FPSLREB Decisions

REASONS FOR DECISION

I. Isssue before the Board

1        Shelley Wepruk (“the grievor”) was employed as a border integrity specialist in the inspectorate program of the Department of Health (“the employer”) located in Burnaby, British Columbia. The grievor filed eight grievances against the employer, including about the termination of her employment. The nature of those grievances is set out in an earlier interim decision concerning certain jurisdictional issues relating to those grievances; see Wepruk v. Treasury Board and Deputy Head (Department of Health), 2016 PSLREB 55.

2        This is an interim decision dealing with an objection raised by the grievor to the admissibility in the adjudication proceedings before me of a transcript of her testimony before the Social Security Tribunal (SST) and the SST’s decision on her eligibility for employment insurance benefits, which documents I have not seen. The objection is based on an alleged prohibition in the Department of Employment and Social Development Act (S.C. 2005, c. 34; DESDA).

3        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Arguments of the parties

4        The written submissions of the parties are annexed to this decision.

III. Reasons

5        The issue to be addressed is whether the DESDA prohibits the admissibility, in the adjudication proceedings before me, of the transcript of the grievor’s testimony before the SST and of the SST’s decision concerning her eligibility for employment insurance benefits.

6        For the purpose of this analysis, it is useful to set out the relevant statutory framework.

7        Section 42 of the DESDA contains as follows a prohibition against using and allowing the use of information protected under Part 4 of the DESDA, which is titled “Protection of Personal Information”:

42 (1) Every person or body commits an offence if they knowingly make available information that is privileged under this Part, or knowingly use or allow such information to be used, otherwise than in accordance with this Part or subsection 28.2(5) or (6), or a condition or agreement referred to

(a) in subsection 33(2) or any of sections 35, 36, 36.2 and 38 of this Act;

(b) in section 104.1 or 105 of the Canada Pension Plan; or

(c) in section 39 of the Old Age Security Act.

8        Section 31 of the DESDA states as follows the purpose of Part 4 of that Act:

31 This Part sets out the rules that apply to the protection and the making available of information that is obtained by the Minister or the Commission under a program or prepared from that information. This Part also sets out principles for the use of information for research purposes.

9        Thus, section 31 refers to the rules that apply to the protection of and access to information obtained by the minister or the Commission under a program. Several of those terms are defined in the DESDA.

10        The term “information” is defined as follows in s. 30(1):

30 (1) The following definitions apply in this Part.

…

information means personal information as defined in section 3 of the Privacy Act, except that the portion of that definition between paragraphs (i) and (j) shall be read as “but, for the purposes of this Part, does not include”. (renseignements)

[Emphasis in the original]

11        “Minister” is defined as follows in s. 2:

2 The following definitions apply in this Act.

Minister means the Minister of Employment and Social Development. (ministre)

[Emphasis in the original]

12        However, for the purposes of Part 4, s. 30(2) provides as follows:

30 (2) For the purposes of this Part, a reference to the Minister includes the Minister of Labour in respect of any program, legislation, policy or activity the administration or enforcement of which is the responsibility of the Minister of Labour.

13        The term “Commission” is defined in s. 2 as follows:

Commission means the Canada Employment Insurance Commission continued by section 20. (Commission)

[Emphasis in the original]

14        Lastly, the term “program” is defined in s. 30(1) as follows:

program, except in subsection (2), means any program the administration or enforcement of which is the responsibility of the Minister or the Commission and includes any legislation, policy or activity the administration or enforcement of which is their responsibility. (programme)

[Emphasis in the original]

15        The above-cited provisions state that the purpose of Part 4 of the DESDA is to protect personal information obtained by the Minister of Employment and Social Development or the Minister of Labour under a program administered or enforced under the responsibilities of those ministers or obtained by the Canada Employment Insurance Commission under a program administered or enforced under its responsibility.

16        The transcript of the grievor’s testimony before the SST and the SST’s decision concerning her eligibility for employment insurance benefits do not contain information mentioned in s. 31 of the DESDA. Rather, they contain information the SST obtained within the administration of proceedings before it.

17        The SST is clearly established under Part 5 of the DESDA as an entity independent of the Minister of Employment and Social Development, the Minister of Labour and of the Canada Employment Insurance Commission.

18        In support of her arguments, the grievor relied on the arbitration award in Pacific Inland Resources v. Northern Interior Woodworkers Assn., Local 1 (2011), 105 C.L.A.S. 271. However, that award did not consider whether information obtained by the SST within the administration of proceedings before it is protected under Part 4 of the DESDA.

19        Further, in Pacific Inland Resources, it is clear that the documents at issue contained information obtained by the Canada Employment Insurance Commission under a program as defined under s. 30(1) of the DESDA. Accordingly, that decision is distinguishable from the circumstances of the issue before me.

20        Therefore, I find that Part 4 of the DESDA does not prohibit the admissibility, in the adjudication proceedings before me, of the transcript of the grievor’s testimony before the SST.

21        I further find that nothing prohibits the admissibility of those parts of the SST’s decision concerning her eligibility for employment insurance benefits that do not contain information obtained by the Minister of Employment and Social Development or the Minister of Labour under a program administered or enforced under the responsibilities of those ministers, or obtained by the Canada Employment Insurance Commission under a program administered or enforced under its responsibility.

22        The employer argued that if I find that Part 4 of the DESDA does not apply, then s. 8(2)(d) of the Privacy Act (R.S.C. 1985, c. P-21; PA) permits the disclosure, for use in the proceedings before me, of the transcript of the grievor’s testimony before the SST and the SST’s decision concerning her eligibility for benefits. That provision reads as follows:

8 (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

…

(d) to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada …

23        I need not consider that provision to determine whether the SST transcript and decision should be disclosed in the adjudication proceedings before me. Under s. 20(e) of the PSLREBA, the Board has the power to accept any evidence, whether admissible in a court of law or not. In addition, s. 20(f) allows the Board to compel any person to produce documents that may be relevant to a proceeding. Furthermore, the PA does not limit the powers of the Board to manage evidence in adjudication hearings; see Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83; and Sather v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 95.

24        Any other objection that may be raised with respect to the admissibility of the transcript of the grievor’s testimony before the SST and the SST’s decision concerning her eligibility for employment insurance benefits will be dealt with at the resumption of the hearing.

25        For all of the above reasons, the Board makes the following order:

IV. Order

26        The objection to the admissibility of the transcript of the grievor’s testimony before the Social Security Tribunal is dismissed.

27        The objection to the admissibility of the Social Security Tribunal’s decision concerning the grievor’s eligibility for employment insurance benefits is allowed only with regard to any information that may be contained therein that was obtained by the Minister of Employment and Social Development, the Minister of Labour, or the Canada Employment Insurance Commission under a program for which they are responsible. I order the respondents to prepare copies of the Social Security Tribunal’s decision redacting the said information.

February 17, 2017.