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The Collective Agreement and Severing Protocol
October 20, 2003

Under the Provincial teachers’ collective agreement, school boards are required to appoint a trained investigator to investigate harassment complaints and to provide a report to the board on the matter. Typically, such reports include the investigator’s factual conclusions, conclusions of credibility, and an assessment of whether the behaviour complained of constitutes a breach of the collective agreement. A number of arbitration awards interpreting the harassment provisions have clarified that the investigation report prepared for the school board will be treated as a confidential document, and will only be disclosed in accordance with strict procedures and agreements between counsel for the complainant, respondent, and the school board.

In an earlier award, Arbitrator James Dorsey acknowledged the importance of protecting the privacy of individuals discussed in harassment investigation reports as well as the importance of making as much disclosure as possible of the investigation information to the parties to the complaint. Arbitrator Dorsey established a protocol that was intended to balance the protection of individual privacy interests against the right of the complainant and respondent and their representatives to access the information in the investigation report. The terms of the protocol provide that counsel for the parties are to use their best efforts to reach agreement on what, if any, portions of a report should be severed for privacy reasons prior to their disclosure to the complainant, respondent and their representatives. If there is no agreement reached regarding the terms of severing, the matter is referred to a third party to determine the appropriate portions of the report to be severed.

In the present case, the school board and the union agreed to the portions of the report to be severed. However, the respondent vice-principal raised a significant number of issues regarding the report and the manner in which the investigation was conducted. The respondent claimed that in view of these concerns, the report should either be extensively severed, or, preferably, should be withheld in its entirety. In particular, the respondent took the position that the report should not be disclosed because the investigator had not complied with the principles of natural justice and fairness when conducting the investigation process.

Arbitrator’s Award
Arbitrator Dorsey ruled that his role under the protocol was to determine what, if anything, should be severed from the investigation report prior to its disclosure. He also concluded that, in relation to the respondent’s argument regarding the flawed investigation process, there was no basis at law to suggest that an investigator was required to conduct an investigation in the manner of an adjudicated proceeding (i.e., as an impartial adjudicator, with cross-examination of witnesses, etc.). Accordingly, this could not be an appropriate basis for ordering the extensive severing of the report or non-disclosure of the report in its entirety.

Arbitrator Dorsey also confirmed that the investigator’s findings and conclusions are not binding on the employer, but are merely a prelude to the school board’s decision on whether to take action based on the complaint. The investigator is a merely a fact finder, and does not exercise statutory powers, administrative authority or an adjudicative function. As a result, the investigator is not bound by the standards of natural justice or procedural fairness which would apply to statutory or administrative tribunals, including arbitrators.

The respondent appealed the award under section 99 of the Labour Relations Code.

strong>Decision of the Labour Relations Board
The Labour Relations Board agreed with the arbitrator’s analysis, concluding that his award properly addressed the issue of what, if any, portions of the investigator’s report should be severed. The LRB also confirmed that the arbitrator had correctly stated the law regarding the nature of an investigator’s authority when conducting an investigation, that is, investigators are expected to act as fact finders not adjudicators.

Reconsideration and Appeal to the BC Court of Appeal
The respondent has appealed Arbitrator Dorsey’s award to the Court of Appeal under section 100 of the Labour Relations Code. An application has also been made to the Board for reconsideration of the original LRB decision.

(click here for full text of the judgment)