argued, because they teach activists patience, adaptability and the importance of political alliances in the face of entrenched repression, all of which decisively shape the political culture of the new society. This same lesson runs throughout Young Man with a Red Tie. The South African government was both brutal and effective in its counter-insurgency campaigns during the early 1960s, and it politically decapitated much of the anti-apartheid leadership through assassinations, imprisonment, exile and co-optation. The activists themselves made many mistakes, the biggest of which was the premature resort to violence in the early 1960s when they were neither capable of inflicting decisive blows against the apartheid government nor able even to protect themselves effectively. Yet, as Hepple writes, although the revolution failed in those years, “it was the spark that lit the fire which destroyed white 12_Lynk.indd 686 15-03-24 11:04 AM A MEMOIR OF MANDELA AND THE FAILED REVOLUTION 687 supremacy and brought democracy and human rights to South Africa 40 years later.”5 Hepple’s personal memories of Nelson Mandela from this per- iod are rich in description: a smart dresser and an exuberant dancer, a superb political organizer, a stiff speaker, an optimistic realist and, above all, a natural leader with a steady temperament who saw far. Hepple first met Mandela in December 1960, when Mandela was being tried for treason, from which charge he would be acquitted a few months later. Soon after his release, Mandela went underground. When Hepple and Mandela travelled together to secret political meet- ings in Johannesburg, Mandela dressed as a chauffeur and Hepple sat in the back of the car, to dampen suspicion. In 1962, Mandela 2015 CanLIIDocs 535 was arrested by the South African police and charged with inciting political strikes by black workers, as well as with travelling outside of South Africa without a valid passport. Hepple acted as his legal advisor during the ensuing trial, which Mandela used as a political platform to oppose white supremacy. At trial’s end, Mandela was convicted and sentenced to a five-year prison term (the Rivonia Trial and his famous speech from the dock would still be two years in the future); Hepple and the Black Pimpernel (as Mandela was known) hugged each other as Mandela was led away by the court guards. They would see each other briefly the following year in the jail where both had been imprisoned on sabotage and treason charges, and then not again for 30 years. First as a law lecturer at Witwatersrand University and then as a young lawyer, Hepple while still in his twenties acquired a solid reputation in Johannesburg and beyond for his legal judgment and his anti-apartheid advocacy. Among the more prominent files in his legal practice by the early 1960s was the representation of trade unions. The South African Congress of Trade Unions (SACTU), the country’s only multi-racial trade union federation at the time, was declared a banned organization in 1960 by the South African government. Hepple was given sweeping powers by the SACTU executive to keep the organ- ization alive as its leaders were being arrested, banned or forced into exile. In Young Man with a Red Tie, he recounts how his time at the 5 Bob Hepple, Young Man with a Red Tie (Johannesburg: Jacana Media, 2013) at xxiv. 12_Lynk.indd 687 15-03-24 11:04 AM 688 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] SACTU offices was spent counselling long lines of trade union mem- bers on their financial and legal challenges, while the organization struggled to stay afloat in the face of the rapidly shrinking democratic space. As state repression tightened around his SACTU work, Hepple took to sleeping away from home to avoid surveillance and arrest. Reflecting back on the long struggle for political rights in South Africa, he writes that vibrant trade unions and civil organizations, along with an independent judiciary and a free press, are three of the essential features of any modern democratic society, a truth not men- tioned often enough in our modern age of growing social inequality. In July 1963, Hepple attended a clandestine meeting of senior anti-apartheid revolutionaries at the Rivonia farm, on the outskirts 2015 CanLIIDocs 535 of Johannesburg. The farm had been used as a safe house during the early 1960s by the African National Congress and its military wing. (Today, it is a prominent anti-apartheid museum.) Ironically, Hepple was at the meeting to advise the revolutionaries on South Africa’s recently enacted 90-day detention law. Partway through the meeting, the police, acting on a tip, raided the farm and arrested the militants, among them Hepple. They were detained under the 90-day law, which permitted the government to imprison anyone without trial, judicial review or access to lawyers who was suspected of sabotage or involvement in a banned organization. At the end of the 90-day per- iod, detainees could be re-arrested, and effectively held indefinitely, all with the blessing of the South African courts. Detainees under the law lost all of the traditional criminal law protections: they could be compelled to give evidence against their spouses, solicitor-client privileges were suspended, confessions without legal advice were admissible, and those who were tortured could not complain about their treatment to the courts. As Hepple writes: “The supine attitude of the courts to this legislation was one of the most disgraceful and revealing features of the police state.”6 With Hepple’s arrest, the drama in Young Man with a Red Tie rises. While detained under the 90-day law, the South African pros- ecutor explored the idea of charging Hepple with sabotage, which carried the possibility of the death penalty. Under South African law, the presumption of innocence on a sabotage charge was reversed: the defendant had to establish that the commission of the act of 6 Ibid at 85. 12_Lynk.indd 688 15-03-24 11:04 AM A MEMOIR OF MANDELA AND THE FAILED REVOLUTION 689 sabotage was not calculated or intended to bring about social or eco- nomic change in the country. Hepple was kept in prison for more than three months, which included periods of solitary confinement and lengthy interrogation sessions over several days with no sleep. With Mandela’s agreement, Hepple eventually gave a constrained statement to the prosecutor, and was released in late October 1963. However, the prosecutor announced that he planned to call Hepple as a state witness against the other revolutionaries, a role that Hepple had no intention of fulfilling. A few weeks later, with the help of the ANC, Hepple and his wife were clandestinely smuggled out of South Africa, and made their way first to Dar es Salaam and then to London. Hepple’s comrades, including Mandela, would all be convicted 2015 CanLIIDocs 535 of sabotage and treason the following year during the infamous Rivonia trial. They were spared the noose, but received life senten- ces. The apartheid government subsequently declared Hepple to be a banned person, meaning among other things that he could not be quoted or mentioned in South Africa. (One delicious irony of this ban was that his former law professor had to seek the permission of the South African minister of justice in order to quote from a law review article that Hepple had published in 1961 on the law of negotiable instruments.) The ban on Hepple was lifted only in 1990, at the same time as Mandela was released from prison. During Hepple’s first visit back to South Africa, in July 1990, he spoke at a labour law confer- ence in Durban on the role of trade unions in a democratic society. He subsequently acted as an advisor during the drafting of South Africa’s new labour code in 1995, the completion of a virtuous circle that began with his SACTU work almost four decades previously. Mandela’s release and the end of apartheid in South Africa inspired the great Irish poet and Noble Laureate Seamus Heaney to write: History says, don’t hope On this side of the grave. But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme.7 7 Seamus Heaney, The Cure at Troy: A Version of Sophocles’ Philoctetes (London: Faber and Faber, 1990). 12_Lynk.indd 689 15-03-24 11:04 AM 690 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] One of the rhyming moments for Bob Hepple came when Mandela spoke to a gathering of South African expatriates in London during his state visit to Britain in 1996. Mandela disabused the audience of the notion that black South Africans had won, or that white South Africans had lost. “We have made a great historical compromise. No one has won. We have agreed to live together in a democratic state in which the rights of all our people, white and black, are pro- tected.” For Hepple, human rights — including equality rights in the workplace and democratic trade unionism — were indispensable in the long battle against apartheid, and remain essential tools today in the ceaseless fight against the abuse of power, “a struggle in which 8 human rights activists and lawyers have a vital role.” 2015 CanLIIDocs 535 8 Hepple, supra note 5 at 167. 12_Lynk.indd 690 15-03-24 11:04 AM