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HomeMy WebLinkAbout1990-3159.Breen et al.92-04-21 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DEL 'ONTA RIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS (4 326- 1388 (416) 326- 1396 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO M5G 1z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 3159/90 IN THE MATTER OF an ARBITRATION Under THE CROWN EMPLOYEE8 COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE : FOR THE EMPLOYER HEARING OPSEU (Breen et al) Grievor and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer W. Kaplan I. Thomson F. Collict Vice-Chairperson Member Member M. Hart Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors M. Failes Counsel Winkler, Filion & Wakely Barristers & Solicitors June 5, 1991 October 22, 1991 March 23, 30, 1992 April 6, 7, 10, 1992 2 Introduct ion This matter, involving a number of grievances alleging various violations of the rest periods and health and safety provisions of the Collective Agreement, first proceeded to hearing in Kingston on June 5, 1991. Following that hearing, a Memorandum of Settlement was reached in relation to the rest periods part of the grievances. On October 22, 1991, the Board reconvened in Kingston, at which time certain preliminary matters relating to the outstanding issues in dispute were addressed. At the request of the parties, the Board issued an order dealing with the filing by the union of a statement of particulars outlining details of alleged harassment said to constitute a breach of the health and safety provisions of the Collective Agreement. These particulars were provided to the employer and to the Board, and the hearing reconvened in Kingston on March 23, 1992. At that time a number of further procedural matters were brought before the Board. All of these matters were resolved with the exception of the employer's request that the hearing be closed to members of the public, and that a certain report ordered filed as an exhibit be similarly restricted to the parties. Legal argument on this issue was heard in Toronto on March 30, 1992. With the agreement of the parties, and given the fact that this hearing was scheduled to proceed on April 6, 1992, it was decided that the Board would issue a brief decision on the employer's request with written reasons to follow. The following was our decision: The Employer has requested a "publication ban" on evidence given in this matter, and has also requested that the circulation of Exhibit 3, being the "Report on the Allegations Leading to the Suspension of Maureen Evans, Local Registrar for the County of Frontenac, Pursuant to- S. 22(1) of the Public Service Act" be restricted to the parties in this proceeding. Having carefully considered the employer's request, and for written reasons to 3 follow, both requests are denied. While the Board does possess the jurisdiction, in an appropriate case, to accede to both requests, we are not satisfied that this is such a case. We are, however, satisfied that this is an appropriate case in which to order the deletion of all personal information from Exhibit 3 including names and position titles prior to its disclosure to persons other than the parties. Union counsel undertook responsibility for doing this at the hearing on March 30, 1992 and it is so ordered. It is now appropriate to set out the arguments of the parties, as well as our reasons for the above-noted decision. E m plove r A ra u men t At the start of his submissions, employer counsel indicated that the employer was no longer requesting a closed hearing, but was simply requesting an order directing any member of the public, including the media, attending the proceeding not to report on the evidence given. As earlier indicated, the employer was also seeking an order restricting the circulation of Exhibit 3. Counsel began his submissions on the law with the observation that the Board does have the discretion to grant the order being sought, and he referred the Board to the decision of the Divisional Court in Re Toronto Sta r ((1 976) 14 O.R. (2d) 278) as authority for that point. Counsel conceded that in making a request for either an exclusion order or a "publication ban," the onus is on the party making the request to advance grounds in support of it. In counsel's view, there were compelling grounds in the instant case, but before reviewing those grounds with the Board, he made reference to a number of cases on point. In Tyler 428/84 (Swan), the Board considered a union request, unopposed by 4 the employer, for the hearing to be held in camera. This well-known case involved the dismissal of a grievor for allegedly engaging in sex with a ministry client. In considering the union request for a closed hearing, the Board cited with approval the following reasons for decision in Ralph 21 2/78 (Swan) Apart from precedent, however, we think that in principle a heavy onus lies on any party who wishes to close a hearing of a statutory body like this Board. It is the hallmark of procedural fairness that justice manifestly be seen to be done. This can only occur if the public and the press have full access to the proceedings; 'the best safeguard against arbitrary use of power or merely careless injustice is the full light of public scrutiny. Public hearings can have their costs, of course, but those costs must be particularly heavy to overweigh the primary public interest in openness. The Board in Tyler went on to note that the grievor "had very little reputation left to protect at this point" (at IO), and it accorded one of the witnesses some privacy protection by only indicating the first initial of his last name. The Board also commented on the public interest involved and noted that given the allegations that were made, the public had an undeniable right to know that the proceedings in which the allegations were being tested were "fair, open and subject to public scrutiny" (at 10). Accordingly, the union request in the Tyler case was denied. In the instant case, counsel sought to distinguish the Tyler decision, and noted that one important difference between that case and this one was the fact that a member of the public was involved. The instant case only involved a dispute between the parties, and there were, in counsel's view, five compelling reasons why the hearing should be restricted in the manner requested. 5 First, counsel pointed out that access to Exhibit 3 had been sought under the Freedom of Information and Protection of Privacy Act, and that the only material released was material concerning the person who had requested it. In counsel's view, this gave effect to one of the underlying principles in the legislation that information collected by government should not re-released to the public without the consent of the person who provided the information in the first place. Second, counsel argued that Exhibit 3 was rife with hearsay, and moreover contained considerable incomplete and inaccurate information. While the Board was capable of distinguishing between the "wheat and the chaff," counsel questioned whether the media could, particularly given some of the allegations in that report. Third, counsel urged the Board to consider the impact of release of Exhibit 3 on the reputation of the employer, and on the administration of justice more generally. In counsel's view, statements and appendices in that exhibit, which were arguably only tangential to the matter before the Board, could adversely effect the employer's reputation, undermine the administration of justice and effectively require the employer to litigate those issues before this Board. Fourth, counsel argued that by seeking the release of the Exhibit in question the union was trying to achieve indirectly what it could not achieve directly, namely the review of the status of a particular member of management whom the union contends is the source of the difficulties giving rise to the grievances before the Board. And fifth, counsel argued that "trying the case in the press" would not serve any useful labour relations purpose. Counsel noted that at the end of the day, these parties will have to continue to work together, and that a media circus would not promote that goal. In regard to all of these points counsel referred 6 the Board to Re Air Canada (1977) 14 L.A.C. (2d) 309 (H.D. Brown). In the Air Canada case the employer objected to the presence of the press at the hearing and sought an exclusion order. The union objected, arguing, inter alia that the press should be allowed in given the fact that the grievance concerned health and safety and that the public had a right to know about the safety of the air carrier's operations. The Board held: Without the consent of the parties, and having regard to the very strong objection of the corporation which is based on reasonable apprehension of the potential damage to its public image as a result of press coverage of these proceedings, we are persuaded that the board's discretion should be exercised in favour of the corporation to exclude the the press from the hearing. The issue raised in the grievance is not a public matter, but is a dispute which must be determined under. the terms of the collective agreement between the parties as to whether there has been a violation of that agreement by the corporation. In such a dispute, the presumption must be in favour of a private hearing with regard to the substantive interests of the parties as opposed to the very limited, if any, interest of the public which could be involved in the grievance. It is a question of balancing the interests involved, and in our opinion, the corporation's concerns as to the presence of the press at the hearing are substantial, having regard to the allegations made, and outweigh the association's submissions in this regard (at 31 3). Counsel also referred to Colquhoun 129/84 (JoIIiffe), where the Board held in a harassment case that "in the interests of preserving or restoring a semblance of harmony ... the Board has decided that, with certain exceptions, witnesses will not be identified and the substance of their testimony will not be made public" (at 14). In counsel's view, the instant case was not very different from either the Air Canada or Colquhoun cases. As the only matter in dispute was the one between the parties, and as there was no public 7 interest in it, the restrictions requested should be imposed. Indeed, counsel argued that the interest of the parties and the public interest could best be served by imposing the restrictions. Union Argument Counsel began her submissions with the observation that any party requesting the Board to exercise its discretion to close a hearing bears a heavy onus, and that this onus had not been discharged in the instant case. Moreover, in union counsel's view, the cases cited by employer counsel could all be distinguished from the instant one, and counsel argued that it was important to bear in mind the different types of privacy interests that might arise. In Tyler the Board recognized the privacy interest of the third party, and gave protection to it, Counsel agreed that if the Board decided not to impose any restrictions on the distribution of Exhibit 3, the privacy interests of persons named in it could be similarly protected by excising their names, and as already noted she agreed to do so. Counsel observed that in Ralph the Board protected the privacy interests of the inmates by requesting that the press present not identify any of them by name in their published reports, and by the Board itself not doing so in its reasons for decision. It was noteworthy, counsel observed, that in both of these cases the hearings were kept open to the press. Counsel pointed out that the employer has not identified any third party privacy interests that require protection in the instant case, in the same way that such interests were recognized in the Tyler and Ralph decisions, and suggested that in light of it having failed to do so, it was difficult to understand the employer's concerns. Moreover, in counsel's view, this case could not be divorced from its context: it arose in a public institution, and it was in the public interest to know what was taking place in that institution. 8 With respect to the potential for long-term damage to the relationships between these parties, counsel suggested that the relationship between this employer and the grievors has deteriorated to the point that a public airing could not hurt, and arguably might help, particularly given the widespread discussion of these matters in the Kingston legal community. Counsel cited Re Seneca College (1 986) 23 L.A.C. (3d) 127 (H.D. Brown), where the Board held that "the employer is a public educational institution, the activities of which are of general interest not only to the educational community, but all the residents of this province who support and have an interest in these educational facilities" (at 129). Likewise, counsel suggested that the same principle should be applied in the instant case, and also argued that Re Perley Hospital (1 982) 4 L.A.C. (3d) 137 (Bernstein) stands in part for the proposition that in considering the public interest in cases of this kind, it is important that that interest not be narrowly construed. In counsel's submission, this case has been going on for a long time, and its details are generally well known. Counsel submitted that the hearsay concerns raised by the employer were not as problematic as suggested, particularly since the union intended to call as witnesses a number of the persons interviewed for the purposes of preparing that exhibit. Counsel also advised the Board that the author of that exhibit indicated to the people she interviewed that she could not guarantee that their statements would be kept confidential. Finally, in counsel's view, what the process now required was a complete and public airing of the dispute. Counsel argued that the hearing must be open, and it must be public. And this meant that the request for restrictions by employer counsel should be denied. 9 Employer Reply Employer counsel emphasized that this request was carefully considered by the employer, and that in revising its request so as to permit public access but limit media reporting, the employer had gone some distance towards presenting a reasonable position. Counsel indicated that members of the judiciary who were interviewed for Exhibit 3 have expressed concerns to his client about the use to which those interviews might be put, and that these were serious concerns given the fact that their views may not have been accurately reported in Exhibit 3, or that the opinions expressed may have been based on incomplete or inaccurate information. Counsel also argued that there was a significant difference between the Tyler and Ralph cases, and the instant one. In those cases, a member of the public was arguably involved. In the instant case the issue was a matter of dispute only between these parties. While a "publication ban" could arguably not, have been supported in those cases, this was a different case, and one where such an order made a lot of sense. In counsel's view, the mandate of the Board in the instant case is to consider the grievances alleging a violation of the health and safety provision of the Collective Agreement. It is not to review more generally the operation of the Kingston courts. Accordingly, there was no public interest in this case, and the Board should exercise its jurisdiction to grant the restrictions requested. Blanking out personal names and positions was not enough, counsel submitted, for all it would do was lead to a guessing game. Decision As already noted, in our preliminary decision released on April 1, 1992, we decided to deny the employer's request, although we ordered that if Exhibit 3 were released, it should only be released if personal names and position titles were removed. The following are our reasons for this decision. 10 In our view, which is consistent with that of other panels of this Board, we have the general discretion to grant the restrictions requested, and we are obliged in each case, where such a request is made, to carefully consider that request in light of the circumstances of the particular case. Having carefully considered the arguments of the parties, and having reviewed Exhibit 3, we are of the view that the employer has not discharged its onus of satisfying us that this is an appropriate case to effectively restrict access to the press by way of a publication ban and by way of restricting circulation of an exhibit that has been filed as evidence in this case. To support an order of the kind requested by the employer, compelling reasons must be advanced, for example, that personal reputations may be destroyed, or that delicate and/or highly confidential financial data might be improperly released. In this case, the employer has presented a number of concerns, but none of them, either in and of themselves, or even taken together, support the rather drastic remedy that is requested, given the general public policy in favour of an open justice system, and past practice more generally. It is clear from the submissions of counsel that the relationship between these parties has deteriorated to a significant extent. It is also clear that this is not a matter solely of concern to the union and the employer, but one that has attracted public and other interest. While not conclusive obviously of this fact, media interest in these proceedings suggests a public interest in this case. It is arguable that the "hearsay" in Exhibit 3 may result in all sorts of inaccurate information being released which could be detrimental to the reputation of the employer. This is a concern that we take seriously, but it cannot be an overriding one, particularly where it is necessary to balance the public interest in an open justice system with that of the possibility of 11 harm that could be brought about by hearsay being reported in the press. For our part, and as already indicated to the parties in this case, hearsay alone will not satisfy the union's burden in bringing forward its case. We also take seriously the employer's concern with respect to the possibility of untoward publicity undermining the future establishment of good relations between these parties. This is also an important concern, but it too must be weighed against the needs of an open justice system, and the fact that every indication we have received since becoming seized with this case almost one year ago is that the relations between these parties cannot be further damaged. While not determinative in this case, the fact that one of the parties is a public employer is also worth keeping in mind. In the end, we are satisfied based on the law and the arguments of the parties that it is in both the parties' interests, and in the public interest, that these proceedings be open without restriction, and that there is no basis for us to exercise our discretion to close these proceedings. Simply put, while the employer has raised a number of important concerns, none of them is sufficiently compelling, in whole or in part, to justify the restrictions requested. They do, however, justify an order directing that personal names and position titles be excised from Exhibit 3 prior to its possible release or circulation, and it is so ordered. 12 DATED at Ottawa this 21 day of April 1992 William Kaplan Vice-Chairperson I. Thomson Member Member