Fall 2002 Report

Labour Law

The case in which The Sutton Group Realty Inc. was found 25% liable for injuries sustained when an employee drove home intoxicated after an office function has been overturned on appeal for procedural reasons, and a new trial ordered.

Employers should be aware of new federal legislation governing the collection, retention, use and disclosure of personal information. Certain extra-provincial disclosure and federally regulated organizations are already governed by the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the “Act”). On January 1, 2004, it will apply to all other private sector organizations, except where provinces enact substantially similar legislation.

The Act requires consent from the affected individual for the collection, use and disclosure of personal information. This includes any factual or subjective information, recorded or not, about an identifiable individual such as age, income or evaluations. Individuals can challenge the accuracy of such information, and an employer has only 30 days to meet a request for disclosure.

Fresh consent is required if information is used or disclosed for purposes other than those to which an individual has consented. Employers need to balance these obligations with their desire to obtain wide consent when collecting information, usually at the time of hire.

In many cases, use or disclosure of previously collected personal information requires fresh consent. As interpretation of the Act develops and individuals become more aware of their rights, employers would be well-advised to work with legal counsel familiar with the Act to ensure compliance.

Manitoba has not indicated yet whether it will enact substantially similar legislation. However, at present The Privacy Act, The Personal Health Information Act, The Freedom of Information and Protection of Privacy Act, and The Personal Investigations Act, can affect employers' rights and obligations with respect to certain types of information.