Labour tribunal fighting to keep documents secret
Star’s battle to access information turns into legal nightmare
During public hearings at the Ontario Labour Relations Board, lots of personal information, including names and employment history, is said out in the open. All of this can be reported by the media. But trying to access the same documents that are relied upon in those hearings is an entirely different matter.
Case in point: Star reporter Robert Cribb made a request in 2014 to review documents relating to a dispute between the Laborers’ International Union of North America (LiUNA) and its Local 183, and whether the latter should have been placed under trusteeship due to alleged improprieties. (The board held that the trusteeship should remain in place.)
Cribb and colleague Tony Van Alphen had been researching the local, including possible connections with organized crime.
But their quest for documents that were filed at a public hearing turned into a legal and bureaucratic nightmare, and ultimately sparked the Star’s much broader legal challenge launched last week against secrecy in Ontario’s tribunals.
Cribb and Van Alphen were mainly looking for affidavits and declarations. They were told they would have to file a freedom of information request — which can be a costly and lengthy process, with no guarantee that documents will even be disclosed.
In contrast, documents filed as part of a court proceeding, including those containing personal information, are presumptively public and can easily be accessed the same day at the courthouse.
About a month after making the request, the reporters were permitted to access several banker’s boxes of documents at the labour relations board offices, and to make copies of certain materials.
“These were documents filed with the board for consideration in a labour relations matter that resulted in a hearing that was open to the public,” Cribb said in his affidavit filed as part of the Star’s legal challenge.
The labour board has demanded the Star return documents on a dispute between a union and its local, even though they were filed as part of a public hearing
“The documents relate to matters of high public interest, including possible connections between LiUNA’s Local 183 and organized crime, allegations of exploitation of undocumented foreign workers by Local183, allegations of fraudulent obtainment of unearned pension service credits facilitated by Local 183, and allegations that Local 183 used threats and intimidation, and conducted surreptitious surveillance of its employees and members.”
Paul Cavalluzzo, lawyer for LiUNA and Local 183, told the Star these allegations are “spurious.”
But the reporters soon encountered a problem: The board was refusing their request for additional documents, and was now demanding that the Star return the copies of documents obtained through the freedom of information request.
The board’s lawyer, Leonard Marvy, wrote that it was the head of the board’s view that “the records . . . may have been released in error and that the board had inadvertently disclosed personal information that is presumed to constitute an unjustified invasion of personal privacy.”
Marvy went on to ask that the Star “return and not use any of the information released until this has been resolved.” The Star has not disseminated any of the information obtained from the documents, but is also refusing to return them.
Star lawyer Bert Bruser told Marvy in an email that the newspaper “was unable to return the material you requested” and that “the documents, which were obtained from the board, are submissions filed as part of public labour board hearings.”
Cavalluzzo is also demanding that the documents be returned, telling Bruser in an email that the Star should “comply with the law and return the mistakenly disclosed documents . . . and destroy any copies of the documents in your possession.”
Cavalluzzo said Thursday his clients are “appalled” at the Star’s position and reiterated their demand for the documents in an interview this week.
“The Star has acted as if it is above the rule of law, by refusing the request of two statutory tribunals, the labour board and Information and Privacy Commissioner, to return the documents that were mistakenly released,” he said.
The labour relations board has informed Ontario’s Information and Privacy Commissioner (IPC) of the release of the documents to the Star, contending that it was a privacy breach. An IPC inquiry was put on hold pending the outcome of the Star’s appeal to the IPC of the labour board’s demand for return of the documents.
The Star argued in its appeal that it was unconstitutional to apply Freedom of Information legislation to tribunals, which should be as open as the courts.
The newspaper decided in 2015 to launch a broader legal challenge against secrecy in Ontario’s tribunals, which rule on everything from landlord and tenant disputes to human rights abuses to environmental violations. (With the Star’s appeal abandoned, the IPC has again turned to the privacy breach complaint from the labour relations board.)
The tribunal system was created to take cases out of the overcrowded court system, and into a more efficient process.
But as mentioned in an editor’s note published last week when the Star launched its legal challenge, “tribunals appear, on the surface, no different than traditional courts — with adjudicators, hearing rooms, dockets and generally open hearings — but they depart dramatically from open court rules when it comes to providing records.”
Cribb notes in his affidavit that many tribunals rely on the Freedom of Information process, which can take so much time to release documents that, “even where records are ultimately disclosed, they have often become irrelevant. In this context, information delayed is truly information denied.”