Canadian Bricklayers & Allied Craft Unions Members Pension Trust v. Information and Privacy Commissioner of Ontario
Divisional Court overturns Information and Privacy Commissioner’s decision to release financial records of a construction sector pension plan to a rival trade union.
In March 2015, the Information and Privacy Commissioner of Ontario ordered the Canadian Bricklayers and Allied Craft Unions Members Pension Trust (CMPT) to release certain financial records to the vice-president of a rival trade union who had requested the documents under the Freedom of Information and Protection of Privacy Act. The documents had been filed by the CMPT with the Financial Services Commission of Ontario under the Pension Benefits Act.
The CMPT sought judicial review of the Privacy Commissioner’s decision. A majority of the Divisional Court allowed the application, ruling that the Privacy Commissioner had erred in the applying the test to determine whether the release of the records would give rise to a reasonable expectation that certain harms would occur.
The Court noted that the documents were requested at a time when two unions were engaged in a fight over members. It determined that the disclosure of the records could be used by a competing trade union to justify its own pension plan in order to retain members, to create dissent among members of a target union, or to give a strategic advantage in a raid campaign.
The Court found that if the documents were used to encourage plan members to leave the union, this could affect the financial state of the plan and cause significant prejudice to the beneficiaries of the plan, many of whom are retired, as well as to the competitive position of the trade union and its members.
The Court further noted it is reasonable to expect that if a raiding union spreads information (or misinformation) about a pension plan in the context of a raid, the trustees of the plan would be required to defend the reputation of the plan, and could be drawn into a labour dispute in which they would not otherwise be involved.
The Court set aside the Privacy Commissioner’s order, and sent the matter back to the Commissioner for reconsideration.