HomeMy WebLinkAbout1991-2111.Policy.93-04-20 · ONTARIO EMPLO¥,~S DE LA COURONNE
G~OW~V EMPLOYEES DEL'ONTARiO
GRIEVANCE C,OMMiSSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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2111/91
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
'BETWEEN
CUPE (Policy Grievance)
Gr~evor
- and -
The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
BEFORE: H. Finley Vice-Chairperson W. Rannachan Member
D. Montrose Member
FOR TH~ B. Toop
GRIEVOR National Representative'
Canadian Union of Public Employees
FOR THE P. Young
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING September 21, 1992
GSB 2ill/91
D E C~ I SION
The parties have asked the Board to render a decision
with respect to Article 2.18, Grievance Documentation, of their
Collective Agreement (October '1, 1990 - September 30, 1991), in
the context of the Freedom of Information and Protection of
Privacy Act, 1987. The article relates to the provision by the
Employer to the Union of "selection documents" at the outset of
the grievance procedure. Since the article is restricted to
posted positions, only bargaining unit members are involved.
The Union states that ideally, it would have the Employer
provide the following information which was requested by the
Chief Steward in a letter of May 14, 1991:
- Application forms and letters requesting
interview for the griever [si__~ and
successful candidates.
- Resumes for griever and successful
candidates.
- Matrix scores for each interviewer relating
the scores granted for each question in each
category for the griever and successful
candidates.
- Interview notes and summaries for each
Interviewer on the griever and successful
candidates.
- Pertinent personnel file documentation from
griever and. successful candidate, .where that
information has, in any way, influenced or
may have influenced the selection process.
Indication of the date and time the griever
and successful candidates were interviewed.
- Indicate as to who interviewed each of the
successful candidates and 9riever (if
different).
- Indication of status of successful candidate
re: permanent, temporary, non-bargaining,
external applicant, et~.
~OTE:
Where the successful candidate has greater seniority
than the griever, and/or is a bargaining unit priority
placement employee entitled, as per Article 5.01 (a) of
the Collective Agreement, only the name of the
successful candidate need be provided.
The Employer agrees to provide the following information
with respect to the grievor and the successful candidate at the
first applicable step of the grievance procedure:
(A] 1. Matrix scores
2. Interview notes and summaries..
3. Dates and times of interviews.
4. Names of interviewers.
5. Employment status of successful, applicant.
The information which the Employer maintains it cannot provide,
because of the Freedom of Information and Protection of Privacy
Act, 1987, without the consent of the individual consists of
(B) 1. Application form and letters of the
successful candidate.
2. Resumes of the successful candidate.
3. Pertinent Personnel file information of
the successful candidate.
Prior to January 1, 1988, the Employer provided all eight items
on request, but since that time it has provided the "B" items
only in response to a subpoena. It has not, however, demanded
an order of the Grievance Settlement Board.
The Union requests a declaration of specific information
the Employer is required to supply to the Union under Article
2.18 during the grievance procedure in the context of this
statute. The Employer frames the issue in te~ms of timing, that
is, at what point in the processing of a grievance should the
material listed in (B) be provided, post-subpoena, as the
Employer would have it, or at the outset, as the Union Would have
it. It was agreed that it was not necessary to call evidence and
therefore, following opening statements, the parties moved
directly to argument.
3
Several articles of the Collective Agreement are relevant to
this issue and its context.
Job promotion is addressed in Article 5.05:
5.05 Role of Seniority in Promotions and Transfers
Both parties recognize:
(a) The principle of promotion within the service
of the Employer.
(b) That job opportunity shall increase in
proportion to length of service,
(c) That the primary considerations in filling a
vacancy are qualifications and ability to
perform the required duties in a competent
manner.
(e) Therefore, in making staff changes, transfers
or promotions, where qualifications and
ability are relatively equal, seniority shall
be the determining factor.
The articles respecting the job-posting grievance procedure read
as follows:
2.12 Job Posting Grievance Procedure
Where a grievance arises as a result of the
job posting procedure in Article 5, such
grievance shall 'be filed at Step 2 with the
Branch/Regional Director, or his designate,
of the department of the position vacancy
that was posted. The Branch/Regional
Director or his designee shall hold a meeting
within ten (10) days of the. receipt of the
grievance and shall give the grievor his
decision in writing within seven (7) days of
the meeting.
At least one week prior to the meetinq, the
Employer will provide the Union with the
selection documents for the successful
candidate and the grievor.
[Emphasis added]
The Employer shall pay fifty percent (50%) of
the cost of the grievor's travel,
accommodation and meal expenses to attend the
grievance meeting if held outside the
grievor's work location.
4
2.13 Representative of the National Union
At the request of either party, a
representative of the National Union may be
present and represent the grievor at Step No.
3 of the grievance procedure.
2.14 In this Article, days shall .include all days
exclusive of Saturdays, Sundays and
designated holidays.
2.15 The time limits contained in this Article may
be extended by agreement of the parties in
w~iting.
2.16. The Grievance Settlement Board shall have no
jurisdiction to alter, change, amend or
enlarge any provision o~ the Collective
Agreement.
2.17 In any grievance, where a Union Steward
the Canadian Union of Public Empl.oyees, Local
1750 is not involved from Step No. 1, the
interests of the Union shall not be adversely
af£ected in any future grievances dealing
with the-same or similar matters.
2.18 Grievance Documentation
i) Where a grievance arises out of the
selection process of a posted
positionz the Employer will ~)rovide
the Union with the selection
documents for the successful
candidate and the grievor at the
first applicable steD ~ the
qr ievance procedure.
(ii) Upon request o~ the employee, a
cody of the Derformance review,
disciDlinary letters and
educational achievements will be
provided to the employee whe. n such
matters relate to a grievance.
{Emphasis added ~
The parties agree that the wording of Article 2.18 has not
changed since the promulgation of the Freedom of Information and
.Protection of Privacy Act, 1987, although its number has changed
(2.16 to 2.18). It is also not in dispute that prior to the
promulgation of the Freedom of Information and Protection of
Privacv Act, 1987, the "selection documents" which the ~mployer
p~ovided were those listed in sections 'A' and 'B' at page 2 of
this decision.
Certain sections of the Freedom of Information and
Protection o~ ?rivacy Act, 1987 are relevant to the issua itself
and to the context.
1. The purposes of this Act are,
(a) to provide a ~ight of access to
information under the control of
institutions in accordance with
principles that,
(i) information should be available to the public
~Ii) necessary e×emptions from
the r ight of access
should be limited and
specific, and
(iii) d e c i s i o n s o n t h e
disclosure of government
information should be
reviewed independently of
government; and
(b) t o pr o te c t the pr iva cy of
individuals with respect to
personal information about
themselves held by institutions and
to provide individuals with a right
of access to that information.
An "institution" is defined as follows under the Ac___[t:
(a) a ministry of the Government of
Ontario, and
(c) any agency, board, commission,
corporat.i on or other body
6
designated as an institution in the
regulations; ("institUtion")
Regulation 516/90, Item 239 designates the Workers' Compensation
Board as an "institution" and the "Chairman of the Board" as the
"head" of that institution. This regulation also sets out the
administrative responsibilities of the "head". Under Section 62
(1),
A head may in writing delegate a power or duty
granted or vested in the head to an officer or officers
of the institution subject to such limitations,
restrictions, conditions and requirements as the head
may set out in the delegation.
"Personal information" is defined in the Freedom of
Information and Protection of'Privacy Act, 1987 as follows:
... recorded information about an identifiable
individual, including,
(a) information relating to the'race, national or
ethnic origin, colour, religion, age, sex,
sexual orientation or marital or family
status of the individual,
(b) information relating to the education or the
medical, psychiatric, psychological, criminal
or employment history of the individual or
information relating to financial
transactions in which the individual has been
involved,
(c) any identifying number, symbol or other
particular assigned to the individual,
{d) the address, telephone number, fingerprints
or blood type of the individual,
(e) the personal opinions or views of the
individual except where they relate to
another individual,
(f) correspondence sent to an institution by the
individual that is implicitly or explicitly
of a private or confidential nature, and
replies to that correspondence that would
reveal the contents of the original
correspondence,
(g) the views or opinions of another individual
about the individual, and
(h) the individual's name where it a~pears with
other Dersoqal information relatinq to the
individual or where the disclosure of the
name would reveal other persona] information
about the individual;
[Emphases added]
Section 10 provides a right of access to records as follows:
10.-(1) Every person has a sight of access to a
record or a part of a record in the custody or
under the control of an institution unless the
record or the part of the record falls within one
of the exemptions under sections 12 to 22.
(2) Where an institution receives .a reques't for
access to a record that contains .information that
falls within one of the exemptions under sections
12 to 22, the head shall disclose as much of the
record as can reasonably be severed without
disclosing the information that falls under one of
the exemptions. 1987, c.25, s.10.
Section 11 sets out circumstances under which the head of an
institution is obliged to disclose any record, while' further
sections detail circumstances under which a head "may" or "shall"
re~use to disclose a record. Section 21 sets out circumstances
which apply to "personal privacy", the scope of disclosure, the
criteria respecting invasion of privacy, and it outlines under
what circumstances a disclosure o~ personal information does and
does not constitute an unjustified invasion of personal privacy:
21.-(1) A head shall refuse to disclose personal
information to any person other than-the
individual to whom the information relates except,
(a) upon the prior written request or consent of
the individual, if the record is one to which
the individual is entitled to have access:
(b) in compelling circumstances affecting .the
health or safety, of an individual, if upon
disclosure notification thereof is mailed to
the last known address of the individual to
whom the information relates;
personal information collected and ma~ntaine~
specifically for the purpose of creating a
8
record available to the general public;
(d) under an Act of Ontario or Canada that
expressly authorizes the disclosure;
(e) for a research purpose if,
(i)the disclosure is consistent with the
conditions or reasonable expectations of
disclosure under which the personal
information was provided, collected or
obtained.
(ii)the research purpose for which the
disclosure is to be made cannot be
reasonably accomplished unless the
information is provided in individually
identifiable form, and
(iii)the person who is to receive the record has
agreed to comply with the conditions relating
to security and confidentiality prescribed by
the regulations; or
(f) if the disclosure does not constitute an
unjustified invasion of personal privacy.
1987, c. 25, s.21(1); 1989, c. 64, s.
(2) A head, in determining whether a disclosure of
personal information constitutes an unjustified
invasion of personal privacy, shall consider all the
relevant circumstances, including whether,
(a) the disclosure is desirable for the purpose
of subjecting the activities of the
Government of Ontario and its agencies to
public scrutiny;
(b) access to the personal information may
promote public health and safety;
(c) access to the personal information will
promote informed choice in the purchase of
goods and services;
(d) the personal information is relevant 'to a
fair determination of rights affecting the
person who made the re~uest~
(e) the individual to whom the information
relates will be exposed unfairly to pecuniary
or other harm;
9
the personal information is' highly sensitive;
(g) the personal information is unlikely to be
accurate or reliable;
Ih) the personal information has been suQplied by
'the individual to whom the information
relates in confidence: and
(i) the disclosure may unfairly damage the
reputation of any person referred to in the
.record.
(3) A disclosure of personal information is presumed
to constitute an unjustified invasion of personal
privacy where the personal information,
(a) relates to a medical, psychiatric or
psychological history, diagnosis, condition,
treatment or evaluation;
(b) was Compiled and is identifiable as part of
an investigation into a possible violation of
law, except, to the extent that disclosure is
necessary to prosecute the violation or to
continue the investigation;
(c) relates to eligibility for social service or
welfare benefits or to the determination of
benefit levels;
(d) relates to employment or educational historY;
(e) was obtained on a tax return or gathered for
the purposes of collecting a tax;
(f) describes an individual's finances, income,
assets, liabilities, net worth, bank
balances, financial history or activities, or
creditworthiness;
(g) ~onslsts of Dersonal recommendations or
evaluations, character references or
personnel evaluations; or
(h) indicates the individual's racial or ethnic
origin, sexual orientation or religious or
political beliefs or associations.
10
(4) Despite subsection (3), a disclosure does not
constitute an unjustified invasion of personal privacy
if it,
discloses the classification, salary range
and benefits, or employment responsibilities
of an individual who is or was an officer or
employee of an institution or a member of the
staff of a minister;
(b) discloses financial or other details of a
contract 'ior personal services between an
individual and an institution; or
(c) discloses details of a licence or permit or a
similar discretionary financial benefit
conferred on an individual by an institution
or a head under circumstances where,
(i)the individual represents i per cent or
more of all persons and organizations in
Ontario receiving a similar benefit, and
(ii)the value of the benefit to the
individual represents 1 per cent or more
of the total value of similar benefits
provided to other persons and
organizations in Ontario.
(5) A head may refuse to confirm or deny the
existence of a record if disclosure of the record would
constitute an unjustified invasion of personal privacy.
1987, c. 25, s. 21 (2-5).
[Emphases added]
Section 42 addresses' circumstances under which disclosure of
personal information is permitted:
' 42. An institution shall not disclose personal
information in its custody or under its control except,
(a) in accordance with Part II;
(b) where the person to whom the information
relates' has identified that information in
particular and consented to its disclosure;
(c) for the purpose for which it was obtained or
compiled of fora consistent purpose;
(d) where disclosure is made to an officer o~
11
employee of the institution who needs the
record in the performance of his or her
duties and where disclosure is necessary and
proper in the discharge of the institution's
functions;
(e) for the purpose of complying with an Act of
the Leqislature or an Act of Parliament or a
treaty, agreement or arrangement thereunder;
where disclosure is by a law enforcement
institution,
(i)to a law enforcement agency in a foreign
country under an arrangement, a written
agreement or treaty or legislative
authority, or
(ii)to another law enforcement agency in
Canada;
(g) where disclosure is to an institution 'or a
law enforcement agency in Canada to aid an
investigation undertaken with a view to a law
enforcement proceeding or from which a law
enforcement proceeding is likely'to result;
(h) in compelling circumstances affecting the
health or safety of an individual if upon
disclosure notification thereof is' mailed to
the last known address of the individual to
whom the information relates;
(i) in compassionate circumstances, to facilitate
contact with the next of kin or a friend of'
an individual who is injured, ill or
deceased;
(j) to a member of the Legislative Assembly who
has been authorized by a constituent to whom
the information relates to make an enquiry on
the constituent's behalf or, where the
constituent is incapacitated, has been
authorized by the next of kin or legal
representative of the constituent;
(k) to a member of the bargaininq agent who has
been authorized by an employee to whom the
information relates to make an inquiry on the
employee's behalf or, where the employee is
incapacitated, has been authorized by the
next-of-kin or legal representative of the
12
employer;
(n) to the responsible minister;
(o) to the information and Privacy Commissioner;
and
(p) to the Government of Canada in order to
facilitate the auditing of shared cost
programs. 1987, c. 25, s. 42; 1989, c. 64,
s. 3(1'7).
[Emphases added]
Section 64 addresses certain relevant limitations of the Ac__~t:
64.-(1) This Act does not impose any limitations on
the information otherwise available by law to a party
to litigation.
{2) This Act does not affect the power of a court or
a tribunal to compel a witness to testify'or compel the
production of a document. 1987, c. 25, s. 64.
The parties acknowledge that the Employer is an institution
subject to the Freedom of Information and Protection of Privacy
Act, 1987 and that under the Crown Em3~loyees Collective
Bargaining Act, s. 11, the Grievance Settlement Board has the
ability to order production o~ the documents relating to a
dispute:
(11) A board has all the powers Of the Tribunal
(a) to summon and enforce the
attendance of witnesses and to
compel them to give oral or written
evidence on oath or affirmation;
(b) 'to administer oaths and
affirmations; and
(c) to accept or exclude any oral
testimony, document or other thing.
13
UNION ARGUMENT
The Union acknowledges that Management bas a right to
establish and implement a system to fairly evaluate employees in
the context of job promotion but maintains that when the Union
takes responsibility for a job promotion grievance and the
concomitant investigation, information about the selection
process and the successful Candidate is crucial to the resolution
of the grievance and to the Union's ability to properly
investigate the complaints and represent employees fairly. It
cites the Crown Employees Collective Bargainin~ Act s. 30 as the
legislation that outlines the duty of fair representation:
30. An employee organization shall not act in a
manner that is arbitrary, discriminatory or in bad
faith in the representation of any of the employees,
whether members of the employee organization or not.
R.S.O. 1980, c. 108, S. 30.
It also submits that Sections 7 (Bargaining authority) and 8
(Notice of desire to bargain and Obligation to bargain) of this
Act give the Union the responsibility and mandate to bargain
"promotions" and "the procedures applicable to the processing of
grievances".
The Union has cited the following correspondence from the
Chair of the Grievance Settlement Board to Director of the
Employee Relations Branch, Human Resources Secretariat and the
Grievance Coordinator, Ontario Public Service Employees Union as
supportive of its argument that documents may be produced prior
to hearings:
Where the employer requires an Order of the Board in
order to produce documents in job competition cases, a
request in writing shall be filed with the Registrar by
either party prior to the date of hearing.
The Union disputes the Employer's position that it is unable
to provide certain information without a subpoena and therefore,
'as the Union sees it, not during the grievance procedure which;
14
it argues, it must go through before it can proceed to
arbitration. The Union submits that Article 2.12, supra, which
it argues is supported by Article 2.18 supra, is noteworthy in
its restricted scope, specificity and detail and that it is
nullified if it is not possible for the Union to have all the
necessary information during the investigative part of the
process. Such a result, the Union argues, could not have been
the intent of the Freedom of Information and Protection of
Privacy Act, 1987.
It is further argued by the Union that Section 42 of the
Freedom of Information and Protection of Privacy Act,.1987 sets
out a number of exceptions and it maintains that the instant
situation is covered by exceptions (e) and (k), supra. The Union
maintains that the bargaining unit could authorize an individual
or a member to obtain the information but, sfnce it is
collectively authorized, individual rights are not necessary.
The Collective Agreement is defined as an agreement, the Union
submits, under the Crown Employees Collective Bar~aininq. Act, s.
1..-.(1)(d)
"collective agreement" means an agreement in writing
between the employer and an employee organization
covering terms and conditions of employment;
It further submits that the fact the parties have agreed, in
Article 2.18 of the Collective Agreement, to the sharing of
documents respecting union members, and only union members, in
the particular situation of the grievance of a job promotion
competition, leaves no doubt as to their intent.
EMPLOYER ARGUMENT
The Employer submits that s. 64 (2) of the Freedom of
information and Protection of P~ivacy Actj 1987 should be
followed and that certain of the documents identified as personal
information under this Act should be produced only in response to
a subpoena under this section:
(2) This Act does not affect the power of a court or
15
a tribunal to compel a witness to testify or compel the
production of a document. 1987, c. 25, s. 64.
The Employer'believes it is prevented from releasing "personal
information" as defined, under the Freedom of Information and
Protection of Privacy Actj 1987, under the terms of the Act,
without a subpoena or summons.
-Counsel for the Employer submits that the Collective
Agreement has contained Article 2.18 since 1984 but that now,
because of the Freedom of Information and Protection of Privacy
'Act, 1987, different considerations must be taken into account in
order to determine what information the Employer can release
under this provision and that the ~'selection documents for the
successful candidate" referred to in this provision, are those
which can only be released under the Freedom of Information and
Protection of Privacy Act, 1987. There is no question of
anonymity with respect to the "selection documents" since they
are of the "successful candidate" whose name is made known
following the selection process. Further, the Employer makes the
point that we are dealing in this particular situation with a
resume and performance appraisal of an individual and the
personal information that those documents include are covered by
the Freedom of Information and Protection of Privacy Act, 1987.
Sections 2 (g) and (h), supra.
Counsel for the Employer maintains that the following
application of the Freedom of.Information and Protection of
Privacy Act, 1987 is appropriate for the Workers' Compensation
~oard, an institution under the definition section of the Act,
supra. One begins, he submits, from a presumption that a right
of access exists under Article 10 (1) and then, one must consider
that right in light of the exemptions set out in Article 21 (1),
supra, which he notes does not allow discretion but rather sets
out clearly defined exceptions, of which the following are
relevant to the issue at hand:
16
(a) upon the prior written request or consent of ~he
individual, if the record is one to which the
individual is entitled to have access;
(f) if the disclosure does not constitute an un3ustified
invasion of personal privacy. 1987, c. 25, s.21(1);
1989, c. 64, s. 3(8).
Section 21 (1) (f) must then be read in conjunction with Section
21 (3) which sets out the circumstances iD which one assumes
there is an "unjustified invasion of personal privacy". Under
this section, Counsel for the Employer submits that it
(d) relates to employment or educational history
and (g) consists of personal recommendations or
evaluations, character references or
personnel evaluations
that cover ~esumes and performance appraisals respectively. In
addition, he maintains that the institution is clearly forbidden
to provide this iniormation because doing so constitutes an
invasion of personal p~ivacy. Further, the exemptions to 21 (3)
set out in 21 (4), particularly 4 (a), supra, which is the most
relevant, do not apply to the items requested by the Un,on
letter of May 14, 1991, su___ujp_~, in which the information which the
Union wishes to have the 'Employer produce is delineated. Counsel
for the Employer argued that when the Collective Agreement and
the Crown Employees Collective Bargaininq Act are interpreted in
light of the Freedom of Informatio~ and Protection oi Privacy
Act, 1987, the latter being the overriding legislation, the
Employer cannot provide:
B. (1) Application form and letters of the
successful candidate
(2) Resumes of the successful candidate
(3) Pertinent Personnel file information of the
successful candidate.
Since new principles have come to the forefront in the ~reedom of
Information and Protection of Privacy Act, 1987, he submits, the
clauses in the Collective Agreement 'and in the Crown Employees
Collective BarGaininG Act. must be looked at in light of these
new principles.
17
The iollowing cases were submitted for the Board's
reference:
McLeod et al v. Egan et al (1974) 46 D.L.R. (3d) 150
($.C.C.)
Re Glenqarr¥ Industries/Chromalox Components (1989)
3 L.A.C. (4th) 326 Hinnegan
Re Wentworth County Board of Education (1984) 14 L.A.C.
(3d) 310 (Devlin)
Re Chrysler Canada Ltd. (1986) 23 L.A.C. (3d) 366
(Kennedy)
Re Stelco Wire Products Co. (1986) 25 L.A.C. (3d) 427
(Brent)
A number of decisions of the Information and Privacy Commissioner
was.also submitted:
Order # 11 (Ministry of Skills Development)
Order # 20 (Ministry of the Attorney General}
Order # 97 (Ministry of Community and Social Services)
Order 9 159 (Ministry of Health)
Order P - 230 (Ministry of Housing)
BOARD DECISION
The Board takes authority for its interpretation of the
statute in question from McLeod et al. v. gqan et a1..(1974), 46
D.L.R. (3d) 150, 74 C.L.L.C. 14,220 sub nom. United Steelworkers
of America, Local 2894 et al. v. galt Industries et al. (S.C.C.~
wherein it was stated by Laskin, C.J.C. that it is the duty of an
arbitrator, in determining a grievance under a collective
agreement to interpret and apply relevant legislation:
That is not to say that an arbitrator, in the course of
his duty should refrain from construing a statute which
is involved in the issues that have been brought before
18
him. In my opinion, he must construe, but at the risk
of having his construction set aside by a Court as
being wrong.
Brown & ~eatty, in~ Canadian Labour Arbitration (Third Edition),
at 2:2100 set out the'current arbitral jurisprudence with respect
to the relationship of statutes and collective agreements:
However, it is now established that where the
provisions of a collective agreement are clearly
contrary to a statute, the arbitrator is to treat that
portion of the collective agreement as null and void.
Conversely, if the provisions of the collective
agreement are 'not inconsistent with' the statute but
impose a different type of obligation,-the collective
agreement must prevail ....
As well, if there are two possible meanings t.o the
agreement, one which conflicts with a statute and one
which does not, then an arbitrator may presume, as do
the courts, that the parties intended to. act in a
manner that was not contrary to the law.
*********************
When a grievance arises as a result of a grievor's challenge
of the selection process for a posted position, there are several
players:
. the Employer which has been in control of the process
within the parameters of the Collective Agreement and is the
custodian of the "personal information" relating to both the
grievor and the successful applicant;
· the Union.which has the obligation to represent, employees,
in this case the grievor, in a manner which is not
discriminatory, arbitrary or in bad faith;
. the grievor, who has indicated a wish to proceed with the
matter and who will presumably consent to the sharing of
personal information about him or herself;
and
the successful applicant who is a member of the same
bargaining unit. .This candidate's success is being
19
challenged and he or she is being asked to co-operate in
this challenge by consenting to the release of personal
information. This individual may or may not be willing to
consent to the release of the requested information.
The problem arises when the successful candidate does not consent
to the release of his or her personal information, i.e.,
application form, resume, disciplinary letters and performance
appraisals. Prior to the Freedom of Information and Protection
Ri Privacy Act, 1987, the parties, in compliance with their
Collective Agreement, provided, in each case, the information
without obtaining the consent of .the individual grievor and
successful candidate and without a subpoena, and this procedure
facilitated the grievance process and in some instances,
resolution. The obtaining of consent on an individual basis is,
in some cases, not possible and in others, impedes the grievance
process. In correspondence which was submitted in evidence, each
party suggested that the matter could be resolved by the other
seeking a waiver from the individuals concerned. The Union
proposed the following solution in. its statement of the
grievance:
The Employer could easily overcome any problems related
to confidentiality by advising the successful
candidates that their Resumes and Application Forms
could be use [sic] in a grievance action. Accordingly,
they could adv.ise the successful candidates that
acceptance of the position would include and be
dependant on signing a waiver to this effect.
The Board rejects this solution as one which treads heavily-on
individual rights and is inappropriate in this situation.
Further, such a measure has not been agreed to in the Collective
Agreement. For t~e Union to request or demand the waiver~ of the
Successful candidate also creates potential problems and the
Board does not see this option as an appropriate solution.
Article 2.12, supra, states that the Employer will provide
"the selection documents" for the successful candidate and the
grievor, at least one week prior to the Step 2 meeting. The
parties have reinforced this agreement in Article 2.18
20
supra, and, in Article 2:1~ (ii) have provided a release for the
Employer to provide the specific information to the employee at
his or her request, when matters relate to a grievance concerning
the selection process of a posted position. It is here that the
parties have delineated what they considered to' be some of the
selection documents: "the performance review, disciplinary
letters and educational achievements". This article does not,
however, act as a release for one employee to obtain information
about another. In arriving at which documents the parties
intended to be included in the term "selection documents" the
,
items referred to in Article 2.18 (ii) and the past practice of
the .parties provide the most accurate indication. The items
referred to in Article 2.18 (ii) do not, in the opinion of the
Board, represent all the documents which the parties include in
the term "selection documents" The Employer's response to the
Union, on page 2 of this decision gives an itemized list of the
items routinely requested and provided in the past and the Board
finds that, under the current selection process, the above list
of documents constitutes the "selection documents".
The wording of these two articles-and the practice of the
parties make it clear that in the case of a grievance concerning
a posted position, they intended to facilitate the grievance
procedure through the 'sharing of the "selection documents" of the
successful candidate and the grievor, and that this could occur
without obtaining their individual consent. On this, the
language is specific and unambiguous.
The Freedom of Information and Protection of Privacy Act~
1987 which was promulgated in 1987 and amended in 1989 applies to'
information held by institutions. It strives to strike a balance
'between the public's right to have access to information held by
these institutions and the individual's right to have personal
information held by these institutions remain confidential and
inaccessible to other members of the public. The Ac~t also
provides individuals with a right to their own personal
information. As well, this Ac~t recognizes that exemptions are
21
sometimes necessary and it has clearly limited and specified
these.
Prior to 1984, the parties agreed that the facilitating of
the grievances should prevail over a successful candidate's
unwillingness to release the requested information. Since
January, 1988, following the promulgation of the Ac___~t, the
Employer's response to the request for the
B. (1) Application form and letters of the
successful candidate
(2) Resumes of the successful candidate
(3) Pertinent Personnel file information of the
.successful candidate
'has been to require a subpoena issued by the Grievance Settlement
Board. This creates a timing problem for the Union as the Board
will not issue a subpoena for documents involving a case which
has not yet entered the Board's system following a request for
arbitration. The Union, quite reasonably, wishes to concentrate
its resolution efforts prior to applying for arbitration and
believes that it requires the above selection documents, as well
as those set out in 'A' to make a proper assessment, draw.
conclusions and advise. Further, the Union takes the position
that the Employer is not prevented from providing the documents
in "B" under the Freedom of Information and Protection of Privacy
Act, 1987.
It is necessary to consider the status of the information in
question under 'this Act; that is, whether or not, it is
"personal information" as set out in Article 2. Several
decisions oi the information and Privacy Commissioners, Mr.
Sidney Linden and. Mr. Tom Wright,. have helped to establish with
increased specificity, the definition of "personal i'nformation".
In Order 11, Appeal Number 880022~ Re .Ministry of Skills
Development Commissioner Linden pointed out that
It is clear from the wording of the statute that the
list of examples of personal information under~
subsection 2(1) is not exhaustive.
This appeal dealt with the decision of the Employer to refuse
22
access to applications and resumes oi all candidates in a job
competition in which the requester had been unsuccessful.
The records at issue in this appeal are signed letters
of application for a position with the institution,
each accompanied by a resume of the applicant's
educational background and employments history. The
records vary in additional details such as membership
in associations, language skills, accomplishments and
other interests. They also vary in their description
of previous positions held and the Way in which each
candidate addresses the applicability of his or her
qualifications to the position sought. There is no
uniform format or style.
The Commissioner addressed the issue of whether the information
contained in the requested records is personal .information
pursuant to sections 2 and 21 of the Act and ruled that
the names, addresses, employment history, education
history etc. contained therein is personal
information. As such, pursuant to the mandatory
subsection 21 (1) of the Act, the head of the
institution is compelled to refuse disclosure unless
one of the statutory exceptions to that general rule
applies.
In Order # 20, Appeal Number 880075, Re Attorney General, dated
October 7, 1988, he dealt with the issue of test results as
follows:
While it may be questionable whether or not the Data
Entry test results reflect the "views Or opinions of
another individual about the individual", in my
opinion, there is no question that both the ratings and
the test results are "recorded information about an
identifiable individual" and as a result fall within
the definition of personal information contained~in the
Act.
In Order # 97, Appeal Number 890063, Re: Ministry of Community
and Social Services, the Commissioner found that information
contained in the successful candidate's resume and'the Selection
Committee's notes were personal and later in Order Number 189,
Appeal Number 890238, Re: Ministry of Health, Mr. Wright, as
Assistant Commissioner found that the curricula vitae of the
members of the Health Disciplines Board, were also personal
information as defined by the Act. Commissioner Wright, in Order
23
Number P-230, ADDeal Number 900269, Re: Ministry of Housinq
considered the following:
The information at issue in this appeal, the names and
scores of the affected parties, iS contained in records
consisting of 6 pages of interviewers' notes. Each
page lists the competition number and the name of the
position for which the competition was held, the name
of the candidate, the number of Doints scored, that is
the total score given by one interviewer for one
candidate, the name of the interviewer, and the date,
which is presumably the date of the interview.
He concluded that
...the information at issue in this appeal, the names
and scores of the affected parties, qualifies as
personal information under subsection 2(10) of the Act.
I f there is ~a reasonable expectation that the
individual can be identified from the information, then
such information qualifies under subsection 2 (1) as
personal information. In this appeal, I am of the view
that there is such a reasonable expectation that the
aggregate scores of the two successful candidates, fall
within the definition of personal information under
subsection 2 (1).
and that
...there can be no serious argument made, in this case,
that the Selection Committee's notes do not conform to
the description set out in that subsection, ·
The information being requested by the Union and being
withheld until a subpoena is issued (list "B"), in the view of
this Board, falls within the definition of "personal information"
outlined in the Freedom of Information and Pro~ection of Privacy
Act, 1987 specifically, education, employment history, views or
opinions of another individual about the person. Further, it
relates to readily identifiable individuals. .There is therefore,
a presumption that its release would be an unjustified intrusion
into the privacy of the individuals concerned. It is information
which an institution shall not disclose except under certain
specified exceptions.
24
The Union argues that the information should be released in
order to comply with an "agreement", that is, the Collective
Agreement, pursuant to the exception set out in section 42
42. An institution shall not disclose personal
information in its custody or under its control except,
(e) for the purpose of complying with an Act of the
Legislature or an Act of Parliament or a treaty,
agreement or arrangement'thereunder;
[Emphasis added]
The Act does not define "agreement" but this section refers to
compliance with an agreement under an Act of the Legislature.
The Employer argues that the term "agreement" as used here is too
broad to include 'collective agreement' and that even if it did
so, the section does still not dictate its inclusion. The
Collective Agreement between the parties constitutes a mutual
understanding and is a duly executed contract which is legally
binding, the definition provided in The Oxford Universal
Dictionarv. The Freedom of Information and .Protection of
Privacy Act. 1987 has not restricted "agreement" referred to in
42 (e), supra, any further than stating that it must'be under an
Act of the Legislature or an Act of Parliament and nothing in the
Act excludes a collective agreement. The Collective Agreement
of the parties is in the context of the Crown Employees
Collective Bar~ainin~ Act wherein a collective agreement is
defined as follows:
I.--(1) In this Act,
(a) "collective agreement" means an
agreement in writing between the
employer and an employee
organization covering terms and
conditions of employment;
The binding effect is set out:
21.-(1)~ A collective agreement is, subject to and for
the purposes of this Act, binding upon the~ employer,
upon the employee organization that is a party thereto
and upon the employees in the bargaining unit covered
by the agreement.
25
This issue has been addressed in an earlier decision of the
Grievance Settlement Board, OPSEU ~Cheonq) and The Crown in Right
of Ontario {Ministry oi Government Services), (1991) (Gorsky)
GSB File Number 1895/90 at pages 23 and 24:
We would also note that section 32 (e) of the
Freedom of Information and Protection of Privacy
Act, 1987, 1987. permits an institution to
disclose "personal information in its custody or
under its control" where it is "for the purpose of
complying with an Act of the Legislature or an Act
or [sic] Parliament, an agreement or arrangement
under such an Act or a treaty... " The
collective agreement between the parties is, in
our view "an agreement...under such an Act."
Section 7 of the Crown Employees Collective
Barqaininq Act gives an employee organization
authorization to bargain with an employer with a
view to concluding the collective agreement. The
procedur'e for realizing the collective agreement
is provided for in the latter Act and .section
19(1) mandates arbitration provi.sions for
effecting a final and binding decision where the
parties are unable to effect "a settlement of any
differences between the arising from the
interpretation, application, administration or
alleged contravention of the agreement... "' In ..~
the absence of the power in a Board to order
production of documents pursuant to a subpoena
duces tecum, the purposes of section 19(1) would,
in many cases, remain unrealized. We find that a
collective agreement under the Crown Employees
Collective Bargaining Act represents such "an
· ' agreement.., under such an Act" as is referred to
in section 32 (e) of the Freedom of Information
and Protection of Privacy Act, 1987. 1987. and
that the disclose of what would otherwise be
permitted as being for the purpose of complying
with the provisions of the collective agreement. ,
In line with the Board's decision cited above, and recognizing
that this earlier decision was made. with respect to a different
Collective Agreement, the Board has concluded that the
Collective Agreement between the parties is an "agreement" as
referred to in s. 42 (e) of the Freedom of Information and
Protection of Privacy Act, 1987. The result of this conclusion
is that the Employer's release to the Union of the "selection~
26
documents" itemized in "A" and "B" above, and in the
circumstances specified in the Collective Agreement, does not
constitute a violation of the Freedom of Information and
Protection of Privacy Act, 1987, since the selection documents
which are deemed to be personal information are released to
comply with an agreement, under an Act of the Legislature. This
exemption does not extend to other grievance situations.
The Union argues as .well that Section 42 (k) of the Act
provides a further exception
42. An institution shall not disclose
personal information in its custody or under
its control except,
(k) to a member of the bgrgaininq agent who has been
authorized b~ an emD19vee to whom the information
relates to make an inquiry on the employee's
behalf or, where the employee is incapacitated, ~
has been authorized by the next-of-kin or legal
representative of ~the employer;
The Board agrees with the interpretation of the' Employer whose
Counsel argued that Article 42 (k) can only refer to the employee
to whom the information relates and that this authority does not
extend to the non-consenting successful candidate. That is, in
order to obtain personal information under this section, the
member of.the bargaining agent must have authorization from both
the grievor and the successful candidate.
In conclusion, then, the Board has determined that the
Employer is not in v~olation of the Freedom of Information and
Protection of Privacy Act~ 1987, when it releases, without a
subpoena, the selection documents respecting the successful
candidate and the grievor, including the "B" items, in
compliance with Articles 2.12 and 2.18 of the parties' Collective
Agreement.
27
Dated at Kingston, Ontario this 20th day of'. April, 1993.
Helen S. Finley, Vic~-Chair
William S. R~n~achan, Member-
c-~- ~' ~ Member
D°UglL 'C.~~introse,
28