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Category Archives: Privacy

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Be Careful What You Wish For: Social Media Background Checks and Privacy Laws

Posted in Best Practices, Employer Obligations, Privacy

Social media has drastically changed the way people communicate and do business. Naturally, employers may want to take advantage of the convenience of performing background checks on social media. But with increased use of social media comes increased risk of a privacy violation.

In May 2017, the Office of the Information and Privacy Commissioner for British Columbia (OIPC) published a guidance document aimed at helping private organizations and public bodies navigate the complex relationship between social media background checks and privacy laws. The document’s main points are summarized below.

The collection, use, and disclosure of personal information retrieved from social … Continue Reading

Office of the Information and Privacy Commissioner highlights transparency and trust during Privacy Awareness Week

Posted in Best Practices, Employer Obligations, Privacy

If you follow the Office of the Information and Privacy Commissioner for British Columbia on twitter (@BCInfoPrivacy), then you will have noticed a series of posts about Privacy Awareness Week. Privacy Awareness Week is an initiative commenced in 2006 by the Asia Pacific Privacy Authorities forum, of which British Columbia is a member, and is held annually to promote the awareness of privacy issues.

This week (May 15 to May 21), the Office of the Information and Privacy Commissioner is undertaking various activities for individuals and businesses in celebration of Privacy Awareness Week, including:

  • Releasing the
Continue Reading

The Office of the Information and Privacy Commissioner reminds BC’s private businesses that use of video surveillance is a last resort

Posted in Employer Obligations, Privacy

In February 2017, at the 18th annual Privacy and Security Conference, Acting Commissioner Drew McArthur (“Commissioner”) commented on the first-ever audit of a private sector business conducted by the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”). He stated that OIPC “used this audit as an important opportunity for public education, and a reminder to private businesses that they should only use video surveillance as a last resort after exploring other less privacy-invasive options.” The Commissioner’s speech is available here.

OIPC initiated the audit of the lower mainland medical clinic (“Clinic”) after receiving a complaint … Continue Reading

New Human Rights and Privacy Protections For ‘Genetic Test Results’ Introduced

Posted in Discrimination, Human Rights, Legislative Changes, Privacy

Federally-regulated employers may soon be seeing changes to privacy and human rights laws in relation to genetic information. On June 9, 2015, the federal Minister of Justice introduced Bill C-68, otherwise known as the Protection Against Genetic Discrimination Act. The bill is aimed at better protecting persons’ genetic information in Canada. The latest version of the bill can be found here.

Bill C-68 will clarify the law relating to the use, collection, and disclosure of genetic information by amending three pieces of federal legislation: the Canadian Human Rights Act, the Personal Information Protection and Electronic Document Act (PIPEDA) Continue Reading

Further Guidance From the Privacy Commissioner

Posted in Best Practices, Privacy

Following our post, here, regarding the outcome of the investigation conducted by the Office of the Information and Privacy Commissioner (“OIPC”) into the District of Saanich spyware complaint, the OIPC has published guidelines for B.C. employers to follow when implementing IT protections to ensure privacy legislation is complied with, found here. In conjunction with the best practices identified in our post, the OIPC’s guidelines are a useful reference that can help employers protect their businesses and avoid privacy complaints.  It is worth noting that the OIPC’s guidelines are guidelines only and do not have the effect of law. … Continue Reading

Lessons From The Saanich Spyware Fiasco And New Privacy Laws To Be Aware Of

Posted in Best Practices, Employee Obligations, Intellectual Property, Investigations, Privacy

In our current information age, security over electronic information and protection against unauthorized access is foundational to employers’ businesses. To guard against endlessly multiplying electronic threats, employers must resort to electronic means and, understandably, often resort to broad and comprehensive software to protect their operations. However, the situation involving the District of Saanich earlier this year is a good reminder to all B.C. employers that cyber-protection cannot be used at the expense of employees’ privacy. Moreover, recent amendments to the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which our colleagues posted on here, now make privacy law … Continue Reading

Have Your Say on BC’s Private Sector Privacy Legislation

Special Committee to Review the Personal Information Protection Act

Posted in Privacy

Since it came into force in 2004, British Columbia’s private sector privacy legislation, the Personal Information Protection Act, has had a significant impact on the way British Columbia employers collect, use and disclose the personal information of their employees and others.  The last review of the Act took place in 2008. A Special Committee is currently undertaking a review of the Act, including public consultation. If you or your organization are interested in participating in the consultation, you can do so by:

  • Attending a public hearing on September 8 or 9, 2014; or
  • Making written submissions to the Committee
Continue Reading

Employer’s Potential Liability in Class Action for Employee’s Breach of Privacy A Good Reminder For All

Posted in Employee Obligations, Litigation, Privacy

A recent decision of the Ontario Superior Court of Justice highlights the increasing focus on (and potential liability arising from) customers’ and clients’ privacy rights and the importance for employers to properly monitor the activities of their employees. Additionally, while the decision comes from Ontario, which, unlike British Columbia, has endorsed the tort of “intrusion upon seclusion”, it also raises questions about whether British Columbia courts will eventually recognize the tort.

Evans v The Bank of Nova Scotia was a decision regarding the certification of a class action that involved a bank employee who admitted to accessing and stealing personal … Continue Reading

No Anonymity for Grievors

BC Labour Board rules that grievors and witnesses should be identified in labour arbitration decisions

Posted in Labour Relations, Privacy, Unions

The Labour Relations Board has upheld BC Arbitrator Stan Lanyon’s decision in Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518 (discussed previously here) that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards.

The union argued that British Columbia’s Personal Information Protection Act (PIPA) prohibits the disclosure of the names of grievors and witnesses in labour arbitration awards without their consent. In the union’s view, the increasingly easy public access to arbitration awards because of sophisticated internet search engines and free legal websites like Canlii mean … Continue Reading

From the Desk of the HR Manager: Spring Cleaning – Performing an HR Audit

Posted in Discipline, Employment Standards, Litigation, Occupational Health and Safety, Privacy, Termination, Wage and Hours, Workers Compensation, WorkSafeBC

Our colleagues in Ontario recently posted a very useful outline of an HR audit that will help BC employers ensure they stay up-to-date and on top of the wide variety of employment-related demands in their operations. As the saying goes, “an ounce of prevention is worth a pound of cure”.… Continue Reading

British Columbia Privacy Commissioner Recommends Limits on Police Information Checks

Employers who rely on police information checks to assess the suitability of prospective employees may now have to make do with less information.

Posted in Privacy, Recruiting

In an investigation report released this month, the British Columbia Information and Privacy Commissioner made recommendations which will limit information disclosed by police departments in employment-related police information checks.

Until recently, police departments in British Columbia have included information about prior criminal convictions, outstanding charges, contact with the police during an investigation (e.g., as a suspect or witness), and apprehensions under the Mental Health Act in employment-related police information checks. These checks are done with the consent of the employee, for employers and employees who are not covered by the Criminal Records Review Act (“CRRA”) (previously discussed here).

The … Continue Reading

Hot Off the Press – Doing Business in Canada: Navigating Opportunities for Investment and Growth

Posted in Benefits, Compensation, Pensions, Human Rights, Labour Relations, Privacy

If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.

The book includes a chapter on employment in Canada, with sections on:

  • employment standards
  • labour relations
  • human rights
  • occupational health and safety
  • privacy
Continue Reading

Suncor Loses on Random Alcohol and Drug Testing

Issues about required evidence

Posted in Human Rights, Labour Relations, Occupational Health and Safety, Privacy, Unions

The long-awaited arbitration decision is in, and the result is a loss for random alcohol and drug testing.  (See the Decision here and the Dissent here.)

Suncor had tried to implement a random drug and alcohol testing policy with respect to all of its  safety-sensitive employees in the oil sands.  The union resisted and was able to get an injunction from the Alberta courts to prevent implementation of the policy until the arbitration was completed.

A majority of the three member arbitration panel ruled against Suncor.  They found that there was insufficient evidence of a problem with alcohol and … Continue Reading

Teck Allowed to Proceed with Random Testing

New development in drug and alcohol testing

Posted in Employee Obligations, Human Rights, Labour Relations, Occupational Health and Safety, Privacy, Unions

Teck Coal will be allowed to continue to implement its random alcohol and drug testing policy while the union pursues its grievance to overturn the policy.  Arbitrator Colin Taylor had previously denied the union an interim order to stop implementation of the policy (see our previous post here) and the BC Labour Relations Board has dismissed the union’s appeal of that decision.  The decision is Teck Coal Limited, BCLRB No. B28/2014.

This means Teck will be allowed to follow its policy for now and the matter will go to arbitration for a decision as to whether the policy … Continue Reading

Other December Blog Posts

Non-employment issues of interest

Posted in Litigation, Privacy

As usual, our colleagues in other areas of practice are raising issues that may be of interest to employers in BC.  Here are three from this month:

BC’s Low Carbon Fuel Standard – This could affect your business in BC.

Foreign Judgment Enforcement in Canada – If your business is operating outside Canada, you need to understand the reach of the law of those other countries.

Privacy Law Changes in Europe – Might these ideas find their way to Canada?… Continue Reading

BC Refines its Criminal Record Checks Regime

Employers' Rights Preserved

Posted in Privacy, Recruiting

The Province has made it possible for employees and volunteers to rely on a single criminal record check for a five year period with multiple employers, yet an employer’s right to require a criminal record check in every case is preserved.

The Province has made some important amendments to the Criminal Records Review Act (the “Act”), directed mostly at employees and volunteers who work with children or vulnerable adults but which could also impact employers. The Criminal Records Review Amendment Act (the “CRRAA”) came into force on November 30, 2013, and includes these changes that will … Continue Reading

Pick of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Labour Relations, Litigation, Occupational Health and Safety, Privacy, Unions

Other McCarthy Tétrault blogs regularly touch on issues of importance for BC employers.  Here is a selection from the last month.

Managing the risks of holiday parties.  The office party season can be interesting.  Think about how you can manage the risks.

It’s flu season.   Tips for dealing with sickness in the workplace.

Trespassing on private property?  Maybe not.  Think picketing and leafleting.  A business’s property rights – and the ability to control trespassing – may not be as clear as you think, especially if the business invites the public on its property or operates in a publicly accessible area.… Continue Reading

Drug and Alcohol Testing: Safety vs. Privacy

Safety Wins For Now

Posted in Labour Relations, Litigation, Occupational Health and Safety, Privacy, Unions

Random alcohol and drug testing causes irreparable harm to privacy interests, but not allowing it creates a risk of even greater irreparable harm to safety.  That was the decision reached by an Arbitrator who was asked by a union to make an interim order to prevent the employer from implementing its new testing policy.  (The decision is Teck Coal Limited, Unreported Arbitration Award, May 9, 2013 (Taylor)).

This is NOT a finding that random alcohol and drug testing is allowed.  That is still very much in dispute and this decision was on the narrow issue of whether the employer … Continue Reading

Alberta Privacy Legislation Shot Down

Will also affect BC

Posted in Labour Relations, Privacy, Unions

The Alberta Personal Information Protection Act has been declared unconstitutional by the Supreme Court of Canada.  The sweeping decision was prompted by union video surveillance of people crossing a picket line.  Because PIPA does not have any exemption to allow for a union to advance its interests in a labour dispute, it was held to be an unreasonable restriction on the union’s freedom of expression guaranteed by the Charter of Rights.

Alberta will have 12 months to make changes to the law before the declaration of invalidity takes effect.  BC is effectively in the same boat since its Personal Continue Reading

Grievor To Be Identified – Again

No General Rule to Anonymize Names

Posted in Labour Relations, Privacy, Unions

Another Arbitrator in BC has decided against a general rule of anonymizing the names of grievors and witnesses in labour arbitration awards.  The decision of Arbitator Stan Lanyon in the Sunrise Poultry case (Unreported, October 28, 2013) is the case we anticipated in our previous post on this issue.

Like Arbitrator John Sanderson in the Husband Food Ventures case, Arbitrator Lanyon was dealing with a request by the United Food & Commercial Workers, Local 1518 to have the names of the grievor and witnesses remain confidential in any Award in the matter.  And like Arbitrator Sanderson, Arbitrator Lanyon decided there … Continue Reading

Best of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Employment Standards, Human Capital, Human Rights, Litigation, Privacy, Termination, Wage and Hours

Our firm now publishes 10 different blogs, and they often have items of interest for BC employers.  Here is a sampling of recent posts:

Customer Contacts on Linkedin = Property of the Employer – good news from the UK courts.

Five Employment Issues Facing Retailers – similar issues for retailers in BC.

Notices of Termination – can you terminate an employee before the effective date of their resignation?

Restrictive Covenants and Sale of a Business – how are they interpreted and when will they be enforced?

10 Things You Should Know About BC’s New Limitation Act – including reducing the … Continue Reading

Google Glass Coming to Your Workplace

Are you ready?

Posted in Employee Obligations, Occupational Health and Safety, Privacy

Wearable computing is creating quite a stir, and its likely introduction into the workplace is worth preparing for.

Google Glass is still in field trials and not generally available, but already it has been banned from places that don’t want people to be able to compute, take photos, record, access the internet, and generally be a walking computer, through a pair of glasses.

Privacy authorities in Canada, Europe, Australia, New Zealand, Mexico and Israel are concerned.  They have written to Google to remind them of the law on collecting, using and disclosing personal information, and to chastise Google for not … Continue Reading

Surveillance by Union Allowed

Necessary for Investigation of Replacement Worker Violations

Posted in Labour Relations, Privacy, Unions

Two different panels of the BC Labour Relations Board have made findings in favour of a union’s covert video surveillance at the IKEA store in Richmond, BC.  The store has operated behind a picket line since May 13.

With over 300 unionized employees on the outside looking in, and only 27 who have decided to cross the picket line, most store operations have continued.  The kids’ ballroom is closed, and the 600 seat cafeteria isn’t serving up Swedish meatballs (or anything else), but otherwise the store is open and sales are being made.  That has made the union suspicious that … Continue Reading