Employers will welcome the recent decision by the British Columbia Court of Appeal that the province’s Personal Information Protection Act (PIPA) does not prohibit the public identification of grievors and witnesses in arbitral decisions.
In grieving the dismissal of a truck driver from his employment, the United Food & Commercial Workers, Local 1518 had argued that PIPA prevents arbitrators from publishing the personal information of grievors or witnesses without their express consent. The Union took the position that the grievor’s name should be anonymized by using initials only. The Union emphasized the importance of privacy legislation and argued that because arbitral decisions are increasingly accessible on the Internet, personal information may easily be misused.
The Employer argued that a grievor’s voluntary participation in the arbitration process means that they have impliedly consented to the disclosure of their personal information, and that the open court principle applies to labour arbitration. Thus, non-publication of names should be the exception rather than the rule.
As we discussed in a previous post, Arbitrator Stan Lanyon found, for several reasons, that PIPA applies to labour arbitration and that grievors may be publicly identified in arbitral decisions. The Labour Relations Board upheld the decision (see our discussion here), and the Court of Appeal came to the same conclusion, albeit by a more straightforward route than that of Arbitrator Lanyon.
As a first step, the Court found that unlike the Labour Relations Board, which is a “public body” and therefore exempt from application of PIPA, labour arbitrators do not fall under this same general exemption. Rather, the Court held that arbitrators are independent of the Labour Relations Board, fall under the definition of “organization”, and are governed by the requirements of PIPA.
However, the Court found that arbitral decisions fall under a particular PIPA exception which permits collection and disclosure of personal information without consent where “required or authorized by law”. Collection is authorized by law because arbitrators, who are required and authorized under the Labour Relations Code (the “Code”) to resolve disputes, need the information in order to fulfill their mandate. Disclosure is authorized by law because the Code requires that arbitral awards must be filed and made “available for public inspection”. An award must include the reasons for the decision, which, in order to provide transparency and permit reconsideration where necessary, will contain the facts (including the identities of the parties involved) along with the analysis of the law.
Therefore, the Court concluded that 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 arbitral decisions.
Although the general rule thus remains in favour of disclosure, arbitrators retain the discretion to initialize the names of parties or witnesses or to otherwise protect privacy interests as they see fit. For example, arbitrators will often exclude or anonymize information which can easily be misused, such as birth dates and addresses, or which is sensitive and typically not necessary to explain the decision, such as health and medical information, marital status, religious or political beliefs.
The Court’s conclusion accords with several decades of standard labour relations practice and with at least one other arbitral decision on the matter. However, it is interesting to note that privacy concerns have increased to such a degree as to warrant the thorough litigation of the issue in this case. To the extent that publication of names may help to discourage some individuals from engaging in vexatious litigation, the decision is a welcome one. The growing sophistication of Internet news aggregators and search engines will undoubtedly ensure the persistence and contentiousness of contests between privacy and freedom of information.