Normally if a case proceeds to a hearing, the decision rendered by the judge will not only name the parties involved but also will identify the witnesses who testified at trial. There may be some exceptions as discussed below, but this is the basic concept.

However, is providing full names of key witnesses always necessary? Are the circumstances in which it would be wise to allow for initials to be used, or would that compromise the principle of ‘open court’? A recent decision following a federal hearing relating to an employee’s suspension considered these questions.

Employees Gave Evidence Based on Promise of Anonymity

A Federal Court of Appeal decision considered this issue recently. In this case, which was a review of a federal grievance, the hearing considered a review of an employee’s suspension, which had been issued following allegations of inappropriate acts with a female subordinate.

Several employees gave evidence at the original hearing based on the employer’s assurance that their identities would not be revealed in the expected decision. Notwithstanding this promise, the Board proceeded to issue its reasons using the full names of these witnesses. The employer requested a revision to this decision redacting these identifiers, which was refused by the Board on a technical argument to the effect that the case was completed and it could not go back and make revisions after the fact.

Board Refuses to Amend Decision

This Board’s decision was set aside by the Federal Court of Appeal which ordered the Board to again consider the employer’s request. The Board did as was ordered and reconsidered the request; however, in the subsequent decision the Board refused to redact the names as it concluded that it was not the right of the employer to make such “promises that are not theirs to make or keep”.

This brought the case once again back to the Federal Court of Appeal (FCA). The FCA reviewed the fundamental principle on this issue, namely, whether a confidentiality order is necessary to prevent a serious risk to an important issue and whether there were alternative measures that may avoid this risk.

Court Finds that Witness Identities Were Not Germane to Decision

The case was not based on whether the employer’s promise should be protected. On that question, the Board’s decision was deemed to be correct. However, the question considered by the FCA was whether the privacy rights of the witnesses outweighed the public interest in a fair and open hearing.

On this issue, the FCA determined that the witnesses did present legitimate privacy-related concerns and that their identities were not relevant to the Board’s decision. Further, replacing the witnesses’ full names with initials in the decision would not compromise the principle of open court. The FCA also noted that as a policy concern, using the witnesses’ full names would act as a deterrent to others in similar situations in the future, potentially creating situation in which witnesses would be reluctant to assist in proceedings for fear of public exposure.

Take Away to Both Sides

Significantly, the Court did not decide this question based on the employer’s assurance to the persons considering to volunteer as witnesses. Had this case not ended as it had, the employer in the case at hand would have found itself in an awkward circumstance with its employees and indeed may have been responsible for any damages suffered by the employees for the breach of this apparent promise.

The best an employer should offer in similar situations in the future is an attempt to make “best efforts” to protect the identities of potential witnesses, and perhaps offer some reference to this precedent decision.

Get Advice and Know Your Rights

For advice on employment litigation matters and questions, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues and associated litigation matters. Contact us online or by phone at 416-364-9599 to schedule a consultation.