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Privacy and employment

Author(s): Kristian Brabander, Robert Carson, Tommy Gelbman, Jessica Harding, Craig Lockwood, Julien Morissette

Aug 9, 2023

Security Concept

Table of contents

Hébert c. Syndicat de professionnelles et professionnels du Gouvernement du Québec, 2022 QCCAI 300

Read more about the case: Hébert c. Syndicat de professionnelles et professionnels du Gouvernement du Québec, 2022 QCCAI 300


The applicant, an employee of the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation (MAPAQ), claimed to have been the victim of psychological harassment from her managers and colleagues. She filed a complaint for psychological harassment and a grievance against her employer. The Syndicat de professionnelles et professionels du gouvernement du Québec (SPPGQ) represented the applicant in her grievance. An investigator was appointed to investigate the complaint and prepare a report. The applicant applied to the SPPGQ to obtain access to this report as well as to any other reports or documents related to her grievance. Access was denied to 10 documents. The applicant also sought to have her identity anonymized in this decision, given the sensitive nature of the information contained therein.


The CAI overturned the MAPAQ’s decision in part. Section 13 of the Act respecting the protection of personal information in the private sector states that personal information may be disclosed to third parties only to the extent that the individual consents to its disclosure. Some documents filed as part of the analysis of the applicant’s grievance contained communications between various MAPAQ employees. The name of the plaintiff did not appear in any of these communications and the plaintiff was not copied on the mailings. The documents contained facts, opinions or perceptions of third parties with respect to certain events or matters in the course of their work, which the CAI found constitute personal information about third parties. In the absence of the concerned third parties’ consent, the personal information could not be disclosed.

Key Takeaway

Opinions expressed by one person about another regarding his or her skills, opinions, choices or work practices constitute personal information both to the person expressing them and to the person who is the subject of the opinions. Such information may therefore not be disclosed, except with the consent of the concerned third party. For organizations holding this type of information, it may be advisable to identify subjective assessments as such and separate them from factual compilations or strictly objective records of personal information.


Advanced Upstream Ltd., Re, 2023 CarswellAlta 630

Read more about the case: Advanced Upstream Ltd., Re, 2023 CarswellAlta 630


The complainant was a former employee of Advanced Upstream Ltd. Their employment agreement included a non-solicitation clause that survived for 12 months after the employment ended. Advanced Upstream heard that the complainant had been providing services to a competitor and sent a letter through lawyers to the competitor. The letter informed the competitor of the possibility that the complainant may be in breach of their restrictive covenants. After receiving the letter, the competitor informed Advanced Upstream that it had engaged in discussions with the complainant, but had decided not to hire the complainant. The complainant found out that the letter had been sent, and filed a complaint alleging that Advanced Upstream had disclosed his personal information. Advanced Upstream later reported an unauthorized breach of PIPA, but continued to dispute that the disclosure violated their privacy rights.


The Commission first found that the letter did contain personal information in the form of the complainant’s name, the fact that he was employed by Advanced Upstream in a particular position, his address, his signature and a disclosure letter which listed his non-profit and charitable activities, other business activities, ownership interests in other entities and his marital status along with his partner’s first name. The Commission then found that the complainant had consented to the disclosure of his personal information through an article in his employment agreement which granted consent for the disclosure of employee’s personal information for the ongoing operations of the corporation. The Commission lastly considered whether the disclosure was reasonable as required by Section 19 of PIPA and found that the purpose of disclosure was reasonable in the corporation seeking to avoid a breach of an employment agreement, but the scope of disclosure was not, specifically with respect to disclosing the complainant’s address, marital status, name of his spouse, signature and conflicts of interest.

Key Takeaway

Organizations handling personal information can reach out to competitors to protect their non-solicit and non-compete interests, but in doing so, they should ensure that personal information included in materials that aren’t necessary to protect these interests are redacted or otherwise not disclosed.


Direct Energy Regulated Services, Re, 2023 CarswellAlta 629

Read more about the case: Direct Energy Regulated Services, Re, 2023 CarswellAlta 629


Under a Premise Vacancy Agreement (PVA), the owner of a property (the complainant) was required to provide contact information to an energy services company (the organization). Sixteen years after the property was sold, the organization contacted the complainant. The complainant complained that the organization did not comply with section 35 of PIPA (retention and destruction of information).


The organization complied with PIPA because the information was exempt pursuant to section 4(3)(d) of the Act. Given that section 4(3)(d) exempts the collection, use and disclosure of personal information, it must, at least to some extent, exempt the retention of that information. In the broader sense of obtaining energy services from the organization, the complainant's business responsibilities relative to the organization ended when the property was sold, however the requirement that the complainant contact the organization in order to terminate the PVA endured.

Key Takeaway

Section 4(3)(d) of PIPA exempts the retention of business contact information, so long as that information is retained for the purposes stated in that section: to enable an individual to be contacted in relation to the individual’s business responsibilities, and for no other purpose.


Saskatchewan Health Authority, Re, 2023 CarswellSask 44

Read more about the case: Saskatchewan Health Authority, Re, 2023 CarswellSask 44,


An employee filed a grievance after their employer, the Saskatchewan Health Authority, posted a notice on a whiteboard stating that the employee was on medical leave. The employee argued that this disclosure of their personal health information violated their privacy rights.


The Office of the Saskatchewan Information and Privacy Commissioner agreed with the employee and found that the employer had breached its duty to protect the employee's personal health information. It found that privacy breaches occurred when the manager shared the employee's personal health information with office administrative staff, when the office administrative staff recorded the employee's personal health information on the attendance white board and when staff viewed the employee's personal health information on the white board.

Key Takeaway

This case emphasizes the importance of maintaining confidentiality in medical information, as well as the need for employers to have clear policies and procedures in place to ensure the protection of such information. It also highlights the significance of privacy rights and the importance of employers taking adequate steps to safeguard personal health information in the workplace.


Livingston v Saskatchewan Human Rights Commission, 2022 SKCA 127

Read more about the case: Livingston v Saskatchewan Human Rights Commission, 2022 SKCA 127


The appellant appealed a chambers decision striking his action on the grounds of lack of jurisdiction and abuse of process. The original statement of claim concerned breach of privacy in an employment human rights issue. The appellant and his union submitted that the workplace, the Saskatchewan Human Rights Commission, breached his privacy and their duty of procedural fairness when they inquired about and disclosed his employment issue with his co-workers.


The Court of Appeal dismissed the appeal and held that the chambers judge did not err in finding that the essential issue related to employment and was thus the jurisdiction of an arbitrator as stipulated in the workplace collective agreement. Specifically, the essential nature of the appellant’s claim for breach of privacy arose from employment. The Court stated that such human rights issues are contemplated and incorporated in collective bargaining agreements. The Court also cited the Supreme Court of Canada’s judgments in Weber v. Ontario Hydro and Northern Regional Health Authority v. Horrocks which held that courts of inherent jurisdiction cannot entertain issues that relate to a collective agreement, subject to residual discretionary jurisdiction.

Key Takeaway

Privacy issues that arise from employment concerns are subject to limitations in jurisdiction dictated by collective bargaining agreements.

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