March

Privacy in the workplace is an evolving area of the law.
 
Currently, the question of whether an employer is subject to privacy laws is largely dependent on the province or jurisdiction in which it operates. However, many employers find that it makes good business sense to establish privacy policies that establish rules and expectations for employees and managers to follow. These policies can assist in finding the balance between the employer's "need to know" and an employee's right to privacy.
 
There are presently four jurisdictions that have privacy laws that apply to employers in the private sector. Employers in the following jurisdictions should ensure that their operations are in compliance with the applicable law:

Federal: The Personal Information Protection and Electronic Documents Act (PIPEDA)

Alberta: The Personal Information Protection Act (Alberta PIPA)

British Columbia: The Personal Information Protection Act (BC PIPA)

Quebec: An Act respecting the protection of personal information in the privacy sector
(Quebec Private Sector Act)

It has now been just over five years since Bill 168, now known as Part III.0.1 of the Occupational Health and Safety Act (Ontario) (OHSA or the Act), amended the OHSA on June 15, 2010.
 
As Ontario employers are now generally aware, the amendments required employers to establish workplace violence and harassment policies, develop programs to implement those policies and provide employees with information regarding these policies and programs.
 
The purpose of this paper is to review the arbitral, common law and tribunal jurisprudence that has since emerged interpreting the amendments to the OHSA. The paper begins with a summary of Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance), followed by a review of the recent Ontario Labour Relations Board (OLRB or the Board) decision in Hydro One Inc. v. CUSW.
 
The paper also includes a note on Bill 132, which is the Ontario government's proposed new legislation dealing with amendments to various statutes with respect to sexual violence, sexual harassment, domestic violence and other related matters and lessons and takeaways for employers that can be drawn from the case law.

On December 1, 2015, Ontario passed the Police Record Checks Reform Act, 2015, which will have concrete implications for the ways in which employers conduct criminal background checks, and the information that will be made available to employers pursuant to these checks.
 
The Act establishes comprehensive province-wide standards governing the type of information that can be disclosed by police in response to record check inquiries, and is intended to remove unnecessary barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities.
 
The policy rationale underlying the Act is concerned with preventing the inappropriate disclosure of non-conviction and non-criminal records. Perhaps the most significant implication is the fact that it requires that the individual about whom requested information relates first receive and have an opportunity to review the information, and then consent to its disclosure.