Federal Court Decisions

Date: 20030513

Docket: T-2228-01

Ottawa, Ontario, May 13, 2003

PRESENT: THE HONOURABLE MR. JUSTICE PINARD

Between:

DIANE L'ECUYER

Plaintiff

- and -

AÉROPORTS DE MONTRÉAL

Defendant

ORDER

The application pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, is dismissed.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20030513

Docket: T-2228-01

Citation: 2003 FCT 573

Between:

DIANE L'ECUYER

Plaintiff

- and -

AÉROPORTS DE MONTRÉAL

Defendant

REASONS FOR ORDER

PINARD J.

[1]                 This is an application made pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("the Act"), following a decision by the federal Privacy Commissioner ("the Commissioner"), on November 5, 2001, in which he concluded that the defendant had not complied with s. 4.3 of Schedule I and s. 5(3) of the Act regarding disclosure of personal information on the plaintiff to third parties.

Facts

[2]                 The plaintiff is the former duty manager of the Dorval International Airport and is currently supervisor, reception and information, at Dorval Airport. She filed a complaint of professional harassment and abuse of power against Normand Boivin, vice-president, operations, on March 24, 2000.

[3]                 On January 23, 2001, the plaintiff sent the defendant, her employer, five requests for access to personal information. These requests concerned two complaints which had been filed against her with the employer as the result of an incident occurring in October 1999, and two disciplinary letters she received as the result of an incident in December 1999.

[4]                 On February 8, 2001, the human resources director, Joanne Bergeron, responded to the requests by refusing to disclose the information requested, in view of the disputes existing between the defendant and the plaintiff. Her letter indicated that she was sending a copy of her reply to Guylaine Bourbeau and Denise Bélanger, the union representatives, and to Réal Michelin, labour relations coordinator. In her applications for access the plaintiff did not include copies to these individuals.

[5]                 On February 12, 2001, the plaintiff filed a two-part complaint with the Office of the federal Privacy Commissioner: one for refusing access to information and the other for disclosing personal information about her to three other individuals.

[6]                 In his investigation report dated November 5, 2001, the Commissioner found that the second part of the complaint was valid regarding the disclosure of the plaintiff's personal information to union representatives, but there was no basis for the complaint in the use and disclosure of the information to the labour relations coordinator.

[7]                 The plaintiff sought compensation and an order against the defendant requiring it to correct its practices so as to comply with s. 4.3 of Schedule I and s. 5(3) of the Act, as well as an order regarding publication of a notice of any action taken or proposed to be taken to correct its practices.

Legislation

[8]                 The relevant provisions of the Act are the following:

Commissioner's report

[9]                 The following passage from the Commissioner's report in question is worth setting out:

[TRANSLATION]

                As regards the copy given to the labour relations coordinator, I feel it was appropriate for him to be informed of the decision by Aéroports de Montréal not to release to you the information requested, since he was involved in processing your applications for access. I have concluded that this use and disclosure of your personal information without your consent complies with the requirements of s. 4.5 of the Schedule I of the Act.

                Would a reasonable person find the use and disclosure appropriate (s. 5(3) of the Act)? I think so, in Mr. Michelin's case, because of his position in the organization. However, I do not think so in the case of the union representatives, for the simple reason that your applications for access did not include copies to those individuals. You could in the meantime have decided to employ a lawyer and given up on the union. If so, in disclosing its reply to the union the organization would have disclosed information about you to persons who were no longer involved in your affairs.

Arguments

[10]            The plaintiff, who represented herself, simply submitted that based on the factual situation, the Commissioner's report and s. 14 of the Act, she was entitled to compensation which, at the hearing in this Court, she limited to an order by the Court requiring the defendant to correct its practices so as to comply with s. 4.3 of Schedule I and s. 5(3) of the Act and to publish a notice of any action taken or proposed to be taken to correct its practices.

[11]            For its part the defendant submitted, first, that this Court had no jurisdiction to decide the case, which was exclusively a matter for the grievance adjudicator under the Canada Labour Code, R.S.C. 1985, c. L-2 ("the Code"); secondly, it contended that, in view of the plaintiff's consent to disclosure of the information in question to the union and also in view of the provisions of the Code, it had not contravened the Act.

Analysis

[12]            I consider that the plaintiff's application should be dismissed for the following two reasons, each sufficient in itself:

1.         neither the Commissioner nor this Court has jurisdiction to decide the plaintiff's complaint; and

2.         in any event, in view of the evidence the complaint is without basis.

[13]            First, on the question of jurisdiction the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, noted the jurisdiction of the grievance arbitrator, appointed pursuant to the applicable collective agreement and the Code, over all aspects of a dispute arising under that collective agreement, to the exclusion of any tribunal, including this Court. In that case McLachlin J. said the following:

[67]         I conclude that the mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal.

[14]            It is true that two concurrent legislative schemes may exist, but following the model set out by the Supreme Court of Canada in Weber, supra, only one tribunal has jurisdiction to hear the dispute. The models of concomitant or overlapping jurisdiction have been rejected in favour of exclusive jurisdiction which applies, inter alia, to all administrative tribunals, provided the Act empowers them to hear the matter and grant the remedies claimed. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, the Supreme Court of Canada concluded:

[26]         . . . the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature.

[15]            It can be seen from Weber, supra and Regina, supra, that to determine whether the dispute is exclusively within the jurisdiction of a grievance arbitrator, it must be decided whether the gist of the dispute arises from the collective agreement expressly or by implication. Courts must thus attempt to define the gist of the dispute, considering first its nature and then the scope of the collective agreement. The nature of the dispute is to be looked at not in light of the classification of the dispute from a legal standpoint, but in terms of the factual situation giving rise to the dispute. Once the nature of the dispute has been determined, the Court must consider the provisions of the collective agreement to determine whether it covers factual situations of the same kind.

[16]            All these principles have recently been restated by the Supreme Court of Canada in two cases, Goudie v. Ottawa (City), 2003 SCC 14, [2003] S.C.J. No. 12 (QL), and Éditions Chouette (1987) Inc. v. Desputeaux, 2003 SCC 17, [2003] S.C.J. No. 15 (QL).

[17]            In Goudie Binnie J. wrote:

[22]         The principle that disputes arising under a collective agreement should be resolved by arbitrators, not courts, is based on legislative intent. In St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, Estey J. laid down the general principles at pp. 718-719:

The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned such tasks.

[23]         Subsequent cases have confirmed that if the dispute between the parties in its "essential character" arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator appointed in accordance with the collective agreement, and not by the courts. See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 41 and 52, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 23 and 25.

[18]            In Éditions Chouette LeBel J., for his part, said the following:

[35]         Despite the unfortunate uncertainties that remain as to the procedure followed in defining the terms of reference for the arbitration, they necessarily included the problem referred to as "co-authorship" in the context of this case. In order to understand the scope of the arbitrator's mandate, a purely textual analysis of the communications between the parties is not sufficient. The arbitrator's mandate must be interpreted restrictively by limiting it to what is expressly set out in the arbitration agreement. The mandate also includes everything that is closely connected with that agreement, or, in other words, questions which have [TRANSLATION] "a connection with the question to be disposed of by the arbitrators with the dispute submitted to them" (S. Thuilleaux, L'arbitrage commercial au Québec : droit interne - droit international privé (1991), at p. 115). Since the 1986 arbitration reforms, the scope of arbitration agreements has been interpreted liberally (N. N. Antaki, Le règlement amiable des litiges (1998), at p. 103; Guns N'Roses Missouri Storm Inc. v. Productions Musicales Donald K. Donald Inc., [1994] R.J.Q. 1183 (C.A.), pp. 1185-1186, per Rothman J.A.). [...]

[42]         The purpose of enacting a provision like s. 37 of the Copyright Act is to define the jurisdiction ratione materiae of the courts over a matter. It is not intended to exclude arbitration. It merely identifies the tribunal which, within the judicial system, will have jurisdiction to hear cases involving a particular subject matter. It cannot be assumed to exclude arbitrary jurisdiction unless it expressly so states. Arbitral jurisdiction is now part of the justice system of Quebec, and subject to the arrangements made by Quebec pursuant to its constitutional powers.

[19]            In the case at bar the plaintiff is complaining of an infringement by her employer of her right to protection of the personal information disclosed to her union representatives. However, the information sought all dealt with facts relating to the plaintiff's work for the defendant, a federal undertaking subject to the Code. Further, early in 2001 the plaintiff also filed some six grievances against the defendant under the applicable collective agreement and the Code.

[20]            It is clear here that the gist of the dispute arises from the interpretation, application, administration or failure to implement the same applicable collective agreement. Clause 3 of that agreement provides for recognition of the union as exclusive spokesperson on the working conditions of its members. Clause 1.01 of the agreement covers relations between the employer, the employees and the union. Clause 2.01(g) defines a grievance as [TRANSLATION] "any differences regarding the interpretation, application and alleged contravention of the collective agreement". Clauses 11 et seq. determine the procedure applicable to grievances, and clause 11.18(a) gives the grievance arbitrator the power to interpret and apply legislation where necessary in order to decide a grievance. Finally, clauses 17.03 and 17.04 of the collective agreement expressly provide for control of information in an employee's personal file in the case of disciplinary measures.

[21]            As the gist of this dispute arises from the collective agreement, both s. 57 of the Code and clause 11 of the collective agreement provide for the submission of any grievance to an arbitration board:

57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.		57. (1) Est obligatoire dans la convention collective la présence d'une clause prévoyant le mode - par arbitrage ou toute autre voie - de règlement définitif, sans arrêt de travail, des désaccords qui pourraient survenir entre les parties ou les employés qu'elle régit, quant à son interprétation, son application ou sa prétendue violation.

(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement (a) to an arbitrator selected by the parties; or (b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.		(2) En l'absence de cette clause, tout désaccord entre les parties à la convention collective est, malgré toute disposition de la convention collective, obligatoirement soumis par elles, pour règlement définitif : a) soit à un arbitre de leur choix; b) soit, en cas d'impossibilité d'entente sur ce choix et sur demande écrite de nomination présentée par l'une ou l'autre partie au ministre, à l'arbitre que désigne celui-ci, après enquête, s'il le juge nécessaire.

(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).		(3) Lorsque la convention prévoit, comme mécanisme de règlement, le renvoi à un conseil d'arbitrage, tout désaccord est, malgré toute disposition de la convention collective, obligatoirement soumis à un arbitre conformément aux alinéas (2)a) et b) dans les cas où l'une ou l'autre des parties omet de désigner son représentant au conseil.
(4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairperson, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or arbitration board chairperson, as the case may be.		(4) Lorsque la convention collective prévoit le règlement définitif des désaccords par le renvoi à un arbitre ou un conseil d'arbitrage et que les parties ne peuvent s'entendre sur le choix d'un arbitre - ou dans le cas de leurs représentants au conseil d'arbitrage, sur le choix d'un président -, l'une ou l'autre des parties - ou un représentant - peut, malgré toute disposition de la convention collective, demander par écrit au ministre de nommer un arbitre ou un président, selon le cas.
(5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairperson, as the case may be.		(5) Le ministre procède à la nomination demandée aux termes du paragraphe (4), après enquête, s'il le juge nécessaire.
(6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairperson shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.		(6) L'arbitre ou le président nommé ou choisi en vertu des paragraphes (2), (3) ou (5) est réputé, pour l'application de la présente partie, avoir été nommé aux termes de la convention collective.

[22]            Accordingly, the nature of the dispute between the parties and the scope of the applicable collective agreement lead the Court to conclude that the grievance arbitrator appointed under the Code and the collective agreement has exclusive jurisdiction ratione materiae to decide the dispute in question, to the exclusion of the federal Privacy Commissioner and also of this Court, before which the dispute has come as a result of the latter's report.

[23]            As I indicated earlier, this exclusive jurisdiction of the arbitrator in itself justifies dismissal of the application at bar.

[24]            In any case, I find the plaintiff's application to be without merit for the following reasons.

[25]            First, the plaintiff consented, at least by implication, to disclosure of the letter of February 8, 2001, to the union representatives. The Act does not define the consent to which it refers, but it appears to depend directly on the sensitivity of the personal information concerned (s. 5(3) of the Act and ss. 4.3.5 and 4.3.6 of Schedule I of the Act). In the case at bar the plaintiff admitted that her applications for access to information on January 23, 2001, only restated the verbal requests made on December 15, 2000, at the meeting which was also attended by Guylaine Bourbeau and Denise Bélanger. Further, Guylaine Bourbeau, who assisted the plaintiff throughout her litigation, informed the defendant in a letter dated March 24, 2000, that:

[TRANSLATION]

. . . any documentation or disclosure relating to the complaint should be sent to me directly, since I am the person authorized by the local to represent Ms. L'Ecuyer throughout the proceedings.

[26]            A copy of this letter was sent to the plaintiff and to Denise Bélanger, president of the union local. The plaintiff admitted during the examination on her affidavit that the union, represented by Ms. Bourbeau and Ms. Bélanger, was aware of the entire dispute. In the context of collective labour relations it can reasonably be expected that correspondence between the employer and the unionized employee will also be sent to the latter's union. Finally, it is clear that the letter of February 8, 2001, did not contain any sensitive personal information within the meaning of the Act, the disclosure of which would require express consent by the plaintiff.

[27]            Second, the defendant has a duty to disclose its reply to the access to information request to the union, both under the Code and in view of the factual situation. In clause 3.01(a) and (b) the collective agreement in the case at bar adopts the rule set out in s. 36(1) of the Code, namely that the bargaining agent operates as the exclusive spokesperson for its members on working conditions. Direct communication with its members by an employer, without going through the bargaining agent, could constitute an unfair practice within the meaning of s. 94(1) of the Code. Accordingly, the employer cannot, without risking an infringement of both the Code's provisions of public order and the negotiated provisions of the collective agreement, communicate directly with an employee in a dispute without having recourse to the latter's union. That is especially important in the case at bar, since the situation was a very highly charged one in which the plaintiff had filed a host of actions, complaints and remedies against the employer. Additionally, s. 7(3)(i) of the Act allows personal information to be disclosed without the plaintiff's consent when such disclosure is "required by law".

Conclusion

[28]            Consequently, the application filed pursuant to s. 14 of the Act is dismissed. No costs will be awarded, as the defendant did not request any.

OTTAWA, ONTARIO

May 13, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:                                                                               T-2228-01

STYLE OF CAUSE:                                                     DIANE L'ECUYER v. AÉROPORTS DE MONTRÉAL

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  April 9, 2003

REASONS FOR ORDER BY:                                    Pinard J.

DATED:                                                                           May 13, 2003

APPEARANCES:

Diane L'Ecuyer                                                                 FOR HERSELF

Lukasz Granosik                                                                FOR THE DEFENDANT

SOLICITORS OF RECORD:

Diane L'Ecuyer                                                                 FOR HERSELF

Verdun, Quebec

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario