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Expanded Case Summary

B.C. Public School Employer’s Assn. (2012), 219 L.A.C. (4th) 391 (Lanyon)

The commentary that follows addresses the union’s application under FOIPPA.

 Arbitrator Lanyon stated:

Both parties agree that the governing authority in this matter is the British Columbia Court of Appeals’ decision in Coast Mountain Bus Company, (2005) B.C.C.A.A.A. 604. This case involved an appeal by the Union from an arbitration award that upheld the Employer’s refusal to disclose documents under FOIPPA. The facts in that case involved a selection grievance, [with the union seeking documents of others who had been part of the competition]. The arbitrator concluded that this personal information related to the employment, occupation and education history of these persons and that, as a result, there was a presumption under Section 22(3)(d) that the release of this information would be an unreasonable invasion of the privacy of these third parties.

The B.C. Court of Appeal concluded that the information was “… clearly personal information as defined in Schedule 1 of the Act, and is not information that is available to the public.” (paragraph 46). The Court stated that the Act has two competing legislative goals: the first goal is to provide access to information that is in the possession of public entities; the second goal is to protect personal privacy. The Court goes on to explain that under Part 2 access is the general rule except where disclosure would result in harm to the public body or to a third party. Part 3 of the Act is designed to protect persons from the unlawful collection, use or disclosure of personal information.

The arbitrator in Coast Mountain Bus Company, supra, concluded that Section 22 took precedence over Section 32 of FOIPPA. However, the Court concluded that Section 22 dealt primarily with requests by citizens for access to information held by public bodies, and that where a bargaining agent is seeking disclosure under the provisions of a collective agreement that application is governed under Section 33 of FOIPPA.

The arbitrator quoted further from the Court’s decision:

… 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.

Arbitrator Lanyon also commented that he noted the following remarks of the Court in respect to its application of Section 33 of FOIPPA:

First, the Court of Appeal concluded that a collective agreement must be read subject to FOIPPA: “Provisions in the collective agreement must now comply with the Act.” Second, Section 33 sets out the only circumstances under which the public body may disclose personal information. Third, the Court stated that Section 33 “permits disclosure, it does not require it” (para. 56). Fourth, Section 33.2(a) permits disclosure of personal information under two sets of circumstances: first, the information may be disclosed for the purpose for which it was obtained or compiled; and second, the information may be disclosed for use consistent with that purpose (para. 58). Fifth, Section 34 defines when the use will be deemed to have a “consistent purpose”. The new use must have a “reasonable and direct connection to the original purpose”; and second the new use 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” (para. 59). A reasonable and direct connection is one which is rationally connected to the original purpose (para. 60).

After considering the foregoing factors in the context of this case, arbitrator Lanyon commented:

In addressing the issue of discretion under Section 33 the Court of Appeal provides no express guidelines. However, at paragraphs 17 and 18, the Court of Appeal quotes from the Supreme Court of Canada’s decision in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (S.C.C.) at para 48, that in respect of personal information, “privacy is paramount over access.”

This inherently calls for balancing the legislative goals of access and privacy. Part 2 concerns access, which is the general rule, unless it results in harm to either a public body, or to a third party.

The strong statutory presumption against the release of the personal information, weighed against the fact that the provision of the personal information being sought was more a matter of administrative convenience rather than necessity, led arbitrator Lanyon to conclude that the union’s reasons for the request of information pursuant to FOIPPA were not sufficient to overcome the statutory presumption of privacy.

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