FPSLREB Decisions

I. Issue before the Board

1 The Canada Revenue Agency (“the Agency”) and Larry Hillier, the Agency’s assistant commissioner for the Ontario region (“the respondents”), assert solicitor-client privilege regarding a document that Rudy Moreno Quadrini (“the complainant”) seeks to have disclosed in the context of a hearing on his unfair-labour-practice complaint. Citing the decision of the Supreme Court of Canada in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (the “Blood Tribe” decision), and other case law, the respondents assert that the Public Service Labour Relations Board (“the Board”) does not have the authority to satisfy itself that the document sought by the complainant is subject to a solicitor-client privilege and that the Board cannot order its disclosure.

2 The hearing of the complaint on the merits was adjourned during its evidence phase pending the resolution of the solicitor-client privilege issue. Shortly after the adjournment, the Board requested written submissions from the parties on the following two questions:

1. In the context of a complaint filed under section 190 of the Public Service Labour Relations Act, does the Board have the authority to satisfy itself that a document is subject to a solicitor-client privilege?
2. If the answer to question 1 is in the affirmative, what procedure should the Board follow in order to satisfy itself that a document is subject to a solicitor-client privilege?

3 These reasons address those two questions.

II. Background

4 The complainant was formerly an employee of the Agency. In 2004, he resigned his position as part of the mediated settlement of a grievance against the termination of his employment by the Agency for alleged misconduct. Several years later, the Agency concluded an agreement with the Ontario Ministry of Revenue (“the OMoR”) — the complainant’s subsequent employer — to transfer positions in its corporate tax function to the Agency. The complainant’s position with the OMoR was identified as one of a number of positions that would be directly affected by the transfer. On September 13, 2007, Mr. Hillier wrote to the complainant on behalf of the Agency to inform him that it would not be offering him a position as part of the transfer (Exhibit R-1, tab 3).

5 On November 14, 2007, the complainant filed a complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”), S.C. 2003, c. 22, alleging a breach of the prohibitions stated in subparagraphs 186(2)(a)(iii) and (iv). He maintained that the respondents committed an unfair labour practice by refusing to hire him for having earlier exercised the right to grieve, to refer his grievance to adjudication and to engage in mediation.

6 The respondents objected to the Board’s jurisdiction to hear the complaint. In the alternative, they submitted that the complaint “… [did] not make out a prima facie case for a violation of the Act, and further, that it should be dismissed under s. 40(2) as frivolous and vexatious.”

7 The Chairperson of the Board appointed me as a panel of the Board to hear and determine the matter. In Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37, I found that the complainant had made out a prima facie case for the alleged unfair labour practice, ruled against the respondents’ objection to the Board’s jurisdiction and ordered that a hearing proceed on the merits.

8 The hearing opened on November 25, 2008, continued on November 26 and 28, 2008, and reconvened from May 12 to 15, 2009. On May 15, 2009, the complainant referred to “pages 000007 to 000011” as having been removed from a document that he had received as the result of an access-to-information request (Exhibit C-40). The Agency’s Access to Information and Privacy (ATIP) Directorate explained the removal of those pages as follows:

…

These areas have been exempted from disclosure under sections 26 and 27 of the [Privacy] Act. These provisions authorize the Agency to exempt from disclosure personal information about another individual and information that is subject to solicitor-client privilege… .

…

9 Section 27 of the Privacy Act, R.S.C. 1985, c. P-21, provides as follows:

27. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege.

10 The complainant asked me to order the respondents to disclose pages 000007 to 000011 because they could contain information that might be relevant to, or challenge the credibility of, the respondents’ defence against his complaint. The complainant argued that he had previously tried unsuccessfully to question witnesses for the respondents about the legal basis for their decision not to extend an offer of employment to him. Should pages 000007 to 000011 include a legal opinion, he maintained that it could be vital to his case and that he was entitled to receive the document as a matter of procedural fairness.

11 The respondents stated that they did not have the pages in question at the hearing. However, on the basis of the explanation provided by the ATIP Directorate, they asserted that I should not order disclosure of the pages because they included content subject to solicitor-client privilege.

12 After hearing the parties, I ordered the respondents to produce the pages for my private examination so that I could verify their nature and determine whether they might be subject to a claim of solicitor-client privilege. The respondents objected that I was not entitled to do so given the Supreme Court’s decision in Blood Tribe.

13 I modified my order for the production of the document to specify that it would be held by the Board under seal pending consideration of the respondents’ objection. I then adjourned the hearing.

III. Written submissions

14 The respondents filed written submissions on June 16, 2009, and the complainant replied on July 6, 2009. The Board received the respondents’ rebuttal on July 10, 2009.

15 The complainant’s submission of July 6, 2009 includes, as “background,” arguments in support of his complaint as well as comments on the proceedings to date. On July 12, 2009, the complainant also filed with the Board a further unsolicited submission accompanied by an attached document entitled: “Employee’s common law freedom of choice.” For the purpose of this interim ruling, the Board has considered only those sections of the complainant’s document of July 6, 2009 that address the questions stated at paragraph 2 of this decision.

A. For the respondents

16 The respondents maintain that the complainant has not questioned the validity of their claim to solicitor-client privilege. The complainant requested the production of legal advice that management obtained in relation to his situation. Therefore, the respondents submit that the validity of their claim to solicitor-client privilege must be presumed. The only issue before the Board is whether the complainant has met the threshold to invoke an exception to the privilege. The respondents contend that he has not done so and that their objection ought to be sustained.

17 In the alternative, and in response to the first question posed by the Board, the respondents submit that the Board has no authority under the Act to pierce the veil of solicitor-client privilege, even where the validity of the claim is put in question. The appropriate forum to assess the validity of a claim to solicitor-client privilege is the superior court of a province or the Federal Court.

18 If the respondents’ position on the first question posed by the Board is incorrect, they argue in response to the second question that the validity of a claim to solicitor-client privilege ought to be assessed by the Chairperson of the Board or by a Vice-Chairperson of the Board appointed by the Chairperson. The assessment should not be made by the Board Member seized with hearing the matter in which the dispute arose.

1. Does the Board have the authority to satisfy itself that a document is subject to a solicitor-client privilege?  

19 The Board is a statutory administrative tribunal created under the Act. Established by statute, the Board has only those powers conferred on it by statute: Sara Blake, Administrative Law in Canada, 4th ed., 2006, chapter 4, at 117.

20 Statutory administrative bodies, like the Board, are part of the executive branch of government by virtue of being created by a statute to further the executive mission. The executive branch delegates some of its powers to administrative bodies. By contrast, courts are part of the judicial branch, which enjoys independence under the Constitution Act, 1867: Blake, chapter 4, at 142.

21 In the context of this complaint, the Board’s powers are found principally in section 36 and subsection 40(1) of the Act. It is within those general provisions that any authority to pierce the veil of the solicitor-client privilege must be anchored. The relevant provisions read as follows:

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

…

40.(1) The Board has, in relation to any matter before it, the power to:

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

…

(e) accept any evidence, whether admissible in a court of law or not

…

(h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant; 

…

22 There is no clear and explicit authority conferred on the Board in those provisions to examine documents protected under solicitor-client privilege. As such, the respondents submit that the Board cannot go beyond the powers established by the enabling statute.

23 There is ample judicial authority in support of the respondents’ position. In Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, the Supreme Court held that statutory abrogation of solicitor-client privilege required clear and express language. The Supreme Court considered the language of section 10 of the Ontario Judicial Review Procedure Act, R.S.O. 1990, c. J.1, which mandates that a tribunal transmit its “record of the proceedings” to the court when a judicial review application is launched. The Supreme Court concluded that that provision was not broad or specific enough to included privileged documents such as the legal opinion at issue. More importantly, the Court held as follows:

…

33 Legislation purporting to limit or deny solicitor-client privilege will be interpreted restrictively: see Lavallée, supra, at para. 18. Solicitor-client privilege cannot be abrogated by inference. While administrative boards have the delegated authority to determine their own procedure, the exercise of that authority must be in accordance with natural justice and the common law.

…

[Emphasis added]

24 In Blood Tribe, the Supreme Court considered legislative language that is similar to section 40 of the Act. The Supreme Court held that, relying on Pritchard and Lavallée, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, generalized provisions were not sufficient to give the Privacy Commissioner the authority to compel the production of privileged documents under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5(PIPEDA). The Supreme Court, in Blood Tribe, stated as follows:

…

21 I do not accept the validity of the analogy between the Privacy Commissioner and a court in this respect. The Privacy Commissioner is a stranger to the privilege. She argues that because of her independence from the parties her adjudication of a claim of privilege would not be an infringement of the privilege. I do not agree. Client confidence is the underlying basis for the privilege, and infringement must be assessed through the eyes of the client. To a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement of the confidentiality. The objection is all the more serious where (as here) there is a possibility of the privileged information being made public or used against the person entitled to the privilege … While s. 12 gives the Privacy Commissioner some court-like procedural powers, she is not a court of law. The words of s. 12(1)(a) confer a power to compel production of any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record… .

This amounts to a general production provision. In Pritchard, the Court dismissed a similar argument concerning s. 10 of the Ontario Judicial Review Procedure Act. We held that a general production provision that does not specifically indicate that the production must include records for which solicitor-client privilege is claimed is insufficient to compel the production of such records (Pritchard, at para. 35). On the other branch of her argument, the Privacy Commissioner points out that s. 12(1)(c) permits her in the course of exercising her powers of investigation to

12.1(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law… .

The authority to receive a broad range of evidence cannot be read to empower the Privacy Commissioner to compel production of solicitor-client records from an unwilling respondent… .

…

[Emphasis added]

25 In Smith v. Jones, [1999] 1 S.C.R. 455, at paras 44 and 45, the Supreme Court affirmed that solicitor-client privilege is a principle of fundamental importance in the administration of justice and that it is the highest privilege recognized by the courts: see also Solosky v. The Queen, [1980] 1 S.C.R. 821, at 836. In Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860, at 894, the Supreme Court stated that the scope of the privilege was related “… to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.”

26 In Smith,the Supreme Court underlined the fact that solicitor-client privilege is not absolute; it is subject to exceptions but only in very limited circumstances (such as the public safety exception). The privilege should yield only in the most clearly defined circumstances and, while not absolute, it must be treated as being as close to absolute as possible to ensure public confidence and to retain its relevance: Hubbard et al., The Law of Privilege in Canada, 2009, at para 11.190. To date, only three exceptions to the exclusion of evidence through solicitor-client privilege have been recognized, described as follows by Hubbard et al.:

…

• where the information subject to privilege may prevent an accused person from defending him or herself fully, that is, where the innocence of the accused is at stake;
• where the communications between solicitor and client are criminal communications; and
• where the safety of members of the public is at risk and a breach of solicitor-client privilege may prevent harm.

…

27 In Goldman, Sachs & Co. v. Sessions, [1999] B.C.J. No. 2815 (QL), the British Columbia Supreme Court considered the application of an exception to solicitor-client privilege in the civil context. In that case, the privileged information was sought in support of a claim for the tort of abuse of process. The decision found that professional legal communications obtained to facilitate an abuse of process are not protected by solicitor-client privilege and that “… privilege does not apply because it is no part of a solicitor’s professional duties to counsel a client to misuse the court’s process for improper purposes.” To succeed in an application for the production of solicitor-client privileged information, the following test was outlined in Goldman, Sachs & Co.:

…

19  I turn, now, to what must be shown by the defendants to succeed on this application.

20  The defendants' burden is described in Pax Management Ltd. v. C.I.B.C. (1987), 14 B.C.L.R. (2d) 257 (C.A.) at pp. 265-66, where Wallace J.A., speaking for the Court, adopted the reasoning of Viscount Finlay in O'Rourke v. Darbishire, supra, at p. 604, that there must be more than a mere allegation — there must be "something to give colour to the charge", that is, "some prima facie evidence that it has some foundation in fact." He identified the proper approach in this passage:

I have concluded that the plaintiffs have specifically pleaded fraudulent misrepresentation and that the surrounding circumstances, as revealed by the affidavits filed in support of the application, satisfy me that the claim is honestly advanced and has sufficient credence to justify exercising the Court's discretion to disallow the privilege so that all relevant material is before the Court when resolving this very serious allegation.

21 Accordingly, it is not necessary for the court to weigh conflicting evidence and to make findings of fact on an application such as this. Rather, the court must examine the applicant's case in the light shed by all of the evidence and the surrounding circumstances to determine if it "gives colour to the charge."

…

28 The respondents submit that the complainant’s reasons for requesting the disclosure of privileged information do not fall within any of the noted exceptions.

29 The Ontario Labour Relations Board (OLRB) recently considered its authority to compel the production of documents subject to a claim for solicitor-client privilege in order to examine the validity of the claim to privilege. In Carpenters & Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America v. Proplus Construction & Renovation Inc., 2008 CanLII 65158 (ON L.R.B.) (the “Proplus Construction” decision), the OLRB concluded that it had jurisdiction to determine all questions of fact or law that arise in any hearing before it and that, therefore, the ruling in Blood Tribe was not applicable to it.

30 The respondents maintain that Proplus Construction is not a precedent for the Board. Furthermore, the decision can be distinguished on two main grounds. First, the statutory regime for the OLRB is markedly different from the statutory regime under the Act. For example, subsection 114(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (OLRA), specifically confers jurisdiction on the OLRB to “… determine all questions of fact or law that arise in any matter before it … ” There is no identical provision in the Act. Section 36 of the Act states that the Board “… may exercise the powers and perform the functions that are conferred or imposed on it by this Act or as are incidental to the attainment of the objects of this Act … ” Based on the Supreme Court decisions in Pritchard and Blood Tribe, the respondents submit that, while the language in the OLRA may satisfy the level of specificity required to allow a quasi-judicial tribunal to examine solicitor-client privileged documents, the language in the Act does not meet that level of specificity.

31 Second, the applicant in Proplus Construction was able to establish the necessity for the OLRB’s order. The facts in that case suggested that the respondent might have improperly claimed the solicitor-client privilege. For example, the respondent apparently refused to produce documents, such as the record of employees’ hours and pay stubs and other payroll documents. The OLRB was satisfied in the circumstances that there was a need to verify the claim for solicitor-client privilege. The OLRB noted as follows:

…

If the only documentation over which a claim for solicitor-client privilege is made consists of letters between the responding party and its lawyers, the documentation ought not to be produced to the applicants…

… The Board has no desire to make available to the applicants or its counsel any document in the possession of the responding party that is covered by solicitor-client privilege…

…

32 In this case, the complainant has not demonstrated that the respondents’ claim to solicitor-client privilege is a sham. To the contrary, he is requesting the production of solicitor-client privileged documents solely for the purpose of supporting his argument that the respondents violated subparagraphs 186(2)(a)(iii) and (iv) of the Act.

2. What procedure should the Board follow to satisfy itself that a document is subject to a solicitor-client privilege?    

33 The respondents submit that there is no need for the Board to make such a determination because the complainant has not established the necessary threshold for the Board to order the production of solicitor-client privileged documents. The complainant’s request implicitly acknowledges the validity of the claim to the privilege, thus rendering any such exercise by the Board moot.

34 In the alternative, should the Board decide that such a determination is necessary, the respondents submit that the proper procedure would be as follows:

1. First step in the process should be an assessment of the validity of the claim by way of reviewing a detailed and descriptive affidavit of the documents at issue;

2. Second step, should the first step prove unfruitful, the Board Chair or a Vice-Chair, be appointed to inspect and review the documents at issue; and

3. In any event, step 2 should not be carried out by the Board member or adjudicator seized of the matter in which the issue arose.

35 The two-step approach proposed by the respondents is consistent with the approach taken by the courts as in Pritchard, at paragraphs 17 and 18, that “… [the] privilege must be as close to absolute as possible to ensure public confidence and retain relevance …” and that “… it is jealously guarded and should only be set aside in the most unusual circumstances … ”The respondents also propose that the second step, if deemed necessary, must be carried out by a person other than the Board member seized of the matter to avoid the perception of bias.

36 In conclusion, the respondents ask that the Board uphold their objection to the complainant’s request for the production of documents.

B. For the complainant

1. Rebuttal to the respondents’ submissions

37 The complainant argues that the respondents’ submissions and authorities generally support his position. However, they ignore the “complaint” context in which the Board’s questions were posed. In many instances, the respondents refer to a “Board member or adjudicator” with no distinction. Given the different legislative schemes governing the various recourse mechanisms afforded under the Act, the answers to the questions posed by the Board might differ for a complaint made under Part 1 as opposed to a grievance filed under Part 2.

38 Since October 26, 2007, and before filing his complaint with the Board, the complainant has made repeated requests for information and documents from the Agency through their ATIP coordinator. When access to documents was refused, with exceptions cited under both sections 26 (personal information) and 27 (solicitor-client privilege) of the Privacy Act, the complainant asked the Agency for a list describing the nature of each document for which any privilege claim was made. No list was ever received. The respondents’ witness, Laurie Wallace, testified that such information was refused at the instruction of Mr. Hillier. The complainant then initiated a complaint with the Office of the Privacy Commissioner of Canada on November 2, 2007.

39 There are no remedies available for information improperly withheld under the Privacy Act, as echoed in Blood Tribe. For that reason, the complainant abandoned any and all requests and all complaints because the governing legislation has no teeth.

40 The documents that the complainant sought, and continues to seek, are relevant to determining the respondents’ authority, or the legal basis, if any, for deciding not to extend him a job offer. They are pivotal to the complainant’s case.

41 The complainant argues that the respondents’ objection to the production of the documents should be dismissed because they are required to come to court (or to the Board) with clean hands. They have not done so. They violated the complainant’s right under common law to choose the employer for whom he will work. They also violated the settlement agreement and the Human Resources Agreement (HRA) between the Agency and the OMoR. The communications in the documents sought by the complainant had the purpose of furthering illegal conduct in labour relations matters. The Board is specifically tasked to resolve labour relations disputes. It cannot facilitate and endorse illegal conduct.

42 Based on the content of the respondents’ submissions, the complainant maintains that the validity of their privilege claim is dubious. There is no clear indication that legal counsel or assistants were even involved. The respondents do not show that the author of the document acted in a professional capacity or that the advice sought was of a legal nature as opposed to a policy nature.

43 If the Board presumes the validity of the employer’s claim of solicitor-client privilege, the complainant maintains that the threshold to invoke the exceptions to a privilege claim has been met and that the Board should dismiss the respondents’ objection to the disclosure of the document.

44 The complainant argues that it is imperative, naturally just and only fair that he and the Board know whether the respondents’ refusal to make him a job offer was for reasons that are prohibited by the Act.

45 In the alternative, the complainant submits that the respondents construe the Act far too narrowly in assessing the Board’s authority with respect to a solicitor-client privilege claim, whether or not the claim’s validity is questioned.

46 Section 36 of the Act provides the Board not only with the discretion to exercise the powers and perform the functions conferred or imposed on it under the statute, but also those “… as are incidental to the attainment of [its] objects …” where powers and functions are unspecified in the Act. That grant includes the authority to make decisions in respect of any matter coming before it, even in unusual cases like the current complaint involving a divestment and the HRA. Even though it is only a general provision, it connotes far greater authority than that suggested by the respondents in light of the objects of the Act and its sections 13 and 14.

2. Complainant’s further comments on the questions posed by the Board

a. Does the Board have the authority to satisfy itself that a document is subject to a solicitor-client privilege?

47 The complainant submits that a textual, contextual and purposive approach to statutory interpretation suggests that the authority to pierce the veil of privilege may be gleaned from all the provisions in the Act, in addition to the general powers and functions granted to the Board under sections 36 and 40. The Board’s adjudicative powers are quite vast.

48 The complainant does not agree that the Supreme Court’s decision in Blood Tribe applies to the Board and limits its authority regarding solicitor-client privilege. Blood Tribe involved a complaint before the Privacy Commissioner of Canada, who had ordered the production of privileged documents pursuant to section 12 of the PIPEDA. That provision confers express statutory authority on the Commissioner to compel the production of any records that he or she considers necessary to investigate a complaint “… in the same manner and to the same extent as a superior court of record” and to “receive and accept any evidence and other information … whether or not it is or would be admissible in a court of law.”

49 In the complainant’s view, the Supreme Court applied appropriate principles of statutory interpretation to the general language of the PIPEDA and held that the right of the respondent in that case to keep solicitor-client confidences confidential must prevail. It held that express words are necessary in a statute to permit a statutory official to pierce the privilege. Such clear and explicit language does not appear in the PIPEDA. The complainant maintains that the same may not necessarily be true for the Act.

50 The Supreme Court also held that it is well established that general words in a statutory grant of authoritydo not confer a right to access solicitor-client privileged documents, even for the limited purpose of determining whether the privilege is properly claimed. It said that that role is reserved for the “courts” and made no distinction regarding adjudicative tribunals or the Board.

51 However, the complainant asserts that Blood Tribe can be distinguished for a number of reasons. First, the Act does confer adjudicative powers on the Board. It contains more specific language than the general language that appears in the PIPEDA. As such, the complainant contends that the Act grants the Board the power to access solicitor-client documents.

52 Unlike the Board, the Privacy Commissioner is not mandated to occupy a position of independence and authority, to adjudicate as a court or to make orders. The Supreme Court stated in Blood Tribe as follows:

…

An adjudication of a claim of privilege by the Commissioner, who is an administrative investigator not an adjudicator, would be an infringement of the privilege.

…

[Emphasis added]

53 In contrast, the Board Member does act in this complaint as an adjudicator. The Supreme Court stated at paragraph 22 of Blood Tribe as follows:

… a court’s power to review a privileged document in order to determine a disputed claim for privilege does not flow from its power to compel production. Rather, the court’s power to review a document in such circumstances derives from its power to adjudicate disputed claims over legal rights. The Privacy Commissioner has no such power.

[Emphasis added]

54 In pursuit of its mandate, the Board, similar to a court, is never adverse in interest to the party whose documents are sought to be compelled for production, as was the Privacy Commissioner in Blood Tribe.

55 If the Board chooses not to exercise its authority to pierce a solicitor-client privilege claim, it has the option of referring the issue to the courts via subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7.

56 With respect to the three recognized exceptions to the exclusion of evidence through solicitor-client privilege, the complainant submits as follows:

Ø If the shift of the ordinary burden of proof to the respondents in this case has no impact on the position of the parties regarding the exceptions test:

1. The purportedly privileged information may prevent the accused respondents from full answer and defence and as such, their innocence is at stake. If that is the case, privilege must be overridden to provide full disclosure in order to afford a proper defence;
2. Albeit not criminal, the communications have the purpose of furthering illegal acts. They likely have the same gravity as in a criminal matter before a court and, as such, privilege must be overridden to avoid aiding them; and,
3. Public safety may be relaxed to the level envisioned by the objects of the Act. In this light, the safety of the labour relations community is at risk and therefore, the privilege should be overridden to prevent harm.

Ø If the shift of the burden of proof to the respondents in this case does impact the position of the parties regarding the exceptions test:

1. Privilege should be overridden to provide the complainant with the opportunity to provide full answer and defence. The letter of September 13, 2007, and the employer’s internal email communications leading up to it, suggest that the documentation is necessary to fully establish my complaint;
2. Albeit not criminal, the communications may establish that the respondents conducted illegal acts or relate to evidence alleged to be a sham;
3. Protection of the public is paramount under the Act. Breaches of settlement agreement confidentiality and release clauses by the government are not in the best public interest of harmonious labour relations, especially when it takes reprisal action. Based on the illegal acts alleged above, any legal advice obtained in this matter would arguably have facilitated abuse of process, abuse of authority and harassment.

57 In any of the foregoing situations, privilege must be overridden. The complainant maintains that his reasons for requesting disclosure fall within the three recognized exceptions.

58 In response to the respondents’ comments about Proplus Construction, the complainant has already submitted that the Act’s objects and provisions meet the level of specificity necessary to empower the Board with the requisite authority. Therefore, it does not matter whether Proplus Construction binds the Board. The Board consults labour arbitration cases in other jurisdictions, if not for precedents, then for guidance.

b. What procedure should the Board follow in order to satisfy itself that a document is subject to a solicitor-client privilege?

59 The complainant submits that it is unnecessary to answer the Board’s second question because there is clearly no privilege in this case.

60 If the Board decides to the contrary, it may make the determination itself given its specific mandate to adjudicate matters or it may refer the matter to the Federal Court.

61 If the Board decides to make the determination itself, the complainant accepts that the Board may use the first step of the two-step approach proposed by the respondents, with one addition. The Board Member should apply section 50 of the Act to have the Chairperson engage, on a temporary basis, the services of an expert (that is, a labour lawyer) to assist him in an advisory capacity to carry out the required examination.

C. Respondents’ rebuttal

62 In response to the complainant’s argument that the Board must overrule the respondents’ objection to disclosure because of the latter’s alleged illegal conduct, the respondents maintain that the complainant has not met the threshold for invoking the exceptions to a claim for solicitor-client privilege.

63 The essence of the complainant’s position is that the Agency violated the terms of the HRA concluded with the OMoR and the confidentiality terms of the settlement agreement between the complainant and the Agency as well as his “… common law right to choose one’s employer.” The respondents submit that those allegations do not meet the test set forth in Goldman Sachs & Co. As stated by the Supreme Court in Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, records subject to a claim of solicitor-client privilege may be ordered disclosed only where absolutely necessary, which is a test just short of absolute prohibition. The complainant has failed to make a case that disclosure is absolutely necessary.

64 Contrary to the complainant’s position, there has been no violation of the HRA. The Agency has not acted illegally as alleged. In any event, it is beyond the jurisdiction of the Board to make any determination involving rights, duties and obligations under the HRA.

65 Second, there is no evidence that the Agency has violated the confidentiality provisions of the settlement agreement signed with the complainant on October 13, 2004. In fact, the Privacy Commissioner clearly found to the contrary in a ruling dated November 20, 2008 on a complaint filed by the complainant.

66 Third, the nature of the “… common law right to choose one’s employer” asserted by the complainant in the context of the present proceedings is not clear. However, the corollary of any such right would be the right of the employer to choose whom it wishes to hire. In the current case, the Agency has made it patently clear that it does not wish to have the complainant as an employee for reason of his past misconduct. Mr. Hillier and Anne Ross were cross-examined at length on that issue, and both clearly indicated that it was the Agency’s intent to completely and finally sever its employment relationship with the complainant.

67 The respondents submit that the Board does not need to know what legal advice the employer sought or obtained to determine the complaint. It must determine the merits of this complaint solely on the basis of the facts, the evidence and the law.

68 The respondents respectfully request that their objection be upheld.

IV. Reasons

69 I wish to preface these reasons by stating that I do not, and cannot, take any issue with the proposition that the protection of solicitor-client privilege is a matter of paramount importance. While the case law recognizes that there are exceptions to the operation of the privilege, those exceptions are limited. It is the clear responsibility of a decision maker to accord the highest level of respect to the privilege where it is validly established. This decision is not about the role or importance of that privilege. It is only about the Board’s authority to inquire into the bona fides of a claim of solicitor-client privilege and how to do so.

70 The respondents maintain in the first instance that the complainant has not questioned the validity of their claim to solicitor-client privilege. On that basis, they argue that there is no need for the Board to proceed further to consider submissions on the two questions that it posed to the parties. I disagree.

71 The complainant’s request for the disclosure of pages 000007 to 000011 of Exhibit C-40 made the status of those pages an issue before the Board. The nature of the respondents’ objection to the request transformed that issue into a question of jurisdiction. The evidence indicates that the complainant received an explanation from the Agency’s ATIP Directorate that section 27 (solicitor-client privilege) of the Privacy Act applied to prevent the disclosure of the redacted pages. With that knowledge, he nonetheless persisted before the Board in his efforts to secure their disclosure, itself an indication that he was not fully satisfied with the explanation provided to him. While there is no doubt that the complainant understands that the document that he seeks may be a legal opinion, I do not believe that the evidence is sufficient, on balance, to conclude that he has agreed that the opinion is subject to a valid claim of solicitor-client privilege and that the only remaining issue is the existence of grounds for an exception. His comments at the hearing and his subsequent written submissions have satisfied me that the validity of the claim of the privilege is itself a live issue in his mind, as is the question of grounds for an exception posed in the alternative.

72 Therefore, I find that the validity of the respondents’ claim to solicitor-client privilege — and the underlying question of jurisdiction that has emerged — are matters properly before the Board and that this analysis should proceed to the two questions posed to the parties. I believe that it is necessary and important to answer those questions, both for the immediate purpose of this case and also as a jurisdictional matter of general interest to the labour relations community governed by the Act.

A. In the context of a complaint filed under section 190 of the Act, does the Board have the authority to satisfy itself that a document is subject to a solicitor-client privilege? 

73 The Board’s authority to order disclosure of a document is explicitly stated in paragraph 40(1)(h) of the Act as follows:

40. (1) The Board has, in relation to any matter before it, the power to

…

(h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

Exercise of the Board’s authority under that paragraph to compel disclosure is subject to it being satisfied that the document or thing “… may be relevant.” In the situation that arose at the hearing, I was unable to rule on the possible relevance of pages 000007 to 000011 because of the uncertainty about the exact nature of their contents. For the purpose of these reasons, I must assume their potential relevance.

74 The respondents’ argument that the Board lacks the authority to inquire into the validity of a claim of solicitor-client privilege rests firmly on their understanding of the direction provided by the Supreme Court in several decisions, most recently in Blood Tribe. The determination that I must make here is the first where the Board has been called on to consider whether, or to what extent, the decision in Blood Tribe impacts on its authority. The issue posed by the respondents’ objection is certainly important. If sustained, their position would have the effect of limiting the Board’s authority to exercise the powers given to it by the legislator under paragraph 40(1)(h) of the Act (or elsewhere)in circumstances where a question of solicitor-client privilege arises.

75 The Board, the adjudicators under the Act and the decision makers under the former Public Service Staff Relations Act, R.S., 1985, c. P-35, have rarely recorded a formal ruling about a claim of solicitor-client privilege. An exception is found in Beaulne v. Public Service Alliance of Canada, 2009 PSLRB 10, at para 50, where the adjudicator ruled that solicitor-client privilege applied to a document outlining the legal fees that a complainant had incurred in consulting counsel about his complaint. It is nonetheless my understanding that Board members and adjudicators have routinely ruled orally on claims of solicitor-client privilege in decisions about the production of evidence, without challenge. Do Blood Tribe and other case law preclude such rulings, as the respondents urge?

76 The following “Court Summary” accompanying the Blood Tribe decision describes the history of that case before the Supreme Court’s ruling:

…

Following her dismissal, an employee asked to have access to her personal employment information because she suspected that the employer had improperly collected inaccurate information and used it to discredit her before its board. The employer denied the request, and the employee filed a complaint with the Privacy Commissioner seeking access to her personal file. The Commissioner requested the records from the employer in broad terms. All records were provided except for those over which the employer claimed solicitor-client privilege. The Commissioner then ordered production of the privileged documents pursuant to s. 12 of the Personal Information Protection and Electronic Documents Act ("PIPEDA"), which confers the powers to compel the production of any records "in the same manner and to the same extent as a superior court of record" and to "receive and accept any evidence and other information … whether or not it is or would be admissible in a court of law". The employer applied for judicial review of the Commissioner's decision. The reviewing judge determined the Commissioner was empowered to compel production of documents over which solicitor-client privilege was claimed in order to effectively complete her statutory investigative role. The Federal Court of Appeal set aside the decision of the reviewing judge and vacated the Commissioner's order for production of records.

…

77 In Blood Tribe, the Supreme Court upheld the decision of the Federal Court of Appeal. It based its ruling on an examination of the specific authorities granted to the Privacy Commissioner by the PIPEDA. It identified several areas of concern in the language of the statute that, taken together, led it to conclude that the Privacy Commissioner may not rule on a claim of solicitor-client privilege.

78 One of the areas of concern about the PIPEDA reasonably applies as well to the Board’s enabling statute. However, taking other critical elements of the analysis in Blood Tribe into account, I cannot accept that the Supreme Court’s finding about the Privacy Commissioner’s lack of authority applies to the Board. On balance, I believe that the Board’s nature and functions under the Act clearly distinguish it from the Privacy Commissioner. The differences between the two entities provide sufficient reason to distinguish the Blood Tribe decision and to find that the Board, unlike the Privacy Commissioner, does have the authority as a quasi-judicial tribunal to satisfy itself about the validity of a claim of solicitor-client privilege.

79 I turn first to the Supreme Court’s concern that commonly applies to the PIPEDA and to the Act. That concern comprises the principal foundation for the respondents’ objection in this case — the absence of an explicit statutory provision establishing the authority to rule on solicitor-client privilege.

80 Early in Blood Tribe (at paragraph 11), the Supreme Court emphasizes that “… [o]pen-textured language governing production of documents will be read not to include solicitor-client documents: Lavallée, at para. 18; Pritchard, at para. 33 [emphasis in the original].” The Supreme Court then observes as follows:

…

18.  It is common ground that PIPEDA does not expressly grant to the Privacy Commissioner the power to review documents in respect of which solicitor-client privilege is claimed — either to verify the privilege claim, or for any other purpose. The question is thus whether the legislation implicitly grants that power.

…

[Emphasis in the original]

81 The Supreme Court proceeds to find that there is also no provision in the PIPEDA that implicitly grants the Privacy Commissioner the authority to review documents that are subject to a claim of solicitor-client privilege. It rejects both paragraphs 12(1)(a) and (c) as insufficient for that purpose. Those provisions read as follows:

12. (1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

…

(c)receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

82 The Supreme Court characterizes paragraph 12(1)(a) of the PIPEDA as a “general production provision” that does not cover records for which a solicitor-client privilege is claimed. It finds that paragraph 12(1)(c) empowers the Privacy Commissioner to receive a broad range of evidence but not to compel production of solicitor-client records. In summary, and referring once more to Pritchard, the Supreme Court in Blood Tribe concludes that the “… very generality of the language of s. 12, which does not advert to issues raised by solicitor-client privilege … [emphasis in the original]” signals Parliament’s intent not to give the Privacy Commissioner the power to abrogate the privilege.

83 The language that appears in paragraphs 40(1)(a),(e) and (h) of the Act, as follows, is quite similar to the provisions of the PIPEDA reviewed by the Supreme Court:

40. (1) The Board has, in relation to any matter before it, the power to

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

…

(e) accept any evidence, whether admissible in a court of law or not;

(h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

Given the Supreme Court’s analysis in Blood Tribe, and in view of its earlier findings in Pritchard, it seems evident that it would not find in paragraphs 40(1)(a),(e) and (h) the type of clear language that would explicitly authorize the Board to inquire into the validity of a claim of solicitor-client privilege. As argued by the respondents, I believe that the Supreme Court would have the same concern about the general statement of the powers and functions of the Board found in section 36 of the Act. It reads as follows:

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

To be sure, there is no provision elsewhere in the Act that explicitly addresses the issue of the privilege. Whether section 36 or subsection 40(1) or other provisions of the Act implicitly found an authority to rule on solicitor-client privilege is a different matter.

84 The very fact that the Supreme Court asks whether the PIPEDA implicitly grants the power to determine claims of solicitor-client privilege indicates that the absence of an explicit granting provision is not sufficient reason to rule that that power does not exist. The analysis in Blood Tribe is considerably more textured. The Supreme Court states that there is always a need to view provisions “… in their different statutory contexts …” (at paragraph 26). In my view, it directs us to a further, crucial element of the analysis when it states the following:

…

22 In any event, a court's power to review a privileged document in order to determine a disputed claim for privilege does not flow from its power to compel production. Rather, the court's power to review a document in such circumstances derives from its power to adjudicate disputed claims over legal rights. The Privacy Commissioner has no such power.

…

85 Here lies the crux of the matter. Dismissing the argument that the Privacy Commissioner’s power to compel the production of documents is analogous to the authority exercised by a court, the Supreme Court in Blood Tribe stresses (at paragraph 20) that the Privacy Commissioner under the PIPEDA “… is an administrative investigator not an adjudicator.” For a party asserting a claim to solicitor-client privilege who relies on the confidentiality of the privileged communications, the Supreme Court states that “… compelled disclosure to an administrative officer … would constitute an infringement of the confidentiality [emphasis added]” (at paragraph 21). Critically, the Supreme Court finds that the Privacy Commissioner lacks the independence and impartiality of a court. Her lack of independence and impartiality is marked by the major distinction “… that in pursuit of her mandate the Privacy Commissioner may become adverse in interest to the party whose documents she wants to access” (at paragraph 23). For the Supreme Court, she is a “stranger” to solicitor-client privilege (at paragraph 21).

86 The Supreme Court’s observations about the nature of the Privacy Commissioner’s mandate and about her lack of independence and impartiality place in crucial context its other comments about the absence of a provision in the PIPEDA about solicitor-client privilege. The lack of such a provision in the PIPEDA is a particularly acute concern because the Privacy Commissioner is an administrative entity without adjudicative responsibilities. Following the Supreme Court’s case law, to invest an administrative officer who has no adjudicative role with a power associated with courts and court-like tribunals that do exercise impartial adjudicative functions would undoubtedly require an explicit grant of statutory authority by Parliament.

87 In contrast to the Privacy Commissioner, the Board is a quasi-judicial tribunal. It is mandated by Parliament under the Act to perform broad adjudicative responsibilities. It acts independently and impartially. At no time does the Board become adverse in interest to the parties that come before it. Those attributes place in an entirely different perspective the absence from the Act of specific language about solicitor-client privilege, as well as the intended scope of provisions such as section 36 and subsection 40(1).

88 The quasi-judicial character of the Board has long been accepted. The Supreme Court discussed criteria for determining whether an administrative body makes decisions on a judicial or quasi-judicial basis in Canada (Minister of National Revenue — M.N.R.) v. Coopers and Lybrand Ltd., [1979] 1 S.C.R. 495. The four criteria that it applied in that case were as follows:

…

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

…

89 All four criteria apply to the Board. The Act clearly contemplates that the Board hears the complaints and other matters that come before it, orally or based on written submissions. It makes decisions about the rights and obligations of persons, including rights under the Canadian Charter of Rights and Freedoms (“the Charter”). For thelatter purpose, it belongs to the class of dispute arbitrators that the Supreme Court considers to be courts of competent jurisdiction: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. Tribunals such as the Board may also award damages under subsection 24(1) of the Charter: Johnson-Paquette v. Canada , [1998] F.C.J. No. 1741 (QL). The Board’s processes are adversarial. It does not implement social and economic policy in a broad sense but, rather, applies legal principles to individual cases, observing the requirements of due process and natural justice. Like other similar adjudicative tribunals, it has a transcending duty to be fair and impartial: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

90 The Board’s powers under sections 36 and 40 of the Act, and elsewhere, must be interpreted in a fashion that is consistent with the legislative scheme as a whole — a scheme that gives the Board the character of a quasi-judicial decision maker. In my view, it would be inconsistent with the broad and encompassing nature of the Board’s adjudicative role under the Act to accept that, as a quasi-judicial tribunal, it can compel the attendance of witnesses at hearings, administer solemn oaths, order the disclosure of documents or things, rule on its own jurisdiction, decide diverse points of law, interpret the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and the Charter, order corrective action including damages, and order measures to ensure compliance with its rulings — among other powers — but at the same time to deny that it has the authority to satisfy itself as to the validity of a claim of solicitor-client privilege concerning a document that comes before it.

91 The respondents referred me to the recent decision of the OLRB in Proplus Construction. To my knowledge, it is the first decision in which a labour board has ruled on its authority with respect to claims of solicitor-client privilege in light of Blood Tribe. While the decision obviously does not bind this Board, I nonetheless believe that it has great persuasive value. The OLRB outlines its essential findings in the following paragraphs:

…

25. … The Privacy Commissioner is not an adjudicator, but an investigator. It would be problematic if an investigator had the authority to compel disclosure of documents that are subject to a solicitor-client privilege, because there is the possibility that the documents or their contents could be used by the investigator against the party claiming the privilege. In fact, the Court in Blood Tribe Department of Health specifically notes that a major distinction between the Privacy Commissioner and a court is that in pursuit of her mandate the Privacy Commissioner may become adverse in interest to the party whose documents she wants to access.

26. The circumstances are entirely different before the Board. The Board is not an investigator, and is not and will not become adverse in interest to the responding party. Although the Board is not a court of law, it is a quasi-judicial statutory tribunal that is responsible for determining all questions of fact or law that arise in any hearing before it …

27.   … The Board is responsible for verifying claims of privilege to ensure the integrity and proper functioning of its processes … the determination as to whether the documentation is covered by a legitimate solicitor-client privilege is for the Board to make at first instance.

…

92 The respondents propose to distinguish the Proplus Construction decision by arguing that the OLRB may only inquire into the validity of a claim of solicitor-client privilege because its enabling legislation contains a provision empowering it to “… determine all questions of fact or law that arise in any hearing before it.” The reference is to section 114(1) of the OLRA which reads as follows:

114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

93 I do not dispute that the words “… to determine all questions of … law …” are somewhat more direct and clear than a provision of the Act such as section 36. (Even at that, section 114(1) of the OLRA makes no explicit reference to solicitor-client privilege.) However, I disagree that the difference is determinative. I read the OLRB’s reasons for decision as being primarily based on the distinction between an investigative entity such as the Privacy Commissioner and one, like itself, with status as a quasi-judicial tribunal. It is its status as an adjudicative decision maker rendering decisions on a quasi-judicial basis that founds the OLRB’s authority to determine claims of solicitor-client privilege — an authority implicit to that status that is made explicit by section 114(1) of the OLRA. The Board under the Act shares the same status.

94 I note that the respondents also contend that the situation in Proplus Construction can be distinguished because the applicant in that case was able to establish the necessity for the OLRB’s order. Given the uncertainty about the contents of pages 000007 to 000011 of Exhibit C-40, I am not in a position to rule with certainty that the complainant has established the need for disclosure. However, that alleged difference has no real importance to a ruling about the underlying authority to determine claims of solicitor-client privilege.

95 Based on the foregoing analysis, I rule that the Board has the authority to satisfy itself that a document is subject to a solicitor-client privilege. The absence of an explicit provision in the Act granting that authority does not have the same significance that it had in the Supreme Court’s examination of the Privacy Commissioner’s powers under the PIPEDA in Blood Tribe. The Board acts as a quasi-judicial tribunal. The characteristics that make it a quasi-judicial tribunal distinguish it in fundamental ways from the Privacy Commissioner. As a quasi-judicial tribunal, the Board determines diverse questions of law up to, and including, questions that arise from constitutional and quasi-constitutional authorities. It is neither legally sound nor effective policy to hold that it cannot determine all classes of issues concerning the disclosure of evidence that come before it, including claims of solicitor-client privilege.

B. If the answer to question 1 is in the affirmative, what procedure should the Board follow in order to satisfy itself that a document is subject to a solicitor-client privilege? 

96 The complainant has agreed with the first step of the procedure proposed by the respondents, with one modification. The respondents describe the first step of the procedure as follows:

1. First step in the process should be an assessment of the validity of the claim by way of reviewing a detailed and descriptive affidavit of the documents at issue;

97 I accept the first step as proposed. The purpose of the affidavit is to provide the Board with sufficient information to establish the nature of the contents of pages 000007 to 000011 of Exhibit C-40 and the reasons those pages are subject to solicitor-client privilege. It is the respondents’ responsibility to produce the affidavit. The affidavit should be sworn by the solicitor who authored the communications for which the privilege is claimed. The complainant will have the opportunity to make submissions on the sufficiency of the affidavit at the hearing.

98 I dismiss as unnecessary the complainant’s proposal to modify the procedure by having “… the Chairperson engage, on a temporary basis, the services of an expert (that is, a labour lawyer) to assist [the Board] in an advisory capacity to carry out the required examination.” I suspect that the complainant makes his proposal given his knowledge that I am not a lawyer. That fact is irrelevant. I exercise the same authority possessed by all Board members — lawyers and non-lawyers alike — to make the determinations of law necessary to decide the cases assigned to them.

99 Should an examination of an affidavit not be sufficient to allow me to make a ruling, I will consider what further step(s) may be necessary at that time.

C. Exception to the claim of solicitor-client privilege 

100 I posed two questions to the parties, neither of which sought submissions on the merits of the claim of solicitor-client privilege at this time. The purpose of this interlocutory decision has been to determine the Board’s authority to satisfy itself as to the validity of such a claim, and how to do so, and not to rule on the claim itself.

101 The respondents opened a debate on the merits when they argued that “… the only issue before the Board is whether the complainant has met the threshold to invoke an exception to the privilege.” The complainant followed that lead and claimed that the grounds for an exception do exist.

102 As stated, it is not appropriate for me to rule on the existence of grounds for an exception at this time. The prior order of business will be to receive the affidavit from the respondents and to consider the complainant’s submissions on that affidavit. Should the complainant wish to argue that there are grounds for an exception, it will be his burden to prove those grounds on a balance of probabilities.

103 For all of the above reasons, the Board makes the following order:

V. Order

104 The respondents’ objection that the Board has no authority to satisfy itself as to the validity of a claim of solicitor-client privilege is dismissed.

105 The Registry of the Board will consult with the parties on appropriate dates to reconvene the hearing.

106 No later than 10 days before the hearing, the respondents will provide to the Board, and copy to the complainant, an affidavit sworn by their solicitor that clearly establishes the nature of the contents of pages 000007 to 000011 of Exhibit C-40 and the reasons they are subject to solicitor-client privilege.

107 The parties should be prepared to continue with all remaining phases of the hearing when the hearing reconvenes.

August 28, 2009.

Dan Butler,
Board Member