The news media applied for access to a contentious arbitration hearing. Both parties objected. The arbitrator refused access, finding it could taint the evidence of witnesses who were excluded. The publicity might also preclude a voluntary settlement.
A national broadcaster applied for permission to observe and broadcast segments of an arbitration hearing scheduled to examine the grievance of one of nine workers terminated during the course of a prolonged and bitter strike.
Both the union and the employer argued against allowing the media access to the proceedings.
It was agreed that a determination on the issue was entirely within the Arbitrator’s discretion and that the factors identified in North Simcoe Hospital Alliance v. Ontario Nurses’ Association should apply.
The broadcaster argued there was a significant public interest in the case. The one-year strike against one of the area’s largest employers had a profound impact and generated a lot of interest in the community. Both parties to the dispute used the media to make their respective cases in the court of public opinion. It was disingenuous for the parties now to claim that the dispute was a private matter, the broadcaster said.
There were no significant privacy issues because the names of the terminated workers were already part of the public record. Contrary to concerns that broadcasting elements of the testimony would further inflame labour relations, the broadcaster said public access to the facts would serve to cool down the rhetoric.
Union, employer agree
The employer said the case concerned whether or not a private employer had just cause to terminate an employee pursuant to the terms of a collective agreement. The public’s right to know about the outcome of the case would be satisfied when the Arbitrator released the decision. The parties did not agree on much, the employer said, but they were in agreement on opposing media access to the proceedings.
The union said it had a 50-year relationship with the employer and there had been ups and downs over time. Strikes are a feature of the labour relations process, the union said, and there was nothing public about either the process or the case itself. There were no human rights issues involved or public issues involved in what was a matter between a private company and a private sector trade union, the union said. Privacy issues were a concern because the union and the employer had agreed it was appropriate to exclude witnesses in this case in order to ensure testimony was not tainted.
The Arbitrator agreed.
The arbitration of disputes in labour relations is essentially a private process, the Arbitrator said. Public or media access may be granted on a case-by-case basis, but there is no fundamental presumption of any public right to access.
In this case, the fact that both the union and the employer were agreed that it would not be in their interests to allow a media presence was compelling, the Arbitrator said: There were no cases where media had been granted access to proceedings over the objections of both parties.
Paternalistic and misguided
The broadcaster’s argument that its presence in the proceedings would have a calming effect was “paternalistic and misguided,” the Arbitrator said.
The broadcasting of evidence had the potential to negatively affect the course of the proceedings, the Arbitrator said. Public opinion mobilized by the broadcasting of selected evidence could be leveraged against any potential early settlement to the dispute. Similarly, the broadcasting of testimony would undo the value of excluding witnesses to prevent them from hearing the testimony of other witnesses, the Arbitrator said.
Suggestions that the information for broadcasting could be controlled were not adequate, the Arbitrator said.
“Given the stated intention of the [broadcaster] to broadcast sound bites of the testimony on an ongoing basis, I really do not think that this is a practical approach or even possible in the circumstances. For all of the reasons articulated and after balancing the public interest in these proceedings with the interests of the employer, the union and [the grievor], I conclude that it is not appropriate to allow the media access in the circumstances of this case.”
