Court: Financial records should not be released to a rival trade union
Divisional Court tells Privacy Commissioner that it cannot order a union to provide its financial records to a rival union
The Divisional Court has overturned a decision of the Information and Privacy Commissioner to release the 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 (Bricklayers’ Pension Trust) to release certain financial records to the vice-president of a rival trade union. The Bricklayers’ Pension Trust had filed the documents with the Financial Services Commission of Ontario under the Pension Benefits Act. The rival union requested the documents under the Freedom of Information and Protection of Privacy Act.
The Bricklayers’ Pension Trust challenged the Privacy Commissioner’ decision in an application for judicial review.
The Divisional Court’s decision
The Divisional Court granted the application. It held that the Privacy Commissioner did not correctly apply the statutory test to determine whether the release of the records would give rise to a reasonable expectation that harm would occur.
The Court noted that the documents were requested at a time when the two unions were engaged in a fight over members. It determined that the disclosure of the records could be used by the rival 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, it could affect the financial state of the plan. This would 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 that, if a raiding union were to spread information (or misinformation) about a pension plan during a raid, the trustees of the plan would be required to defend the reputation of the plan. This would mean that the trustees could be drawn into a labour dispute in which they would not otherwise be involved.
The Court therefore set aside the Privacy Commissioner’s order, and sent the matter back to the Commissioner for reconsideration.