Court Confirms City Has No Authority to Conduct Criminal Checks on Fire Fighters

July 10, 2009 – Ottawa, ON  Local 162 is celebrating a landmark court decision that upholds a 2007 arbitration award which ruled that its employer had no authority to require all city fire fighters to submit to criminal background checks every three years.

The Ontario Superior Court decision, handed down July 6, is a confirmation of fire fighters’ individual privacy rights and makes important and unequivocal statements about the fact that employers can’t force fire fighters to surrender those rights as a condition of their employment or in any other manner that falls outside the strict provisions of Ontario’s Municipal Freedom of Information and Protection of Privacy Act.

The city policy, introduced in April 2007, would have required all Ottawa fire fighters to provide written consent to enable the city to conduct criminal record checks through Ottawa Police every three years. Ottawa Local 162 grieved the policy immediately.

The original arbitration decision, handed down in September 2007, stated there “is simply no evidence to sustain the conclusion that the duties and responsibilities of fire fighters are such as to require or justify a blanket invasion of privacy.”

The city, which had argued that the policy was justified under the management rights clause in the collective agreement, looked to the courts to overturn the arbitration award and filed for a judicial review. The resulting July 6 court decision was welcome news for the 900-member Ottawa Local 162, which did not object to pre-employment criminal checks.

Ottawa Local 162 President Peter Kennedy says the strong wording of the court decision showed that the city “bit off more than it could chew” when it asked for a judicial review “of a very sound decision by a respected arbitrator.”

The court decision, which creates important case law that will assist IAFF affiliates across Canada, goes further than the original arbitration, making the point that the inherent requirements of provincial privacy legislation are such that only case-by-case requests can be considered in the first place.

It also states that fire fighters’ individual privacy rights in the case of criminal background checks could not have been overridden by the city policy even if the union had agreed to it. “As it stands now the application of police record checks to other Ottawa employee groups is suspect, and this will have repercussions for cities across Canada that engage in such intrusive acts of invasion privacy,” Kennedy says.