Ms. Bernard is a public service employee working in a position for which Professional Institute for the Public Service of Canada (“PIPSC”) is the exclusive certified bargaining agent. Though Ms. Bernard has chosen not to be member of PIPSC, she is entitled to the benefits of the collective agreement and representation by PIPSC and she is required to pay union dues.
Ms. Bernard took issue with a 2008 Order of the Public Service Labour Relations Board (“PSLRB”) allowing for the provision of employees’ home contact information by the employer to the union, on the basis that it violated her privacy rights. Ms. Bernard sought judicial review of that first order at the Federal Court of Appeal (“FCA”). The FCA concluded that the PSLRB should have considered the application of the Privacy Act to the disclosure of home contact information under the PSLRA and remitted the matter back to the PSLRB. Ms. Bernard and the Office of the Privacy Commissioner were granted intervener status at the new hearing.
At the redetermination hearing, Ms. Bernard made additional arguments, related to the Charter. She argued that the provision of her home contact information violated her s. 2(d) freedom not to associate and her right to be free from illegal search and seizure under s. 8 of the Charter. The PSLRB ultimately added two privacy-enhancing features to the original order, but it did not address Ms. Bernard’s Charter arguments.
Ms. Bernard sought judicial review of that decision. The Federal Court of Appeal concluded that the PSLRB’S decision was reasonable and dismissed the appeal. Ms. Bernard then sought leave to appeal to the Supreme Court of Canada.
Ms. Bernard’s appeal was dismissed. There was a partial dissent on the very narrow issue of whether it was reasonable for the PSLRB not to address Ms. Bernard’s Charter arguments. Ultimately, though, the Court was unanimous in concluding that her freedom of association was not engaged by the provision of her home contact information to the union by the employer; and that s. 8 of the Charter had no application in this case.
The Court concluded that Ms. Bernard’s privacy rights were not violated, since the provision of home contact information by the employer to the union is a use consistent with the purpose for which that information was collected by the employer. That type of consistent use falls within the parameters of what is allowable pursuant to the Privacy Act. The Court was of the view that the bargaining agent, as the exclusive representative of all employees within its bargaining unit – even those Rand Formula members – requires this information in order to fulfill its representational duties pursuant to the PSLRA. It further explained that the union could not rely solely on workplace communications to carry out its duties.
Finally, on the privacy aspect, the Court noted that the employer was required to share information that was crucial to the union’s ability to carry out its representational duty so that the union and employer can be on an equal footing with respect to information relevant to the collective bargaining relationship.
Freedom of association
The Court dismissed Ms. Bernard’s freedom of association argument very summarily, stating: “[it] has no legal foundation”. The Court upheld its reasoning in its landmark 1991 decision in Lavigne, to the effect that s. 2d) “does not provide protection from all forms of involuntary association and was not intended to protect against association with others that is a necessary and inevitable part of membership in modern democratic community.”
Illegal Search and Seizure
The Court dismissed Ms. Bernard’s argument that the employer’s actions violated her s. 8 Charter right to be free from illegal search and seizure. The Court found that Ms. Bernard could not be said to have had a reasonable expectation of privacy in these circumstances, given the nature of the relationship between the employer and the union in this context.