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.]

Judicial notice of risk of identity theft justifies a partial publication ban or redaction, but that’s it

On August 16th, the Nova Scotia Court of Appeal overturned an order that sealed the record in a matrimonial dispute and substituted an order that favored either a partial publication ban or redaction (at the parties’ option). The case is notable because the substituted confidentiality order was only based on judicial notice of the risk of identity theft that would flow from the misuse of certain kinds of personal information.

The matter is about access to the court file in a Nova Scotia proceeding. The parties resisted a media organization’s request for access, without adducing any evidence, based on an asserted concern about identity theft. The motion judge recognized the risk, held that a partial publication ban could not be policed and held that a redaction order would be cumbersome and costly. She ordered the court file to be sealed in whole.

In overturning the sealing order, the Court of Appeal stressed that a confidentiality order must be established by evidence or by facts that are properly subject to judicial notice. In this regard, it accepted that identity theft is a risk that can be recognized on judicial notice. The Court said:

I accept that judicial notice may be taken of the social fact that “identity theft is real”, in the judge’s words.

I also accept that access to (1) unique personal identifier numbers, namely passport or Social Insurance Numbers, Health Insurance Card or driver’s licence numbers, (2) credit or debit card numbers, (3) unique property identifier numbers, namely numbers for bank accounts or other investment assets or for debt instruments or insurance policies, and serial or registration numbers for vehicles, may assist the use of identity theft to fraudulently access property.

I also accept that (4) dates of birth, (5) names of parents, (6) personal addresses, (7) email addresses and (8) telephone numbers sometimes may not already be in the public domain, and therefore access to that information in a court file possibly could assist with identity theft. I add that this record has no evidence one way or the other whether that information, for Mr. Jacques or Ms. Foster-Jacques, already is in the public domain.

The Court said the motion judge was wrong, however, to find that a partial publication ban could not be policed and that a redaction order would be cumbersome and costly. It held that there was no evidence to support these findings, which rested on judicial notice of dispositive adjudicative facts.

The Court substituted an order that let the parties opt to redact the information set out in the paragraphs quoted above, failing which, the media would be subject to a prohibition on publishing the same information. While stressing the importance of a firm evidentiary foundation for confidentiality orders, this judgment also suggests that a limited confidentiality order to protect against the disclosure or publication of personal information that is commonly used to establish one’s identity should not be difficult to obtain.

Coltsfoot Publishing Ltd v Foster-Jacques, 2012 NSCA 83 (CanLII).

[Hat tip to Peg Duncan of IT and eDiscovery.]

Case Report – Search warrant indexing challenge to proceed without Attorney General as respondent

On July 27th, Moir J. of the Nova Scotia Supreme Court issued a preliminary ruling in a novel Canadian Broadcasting Corporation application in which it is seeking an order requiring the Nova Scotia Provincial Court to index its search warrants based on the open courts principle and the Charter.

In his preliminary ruling, Moir J. held that the Attorney General, as a representative of the executive branch of government, was not a proper respondent because the executive cannot control the judiciary’s records. Though acknowledging that the application “seems to concern a clerical, or mechanical, function,” he held that the matter, in its essence, concerns the sufficiency of access to records in order to satisfy the open courts principle. Moir J. held that the application can continue with the Chief Judge of the Provincial Court as a respondent and the Attorney General, as financial supporter of the judiciary, as an affected party.

Canadian Broadcasting Corporation v. Nova Scotia (Attorney General), 2010 NSSC 295 (CanLII)