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
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).