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Arbitrator awards $25k for privacy breach after supervisor discloses employee’s disability
June 22, 2016
Author(s): Michela V. Fiorido

Damage awards for breaches of privacy continue to climb as an Ontario arbitrator has ordered an employer to pay $25,000 to an employee because his supervisor disclosed the employee’s disability to three other employees. The supervisor had learned of the disability in a previous arbitration.

The case, Canadian Pacific Railway Company v Teamsters Canada Rail Conference, involves a long-term employee with an excellent record of service who had a visual disability. The employee’s supervisor had been a part of an earlier proceeding and knew of the employee’s visual disability through that process. Shortly after, the supervisor told a number of the employee’s coworkers about the specific details and diagnosis of the employee’s medical condition.

The employee was very upset by this disclosure and confronted the supervisor, who claimed that the information was public knowledge. It was not. The employee, who was emotionally and psychologically devastated as a result of the disclosure, sought medical assistance and left work on an authorized medical leave. The union filed a grievance, seeking an order for punitive and mental distress damages and alleging that the employer had violated its own discrimination and harassment policy, the Collective Agreement, the Canada Human Rights Act, the Personal Information Protection and Electronic Documents Act, the Canada Labour Code and the employee’s privacy rights.

There was no dispute that the supervisor had violated the grievor’s privacy rights. The arbitrator also concluded that the disclosure violated the grievor’s right to be free of discrimination and harassment in the workplace. The supervisor did not appear at the hearing to elaborate or explain his conduct and the arbitrator was deeply troubled by this. While the supervisor had apologized verbally and in writing to the employee, the arbitrator questioned the sincerity of the apology since the letter was not signed. The arbitrator found that the disclosure was flagrant, intentional with a view to causing the grievor to suffer, and was retaliatory with the intention to punish the grievor for exercising his rights under the Collective Agreement in the previous arbitration. Consequently, the employer was ordered to pay $25,000 in general damages, in addition to wages lost as a result of the grievor’s absence from work.

This case highlights the need for employers to ensure managers and employees receive adequate training on privacy policies and the need to treat sensitive personal information confidentially. Further, there are other things the employer could have done in this case after the fact to mitigate the situation. For example, the employer knew about the supervisor’s conduct but did very little, if anything, to properly address the issue. It simply took the position that the supervisor’s apology ended the matter. In addition, the employer did not even contact the grievor about returning to work and the grievor was left without income during the holidays. Lastly, the employer could have required the supervisor to take steps to establish the sincerity of his apology, either by testifying at the hearing or by signing the letter of apology. While the damage award is high for a single incident, the arbitrator found it to be warranted given the retaliatory nature of the supervisor’s conduct as well as clear medical evidence that the grievor suffered mental distress and injury to his dignity.

Canadian Pacific Railway Company v Teamsters Canada Rail Conference, 2016 CanLII 25247 (ON LA)

Questions relating to the content of the article may be directed to Suzanne Kennedy.