There are occasions where a party (usually the employer) to a proceeding before the Ontario Labour Relations Board (“OLRB”) will seek a confidentiality order with respect to documents or information that is disclosed or that is ordered disclosed in the case.
Most recently, the issue was discussed in Unifor v Kuehne + Nagel Ltd., 2019 CanLII 11749 (ON LRB). Unifor brought an unfair labour practice complaint under section 96 of the Labour Relations Act, 1995 where the union alleged that the employer had made a number of unilateral changes to terms and conditions of employment of certain employees in the bargaining unit. The employer denied any violation of the Act.
The union requested production of certain documents from the employer (the documents are listed at paragraph #6 of the decision). On the first day of hearing, the employer asked that the OLRB issue a confidentiality order with respect to the documents that it was being asked to produce.
The employer asked for the order for two (2) reasons:
- there is the possibility, given the assertions by Unifor of breaches of the Code, that and employee and/or the applicant could file a complaint with the Human Rights Tribunal of Ontario, and could use documents containing personal information produced in this proceeding in support of such a complaint; and
- many of the documents requested by Unifor contain commercially and financially sensitive information belonging to the company and its customers.
The OLRB issued a partial confidentiality order with respect to certain of the produced documents. In doing so, it considered the circumstances in which such an order is appropriate.
The OLRB observed that documents produced in a proceeding are covered by the implied undertaking rule which prohibits use of documents disclosed in a proceeding for any other purpose than the litigation in which they are disclosed.
In terms of a confidentiality order, these will be appropriate where the information in the documents that are being produced is commercially or financially sensitive however not where the documents do not contain commercially sensitive information. The standard confidentiality order is the following:
- all documents are to be kept confidential as among the parties;
- no copies are to be made of any document except for the purpose of the hearing of this application;
- no copies are to be circulated to third parties except as necessary for the conduct of the litigation of this application, and once that purpose has been completed, the copies are to be retrieved from the third parties;
- the documents are to be used for the purposes of this hearing only and for no other or improper purpose. Specifically, the documents are not to be used in any other proceeding and are not to be shown or provided to any other party or person once the hearing is completed;
- all copies of all documents are to be returned to the provider of the documents at the conclusion of this application and any judicial review proceedings arising out of this application, save for one copy to be retained by each counsel in her or his file; and
- no personal information contained in any of the documents, and in particular no financial information found in a document, shall be disclosed to any person except for the purposes of this application, or except as required by law.
The OLRB relied on Clayson Steel (1988) Inc. 2007 Can LII 2618 (ON LRB) and Entropex Limited 2016 CanLII 43329 (ON LRB). There are many other cases including Flair Woodworking Ltd., 2007 CanLII 89 (ON LRB).