An arbitrator has ruled that the media and public will be excluded from an upcoming labour arbitration hearing concerning the termination of M.D., an employee of the Canadian Union of Public Employees (CUPE).
The decision was based on concerns that open proceedings could reveal the union’s confidential bargaining strategies, potentially impacting ongoing labour negotiations across the public sector. (In an earlier ruling in the same case, the arbitrator allowed CUPE to access some of his text messages.)
The arbitration stems from a grievance filed by the Canadian Staff Union on behalf of M.D., who was terminated while involved in collective bargaining for CUPE. The union employer requested that the hearing be closed to outside observers, citing the need to protect sensitive bargaining information that could be detrimental if disclosed publicly.
Confidentiality concerns drive exclusion order
The arbitrator agreed with the employer’s argument that maintaining confidentiality was crucial, given the nature of the dispute. “If the hearing were open to the media and the public, this highly sensitive and confidential information would be disclosed to third parties, with potential implications for labour relations across the public sector,” the ruling stated.
The decision noted that while CUPE is a public sector union, it does not provide direct services to the general public. Therefore, the arbitrator found that the public interest in an open hearing was diminished compared to cases involving government institutions. The ruling also emphasized that the allegations in the grievance related to internal policy rather than misconduct requiring public scrutiny.
No opposition from the grievor’s union
The Canadian Staff Union, which represents M.D., did not oppose the request to exclude observers. However, it sought assurance that its advisors and executive members could attend the hearing. The employer did not object, and the arbitrator’s order allows these individuals to be present.
Legal basis for closure
The ruling acknowledged that the Industrial Relations Act does not specify whether arbitration hearings should be open or closed. However, the arbitrator cited jurisprudence recognizing that arbitrators have broad discretion to manage their proceedings, including the ability to exclude the public when warranted.
Past decisions from other jurisdictions were referenced, including Vale Canada Ltd. v. U.S.W, Local 6500, in which an arbitrator excluded the media due to concerns about influencing public opinion and witness testimony. Similarly, in North Simcoe Hospital Alliance v. Ontario Nurses Association, an arbitrator considered multiple factors, such as the nature of the employer and the potential labour relations implications, when determining whether to allow public access.
Applying those principles, the arbitrator in this case found that the risks associated with an open hearing outweighed any public interest considerations. “Unlike in cases involving allegations of public misconduct, there is no overriding interest in public transparency that would justify exposing the employer’s bargaining strategy to external scrutiny,” the ruling stated.
Implications for future arbitration hearings
The decision reinforces the principle that labour arbitration hearings are not automatically open to the public. It also underscores the importance of protecting confidential labour relations information, particularly in disputes involving bargaining strategy.
While this ruling does not establish a binding precedent, it signals that arbitrators may be inclined to close hearings where the disclosure of sensitive information could have broader implications for labour negotiations.
For more information, see Canadian Staff Union v Canadian Union of Public Employees, 2025 CanLII 15827 (NB LA).
