No General Right For Grievors To Remain Unidentified In Labour Arbitration Decisions
The British Columbia Court of Appeal (in a recent case identified as United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd.) has confirmed that there is no general right for grievors or witnesses to avoid having their names disclosed in labour arbitration awards. The Court concluded that labour arbitrators are bound by the requirements of the Personal Information Protection Act ("PIPA"), but that they are not required to obtain consent from grievors or witnesses to disclose personal information about those individuals in arbitral awards.
In the context of a grievance over the termination of a unionized truck drive, the United Food & Commercial Workers Union, Local 1518 (the "Union") argued that grievors and witnesses' personal information could only be disclosed in arbitral awards with those individuals' express consent, raising concerns about increased opportunities for misuse of such personal information in light of widespread accessibility of arbitration decisions on the internet. This argument was rejected by the arbitrator on four alternate grounds, including that labour arbitration is not a private form of dispute resolution and the open court principle applied. The arbitrator's decision was upheld by the British Columbia Labour Relations Board.
The Court of Appeal found the arbitrator had erred in two of the four alternate grounds for judgment and declined to comment on the applicability of the open court principle to labour arbitrations, but ultimately reached the same conclusion and dismissed the appeal. In doing so, the Court of Appeal held that PIPA is applicable because a labour arbitrator is an "organization" under s. 1 of PIPA. However, it determined that an exception under s. 18(1)(o) of PIPA applied to the requirement to obtain consent, as collection, use and disclosure without consent is "required or authorized by law" based on s. 96 of the Labour Relations Code, which requires arbitrators to file a copy of their awards with the director, who in turn is required by law to make the award "available for public inspection". Notably, the Court of Appeal recognized that it was difficult to conceive how an arbitrator could provide adequate reasons which were open to different levels of review without disclosing personal information.
In making this determination, the Court of Appeal clarified that arbitrators retain discretion to protect privacy interests of parties or witnesses as they may deem necessary in the circumstances. This decision shows the complexities that may arise in balancing increasing privacy concerns with long-standing labour practices. It represents good news for employers, however, in that it may potentially have the effect of deterring frivolous claims from being brought since grievors and witnesses do not have a right to claim anonymity.
Note: This a reprint of an article by Lisa Carlson of Borden Ladner Gervais LLP.