Employer accused of wrongful disclosure

PIPEDA Case Summary #2003-198

[Principle 4.3; section 7(3)(c)]

Complaint

An employee of a company that produces nuclear technology accused it of improperly disclosing her personal information when she appeared as a witness in an arbitration hearing between another employee and the company, held under the Canada Labour Code.

Summary of Investigation

The complainant had been summoned to appear as a witness for the grievor. Two of the complainant's performance appraisals were distributed and entered as exhibits. The lawyer for the company used the appraisals as the basis for his line of questioning. Although the complainant was not the subject of the arbitration hearing, she felt that her performance appraisals, although excellent, were intended to discredit her as a witness. She was concerned that this incident resulted in her personal information being disclosed to individuals who were not entitled to legitimately view it.

The company maintained that it disclosed the complainant's personal information within the context of an arbitration hearing and not for the purpose of demeaning, humiliating, or otherwise indicating any disrespect towards her. The company lawyer knew before the hearing that the complainant would likely be referring to her performance appraisals in her evidence and he therefore introduced them at the hearing in support of his arguments and to question the complainant's credibility.

While the complainant stated that a copy of these appraisals was provided to everyone in the room, there was insufficient evidence to support that claim. Other individuals present agreed that a copy of the appraisals was given to the arbitrator, the complainant, and the lawyer representing the grievor's union.

The company stated that legal counsel for the union did not object to the production of these appraisals or the company lawyer's line of questioning. Similarly, the arbitrator did not question the relevancy of referring to the complainant's appraisals or the cross-examination of them. The company was of the view that, for the purposes of the Personal Information Protection and Electronic Documents Act (the Act), the arbitrator has jurisdiction to allow the introduction of the appraisals, and that Act affords protection to counsel to prepare and present a case.

Commissioner's Findings

Issued August 1, 2003

Jurisdiction: As of January 1, 2001, the Act applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because a facility that produces nuclear technology is considered a federal work, undertaking, or business.

Application: Principle 4.3 stipulates that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Paragraph 7(3)(c) states that for the purpose of clause 4.3 of Schedule 1, an organization may disclose personal information without the knowledge and consent of the individual only if the disclosure is required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.

The Commissioner stated that the central issue in this complaint was whether the undisputed disclosure was allowable under paragraph 7(3)(c), in that it was made pursuant to an "order." He noted that, under the Canada Labour Code, arbitrators have the power to compel the production of information. The Commissioner stated that in order to make a document an "exhibit" at the request of a party, the party must first seek permission of the arbitrator. In this case, since the arbitrator consented to making the document an exhibit, his decision can amount to an "order" within the meaning of paragraph 7(3)(c). The Commissioner, therefore, found that the information was disclosed pursuant to an order and that the exception provided under paragraph 7(3)(c) applied.

The Commissioner concluded that the complaint was not well-founded.

Further Considerations

The Commissioner ended his remarks by noting that there may be instances where an arbitrator does not consent to make a document an exhibit. Given this possibility, he advises organizations that their counsel must seek permission and obtain an order from the arbitrator prior to disclosing personal information. In the context of labour arbitration, if an order is not sought from the arbitrator, consent from the witness should be obtained.