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The HR Space: Employee Privacy Rights and Employer Liability – How Much?

Reading Time 2 minute read

Labour, Employment and Human Rights Bulletin

The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk.

In a recent Alberta arbitration award (PDF), the arbitrator awarded damages to employees for a breach of their privacy rights, in the amount of $1,250 each. 

The grievance arose after the province of Alberta conducted background credit checks, without consent, on 26 government employees. The employees worked in an area, maintenance enforcement, that gave them discretion in handling funds on behalf of the Province. The Province had been investigating the passing of fraudulent cheques in the maintenance enforcement program. Nonetheless, the Province admitted that the investigator’s conduct in ordering the credit checks without consent breached the employees’ rights under Alberta’s Freedom of Information and Protection of Privacy Act. The Province also wrote apology letters to each of the employees.  

After the employees became aware that the background credit checks had been conducted, a complaint was made to the Alberta Information and Privacy Commissioner.  That office conducted its own investigation, finding that the credit checks were unauthorized and in contravention of the privacy legislation. The investigator also concluded that reasonable steps had been taken to prevent a recurrence, and decided not to recommend a formal inquiry.  

In the arbitration hearing the Union argued on the basis of the recent Ontario Court of Appeal decision, Jones v. Tsige, that the arbitrator should take into account the right to be free from intrusion upon a person’s seclusion or their private affairs. The arbitrator applied Jones, and considered:

  • the nature of the wrongful act,
  • the effect on the employees, and
  • the conduct of the parties both before and after the wrong, including any apology or offer of amends made by the offending party. 

The Union also relied on the Federal Court decision of Nammo v. Trans Union of Canada (PDF), where the Federal Court had ordered damages to be paid to Mr. Nammo. In that case, Trans Union had reported wrong information about Mr. Nammo’s credit history to a bank from which Mr. Nammo was attempting to obtain a business loan.

The arbitrator in the Alberta case found that a modest award of damages to each employee was appropriate. Damages were set at $1,250 per employee. The Province’s “clear and unrestrained admission of error” and its apology letter were found to mitigate the employees’ concerns and likely lessened the damages that otherwise might have been awarded. But the employees were still entitled to monetary compensation for having their individual privacy rights invaded through the unjustified search of their credit records.

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