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Court sends matter back to arbitrator to consider redaction request

22 Sep

On September 13th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board was not functus officio and ought to have entertained an employer’s request to redact witness names.

The employer claimed it made an unopposed request to obscure the identities of several non-union witnesses during the Board’s hearing. When the Board issued a decision that included full names, the employer wrote the Board and asked for a correction. The Board disagreed that the employer had made a request during the hearing and held it was functus officio. The employer brought an application for judicial review, compounding the problem by filing an un-redacted copy of the decision on the Court’s public record.

The Court accepted affidavit evidence from the employer and held that it had, in fact, made an unopposed request during the hearing. Alternatively, the Court held that the Board had the power to amend its decision based on section 43 of the Public Service Labour Relations Act. The Court also ordered that its record be treated as confidential and that the applicant file new materials with witness names replaced by initials, stating, “So doing provides little, if any, derogation to the open courts principle as [the witnesses’s] identities are not germane to the decisions.”

This is an unfortunate example of (a) rising sensitivities regarding the inclusion of personal information in judicial and administrative decisions and (b) the need to be careful about it. This affair (which shall continue) could have been avoided if the parties had asked the Board to make a formal order during course of the hearing. The employer also ought to have brought a motion for a sealing order at the outset of its judicial review application, before filing un-redacted materials (a point that the Court made in its decision).

Hat tip to Ian Mackenzie.

Canada (Attorney General) v Philps, 2017 FCA 178 (CanLII).

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Court won’t redact or take down its decision

15 Sep

On September 7th, the Court of Appeal for British Columbia dismissed an application to have part of its reasons redacted or to have the reasons withdrawn from the Court’s website. 

The applicant believed that part of the reasons – released in 2004 – were harmful to his reputation, a problem he said was facilitated by internet search. The Court dismissed the application because redaction would offend the principle of finality. It held that redaction alone would effectively amount to an amendment of the Court’s (substantive) conclusions. (This is a non-obvious point of principle of some significance.) The Court also relied on the open courts principle, which it affirmed. 

MacGougan v. Barraclough, 2017 BCCA 321 (CanLII).

Federal Court says open courts principle overrides Privacy Act

29 Aug

On June 5th the Federal Court of Appeal held that material filed in a Canadian Transportation Agency dispute resolution proceeding is accessible to the public notwithstanding the prohibition on disclosing personal information in the federal Privacy Act.

The CTA exercises, in part, a quasi-judicial dispute resolution function. In excercising this function the CTA passed rules requiring that materials filed in a proceeding be placed on the public record unless subject to a confidentiality order. The applicant argued that records filed and not subject to a confidentiality order are “publicly available” and therefore exempt from a prohibition on disclosure arising under sections seven and eight of the Privacy Act. The Office of the Privacy Commissioner of Canada, an intervener, argued that information is not publicly available unless it is “obtainable from another source or available in the public domain for ongoing use by the public.”

The Court agreed with the applicant. It said:

From the time of their placement on the Public Record, such documents are held by the Agency acting as a quasi-judicial, or court-like body, and from that time they become subject to the full application of open court principle. It follows, in my view, that, once on the Public Record, such documents necessarily become Publicly Available.

Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 140 (CanLII).

BCCA says arbitrators have discretion to identify grievors despite PIPA

15 Aug

On August 12th the Court of Appeal for British Columbia held that British Columbia labour arbitrators are bound by British Columbia’s provincial private sector privacy legislation but do not need consent to collect, use or disclose grievor and witness personal information.

This was an appeal of a decision by Arbitrator Lanyon issued in October 2013. Mr. Lanyon dismissed a union claim that the Personal Information Protection Act prevents arbitrators from disclosing personal information of individuals in a final decision without their consent. Mr. Lanyon made his decision on multiple bases, perhaps because the union had put him on notice that it would appeal any unfavourable decision!

The Court of Appeal’s decision is much more simple. It held that PIPA applies to labour arbitrators when the term “organization” is read purposely. It then held that disclosure without consent is “required or authorized by law” based on a provision in the Labour Relations Code that requires arbitrators to file a copy of their awards for publication. Although this provision does not specifically require the filing of an award that includes personal information, the Court said:

It is difficult to see how a decision-maker, who is obliged to provide reasons that are subject to various levels of review, could possibly avoid disclosing personal information, as required by PIPA. The suggestion of the Union of using initials would not, in many cases, comply with the requirements of PIPA.

Arbitrators, the Court noted, have a discretion to use initials of parties or witness to protect privacy interests or “however they see fit.”

This is a matter in which the outcome reached by Mr. Lanyon and the Court of Appeal is very sensible and supportable on a policy-based analysis. One may question, however, whether the Court of Appeal’s simplistic basis for determining the matter is open to attack.

United Food & Commercial Workers Union, Local 1518 v Sunrise Poultry Processors Ltd, 2015 BCCA 354 (CanLII).

BCLRB affirms decision denying grievor anonymity

2 Aug

There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.

On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.

Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.

The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.

Look for an appeal on this very principled and important issue.

Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).

BC arbitrators embrace openness in face of broad request for grievor annonymity

31 Dec

Two British Columbia arbitrators have held that, despite British Columbia PIPA, shielding a grievor’s identity from the public is an exception to the general rule of openness.

Both cases involved discharge grievances brought by the United Food and Commercial Workers, Local 1518. The Local argued that grievor identities should not be revealed in an arbitration award without individual consent. It based its argument on the consent requirement in British Columbia PIPA and, alternatively, by arguing that anonymity should be the default in a proper exercise of arbitral discretion.

Arbitrator Sanderson issued a brief award on July 22nd. He concluded that the shielding of a greivor’s identity is a matter within an arbitrator’s discretion notwithstanding British Columbia PIPA. Arbitrator Sanderson also held that “the open court principle should prevail in decisions of labour arbitrators” though an anonymity order may be granted as justified based on proof of an “unreasonable impact” on personal privacy.

Arbitrator Lanyon issued an award on October 28th. Like Arbitrator Sanderson, Arbitrator Lanyon held that identification of a grievor is the norm, with a discretion to grant anonymity as otherwise as justified. Arbitrator Lanyon also added:

  • that there is a particular pubic interest in disclosing the identity of those charged with serious disciplinary offences;
  • that an aribtrator’s balancing should be principled, recognizing “the importance of privacy and the difficulties that may arise as a result of publication on the awards on the internet”; and
  • that arbitrators should be open to “lesser protections” in addressing the potential harms associated with publication, at the very least by refraining from publishing sensitive identifying information such as birth dates and social insurance numbers.

Neither arbitrator’s means of resolving the consent requirement in British Columbia PIPA is particularly clear, though both view the issue as governed by arbitral discretion. In applying this discretion, both arbitrators dismissed the Local’s request because it was made as a matter of right and not on any fact-based justification. The Lanyon award indicates that the Local had plans to appeal any award “not in accord with its views of this matter.”

Husband Food Ventures Ltd v United Food and Commercial Workers International Union, Local 1518 (unreported, 22 July 2013, Sanderson).

Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA, Lanyon).

[Note also that most recent Advocate’s Quarterly (vol 42, 2013) has an article entitled The Protection of Privacy Interests in Administrative Adjudication in Ontario by Chris Berzins, who has written often on this topic. Chris’s most recent article calls on the Ontario/IPC to give better guidance to Ontario administrative bodies on how to to address the privacy issues related to the publication of decisions as well as other privacy issues related to their adjudicative proceedings.]

Privacy claim survives based on allegation of pretexting

27 Dec

On October 23rd, the Ontario Superior Court of Justice allowed a borderline privacy claim to proceed because it alleged the deceptive use of personal information to obtain evidence for a family law proceeding.

The plaintiffs brought a motion to vacate a non-dissipation order on their developed property so they could build on another property. In support of the motion, one of the plaintiffs swore and filed an affidavit that included financial data that supported the need to mortgage the developed property.

The respondent to the motion (the former spouse of one of the plaintiffs) lived with a mortgage broker, who took some of the financial data and obtained a letter of interest that suggested construction financing on the undeveloped property was an option. The respondent filed the letter and succeeded in her response to the motion, at which point the plaintiffs took issue with the mortgage broker’s conduct and eventually filed suit.

Justice Hambly was most troubled with the misimpression allegedly given by the mortgage broker to the finance company, who said that it thought the mortgage broker asked for the letter on behalf of the plaintiff. Assuming that the mortgage broker was acting on behalf of the respondent’s counsel (as he pleaded), Justice Hambly said that is was not clear “that a party or a person acting on the instructions of a party can release private personal financial about another party derived from the court files in a family law action to a third party for the purpose of getting an opinion under the guise that he is acting in the other party’s interest without the other party’s consent.”

Rosati v Cornelio, 2013 ONSC 6461 (CanLII).