Arbitrators Authorized to Publish Personal Information In Awards without Grievor's Consent

A recent decision of the BC Court of Appeal confirmed that labour arbitrators may collect and disclose personal information in their awards without obtaining the consent of the grievor.

At arbitration, the UFCW, Local 1518 argued that the Personal Information Protection Act, SBC 2003 c. 63 (PIPA) prevents arbitrators from disclosing personal information about grievors or witnesses in arbitration awards without the express consent of those individuals. The union argued that the grievor’s name should be anonymized through the use of initials unless his or her consent is obtained.

The employer’s position was that participation in the arbitral process gives rise to implied consent for personal information to be disclosed and that the open court principle applies to labour arbitration. Although arbitrators have the discretion not to publish names, the employer argued this ought to be the exception rather than the rule.

After a review of the applicable legislation, the arbitrator concluded that PIPA did not apply to labour arbitration on four bases, including on the grounds that a labour arbitrator was not an “organization” within the meaning of PIPA and that the consent requirements in PIPA did not apply to labour arbitration proceedings. The union filed an appeal with the Labour Relations Board and also filed an appeal with the BCAA.

The Board assumed jurisdiction under s.99 of the Labour Relations Code and upheld the Arbitrator’s decision on the application of the PIPA (BCLRB NO. B95/2014). The union applied for leave and reconsideration of the Board’s decision. The reconsideration panel concluded that the board’s decision on this issue ought to be reviewed by the Court of Appeal as a matter of general law pursuant to s.100 of the Code (BCLRB No. B154/2014).

The BCCA dismissed the union’s appeal, but on grounds that differed from the arbitrator’s. The Court held that the arbitrator erred in finding that a labour arbitrator is not an “organization” under PIPA and that PIPA had no application. Although PIPA does apply to labour arbitration proceedings, the Court found that an exception to the consent requirements applies. Labour arbitrators may disclose personal information without consent because such disclosures are “authorized by law” (PIPA s. 18(1)(o)). More specifically, s. 96 of the Code requires, by law, the disclosure of an award to the director of the Arbitration Bureau, who must make such awards publicly available.

The BCCA summarized its decision this way:

“In the result, 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 the form of the arbitration board’s reasons for the award, and PIPA does not affect the collection, use or disclosure of personal information in the course of a labour arbitration.”

The Court affirmed that its decision does not detract from an arbitrator’s discretion to anonymize names or protect privacy interests as appropriate. It merely confirmed that such cases will be the exception rather than the rule.

United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd. 2015 BCCA 354

Questions relating to the content of this article may be directed to Donald J. Jordan, Q.C. or Israel Chafetz, Q.C.