The Name Game: B.C. Court of Appeal Rejects Union’s Argument for Grievor and Witness Anonymity

Previously printed in the LexisNexis Labour Notes Newsletter

In the recent decision of United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd., 2015 BCCA 354, the B.C. Court of Appeal confirmed that labour arbitrators are allowed to publish personal information of grievors and witnesses in arbitration awards.

The Court squarely rejected the argument of the United Food & Commercial Workers Union, Local 1518 that the personal information of grievors or witnesses could only be disclosed in an arbitration award with the prior consent of the affected individuals. The Court engaged in a detailed review of the applicable legislation and determined that arbitrators can collect, use and disclose personal information without obtaining prior consent.

Background

This case arose out of the termination of employment of a unionized truck driver, who was discharged for improperly signing company invoices when delivering the employer’s goods.

The union grieved the discharge and argued, among other things, that “the names of the Grievor and witnesses should remain confidential in the publication of any award, unless those persons gave their consent to the publication of their names”. The union expressed concern about the increased online availability and accessibility of arbitration awards and the potential for misuse of personal information.

The union argued that the Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”) requires arbitrators to obtain consent prior to publishing the names of grievors and witnesses. The union also argued that labour arbitration is a private dispute resolution process and not subject to the open court principle.

The employer responded by saying that parties impliedly consent to the disclosure of their personal information by engaging in the arbitration process. Arbitration was not, according to the employer, a private process because it was statutorily mandated under the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”).

Arbitration award

Arbitrator Stan Lanyon, Q.C. rejected the union’s argument. He did so on four alternate grounds, including on the basis that the open court principle applied.

Decision on appeal

The B.C. Court of Appeal ultimately reached the same conclusion as Arbitrator Lanyon and, in a unanimous decision, dismissed the union’s appeal.

The Court declined to rule on the issue of whether labour arbitration is subject to the open court principle. It determined, however, that a labour arbitrator falls within the definition of “organization” under PIPA and arbitration awards are subject to the legislation.

The Court then considered whether arbitrators have to comply with the consent requirements of PIPA. It answered the question in the negative, stating “consent is not required at any stage of the arbitration process under the Code in order for personal information to eventually be released to the public in the form of the arbitration board’s reasons for the award”.

The Court highlighted that sections 12(1)(h) and 18(1)(o) of PIPA permit an organization to collect and disclose personal information without consent if the collection or disclosure “is required or authorized by law”.

It was made clear by the Court that arbitrators are required and authorized to collect, use and disclose the personal information of grievors and witnesses in arriving at a decision and issuing an award. This was stated in the following terms:

I conclude, therefore, that the definition of “award” in the Code must include “the reasons for the decision”. The reasons for the decision include the facts found by the arbitrator, the analysis or reasoning and the application of the law setting out how the arbitrator came to his or her final conclusion. The purpose of reasons, when required, is to demonstrate “justification, transparency and intelligibility” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62). This permits the parties, including third parties, to understand the reasons for the conclusion, and permits reconsideration, appellate or judicial review (R. v. Sheppard, 2002 SCC 26 at para. 24). This will usually include personal information relevant to the decision making process.

Section 96 of the Code, the Court also noted, requires arbitrators to disclose their reasons for decision to the Director of the Collective Agreement Arbitration Bureau, and the Director is then required by law to make the reasons “available for public inspection”.

Takeaways

• Labour arbitrators are not prohibited from publishing personal information about grievors and witnesses in arbitration awards. Privacy laws have done nothing to change this. As confirmed by the B.C. Court of Appeal, PIPA has “not affect[ed] the collection, use or disclosure of personal information in the course of a labour arbitration”.
• Drawing on a key observation made by the Court, it is difficult to imagine how an arbitrator, who is obligated to provide reasons which are subject to various levels of review, can avoid disclosing personal information.
• Arbitrators retain the discretion they have always had to protect the privacy of grievors or witnesses as may be necessary or appropriate in the circumstances.