Canada: Arbitrators Retain Discretion To Disclose Personal Information Of Grievors And Witnesses In Awards

In United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd., 2015 BCCA 354, the British Columbia Court of Appeal considered whether the Personal Information Protection Act, SBC 2003 63 (PIPA) prevents labour arbitrators from disclosing personal information about grievors and witnesses in an arbitration award. The United Food & Commercial Workers Union (the Union) argued that PIPA prevents arbitrators from disclosing personal information of grievors and witnesses without their express consent.

The Union's argument was rejected by the Court and it determined that labour arbitrators are permitted to publish personal information of grievors and witnesses without their prior consent. 

Facts

This case stems from a unionized truck driver who was dismissed from his employment for improperly signing company invoices. The Union filed a grievance on behalf of the employee and argued before the arbitrator, Stan Lanyon, Q.C., that PIPA precluded arbitrators from including the personal information of grievors or witnesses in a final decision.

The arbitrator concluded that PIPA did not apply to labour arbitration proceedings on four alternate grounds:

  1. the open court principle applied to the reasons of a labour arbitration proceeding;
  2. the labour relations board is a public body governed by the Freedom of Information and Protection of Privacy Act, RSBC 1996 c 165 (FIPPA) and that FIPPA does not apply to a "decision of the tribunal for which public access is provided by the tribunal" pursuant to the Administrative Tribunals Act, SBC 2004 c 45;
  3. a labour arbitrator was not an "organization" within the meaning of PIPA and therefore PIPA was not applicable; and
  4.  the consent requirements in PIPA did not apply.

The Court's Decision

The Court disagreed with the arbitrator's decision that PIPA did not apply to labour arbitration proceedings on the reasoning applied in the second and third grounds, described above, and held that labour arbitrators do fall under the definition of "organization" when PIPA is read purposefully. Despite the applicability of PIPA, the Court found that the consent requirements in PIPA are inapplicable because the collection and disclosure of personal information in the labour arbitration process is required or authorized by law. Given this conclusion, the Court found that it was unnecessary to determine if the open court principles apply to labour arbitrations.

In its decision, the Court considered the Labour Relations Code, RSBC 1996, c 244 (the Code), theArbitration Act, RSBC 1996, c 55 and sections 12(1)(h) and 18(1)(h) of PIPA which state that an organization may collect or disclose personal information about an individual without consent, if the collection or disclosure is required or authorized by law.

The Court recognized that the Code empowers arbitrators to decide all matters before them and that arbitrators are implicitly authorized to receive and collect personal information of the individuals involved, without further consent, to resolve disputes and fully consider the circumstances of the case before them. An arbitration board is required to file an issued award with the Arbitration Bureau and the director of the bureau is required, by law, to make the award available to the public. An arbitration award must include the reasons for the decision which would outline the facts found by the arbitrator, the arbitrator's reasoning and analysis, and his or her final decision. The Court stated:

It is difficult to see how a decision-maker, who is obliged to provide reasons that are subject to various levels of review, could possibly avoid disclosing personal information, as required by PIPA. The suggestion of the Union of using initials would not, in many cases, comply with the requirements of PIPA.

In conclusion, the Court held that the consent requirements in PIPA do not apply to the collection, use or disclosure of personal information in the labour arbitration process and labour arbitrators are permitted to publish personal information about grievors and witnesses in arbitration decisions. Nonetheless, the Court noted that arbitrators retain the discretion they have always had to identify grievors or witnesses by their initials or however they see fit to protect their privacy in appropriate circumstances. But, if an arbitrator chooses to publish the names and personal information of the grievors and witnesses, PIPA cannot be used to restrict the content of the arbitration award.

Our Views

This decision highlights some of the complexities that arise when privacy legislation is applied to administrative boards and tribunals. While arbitrators still retain jurisdiction to maintain a degree of anonymity in the context of published awards, this decision confirms that grievors do not have a general right to claim full anonymity.  The preservation of this jurisdiction and the conclusion that PIPA does not apply in the context of labour arbitration proceedings will reduce (if not eliminate) frivolous grievances advanced on the basis of full anonymity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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