CAUT Policy Statement
This Policy Statement is designed to assist academic staff associations with issues of confidentiality in the grievance process. The statement describes:
i) the purpose and scope of such confidentiality; and
ii) when it may be necessary to compromise confidentiality and the appropriate course of conduct if such a situation arises.
Associations owe a duty of confidentiality to members who bring forward complaints about possible violations of the terms and conditions of employment. No communications between the association and the member that relate to the complaint should be disclosed outside the association, principally to the employer, without the consent of the member.
3. Purpose of Confidentiality
Confidentiality benefits the grievance process and therefore all members of the bargaining unit and the association as a whole. It ensures that members feel free to discuss with the association all aspects of their concerns without fear that the information will be improperly disclosed. While it may never be possible to guarantee completely if a legal requirement to disclose occurred, an assurance of confidentiality encourages honesty and candour with and from members so that the association can provide good advice and effectively defend the collective agreement.
4. Scope of the Duty
The association, and not the individual member, is a party to the collective agreement. The association therefore has responsibility for the handling of grievances. As such it is critically important for members to understand that confidences will be protected to the greatest extent possible, but that relevant information will have to be shared within the association by those with grievance-handling authority. This includes the executive of the association, the membership of the grievance committee or similar body and the association’s professional staff and legal counsel.
Members must further understand that as the grievance unfolds less sensitive information, such as the date of the violation, the articles violated and the faculty/school/college involved, is typically released to the broader bargaining unit as the part of the association’s legal duty of fair representation and political responsibility to provide information on its activities. Finally, members should understand that for a grievance to proceed, relevant information will have to be discussed with the employer, and that if the matter is decided by an arbitrator all relevant aspects of the case typically will become part of the public record, including searchable arbitration decision databases. Finally, an arbitrator may make orders or issue a subpoena at the request of the employer that requires information gathered in the grievance process to be disclosed
As a practical matter, the association must keep all communications with the grievor, whether oral, written or electronic, in confidence. Inadvertent breaches of confidentiality can result from the discussion of cases in publically accessible venues and from lack of care in the storage, transmission and disposal of documents.
5. Legal Foundation of the Duty1
Broadly speaking, communications will be subject to privilege by law and hence protected from disclosure where all the following conditions are met:
i) The communication must originate in a confidence that it will not be disclosed;
ii) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
iii) The relation must be one which in the opinion of the community ought to be actively encouraged, and;
iv) The injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation2.
The fourth element above has been the most difficult to satisfy as it a decision-maker could still find that a disclosure is in the public interest even if all the other criteria are satisfied. In labour law, however, there are more specific privileges that could apply to protect information received by an association from a member either before or after a grievance is filed.
The relationship between a member and their association in the context of a grievance has been held to meet the conditions to establish litigation privilege. Thus, documents prepared for the purpose of actual or contemplated litigation are subject to protection from disclosure. An association can therefore resist disclosure an arbitration hearing the contents of discussions or correspondence with the member bringing the complaint forward.
The association’s duty of fair representation to its members in the handling of grievances, which requires the association act in a manner that is neither arbitrary, discriminatory nor in bad faith, provides a further basis for protecting the confidentiality of members. However, the member will waive any right to confidentiality by bringing forward a duty of fair representation complaint, as the association would not be limited in its defence to what the complainant is prepared to permit by way of disclosure in their communications with the association. As in all forms of privilege, the person benefiting from the privilege protection may waive their right.
6. Where the Duty No Longer Applies
In addition to situations where the information is required to be disclosed by judicial or arbitral authority or where the member waives confidentiality by bringing an action against the association, as discussed below there may be a public interest and perhaps statutory obligation on an association to voluntarily disclose information that would otherwise be considered confidential.
Thegrievance process inherently involves conflict. The future of a member’s career might be at stake. In these stressful circumstances a member may make inappropriate or abusive comments. These comments may very rarely include threats against others of physical harm or death.
In addition to the public interest, the question of whether it is appropriate or necessary for an association to disclose or report a workplace threat may depend on the applicable provincial legislation and the circumstances of each particular case. If time permits, the association executive, grievance committee, professional staff and legal counsel may wish to confer on the proper course of action. Uncharacteristic statements made in a fleeting fit of anger may or may not trigger the reporting requirement. Reporting is advisable if there a clear risk to an identifiable person or group of persons of serious bodily harm or death and the danger is imminent.
a decision is made to compromise confidentiality then, subject to reporting requirements in particular jurisdictions:
i) the confidential information must be relayed only to the proper authorities (for example a management representative, the police or university security) and to the intended victim; and
ii) disclosure must be limited to the threat itself and not include other information gathered by the association in the course of assisting the member.
Approved by the CAUT Council, November 2019.
1 See Gorsky, Usprich and Brandt, Evidence and Procedure in Canadian Labour Arbitration (Thompson Reuters: Toronto, 2017 at 11.10(e), “Confidential Information”.
2 This is the “Wigmore Test”, established by the noted American law professor and expert on evidence to determine if legal privilege should extend to a relationship. The test was adopted by the Supreme Court of Canada in Slavutych v. Baker  1 S.C.R. 254. Note the first criterion - that there must be an assurance that all communications within the relationship will be kept confidential.