mai 16. 2020

No privacy violation to tell complainants that complaint resolved by taking “action”

Mount Allison Faculty Association v Mount Allison University, 2020 CanLII 33895 (NB LA)

Arbitrator Oakley dismissed a grievance that alleged a university had violated a professor’s privacy by advising students that it had taken “action” to address their complaint.

Forty-three students complained about a failure to conduct sufficient evaluation by the eighth week of the term as well as inconsistent grading. The Dean investigated and issued a written warning, both actions immediately grieved by the professor and their faculty association. The Dean then sent the following communication to the complainants:

Dear Concerned Students,

Thank you for your patience.

The complaints were reviewed with [G] and the Mount Allison Faculty Association and the University took action to ensure the issues raised were addressed. This action is the subject of a grievance under the relevant collective agreement and is scheduled for arbitration in November. Collective agreements are contracts between an employer and a union governing the relationships between unionized employees and their employer. I cannot disclose any further information until the grievance is resolved by agreement or through arbitration. Please be assured that the issues you raised have been taken seriously by the University and we thank you for raising your concerns.

The professor and faculty association grieved again, relying on provincial privacy legislation, the intrusion tort and a provision of the collective agreement that prohibited the university from disclosing information in the official file.

Arbitrator Oakley dismissed the privacy grievance. He was very careful to root the decision in the facts, stressing that the university did not imply that it had disciplined the grievor.

It is entirely appropriate for Arbitrator Oakley to be so reserved, but it ought to be said that complainants of all kinds have a strong interest in knowing how their complaints are resolved and ought not to be deprived of the basic facts pertaining to resolution, in my own view even if that includes facts about discipline imposed. Privacy is not absolute and does not preclude the meeting of valid competing interests.