2005 BCCA 604 Canadian Office and Professional Employees' Union, Local 378 v. Coast Mountain Bus Company Ltd.

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Lowry
	The Honourable Madam Justice Kirkpatrick

B.A. Laughton, Q.C.	Counsel for the Appellant
E.G. Phillips	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
November 7, 2005
Place and Date of Judgment:	Vancouver, British Columbia
December 8, 2005

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Chief Justice Finch:

I. INTRODUCTION

[1] The appellant union appeals the award of an arbitrator pronounced 8 April 2005 denying it disclosure of documents which the union says it is entitled to under the terms of the parties’ collective agreement. The respondent employer resisted disclosure relying on the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (“FOIPPA” or the “Act”). It says that the Act renders ineffective the provisions of the collective agreement on which the union relies.

[2] Both parties agree that this Court has jurisdiction to hear the appeal under s. 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”). The parties agree that the real basis of the arbitration award is the interpretation of FOIPPA, a law of general application, and that the award does not involve principles of labour relations either expressed or implied in the Code, or any other Act. Both parties agree that the recent decision of this Court in British Columbia Public School Employers’ Association v. British Columbia Teacher’s Federation, 2005 BCCA 411, is distinguishable because the award in that case did turn on principles of labour relations. The grievance in the case at bar is a policy grievance, and the decision may affect not only this union, this collective agreement and these employees, but may also affect many other contractual relationships, both labour and non-labour, and many persons who are strangers to this collective agreement.

[3] I accept the parties’ joint submission on jurisdiction, and agree that this Court has jurisdiction. The real basis of the arbitration award is the interpretation of FOIPPA, a law of general application, and does not raise questions concerning the principles of labour relations.

[4] The parties also agree that the employer falls within the meaning of the words “public body” as defined in the Act. The employer was created by, and is a wholly owned and operated subsidiary of, the Greater Vancouver Transportation Authority (“Translink”). Translink is defined in the Act as a “local government body”, which is included in the definition of “public body”. The employer is therefore a “public body” for the purposes of the Act.

[5] The learned arbitrator held that FOIPPA did not replace the disclosure provisions of the collective agreement, but she held that since the information sought is related to employment, occupational or educational history, disclosure would violate s. 22 of the Act as an unreasonable invasion of a third party’s personal privacy.

[6] On this appeal, the union says the arbitrator erred in her analysis and interpretation of the legislation, and seeks an order setting aside the award. The employer agrees that the arbitrator erred in her analysis of the legislation, but says that properly understood and applied, the Act is a complete bar to the union’s request for disclosure under the collective agreement.

[7] For the reasons that follow, I would allow the appeal, and direct that the employer disclose the information sought to the limited extent described in paragraphs 71 to 78 of these reasons.

II. FACTS

[8] The arbitration proceeded on an agreed statement of facts. I set them out in full:

AGREED STATEMENT OF FACTS AND QUESTIONS

FACTS

1. The Employer and the Union are party to a Collective Agreement for a unit of employees described in a variation to a Labour Relations Board certification issued on November 6, 1985.

2. The Canadian Autoworkers and the Canadian Union of Public Employees hold certifications for three other bargaining units of employees employed by the Employer.

3. The Collective Agreement contains provisions in Article 7 regulating the filling of vacancies and the granting of promotions.

4. Article 7.11 recognizes that non-COPE bargaining unit employees of the Employer may apply for positions covered by the agreement but contains a limitation that preference shall be given to members of Local 378.

5. The selection of persons to fill vacancies is subject to the grievance process.

6. Article 7.11(g) states:

The Employer will provide the Union with copies of applications for OPEIU job bulletins upon request to the Local Human Resources Office.

7. The Union has filed a number of grievances disputing the manner in which the Employer has filled vacancies. In the course of those grievances the Union has sought production of documents which would contain information regarding the particular job competitions and information about identifiable individuals other than the grievor. The Union has asserted that it needs this information in order to determine whether the grievances should be pursued.

8. The Employer has refused to provide documents which contain information about identifiable individuals unless the individual consented to the disclosure of the information.

9. Most individuals about whom information is contained in the relevant documents are employees of the Employer. Those individuals employed by the Employer may be:

(a) members of the Union employed in the bargaining unit;

(b) members of another union employed in the bargaining unit on a temporary basis;

(d) exempt employees who are not members of a union.

10. In some cases, the individual about whom information is contained in the relevant documents was formerly an employee but is not employed by the Employer at the time the Union seeks disclosure of the information.

11. In some cases, the individual about whom information is contained in the relevant documents may not be employed by the Employer:

(a) at the time the information was collected; and/or

(b) at the time disclosure of the information is sought by the Union.

12. The Employer normally provides to the Union copies of the job postings and a Summary of Internal Applicants form with names or any other identifiers blacked out. The Summary includes seniority dates and overall evaluation scores.

13. The Employer has refused to release the following documents which contain information about identifiable individuals without the written consent of those individuals:

- Job applications

- Resumes

- Interview questions and responses

- Score sheet

- Written tests

- Summary of candidate form

- The “internal reference questions” form

14. The Employer has asserted that the release of the information described above would be contrary to the Freedom of Information and Protection of Privacy Act. The Employer has further asserted that Article 7.11(g) of the Collective Agreement is contrary to that Act.

[9] The parties also agreed on the questions to be answered in the arbitration:

QUESTIONS

There are two individual grievances … and two policy grievances (No. 04-0023, Policy Grievance re release of information; and 04-0024, Policy Grievance re 7.11(g)).

The parties seek a decision on the following questions which will be a final decision on the policy grievances and a final decision on these questions in each of the individual grievances.

A. In the absence of an arbitrator’s order, is the Employer permitted to disclose information about an identifiable individual to the Union without the written consent of the individual in any of the following circumstances:

(a) the individual is an employee of the Employer and is a member of the Union;

(b) the individual is an employee of the Employer and is normally employed in another union’s bargaining unit but is employed in the Union’s bargaining unit on a temporary basis;

(d) the individual is an employee of the Employer and is not a member of any union;

(e) the individual is not an employee of the Employer;

and if so, with what conditions, if any, on disclosure and use?

B. Is the disclosure under Article 7.11(g) limited to information about members of the bargaining unit?

C. Should the information requested by the Union be disclosed in the individual grievances and with what conditions, if any, on disclosure and use?

III. THE LEGISLATION

[10] The FOIPPA was passed by the provincial legislature in June 1992, and came into force by regulation on 4 October 1993. The Act was amended in 1993 to extend coverage to “local public bodies” including municipalities, regional districts, hospitals, police forces, schools, including universities and colleges, school boards, and self-governing professions. In November 1995, the Act was extended to cover additional self-governing professions.

[11] The Act is divided into 6 parts:

Part 1: Introductory Provisions

Part 2: Freedom of Information

Part 3: Protection of Privacy

Part 4: Office and Powers of the Information and Privacy Commissioner

Part 5: Reviews and Complaints

Part 6: General Provisions

[12] The purposes of the Act are set out in Section 2:

Purposes of this Act

2(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by

(a) giving the public a right of access to records,

(b) giving individuals a right of access to, and a right to request correction of, personal information about themselves,

(d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and

(e) providing for an independent review of decisions made under this Act.

(2) This Act does not replace other procedures for access to information or limit in any way access to information that is not personal information and is available to the public.

[13] The Act has two competing legislative goals. The first goal is to provide access to information in the possession of public bodies, so as to render them more accountable. The second goal is to protect personal privacy.

[14] Part 2 of the Act confers a right of access to records controlled by public bodies and describes the ways in which those rights can be exercised:

4(1) A person who makes a request under section 5 has a right of access to any record in the custody or under the control of a public body including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.

[15] Under Part 2 access is the general rule, except in specific limited circumstances where disclosure would result in harm to the public body or third parties. One of the most significant exceptions to access in Part 2, and the exception relied on by the arbitrator to deny the union’s claim to disclosure, is Section 22. The relevant portions read as follows:

22(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy.

(2) In determining under subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party’s personal privacy, the head of a public body must consider all the relevant circumstances, including whether

…

(3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if

…

(d) the personal information relates to employment, occupational or educational history,

…

[16] Part 3 of the Act (ss. 26-36) is designed to protect persons from the unlawful collection, use or disclosure of personal information. Public bodies must follow the “fair information practices” in Part 3. Sections relevant to this appeal are:

Purpose for which personal information may be collected

26 No personal information may be collected by or for a public body unless

(a) the collection of that information is expressly authorized by or under an Act,

(b) that information is collected for the purposes of law enforcement, or

Use of personal information

32 A public body must ensure that personal information in its custody or under its control is used only

(a) for the purpose for which that information was obtained or compiled, or for a use consistent with that purpose (see section 34),

(b) if the individual the information is about has identified the information and has consented, in the prescribed manner, to the use, or

Disclosure of personal information

33 A public body must ensure that personal information in its custody or under its control is disclosed only as permitted under section 33.1 or 33.2.

Disclosure inside Canada only

33.2 A public body may disclose personal information referred to in section 33 inside Canada as follows:

(a) for the purpose for which it was obtained or compiled or for a use consistent with that purpose (see section 34); …

(h) to a representative of the bargaining agent, who has been authorized in writing by the employee whom the information is about, to make an inquiry;

…

Definition of consistent purposes

34(1) A use of personal information is consistent under section 32 or 33.2 with the purposes for which the information was obtained or compiled if the use

(a) has a reasonable and direct connection to that purpose, and

(b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or discloses the information or causes the information to be used or disclosed.

[17] Both Part 2 and Part 3 of the Act recognize the specific concerns associated with “personal information” and the fact that when dealing with such information, “privacy is paramount over access”: see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 48.

[18] During the legislative debates at the time this legislation was enacted in 1992 the Attorney General, The Honourable Colin Gabelmann, described the purposes of the Act as follows:

… I think it's important to recognize the significant link between the two parts: freedom of information and protection of privacy. It's important because it's essential to balance the competing rights: the public's right to know and the individual's right to have his or her privacy safeguarded. I believe the bill achieves that balance. … the philosophy underlying the freedom-of-information provisions is that government is the public's business and the public has a right, with certain necessary exceptions, to have ready access to information in the hands of government or government agencies.

. . .

What this bill seeks to do is empower citizens so that they can fully exercise their democratic rights. The reality is that if government has information which is denied to citizens, it becomes extremely difficult to make informed judgments about government policy or to endeavour to influence public policy.

As with all such acts, this bill provides for exceptions. …

The most significant exception concerns release of information that would violate the privacy of another individual. As I have emphasized, this bill endeavours to strike a balance between access to information and protection of privacy. As such, this exception is, in my view, essential.

(Hansard, Vol. 4 (18 June 1992) at 2737 (Hon. C. Gabelmann).)

IV. THE ARBITRATION AWARD

[19] The arbitrator disagreed with the union’s interpretation that s. 2(2) preserved Article 7.11(g). The arbitrator found that while the section preserved other procedures for access to information, where the information is personal information, access under those “other procedures” must not violate the Act. Therefore, in this case, the union could not rely on s. 2(2) as the information in question was personal information and not necessarily available to the public.

[20] The arbitrator then considered both Parts 2 and 3 of the Act. She agreed with the union that under s. 32 the union’s use of the information was logically and rationally connected with the original purpose for which the information was obtained or compiled. According to the arbitrator, the selection of employees was part of the statutory duties of the employer since it contributes directly to the public body’s ability to fulfill its mandate of running a bus company.

[21] The arbitrator found the requirements in s. 32 were met. However, the arbitrator viewed s. 22 as taking precedence over s. 32. She found that since the personal information in this case relates to employment, occupational or educational history there was a presumption, under s. 22(3)(d), that release of the information would be an unreasonable invasion of a third party’s personal privacy. The arbitrator found the union had not rebutted this presumption. She concluded that s. 22 prevented the employer from disclosing the information to the union.

[22] The arbitrator rejected the union’s argument that the presumption could be rebutted under s. 22(2)(c). The union argued that the information was relevant to a fair determination of the union’s rights under the collective agreement. The union relied on the following test adopted in Order 02-21 Inquiry re: Ministry of Public Safety and Solicitor General, [2002] B.C.I.P.C.D. No. 21 (QL), in relation to s. 22(2)(c):

1. The right in question must be a legal right drawn from the common-law or a statute, as opposed to a non-legal right based only on moral or ethical grounds;

2. The right must be related to a proceeding which is either under way or is contemplated, not a proceeding that has already been completed;

3. The personal information sought by the applicant must have some bearing on, or significance for, determination of the right in question; and

4. The personal information must be necessary in order to prepare for the preceding or to ensure a fair hearing.

[23] The arbitrator found that the union could not satisfy the requirements of s. 22(2)(c). Specifically, the right was not in relation to a proceeding either under way or contemplated, and the information was not necessary to prepare for or ensure a fair hearing. Until the grievance has been filed, the test under s. 22(2)(c) could not be met.

[24] The award concluded with this summary of the arbitrator’s reasoning, at 24-25:

In summary, I agree with the Union that FOIPPA does not replace agreed upon procedures in a collective agreement which provide for accesses to personal information. That access however, must not violate the protections set out in FOIPPA concerning personal information. Further, FOIPPA permits the Employer to use personal information for a purpose consistent with the purpose for which the information was obtained or [compiled]. In this case, I find the use of information which is part of the job selection process, to complete that process in accordance with the collective agreement, is for a purpose consistent with the purpose for which the information was obtained or [compiled]. The difficulty for the Union in this case is section 22 of FOIPPA which creates a rebuttable presumption of an unreasonable invasion of a third party’s personal privacy if the personal information is related to employment, occupational or educational history. The Union has not been able to rebut that presumption on the basis of Article 7.11(g) alone. That provision is overly broad. Rather, I have concluded the information should be dealt with on the basis of requests in individual grievances, at which time specific privacy concerns can be raised and dealt with in the context of the case. Section 3(2) confirms the Act does not limit the information available by law to a party to a proceeding.

Accordingly, in answer to the questions posed by the parties I find the Employer is not permitted to disclose information about an identifiable individual to the Union pursuant to Article 7.11(g), without the written consent of the individual. In my view the more appropriate action is to seek an order for disclosure in a specific case which can then be evaluated taking into account the circumstances and labour relations context of the case. As noted earlier, the Union is not without information on this point and accordingly its exclusive bargaining rights and obligations are not significantly impaired. In addition, it can pursue more detailed information as part of the grievance process itself. In the meantime, as indicated above, I encourage the parties to address and possibly add and/or refine the information that can be provided pursuant to Article 7.11(g) without providing information about identifiable individuals unless the individual consents.

V. THE PARTIES’ POSITIONS

A. The Union

[25] The union says the arbitrator erred in applying s. 22 in the circumstances of this case.

[26] The union says that where disclosure of personal information is permitted under Part 3, it is not necessary to go further and establish a right of access under Part 2 of the Act. The union points to decisions of the Information and Privacy Commissioner dealing with ss. 32, 33, and 34, which the union says do not suggest that s. 22 must also be complied with when considering use and disclosure under Part 3.

[27] The union says the Act protects its right to disclosure under Article 7.11(g) of the collective agreement, in two ways. The union relies first on s. 32(a):

32 A public body must ensure that personal information in its custody or under its control is used only

(a) for the purpose for which that information was obtained or compiled, or for a use consistent with that purpose (see section 34),

…

[28] The union says the employer obtained the personal information of job applicants for the purpose of hiring suitable individuals to fill job vacancies. The union says it seeks disclosure of that same information for a use that is consistent with the employer’s purpose. Specifically, the union seeks to use the information in order to determine whether Article 7.11, which gives the union’s members preference in the hiring process, is being followed and whether a grievance should be pursued. It says that its proposed use of the information sought is therefore a “use” “consistent” with the employer’s purpose in obtaining the information, by the language of s. 34(1):

34(1) A use of personal information is consistent under section 32 or 33.2 with the purposes for which the information was obtained or compiled if the use

(a) has a reasonable and direct connection to that purpose, and

[29] The union says its use of the information, for the purpose of assessing the employer’s hiring decision, is consistent with the employer’s use of that information because under s-s. (a), it has a reasonable and direct connection to the employer’s purpose; and under s-s. (b), the information was necessary to the employer for operating “a legally authorized program”, namely the hiring of employees to staff the positions necessary to run the bus system.

[30] The union says the hiring process does not end with the employer’s selection of an applicant to fill the job posting. The union says the hiring process is not complete until the union has reviewed the information the employer has obtained concerning the successful applicant’s qualifications, and if necessary, subjects the employer’s decision to the grievance procedure. The union therefore maintains that the employer’s purpose for obtaining the information on job applicants is logically connected to the union’s subsequent evaluation of the employer’s decision. In other words, the provisions of FOIPPA do not insulate the employer’s decision from review by the union.

[31] In the alternative, the union advances a submission based on s. 2(2) of the Act. To repeat:

2(2) This Act does not replace other procedures for access to information or limit in any way access to information that is not personal information and is available to the public.

[32] The union argues that Article 7.11(g) of the collective agreement provides a procedure for access to information that is recognized and preserved by s. 2(2). The union argues that s. 2(2) must be read disjunctively as follows:

This Act does not

1. replace other procedures for access to information, or

2. limit in any way access to information that is not personal information and is available to the public.

[33] The union says Article 7.11(g) provides a “procedure” for access to information and is therefore an “other procedure” that is preserved by the Act. The procedure under the collective agreement is a simple one – if the union asks, the employer must provide. The union says the method of obtaining disclosure conferred by Article 7.11(g) has not been replaced by the Act.

B. The Employer

[34] The employer agrees that the arbitrator erred in applying s. 22 in the circumstances of this case.

[35] The employer says that Part 2 of the Act sets out a detailed procedure for persons to seek access to information held by public bodies. Under Part 2 there is a presumption of access subject to specific exceptions, most notably the exceptions found in s. 22. In contrast, the employer says that Part 3 is primarily concerned with the protection of privacy and there is a presumption of privacy with respect to the collection, use and disclosure of personal information. The union asserts a right to obtain personal information through the collective agreement and not through an access request under Part 2. The employer says it can only accede to the union’s request if specifically allowed by a provision of Part 3, and Part 2 does not come into play in this case.

[36] The employer says, however, that the arbitrator erred in two respects in her conclusions on s. 32. First, the employer says the arbitrator failed to distinguish between “use” and “disclosure.” It says that “disclosure” to the union in this case is not “use” within the meaning of s. 32. It says the union’s argument confuses or conflates these two distinct concepts. Secondly, the employer says the arbitrator overlooked or misapprehended s. 34. The employer says that section requires a finding that the union’s proposed use of the information sought is “necessary for performing the statutory duties of or for operating a legally authorized program of” the employer. The employer says the phrase “necessary for performing the statutory duties of or for operating the legally authorized program” requires careful interpretation. It says that it stretches the plain meaning of that phrase to conclude that use by the union in pursuing a grievance is “necessary” for the respondent to carry out its statutory duties or to operate a legally authorized program.

[37] The employer says the limited application of s. 34 in the circumstances of this case is highlighted by a review of s. 33.2(h). Section 33.2(h) is the only provision in the Act specifically dealing with disclosure of personal information to a bargaining agent, such as the union.

[38] Section 33.2(h) permits a public body to disclose personal information to a bargaining agent only if the bargaining agent has been authorized in writing by the employee to whom the information refers.

[39] The employer contends that none of the provisions in the Act permit it to disclose the personal information the union seeks, and that the Act therefore effectively abrogates Article 7.11(g) of the collective agreement.

[40] With regard to the union’s arguments on s. 2(2), the employer says that the arbitrator did not err in her interpretation of s. 2(2). It says that Article 7.11(g) of the collective agreement is not an “other procedure” within the purview of that section. It says that s. 2(2) speaks only to access, not disclosure. The employer says that the access referred to in subsection (2) must mean either the public’s right to non-personal information or an individual’s right to their own personal information. It says s. 2(2) of the Act is to be interpreted so that the words “that is not personal information and is available to the public” qualify “information” in both places where the word information appears previously in the section.

[41] The employer says the interpretation contended for by the union would defeat the purpose of s. 2(1)(d) by allowing the disclosure of personal information not available to the public, in a manner that does not conform with Part 3 of the Act.

VI. ANALYSIS

A. Section 2(2)

[42] The union argues that Article 7.11(g) of the collective agreement provides a procedure for access to information that is recognized and preserved by s. 2(2) of the Act. The union’s arguments on this point cannot be supported.

[43] Section 2(2) recognizes that the Act is not intended to limit other methods of obtaining information that is non-personal and available through routine channels. To adopt the interpretation put forward by the union would undermine or defeat one of the purposes of the Act, which is to protect personal privacy.

[44] I agree with the union that “or” requires the section to be read disjunctively. However the concluding words of s. 2(2) apply to both parts, so that the section should be read:

This Act does not:

1) replace other procedures for access to information that is not personal information and is available to the public; or

2) limit in any way access to information that is not personal information and is available to the public.

[45] In both phrases “information” is qualified by the words “that is not personal information and is available to the public”. Such an interpretation promotes the legislative purposes of the Act which are to enhance both access to information and privacy. It is also consistent with the rest of s. 2 and with the Act as a whole. This conclusion is also supported by the guidelines contained in The Freedom of Information and Protection of Privacy Act Policy and Procedure Manual ( the “PPM”) relating to s. 2(2):

The Act does not replace other procedures for access to information that is not personal information and is available to the public outside the Act.

[46] In the present case, the information at issue is clearly personal information as defined in Schedule 1 of the Act, and is not information that is available to the public. Therefore s. 2(2) does not apply.

B. Section 22

[47] The union and the employer both say that Part 3 governs the use and disclosure of personal information, and that Part 2, including s. 22, does not override the provisions in Part 3. I agree that s. 22 is not applicable in this case.

[48] Section 22 is found in Part 2 of the Act which deals with formal requests by citizens for access to information held by public bodies. It is a mandatory exception that protects a third party’s personal information where disclosure would result in an unreasonable invasion of the third party’s privacy. Section 22 is only applicable in situations where there has been a request for access to information under Part 2 of the Act. Under Part 3 of the Act, Section 22 is only applicable to provisions which specifically make reference to either Part 2 (see s. 33.1(1)(a)), or Section 22 (see s. 36(a)).

[49] In this case, access is not being given to the general public in response to a request under the Act. Without a formal application there is nothing to trigger s. 22. In the circumstances of this case, where the bargaining agent is seeking disclosure under a provision in a collective agreement, disclosure is only permitted if one of the provisions in ss. 33.1 or 33.2 of the Act can be satisfied. Except for its application to s. 33.1(a), there is nothing in the wording of either ss. 22 or 33 to suggest that s. 22 overrides the other disclosure provisions in Part 3. In my respectful view, the arbitrator erred in applying s. 22 in this case.

C. Sections 32 to 34

Section 33:

[50] Part 3 of the Act establishes minimum requirements for the collection, use and disclosure of personal information. In this case, the arbitrator considered the union’s request for the personal information to fall under s. 32, use of personal information. The employer says that the arbitrator erred in applying s. 32 and that this case must be decided under s. 33.

[51] Section 32 specifies how the employer may use the personal information contained in the job applications. In the circumstances of this case, s. 32 cannot be construed to authorize disclosure to the union: see Order No. 214-1998; College of Massage Therapists of B.C., [1998] B.C.I.P.C.D. No. 7 (QL) and Investigation P97-009; Insurance Corp. of British Columbia, [1998] B.C.I.P.D. No. 31 (QL). This conclusion is supported by the fact that disclosure of information can occur even within a public body as recognized by s. 33.1(f) and 33.2(d). I agree with the employer that to apply s. 32 to the circumstances of this case would conflate and confuse the concepts of “use” and “disclosure” in the Act.

[52] In my respectful opinion, the arbitrator erred in deciding this case under s. 32 of the Act. The provision of the personal information relating to the job applicants by the employer to the union would constitute a “disclosure”. The question of whether public bodies are permitted to disclose personal information is dealt with under s. 33.

Section 33: Is the Disclosure Permitted Under Section 33.2?

[53] The information the union is seeking under Article 7.11(g) of the collective agreement is the personal information contained in job applications, résumés and interview responses. The parties agreed to the inclusion of Article 7.11(g) before FOIPPA was enacted. One of the legislative purposes of FOIPPA is the protection of personal information collected, used and disclosed by public bodies. As a result of the Act, Article 7.11(g) is no longer determinative of the union’s right to access to personal information. Provisions in the collective agreement must now comply with the Act.

[54] Certain provisions in the collective agreement do in fact recognize that rights under the agreement must be read in compliance with the Act, for example, Article 2.01 and Article 7.03:

Article 2.01(b) The Employer will supply the Union, on request but not more often than twice a year, with a listing of OPEIU employees showing social insurance number, name, gender, job title, job group, division, department and work location in the order requested, in compliance with the Freedom of Information and Protection of Privacy Act.

Article 7.03 The Employer will provide the Union with a list of all employee hirings, transfers, promotions and terminations, in compliance with the Freedom of Information and Protection of Privacy Act.

[55] Although Article 7.11(g) remains in its original form, it too must be read in compliance with the Act. The employer may only disclose the information contained in the job applications if the limitations imposed by the Act permit that disclosure. Article 7.11(g) must now read:

The Employer will provide the Union with copies of applications for OPEIU job bulletins upon request to the Local Human Resources Office, in compliance with the Freedom of Information and Protection of Privacy Act.

[56] Section 33 sets out the only circumstances under which public bodies may disclose personal information. Section 33 permits disclosure, it does not require it. However, there will be circumstances where disclosure will be mandatory, for example, to comply with an order of the court (see s. 33.2(b)). In this case, if s. 33 provides authority for disclosure, the collective agreement would make that disclosure mandatory. However, unless one of the circumstances listed in s. 33.1 or s. 33.2 can be met, the employer does not have authority to disclose the personal information.

[57] In oral argument, the union pointed to s. 33.2(a) as authority for the disclosure. The union says that practically speaking it makes no difference that the arbitrator applied s. 32(a) rather than s. 33.2(a) since both of these sections use similar wording and both refer to s. 34. The union says that since the arbitrator found that s. 32(a) had been met, the requirements in s. 33.2(a) can also be met. The arbitrator’s only mistake was continuing on to consider s. 22 after finding a right of disclosure under Part 3.

[58] Section 33.2(a) permits disclosure of personal information in two circumstances. They are, first, if the information is disclosed for the purpose for which it was obtained or compiled; and second, if the information is disclosed for a use consistent with that purpose.

[59] Section 34 defines when a use will be deemed to have a “consistent purpose”. Section 34 requires that the new use: 1) has a reasonable and direct connection to the original purpose; and 2) is necessary for performing the statutory duty of, or for operating a legally authorized program of, the public body that uses or discloses the information.

[60] A reasonable and direct connection is one which is “logically, or rationally, connected to the original purpose”: see Investigation Report 00-01: re: Use of Alumni Personal Information by Universities, [2000] B.C.I.P.C.D. No. 58 at para. 65 (QL).

[61] The information collected by the employer in the job competition was obtained for the purpose of determining if a person is a suitable candidate for a job with the employer. The collective agreement governs the job competition. In order for a candidate to be suitable for employment the provisions in Article 7 must be complied with. Therefore, part of the intention in collecting the information was to ensure that the hiring of any candidates would be in compliance with the collective agreement. I agree with the arbitrator where she says, at 19:

… it would be artificial to say the Employer can use this information to make a selection but not to allow the Union to use the information to assess that selection and in effect the Employer to defend that selection. …

[62] The PPM suggests that one guideline to consider in determining if there is a “consistent use” is “whether the person concerned would expect his or her personal information to be used in the proposed way, even if that use has not been spelled out”. In this case the job applications sought to be disclosed are applications for OPEIU [now COPE] job postings. Applicants for these positions would reasonably expect that they were applying for a position to which the OPEIU [now COPE] collective agreement applied. Applicants would reasonably be aware that a collective agreement governs the job selection process and that the union may take issue with the employer’s selection of candidates. It is not reasonable for job applicants in these circumstances to expect that their personal information will be held in confidence by the employer. The job selection process in this case is not an entirely private matter between the employer and the applicant. The union plays a legitimate role in the oversight of the process. It is reasonable for applicants to expect that the union may require access to their personal information to ensure the selection process complies with the collective agreement.

[63] The union’s use of the information for the purpose of assessing the employer’s hiring decision is therefore a purpose consistent with the purpose for which the information was obtained namely, seeking a suitable candidate for a job with the employer through a job competition governed by a collective agreement.

[64] The more difficult question in this case is whether the union’s use of the information is “necessary for performing the statutory duties of, or for operating a legally authorized program of” the employer. The employer has the statutory duty of running a bus company. An integral aspect of that duty is the selection of individuals to operate the bus business and thereby to assist the employer in fulfilling its legislative mandate. The union says that the employer cannot operate its duties outside of the collective agreement.

[65] The PPM interprets “necessary for performing the statutory duties” as meaning that “the personal information is needed to perform duties or obligations required by legislation”. I do not consider it to be a strained interpretation of s. 34(1)(b) to say that use of the information by the union is “necessary” for the employer to carry out its statutory duty of running a bus company. Moreover, the employer also has a statutory duty under ss. 48 and 49 of the Labour Relations Code to carry out the terms of the collective agreement:

48 A collective agreement is binding on

(a) a trade union that has entered into it or on whose behalf a council of trade unions has entered into it, and every employee of an employer who has entered into it and who is included in or affected by the agreement, and

(b) an employer who has entered into it and on whose behalf an employers’ organization authorized by that employer has entered into it.

49(1) A person bound by a collective agreement, whether entered into before or after the coming into force of this Code, must

(a) do everything the person is required to do, and

(b) refrain from doing anything the person is required to refrain from doing

by the provisions of the collective agreement.

[66] As the union says, the employer’s hiring decisions cannot be made outside the collective agreement. The parties in this case have bargained for and agreed to the manner in which job competitions will be conducted and the factors to be considered in new job appointments for OPEIU [COPE] positions. Having accepted these provisions in the collective agreement, the employer is required by legislation to ensure that they are carried out. Disclosure to the union as required by the collective agreement is necessary to help ensure that this statutory obligation is being met.

[67] The employer points to s. 33.2(h), which is the only provision that specifically deals with disclosure to a bargaining agent, and says that it highlights the limited application of s. 34 in this case. Section 33.2(h) reads:

33.2 A public body may disclose personal information referred to in section 33 inside Canada as follows:

. . .

(h) to a representative of the bargaining agent, who has been authorized in writing by the employee whom the information is about, to make an inquiry; …

[68] Section 33.2(h) recognizes that union members still have a right to personal privacy. However, in my view, this section does not limit a union’s ability to satisfy one of the other circumstances in s. 33. Since disclosure is inside Canada, if any of the circumstances in s. 33.1 or s. 33.2 are met then disclosure is permitted.

[69] I conclude that it would be consistent with the purpose of selecting a suitable candidate for the employer to provide the information contained in the job applications to the union. Disclosure is permitted under s. 33.2(a).

How much personal information should be disclosed?

[70] Having found that disclosure is permitted under s. 33.2(a), the employer must ensure it discloses only the minimum amount of information. In Investigation P97-009; Insurance Corp. of British Columbia, supra, the privacy commissioner stated:

[26] …The rule is that public bodies should disclose only the personal information that is necessary to complete a task, thus minimizing intrusions into the lives of its clients. …

[71] Disclosure is permitted under s. 33.2(a). As discussed above, the union’s use of the information for the purpose of ensuring the employer’s hiring decision complies with the collective agreement is consistent with the purpose for which the information was obtained. Only personal information necessary to meet the union’s purpose can be disclosed.

[72] Article 7.11(g) is intended to provide the union with the information necessary to ensure the selection provisions of the collective agreement are carried out properly. Specifically, under Article 7.11 members of the union are entitled to preference in the hiring process.

[73] The union requires the information in the job applications to determine whether or not the collective agreement has been breached, and whether to pursue a grievance. This task does not require the job applications of unsuccessful candidates who are not union members. Disclosure must be limited to what is necessary to ensure the obligations in Article 7.11 are met. The only information required for this task is the job applications of successful candidates and of COPE Local 378 members. Personal privacy can be further protected by removing personal identifiers such as name and contact information. In addition, personal information found in either the successful applicant’s or a COPE member’s application that does not relate to ability to perform the vacant job or to seniority should be blocked out. Again this information is not necessary at this stage and is beyond the scope of permissible disclosure. Disclosing the job applications of the successful candidate and of COPE members, with the limitations mentioned above, will satisfy the intentions of Article 7.11(g) and the Act.

[74] One must not confuse the disclosure of the job applications to the union with disclosure to the general public. The privacy interests of job applicants are protected because the information provided to the union can only be used for the specific purpose of ensuring the employer complied with the collective agreement’s selection process. Once the union collects the personal information, the Personal Information Protection Act, R.S.B.C. 2003, c. 63 (the “PIPA”) applies to any subsequent use and disclosure by the union. PIPA also imposes obligations on the union to ensure that security arrangements are made to properly protect the information.

[75] Limiting disclosure in this case to the successful candidate’s job application, as well as the applications of any COPE members, interprets Article 7.11(g) in a manner that conforms with the Act. It also strikes a proper balance of protecting individual privacy while at the same time providing the union with access to the information it has bargained for and requires in order to ensure the job competition provisions of the collective agreement are followed.

[76] It would be reasonable for the employer to make efforts to inform job applicants that the job applications of successful candidates and of COPE members may be disclosed to the union for the purposes of ensuring compliance with the collective agreement.

[77] This disposition does not impair the union’s right to seek further disclosure in an individual grievance. Section 3(2) of the Act says:

This Act does not limit the information available by law to a party to a proceeding.

A grievance arbitrator can make an order for disclosure of additional information necessary for a fair hearing.

[78] However, the union’s limited right to disclosure under s. 33.2(a) is one that can be exercised in advance of a grievance being filed. It may serve to render some grievance proceedings unnecessary, and thereby to effect a saving of time and expense. It protects all strangers to the collective agreement from disclosure of their personal information, save for a successful job applicant who is not a union member. It provides the union with sufficient information to determine whether a grievance is merited, while infringing upon individual privacy rights as little as possible.

VII. CONCLUSION

[79] I would therefore allow the appeal from the arbitration award to the extent indicated.

“The Honourable Chief Justice Finch”

I Agree:

“The Honourable Mr. Justice Lowry”

I Agree:

“The Honourable Madam Justice Kirkpatrick”

Citation:	*Canadian Office and Professional Employees’ Union, Local 378 v. Coast Mountain Bus Company Ltd.,*
	2005 BCCA 604