In the recent decision of Canada (Attorney General) v. Philps, 2019 FCA 240, the Federal Court of Appeal weighed in on the issue of privacy rights of witnesses in an arbitration hearing.
The case involved an employee at the Canada Revenue Agency who received a 30-day suspension for what the Court referred to as inappropriate acts with female subordinates. The employee grieved to the Federal Public Sector Labour Relations and Employment Board. Several non-managerial employees testified in the case after being assured by the employer that their full names would not appear in the Board’s decision. The Board issued a decision using witness’ full names. The employer requested that the Board redact those witness’ names. The Board initially refused on the grounds that the case was over and it was no longer seized, but the Federal Court of Appeal overturned that decision in 2017 and ordered the Board to consider the request. The Board did so but refused to redact the names, criticizing the employer for making “promises that are not theirs to make or keep.”
The Federal Court of Appeal overturned this second Board decision. The Court stated that the Board needed to apply the same test that applies in court proceedings dealing with confidentiality orders – namely, whether the confidentiality order is necessary to prevent a serious risk to an important interest and that alternative measures will not prevent the risk. The Board erred by becoming “preoccupied by the promises that had been made to the employee witnesses by the employer” instead of focussing on whether the privacy interests of those witnesses outweighed the public interest in a fair and open hearing process. The Court concluded that the witnesses had legitimate privacy-related concerns, that their names were not germane to the Board’s decision, and that identifying them by initials instead of full names would not harm the so-called “open court” principle. The Court also pointed out that publishing the names of witnesses would deter future complainants form coming forward with complaints of their own with respect to inappropriate conduct by their superiors. The Court therefore ordered that the Board amend its decision to refer to the witnesses by their initials instead of their full names.
This decision speaks to the tension between protecting the privacy rights of witnesses and complainants on the one hand, and protecting open access to the results of Board and other arbitration decisions on the other. In this case, it was particularly concerning that the Board issued its initial decision in 2016, yet it took until 2019 for a final decision to be made about the use of initials. Parties concerned about the privacy interests of witnesses should raise those issues clearly at the beginning of a proceeding so that witnesses know the rules before testifying, rather than risk years of uncertainty about whether the identity of witnesses will be protected from public consumption.