On February 10th, Justice Faieta issued a confidentiality order to protect the identity of a sexual violence complainant – a non-party who was summoned to testify about a workplace harassment complaint given the relevance of her complaint to a defamation action. Justice Faieta described the “important interest” favoring the order as follows:
Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct.
Justice Faieta also said that the order only had a deleterious effect on “the prurient interests of the few.”
Fedeli v. Brown, 2020 ONSC 994 (CanLII).a
On September 30th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board ought not to have referred to witnesses by name in a disciplinary decision about a suspension for “inappropriate acts involving a number of young female subordinate employees.”
This was a second time the matter of the witnesses’ anonymity came before the Court. In 2017, it had held that the Board’s decision to publish witness names was unreasonable and directed the Board to re-weigh the interests at stake.
The Board again declined to refer to witnesses by initials, seemingly put off by the employer’s pre-hearing “promise” to the witnesses that their identities would be protected from publication. What the employer said to the witnesses, the Court held, was not right inquiry. For that and other reasons, it quashed the Board’s second decision as unreasonable and (extraordinarily) substituted its own judgement.
Here are two points of significance:
- the Court suggested that the (strict) Dagenais/Mentuck test applied by courts is the test to be applied by administrative tribunals like the Board; and
- the Court recognized the public interest in encouraging the reporting of inappropriate sexual behavior by protecting the anonymity of witness, comparing the interest to the interest in encouraging the reporting of sexual assaults.
Canada (Attorney General) v. Philps, 2019 FCA 240 (CanLII).