In Camera Meetings – Closing the Door Doesn’t Make It Private

In camera (or closed-door) meetings exclude the public from participating and, by their very nature, they enjoy an aspect of privacy that open meetings do not. Additionally, if an administrative body is carrying out a public function, the privacy of the contents of in camera meetings can be further protected by a legal principle called “deliberative secrecy”. However, in certain circumstances, the courts may require that parties give evidence of what transpires in these meetings – in particular where they relate to administrative bodies acting as employers, rather than carrying out public functions.

In the recent decision of Commission scolaire de Laval v. Syndicat de l’enseignement de la region de Laval, the Supreme Court of Canada drew an important distinction between public bodies acting as employers and public bodies carrying out their public functions. It did so by ruling that an arbitrator was entitled to compel three members of a school board executive committee to testify about their deliberations during a closed-door meeting, on the basis that the board was acting in its capacity as an employer and the contents of the meeting were relevant to the labour and employment issues in dispute.

The teacher in question was dismissed by his school board employer after it was discovered that he had prior criminal convictions. Pursuant to Quebec’s Education Act, the final decision with respect to the relevance of a teacher’s criminal record is to be made by the board’s governing body – either its council of commissioners or its executive committee. Accordingly, on June 29, 2009, the teacher was required to attend a special meeting of the board’s executive committee for the purpose of considering this very issue. The public was excluded from the meeting. After hearing from the teacher and his union representative, the committee ordered an in camera meeting in order to deliberate. The closed-door meeting, permitted under the committee’s rules of procedure, excluded the teacher. Once the private deliberations were concluded, the committee adopted a resolution terminating the teacher’s employment by reason of incapacity as a result of his criminal convictions.

The applicable collective agreement required that an employee may be dismissed “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose.” The teacher’s union grieved the termination on the basis that the board had contravened this requirement.

During the arbitration that followed, the union summoned three members of the board’s executive committee to give evidence about the discussions during the closed-door meeting. Despite the board’s protests, the arbitrator held that the union could question the executive committee members on their deliberations, finding that this evidence was necessary in order to determine whether there had been thorough deliberations as required by the collective agreement. Just because the committee decided to make it a closed-door meeting did not enable them to protect their deliberations from the scrutiny of the arbitrator.

The school board fought the decision and, ultimately, the issue that wound up before the Supreme Court of Canada was whether the closed-door deliberations ought to be disclosed.

Throughout the legal dispute, the board attempted to rely on a legal principle that public bodies making legislative, regulatory, policy or purely discretionary decisions were entitled to keep their deliberations confidential.

However, the Supreme Court of Canada drew a distinction between public functions and employment-related decisions. Decisions made by public sector employers with respect to employment, and in particular dismissal, fall under labour and employment law, rather than public law. In this case, the board was making a unilateral and contractual decision, and this type of decision was not protected from disclosure.

Despite the confidential nature of the meeting, the Court held that the examination of the members was an evidentiary issue over which the arbitrator had exclusive jurisdiction. For this reason, his decision was owed deference by the courts. Moreover, the Court held that the arbitrator’s decision was reasonable because the evidence was relevant to the proceedings, and there was no procedural or legal rule that prevented the members from giving evidence.

Public sector employers will now have to exercise caution in closed-door meetings related to employment issues, in the knowledge that when they close the door, an arbitrator or a court may open a window.