Effective Bargaining Strategy Impaired by Privacy Protections: SCC

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, the Supreme Court unanimously declared Alberta's Personal Information Protection Act invalid on the basis that it violates s.2(b) of the Charter and cannot be justified under s. 1. The case arose when the union took photos of individuals crossing its picket line during a strike and those individuals complained that this contravened their privacy rights. The court found that:  

PIPA imposes restrictions on a union's ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government's objective of providing individuals with control over personal information that they expose by crossing a picketline (para.37).

Given PIPA's comprehensive and integrated structure, the court declined to pick and choose among various possible amendments that would make it constitutionally compliant. It suspended the declaration of invalidity for a period of 12 months, however, to give the legislature time to decide how best to make the legislation constitutional. Manitoba (see The Personal Information Protection and Identity Theft Prevention Act, not yet in force), and other jurisdictions with similar privacy legislation, will no doubt introduce amendments as well. These articles discuss the decision in more detail:  

• SCC Declares Alberta's Personal Information Protection Act Unconstitutional, Affirms Freedom of Expression in Labour Context, The Court;

•  Alberta's Personal Information Protection Act Violates Charter, Slaw.

Forced Leave of Absence a Constructive Dismissal: MBCA

An employer who unilaterally "forced" a leave of absence on a long-standing senior employee whose deteriorating eyesight was making his sales job difficult breached their employment contract according to the Court of Appeal in Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd., 2013 MBCA 93. The trial judge erred in not considering whether the plaintiff had been constructively dismissed, said the court, which went on to confirm that the plaintiff was entitled to damages of $346,111.04 for the wrongful dismissal.

Law Partner Age Discrimination Case to be Heard Next Month  

The Supreme Court of Canada will hear the appeal in Michael McCormick v. Fasken Martineau Dumoulin LLP, the BC decision in which the Court of Appeal held that a law partnership should not be treated as the employer of a partner for purposes of human rights legislation, on December 13, 2013. The Supreme Court will decide an issue of relevance to law firms and other professional partnerships: whether mandatory retirement of equity partners offends provincial human rights age discrimination laws.  Information about the case is available on the SCC website, including a case summary and the factums of the appellant partner, the respondent law firm, and the many interveners. The ABlawg post, Supreme Court of Canada May Finally Clear up Issue of "Employment" in Human Rights Cases, and this article from The Court, discuss the case in more detail.

Update on Legislation

Bill 211, The Personal Information Protection and Identity Theft Prevention Act, received royal assent on September 13, 2013 and will come into force on proclamation. This Bill governs the collection, use, disclosure and destruction of personal information by organizations in the private sector and requires those organizations to notify individuals who may be affected when that personal information is lost, stolen or compromised. This McCarthy TÈtrault LLP article discusses the "momentous" new legislation: Manitoba Joins The Ranks Of Other Provinces In Enacting Its Own Private Sector Privacy Legislation.

Recommended Reading

Davis LLP has posted new papers on its website that examine the current law on two topical employment law issues:  

The November 2013 edition of Perspectives, the CBA Labour and Employment Law section newsletter, focuses on the intersection of social media and labour and employment law. Articles explore recent developments in cyber-bullying legislation, online harassment, employee screening, terminations and discipline, and use and ownership of LinkedIn information and Twitter accounts. And, for a discussion on how the context of a social media transgression will affect the punishment, see the Legal Feeds post Arbitrator suspends teacher for 3 days over Facebook post, concerning a recent Ontario arbitration.

DSM-5 leaves employers bracing for disability claims≠ - this Lawyers Weekly article comments on how the addition of several new mental disorders in the latest psychiatric diagnostic manual may result in increased disability claims by employees. Caffeine and cannabis withdrawal and hoarding disorder are included in the new list.  

B.C. OIPC Adjudicator Applies Recent Decision on Employer Monitoring of Corporate Vehicle Use in Two Related Cases - this Davis LLP post discusses two Information and Privacy office cases out of BC which provide guidance for employers using GPS data collection systems to monitor or track employees in offsite locations.

Mandatory CPD Compliance Options: LSM

December is a busy month for program planners at the Law Society as lawyers search for opportunities to meet their mcpd obligations. In addition to offering programs on Strategic Legal Writing (December 6, pm only), Advanced Storytelling and Presentation Skills (December 13, all day), and Working with Immigrants and Newcomers to Canada (December 16, lunch program), the Law Society has scheduled several dvd replays of past popular programs. They include Powerful Witness Preparation (December 9), Evidence for Trial Lawyers (December 16), and Revisiting Younger's 10 Commandments: Classic Rules for Cross-Examination (December 17).

Leadership Skills Series: Tools, Techniques and Strategies

The Law Society has developed a series of continuing professional development sessions designed to help lawyers become leaders. The next session in the series, Resilience and Embracing Change, focuses on change management. It is designed to help lawyers manage the people side of change and support themselves and their staff through transitions. It takes place February 7, 2014, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will also host upcoming sessions in the series: Generational Diversity: Maximize Performance Throughout Your Organization (March 14, 2014), and Presenting With Confidence (May 29, 2014). Register for more than one session and save money.

2013 MBA Mid-Winter Meeting

Mark your calendars for the Manitoba Bar Association's Mid-Winter Meeting, to be held January 23-25, 2014, at the Fairmont Hotel. A cpd session on Accommodation and Privacy Issues will be of particular interest to labour and employment lawyers.