The Winnipeg Free Press (the “Free Press”) successfully challenged the decision of an arbitrator denying public access to the hearing of a grievance filed by officers of the Winnipeg police service (“WPS”). The court found that there was no evidentiary foundation for the arbitrator’s conclusion that “informant evidence” would form an integral part of the hearing and, therefore, the arbitrator had exceeded his jurisdiction by ordering that the hearing be held in camera.

Administrative law – Police – Labour law – Arbitration – Hearings – Conduct of hearings – In camera hearings – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter – Decisions of administrative tribunals – Arbitration Board – Jurisdiction – Public interest

Winnipeg Free Press v. Winnipeg (City), [2004] M.J. No. 319, Manitoba Court of Queen’s Bench, August 30, 2004, Scurfield J.

Kevin Tokarchuk was murdered on May 12, 2003 in an execution style killing. Tokarchuk’s brother had previously been accused of killing a member of a criminal gang and there was immediate speculation that the killing was motivated by revenge. Shortly after Tokarchuk’s murder, the Free Press published an article based on “police sources” alleging that some officers of the WPS had received information about a possible plot to kill Tokarchuk several months prior to his death. A further publication said that no steps were taken to warn him or his family of the imminent danger.

The WPS commenced an internal investigation. During the course of this investigation, several police officers were placed on paid administrative leave. Ultimately, following the investigation, the police officers were returned to duty without any criminal or internal charges being filed against them. Some of the police officers were reassigned to other duties. As a consequence of the forced leave and reassignments, some officers filed a grievance in accordance with their collective agreement against the City of Winnipeg. A grievance hearing (the “Hearing”) was scheduled between the City of Winnipeg and the Winnipeg Police Association. A reporter from the Free Press attended at the commencement of the Hearing. Both the City of Winnipeg and the Winnipeg Police Association asked the arbitrator to hold the Hearing in camera, submitting that evidence might be given that would tend to identify an informant. The arbitrator provided an oral decision denying the Free Press and members of the general public access to the Hearing. The Free Press appealed this decision.

In Manitoba, the public’s right to attend a hearing held by an arbitrator or arbitration board is established by the Labour Relations Act, C.C.S.M. c. L10 (the “Act”). Section 122 of the Act states:

Every hearing held by an arbitrator or arbitration board shall be open to the public except that the arbitrator or arbitration board may hold the hearing in camera where the arbitrator or arbitration board is of the opinion that

(a)  intimate financial or personal matters may be disclosed …; and

(b)  the desirability of avoiding disclosure of the intimate financial or personal matters outweighs the desirability of adhering to the principle that hearings be open to the public.

In determining the appropriate standard of review, the court noted that the Supreme Court of Canada has mandated a pragmatic and functional approach to judicial review of all administrative decisions citing Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. This determination involves the application and balancing of four contextual factors:

(1)  the presence or absence of a privative clause or statutory right of appeal;

(2)  the expertise of the tribunal relative to that of the reviewing court on the issue in question;

(3)  the purposes of the legislation as a whole and the provision in particular; and

(4)  the nature of the question – law, fact, or mixed law and fact.

In this case, the court noted that there was no broad right of appeal from the decision of a labour arbitrator operating under the Act. However, the court indicated that a labour arbitrator brings no special expertise to the interpretation of a section that provides for public access to labour arbitration hearings. The court further noted that the facts at issue did not require a specialized knowledge that is not possessed by the courts. The court characterized the questions posed in this review as ones of both law and fact not related to the “core expertise of the tribunal”. The court recognized and accepted the need to impose a deferential form of self-discipline upon itself and assessed both the legal and factual issues from the perspective of reasonableness simpliciter.

The arbitrator had refused the Free Press’s application to attend at the Hearing on the basis that section 122 of the Act did not give him jurisdiction to order “a partially open and partially closed hearing”. The court found that the legislation did not mandate that the entire hearing must be closed if one small piece of evidence justifies going in camera. Therefore, the court concluded that the arbitrator erred in defining his jurisdiction. As well, the court found that there was no evidentiary foundation for the arbitrator’s conclusion that “informant evidence” would form an integral part of the Hearing. The court further noted that all parties to the application admitted that the law prevented them from introducing any evidence into the arbitration proceeding that would tend to identify an informant. On this basis, the court concluded that the arbitrator’s factual decision that the Hearing should be closed because of the introduction of informant evidence was obviously unreasonable and could not be supported. The court concluded that the arbitrator had exceeded his jurisdiction by ordering that the Hearing be held in camera.

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