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Many employment disputes are resolved confidentially when the parties reach an out-of-court settlement, however, there are also cases in which confidentiality is not an option. In Durham Regional Police Association v Durham Regional Police Services Board, 2018 CanLII 28649 (ONLA), the Arbitrator denied the union’s request to hold the hearing in camera. The arbitrator interpreted the Statutory Powers Procedure Act (“the SPPA”), which governs all arbitrations to which the Arbitrations Act and the Labour Relations Act do not apply. It is important to note that most arbitrations are not governed by the SPPA, and that arbitration decisions are generally of limited precedential value. As a result, the Durham decision will only set a precedent if the arbitrator’s reasoning is endorsed by a court.
In 2013, the union filed a grievance alleging that the employer had failed to prevent harassment in the workplace, leading to a poisoned workplace environment. The grievance attracted the attention of Durham Region News, which sought to attend the arbitration. The union objected, arguing that allegations of misconduct against specific employees should not be made public. The employer also registered an objection, but, unlike the union, did not request that the hearing be held in camera.
Under the SPPA, a hearing may be held in camera if personal matters of an “intimate” nature are likely to be discussed. However, the arbitrator is required to weigh the parties’ desire for privacy against the public interest in transparency. In the Durham case, the arbitrator held that the latter should take precedence. While the grievance does allege misconduct by specific employees, it also describes a systemic environmental problem, with implications for the Ontario Human Rights Code and the Occupational Health and Safety Act. In other words, the grievance is too broad, and not sufficiently centered on the actions of individual employees, for privacy considerations to be determinative.
The impact of the Durham decision will be very limited, but employers and employees alike should know that confidentiality is not always possible, especially when an arbitrator or a tribunal is involved.
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