Ottawa, Ontario, February 27, 2007
PRESENT: The Honourable Barry Strayer
BETWEEN:
and
SCOTIA CAPITAL INC./SCOTIA CAPITAUX INC.
and THE BANK OF NOVA SCOTIA
and
The Office of the Privacy Commissioner of Canada
Respondent
REASONS FOR JUDGMENT
[1] This is an application under subsection 14(1) of the Personal Information Protection and Electronic Documents Act (the “Act”) for a hearing in respect of matters concerning the subject of a complaint to the Privacy Commissioner under subsection 11(1) of the Act. Subsection 5(1) of the Act requires every organization within federal jurisdiction (other than government institutions) to comply with the Code of Principles set out in Schedule 1 of the Act.
Facts
[2] The Applicant, in his Notice of Application, requested the Court to make the following substantive orders:
a. An order that the Respondent immediately cease representing any documents containing the personal information of the Applicant for purposes other that [sic] documented and identified to the Applicant before or at the time of information collection and specifically to cease representing and using the Investment and Corporate Banking Staff Plans containing the personal information of the Applicant as records of hours of work in any respect.
b. An order that the Respondents provide the Applicant a written apology for the offences under PIPEDA detailing the specific actions which caused the offence and the outcome and resolution resulting from the application to the Federal Court of Canada.
c. An order that the Respondent, within 30 days, correct its practices to comply with sections 5 to 10 of the PIPED Act, and in particular
1. cease using and representing the personal information and documents collected within the Investment and Corporate Banking Staff Plans for any purpose other than that identified before [sic] at the time of collection; and
2. immediately commence identifying in writing the purpose of information collected with respect to employees [sic] hours of work before or at the time of information collection as required by the PIPED Act.
d. An order that the Respondent publish a notice of any action taken or proposed to be taken to correct its practices.
[3] The Applicant was employed as a Corporate Banking Associate by Scotia Capital Inc., a division of the Bank of Nova Scotia (the “Bank”) from July 23, 2001 to October 23, 2002. His employment was terminated without stated cause. He was dissatisfied with severance arrangements and retained counsel. An agreement was reached in May, 2003. However, in July 2003, the Applicant commenced action against the Bank claiming various forms of damages and an amount allegedly owed to him for overtime for which he had never been paid. That action was dismissed, as was an appeal by the Applicant, on the grounds that he had signed a settlement agreement which precluded him from further action.
[4] It is not in dispute that the Applicant, while employed at the Bank, worked many hours in excess of the normal work week. It is also apparent that the Bank took the position that he was at a management level and its policy was that persons at the 006 level where he was (or above) were regarded as part of management and by their contract of employment they were not entitled to overtime pay. (For convenience, I shall refer to this group as “exempt staff”.) The expectation of working long hours was made apparent in company recruitment and informational sources. It is also apparent to me that the Applicant was fully aware that there was no means in place for the Bank to monitor and record the number of hours he actually worked. There was a form of record known as a “Staff Plan.” These plans covered the work of many employees month by month. They showed days worked and not worked. They also showed “paid non-productive days”, a category which was subdivided to indicate their reason for being “non-productive” such as “vacation”, “statutory holiday”, “illness”, “personal obligation”, etc. There was also a double column headed “total hours” and beneath that “overtime.” Under the “overtime” heading there were two columns headed “paid” and “not paid.” Each employee’s days or half days worked or not worked were recorded on these plans. They initialled their own portion if they were in agreement with the record as prepared by the administration. It is apparent from looking at the plans that, for the most part, they purport to record presence or absence by the day or half day. The only mention of “hours” is in the double column headed “total hours” which pertains to overtime where, presumably, overtime would be recorded by the hour whether paid or not paid. In the case of the Applicant, there was never anything listed under the heading “overtime.” About this, the Applicant states in his affidavit:
During my employment I questioned the administration staff concerning the overtime columns on the Staff Plans. The Corporate Banking Division administration staff stated to me that the bank does not collect information on the hours worked by corporate banking administration staff.
(Corporate banking staff were apparently all exempt staff, meaning they were expected to work long hours without overtime).
[5] The basic controversy underlying this proceeding as well as the Applicant’s complaints to the Privacy Commissioner and to the Department of Labour is as to whether, while he was employed by the Bank, the Applicant was entitled to be paid for overtime. He has come to the conclusion, presumably since he ceased to work for the Bank at a fixed salary, that he was indeed entitled all the time to be paid for overtime work with the corresponding obligation on the Bank to keep a record of hours worked, including overtime. The Bank, on the other hand, takes the position that the Applicant was within the category of managers or professionals who by subsection 167 (2) of the Canada Labour Code, R.S. 1985, c. L-2 are excluded from entitlement to overtime pay and with respect to whom an employer need not keep a record of hours worked. As I understand it, the Applicant takes the position that the settlement he signed in May, 2003 with the Bank in respect of any amounts owing to him could not have had the effect of excluding him from entitlement under the Canada Labour Code to overtime pay, as this would amount to “contracting out” of a statutory protection for him.
[6] Consequently, on June 3, 2004, he wrote a letter to counsel for the Bank. His letter said “I am writing to you to collect my personal files from the Bank…I hereby request that all documents pursuant to my employment with the Bank be made available to me for my review.” He went on to say that he was interested in all documentation that the Bank was required to collect under the Canada Labour Code and the Canada Labour Standards Regulations. He invoked the Act which he said required the Bank to acknowledge the existence of such information and to provide him with access to it. On July 5, 2004, the Bank sent him a letter enclosing “a copy of personal information held by Scotia Capital.” It went on to say that in the event that they located additional personal information it would be provided as well. He wrote back on July 6, 2004, complaining that there were records missing from the material provided. Specifically, he said that the material did not include any of the documents that the Bank was required to maintain under the Canada Labour Code and the Employment Standards Act, some of which “are my overtime records”. He demanded that such documents be provided to him within 24 hours. That same day the Bank replied by a letter enclosing the Staff Plans covering his period of employment at the Bank. The letter contained the following sentences:
Please find enclosed a copy of the staff plans for the period July 31, 2001 to October 31, 2002 detailing your hours of work. The staff plans were initialled by you and do not denote any overtime hours. Other than the Staff Plans, the Bank does not have any other records of your hours of work.
On July 7, 2004, the Applicant replied to the Bank at length complaining about the inadequacy of the information and made the usual assertions about records required to be kept under the Canada Labour Code etc. Specifically with respect to the letter of July 6th from the Bank, he complained that the Staff Plans had been represented to employees at the time they were initialled as a record of vacation and other paid absences and not as a record of hours worked, whereas the letter of July 6th was “trying to use the Staff Plans as evidence” [of lack of overtime worked]. On July 9, 2004, the Applicant sent a complaint to the Privacy Commissioner reciting his request for information from the Bank and what he regarded as the Bank’s inadequate response. He complained that the Bank had not met deadlines prescribed by the Act, that it had kept inaccurate information, and that it was representing the Staff Plans as records of hours of work whereas when these had been completed and initialled by employees they were not represented to be for this purpose. That is, the Bank was in violation of the Act for using personal information for a purpose other than that for which it was gathered. He also complained that the Bank had withheld certain documents on the grounds of solicitor/client privilege in relation to the litigation then current between the Bank and the Applicant and on the basis that some of them were third party personal information that the Bank could not disclose.
[7] The Privacy Commissioner did not report her findings until October 31, 2005. She advised the Applicant that she agreed with the assertions by the Bank concerning solicitor/client privilege and third party material. She also reported that she could find no other personal information concerning the Applicant withheld by the Bank beyond what had been provided to the Applicant in the July 2004 correspondence or subsequently by the provision of T4 slips and payroll registers. Her report contained these comments about the Staff Plans:
The staff plans detail your attendance at work, namely, days worked during a specific period, vacation days, sick days, personal obligation days, paid statutory holidays, short-term disability leave days, and special leave days. The staff plans also addressed the total hours worked, including “paid” and “not paid” overtime hours. The plans did not denote any overtime hours worked by you during the period at issue. You signed off on the staff plans.
[8] On April 6, 2005, the Ontario Court of Appeal dismissed the Applicant’s appeal from the dismissal of his action by the Superior Court. On April 14, 2005, he sent a complaint to the federal Department of Labour with respect to the Bank’s alleged failure to pay him for overtime and its failure to keep records of his hours of work. Among the material he submitted was the Bank’s letter of July 6, 2004, quoted above, which he described as confirming “that the Bank did not have any records of my daily hours worked or overtime…”. As I understand it, that complaint is still under consideration and the real purpose of this proceeding, as can be seen from the orders requested as quoted above, is to prevent the Bank from representing that the Staff Plans are records of hours of work by the Applicant and that they show that the Applicant worked no overtime because the Plans, as initialled by him, consistently left the “overtime” column blank.
[9] It is, of course, for the procedures and mechanisms under the Canada Labour Code to determine whether the Bank was obliged to pay the Applicant overtime and whether it has failed to keep the required records of hours of work for those entitled to overtime.
Analysis
[10] The main thrust of the Applicant’s request to the Court is that I should stop the Bank from representing its Staff Plans as being a record of hours of work and overtime of the Applicant. But his only evidence that the Bank has done so or intends to do so is the letter from the Bank of July 6, 2004, a portion of which is quoted above. It is true that that letter is somewhat infelicitous. It describes the Staff Plans as “detailing your hours of work” whereas the only column recording “total hours” and “overtime” was logically irrelevant to exempt staff who in the Bank’s view, were not entitled to overtime. In respect of them, the Staff Plans did not deal with hours of work but instead with days of work. The Bank’s letter points out that his plans were initialled by the Applicant “and do not denote any overtime hours” as if to suggest that, had he worked any overtime hours, they would have been recorded which was not the case. The third sentence says that the Bank “does not have any other records of your hours of work” other than the Staff Plans. This suggests that the Staff Plans are some form of record of hours of work. If this letter were considered phraseology for a formal written agreement or even a deliberate announcement of policy, it would be found seriously wanting. I note, however, that this was language used in a private letter to the Applicant in hasty response to his latest letter of the same day in which he threatened to file a complaint under the Act within 24 hours if the Bank did not provide him with further information about his hours of work. This was correspondence between a former employer and employee about work and record practices at the Bank with which both were completely familiar. The Applicant knew very well (as stated in his affidavit quoted above) the purpose for which the Staff Plans were used and what information they did and did not contain. There is no evidence of the Bank having made this kind of representation as to the nature of the Staff Plans to anyone else. It is the Applicant who has sent copies of this personal letter to the Privacy Commissioner and to the Department of Labour. In sending it to the latter, he specifically said, as quoted above, that the Staff Plans did not contain information on hours of work as the Bank kept no such records. Had he not enclosed the letter, no one could have been misled by it.
[11] In fact, the position of the Bank as formally stated in its Memorandum of Fact and Law, is as follows:
49. In providing the Staff Plans to the Applicant in response to his specific requests, the Respondent Bank provided the only document it had which in any way touched on or remotely used the words of his requests. It provided the documents along with an accurate description of them; they detail his hours of work (by recording days worked and days, part days not worked or on exception basis with reasons), they were initialled by him, and they do not denote any overtime hours.
50. The Applicant took this neutral description, intended for his use only, as a positive assertion by the Respondent Bank that the Staff Plan would record overtime hours worked by him had he worked any. The Respondent Bank did not make this claim in its letter and has never made this claim. Given the fact that level 06 employees such as the Applicant were not treated as eligible for overtime under the Bank’s policy there was no reason to record either overtime, if worked, or hours.
51. The Applicant, in creating the assertion never made by the Bank that the Staff Plan would record any overtime worked, created a straw man upon which to base his complaint of change of use and lack of consent under PIPEDA.
52. Contrary to the Applicant’s allegation, the Respondent Bank has not and does not assert the Staff Plan evidences anything respecting whether or not the Applicant in fact worked overtime. Those Plans gathered the information they did respecting time worked and not worked pursuant to the consent provisions of Schedule I of PIPEDA, both express as the Applicant chronicles in his materials and as his signature each month denotes, and implied pursuant to s. 4.3.6. given the non-sensitive nature of the information.
I see no reason why the Applicant cannot cite this admission by the Bank against its own interest if ever required, should the Bank actually assert in future that the Staff Plans prove that he worked no overtime.
[12] In his written and oral arguments, the Applicant raised many complaints against the Bank in respect of its alleged non-compliance with the Act. I think I should confine my formal determinations to the specific orders requested by him as quoted above. In (a) he seeks an order against the Bank requiring it to cease representing the Staff Plans or similar documents as records of hours of work. As I have indicated, I see no evidence that the Bank has done that except in its maladroit letter to the Applicant himself, obviously written in haste. As the Bank has affirmed in these proceedings that it does not rely on the Staff Plans as proof of hours of work, no order is required.
[13] In (b) he seeks an apology from the Bank. In the circumstances, I see no conduct for which an apology is required. I am of course not dealing with the issue of whether the Applicant was entitled to overtime and whether the Bank was required to keep a record of his hours of work. That is an issue to be determined under the Canada Labour Code.
[14] The Applicant seeks orders of a general nature telling the Bank to cease using and representing personal information for purposes other than those identified when it was gathered. I have no evidence before me of the Bank’s use of other personal information and I have dealt with the use of the Staff Plan subject to one direction I will give later. He also asks the Court to require that the Bank identify in writing the purpose of information collected with respect to hours of work before or at the time of collection. I am not prepared to order that this must be done in writing. Principle 4.2.3 states that, depending on the circumstances, the purposes of data collection may be specified orally or in writing. For something as simple as a Staff Plan whose purpose was apparent on its face and which, according to the Applicant’s affidavit, he was informed of by administrative staff, I see no reason to require a written publication of purpose. Of course, the Bank is required to comply with the Act and there may well be circumstances in which they should provide a written statement with respect to certain personal information collected but I am not persuaded that such is specifically required in respect of the Staff Plans and I have no other forms of information in front of me.
[15] I do believe that pursuant to my powers under paragraph 16(a) to order an organisation to correct its practices in order to comply with section 5 which, in turn, requires compliance with the Schedule, I can direct that the Bank clarify its Staff Plan when used for exempt staff not entitled to overtime. If there is a problem with the Staff Plan as it exists, it is that it is used indiscriminately for persons entitled to overtime and those not entitled to overtime. Although its meaning must, I believe, be clear to those within the Bank, the column entitled “total hours” and “overtime” subdivided into “paid” and “not paid” can give rise to confusion should these Plans in a process such as a complaint under the Canada Labour Code come to the attention of others. That this is so, is apparent from the report of the Privacy Commissioner which I quoted above where she described the Staff Plans as addressing “total hours worked”. She, therefore, observed that the Plans did not denote any overtime hours worked by the Applicant. We know now that the Bank does not regard the Staff Plan as being evidence of presence or absence of overtime worked by an employee in the exempt group, but that obviously is not apparent to an outsider reading the document. If the Bank is to continue using Staff Plans for exempt staff where total hours worked, and overtime, whether paid or unpaid, is irrelevant, then that column should be deleted from their Staff Plans because it is misleading. I will direct this in the interest of accuracy, to prevent confusion in the interpretation of this form of personal information.
[16] The Applicant has complained of other violations of the Act by the Bank. He complains that the Bank did not respond to his request for his personal information sent on June 3, 2004. The Bank neither replied within 30 days nor did it give notice of an extension of time as required by section 8 of the Act. Instead, its first reply was on July 5, 2004 with its second reply on July 6th. There is no request for relief in respect of this delay in the notice of application and I would, for that reason alone, not think it appropriate to make any order. Further, I am not satisfied that there was a violation of subsection 8(3) that requires a response to be made within 30 days or that notice be given within that time of the need for an extension. The request for the information was made in a letter dated June 3rd. If sent by Her Majesty’s mail, one could not be sure when it may have been received by the Bank, and there is no evidence that it was sent by some speedier process. As it was sent in June, a month with only 30 days, the response of July 5th might have been within the 30-day limit. In any event, the delay, if there were a delay, was minimal and nevertheless resulted in the Applicant receiving all the documents the Bank could find relevant to his request.
[17] The Applicant made some complaint about the Bank having sent his Staff Plans to the Labour Affairs Officer dealing with the Applicant’s complaint under the Canada Labour Code. As counsel for the Privacy Commissioner pointed out to the Court, I have no jurisdiction to deal with that matter as it occurred on November 23, 2005 some 17 months after the Applicant’s complaint to the Privacy Commissioner. Under subsection 14(1) of the Act, a complainant, after receiving the Commissioner’s report can apply for a hearing in this Court only “in respect to any matter in respect to which the complaint was made.” The communication of November 2005 could not, of course, have been the subject of the complaint to the Privacy Commissioner in July, 2004, and therefore I cannot deal with it.
[18] I will therefore dismiss the application except for issuing an order directing the Bank to correct its Staff Plan form for use in relation to whatever staff may be found to be outside the scope of entitlement to overtime pay.
[19] At the request of counsel for the Respondent Bank, I am withholding issue of judgment pending submissions on the subject of costs. I will deal with costs submissions by way of a motion in writing pursuant to Rule 369. The Respondent shall be the moving party and must file and serve a motion with any supporting material by March 20, 2007. Parties shall file memoranda of fact and law not to exceed 10 pages.
[20] There will be no costs ordered to or against the Privacy Commissioner.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2181-05
STYLE OF CAUSE: MARK DONAGHY
Applicant
and
SCOTIA CAPITAL INC. / SCOTIA CAPITEUX INC. and THE BANK OF NOVA SCOTIA
Respondents
and
THE OFFICE OF THE PRIVACY COMMISSIONER OF CANADA
Respondent
DATE OF HEARING: February 5, 2007
APPEARANCES:
Mark Donaghy For the Applicant
Paul S. Jarvis For the Respondents, Bank of
Nova Scotia and Scotia Capital Inc.
Steven Welchner
Nathalie Daigle For the Respondent, The Office
of the Privacy Commissioner of
Canada
SOLICITORS OF RECORD:
Mark Donaghy
Mississauga, ON For the Applicant
HICKS MORLEY HAMILTON
STEWART STORIE LLP
Barristers & Solicitors
Toronto, ON For the Respondents, Bank of
Nova Scotia and Scotia Capital Inc.
WELCHNER LAW OFFICE
Ottawa, ON For the Respondent, The Privacy
Commissioner of Canada
Office of the Privacy Commissioner of Canada
Ottawa, ON For the Respondent, The Privacy
Commissioner of Canada