IN THE MATTER OF AN ARBITRATION BETWEEN:  
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 & LABOURERS’  
INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183  
(“the Unions”)  
EARTH BORING COMPANY LIMITED  
(“the Employer” or “Earth Boring”)  
and  
GREATER TORONTO SEWER AND WATERMAIN CONTRACTORS ASSOCIATION  
(“GTSWCA” or “the Association”)  
Appearances for the Unions:  
Steven Sagle, Counsel Local 793  
Bob Brooks, Local 793  
Andrew Black, Counsel Local 183  
Pat Sheridan, Sector Coordinator Local 183  
Declan Kiernan, Business Representative Local 183  
Appearances for the Employer and the Association:  
Richard J. Charney, Counsel  
Lauren Ditschun Co-Counsel  
Gene Woodbridge, CEO Earth Boring Company Limited  
John Currey, Vice President-Operations, Earth Boring Company Limited  
Patrick McManus, Executive Director GTWSCA  
A hearing in this matter was held at Toronto, Ontario on June 13, and December 6, 2018, February  
20, May 24, and June 13, 2019, and by videoconference on September 25, 29, and 30, 2020,  
October 21, and November 25, 2020, and January 26, March 30, and April 1, 2021.  
AWARD  
1.  
This decision addresses grievances brought by the Unions to challenge the Employer’s  
introduction and use of “ExakTime”, a mobile application characterized by Earth Boring as an  
electronic timesheet.  
2.  
Earth Boring has been in business for more than seventy years, identifying itself as  
“Trenchless Since 1947”. It engages in micro-tunnelling, auger boring, directional drilling, and  
pipe ramming on multiple sites and using a wide range of equipment — some very heavy, some  
very sophisticated, together with cranes and vehicles that might be regarded as commonplace in  
heavy construction. While its workforce is susceptible to fluctuations, the consensus appeared to  
be that the body of bargaining unit personnel at any one time was likely to be in the order of eighty.  
3.  
International Union of Operating Engineers, Local 793 (“Local 793”) is party to a  
collective agreement with the GTSWCA of which the Employer is a member company.  
Labourers’ International Union of North America, Local 183 (“Local 183”) is subject to a  
collective agreement between the GTSWCA and a Council of Trade Unions acting as the  
representative and agent of Teamsters Local 230 and Local 183.  
4.  
On October 24, 2017 — during the trial period for the Employer’s introduction of  
ExakTime — Local 793 grieved that the Employer had “violated the privacy of its employees by  
enforcing unreasonable management rights, by asking them to install an application that uses  
GPS/photos on their personal communication device to track their whereabouts”. Local 793’s  
requested remedy was that the Employer “immediately cease and desist in its intent on forcing its  
employees to install and use an application on their personal communication device that violates  
their rights and freedoms.”  
5.  
Local 183 initiated its grievance two weeks after the introduction of ExakTime; on  
November 14, 2017 it grieved on behalf of itself and its affected members as follows:  
It is the Union’s position that the Employer has violated Article 2 – Recognition and Article  
4 – Management Rights of the Collective Agreement by, among other things, the Employer  
implementing and/or demanding that bargaining unit employees be subject to on-going  
surveillance by electronic monitoring (the “APP Policy”). In any event the Employer has  
exercised its managerial rights in a manner which is unfair, unreasonable, arbitrary,  
discriminatory and/or in bad faith. The App Policy amounts to an invasion of privacy  
(Statutory and tort based) any such rule of policy [sic] is unlawful, unreasonable and  
contrary to the Collective Agreement. The Employer has thereby violated each and every  
other relevant Article, Schedule, Letter of Understanding, duty and agreement, express or  
implied, forming part of the Collective Agreement.  
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6.  
The formal grievances were specific in asserting violations of employees’ privacy  
rights; however, the scope of the complaints was expanded to include allegations that the use of  
ExakTime also constituted violations of the Employer’s safety obligations under the Unions’  
collective agreements and the Occupational Health and Safety Act.  
7.  
In response to a pre-hearing request for particulars by counsel for the Employer and the  
Association, Local 183 added the following:  
The Employer is well aware of the case it has to meet. At risk [sic] of re-stating the obvious,  
the Employer purports to invade employees’ personal phones with unfounded, unsecure,  
malicious spyware for some as yet unspecified, unjustified, and surely unjustifiable  
purpose. That it further purports to mandate daily, repeated cell phone “selfies” in the  
service thereof is, on its face, grossly inappropriate. For the sake of clarity and  
completeness it is also patently unreasonable, unconscionable, unsafe, arbitrary, tortious,  
unduly invasive and violative of privacy, contrary to Charter principles, in violation of  
Articles 2, 4, 11 and 14 of Local 183’s Collective Agreement, and constitutive of bad faith  
in policy, practice, implementation and otherwise.  
8.  
I was not apprised of any response Local 793 might have made to the Employer’s  
request.  
9.  
I note now that I heard nothing to establish a violation of Article 2 - Recognition of  
Local 183’s collective agreement and, while there was evidence to suggest that following protocols  
associated with the ExakTime application might impinge on an employee’s full enjoyment of  
rights secured by Article 14 – Work Breaks and Lunch Breaks, there was no foundation laid for  
any relief in response to the mention of that article in the response to the request for particulars.  
10.  
Article 4 of both collective agreements is a conventional statement of management  
rights. The two articles have small differences not material to the issues raised by the parties. The  
following is the language of the Local 183 provision:  
4.01 The Council agrees that it is the exclusive function of each Employer covered by this  
Agreement:  
a) To conduct its business in all respects in accordance with its commitments and  
responsibilities, including the right to manage the jobs, locate, extend, curtail or  
cease operations, to determine the number of workers required at any or all  
operations, to determine the kinds and locations of machines, tools and equipment  
to be used and the schedules of production, to judge the qualifications of the  
employees and to maintain order, discipline and efficiency;  
b) To hire, discharge, classify, transfer, promote, demote, layoff, suspend or otherwise  
discipline employees, provided that a claim by an employee that he has been  
discharged, suspended, disciplined or disciplinarily demoted without reasonable  
cause shall be subject to the provisions of the Grievance Procedure;  
c) To make, alter from time to time, and enforce reasonable rules of conduct and  
procedure to be observed by the employees;  
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d) It is agreed that these functions shall not be exercised in a manner inconsistent with  
the express provisions of this Agreement.  
11.  
The reference to Article 11 of Local 183’s collective agreement and the allegation of  
the Employer’s requirements being “unsafe” were relied upon by the Unions for their maintaining  
that safety, in addition to privacy, was a foundational issue for the cases made against the  
Employer’s use of ExakTime. The safety-based objections were addressed in opening statements  
and in the evidence led by the parties.  
12.  
The Unions referred to the provisions of their agreements regarding “Safety, Sanitation  
and Shelter”.  
13.  
Article 11.12 of Local 183’s collective agreement in effect at the initiation of these  
proceedings appeared under that heading and read as follows:  
No entertainment devices — such as cell phones, Blackberries, iPods, and/or similar  
devices — shall be used during working hours; nor shall they be turned on, except during  
lunch breaks, regular work breaks, job-site emergencies, or when prior approval is obtained  
from the employee's supervisor.  
14.  
Article 18.14, the comparable provision in Local 793’s collective agreement at the  
initiation of these proceedings, read as follows:  
No entertainment or personal communication devices such as cell phones, smart phones,  
MP3 Players, Blackberries, iPods and/or similar devices shall be used during working  
hours, nor shall they be turned on, except during lunch break, regular work breaks, job site  
emergencies, or where prior approval is obtained from the employee's supervisor.  
Proceedings  
15.  
The first day of the hearing was occupied with opening statements, the receipt of some  
of the documents that are now part of the record, and submissions about preliminary matters that  
resulted in the first of four interim awards. As that first interim award was referred to in argument  
and included references that are helpful in framing the dispute and its disposition, I set out here  
some of the comments from that June 28, 2018 decision:  
10.  
At this stage in the proceedings, there has not been a full exposition of the  
operation, use, capabilities and parameters of the ExakTime technology that the Employer  
put into place and uses over the objections of the Unions. The representations made in the  
parties’ opening statements and their submissions on the preliminary issues left me with  
the following summary appreciation of the situation – an understanding that is not at all  
precise or determinative of the merits of the parties’ competing positions yet to be litigated:  
The Employer has bargaining unit employees working at a number of sites at which  
it conducts “high expertise” tunnelling.  
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Late in 2017 the Employer substituted ExakTime, a third-party application, for its  
previous electronic web-based timekeeping system – a system that it says was  
subject to human error and open to “buddy punching”.  
Since ExakTime “went live” each employee is required to “clock in” and “clock out”  
via mobile telephone. The employees do so by using the ExakTime application  
downloaded to their mobile devices to take a photo – a “selfie” – that is uploaded to  
record both the time and the individual’s precise location at that time.  
Employees repeat the process when they stop for breaks, resume work after breaks,  
and leave the work site at the end of their shifts, with the result that each employee  
might be uploading data in real time at least eight times over the course of a shift.  
In addition, the ExakTime technology as utilized by the Employer has a feature  
referred to as “Geo Fence” by which the Employer is able to define the limits of each  
of its work sites for the purposes of the application. The “Geo Fence” feature permits  
the tracking of employees within the boundaries of a work site.  
The Employer asserts that there is no tracking of employees beyond the “Geo Fence”  
and that employees can turn off the ExakTime application at the end of their shifts  
with the result that the technology could not be used to allow employees to be  
followed.  
The Unions acknowledge that representation, but are skeptical and concerned that  
employees might be tracked beyond the “Geo Fence”. In particular, the ExakTime  
website is said to assert that a “Geo Tracker” feature allows employees to be tracked  
“in real time from anywhere” and to be captured in “detailed location reports”, with  
their data “stored in the cloud for easy access”.  
The Employer maintains that it has not included the “Geo Tracker” feature in the  
version of the technology it uses.  
One of the concerns expressed by the Unions is that employees have no knowledge  
and no assurances of limitations on access to the data that are uploaded using the  
ExakTime application.  
The Employer says that the data are accessible only by its administrators through an  
encrypted portal. Those administrators are the Employer’s personnel who also have  
access to employee files.1  
Several of the factual assertions reflected in that summary were modified in time and some were  
contested by the parties through to the end of their final submissions. By way of an example of the  
former, the Employer made a change in September 2018 to delete the requirement of employees’  
taking their photographs before and after breaks, limiting the requirement to taking photographs  
at the start and the end of their shifts, and reducing the daily total from eight to two images. The  
dispute about the geo-tracking capabilities of the application and their use by Earth Boring  
persisted to the end.  
1
I now understand that the correct references in the ExakTime lexicon are to “GeoFence” and “GeoTrakker”.  
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16.  
I heard the evidence of ten individuals who were or had been employed in the bargaining  
units; Declan Kiernan, Local 183 Business representative; a privacy expert, John Wunderlich; an  
“Enterprise & Solutions Architect” employed by Local 183, David Costa; Gene Woodbridge, the  
Employer’s CEO; and Patrick McManus, Executive Director of the GTWSCA.  
17.  
Between the second and third hearing days, the parties met at the offices of the  
Association on January 14, 2019 for a demonstration of the ExakTime application and to afford  
the Unions, Mr. Wunderlich, and Mr. Costa an opportunity to ask questions about the technology  
and its use by the Employer. In addition, the parties cooperated to the extent of Earth Boring’s  
facilitating the acquisition — at the Unions’ cost — of data from ExakTime Inc. for review and  
analysis by Mr. Costa. His report was valuable in advancing my understanding of the ExakTime  
application and is excerpted at length below.  
18.  
Eight bargaining unit employees were called late in the proceeding to speak to their use  
of or familiarity with other applications that Mr. Woodbridge had referred to in his evidence.  
19.  
In addition, differences developed late in the hearing arising from the evidence of Mr.  
Woodbridge and competing views of what had been communicated at the January 2019  
demonstration — resulting in the calling of Messrs. Wunderlich and Costa in reply.  
20.  
The parties’ closing submissions occupied the last two days of the hearing. Of necessity,  
my references to those will be abbreviated given the volume of evidence and authorities counsel  
canvassed in detail. After the close of the hearing, counsel provided me with copies of the materials  
they had used in making their submissions and I have referred to those extensively, in addition to  
reviewing the notes I had made as they spoke.  
The ExakTime Application  
21.  
ExakTime Inc. is a California entity. None of the parties called anyone associated with  
the corporation to testify; however, witnesses and counsel referred to marketing and other material  
generated by ExakTime, as well as to their understanding of some of its relationships and practices.  
22.  
In the absence of more direct and precise information from ExakTime Inc., documents  
produced in the hearing provide an insight into the functions and attributes of the ExakTime  
technology, as well as what employees have been told about the application and its use.  
23.  
The ExakTime application as implemented by Earth Boring required the use of  
smartphones or comparable devices with GPS that would permit employees to take photographs  
of themselves and fix their locations when doing so.  
24.  
The evidence was that employees downloading and starting their use of ExakTime  
would be invited to accept the privacy policy published by ExakTime Inc. — without the  
acceptance of which the application is not available. The text of that was included in the documents  
produced by the Employer. It began with the following:  
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Protecting your privacy is important to ExakTime. We strive to keep your personal  
information confidential. … By accessing the Sites [inter alia ExakTime mobile sites and  
applications] on any computer, mobile phone, tablet, or other device . . . or otherwise  
interacting with ExakTime, you agree to the terms of this Privacy Policy. If you do not  
agree to the policy, please do not use the Sites. (emphasis in the original)  
25.  
The Policy also stated:  
We collect information about you in several ways. For example, we might ask you or your  
employer for your name, photograph, address, phone number, mobile phone number, or e-  
mail address when you . . . download our app . . . or otherwise interact with us. . . . Also,  
when you use the ExakTime Mobile-Time Clock Application and other products or devices,  
we might collect information about your GPS location data and your mobile device,  
including a unique identifier for your device. For the avoidance of doubt, location data is  
only collected when the ExakTime Mobile-Time Clock is in use.  
. . .  
From time to time, we may establish marketing relationships with other people or entities  
whom we believe to be trustworthy and whom we have asked to confirm that their privacy  
practices are consistent with ours. We may disclose to third parties certain Usage Data  
regarding the Sites. Your Usage Data may be aggregated with the Usage Data2 of others  
and not identify you individually or it may include associated data that does identify you.  
In addition, ExakTime uses Google Analytics to monitor activity on the Sites . . . . (emphasis  
added)  
At times we may be required by law or legal process to disclose your personal information.  
We may also disclose information about you if we believe that disclosure is necessary for  
the public interest. We may share personal information and Usage Data with businesses  
controlling, controlled by, or under common control with ExakTime. . . .  
ExakTime safeguards the security of the data you send us with physical, electronic, and  
managerial procedures. That said, no data transmission over the Internet or other network  
can be guaranteed to be 100% secure. As a result, while we strive to protect information  
transmitted on or through the Sites, we cannot and do not guarantee the security of any  
information you transmit on or through the Sites, and you do so at your own risk.  
This policy describes how we may share your information for marketing purposes. You  
may contact us with any questions and, to the extent applicable, to request once a calendar  
year a list of third parties to whom we may disclose information for their own marketing  
purposes and the categories of information we may disclose.  
Please be aware that your personal information and communications may be transferred  
to and maintained on servers or databases located outside your state, province, or country.  
Please be advised that we process and store information in the United States. The laws in  
the United States may not be as protective of your privacy as those in your location. By  
2
The term “Usage Data” is not defined in the ExakTime Privacy Policy produced for the hearing.  
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using the Sites, you agree that the collection, use, transfer, and disclosure of your personal  
information and communications will be governed by the applicable laws in the United  
States. (emphasis added)  
26.  
Some of the Unions’ evidence addressed employees’ concerns of finding it necessary to  
upgrade their equipment to utilize the application, the perceived need to pay for a data plan to  
accommodate its use, and the possibility of data overage charges attributable to an employee’s  
running the application. While there was evidence that a data plan was not required in connection  
with the application, I note that those issues are unrelated to the express language of the grievances  
and the particulars provided to the Employer. As such, they are not material to the dispute  
presented for decision and warrant no further attention here.  
27.  
The Employer’s documents included material taken from the ExakTime website  
promoting the use of mobile time tracking and supporting many of the observations Mr.  
Woodbridge offered in his testimony. The text read as follows:  
Mobile time tracking means tracking workers’ time on the go with the mobile clock-in app.  
With the rising popularity of smartphones and tablets, there is obviously more than one  
employee time clock app . . . to choose from. The best feature an easy-to-use design that  
can:  
§ track hours & activities of roaming employees who work alone  
§ track small crews that change location throughout the day  
§ get field sign-off from employees on work safety, breaks or overtime  
§ help you manage large crews or multiple job sites  
Accurate, reliable time and attendance tracking of your remote workforce that replaces  
paper time cards—the central benefit of a time clock app for employees—is guaranteed to  
save you significant amounts of time and money.  
Time tracking apps help you manage remote workers with precision. For example, you want  
confirmation that they are where they should be when they clock in. A time clock app with  
GPS capabilities . . . takes care of this by revealing a user's location at clock-in and clock-  
out.  
“Buddy punching”, which is all too easy with old-fashioned time cards, is possible even  
with a timesheet app that only requires a PIN number [sic], as co-workers can share these  
and cover for each other if someone's running late. A biometrics system that uses photos to  
verify identification . . . puts concerns about buddy punching to rest for good.  
Maybe a supervisor manages all timekeeping at your remote location, but this too is open  
to human error when they have to rely on memory. A well-designed time tracking app makes  
it just as easy to track a whole crew as it is for individuals to punch in and out, so time is  
tracked as it's happening.  
- 8 -  
A cloud-based time tracking system allows management and owners to review data from  
the field on a permission basis almost as soon as it is created, including clock-ins, cost codes,  
GPS coordinates and even Field Notes.  
Keeping up with important incidents or changes at job sites—whether or not they were  
caused by your employees—is crucial. Using the multimedia capabilities on your  
smartphone and tablet, apps provide a format for sending updates . . . on site conditions  
via photo, voice, and text. The ability to attach these updates to an employee or job site in a  
cloud-based system and access them in real time, as they come in—makes for easy reference  
now or later.  
Many mobile time tracking solutions also incorporate “mobile forms”, which presents to  
employees on the screen text confirming they weren't injured at work that day, that they  
took a lunch and received the proper amount of breaks, or that they didn't work overtime,  
for example—and includes an answer choice and a field for the employee’s signature.  
Some time clock apps provide boilerplate mobile forms while others let employers provide  
their own text. Finally, the most helpful apps let you review information gathered from  
mobile forms over time in a report format.  
As contractors, ExakTime’s founders have a deep understanding of construction’s pain  
points. Their first-hand experience went into the development of ExakTime Mobile, a time  
tracking app . . . built for outdoor, rugged and mobile industries such as construction and  
landscape.  
In addition to powerful features such as photo biometrics, GPS location verification, and  
more, ExakTime Mobile also offers an ultra-easy user interface and total scalability for a  
workforce or crew of any size. Plus, it automatically syncs with our web-based time  
tracking software . . . in the cloud, so that an owner or manager can review and manage  
time tracking data and informative reports at a glance, on any device with a web browser.  
Forget to check on overtime before you left the office? You can do it when you get home  
and then shift workers or crews as need be. This flexibility takes much of the frenzy and  
stress out of managing a mobile workforce. (emphasis in the original)  
28.  
The ExakTime Inc. materials addressed the application’s Geotrakker capacity and  
ExakTime’s Photo-ID feature as follows:  
Keep track of employee location data for traveling workers or crews on the job site. Get  
breadcrumbing data in real time on their location and speed of travel while they are on the  
job — with very little data usage, and no tracking off the clock  
It is possible to have biometric confirmation without the hassle of fingerprints. FaceFront  
Biometrics uses your device’s front-facing camera to snap a photo of each worker when  
they clock in and out. Goodbye, buddy-punching.  
Earth Boring’s Communications to Employees  
29.  
Earth Boring produced an undated email issued to employees in October 2017 in  
anticipation of the “ExakTime Timesheet Application Implementation”. In addition to the text  
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excerpted below, the email included depictions of the screens employees would encounter on their  
smartphones when using the application. The instructions read as follows3:  
Beginning next week we will be implementing a new time logging system to better track  
hours. This app will not only put control of your hours into your own hand, but will allow  
you to review your hours worked on your phone.  
Please download the ExakTime Mobile-Time Clock app to your phone.  
. . .  
Once downloaded, run the app, allow the application to use your GPS. On first run of the  
application it will ask for a Company Setup Code. Earth Borings setup code is na3j-6wsp-  
bp8o. This code will change on Tue 10/24/17. Once the setup code has been entered, you  
will be presented with the following screens; descriptions below.  
. . .  
1. Employee-Sign-In — This screen will allow you to enter your 4 digit PIN (this PIN  
will be provided to each of you separately via e-mail). Everyone will have a unique  
code to log themselves in. In the unlikely event that someone does not have their phone  
with them, this screen will allow multiple people to log in via the same phone, by  
entering their own unique PIN. The phone owner must end their user session before an  
alternate user adds their hours. <<<<<TO DO THIS See #10 below>>>  
2. PocketClock Page — This page has a number of options;  
i.  
Top Left (Menu button; most important options in the menu are Logout and  
Sync. NOTE: Logout will not time you out)  
ii.  
Top Right (Sync, this will download any updates to the system, names, cost  
codes, locations, etc.)  
iii.  
iv.  
v.  
Centre (Time and Date)  
Centre Lower (GO and STOP, above your Name)  
Bottom Left (Tab to move to PocketClock Screen)  
Bottom Right (Tab to move to clock in/out History)  
vi.  
When on-site and ready to clock in, hit the GO button, this will bring you to the next  
screen.  
3. Job Location Sheet — This presents a list of active jobs. Select the jobsite that you are  
working on.  
4. Cost Code Menu — This will present all the available cost code menus, these include:  
Administration, Auger Bore, HDD, MTBM, Pipe Ram, Vaccing.  
a. The primary cost code menu for most will be Administration. Job Forman will be  
expected to use the other cost codes, this information will be provided separately.  
3 These instructions (and other documents produced by the parties) are reproduced without identification or correction  
of punctuation, spelling and grammatical errors. Only the depictions of the screens have been omitted.  
- 10 -  
5. Administration Cost Code — This is a list of all specific cost codes related to  
Administration; everyone will be epected to use at least the first 5 cost codes;  
a. Start — This will be selected at the start of the day. This code will also be  
selected when returning to work after breaks, lunch, or travel.  
b. Break - AM — Select this code at the start of the morning break. When  
returning to work after the break, select Start  
c. Lunch — Select this code at the start of the lunch. When returning to work  
after lunch, select Start  
d. Break - PM — Select this code at the start of the morning break. When  
returning to work after the break, select Start  
e. Travel — Select this code when traveling to or from jobsites. Once at site and  
beginning work, select Start.  
6. Unrelated Task Note — In the event that you select a code menu that does not apply to  
a job (ie. Auger Bore on a HDD only job) this screen will show up. Hit back to return  
to the previous menu.  
After selecting the proper job code you will be required to take a picture of yourself  
that will be attached to the sign in.  
As noted above, when the time comes for break or lunch, in the PocketClock screen,  
hit GO, then select the same job location and select the job cost associated with the  
corresponding session from the Administration menu (Break AM, Lunch, Break  
PM). At the end of the break or lunch, select the same location, and in Administration  
select Start.  
Then the day is over, return to the PocketClock Screen and follow these steps:  
. . .  
7. Hit the STOP button, this will then ask you for a sign out picture of yourself.  
8. You will then be asked if you were injured at work today.  
9. You will be asked if you took all your meals and breaks today.  
10. Finally, you will be asked to sign off on the two questions noted above. Once you select  
Next, in the top right, you will be clocked out.  
If multiple people are using the same phone you must select the menu in the top left,  
Logout, then enter the PIN of the other person and follow steps 7-10.  
If multiple people are using the same phone to clock in/out you must use the menu to  
Logout and enter your unique 4 digit PIN to login. When changing status, jobs, or cost  
codes, make sure your name shows up below the GO and STOP buttons.  
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Only press STOP at the end of the work day.  
Please begin using this app as soon as possible to get used to it. Starting next week this  
will be the only way to log your hours. (emphasis in the original)  
30.  
On October 21, 2017, the Employer issued a further email to employees. It indicated  
that it was extending the trial period into the following week and that the system would go live on  
October 30th. In addition to advising employees to “continue to submit timesheets via the  
Smartsheet App”, the email set out a number of FAQs, including the following:  
Q: The app is draining my battery very quickly.  
A: Close the app after clocking in (refer to your specific phone on how to do this).  
Q: The app is using a lot of data.  
A: The app should be using a maximum of 5 MB per day with significant use. Please  
forward the data usage details for the app from your settings page. Significant data  
usage will be reimbursed.  
Q:  
A:  
I do not own a phone that supports ExakTime.  
You can use your PIN with someone else’s phone on your crew to sign in and then  
clock in.  
Q:  
A:  
Do I have to take a picture of myself every time I change job codes to break or lunch?  
Yes. However we are working to have this changed.  
Q:  
A:  
When do I hit STOP?  
Only at the end of your shift when clocking out. Every other job code or location  
change just requires you to press GO again.  
31.  
On October 24, 2017, Earth Boring issued a further email to employees. It indicated that  
ExakTime would go live on October 30th and that it would then be the only way in which  
employees could submit their hours. The email noted “Smartsheet time sheet will be disabled” but  
employees would “continue to use Smartsheet to provide . . . daily project updates”. Again, the  
email set out a number of FAQs, including the following:  
Q: Can you tap into my phone and see everything I do on it with the app.  
A: No.  
Q: Will you be tracking my movement at all times?  
A: No. However, if you leave the app running in the background the Geotracker will be  
active while in the Geofenced areas. To save your battery, we encourage you to close  
the app between breaks/lunch/code changes. This will disable the Geotracker as well.  
Q:  
What about my privacy!  
- 12 -  
A:  
The ExakTime app has no capability to access other files on your phone. If in doubt,  
you can always sign in via the site foreman's phone.4  
Q:  
A:  
What if I don't take a picture of myself during clock in and clock out?  
We require verification that the person signing in is the person logging hours.  
Q:  
A:  
What happens if I forget to sign in or out?  
You must have your foreman verify your hours for the day and send an email to  
Antonio [the Employer’s Accounting Manager, Antonio Fernandes], Gene  
[Woodbridge] John [Earth Boring’s Operations Manager, John Currey] & Kyle [Kyle  
Verwey, the author of the email and Earth Boring’s Project Engineer].  
32.  
Earth Boring advised employees of the reduction in the number of photographs required  
by email dated September 10, 2018 the text of that read as follows:  
After a long awaited update period the ExakTime App has been updated based on our  
custom request.  
Next time you interact with the app, please SYNC the system. At that time you will notice  
that your choice of cost codes will have changed. The following codes are available:  
Start  
Break  
Lunch  
Travel  
Resume work  
When starting your day, continue to use the ] “START” code. When taking breaks, lunch,  
or travelling, use the codes as before. When returning from break/lunch/travel, use the  
“Resume Work” code.  
All functionality is the same; however all codes outside of “START” will no longer require  
a photo to be taken. It is the intention that only 1 photo will be required at the beginning of  
the day, and 1 at the end (a photo will still be required with “STOP”).  
33.  
Earth Boring introduced a training document used in a session on March 1, 2019. The  
document was dated September 2018 and was similar in content to the materials referred to below  
in that it concluded with a slide for “Logging Out” that ended with these words: “After logging  
out, a message will appear indicating you have successfully logged out. When you press stop, the  
GPS on Exaktime is shut down.”  
34.  
Earth Boring entered a third book of documents in evidence in September 2020. Of  
relevance to operation of the ExakTime application, the documents included:  
4
I note that foremen are bargaining unit members, but they are either provided with a cell phone by the Employer or  
are paid an allowance for their use of their own devices. Furthermore, I note that the Unions questioned whether this  
email had been sent to bargaining unit employees as the documentation presented by Earth Boring did not identify  
any recipients other than Mr. Woodbridge and Mr. Currey. Mr. Woodbridge stated that the bargaining unit employees  
were blind-copied on the email.  
- 13 -  
A “New Employee Orientation Quiz” dated May 11, 2020 which recorded an  
employee’s responsibility for “logging my own hours, requests for time off and  
illnesses using ExakTime” and confirmation of the employee’s recognition: “When  
the ExakTime App is shutdown, or when ‘Stop’ is pressed, the GPS feature in the  
APP is disabled.”  
The orientation quiz and another document included in the Employer’s third  
compilation — a checklist entitled “Worker Annual Safety Training” — included  
two “acknowledgements” and expressions of consent by the employee-participant:  
“I am aware, understand and consent to my location being tracked while  
at work for time tracking (payroll), safety, project submissions,  
advertising and other work related purposes” and  
“I am aware, understand and consent to my location being tracked while  
at work for safety and time tracking (payroll) purposes and that from  
time to time, third parties will securely hold this data.”  
A slide presentation for training — an updated version of the emailed instructions  
first issued in October 2017, setting out the various steps to be taken in using  
ExakTime and of which I note the following:  
§ Identifying the “Employee Sign-in” screen as allowing the employee to enter the  
four-digit PIN and noting: “If sharing one device, each user must log out before  
the next person can sign-in.”  
§ On the “Logging In” slide: “Two photos are required — One photo at the start of  
the shift and one photo at the end of the shift.”  
§ In explaining the process for using the application in connection with an  
employee’s changing job locations during the shift: “Travel is tracked when  
moving from yard to site, site to yard or site to site.”  
§ In explaining the process for logging out, the “Logging Out” slide identified two  
questions (whether the employee “did a safety talk” and whether the employee was  
injured) and concluded: “After logging out, a message will appear indicating you  
have successfully logged out. When you press stop, the GPS on ExakTime is shut  
down.”  
§ The final slide, headed “Summary”, repeated the instruction: “Click on red ‘Stop’  
button when ending shift.”  
David Costa’s Report  
35.  
Mr. Costa holds a Science in Technical Management degree. He is employed by Local  
183 in the planning, designing, programming and implementation of all software, including custom  
software for the Local. No other witness claimed to have any level of expertise with respect to the  
technology under consideration in this proceeding. Mr. Costa’s evidence was given fairly and  
- 14 -  
objectively. I found him to be just as forthcoming and even-handed on cross-examination as he  
was in responding to counsel for Local 183.  
36.  
In addition to attending the demonstration of the ExakTime application on January 14,  
2019, Mr. Costa noted in his report entered in evidence that he had been asked to “extract, analyze  
and comment on the production of certain data produced by ExakTime and provided to Local 183  
by Earth Boring” and, further, that he had engaged ExakTime Inc. and procured “a copy of the  
application with a view to testing, analyzing and commenting on its operation, use, function,  
capabilities and limitations.”  
37.  
The following excerpts from Mr. Costa’s report were most helpful and merit extensive  
quotation:  
6. ExakTime is a cloud-based software application marketed as a solution for tracking  
employee time and location, among other things.  
7. The level of security in cloud-based services varies across providers and modes of  
implementation. Typical security measures, to the extent they exist, include multi-factor  
authentication, “at rest” encryption, “in transit” encryption, data retention protocols/  
periods and segregation of data from the engineers maintaining the environment. The  
question of whether and which such security measures exist for a given solution can  
usually be gleaned from the Service Level Agreement (“SLA”) typically made available  
by a given app developer. . . . ExakTime’s website does not appear to make an SLA  
available for review or download, and contains few specifics regarding where or how data  
is stored or secured, beyond the representation that “ExakTime uses Microsoft Azure to  
support our web-based time tracking software”, and the representation below:  
Be secure in knowing your data is secure.  
With our cloud-based solution, you can be sure of two things: your system  
is always up to date, and your data is being secured with the highest gold-  
level data security protocols.  
8. In the absence of a SLA, questions of data encryption, segregation and retention cannot  
be definitively answered by my analysis of the data production, nor my test use of the app  
itself. Assuming that the representation regarding Microsoft Azure is true, some level of  
encryption is probable (it would be highly unusual for a commercially available app to  
have no encryption whatsoever). It is however apparent from my test use that ExakTime  
does not employ multi-factor authentication.  
. . .  
10. On January 14, 2019 I attended a live demonstration at the offices of the Greater  
Toronto Sewer & Watermain Contractors’ Association in Mississauga, Ontario. In  
addition to the demonstration and information provided, Earth Boring representatives  
answered a number of questions from myself and others present.  
11. In the course of the demonstration:  
- 15 -  
a. Earth Boring advised, and I later confirmed, that the Geofence is set not by any  
on site hardware, but via a GPS setup point, with a circular margin of error  
customizable from .01 miles to 4 miles in diameter (0.25 miles being the  
default).  
b. It appeared, and I later confirmed, that ExakTime does not require 2-factor  
authentication. Following initial setup of a Company ID, the administrator portal  
login requires only a username and password, and the employee application  
login requires only a 4-digit numerical pin.  
c. Earth Boring demonstrated, and I later confirmed, that ExakTime was capable  
of tracking and recording an employee’s GPS location to seven (7) decimal  
points of precision (longitude and latitude), representing those locations visually  
as a layer on top of Google Maps, and “re-playing” the travel movements on the  
map after the fact, both inside and outside of any defined “GeoFence”.  
Distance(s) travelled was tracked and recorded to 3 decimal points (in miles),  
and speed of travel to two (2) decimal points (in miles per hour).  
d. It appeared, and I later confirmed, that ExakTime frequently “pinged”  
employees’ phones multiple times during a shift, and even multiple times per  
minute, so long as the app was turned on and an employee was clocked in, and  
regardless whether inside or outside a “GeoFence.  
e. I asked how long employee photos are retained. Earth Boring answered that,  
according to ExakTime, it was six (6) months.  
f. Earth Boring advised that breadcrumb data (i.e. data points which track location  
and movement) was collected approximately every 45 minutes.  
12. Following the demonstration, I telephoned ExakTime to make inquiries. Among other  
things ExakTime advised, and I later confirmed:  
a. Bread crumb data is collected in standard three (3) to five (5) minute intervals,  
with increased frequency relative to increased mobility;  
b. User data, including photos and geo-locational data, is collected and retained  
indefinitely by ExakTime;  
c. Notwithstanding the ability to edit Time Card details, user administrators (i.e.  
ExakTime clients) have no means of manually removing or deleting data, and  
there is no option to customize or limit the data retention period. . . .  
13. On April 26, 2019 Earth Boring produced, and I extracted, a zip folder containing a  
package of unencrypted data . . . which included 726.63 megabytes of data for the period  
October 16, 2017 to April 4, 2019. Included in that data was biographical and geo-  
locational data of four (4) employees, and more specifically:  
a. Names of four (4) employees, specifically David Muhanlal, Gord Lenathen,  
Keith Pierson, and Peter Daniels;  
- 16 -  
b. Six thousand, five hundred and forty six (6,546) photographs of four (4)  
employees . . . specifically David Muhanlal (1,396 photos), Gord Lenathen  
(2,107 photos), Keith Pierson (739 photos), and Peter Daniels (2,304 photos),  
an example of one of each of which as attached. . . ;  
c. 8200 points of time record data disclosing the location and movement of four  
(4) employees, specifically David Muhanlal, Gord Lenathen, Keith Pierson, and  
Peter Daniels.  
14. In analyzing this database I was able to:  
a. Determine exactly how frequently time record data was captured;  
b. Identify the number of occurrences where time record data was captured whether  
inside or outside of any configured geofence; and  
c. Assess the format and volume of photographic data collected to date.  
15. The data discloses the following:  
a. Earth Boring’s use of ExakTime generated biographical and geo-locational data;  
b. Employee data was collected both inside and outside the geofences defined by  
Earth Boring’s administrators; and  
c. Employee photos were collected, retained indefinitely, reproduced by  
ExakTime, and accessible to me.  
. . .  
19. I was asked to acquire, test and analyze the app, which I did on March 4, 2019. . . .  
20. On May 4, 2019 I downloaded and installed the app onto my Apple iPhone 6, and  
directed both LiUNA Local 183 IT Manager Igor Braverman and LiUNA Local 183 IT  
Support Analyst Paul Goncalves to download and install it onto their phones as well (both  
Apple iPhone 7 devices). I designated myself as the sole in-office “Administrator” and  
Igor and Paul as in-field “employees”. I set about sending Paul and Igor to various  
locations inside and outside of the office, including to the offices . . . at 1315 North Service  
Road East in Oakville Ontario. My observations are below.  
21. In order to use ExakTime, both administrators and employees must express consent to  
certain permissions granting access to the phone’s camera, location/GPS information  
(“location services” in iPhone), cellular capabilities, and Wi-Fi capabilities (ExakTime  
generates precise location from both cellular GPS and Wi-Fi).  
. . .  
22. In order to open the app, the phone must be turned on. In order to login to the web  
portal, an administrator must enter a username and password. . . . In order to clock in/out,  
the app requires that the phone be turned on, capable of sending and receiving data via the  
Internet, the app be granted permission to access location services, and an employee must  
enter a 4-digit numerical pin. In order to minimize the app (such that one can use the other  
- 17 -  
functions of the phone), one presses the home button. This is not to be confused with  
closing the app.  
23. This distinction is important, because minimizing, or exiting, the app does not close  
the app. Instead, even when the app is minimized (such that its operation is not  
immediately apparent to the user), it continues to run in the background. Closing the app  
requires additional steps to render the app inoperative. The app can only be closed using  
the method(s) specific to the given phone (in the case of iPhone, tapping the home button  
twice and then swiping up on the app one wishes to close), otherwise it continues to run in  
the background.  
24. In order to clock in and out, the app also requires, by default, that a photo be taken,  
though administrators are now able to remove the photo requirement on a security role  
basis, such that an administrator can disengage the photo requirement for one or more  
specific users. As the administrator, I was able to access and review every photo taken by  
Igor and Paul. I was also able to create digital copies of their photos both via screen  
clipping and by printing through the “browser” print feature. In one case Paul clocked in  
by taking a photo of a photo of himself, which was not readily distinguishable from  
legitimate photos (as an example, attached . . . is a legitimate first instance photo, and a  
photo of a photo, in that order).  
25. The app allows an administrator with sufficient permissions to define a “GeoFence”,  
or geographic (GPS) boundary, from which the administrator can determine whether a  
given “touch” on a mobile device (i.e. a clock in or clock out by an employee) occurred  
inside, or outside, the GeoFence. Using a radius of 0.25 miles, we defined two (2)  
GeoFences around two (2) LiUNA Local 183 offices . . . .  
26. The GeoFence function is not to be confused with the “Geotrakker” function. The  
former simply serves to indicate to the administrator whether an employee “punched the  
clock” inside or outside of a defined GeoFence, as indicated by green and red icons,  
respectively. The Geotrakker on the other hand tracks and records time, location and  
movement information of employees regardless of any GeoFence, which information it  
then incorporates and “maps” onto Google Maps, creating a detailed visual record of  
employees’ movements through time and space. This record can be both monitored as it  
updates via pings, and “re-played” after the fact as if in real time. Attached . . . are two (2)  
screenshots of such records showing the locations of Paul and Igor inside and outside the  
1263 Wilson Avenue GeoFence, respectively. Attached . . . are two (2) screenshots of the  
Geotrakker function operating on my phone, at work; travelling between work and home;  
and at home, throughout the night. Administrators are not able to limit geo-tracking within  
or outside of any GeoFence, but are able to disable geo-tracking completely for specific  
security roles.  
27. So long as they were clocked into the app (even if running in the background), I was  
able to track and record where Igor and Paul were at any given time, for how long they  
stayed there, where they went next, and their speed of travel between locations, even within  
the first floor offices of LiUNA Local 183 at 1263 Wilson Avenue (a 3-floor floor concrete  
and steel structure). This is regardless of whether they were inside or outside of a defined  
GeoFence. . . .  
28. In order to prevent such tracking they were required to do one or more of (a) clocking  
out of the app, (b) closing — but not merely exiting/minimizing — the app, (c) turning  
- 18 -  
their phones off or (d) otherwise disabling data transmission e.g. by enabling “airplane  
mode”. (emphasis in the original)  
John Wunderlich’s Report  
38.  
Mr. Wunderlich has extensive qualifications and is to be regarded as a privacy expert  
for the purposes of his report, accepted in evidence subject to the limitations discussed in a fourth  
interim award issued in August 2019.5  
39.  
Two of the issues Mr. Wunderlich identified as being pertinent to his report were  
attributed to ExakTime’s being a cloud-based service with hardware and systems that might be  
located anywhere in the world. He described the issues as follows:  
One is whether or not the jurisdiction or jurisdictions in which the service provider is  
located have a regulatory environment that provides a regime for the protection of personal  
information that is equivalent to the Canadian regulatory environment. Further, and related  
to the first issue, is whether the contractual or other arrangements between the service  
provider and the employer in this instance provide reasonable assurances of employee  
privacy protection that meet Canadian industry standards and regulatory requirements.  
Finally, the arbitrator noted in his Interim Award of June 28, 2018 the question of  
reasonableness in giving due weight (or not) to employees’ privacy interests with respect  
to surveillance and possible surveillance on and off the job site, as well as undisclosed or  
unauthorized access to employee personal data with respect to their whereabouts.  
Reasonableness is a standard test for privacy in Canada — is the potential invasion of  
privacy reasonable in the totality of circumstances.  
40.  
Also of assistance were Mr. Wunderlich’s explanations of terms used in relation to  
privacy issues:  
I should note that a number of terms are used by ExakTime or the Employer that are  
relevant to privacy. One that is a particular note is “Metadata”. From the perspective of a  
data professional, metadata is commonly described as ‘data about data’. This is sometimes  
erroneously taken to mean that it is not, or perhaps cannot, be personal data about a person.  
For example, a data set or a system might be designed for the purposes of providing a  
messaging service between individuals. In that system the ‘data’ is the messages and the  
metadata describes the characteristics of the message, such as who the recipient of the  
message was, when the message was sent, and the location of the sender when the message  
was sent. The metadata does not include the content. From a privacy perspective this  
metadata is deeply revelatory of personal information. This metadata ends up describing  
the social relationships and life of a person without ever revealing the contents of the  
messages. In other words, metadata is a term of art for data professionals that should not  
imply, one way or another, whether it is personal data about an individual.  
Another term of note is “Biometric”. This is a term of art that generally refers to data based  
on biological — and therefore generally immutable and unique — characteristics of an  
individual. Examples of biometrics include fingerprints, retina scans and facial images.  
The common security and privacy risk factor with a biometric is its immutability. If a  
5
2019 73229 (ON LA).  
- 19 -  
system contains the actual biometric this allows for the possibility that it may be used to  
represent the individual when the individual is not present. The current best practice for  
the use of biometrics for identification and authentication is for there to be an enrollment  
process that does NOT require the storage of the actual biometric. Such a process might  
involve the following steps:  
1. Enrollment  
a. Obtain the biometric from the individual (e.g. take their picture)  
b. Use encryption type techniques to convert the picture to a digital form that  
does not reveal anything about the individual. This may be called a  
biometric template.  
c. Destroy the original biometric and keep the template.  
2. Identity Verification  
a. The individual takes or provides their picture on the job site  
b. The software applies the same encryption type techniques and compares the  
result with the stored biometric template to validate identity  
c. The system uses the result of the comparison and does not store the picture.  
When done properly this provides a high level of assurance that the person who is clocking  
in is the person that they claim to be at the time of clocking in, without recording or risking  
the collection or disclosure of biometric data.  
41.  
Mr. Wunderlich commented in his report on the operation of ExakTime at Earth Boring:  
Once an employee is enrolled in the system, checking in to work using the time clock app  
requires that they take a picture of themselves using the time clock app on a mobile device.  
Since the mobile device will have geo-location capabilities, the photo taken provides  
evidence that the employee is on the job site (geo-fencing). No information was provided  
as to whether ExakTime uses facial recognition software to verify personal identity at the  
time of the photo. That would raise a number of other privacy and security issues were it  
the case. The app if installed on the employee’s own device — can also be used for GPS  
tracking of mobile employees. For employees that are reporting to a single job site,  
employees may clock in using a company supplied or other mobile device with the time  
clock app. The alternative ExakTime solution is to use an ExakTime time clock with key  
fobs issued to employees to enable them to clock in and out with a key fob.  
Once the time card information is collected it is connected to the employer's payroll and  
HR systems for processing and passes out of the scope of this report.  
Like any cloud-based service, the location of the ExakTime servers does not physically  
affect the provision of the service. Similarly, once the data is available to the cloud-based  
service it is available for any kind of use, including but not restricted to contracted analysis  
or reporting that the service provider may choose, including data mining for secondary  
purposes. (emphasis added)  
42.  
Referring to Earth Boring’s email dated October 24, 2019 in which the Employer  
offered an answer to a FAQ about privacy, Mr. Wunderlich wrote:  
- 20 -  
The question about privacy . . . was incorrectly interpreted as a question about accessing  
other files on the phone. The question about privacy is whether or not the functioning of  
the ExakTime system as implemented is a breach of privacy. Does or can the system be  
implemented in such a way as to collect, use and disclose the minimum amount of personal  
data while reducing or eliminating the risk that personal data may be collected, used or  
disclosed for other purposes. The response about access to files is a valid security concern  
and raises a number of due diligence privacy and security questions that should have been  
asked by the Employer as a matter of due diligence when considering cloud-based time and  
attendance software. Some examples of questions that should have been asked include:  
Are ExakTime programmers trained in secure software development  
Did ExakTime do a privacy impact assessment of the system? This is a  
standard tool for assessing privacy risks. If so, what were the privacy issues  
raised and how were they addressed.?  
Does ExakTime have any certifications around data or security protection?  
Did ExakTime do a threat and risks assessment of their system? This is a  
standard tool for assessing security risks. Similarly have vulnerability  
assessments and penetration tests been done on the ExakTime system? And  
if so, what were the results?  
Has the ExakTime system been audited for security or privacy, and if so,  
what attestations are available?  
Where are the servers located?  
Are ExakTime data centres certified for security?  
Are facial images encrypted when stored on ExakTime servers?  
Does ExakTime proactively provide notice if they experience a security or  
privacy incident that may affect the employee’s data?  
There is a significant amount of evidence that should be available to demonstrate that  
ExakTime has done its due diligence to develop and implement a secure and privacy  
protective solution. Seeking this evidence would be a normal procurement practice for an  
employer thinking to implement cloud-based services to process employee data. It does  
not appear that this was done by the Employer.  
43.  
Mr. Wunderlich’s privacy analysis identified a number of issues arising from the  
description of the ExakTime system. He noted:  
With respect to movement tracking, there is no barrier to this being changed in the future  
via changes made by ExakTime. Their service terms appear to be set by the terms and  
conditions set by ExakTime on their website and with respect to their app, not a contract  
with the Employer.  
. . .  
The way in which employee verification of the person logging the hours is done is  
problematic, because it involves the collection of biometrics. “The physical and behavioral  
features that are recorded in a biometric system (for example, the person’s face, fingerprints  
or voice) are referred to as “biometric characteristics.”” In the federal privacy  
commissioner’s Guidelines for Identification and Authentication the Commissioner makes  
- 21 -  
the point that the use of biometrics should be necessary, effective and proportional to the  
potential privacy risks. And he notes that, “… if a biometric is stolen or compromised it is  
very difficult, if not impossible, to change.” He goes on to say:  
When appropriate, biometric information should be locally stored (i.e., on a device)  
rather than in a central database. Centralized storage heightens the risk of data loss  
or the inappropriate cross-linking of data across systems. Local storage, such as  
mobile phones or smart cards, by contrast, gives individuals more control over their  
personal information. By its very nature biometric information is sensitive  
information and should be protected by appropriate safeguards, including for  
example, encryption.  
. . . The primary issue with the collection of biometric data about individuals is that, unlike  
a password, a biometric cannot be changed. If a bad actor were to obtain a facial image, a  
fingerprint, a retina scan or some other unalterable characteristic of a person then that  
person would have a lifelong challenge recouping it and may not even know that their  
biometric was being used by bad actors (e.g. for fraudulent activities activity). . . .  
The nature of the types of safeguards that are necessary to protect the collection and use of  
biometrics is also well understood. First and foremost, it is the understanding that where  
the biometric is to be used for verification, it should not be stored in its original state.  
Rather, when a person is ‘enrolled’ into a system their biometric is collected and then  
converted into a reference template or numeric identifier that does not allow the  
reconstruction of the original image or biometric but does allow a new fingerprint or retina  
scan or face photo to be verified. This two-step solution of ‘enrollment’ and ‘verification’  
ensures that no biometric image is stored or transmitted AND that each individual can be  
reliably and uniquely verified. This is both a privacy protective and secure system. . . . It is  
also the case that all communications and storage of time and attendance data should be  
encrypted. Rather than create a template for comparison purposes (such that employees can  
be verified without the transmission or storage of their image), ExakTime takes, transmits  
and stores the photo as is, without encryption.  
There are also privacy concerns surrounding the installation of an app on an employee's  
personal device where the app includes, or is designed for the purpose of, GPS tracking. If  
there is a reasonable business requirement for the GPS tracking of employees a less privacy-  
intrusive solution would be to simply supply the employees with an Employer-supplied fob  
that the employee could choose not to carry when not at work.  
Other Viva Voce Evidence  
44. As provided for in the first Interim Award, the Unions put in their case and the Employer  
and the Association responded. Additional employee witnesses were called to address Earth  
Boring’s use of other applications and they were followed by the Unions’ brief reply evidence.  
David Muhanlal  
45.  
The first employee witness, David Muhanlal, a member of Local 183, testified that he  
had no idea where the photographs he was obliged to take of himself for the purposes of the  
ExakTime application were sent, where they were stored, how long they were stored, how they  
- 22 -  
were stored, and by what means they were secured. He also testified that he had not been asked by  
Earth Boring or ExakTime for permission to collect any of his personal information, to store his  
information on databases in the United states, or to disclose any of his personal information to  
third parties. On cross-examination, he acknowledged that he had never asked for a copy of the  
Exaktime photographs, where the data were stored, or what the data were used for.  
46.  
Mr. Muhanlal’s evidence was that Earth Boring did not direct him to keep his phone  
turned off while he was on site or while he was working on a job site. Similarly, he was not  
instructed by Earth Boring that he was to access the Exaktime application only in a trailer or in  
some other designated safe area or during his breaks  
47.  
Mr. Muhanlal recounted an incident in which he had left the job site at the end of his  
shift without clocking out with the ExakTime application. He had driven to his bank and returned  
to the job site to correct his error and clock out. The following day his supervisor confronted him  
and asked when he had finished work. Mr. Muhanlal testified that he answered that he had worked  
until 5:00 p.m. but had returned after driving to his bank. The supervisor responded that he was  
aware that he had left the site, returned, and clocked out. The witness had used his own vehicle;  
the Employer did not have a tracking device in his vehicle; and, he said, it had not been possible  
for the supervisor to observe his return as he had remained off the site to clock out and the  
supervisor’s vehicle was visible to him on the site.  
48.  
On cross-examination, Mr. Muhanlal stated that he had intended to tell his supervisor  
about the sequence of events, but the supervisor brought the situation up to him immediately upon  
seeing him the following morning. Mr. Muhanlal’s evidence was that the supervisor accused him  
of time theft and threatened to “write him up” if he did not clock out when he left the site.  
49.  
During Mr. Charney’s cross-examination of Mr. Muhanlal, Earth Boring introduced the  
documentation of a “toolbox safety discussion” on May 4, 2018. Notations on the document  
indicate that the topic was the use of ExakTime, signing in and out for breaks and lunches. The  
almost unintelligible handwritten notes read as follows: “When going on breaks please use the app  
to do go for breaks hit go break picture confirm when break is down hit go lunch picture Resume/  
start confirm Repeat for afternoon break. At End of Day, hit stop answer the questions then sign  
hit confirm or next. Make sure you sync the phone from the app so you get paid.” On the safety  
talk sign in sheet the question what was discussed was answered as follows: Exaktime — We  
discussed how to sign in and out Read email and had people sign”.  
50.  
Two other documents6 were introduced during Mr. Muhanlal’s cross-examination. One  
was a document entitled “Safety Talk Company Rules Seaton Sanitary Trunk Sewer Phase 1-2B”  
dated August 13th, 2018. Item 15 under “The Rules” read as follows: “No handled/personal  
electronic devices/cell phones to be used unrelated to work purposes”. Mr. Muhanlal was a  
signatory indicating that he had attended that safety talk and, therefore, was presumably aware of  
item 15 on that list.  
51.  
The other document identified Mr. Muhanlal as an attendee at Earth Boring’s annual  
health and safety training in January 2019. He initialed the document to confirm — in the printed  
6
As with others, these are presented without identification of various errors in their texts,  
- 23 -  
words of the form: “I have reviewed and fully understand the ‘Cell Phones, Media & Driving  
Policies’ including only using cell phones for business purposes while at work, not taking  
unauthorized pictures or posting any content that could damage EBCL's reputation and not being  
distracted while driving.”  
52.  
The attachment to that document includes the following statement with respect to “Cell  
Phone Usage”:  
There is to be no unauthorized personal use of cellular phones or other electronic  
equipment during work hours.  
This does not restrict the workers on our sites from having cell phones or electronic  
equipment on the job site for work purposes, it does restrict the personal use of these  
objects while on the site.  
In the event there are circumstances whereby the worker believes they need outside  
access for personal interactions (e.g. family emergencies, pressing personal matters),  
arrangements must be made with their immediate supervisor/foreman.  
Failure to follow the above guidelines may result in disciplinary action as per the  
Progressive Disciplinary Program.  
The final page of that document addresses distracted driving and identifies it as being against the  
law and the Employer’s policy, and further that it may include texting, emailing, putting location  
into GPS, or checking GPS status.  
53.  
In the result and unsurprisingly, Mr. Muhanlal testified that his understanding of the  
Employer's policy on cell phones was that employees were not allowed to use cell phones  
otherwise than for work purposes.  
Declan Kiernan  
54.  
Declan Kiernan testified that the Employer did not seek Local 183’s approval for the  
use of members’ cell phones for Exaktime and that it did not ask for Local 183’s prior consent to  
the use of Exaktime. Moreover, Local 183 had not been asked for permission to collect, use, store,  
or disclose employees’ personal information and photos.  
55.  
Mr. Kiernan was asked about the matter of “buddy punching” — a dishonest practice  
involving one employee’s falsely recording the presence of another by, for example, punching the  
other’s timecard in a timekeeping system that relied upon punch clocks. Mr. Kiernan spoke to his  
having familiarity with the practice in another environment unrelated to the Employer.  
56.  
He also spoke of safety concerns associated with the use of cell phones, identifying them  
as the “number one distraction” on jobsites today. He commented that, in addition to the issue of  
their being required by ExakTime to take photographs, employees’ having their phones with them  
at all times created or allowed for the risk of their getting text or telephone messages and looking  
at their cell phones while working.  
- 24 -  
57.  
Mr. Kiernan was cross-examined about a meeting he and Patrick Sheridan had with Mr.  
Woodbridge and the proposition that Local 183 was using tracking software on its employees’ cell  
phones.  
58.  
Mr. Costa subsequently testified that he would be responsible for the installation and  
maintenance of any such software or application and he states that tracking sotware simply was  
not a feature of the technology adopted and used by Local 183.  
59.  
In the result, the issue was roundly disputed by Local 183 and raised as a matter touching  
on the credibility of Mr. Woodbridge; however, I did not find the evidence to be at all useful as it  
was not relevant to the propriety or otherwise of Earth Boring’s use of ExakTime.  
Keith Pierson  
60.  
Local 183’s third witness, Keith Pierson, worked at Earth Boring for approximately  
twelve months ending in August 2018. He testified to using sign-in and sign-out sheets before  
ExakTime was implemented; he said that he would go to the site trailer to sign in on a sheet on a  
clipboard and do the same at the end of his shift. He acknowledged that the foremen might have  
used an electronic system to enter employees’ time, but he had not. Indeed, he said that sign-in  
sheets were in use at Seaton until he left Earth Boring in August 2018. He was not obliged to sign  
in and out during the course of the shift. In contrast, he stated, with ExakTime he sometimes had  
to climb up a shaft to obtain service in order to use the application to go on breaks and lunch.  
61.  
Mr. Pierson made reference to the process of using Exaktime, but he did not address  
turning the application on or off, or his practices with respect to logging in and logging out at the  
end of a shift. The evidence established that Mr. Pierson frequently used the application to clock-  
in and clock-out off site — well outside the GeoFence set up for the Seaton project on which he  
was engaged throughout his time with the Employer.  
62.  
Earth Boring introduced a document that recorded inappropriate ExakTime usage by  
Mr. Pierson over the period November 2, 2017 to July 20, 2018. The entries take up twelve pages,  
indicating his proclivity to start or stop the application at distances as great as 11.04 kilometers  
outside the GeoFence. In that worst case, the record indicated that Mr. Pierson recorded that he  
had stopped work at 5:00 p.m., but he was 11 kilometers away from his work location when he did  
so. There were instances of his recording his “starting work” at 7:00 o'clock at a distance of more  
than a kilometre outside the Seaton GeoFence. There was also an instance in which the record  
showed Mr. Pierson to have taken a break at some distance beyond from the Seaton GeoFence.  
63.  
Mr. Woodbridge later acknowledged Mr. Pierson’s pattern to be a problem. He also  
associated Mr. Pierson with buddy punching; however, even though the Employer had imposed  
discipline attached to his attendance, there was no discipline of Mr. Pierson for buddy punching  
and no evidence to substantiate the comments Mr. Woodbridge made linking Mr. Pierson to the  
practice.  
- 25 -  
64.  
Mr. Pierson testified that the Employer did not direct him to leave his phone in his  
vehicle, to keep the phone out of the construction site, or to turn it off while on site. To the contrary,  
he said that he was instructed to keep his phone turned on and that he was called on it “all the  
time”. He added that he was never told that he was not to access Exaktime while working.  
65.  
Mr. Pierson’s evidence was that neither the Employer nor Exaktime explained to him  
the potential uses of his personal information and his photograph. He had “no idea” what  
ExakTime might do or be doing with his personal information and data. When asked to explain  
his concerns about the application, Mr. Pierson spoke about having to take eight photographs daily,  
data usage and his device’s location services effecting an invasion of his privacy, particularly if he  
left the application on after work.  
66.  
Mr. Pierson was most vocal with respect to pay problems he associated with the  
application. He testified that he experienced pay issues on virtually every pay — his “money was  
wrong every week”, he was sometimes “missing days”, and “every cheque, [he] was fighting for  
money”. He claimed to have reviewed nineteen pay stubs with his foreman: “all had pay issues”  
and “there were perhaps only two or three that were not missing hours”. According to Mr. Pierson,  
issues also arose when he could not sign in or could not sign in on a timely basis due to connectivity  
difficulties.  
67.  
Mr. Pierson testified that Earth Boring had employed a number of Polish workers who  
were not obliged to use the Exaktime application.  
Scott Hryhorchuck  
68.  
Local 793 called the evidence of Scott Hryhorchuck, a bargaining unit employee. He  
testified that he had never asked Earth Boring any questions about encryption, the storage of GPS  
data, the sharing of GPS data, or how long his photos were stored. He did maintain that he had a  
conversation about who could access employees’ photographs and he was told that the Employer’s  
office had access to his photos.  
69.  
Mr. Hryhorchuck was asked on cross-examination about compliance with Article 18.14  
of Local 793’s collective agreement. He indicated that he understood that he could be in trouble  
or get in trouble for making a call without prior approval and he agreed with counsel for the  
Employer that his use of the smartphone for ExakTime was authorized and that he had “prior  
approval for that use”.  
70.  
He also acknowledged on cross-examination that the process of downloading the  
application required his consent and that he had agreed to and accepted the application; however,  
he said that his concern had become one of privacy and he explained that he became concerned on  
learning that ExakTime is a third-party application and that a third party can use the data generated  
by his activity. Mr. Hryhorchuck confirmed that he knew that the Employer would be using  
ExakTime to track his starts and stops, and he did appreciate that it was a third party developed  
application, but he maintained that he thought that Earth Boring might be engaging an inhouse IT  
professional and he did not agree that he knew that the data would be going beyond Earth Boring.  
Mr. Hryhorchuck agreed with Mr. Charney that he had no information about anyone associated  
- 26 -  
with Earth Boring actually experiencing privacy infringement. However, he was clear in stating  
his objection to being required to have a third-party application on his phone in order to be paid as  
he recognized that the third party would be able to collect data about him through the use of the  
application.  
71.  
As for pay issues, Mr. Hryhorchuck said that his supervisor had instructed that  
employees were not to sign in early — that they were to sign in at 7:00 a.m. and not at 6:55 a.m.  
and were paid to the minute. If he was at all late in signing in, Mr. Hryhorchuck said, he would  
lose pay accordingly and have to decide whether pursuing the lost pay was worth the effort.  
The Evidence for Earth Boring and the Association  
— Implementation of the Application  
72.  
In opening the Employer’s case, counsel made the comment that the introduction of  
Exaktime was simply an example of his client’s doing what it did before, but better. Mr.  
Woodbridge testified that, prior to the introduction of ExakTime, Earth Boring had used another  
application, SmartSheets, to record time and attendance; however, he estimated that only a dozen  
bargaining unit employees had that application on their phones and explained that foremen would  
use SmartSheets to enter time for most employees. Mr. Woodbridge commented that employees  
had complaints about SmartSheets associated with foremen failing to record their time accurately.  
73.  
According to Mr. Woodbridge, Earth Boring was spending twelve to fifteen hours  
weekly “chasing down” and rectifying problems related to the use or misuse of SmartSheets. In  
addition, the application did not show any actual history to assist in validation or correction of  
issues.  
74.  
Mr. Woodbridge thought SmartSheets showed where the individual was when he  
submitted the form; however, it did not require the individual to take a “selfie”.  
75.  
Mr. Woodbridge confirmed that Earth Boring had been using photographs of employees  
“for decades” and that digital photographs were now part of its system. He also stated that photos  
of Earth Boring’s employees were “not run through facial recognition software”. Mr. Woodbridge  
testified about the many photographs that are taken of Earth Boring employees, starting with one  
taken at the commencement of employment and progressing through various job sites where, for  
example, employees are photographed for identification badges. Moreover, at least six and as  
many as fifteen photographs are taken every day on a job site. In addition, cameras are in place at  
all of the yards to produce high-definition photographs and videos that would inevitably capture  
images of employees.  
76.  
In common with other construction enterprises, Earth Boring utilizes various tracking  
devices with its mobile equipment.  
77.  
Mr. Woodbridge explained the factors that brought about the decision to adopt  
ExakTime. His evidence was that: it was more efficient; it put the power of timekeeping back into  
employees’ hands; it eliminated “buddy punching”; it gave the Employer and the employee a log  
- 27 -  
of the working history that could be checked against a pay stub; employees were able to see at any  
time exactly how many hours they had worked; it eliminated arguments about employees’ times  
of attendance; it reduced the administrative time spent on verification to less than five minutes  
monthly; and it allowed the Employer to show where employees were for billing purposes, making  
it a “game changer” as it assisted Earth Boring in demonstrating to its clients the hours Earth  
Boring had been on site.  
78.  
Mr. Woodbridge stated that ExakTime was “probably saving [Earth Boring] $240,000  
to $270,000 per year”.  
79.  
As for “buddy punching”, Mr. Woodbridge stated that the practice was a factor on its  
larger sites and that the Employer was aware of a couple of perpetrators. He associated Mr. Pierson  
with the issue, but there was no evidence of his having been challenged or disciplined as a  
participant in buddy punching. When Mr. Woodbridge spoke about the reduction in the number of  
photographs required by the Employer in September 2018, he explained that Earth Boring  
determined that it did not need photographs during the day as their concern was focused principally  
on buddy punching. On cross-examination Mr. Woodbridge insisted that the employer had a  
significant problem with buddy punching.  
80.  
Counsel for Local 183 attempted to persuade Mr. Woodbridge on cross-examination  
that the ExakTime application was susceptible to buddy punching using a photo-of-a-photo as  
described in Mr. Costa’s report. While Mr. Woodbridge dismissed that as being “absurd to an  
extreme”, he did concede that he “guessed that it could be done”.  
81.  
ExakTime was also significant in the Employer’s achievement and maintenance of its  
Certificate of Recognition (“COR”) from the Infrastructure Health & Safety Association  
(“IHSA”), said to be critical in the pursuit of work as many municipalities would not permit a bid  
if the company did not have that qualification. Mr. Woodbridge explained that one of the audit  
points in the accreditation process required the demonstration of the ability to establish the  
presence of an individual at an intended or stated location. ExakTime enabled Earth Boring to  
demonstrate that capability.  
82.  
Mr. Woodbridge testified that Earth Boring did not discuss the introduction of  
ExakTime with the Unions in advance as he did not anticipate their having any objection. He also  
did not consider the collective agreements in relation to the application as he did not think that it  
affected those agreements.  
83.  
Mr. Woodbridge said that there were issues with employees having problems signing in  
and out with ExakTime at the outset; however, there are now only rare issues associated with  
employees forgetting to sign out. He identified both Keith Pierson and Scott Hryhorchuck as  
individuals who had issues with their pay or issues punching in, and stated that their circumstances  
were not typical of the employee concerns. Mr. Pierson's issues were with signing in and out away  
from his job site and “very rarely where he should have been” and at a time when he should have  
been using the application. He also said that Mr. Hryhorchuck had problems using the application,  
but he received helped and there were now “negligible examples” of employees not signing out  
properly.  
- 28 -  
84.  
Mr. Woodbridge spoke to the evidence that had been given about a group of Polish  
employees said to have been working without being required to use the application. He maintained  
that all of those employees used ExakTime. They were using it differently to avoid the cost of  
accessing their European cell phone service plans; these workers would upload their data at their  
hotel using Wi-Fi. Mr. Woodbridge acknowledged that some were working without ExakTime for  
a week or two and that one of their number had tracked time for others who had issues starting and  
stopping the application. These were all Local 183 members. Many of them went back to Europe  
in March 2020 due to COVID-19. Mr. Woodbridge insisted that they were all using ExakTime  
prior to their departure.  
85.  
Mr. Woodbridge also testified at length regarding the use of ExakTime as a significant  
factor in the Employer’s response to COVID-19 — setting out the Employer’s policy, raising  
relevant screening questions, and facilitating contact tracing through the capture of employees’  
work time and geo-locational data.  
86.  
Mr. Woodbridge explained the process followed by the head project manager to set up  
a GeoFence for a particular job site. Mr. Woodbridge said that, while an employee could sign in  
and could sign out beyond the GeoFence, that would “throw up an error code” as evidenced by the  
extensive document capturing the numerous occasions on which Mr. Pierson had signed in or  
signed out at some distance from the GeoFence for the Seaton site. Mr. Woodbridge characterized  
Mr. Pierson as “an exceptional employee”, distinguished from most who sign in and out at “0.0  
kilometres from the job site”.  
87.  
Mr. Woodbridge spoke to the bases upon which Earth Boring accesses the data available  
from ExakTime. An Earth Boring administrator would open the computer, log on, enter a code as  
administrator, and then could see the current whereabouts and the historical information associated  
with an individual employee. For payroll purposes, the administrator can enter a date range and all  
of the payroll data would “pop up” for the period and that data could then be exported to ADP for  
payroll processing. The administrators at Earth Boring are limited to the Payroll Manager, the  
Project Manager, the Health and Safety Manager, John Currey, and Mr. Woodbridge. He  
confirmed that administrators do not require two factor verification to log on to access ExakTime  
data. Mr. Woodbridge said that that was not a concern for him as Earth Boring did not have two  
factor verification on any of its “sensitive documentation”.  
88.  
Mr. Woodbridge explained that the payroll process involved the Payroll Manager  
looking at each employee's data. The Payroll Manager would verify the employee’s photograph if  
there was an error code, if a situation were flagged by a foreman, or in the event of any other  
peculiarity. Mr. Woodbridge said that the Employer is able, for example, to run a report to  
demonstrate travel time if called upon to show a client the travel time associated with their work  
and that they could also “pull reports for audit purposes”.  
89.  
Mr. Woodbridge testified that employees’ photographs are stored in the cloud on servers  
for ExakTime and are not stored on their phones. He said that only the Earth Boring administrators  
can access those photographs. For clarity, on the evidence the employee’s photograph is sent to  
the cloud and Earth Boring’s administrators can have access to it via a portal, using their computers  
- 29 -  
or mobile devices. Earth Boring has access and ExakTime has access; the employees do not have  
access to their photographs.  
90.  
Mr. Woodbridge was not certain whether ExakTime had the ability to transmit photos,  
but he did not dispute that photographs were sent to Local 183 for the assistance of Mr. Costa.  
More precisely, ExakTime sent the photographs to Earth Boring and Earth Boring had forwarded  
the photographs to the Unions. Mr. Woodbridge explained that Earth Boring could not transmit an  
employee’s photograph, but an administrator could hover over a thumbnail photograph to bring it  
up for review. Mr. Woodbridge indicated that Earth Boring does not know what software  
ExakTime Inc. would use for or in respect of employees’ photographs.  
91.  
Counsel for Local 183 challenged Mr. Woodbridge that any photograph would permit  
an employee to move through the login process and that therefore the process of checking  
photographs to ensure that the correct people were logging in and logging in correctly would  
occupy a significant amount of time given the number of employees and the number of  
photographs that would be generated over the course of a working week. Mr. Woodbridge disputed  
that and said that the Payroll Manager was familiar with the process and the employees and could  
do the work quite quickly. He insisted that the time saving using ExakTime was significant.  
— Privacy Safeguards  
92.  
Mr. Woodbridge also spoke to the security features associated with the application. He  
was told by ExakTime that Microsoft Azure took care of the backup and storage of data and that  
Microsoft Azure stores data on large server farms with protocols for security that are applicable in  
a significant number of countries. Mr. Woodbridge was not concerned about security of Earth  
Boring employees’ data once he learned that Microsoft was involved and he had no reason to doubt  
ExakTime’s advice as to the involvement of Microsoft.  
93.  
When cross-examined by counsel for Local 183 with regard to the extensive due  
diligence exercise described by Mr. Wunderlich, Mr. Woodbridge reiterated that he was told that  
all data would be stored in the cloud with Microsoft and that included the backup. He commented  
that he did not want his data to be held or seen by anyone else and the fact of hosting by Microsoft  
“alleviated all of [his] concern regarding security and retention”. When he asked about data  
storage, he was told it was run by Microsoft and that covered any security and privacy issues for  
him. “If it's secured, it's private” was his understanding. Mr. Woodbridge’s evidence was that, for  
him, all of the due diligence questions identified by Mr. Wunderlich in his report were answered  
on his learning that ExakTime Inc. used Microsoft Azure. When asked why he was so confident  
in that, Mr. Woodbridge referred to Microsoft Azure's market position, its having ninety-eight  
different certifications, and his sense of comfort with a large brand and a highly-recognized  
company being used by ExakTime to secure the data.  
94.  
Mr. Woodbridge gave as his understanding that, in the data produced to Earth Boring  
by ExakTime, everything was encrypted “going up and coming back out”, including the  
employee’s thumbnail photograph. There was nothing in the data with respect to an employee’s  
address, phone number or other personal data. By way of contrast, he noted, ADP has all of the  
information relevant to the preparation of an employee's T4 slip.  
- 30 -  
95.  
On cross-examination, Mr. Woodbridge agreed that improper use of an employee's data  
would concern him, but he observed that there was no evidence of that having happened in the  
Employer’s use of ExakTime. When confronted with the proposition that there was no evidence  
to the contrary, Mr. Woodbridge stated that that was correct, adding: “I have not heard about it”.  
96.  
In that context, he noted that ExakTime had been in use at Earth Boring for one week  
shy of three years when he started his evidence and he had no information of data being subject to  
data mining, no information of a server being hacked and information stolen, no information of  
any employee data being used for nefarious purposes — particularly with reference to employee  
photographs — and no information of photographs being photoshopped for illicit or unwanted  
purposes.  
97.  
On cross-examination by counsel for Local 183 Mr. Woodbridge was confronted with  
the proposition that Earth Boring might have addressed its issues by requiring employees to sign  
in using their own phones and their own unique identifiers without obliging them to provide a  
photograph that would eventually be stored indefinitely on remote servers. Mr. Woodbridge noted  
that people sometimes forget their phones, but he did acknowledge that it would be possible to  
have a policy that would require each individual to “clock in” using that individual's phone.  
98.  
Mr. Woodbridge indicated that the notion advanced by Mr. Wunderlich that employees  
might be provided with fobs rather than use their phones would not work as most employees would  
leave the fobs at the worksite and that would result in employees’ having access to the fobs to  
engage in buddy punching.  
99.  
While the information given at the opening of the case was that the employees’ data  
were retained for six months, Mr. Woodbridge confirmed that the data were in fact kept  
“indefinitely, as long as you're paying”. He added that he was told by the Employer’s auditor that  
Earth Boring was required to keep payroll data for a minimum of seven years. Accordingly, he  
testified that he told ExakTime to continue to retain the data indefinitely and Earth Boring will  
assess its needs in due course.  
100.  
Mr. Woodbridge was cross-examined about some of the conclusions and factual  
statements in Mr. Wunderlich's report. By way of example, he was asked about the statement:  
“once the data is available to the cloud-based service it is available for any kind of use . . . including  
data mining for secondary purposes”. Mr. Woodbridge said that he did not know what Mr.  
Wunderlich meant by “any kind of use” and he suggested that “they can't take it and post it  
publicly”. Mr. Black put to Mr. Woodbridge that he had no basis to dispute the proposition; he just  
did not believe it. Mr. Woodbridge answered: “No, I don't”.  
101.  
Similarly, Mr. Woodbridge was questioned about Mr. Wunderlich's observation that the  
possession of a phone and the ability of a person to log into the system constituted sufficient proof  
of identity without requiring a more privacy-invasive photograph. Mr. Woodbridge answered that  
Earth Boring finds it necessary to identify the employee and a person’s using another employee’s  
phone and a PIN would not be enough. Earth Boring wanted the photograph to show that the  
employee was present rather than permitting someone to engage in buddy punching. According to  
Mr. Woodbridge, the system would break down if the photograph were eliminated. In that context,  
- 31 -  
Mr. Woodbridge alleged that “defrauding seemed to be rampant” and he made reference again to  
the evidence concerning Mr. Pierson's practices, ending with the observation: “He's no longer with  
Earth Boring.”  
102.  
Mr. Woodbridge confirmed that he did not dispute Mr. Wunderlich’s observations that  
ExakTime had the ability to change the terms of service at any time. He also accepted the  
conclusion that: “Rather than create a template for comparison purposes such that employees can  
be verified without transmission or storage of their image, ExakTime takes, transmits and stores  
the photo as is, without encryption”. Mr. Woodbridge said that he was not concerned about a facial  
image of a person at work as Earth Boring has thousands of photos and images of people at work.  
While he said he would be concerned with “a fingerprint or something of that sort”, he did not  
dispute that a person might not be aware or might not learn that personal data had been used by a  
“bad actor”.  
103.  
Mr. Woodbridge also confirmed that employees did not have any say in relation to the  
terms of any contract between the Employer and ExakTime and that the Privacy Policy simply  
shows up on their phones. He admitted that he had never told the employees that their information  
was subject to United States or California law; however, he did say that he felt safe enough as he  
believed that their data were as secure in privacy terms under U.S. law as here in Ontario. Mr.  
Woodbridge also agreed that he had not told employees that other parties might use their data.  
104.  
When he confronted with the proposition that employees had to agree to these  
ExakTime terms if they wished to continue working at Earth Boring, Mr. Woodbridge answered  
that he did not involve employees in every decision. When he was asked to confirm that there was  
nothing in the arrangement that required ExakTime to return data to an employee who quits  
employment with Earth Boring, Mr. Woodbridge responded: “No, it belongs to me” and referred  
again to his obligations or anticipated obligations in respect of the Canada Revenue Agency.  
105.  
Mr. Woodbridge was unable to say whether ExakTime was obliged to advise Earth  
Boring or the employees of any data breaches or to tell Earth Boring or the employees of  
ExakTime’s sale or other use of any data collected pursuant to this arrangement. That was subject  
to ExakTime’s Privacy Policy — not Earth Boring’s — and ExakTime’s Privacy Policy had been  
accepted as is, without editing or amendment by Earth Boring.  
106.  
Mr. Woodbridge was questioned about clause 4.01(a) of the Local 183 collective  
agreement and the proposition that, all things being equal, an employee's phone is not any of the  
Employer's business. Mr. Woodbridge disagreed and drew a parallel between the use of a phone  
and an employee's work boots. He said that the employee’s work boots are not his business, but  
the employee has to have them in order to work. Moreover, he pointed out, Earth Boring does not  
require employees to use their phones as they are able to use the phones of colleagues or their  
foremen.  
— Workplace Safety Issues  
107.  
The Employer acknowledged that its working environment was safety-sensitive — the  
work involved heavy equipment and heavy supplies, with Earth Boring employees working in  
- 32 -  
shafts and tunnels and, at times, with hot permits. However, when Mr. Woodbridge was asked on  
cross-examination to agree that heavy underground construction is inherently dangerous, he  
disagreed and said that Earth Boring employees were “at their safest in our history”. He agreed  
that it was necessary for employees to give the work their full attention; however, he said that in  
between tasks they do not have to be concentrating fully. They have “periods of peak intensity and  
periods of no intensity”. Mr. Woodbridge agreed that distraction should be kept to a minimum and  
that, in construction, distraction was often the causal factor in employees’ incurring injuries.  
108.  
Mr. Woodbridge spoke to the use of cell phones on Earth Boring’s sites. He said that  
employees were allowed to have a cell phone on site, but were prohibited from using their phones  
during work time unless it was for work purposes. They were also allowed to use a cell phone if  
they notified their foremen about important calls. An employee’s anticipating a call from a divorce  
lawyer was an example he gave. Mr. Woodbridge said that he did not have a concern about safety  
in that context, explaining that Earth Boring “doesn't have people on phones during the day for  
personal purposes” and it “was not an issue for us”.  
109.  
Earth Boring has not experienced a safety incident associated with cell phone use on a  
site since the introduction of ExakTime. Mr. Woodbridge’s evidence was that Earth Boring  
instructs employees regarding the use of their phones to log in and out at a safe location and advises  
then to move to “a safe spot”. He also said that Earth Boring does not instruct employees to turn  
off their phones during working hours and that bargaining unit foremen are “on the phone a lot  
during their shifts”.  
110.  
Mr. Woodbridge was asked on cross-examination whether he was concerned that  
employees were taking “selfies” on live construction sites. He answered that he would be if  
employees were operating equipment, but not if they were simply taking a photograph at the  
beginning or at the end of their day or on breaks.  
111.  
On cross-examination, Mr. Woodbridge was asked about the duty to take every  
reasonable precaution for the protection of workers in accordance with the provisions of the  
Occupational Health and Safety Act. He said he did not agree that the statutory obligation operates  
to exclude cell phone use on construction sites.  
112.  
In the same vein, Mr. Woodbridge was cross-examined with respect to COR and IHSA  
and it was put to him that IHSA takes a dim view of cell phone use in construction. Mr.  
Woodbridge responded that he believed that a construction company can permit the use of cell  
phones when it is safe to do so, adding: “We have our own policies”. Mr. Woodbridge was  
confronted with the proposition that there was nothing in the Earth Boring policy against cell phone  
use other than its reference to the prohibition in relation to distracted driving and, further, that there  
was nothing to indicate that cell phones were to be used only in safe spaces. Mr. Woodbridge  
maintained that employees were to use the ExakTime application to sign in and out wherever they  
were and that they could use it wherever they wished, but they were trained to use it where and  
when it is safe to do so. He maintained that employees do not have to be in a designated space, but  
can be in any safe location.  
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113.  
During his cross-examination, Mr. Woodbridge identified and was asked questions  
about IHSA bulletins dealing with mobile devices and safety on construction work sites. One of  
those stated as follows:  
Never use your mobile device on a work site unless authorized by your supervisor. That  
includes talking, texting, emailing, playing games, etc.  
Never use your mobile device while operating any tools, machinery, equipment,  
vehicle, or while performing activities that require your full attention.  
Don't use your mobile device while receiving work instructions or safety-related  
information.  
Wait until your lunch or rest break to use your mobile device for personal calls or other  
activities. But only use it in specially designated safe work areas, such as a site trailer  
or break room.  
Never operate a mobile device near flammable fumes or liquid, or when you're in a  
flammable environment.  
Turn off your mobile device completely when working. If your ringer goes off, it may  
startle you or someone in the area.  
Let your calls go straight to voicemail when you're working. You can retrieve them at  
a more convenient time.  
To reduce the temptation to use mobile devices on the worksite, supervisors should ask  
workers to keep them in their vehicles or store them in a lock box at the site trailer.  
If you have an urgent matter that requires keeping in contact with family members,  
bring it to the attention of your supervisor and work out a plan so that the  
communication can be done in a safe manner.  
If you need to access important work-related information on your mobile device, stop  
any work activities, inform your supervisor, and move to a safe work area.  
For supervisors, communication is part of the job. However, they should limit their  
mobile device used to the site trailer, site office, or other designated safe work areas  
away from general work activities. They should not make or take calls while directing  
activities on the site.  
Mr. Woodbridge testified on re-examination that the employer used the IHSA materials as  
guidelines for its policies.  
114.  
Mr. Woodbridge has been a director of and an executive member of the Association for  
a substantial portion of his career. He has been involved in six or seven rounds of bargaining. He  
was questioned about the negotiations for the 2019-2022 collective agreement as he was a  
signatory on behalf of the Association.  
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115.  
Mr. Woodbridge was asked about Article 11.12 in Local 183’s collective agreement and  
agreed that the provision was introduced in 2010 bargaining or earlier. He also acknowledged that  
it might have been proposed for inclusion by the Association and that it was intended to minimize  
distraction. Mr. Woodbridge agreed that there have been deaths of union members in construction  
involving cell phones since 2010. He also agreed that Earth Boring employees have been  
disciplined for on-site use of cell phones if they were not using the devices as anticipated or  
expected. Mr. Woodbridge agreed that SmartSheets had been introduced at about the same time  
as Article 11.12. He added that the use of SmartSheets complied with Article 11.12, but agreed  
that SmartSheets had not been mentioned as an exception to the provision.  
116.  
Mr. Woodbridge was cross-examined about Earth Boring’s productions pertaining to  
safety talks and cell phone usage. One used the words “unrelated to work purposes” to identify  
impermissible uses and the other referred to “work purposes” as permissible uses. In response to  
the observation that “work purposes” was not an exception in Article 11.12, Mr. Woodbridge  
answered that Earth Boring has the power to implement policy in accordance with its management  
rights and, in any event, to give “prior permission”.  
117.  
There was then reference to a proposed change to Article 11.12 in the 2019 bargaining  
to give explicit recognition to employer policies with respect to cell phones. The Association  
proposed the addition of a sentence to that effect: “Employees will be subject to the Employer's  
individual policy as per Management Rights.” Mr. Woodbridge’s evidence was that he was not at  
the bargaining session at which that language was proposed; however, he saw the document and  
did not disagree that the proposal was presented to Local 183 on March 11, 2019, that it was  
rejected by Local 183, and withdrawn. When Mr. Black asked Mr. Woodbridge to confirm that  
the proposal was made with ExakTime in mind he answered that he did not know that it was, that  
it was not put forward by Earth Boring, and he did not know who had proposed the change as part  
of the Association's negotiation position.  
118.  
On re-examination, Mr. Woodbridge testified that the proposed amendment to Article  
11.12 of Local 183's collective agreement was not Earth Boring's idea and he reiterated that hewas  
not aware who had presented or proposed the alteration to the provision. He also said that he did  
not recall any discussions with Local 183 about this issue.  
119.  
Mr. McManus was asked about Article 11.12 and the Association's proposal during his  
examination in chief. He testified that he could not recall specifically who had proposed the  
change, but he did refer to it as “a housekeeping matter”. He also said that he did not recall the  
extent to which it was discussed and suggested that it was likely one of the first proposals “to come  
off the table”. On cross-examination by counsel for Local 183, Mr. McManus testified that he did  
not recall this grievance being discussed in connection with the proposal and he offered that it was  
“not likely that it would have been”. He also said that he did not recall any discussion about why  
the proposal was put forward even though cell phone use is an important issue. When asked if he  
agreed that the proposal would give employers more latitude with respect to the use of applications,  
Mr. McManus answered that it was more about hardware used, noting that there was no reference  
to applications in the language.  
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120.  
On re-examination with respect to the safety issues, Mr. Woodbridge said that Earth  
Boring would still need cell phones on its worksites in the absence of ExakTime and that the use  
of cell phones had been increasing every year as demonstrated by the significance of the cell phone  
for COVID purposes. He testified that employees are not required to keep their phones turned on  
when they are working, but they would need to access the phone for work purposes. As for cell  
phones being dangerous on construction sites, Mr. Woodbridge reiterated that Earth Boring trains  
employees to use their phones when it is safe to do so. Mr. Woodbridge maintained that the  
employees’ phones have been used as tools since approximately 2008 or 2010, their use of cell  
phones as tools has been “open knowledge”, and there have been no grievances filed about the use  
of cell phones as tools.  
— Other Applications  
121.  
Mr. Woodbridge undertook to do a review to identify bargaining unit employees who  
were known or believed to have SmartSheets and other applications relevant to Earth Boring  
downloaded onto their phones. He mentioned “SiteDocs” as one of the applications that are  
mandatory as it housed the Employer’s “whole health and safety program”. By contrast,  
SmartSheets is not mandatory for every bargaining unit employee, but all have access to it. Mr.  
Woodbridge emphasized again that, with these applications, employees were using their phones  
as tools and not as entertainment devices.  
122.  
Mr. Woodbridge subsequently presented a listing of employees and his information as  
to their having downloaded and used a number of work-related applications. That resulted in the  
parties calling the evidence of eight individuals to speak to their familiarity with and use those.  
123.  
Mr. Woodbridge’s list of employees and their use of identified mobile applications in  
use at Earth Boring in the period commencing 2016. Two of those were no longer used. Mr.  
Woodbridge associated all of the bargaining unit employees listed as making use of SmartSheets,  
ExakTime and SiteDocs. He identified fewer than one-half of the employees as users of a mobile  
application called “Slack” and a majority of employees having used one named “GeoTab”.  
124.  
Mr. Woodbridge indicated in his evidence that he had gone into the Employer’s system  
to determine employees who had downloaded the applications with the result that, in his view, the  
document he presented identified those employees who had access to the application. He did not  
pretend to know the extent to which individuals made use of the applications other than ExakTime.  
125.  
Mr. Woodbridge stated that the SiteDocs application constituted the “nucleus” of the  
Employer’s safety program. He added that SmartSheets is used every day in connection with  
project updates, vacation requests, checklists, supplier lists and the like. Slack is also used in  
connection with project updates. SiteDocs is used for or in connection with all safety inspections,  
COVID-19 protocols, MSDS sheets, safety procedures, and locates. GeoTab is used in connection  
with the Employer’s vehicles; it provides for electronic circle checks and an electronic driving log.  
126.  
Other than ExakTime, none of the applications required employees to take “selfies”.  
There was no evidence given as to the circumstances in which employees might use any of those  
applications in an unsafe manner on the work site.  
- 36 -  
127.  
Subsequently the parties agreed to call the evidence of eight bargaining unit employees  
to speak to their familiarity with and use of the applications listed in Mr. Woodbridge’s document  
— The Association’s Survey  
128.  
Mr. McManus testified about the Association's interest in the grievances as affecting  
management rights. He noted that timekeeping practices were evolving, and that the industry was  
moving to more application-based processes.  
129.  
Mr. McManus gave evidence about a survey the Association conducted during the  
summer of 2020. He had put the survey together, sent it to ninety members of the Association,  
and received sixty-seven responses made anonymously. The survey was entered as an exhibit on  
consent, but without the Unions’ conceding its relevance.  
130.  
The first question on the survey read as follows: “Does your company currently use an  
electronic timekeeping and/or tracking application?” The second question asked those who  
answered positively whether their use of a “electronic timekeeping and/or tracking application”  
preceded the start of measures relating to the COVID-19 pandemic earlier in 2020. The survey  
also asked respondents to indicate the name of the “electronic timekeeping and/or tracking  
application” their company used. Thirty-six respondents answered that question and ten of them  
named ExakTime.  
131.  
Nowhere in the survey was there anything to define a respondent’s use of any of the  
applications. There was no indication, for example, that those who use ExakTime used it for  
electronic timekeeping, but not for tracking or that they used it for tracking, but not for  
timekeeping. There was nothing in the survey to indicate whether other companies using  
ExakTime required their employees to take “selfies” and, if so, under what circumstances and with  
or without limitations on the data that were sent to ExakTime Inc., the arrangements for encryption,  
storage, and the like.  
132.  
Counsel for Local 793 brought out on cross-examination that the survey did not ask  
recipients whether their “timekeeping and/or tracking” device or process required a mobile  
application and whether they required their employees to download an application to their personal  
phones.  
133.  
Mr. McManus also spoke to an electronic payroll survey conducted by the Association  
in or about June 2018, with results tabulated in October 2018. That survey asked for information  
concerning respondents’ utilization of electronic timesheet applications to assist with the payroll  
process and whether the respondents were utilizing any other type of electronic application to assist  
in better controlling the flow of work.  
— Controversy about ExakTime Functionality  
134.  
In the course of his evidence regarding the use of the ExakTime application by  
employees and the various steps they were to take in its use, Mr. Woodbridge testified that at the  
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end of the workday when an employee pressed “Stop” the application could no longer track the  
employee's whereabouts. He said that the application “defaults to ‘not tracking me’ automatically  
when it closes”.  
135.  
Mr. Woodbridge went further. He maintained that there is a default feature that stops  
the application’s tracking, and that default feature would apply, for example, when the worker  
used the application to take a break. According to Mr. Woodbridge, ExakTime would then stop  
tracking unless the default was over-ridden. Similarly, on his evidence, the application would not  
track movements after an employee clocked in to begin a shift. He said that the default setting is  
for the application to “not track” unless someone turns off the “not tracking” setting.  
136.  
Mr. Woodbridge maintained that he communicated the same information during the  
demonstration at the Association offices in the January 2019.  
137.  
Mr. Woodbridge testified that the ExakTime application had been running at the January  
2019 demonstration. In order to show the Unions its ability to track beyond the GeoFence — and  
in response to their request — Earth Boring had turned off the default to allow those present to  
observe the capability of the application, a capability that was said not to have been in use at or by  
Earth Boring.  
138.  
There was a lengthy exchange in the cross-examination about what had been said at the  
demonstration. Counsel for Local 183 put to Mr. Woodbridge that the GPS and GeoTrakker does  
not default to the “off” status. Mr. Woodbridge answered that one of the first things Earth Boring  
had said at the demonstration was that the application defaults to not tracking when off. Mr.  
Woodbridge said that Mr. Currey had demonstrated how the application worked while he had done  
most of the talking. Mr. Woodbridge asserted: “We flipped it off so that we could show” the  
Unions that the application could track an employee. The object of the exercise had been to  
demonstrate what Earth Boring did with the application; however, they also showed the Unions  
what else the application could do and did so at the Unions’ requests.  
139.  
Mr. Woodbridge said that the Employer had asked the Earth Boring employees in the  
field who were involved in the demonstration to leave the application open on their phones so that  
the Unions could see what could be done, could see the employees “moving around”. Mr.  
Woodbridge said that they called the employees to tell them what to do so that Earth Boring could  
track them for the purposes of responding to the Union's requests. He said that Earth Boring set  
this up in advance — in anticipation of the Unions’ request — so that, if the employee did not hit  
“GO” then the application and GeoTrakking would not turn off.  
140.  
According to Mr. Woodbridge, the application will track if the employee logs into a  
function and continues his activities without hitting “GO”. Also, if the employee logged back in  
without hitting “GO” the application will track the employee.  
141.  
Mr. Woodbridge insisted that the ExakTime application offered the administrator the  
opportunity to set it for automatic login/logout and that it would default to logout after clock-  
in/clock-out, but they had “toggled [the setting] to off” for the purposes of the demonstration. Mr.  
Woodbridge maintained that Earth Boring had told the Unions in the meeting that the application  
- 38 -  
defaults to “off”. He was asked to confirm that if the employee left the application open and  
running the GeoTrakker would be active and he said that that would be the case only if the  
employee opened the application and had not signed in; Geotrakker would not be active if the  
employee had signed in.  
142.  
Mr. Woodbridge claimed that the application defaults to “no GPS tracking” the second  
after the employee taps “GO” on his screen.  
143.  
Mr. Woodbridge also said that Earth Boring encourages employees to fully close the  
application in order to save their batteries.  
144.  
During Mr. Woodbridge’s cross-examination there was reference to an earlier indication  
that once an employee opens ExakTime unless he closes the application or turns off his phone the  
application runs in the background. Mr. Woodbridge disputed that and said that the application  
automatically defaults to closing on the employee’s hitting “GO” on the phone’s screen and the  
employee can then let a co-worker use the phone to log in. Furthermore, he repeated that the feature  
is notable in that it “doesn't run down the battery”.  
145.  
Mr. Woodbridge noted that the employee can also turn the phone off and can close the  
application by double tapping and swiping up. Mr. Woodbridge said that if the employee logs out,  
the default is that the application shuts off; when opening the application again, the employee  
would be asked for the four-digit PIN and the employee or a colleague could then log in. When  
Mr. Black put to Mr. Woodbridge that the application stays running until the employee closes the  
application or shuts down the phone, he maintained that the application is off when the employee  
completes an entry. He said that the application can be off when the employee logs a function and  
hits ”GO” and it can also be closed by the employee’s double tap and swipe.  
146.  
The Unions’ disputing that evidence resulted first in the calling of Mr. Wunderlich and  
Mr. Costa to testify in reply, and, later, extensive submissions with respect to the evidence and the  
credibility of Mr. Woodbridge. In large measure the dispute related to the proposition that Earth  
Boring could track individuals inside and outside its GeoFences and Mr. Costa’s evidence  
regarding the demonstration of that facility with his Local 183 colleagues.  
147.  
Mr. Woodbridge testified that Earth Boring has trained employees about how to sign in  
and out and how to stop the application. New employees get training on the ExakTime application  
and its use. Training is also conducted annually for supervisors and employees. The documentation  
for those exercises was included in the materials the Employer submitted in September 2020.  
148.  
On cross-examination, Mr. Woodbridge stated that he understood from ExakTime that  
the application does not collect data after the employee clocks out at the end of the shift. He added  
that he believed that the Mr. Costa’s report said the same thing. Mr. Black followed up with the  
proposition that most employees do not turn off the application or close it after every use and Mr.  
Woodbridge remarked that he would suggest that most do close the application during the course  
of the day to say to save battery power.  
- 39 -  
149.  
When he was called in reply Mr. Wunderlich testified that during the demonstration no  
one had said anything to the effect that ExakTime defaults to turning itself off or to close itself or  
to log the user out. He also testified that he did not recall anyone using the word “default”.  
According to Mr. Wunderlich, had someone used “default” he would have noted that, he would  
expect that he would recall its use, and he would have included a reference to it in his report.  
150.  
Mr. Costa also gave evidence in reply and said that to the best of his recollection no one  
said anything at the demonstration to the effect that ExakTime defaults to turning itself off, to  
closing itself, to logging the user out, or to turning off GPS tracking. Indeed, Mr. Costa testified  
that he did not recall any discussion about defaults in connection with this software. He was asked:  
“Does it default to not tracking?” His answer was “No. If the GeoFence is turned on, it tracks; if  
no GeoFence is turned on, there is no tracking; if GeoFence location tracking is turned on,  
breadcrumb tracking in data tracking is on to generate data points — they are being collected.  
Tracking is not turned off after clocking in; if the individual punches out then there is no more  
tracking and location services are no longer engaged.”  
151.  
In this context, Mr. Costa indicated that “default” was intended to refer to a  
preconfigured value. He was asked whether a worker could set up a default and he said that a  
worker could not — that the worker “would have to shut down and/or rescind consent for the app  
on his phone” as the application needs the consent in order to work.  
Local 183’s Submissions  
152.  
In addition to legislation — notably the Occupational Health and Safety Act, R.S.O.  
1990, c. O.1 and the Highway Traffic Act, R.S.O. 1990, c.H.8, — numerous dictionary definitions  
and excerpts from Brown & Beatty, Canadian Labour Arbitration, 5th Edition (“Brown &  
Beatty”), commentaries on distracted driving and IHSA bulletins entered into evidence during the  
proceeding, Local 183 referred to the following authorities:  
R. v. Kazemi, 117 O.R. (3d) 300 (ONCA)  
R. v. Ambrose, [2018] O.J. No. 2683 (OCJ)  
R. v. Tannhauser, [2020] B.C.J. No. 876 (BCCA)  
Re Tran, 2006 CarswellOnt 12185 (Ont. Coroner)  
Re McGhee, 2007 CarswellOnt 12071 (Ont. Coroner)  
Re Mrugala, 2016 CarswellOnt 22068 (Ont. Coroner)  
Ontario (Ministry of Labour) v. Nault, [2018] O.J. No. 2568 (OCJ)  
Coco Paving Inc., [2013] O.L.R.D. No. 1361 (OLRB)  
R. v. Gill, [2012] O.J. No. 2511 (OCJ)  
Horizon Poultry Products Inc. and Schneider Employees’ Association,  
[1933] O.L.A.A. No. 61 (Brent)  
Brick and Allied Craft Union of Canada & Brick and Allied Craft Union of  
Canada, Local 31 v Terrazzo, 2019 98862 (ON LRB) (the “TSheets  
decision”)  
Canadian Pacific Railway Company v. CAW-Canada, Local 101, 2011  
CarswellNat 5842 (M.G. Picher)  
Union Gas Ltd. v. Unifor, Local 999, [2017] O.L.A.A. No. 67 (Gedalof)  
- 40 -  
Diversified Transportation Ltd. v. TC, Local 362, 2017 CarswellAlta 1463  
(CLA) (Casey, Chair)  
Canadian National Railway C0. v. CAW-Canada, [2005] C.L.A.D. No. 495  
(M.G. Picher) (“Canadian National”)  
Jones v. Tsige, 2012 ONCA 32 (“Jones”)  
R. v. Cole, [2012] 3 S.C.R. 34 (S.C.C.) (“Cole”)  
Saskatchewan Government and General Employees Union v. Unifor, Local  
481, [2015] S.L.A.A. No. 8 (Ponak) (“Saskatchewan”)  
R. v. Marakah, [2017] 2 S.C.R. 608 (S.C.C.) (“Marakah”)  
Labourers’ International Union of North America, Local 625 v. Prestressed  
Systems Ltd, [2005] O.L.A.A. No. 125 (Lynk) (“Prestressed”)  
Irving Pulp & Paper Ltd v. CEP Local 30, 2013 SCC 34 () (“Irving  
Pulp”)  
R. v. Jarvis, [2019] S.J.C No. 10 (S.C.C.) (“Jarvis”)  
153.  
While counsel for Local 183 took primary responsibility for the Unions’ argument  
concerning safety, he made significant submissions with respect to privacy. He also spoke at length  
with regard to credibility — not simply that of Mr. Woodbridge, but also of various positions  
advanced by Earth Boring in litigating this matter.  
154.  
By way of introduction, Mr. Black asserted that the Employer was offside with regard  
to the KVP criteria, pointing to what he identified as an absence of any countervailing justification  
for the disregard of safety and violations of privacy norms.  
155.  
As to the latter, he referred to a Canadian National and to Jones for the Ontario Court  
of Appeal’s explicit recognition and protection of privacy as a fundamental value and noting the  
Court’s references in Jones (at para. 40) to La Forest J in R. v. Dyment, [1988] 2 S.C.R. 417, at p.  
427 and p. 429 and his characterizing the Charter protection of privacy as “[g]rounded in a man’s  
physical and moral authority” and adding: “privacy is essential for the well-being of the  
individual” and “retention of information about oneself is extremely important . . . [and] situations  
abound where the reasonable expectations of the individual that the information shall remain  
confidential to the persons to whom, and restricted to the purposes for which it is divulged, must  
be protected.”  
156.  
Mr. Black noted that the Court in Jones went on (at para. 66) to address “a right of  
informational privacy” as worthy of protection and the Supreme Court of Canada in Cole  
recognized its concern with informational privacy: “[T]he claim of individuals, groups, or  
institutions to determine for themselves when, how, and to what extent information about them is  
communicated to others.”  
157.  
Counsel also cited Marakah to note the focus of the Supreme Court of Canada there “on  
the fact of communication itself (regardless of its substance) as being worthy of protection”.  
158.  
Mr. Black referred to Jarvis (at paras. 36-37, 41, and 63) for its description of privacy  
as including “the concept of freedom from unwanted scrutiny, intrusion or attention”, its  
recognition that privacy “is not an all-or-nothing concept”, that “being in a public or semi-public  
- 41 -  
space does not automatically negate all aspects of privacy with respect to observation or  
recording”, and that the fact that “evolving technologies may make it easier . . . for state agents or  
private individuals to glean, store and disseminate information about us, . . . does not necessarily  
mean that our reasonable expectations of privacy will correspondingly shrink”.  
159.  
Local 183 conceded that the Employer has a legitimate interest in tracking employees’  
time, but denied its interest in the daily photographs, tracking to seven decimal points of precision,  
and allowing the sale, transfer or use of employees’ likenesses and data for marketing, sales and  
profit of third parties.  
160.  
Mr. Black concluded that the invasion of employee privacy occasioned by ExakTime  
was offensive to all reasonable notions of privacy and totally unnecessary in the scope and  
magnitude of its data collection, both at work and outside of work. He also observed that the  
arbitral case law affirming and confirming a right to privacy in the workplace subsisted even before  
Jones and that arbitrators had recognized the general right of privacy, specifically employees’  
interests in personal autonomy and “the right to be left alone”. In that context, he referred to  
Prestressed and Saskatchewan. In the later, Arbitrator Ponak wrote:  
20. I start from the proposition that employees have privacy rights in the workplace. These  
rights have long been recognized in arbitration. As long ago as 1978, Arbitrator Michel  
Picher asserted, in the context of a case of an employer’s right to require a physical  
examination, that “it is well established that persons do not by virtue of their status  
employees lose their right to privacy and integrity of the person”.  
21. Twenty years later, in a case about the admissibility of video surveillance, Arbitrator  
Herman noted that “the parties both accept that the arbitral approach . . . recognizes that  
employees have a right to privacy which is to be balanced against the employers right to  
manage the workplace, including the right to investigate suspected employee misconduct”.  
161.  
Counsel for Local 183 observed that Article 4.01(c) of the collective agreement  
envisioned “reasonable rules of conduct and procedure” and he contended that the requirement  
that employees download and use a third-party software application which operates to track and  
collect employee data at the cost of the employees’ relinquishment of privacy and “self-  
endangerment” for the benefit and profit of management was unreasonable on its face and on an  
analysis contemplated by the KVP principles.  
162.  
He concluded that at the core of the KVP test was a question whether the Employer’s  
policy was reasonable and that was to be informed by the extent to which the policy interferes with  
the identifiable interests of employees both in respect of their interests in privacy and safety. He  
concluded that there were proven methods of tracking time which do not intrude on those interests  
and there was no sufficiently countervailing employer interest to outweigh such an undermining  
of employee safety and privacy interests, arguing that general appeals to efficiencies are simply  
insufficient.  
163.  
Counsel noted that in Irving Pulp the Court weighed the employer’s drug testing policy  
against the intrusion on employee privacy and indicated that in order to justify random testing the  
employer was required to establish not only that there was a sufficiently serious “requisite  
- 42 -