Administrative law – Decisions of administrative tribunals – Labour and employment boards – Labour law – Collective agreements – Freedom of information and protection of privacy – Disclosure of records – Public bodies – Charter of Rights and Freedoms – Judicial review – Standard of review – Reasonableness simpliciter – Costs
Bernard v. Canada (Attorney General),  S.C.J. No. 13, 2014 SCC 13, Supreme Court of Canada, February 7, 2014, LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
The appellant, Ms. Bernard, is an employee in the federal public service (the “Employer”). The Attorney General of Canada is the named Respondent on behalf of the Employer.
In 1992, Ms. Bernard made a complaint to the Office of the Privacy Commissioner (the “OIPC”) because her employer was giving her home address to the union representing her bargaining unit. The OIPC was critical of this practice and the union discontinued the practice. In 1995, Ms. Bernard changed jobs within the Employer, and she then became represented by the Union (the Professional Institute of the Public Service of Canada). She did not become a member of the Union but the Union has exclusive bargaining rights for Ms. Bernard and the employees who are members of the Union.
In 2005, there were amendments to the Public Service Labour Relations Act, which significantly expanded the Union’s representational obligations. The Union then asked the Employer to provide home contact information for its employees. The Employer refused and, in September 2007, the Union made complaints to the Labour Relations Board (the “Board”) alleging that the failure to provide the information was improperly interfering with the Union’s representational duties.
The Board concluded that the failure to provide at least some contact information was an improper interference. In considering remedy, the Board asked several questions to allow it to consider the privacy issues inherent in disclosing this information. The Union and the Employer reached an agreement about the terms of disclosing information and then in October 2008 advised the bargaining unit members of the decision. Ms. Bernard responded to that notice.
Ms. Bernard sought judicial review of the Board’s decision. She argued (a) the Board’s order required the Employer to breach her privacy rights, (b) the Board must defer to the earlier OIPC decision, (c) she should have been given notice of the Board proceedings, and (d) the Board’s order violated her Charter right not to associate with a union.
The Federal Court of Appeal (FCA) noted the Board’s initial decision did not specify how much information was to be disclosed by the Employer to the Union. The FCA remitted the matter to the Board with a direction to consider the Privacy Act rather than adopting the agreement reached by the Union and the Employer.
At the reconsideration hearing of the Board, the OIPC said its earlier decision was not binding on the Board. The Board considered the privacy interests and found that work contact information would be insufficient for the Union’s purposes. The Board decided the previous consent order was generally appropriate but it added two additional safeguards for providing home contact information to the Union. The Board did not consider Ms. Bernard’s Charter argument.
Ms. Bernard again sought judicial review before the FCA. The FCA concluded the standard of review was reasonable and the decision was reasonable.
Ms. Bernard appealed to the Supreme Court of Canada (SCC).
The majority decision of the SCC was written by Justices Abella and Cromwell. The majority held the Board’s decision was reasonable and dismissed the appeal without costs.
Ms. Bernard also argued the reconsideration decision of the Board should have considered her Charter argument and the second FCA decision therefore erred in dismissing her application for review. The majority held that, even if the FCA erred in this regard, Ms. Bernard’s Charter arguments were bound to fail.
The dissenting judgment of Justices Rothstein and Moldaver (dissenting only in part) was written by Justice Rothstein. The dissent held the Board possessed the authority and duty to address Ms. Bernard’s Charter arguments.
The Respondents argued that the SCC should not consider the Charter arguments even if the SCC held that the Board erred in law. The dissent disagreed with that argument and did consider the Charter arguments. The dissent rejected the Charter arguments of Ms. Bernard.
The dissent would have allowed the appeal only to overturn the FCA’s order of costs against her. In all other respects, the dissent would have dismissed the appeal.
The appeal was dismissed without costs, per the majority decision.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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