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Bill C-19

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Appearance of the Privacy Commissioner of Canada before the Standing Committee on Human Resources Development and the Status of Persons with Disabilities

Ottawa, Ontario
March 25, 1998
Bruce Phillips
Privacy Commissioner of Canada
(Check Against Delivery)

Honourable Members, I last appeared on this Bill to amend the Canada Labour Code when it was before the Senate Committee on Social Affairs, Science and Technology, in 1997.

My concerns at that time related to clauses 50 and 54 of Bill C-66 (now introduced as Bill C-19). I do appreciate the efforts which I understand the Minister of Labour and his Department have made to meet my concerns. Unhappily, my concerns have not been met. These provisions continue to constitute, in my view, a grave invasion of the privacy of Canadians.

Clause 50

This clause states that unions will be able to communicate with workers who work at home or "off-site". I believe some Canadians may take serious objections to having personal information with respect to their address and place of domicile made available to a union or anyone else, without their consent. The clause sets up an invasive privacy regime for people who chose to work away from the office.

The new measures proposed in paragraphs 109.1(2)(a) and (b) and in subsections 109.1(3) and (4) regulate the confidentiality and use of the information relating to workers on non-employer-owned premises. These measures do not, however, protect these workers' privacy in that they deny them their right to consent to being contacted by unions.

In keeping with subsection 8(1) of the existing Canada Labour Code which recognizes that "every employee is free to join the trade union of his choice and to participate in its lawful activities", any employee, whether working on employer-owned or other premises, should be given by his employer the opportunity to initiate contact with the union at his choice and preferred time. A possible approach to this effect may be similar to that currently called for by the Public Service Staff Relations Act, which requires federal government agencies to give their new employees a union registration card which the employees can mail if and when they so choose.

In the event that the notion of consent is rejected, a distinction should at least be drawn between a remote premise owned by the employer and another remote premise (such as an employee's home or a third-party facility like a rented mini-office in a commercial complex). Working on the former is usually compulsory where required and bears a reduced expectation of privacy (limited usually to one's body or personal belongings). Working on the latter usually implies a negotiated agreement between the employer and the employee, and bears a moderate (if the workplace is a third-party facility) to high (if the workplace is the employee's home) expectation of privacy. Employees working from remote facilities not owned nor rented by their employers must not be subjected to union contacts against their will. To that effect, the measure proposed in paragraph 109.1(2)(b) should be made compulsory.

Clause 54

The Privacy Act, as you all know, provides that information recorded about you is your personal information and you are entitled, subject, of course, to exemptions set out in the Act, to see it. All Federal Boards are subject to this Act although the Courts and Parliament are not.

This clause has had a "Notwithstanding clause"removed and replaced by a "For greater certainty" clause (which I recognize as a step in the right direction) and a new provision expanding the invasion of privacy (which I cannot). Even as amended, the clause suggests that the Board and its members or any of its arbitrators, or indeed any persons assisting the Board, require special relief from the Privacy Act in order to perform their functions. My experience as Privacy Commissioner leads me to believe that special protection is not required. Although some institutions subject to the Privacy Act, as almost all Boards are, occasionally suggest to me that it is administratively inconvenient to apply Access to Information and Privacy Laws, I do not accept this proposition. Laws are there to protect Canadians, not bureaucrats and appointees. It may be that the circumstances will justify a special protection under the legislation. That is all I am arguing for - that Parliament not accord a blanket, automatic protection but that it leave it to me, and if need be, the Courts of this land, to make determinations as each case arises. I urge you not to let individuals or institutions build their own little set-asides and exemptions from human rights legislation such as the Privacy Act.

The rights of individuals to control their information is a fundamental pillar of protection of privacy. The rationale for a federal Privacy Act is to assure Government and its institutions provide equal treatment and protection to Canadians' privacy. I therefore urge you to resist the development of a patchwork of different legislative provisions emanating from different institutions seeking special status to invade the privacy of Canadians.

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