Grievor’s Anonymity – Privacy Rights Versus Accountability

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest guard against improbity.

Jeremy Bentham, quoted by Dickson J. in A.G. (Nova Scotia) v. MacIntrye, [1982] 1 S.C.R. 175 at 183.

Grievor’s anonymity has been hotly debated in the course of two recent British Columbia arbitration proceedings. Sunrise Poultry Processors Ltd. -and- UFCW Local 1518 and Husband Food Ventures Ltd. (c.o.b. IGA Store No. 11) -and- UFCW 1518  involved two arbitration awards each and one B.C. Labour Relations Board review.

Both cases involved the discharge of an employee: one for uttering a death threat and the other for improperly signing company invoices. In both cases, the Grievors were reinstated to employment after considerable suspensions. As well, in both cases, the Union took the position that as a general rule, and regardless of the unique circumstances of the case, the Grievors’ identities should be anonymized in the arbitration awards.

The fear of publicity and the knowledge that a future employer may be able to “Google” a noteworthy episode of the grievor’s employment history is one of the few effective deterrents for a grievor who is considering pursuing a matter. If the arbitration community were to adopt the “blanket anonymization” approach advocated by the Union, both unions and employers would lose a valuable tool in managing the arbitration process.

The Union argued that an arbitrator was bound not to provide personal information in the award in the face of the B.C. Personal Information and Protection Act (PIPA). In the alternative, the Union argued, the arbitrator ought to exercise his or her discretion to withhold any such information as personal information. Sunrise was the first case to be heard and Arbitrator Lanyon dealt with the merits of the grievance and deferred the anonymization issue so that the Labour Relations Board could rule on the matter pursuant to section 98 of the B.C. Labour Relations Code. Arbitrator Lanyon reasoned that this was a case of first instance and it was an issue that impacted the labour relations community as a whole. Arbitrator Sanderson proceeded in the same manner in the Husband case with the additional concern that two arbitrators were dealing with identical issues and there was now a risk of divergent streams of authority. The Board dutifully considered the arguments and ducked the issue, sending the matters back to the arbitrators for determination.

In the second round, the Husband case was the first determination on the merits and, in a seven-page decision issued on July 22, 2013, Arbitrator Sanderson concluded that PIPA did not apply and the decision as to whether to grant anonymity resided within the discretion of the arbitrator. On the facts of the particular case before him, the arbitrator found that there was a serious allegation which was not denied, and no compelling or unique circumstances were put into evidence, so he published the name of the Grievor.

The Union appealed this decision to the B.C. Court of Appeal pursuant to section 100 of the Labour Relations Code and to the Board under section 99.

Arbitrator Lanyon then tackled the issue, releasing his 42-page tome on October 28, 2013. The arbitrator reviewed in some detail the Union and Employer arguments, and ultimately declined to anonymize the Grievor.

Arbitrator Lanyon rejected the notion that the “open court” principle does not apply to labour arbitrations. The arbitrator found that labour arbitrations are not private and there is a public interest in this process as set out in the Labour Relations Code. As a result, the case law developed in the courts to ensure an open judicial system applies equally in the arbitral context. Reference was made to Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, in which Duff J. held:

Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.

Although Arbitrator Lanyon acknowledged the privacy concerns raised by the Union and further acknowledged the potential for harm as a result of the increased accessibility of information in the Internet age, he found that PIPA does not apply to labour arbitrations. However, the arbitrator went further and suggested that even if PIPA did apply to labour arbitrations, there were specific exemptions in the legislation which would empower but not require an arbitrator to name a grievor in an award. In the case before him, Arbitrator Lanyon determined that there were no circumstances to warrant anonymity. The Union appealed, both to the Labour Relations Board under section 99 of the Labour Relations Code and to the Court of Appeal under section 100.

As a result of this appeal, the Labour Relations Board had a second opportunity to deal with the issue and this time it did, releasing its decision on May 28, 2014. The Board determined that the review of this issue was properly before it and not the Court of Appeal, and then proceeded to affirm the arbitration decision, with a few caveats. The Board found that PIPA did apply to labour arbitrators, contrary to the view of both of the arbitrators. However, there were exceptions within the legislation which provided the opportunity for arbitrators, as opposed to the obligation, to release personal information in their decisions. The Board affirmed the notion that labour arbitrations are not a strictly private affair and there is a public interest in the process and the result. The Board concluded at paragraph 131 as follows:

Disclosure is authorized under the Code because it can serve the public interest. As the Arbitrator noted in the Award (at para. 129), there is a public interest in the publication of the names of those who commit employment offences; privacy legislation is not intended to hide wrongdoing or to protect those who misconduct themselves (absent circumstances justifying such protection). As such, disclosure of personal information in awards can be “for purposes that a reasonable person would consider appropriate in the circumstances”, consistent with Sections 2 and 17 of PIPA.

In summary, the Board affirmed the decisions of the arbitrators. It rejected the blanket approval of anonymity advocated by the Union in favour of the discretionary, case-by-case approach which has been followed by arbitrators for decades when addressing this issue.

Coincidentally, the Grievor’s last name in the Husband case was Roper, but apparently not related to any Roper at our firm.