GSB#2016-0770

UNION# 2016-0580-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cull)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Christopher Bryden

FOR THE EMPLOYER

Debra Kyle

TELECONFERENCE

August 25, 2017

DECISION

1The Union has requested that the Board anonymize the Grievor’s name in any decisions that it issues in this proceeding. The Employer opposes that request.

Allegations

2This motion was raised prior to the hearing through a conference call. No viva voce evidence was presented by either side. My knowledge of the allegations, therefore, is based on the grievance and the particulars submitted by the Union to the Employer. I have summarized the particulars below for the purpose of this request only.

3The grievance was filed on April 22, 2016. It asserts a violation of Articles 2 (Management Rights), 3 (No Discrimination/Employment Equity), 21 (Discipline and Dismissal) and 22 (Grievance Procedure) “based on my unfair and inaccurate Performance Development Plan (PDP) review and subsequent retaliatory Letter of Counsel.” She further grieved contravention of the Labour Relations Act, the Government of Ontario Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Public Service of Ontario Act and the Public Servants Disclosure Protection Act.

4In particulars submitted by the Union on March 15, 2017, the Union alleges that the Grievor is a Case Officer with the Ministry of Health and Long Term Care. Her home position is with the Health Board Secretariat (HBS). She began working with the Province of Ontario in 2007, with the Ministry of the Attorney General as a Court Clerk, Registrar where she remained for about 10 years, although she frequently pursued secondment opportunities. Several years ago, she suffered a workplace injury to her back, wrist and arm. These issues were accommodated without issue.

5The Grievor began working with HBS around July 20, 2015, after she was successful in a job competition. The Union alleges that after an absence on July 24, 2015, the Grievor advised her manager about her prior injury and accommodation. In August and September, the Grievor noticed ergonomic issues with her workstation. She raised these issues with her manager but the manager “took no action on this.” Further, around September 2015, the manager began to criticize emails that the Grievor had sent, and was “nitpicking the most minute details.” The manager “began to criticize the Grievor on a daily basis on a wide variety of issues” but did not apply the same level of scrutiny to others. The Union alleges that in October and November, the manager began to make disparaging comments about the Union. Over time, the situation worsened. The Union alleges that around November 2015, the Case Management Coordinator “began assigning the Grievor the most challenging and difficult files” and that this became the “office joke.” When the Grievor raised these issues, the manager “refused to do anything about it.”

6The Grievor further asserts that when she advised her manager that she had previously had an ergonomic assessment while at the Ministry of the Attorney General and suggested using that assessment, she was advised it was “too dated”. After she missed work from November 30 to December 4, 2015 due to her back pain, the Grievor asked about filing a WSIB claim, but the manager advised against it. The Union alleges that the manager “continued to treat the Grievor poorly and to scrutinize her work in an oppressive and microscopic fashion.” She also “asked the Grievor a number of inappropriate and unprofessional questions” and when the Grievor would not answer, she “went to another staff member” to inquire.

7In January 2016, the office noise level caused difficulties for the Grievor in completing her work, yet her manager “refused to permit the Grievor to close her door.” She then asked for her office to be relocated, but management refused. Instead, management asked employees to be sensitive to noise issues in the office. Eventually, in April, she was relocated but only because the office she was in belonged to an employee returning from maternity leave. After that, staff stopped speaking to her and ostracized her. When the Grievor complained, they referred the matter to a WDHP complaint. When she advised them she had a learning disability, which impairs her ability to concentrate when faced with distractions and had a prior assessment, management refused to discuss it.

8On or about April 5, 2016, the Grievor received her PDP which was “particularly negative”. She sent a “strongly worded email contesting much of the content of the PDP.” She subsequently was issued a Letter of Counsel, which was largely reiterative of the content of the PDP. It is the Grievor’s view that both the PDP and the Letter of Counsel constituted reprisal for her efforts to assert her rights.

Positions of the Parties

The Union

9Although the Union acknowledges the “open court” principle, it asserts that its request to anonymize the Grievor’s name does not unduly limit that principle given that it is not seeking a publication ban or a closed hearing. It contends that anonymization of the Grievor’s name is required here because the case centres on the Grievor’s request for accommodation and consequently, her medical history, as it relates to her back and neck pain issues, will be on “full display.” It asserts that the privacy of her health and medical information should be respected, privacy that will be irretrievably lost by a public decision which includes her full name. As counsel for the Union asserted, one cannot put the toothpaste back into the tube once it has been released. It contends that in the age of the internet and social media, the Board should be sensitive to the far reaching impact that a public decision may have on the Grievor’s privacy interests.

10The Union cites Re University Health Network and OPSEU (Ms. A), 2010 CarswellOnt 1784 (Albertyn), where the arbitrator, on his own motion, decided to anonymize the Grievor’s identity because “her medical records and history are much on display in this award, and she is entitled to some privacy with respect to her personal health history…”

11The Union further submits that there should be no hierarchy in terms of the type of medical information involved in a case. It contends that all medical information is private and confidential, and that decisions which purport to establish such a hierarchy are wrong, as a matter of law.

12The Union’s request is also based on the contention that a public decision outlining the Grievor’s restrictions and limitations in regard to her back and neck issues could jeopardize her work, outside of the Ministry, in the food service industry. It cites Re Renfrew County Catholic District School Board and Ontario English Catholic Teachers’ Assn. (A. Grievance), (2008), 173 L.A.C. (4th) 326 (Swan), at par. 7, where the arbitrator considered the participants’ “continued ability to carry out their jobs” as a factor in regard to anonymity.

13In the Union’s view, there is nothing to be gained, in terms of the administration of justice, from disclosing the Grievor’s name. It cites Re OPSEU and Ministry of Natural Resources, GSB No. 2002-2157 et al., 174 L.A.C. (4th) 225 (Jackson). In that case, the grievor was discharged for an alleged sexual assault on, and sexual interference with a minor, and using his Ministry computer to view pornography, including child pornography. There were related criminal charges and proceedings. At the close of the hearing, the Union asked for the award to anonymize the Grievor’s name. Vice-Chair Jackson agreed, stating at par. 198, that “[k]nowing the grievor’s name adds nothing to the public’s understanding of this case. I am also sensitive to the possible impact on the grievor’s children of having this award associated with his name or theirs.” The Union also cites to Re Thunder Bay Regional Health Sciences Centre and Ontario Nurses’ Association (T.B. Grievance), (2009),184 L.A.C. (4th) 277 (Simmons), which adopts Vice-Chair Jackson’s reasoning, stating, at par. 45:

I am of the view that adding the grievor’s name adds nothing to the public’s understanding of this case. A request is seldom made for anonymity but when such a request is made the sensitivities of the person requesting anonymity ought to be adopted unless there is some compelling reason to the contrary. I see no compelling reason to add the grievor’s name to this decision.

14The Union further asserts that this issue should be decided now, at the outset of the hearing before any interim decisions are made. It contends that the Grievor should not have to wait until the conclusion of the hearing and have the “sword of Damocles” hanging over her head. It cites to Re C.C. and J.L. o/a Restaurant, C.L. and J.L., 2014 HRTO 1821 (Renton), at par. 14, which was critical of the fact that “the applicants did not request anonymization in advance of the hearing, during the hearing, in their post-hearing submissions…or before the Decision was issued.”

The Employer

15The Employer asserts that pursuant to the “open court” principle, there is a presumption that both the arbitration hearing and the resulting decision are open to the public, including the parties’ names, and that the onus is on the party requesting anonymity to establish a compelling reason to justify that request, and provide evidence that such a reason exists. It submits that the Union has failed on both counts. It submits that the decision in Re Thunder Bay Regional Health Science Centre, supra, cited by the Union, which requires that “the sensitivities of the person requesting anonymity ought to be adopted unless there is some compelling reason to the contrary”, turns that onus on its head.

16The Employer contends that the open court principle applies to statutory tribunals such as the GSB, which is a public body, enforcing not only the collective agreement but statutory rights as well. Re Parry Sound (District) Welfare Administration Board and OPSEU, Local 324 2003 SCC 42, [2003] 2 S.C.R. 157 (S.C.C.). It also submits that the open court principle is not limited to publication bans, or closed hearings, and is a “hallmark of democracy and a fundamental characteristic of all judicial proceedings.” Re Vancouver Sun v. Attorney General of British Columbia, 2004 SCC 43, [2004] 2 S.C.R. 332 (S.C.C.)

17In its view, Re Sunrise Poultry Processors Ltd. and U.F.C.W., Local 1518 (Renflish), 2013 CarswellBC 3347 (Lanyon) is the “leading” modern case in this area. There, the Union argued that the name of the Grievor and witnesses should remain confidential in the publication of any award unless those persons give their consent to the publication of their names. The arbitrator rejected that view, determining that labour arbitration is no longer a private dispute mechanism and that it is subject to the open court principle. He determined, at par. 141, that the open court principle “creates the presumption of publication” but must be balanced with the right to privacy.

18The Employer asserts that arbitrators have rejected requests to anonymize even when medical information is involved, citing Re Toronto Community Housing Corporation and C.U.P.E., Local 79 (2016), 270 L.A.C. (4th) 263, 2016 CarswellOnt 9657 (Johnston) and Re City of Toronto and C.U.P.E., Local 79, 2016 CarswellOnt 18235 (Tims). It notes that in Re City of Toronto, the arbitrator determined that “the specific nature of such evidence must be considered”, and concluded that “the medical evidence here is not of such sensitivity that would justify the anonymization of the grievor’s identity.” The Employer submits that the type of medical information there – back and shoulder pain, a respiratory infection, a bout of the flu, and functional limitations involving restrictions on lifting and bending – is similar to the type of information present in this case.

19The Employer also relies on the “Practice Direction on Anonymization of HRTO Decisions”, which limits the anonymization of litigant names to situations protecting the identity of children and “exceptional circumstances.” It asserts that under that directive, the disclosure of medical information is not an automatic “exceptional circumstance” but, to the contrary, it must involve “highly sensitive medical information.” It further cites Re Mancebo-Munoz and NCO Financial Services Inc., 2013 HRTO 974 (Pickel), in which the Tribunal rejected a request to anonymize a decision that referred to her mental health condition.

20The Employer also submits that concerns about the potential impact on one’s career does not constitute an “exceptional circumstance.” In support, it cites Re Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 (Chadha).

21The Employer asserts that if anonymization is allowed in this case, it will serve as a precedent in every case that raises a medical issue or might impact someone’s career. The norms would then be secrecy. It also submits that no ruling should be made based on mere allegations. It contends that proof of harm is required, and that at this stage of the proceedings, no proof has been submitted.

Reasons for Decision

1. The Open Court Principle

22This case raises the question of the applicability of the open court principle to the GSB, and whether the Grievor’s name should be anonymized. Unlike the Ontario Human Rights Tribunal, there is no rule or practice directive on this issue at the GSB. Having carefully considered the issue, the cases cited, the nature of the GSB and its role, I conclude that the open court principle does apply to the GSB. It is my view that there is a presumption that the Board’s hearings and decisions are to be public – and that its arbitrators have discretion to balance the interests established by the open court principle and the right of litigants to informational privacy.

23The GSB is a public statutory tribunal. Its mandate is to adjudicate grievances that arise between the Province of Ontario, through its various Ministries and agencies, and its employees, represented by Unions – OPSEU, AMAPCEO, CUPE and others. Those grievances, as evident in this case, not only raise collective agreement issues but may also raise statutory issues. Re Parry Sound (District) Welfare Administration Board and OPSEU, Local 324 2003 SCC 42, [2003] 2 S.C.R. 157 (S.C.C.). There often may be wide public interest in actions involving government agencies. Given the GSB’s role, the principles expressed in the preamble to the HRTO Practice Direction on Anonymization applies with equal force to the GSB:

An open and transparent justice system has been called a fundamental principle of a free and democratic society.

This is an important reason why, in general, HRTO hearings are open to the public and written decisions, which include the parties’ names and relevant evidence, are available to the public. All interim, final and reconsideration decisions are reported on the following legal reporter services:, LexisNexis and the Canadian Human Rights Reporter.

At the same time, the HRTO takes the privacy interest of persons appearing before it seriously. Children under the age of 18 are not identified in HRTO decisions and in rare cases the HRTO may make an order to protect personal or sensitive information of other individuals.

24Arbitrators in Ontario have endorsed the open court principle in regard to labour arbitration. In Re Toronto Community Housing Corp., supra, the arbitrator “agreed completely” with the submissions of counsel for the employer, at par. 11 of that award:

Grievance arbitrations, like the courts, operate under the open court principle whereby proceedings are presumed open to the public unless there is a significant risk of serious injury to other competing interests. Anonymity is only awarded in exceptional cases where there is some significant harm to be avoided. It is the Union’s burden to show there is some significant interest that requires protection….

25That case also relied on an excerpt from Willis and Winkler, Leading Arbitration Cases, Chapter 5 – The Open Court Principle, at p. 12:

a) The determination, while characterized as a balancing exercise, starts from the presumption that judicial and quasi-judicial proceedings are open and the end product of the proceeding – the arbitrator’s award – is likewise publicly accessible.

b) This presumption of openness can be rebutted with the demonstration of compelling countervailing privacy interests that justify anonymity for a grievor and witnesses. Not all personal information is equally deserving of protection. However, such countervailing interests could include the need to protect the identity of vulnerable persons, or compliance with a court-ordered publication ban in a parallel proceeding.

26Conversely, in Re City of Toronto, supra at par. 21, the arbitrator stated that “[t]he parties before me agreed that the arbitration of disputes arising under a collective agreement is at least ‘partly private in nature’ and I accept that the application of the open court principle…is to be considered accordingly, mindful of labour relations interests.” The arbitrator also recognized at par. 22 that “publication of names in labour arbitration awards remains as of this point in time the presumptive practice, and this is the starting point for my inquiry here.”

27I make no determination of whether the open court principle applies to labour arbitration outside of the GSB. I do determine, however, that it applies to the GSB. I find nothing inconsistent in Re OPSEU and Ministry of Natural Resources, supra. That case had very compelling facts supporting a conclusion to anonymize the participants.

28Pursuant to the open court principle, there is a presumption that not only is the hearing open but the resulting decision will be transparent as well. At first blush, there is some merit to the view expressed by Vice-Chair Jackson in Re OPSEU and Ministry of Natural Resources, supra at par. 198, that “[k]nowing the grievor’s name adds nothing to the public’s understanding of this case” or Arbitrator Simmon’s view that the “sensitivities” of the grievor should be considered. In Re Attorney General of Nova Scotia and MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 185, however, J. Dickson, writing for the majority, rejected that view and stated in regard to open proceedings:

Many times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from court proceedings. It is now well-established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for the exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited by approval by Duff, J. in Gazette Printing Co. v. Shallow (1909), 1909 CanLII 46 (SCC), 41 S.C.R. 339, at p. 359:

Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.

He then went on to discuss the application of that same principle to the court records. … He said this at p. 189:

Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favor of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

29Consequently, it is not only the proceeding that the Courts have determined should generally be open, but the resulting decisions as well.

30I am also persuaded that decisions should generally include the names of the litigants in light of the rationale expressed in C.M. v. York Region District School Board, 2009 HRTO 735, quoted in the “Practice Direction on Anonymization of HRTO Decisions”, under “Exceptional Circumstances.” It states:

[T]his Request [for anonymization] raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld….it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particular parties before it. …

31This rationale – that litigants who make serious accusations should not do so “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected” – has significant resonance. It is very easy to make serious assertions and claims. When doing so – and pursuing such a claim – litigants should not be able to hide behind anonymity, absent a compelling reason to allow it. Confidence in the administration of justice – and the open court principle – requires it.

32This view does not minimize the importance of privacy interests, particularly in our current technological environment including the internet and social media. As stated by Arbitrator Lanyon in Re Sunrise Poultry Processors Ltd., supra at par. 141:

The adoption of the open court principle creates the presumption of publication; however, the privacy concerns of grievors and witnesses, especially in respect to personal identifiers, and personal information, do raise significant issues. Arbitrators must balance the sensitivity of the personal information, and the potential harm to grievors and witnesses in the event of publication of their names, in crafting their awards. …

2. The Onus

33The presumption of publication inherent to the open court principle puts the onus to support a claim for anonymity on the party seeking it – in this case, the Union. I find the standard set out in the “Practice Direction on Anonymization of HRTO Decisions” to be useful. It states: “The HRTO may also anonymize the name of a party or a participant to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so (Rule 3.11). Such an order is only made in exceptional circumstances.” This is consistent with the standard adopted in Re Toronto Community Housing Corp., supra. It is also consistent with the standard articulated in Leading Arbitration Cases, Chapter 5, supra, which states: “This presumption of openness can be rebutted with the demonstration of compelling countervailing privacy interests that justify anonymity for a grievor and witnesses.” I see no real material difference between “exceptional” or “compelling” privacy interests.

3. Application of the Facts to that Onus

34When a privacy interest becomes “exceptional” or “compelling” is subject to argument. Each case depends on its specific facts. The Union asserts that all medical evidence is personal and confidential and that, when it is clear that a grievor’s medical information will be at issue, as is the case here, a compelling privacy interest has been established. It asserts that there can be no hierarchy in regard to medical information.

35With respect, I do not agree. I concur with Arbitrator Tims in Re City of Toronto, supra at par. 27, where she writes:

While I accept that anonymization of a decision may well be appropriate in many instances where medical evidence is addressed, the specific nature of such evidence must be considered. Medical evidence, while inherently personal, may nonetheless address a broad spectrum of issues, with varying degrees of sensitivity associated with it. Medical records pertaining to an individual’s cold symptoms and those relating to a substance abuse problem both fall within the ambit of ‘medical evidence.’ It is not a given, however, that they should be viewed in the same manner when addressing whether anonymization of identity is justified. …

36The type of medical issues in that case – back and shoulder pain and related restrictions – appears to be similar to the medical issues in this matter.

37Similarly, the HRTO, in Re Visic, supra at par. 11, recognized that “[a]lmost all disability human rights cases involve some disclosure of personal information surrounding an applicant’s disability, or the basis for the perceived disability, in order to meet the definition in section 10 of the Code and establish that there is a Code-protected ground.” In Re Mancebo-Munoz and NCO Financial Services, Inc., supra at pars. 6-7, the Tribunal found that references to the individual’s “mental health condition” did not provide “any unique concerns or issues of privacy that justify the extraordinary measure of anonymization.” In contrast, in Re C.C. and J.L., supra at par. 18, the Tribunal determined that an “individual’s intention to commit suicide and subsequent involuntary admission to a hospital are examples of sensitive information that favour anonymization.”

38To be sure, there are many types of medical issues that are highly sensitive and may warrant anonymization to protect the individual’s privacy. Again, each case will turn on its specific facts. In my view, on the facts of this case, the type of medical issues involved do not rise to the highly sensitive type that would warrant anonymization.

39The case law also establishes that concerns that a public decision might have a negative impact on a grievor’s career and reputation have also not generally been considered to establish an “exceptional” privacy interest. Re Toronto Community Housing Corp., supra. In Re Visic, supra at par. 12, the Tribunal rejected the argument of a law student who filed a claim of discrimination against the firm where she articled to anonymize her name because publication might jeopardize her legal career:

The applicant’s argument that her employment prospects may be jeopardized by publication of her identity in the context of the respondents’ allegations of misrepresentation is not an uncommon or distinguishable consideration. Apprehension of potential harm to professional reputation is common amongst litigants in employment discrimination cases where allegations and counter-allegations of workplace misconduct can be routine. …

40Here, the grievor’s concern is based on the potential impact knowledge about her restrictions might have on her outside employment in the food services industry. This, in my view, does not rise to a compelling or unusual consideration to justify anonymization.

41In addition, this case, based on the particulars, is not a straight-forward accommodation case where there is a dispute about an individual’s accommodation or restrictions and limitations. The grievance does not even allege a failure to accommodate. The particulars do so, but also raise serious allegations of discrimination, harassment and retaliation by her manager and other employees. I am unable to conclude that the Grievor should be entitled to make such allegations “behind of veil of anonymity.”

42I agree with counsel for the Employer that if anonymization is allowed in this case, then it will create a precedent in connection with every case where medical issues arise (which is every accommodation case) or career concerns are raised, with the result that all such cases would be anonymized and the norm would become secrecy – contrary to the open court principle. Anonymization should be the exception, limited to compelling situations, not the rule.

43Finally, in terms of the timing of requests to anonymize, I conclude that such requests should be brought at the earliest possible time. They could often be decided, as in this case, based on the particulars. At times, there may need to be evidence, or at least “will say” statements which, if accepted, would establish the basis for consideration of the motion.

Conclusion

1. The GSB, as a public adjudicatory body, is subject to the open court principle.

2. The onus is on the party seeking anonymization to establish “exceptional” or “compelling” circumstances that justifies the request.

3. Such requests should be made at the earliest possible time, based on the particulars and if necessary, evidence.

4. Based on the particulars submitted here, I conclude that the onus of establishing “exceptional” or “compelling” circumstances was not met.

5. The Union’s request to anonymize the Grievor’s name is denied.

Issued this 5th day of September, 2017.