In a decision published in recent days (Société Radio-Canada v. Lavoie, 2026 QCCA 900), the Quebec Court of Appeal upheld the rulings of the Superior Court and the Arbitration Tribunal, which denied the Employer’s request for orders of non-disclosure, non-publication, non-broadcast, and closed-door proceedings, Société Radio-Canada (the “SRC”), to protect its Harassment and Violence Reporting Mechanism as well as “the privacy, integrity, and psychological safety of those who participated in the investigation process”[1] .
This ruling is of interest with regard to the protection of witness confidentiality in workplace investigation processes, as well as the circumstances under which the orders sought in this case may be granted by the courts.
Background
In 2020, the CBC retained an external investigator following allegations of psychological harassment against a director. Based on the investigation’s findings, the CBC imposed a one-month suspension on the director. The Directors’ Association (the “Union”) filed a grievance. In response to a request for clarification, the Employer provided information to the Union, including the identities of the individuals involved in the alleged conduct. In this context, the SRC asked the arbitrator for orders prohibiting the disclosure of witnesses’ names, prohibiting publication, and holding the proceedings in camera to protect privacy and its whistleblower mechanism. The arbitrator rejected the request on the grounds that the CBC had not demonstrated a serious risk to a significant public interest, the first criterion of the Supreme Court’s Sherman decision[2] . The Superior Court, in judicial review, upheld the arbitrator’s decision[3] .
Reasons of the Court of Appeal
To begin with, the first criterion of the Sherman test requires proof of (1) the existence of a significant public interest and (2) a serious risk to that significant public interest. In her majority opinion, Justice Dutil acknowledges that protecting the integrity of the whistleblower mechanism constitutes a significant public interest and that this interest is distinct from privacy. However, the CBC failed to demonstrate a serious risk of harm to this mechanism resulting from the disclosure of the witnesses’ identities at the hearing.
The confidentiality agreements signed by witnesses during the investigation protect the integrity of the investigation and expressly state that they no longer apply in the event of a dispute. Furthermore, internal policies, the Code of Conduct, and the Regulation on the Prevention of Harassment and Violence in the Workplace[4] do not guarantee the anonymity of witnesses in court. Moreover, the Court emphasizes that, in any event, none of these documents binds the arbitrator in the exercise of his or her discretionary power to grant such orders. Although the argument raised by the SRC—that the absence of such orders would have a deterrent effect on future reports—is relevant, the Court finds that it remains insufficient in the absence of concrete evidence of a “systemic risk” to the process or a demonstration of objectively discernible harm[5] . In this case, the SRC has not demonstrated that revealing the identities of the witnesses in the proceedings constitutes a serious prejudice to the protection of its Whistleblower Mechanism.
Finally, regarding privacy, the Court of Appeal concluded that the arbitrator was entitled to find that there was no risk of an infringement on dignity resulting from the disclosure of highly sensitive information.
Key Takeaways
The Court of Appeal reiterates that protecting the integrity and credibility of whistleblower mechanisms established by employers is an important public interest, particularly given their role in preventing workplace harassment. However, to derogate from the principle of open court proceedings, it is necessary to present concrete and contextualized evidence of a serious risk arising from the disclosure of the identities of witnesses or participants in an investigative process. Such evidence, according to the Court of Appeal, will be easier to establish in highly sensitive situations such as sexual harassment or sexual violence. In such situations, it is in an employer’s best interest to consider orders of non-disclosure, non-publication, non-broadcast, and closed-door proceedings to protect the privacy of victims and, more broadly, its complaint mechanism.
