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

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

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).

Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

Ontario Court Says Open Court Principle Applies to Record Filed Before Charges Withdrawn

On July 18th the Ontario Court of Justice granted several media organizations access to a DVD that a criminal defendant filed before charges against her were withdrawn by the Crown. Justice Wake explained that the open court principle can apply to records that are not considered in a judicial proceeding if public access would support a greater understanding of the administration of justice.

The Crown charged the defendant with assault in relation to her interaction with the police. She received a “cellblock DVD” as part of the Crown disclosure, and filed it in furtherance of a stay application, though apparently it was not properly incorporated by reference into an affidavit. The Crown withdrew all charges after noting in open court that he had  reviewed evidence of the defendant’s treatment while in police cells.

Justice Wake’s analysis focused on whether the open court principle applied to the DVD. He first held that the irregularity in the manner of filing the DVD was too technical a basis for denying access. He then held that the open court principle applied to the DVD even though it was not considered in a judicial proceeding. He said:

Clearly Goudge, J.A. [in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar)] drew a distinction between these two objectives and noted that in cases subsequent to MacIntyre “the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice”.

Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act. The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr’s solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr. Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

Justice Wake stressed that he was not expanding the open court principle but, rather, applying it in novel circumstances. He stressed that the criminal proceeding had concluded, that DVD appeared to be “central” to the Crown’s decision to withdraw and that the proceeding (prior to withdrawal) had involved significant expenditure of court resources.

R. v. Global News, 2011 ONCJ 381.

Extension of Publication Ban Denied in Facebook Bullying Case

On Monday, the Nova Scotia Court of Appeal issued a procedural judgement in the A.B. v. Bragg Communications Inc. matter that may affect its path to the Supreme Court of Canada.

The matter is about a whether a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name can sue anonymously. On March 4th, the Nova Scotia Court of Appeal denied her this right but continued the in-place publication ban to preserve the girl’s right of appeal. The ban was set to lapse at the end of yesterday, May 3rd.

In Monday’s judgement Justice Beveridge held that he had no jurisdiction to extend the publication ban because an application for leave had not yet been filed and he had no basis for finding that a miscarriage of justice would result from failing to grant the requested order. The girl argued that the potential appeal would be moot without the requested relief, but Justice Beveridge was doubtful, without evidence, that her identity would become known.

The media has now covered Monday’s ruling, apparently without naming the girl. I assume her identity is known amongst reporters who have covered this story, and speculate they are declining to publish it based on ethical considerations. If so, they should be applauded. The matter should be resolved on a less technical basis than represented by this latest judgement.

A.B. v. Bragg Communications Inc., 2011 NSCA 38 (CanLII).

Court says implied undertaking applies to Stinchcombe disclosure

On March 15th the British Columbia Supreme Court issued a significant decision on the implied undertaking. It held:

  • that Crown disclosure in criminal cases is subject to an implied undertaking not to use the disclosure for a collateral purpose;
  • that the undertaking is not spent when disclosure materials are filed in interim applications (though is spent in respect of materials admitted as evidence at trial); and
  • that a court has inherent jurisdiction to enforce the undertaking by ordering materials to be returned to the Crown.

The Court ordered the respondents and their defence counsel to return documents to the Crown given the large volume of documents disclosed, the high profile nature of the criminal case, the number of third party interests implicated by the disclosure and the degree to which third party interests were affected and the failure of the Crown and respondents to agree on a means of adequately protecting the undertaking.

R. v. Basi, 2011 BCSC 314 (CanLII).

SCC Clarifies Test for Access to Trial Exhibits

Paul Broad posted earlier today about Friday’s Supreme Court of Canada judgment on media access to courts and its right to broadcast audio recordings of proceedings. Its companion decision – Canadian Broadcasting Corporation II– is much less principled, though does settle a debate about whether access to and use of exhibits is governed by the approach endorsed in Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671 (burden of justification on media) or in Dagenais/Mentuck, [1994] 3 S.C.R. 835 (burden of justification on person or persons opposing access).

In a judgement written by Dechamps J., the Court unanimously held that Dagenais/Mentuck governs with the factors identified in Vickery remaining relevant. The Ontario Court of Appeal took a similar position in a judgement last November.

SCC Considers Media Access to the Courts

In Canada Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, the Supreme Court of Canada considered the extent to which the media should have unrestrained access to courthouses and whether the media could broadcast official court audio recordings of proceedings.

The genesis of the case was the passage of rules restricting the areas within certain Quebec courthouses in which reporters could conduct interviews or photograph participants.  While not completely barred from undertaking such activities, the reporters were prevented from doing so in areas in which they had previously operated.  Moreover, the rules prevented the broadcasting of audio recordings of proceedings, both the official recordings as well as recordings made by the reporters themselves.

The Court analysed the case as a question of a restriction on freedom of expression, of which the freedom of the press is an integral part.  Moreover, the Court recognized that media access to the courts is essential to a meaningful “open court” principle, as the vast majority of Canadians obtain their information about, and understanding of, court proceedings from media coverage.

Nevertheless, the Court found that the restrictions, while infringing freedom of expression, were justifiable under the Charter.  Notably, the Court found that it was reasonable to preserve a necessary level of decorum and serenity of hearings, which are essential to the proper administration of justice.  Apparently, the Court was concerned that the ability (and willingness) of witnesses to testify in proceedings was being compromised by the concern over being photographed or subjected to unsolicited questions and interviews.  It was also feared that the broadcast of audio recordings would have a similar detrimental effect, in addition to being overly invasive of the privacy of participants in the process.  Thus, the unrestricted media access was felt to be affecting the proceedings themselves, and potentially undermining trial fairness and the quest for truth.

Redaction preferred to sealing says court

The Federal Court of Appeal issued an illustrative order on January 6th in which it rejected a consent motion to seal documents that included the appellant’s SIN number. Instead, it ordered the respondent to redact and re-file. For some reason the Attorney-General filed the documents with SIN numbers for a second time on appeal after the appellant sought protection of the same information in the lower court hearing.

Grace Singer v. Canada (Attorney General), 2011 FCA 3 (CanLII).