FPSLREB Decisions

I. Interim Award

1 This interim award deals with the Treasury Board’s (“the employer”) objection to the pre-hearing production of documents on the grounds of labour relations privilege.

II. Context

2 The grievor, Haiyan Zhang, filed a grievance against the termination of her employment on April 13, 2006 and another grievance against the cancellation of her Reliability status on April 18, 2006.

3 These grievances are linked with a first termination of the grievor’s employment on November 28, 2003, that she grieved and that led to the decision in Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173, rendered on December 8, 2005 by adjudicator Ian R. Mackenzie. The context of that decision is relevant to understanding the issues in dispute in this case. On November 28, 2003, Ms. Zhang was terminated from her position of Senior Analyst at the Privy Council Office as a direct consequence of the revocation of her Secret security clearance. In his decision, adjudicator Mackenzie ruled that, since the grievor still had a valid Reliability status, the employer had an obligation to search for an alternate position before terminating her employment, and he concluded that the employer had failed to discharge its obligation in that respect. Adjudicator Mackenzie ordered the following remedy:

…

76      I order that the employer conduct a diligent search for an alternate position for the grievor at an equivalent (IS-5) or lower level within the parts of the public service for which it is the employer, for a period of two months from the date of the decision.

77      I order the employer to reinstate Ms. Zhang in her leave with pay status effective November 28, 2003, until the employer has completed its search for an alternate position.

…

4 The termination of the grievor’s employment on April 13, 2006, followed the search, which was inconclusive. Following the termination of the grievor’s employment, the employer cancelled her Reliability status. In her grievances, the grievor alleges that the employer did not conduct a diligent search and that it terminated her employment without just cause. The grievor’s main contention is that the employer not only failed to conduct a diligent search but it also acted in bad faith and did not want her to secure another position within the public service.

5 Adjudicator Michele A. Pineau was initially appointed by the Chairperson of the Public Service Labour Relations Board (“the Board”) to hear the grievances. In a hearing held on March 18, 2008, the grievor sought an order for the pre-hearing production of documents. Adjudicator Pineau allowed the motion and ordered the following:

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…the employer is ordered to disclose to the grievor all the documents relevant to the above-noted grievances up to and including the date of the employer’s response at the final level of the grievance procedure [August 31, 2006] but excluding those documents that are subject to solicitor-client privilege. Where documents otherwise producible are redacted because of issues of confidentiality, the grievor may subsequently apply to the Board for a direction as to the disclosure of the redacted information. …

…

6 The employer provided several documents to the grievor’s representative but refused to provide some of the documents covered by the order for the production of documents on the grounds that the documents should remain confidential under labour relations privilege.

7 On October 8, 2009, the Chairperson of the Board reassigned the case and appointed me to hear Ms. Zhang’s grievances. 

8 The employer filed an objection to the adjudicability of the grievances challenging the termination of the grievor’s employment and the cancellation of her Reliability status. In Zhang v. Treasury Board (Privy Council Office), 2009 PSLRB 22, I decided to take the objection about the adjudicability of the grievance relating to the cancellation of the grievor’s Reliability status under advisement, and I dismissed the objection to the grievances challenging the termination. I also stated that the grievances against the termination of the grievor’s employment raised the following issues:

…

74      In conclusion, I reiterate that I consider that I am properly seized of the grievance and that this grievance raises the following issues:

• Did the employer conduct a diligent two-month search to find an alternate position for the grievor?
• Under the circumstances, was the grievor’s termination on April 13, 2006, for just cause?

…

9 On March 16, 2010, the parties were convened to a hearing to deal with the employer’s refusal to produce documents on the basis of an alleged labour relations privilege.

10 A hearing to deal with the merits of the grievances is scheduled for May 17 to 21, 2010.

11 The parties did not adduce evidence but provided oral submissions.

III. Summary of the arguments

A. For the employer

12 The employer opposes the production of some of the documents covered by adjudicator Pineau’s order (communications between labour relations officers or between labour relations officers and management representatives about the grievor between December 8, 2005 (adjudicator Mackenzie’s decision) and August 31, 2006) on the grounds that they are not relevant to the issue in dispute and that, in any event, they comprise written communications between representatives of the employer that should fall under the labour relations privilege.

13 Counsel for the employer explained that the documents at issue were all written communications between the Treasury Board and Privy Council labour relations officers or between Privy Council labour relations officers and Privy Council managers. He added that the communications were dated from January 2006 to July 2006 and stated that the majority of the documents post dated the filing of the grievance. With respect to the contents of the documents, counsel for the employer stated that all contents relate to discussions about the course of action to take with respect to the grievor in light of adjudicator Mackenzie’s order, including discussions relating to the grievor’s employment.

14 With respect to the relevancy of the documents, the employer contended that they reflect the thoughts of the labour relations officers and the managers, which are not at stake in these grievances. The employer contended that the grievances raise the question of whether it conducted a diligent search, not the question of the thoughts of the labour relations officers.

15 Although the employer asserted that the documents sought are not relevant, its counsel insisted that the real issue is their confidential nature. The employer contended that communications between labour relations officers, whether on the bargaining agent or the employer side, should be recognized as a class privilege, much in the same manner that arbitrators and adjudicators recognize that communications held during mediation or during the grievance procedure are privileged. Therefore, the employer suggested that all communications between labour relations officers and all labour relations communications within management relating to exchanging views or seeking or providing advice on matters that are litigious or potentially litigious should be protected from disclosure without the necessity of applying the Wigmore criteria to each case. The employer stressed that all communications made in the context of litigation, filed or looming, should be protected and that, in this case, there is no doubt that litigation was contemplated. The employer insisted that the same principle should apply equally to written and oral communications. 

16 The employer offered the example of solicitor-client privilege as an analogy and stressed the importance for the employer’s representatives to be able to engage in frank and candid discussions and to benefit from sound and frank advice before making decisions.

17 The employer submitted that considering that the communications between labour relations officers should be recognized as a class privilege, it would be inappropriate for me to review the documents to determine whether the Wigmore criteria are met, as it would equate to a de facto violation of the privilege and it would colour the evidence. The employer suggested that the same argument should apply to disclosing the documents to the other party. The employer also asserted that disclosing the documents, even for the purpose of determining if the privilege applies, would send a chilling message to the public service labour relations and management communities that they could no longer exchange their views and advice on employment or labour relations issues with the assurance that their communications would remain confidential. The employer added that any allegation that the employer would allegedly shield itself behind the privilege to refuse to disclose documents would rest with the Federal Court through the filing of the adjudicator’s order in Federal Court for enforcement purposes under section 234 of the Public Service Labour Relations Act.  

18 The employer concluded by arguing that, considering the nature of the communications at issue, the prejudice from disclosing the information outweighs any benefit from searching for the truth.

19 The employer relied on the following several authorities: Slavutych v. Baker, [1976] 1 S.C.R. 254; Owen Sound General & Marine Hospital v. Ontario Public Service Employees Union, Local 235 (1987), 27 L.A.C. (3d) 193; British Columbia (Ministry of Transportation and Highways) v. British Columbia Government Employees Union, Local 1103 (1990), 13 L.A.C. (4th) 190; Canadian Broadcasting Corp. v. Canadian Union of Public Employees (Broadcast Council) (1991), 23 L.A.C. (4th) 63; University of Manitoba v. University of Manitoba Faculty Association (1994),44 L.A.C. (4th) 226; New Vista Society v. British Colombia Nurses’ Union (1999), 79 L.A.C. (4th) 110; Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114; Air Canada v. Air Canada Pilots Association (2002), 113 L.A.C. (4th) 372; Hospital Employees Union v. Communications Energy and Paperworkers Union, Local 468 (2004), 132 L.A.C. (4th) 66; Centre for Addiction and Mental Health v. Ontario Public Service Employees Union (2004), 133 L.A.C. (4th) 178; Westfair Food Ltd. v. United Food and Commercial Workers, Local 401 (2005), 145 L.A.C. (4th) 82; Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8; St. Elizabeth Home Society v. Hamilton (2008), 89 O.R. (3d) 81; Privacy Commissioner of Canada v. Blood Tribe Department of Health, 2008 SCC 44; Stevens v. Canada, [1998] F.C.J. No. 794 (QL); Ayangma v. Treasury Board of Canada (Department of Health), 2006 PSLRB 64; Stevens v. Canada (Prime Minister), [1997] F.C.J. No. 228 (QL); and Attorney General of Canada v. Quadrini, 2010 FCA 47.  

B. For the grievor

20 The grievor offered a different view than that proposed by the employer. First, she contended that the Wigmore criteria need to be applied to determine whether the documents at issue ought to be declared privileged in the circumstances of this case and that there is no basis to conclude that a class privilege exists.

21 Second, the grievor submitted that it would be completely inappropriate for the employer to shield itself behind the alleged privilege without the adjudicator being able to review the documents to determine whether the Wigmore criteria are met. Therefore, the grievor stressed the need for me to either order the disclosure of the documents or review them before denying her request to access them.

22 The grievor submitted that, at the pre-hearing disclosure stage, the test to apply is the arguable relevancy of the documents sought. In this case, the grievor contended that the documents are not only arguably relevant but also that they are crucial to the determination of the grievances. The grievor contended that the documents relate to her main allegation that the employer did not conduct the diligent search ordered by the adjudicator and that it acted in bad faith. The grievor insisted that the obligation to conduct a search stemmed from Mr. Mackenzie’s order and that the central issue is whether the employer complied with that order. The grievor insisted that the documents sought are highly probative evidence and are key to the resolution of the dispute, and that, therefore, the benefit of disclosing them outweighs the benefit of protecting their confidentiality.  

23 The grievor insisted that refusing to disclose the documents would compromise the fairness of the adjudication process, as it would prevent her from making her case.

24 The grievor also contended that compromising the search for the truth by allowing the employer to shield itself behind a privilege and failing to have its conduct scrutinized would have a chilling effect on the labour relations community.   

25 The grievor relied on the following authorities: Toronto District School Board v. C.U.P.E., Local 4400, [2002] O.L.A.A. No. 992 (QL); Canada Post Corp. v. C.U.P.W. (1994), 43 L.A.C. (4th) 285; Maple Leaf Pork v. U.F.C.W., Local 175 (2002), 112 L.A.C. (4th) 97; University of Saskatchewan v. University of Saskatchewan Faculty Association (2002), 107 L.A.C. (4th) 115; Lakehead District School Board v. Canadian Union of Public Employees, Local 2486 (2001), 96 L.A.C. (4th) 315; Ontario (Ministry of Correctional Services) v. O.P.S.E.U. (1994), 39 L.A.C. (4th) 205; Malaspina University College v. Malaspina College Faculty Association (1996), 53 L.A.C. (4th) 93; Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (2005), 138 L.A.C. (4th) 58; Canada Post Corp. v. C.U.P.W. (1992), 27 L.A.C. (4th) 178; GDX Automotive, a division of GenCorp Canada Inc. v. United Steelworkers of America, Local 455 (2003), 116 L.A.C. (4th) 265; Northern Electric Co. Ltd. v. United Electrical Workers, Local 531 (1970), 1 L.A.C. (2d) 408; Globe and Mail v. Southern Ontario Newspaper Guild (1991), 19 L.A.C. (4th) 440; Provincial Health Services Authority v. P.E.I.U.P.S.E. (2005), 141 L.A.C. (4th) 53; Canada Post Corp. v. C.U.P.W. (1990), 16 L.A.C. (4th) 399; British Columbia v. British Columbia Government and Service Employees’ Union, 2005 BCCA 14; and Cromax Drywall Ltd. v. C.J.A., Loc. 675 (2004), 130 L.A.C. (4th) 353.

IV. Reasons

26 For the following reasons, I am satisfied that the documents in issue should be disclosed to the grievor.

27 I will first consider the question about the relevancy of the documents. In Canadian Labour Arbitration (4th edition), authors Brown and Beatty expose as follows the parameters to be applied to determine whether an order for production should be issued:

3:1400 Pre-hearing Disclosure

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… the requirements of natural justice require that one party not unfairly surprise the other, and accordingly, some arbitrators have required pre-hearing disclosure of information and documents that are necessary to enable a party to participate properly in the adjudicative process.

…

3:1420 Production of documents

The purpose of production of documents is somewhat different from the requirement that particulars be provided, in that production of documents assists a party in actually preparing its case, whereas particulars simply inform the other side of the case it will be required to meet… . 

3:1422 Ordering production

The basic criterion for ordering production of documents is a determination of whether they may be relevant to the issues in dispute. And in that regard, the test at the pre-hearing stage would appear to be either “arguably relevant” or “potentially relevant”.

…

28 In Toronto District School Board, arbitrator Owen Shime endorsed the well-established principle that a liberal view should be taken with respect to the production of documents at the pre-hearing stage. He expressed the following at paragraph 24:

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(iii) All documents which are arguably or seemingly relevant or have a semblance of relevance must be produced. The test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as to what may be relevant during the course of the hearing.

…

29 In Malaspina University College, the arbitrator stressed that “… whether the [documents sought] are in fact relevant and what weight [to] attach to them are not the issues at this stage…”

30 The main issues in dispute in these grievances relate to the employer’s compliance with the order to search for alternate positions. The search did not result in the grievor securing employment elsewhere in the public service, and the employer terminated the grievor at the end of the search period. The grievor’s main contention is that the employer did not comply with the order issued by adjudicator Mackenzie, namely, by not conducting a diligent search and by acting in bad faith. The grievor’s proposition is that, therefore, terminating her employment was not done for just cause, and cancelling her Reliability status was inappropriate. There is an a priori nexus between the documents sought and the grievor’s position on the merits of her grievances. In that context, I have no difficulty concluding that the documents sought, which could shed light on the employer’s conduct or intentions, are arguably relevant and that they should, in principle, be disclosed to the grievor. Therefore, I conclude that there is a rational link between the issues in dispute and the documents sought and that they meet the test of being arguably relevant.

31 I must now determine if the documents, despite being arguably relevant to the litigation, should not be disclosed because they are privileged.

32 The foundation of privileges and the conflict they raise with other countervailing policies is well illustrated as follows by Sopinka, Lederman and Bryant in The Law of Evidence in Canada, 3rd edition, at page 909:

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… On the one hand, there is the policy which promotes the administration of justice requiring that all relevant probative evidence relating to the issues be before the court so that it can properly decide the issues on the merits. On the other hand, there may be a social interest in preserving and encouraging particular relationships and activities that exist in the community at large, the viability of which are based upon confidential communications. Normally, these communications are not disclosed to anyone outside that relationship.

…

33 The employer suggests that labour relations communications within management about contentious matters, or potentially contentious matters, should be considered as a class privilege rather than a case-by-case privilege subject to the Wigmore criteria.

34 In R. v. Gruenke, [1991] 3 S.C.R. 263, the Supreme Court of Canada discussed as follows the difference between the two types of privileges, at page 286:

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Before delving into an analysis of the issues raised by this appeal, I think it is important to clarify the terminology being used in this case. The parties have tended to distinguish between two categories: a “blanket”, prima facie, common law, or “class” privilege on the one hand, and a “case-by-case” privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category (see: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 and Solosky v. The Queen, [1980] 1 S.C.R. 821). The term “case-by-case” privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (i.e., are admissible). The case-by-case analysis has generally involved an application of the “Wigmore test” (see above), which is a set of criteria for determining whether communications should be privileged (and therefore not admitted) in particular cases. In other words, the case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.

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[Emphasis in the original]

35 In that case, the Court was dealing with an alleged privilege for religious communications. In refusing to recognize a class privilege for those communications, the Court expressed the following at page 287:

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As I have mentioned, a prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible. Unless it can be said that the policy reasons to support a class privilege for religious communications are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications, there is no basis for departing from the fundamental “first principle” that all relevant evidence is admissible until proven otherwise.

…

36 To my knowledge, labour relations communications within management have never been recognized as a class privilege, and I consider that the Supreme Court’s comments about the religious communications should apply equally to labour relations communications. In that regard, I fail to see that “… the policy reasons to support a class privilege…” for communications between labour relations officers or between management representatives “ are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications …” in the circumstances of this case.

37 In Slavutych, the Supreme Court of Canada recognized that, apart from class privileges, the courts could recognize case-by-case privileges and that, to determine whether a communication should be privileged, the principles set out by the American professor Wigmore should serve as guidance. The four conditions of the Wigmore criteria are set as follows in vol. 8 of Wigmore on Evidence, 3rd ed., (McNaughton Revision, 1961), at paragraph 2285:

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(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

…

38 It has long been established that the party claiming privilege has the burden of establishing that all four criteria are met. It has also been recognized that the decision maker must apply the criteria and weigh the policy considerations at stake in considering the specific circumstances of each instance. As stated by the Federal Court of Appeal in Tower v. Canada (Minister of National Revenue - M.N.R.), 2003 FCA 307, at paragraph 39:

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Within this framework, policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in each case. Consequently, a principled approach to the question of case-by-case privilege should always be employed, taking into account each of the four factors, and the particular circumstances of each case…

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39 Discussing the balance that the decision maker must exercise in applying the fourth criterion, the Supreme Court expressed the following in A.M. v. Ryan, [1997] 1 S.C.R. 157:

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20      … First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting the truth and disposing correctly of the litigation.

…

29      The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation…

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31      These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.

32      At this stage, the court considering an application for privilege must balance one alternative against the other. The exercise is essentially one of common sense and good judgment. This said, it is important to establish the outer limits of acceptability. I for one cannot accept the proposition that “occasional injustice” should be accepted as the price of the privilege. It is true that the traditional categories of privilege, cast as they are in absolute all-or-nothing terms, necessarily run the risk of occasional injustice. But that does not mean that courts, in invoking new privileges, should lightly condone its extension…

33      It follows that if the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result…

39      In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case…

…

40 The employer suggested that, when a class labour relations privilege is claimed for management communications about pending or looming litigation, the adjudicator should not review the documents to determine whether the privilege applies. I disagree. The adjudicator has the responsibility to review the documents if he or she deems it necessary to determine whether the four conditions required to establish a case-by-case privilege are met. The above-mentioned principles adopted by the Supreme Court clearly indicate that the decision maker must consider the particularity of each case, which may well require the adjudicator to review the documents. However, in this case, I do not consider that I need to review the documents in order to rule on the objection to disclosure, as I find that the description of the documents made by the counsel for the employer is sufficient (communications between labour relations officers or between labour relations officers and management representatives about the grievor between December 8, 2005 (adjudicator Mackenzie’s decision) and August 31, 2006). 

41 I will now apply each of the four criteria to the circumstances of this case.         

1. The communications must originate in a confidence that they will not be disclosed

42 The employer did not present any evidence during the hearing and instead chose to make a general statement about the nature of the documents through its counsel. Counsel for the employer stated that the documents contain material between labour relations officers and management or between members of management discussing the grievor in light of Mr. Mackenzie’s order and the grievor’s employment in light of pending litigation. The grievor did not dispute that description. The descriptions given about the nature of the documents do not, by themselves, allow me to conclude with certainty that all the communications in the documents originated in the confidence that they would not be disclosed. To confirm that point, I would have needed to hear evidence from the authors of those communications. However, for the purpose of this ruling, I find it sufficient to conclude that it is more likely than not that the documents originated in the confidence that they would remain within the ambit of the employer. 

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties

43 With respect to the second criterion, I recognize that labour relations officers and management representatives need to be able to have open, frank and candid discussions about situations and elements that are contentious or potentially contentious. In that sense, I recognize that, if the actors in labour relations matters are afraid that their communications might be disclosed, they may be more cautious in their advice and might be hesitant to provide a frank point of view.

3. The relation must be one, which in the opinion of the community ought to be sedulously fostered

44 The first “community” interested in this case is the labour relations community on the employer side of the public service. However, I agree with the employer that the principle it seeks to advance regarding the confidential aspect of labour relations communications should equally apply to the communications between bargaining agents and the employees that they represent.

45 I also recognize the importance of those relationships and the importance that those actors be able to communicate in a free, open, frank and confidential manner. In that sense, I agree with most of the authorities referred to by the employer. However, it is essential to stress that in each of the decisions cited by the employer, the issues around disclosure were resolved on the merits of the specific factual circumstances of each case. 

46 For instance, I agree with the principles enunciated and the parallels made in British Columbia (Ministry of Transportation & Highways). The arbitrator expressed the following:

…

On analysis, it seems to me that both documents in this case should be protected. They were briefs used by a supervisor to explain how the decision was made not to promote the grievor. The first document was written the day after the grievance was initiated; the second document was written just over two weeks later. I would say, however, that I do not consider the timing to be crucial in these kinds of cases because a supervisor (or a shop steward) could be called upon to provide advice in anticipation of a grievance. That kind of communication would be as equally entitled to protection as one that happened to occur after a grievance is initiated. It would be wrong to assume that a communication is entitled to protection merely because it occurs after a grievance is initiated. It is true that in the normal course of events a communication that is made in preparation for an arbitration would invariably meet the “Wigmore conditions” but that is not necessarily so. What is important is the nature of the communication.

…

It would perhaps be helpful if one were to look at the problem from the perspective of the union in a similar situation where a shop steward is called upon to advise a member who has initiated or is about to initiate a grievance.

…

It would not be accurate to say that all communications between shop steward-grievor would be privileged, but certainly those in respect of which the shop steward is consulted by the grievor about his rights under the collective agreement would be entitled to protection. The fundamental underpinnings of the grievance procedure would be destroyed if a shop steward could be compelled to disclose those conversations in evidence before an arbitration board.

The social imperative behind the solicitor/client privilege at common law is the need for honesty and candour in order that the solicitor might properly advise the client and provide an effective defence. In similar circumstances, that same imperative is present where a shop steward or, to go one step further, lay counsel is required to provide advice to a union member.

…

In this case, both documents addressed the factual basis of the dispute in respect of which the supervisor would be a compellable witness before an arbitration board. On that basis, Mr. Steeves argued that any communication between supervisor-personnel officer should be available, at a minimum, to test the credibility of the supervisor in his evidence before the Board of arbitration.

The response to that position must surely be that it depends on the nature of the communication. There is no reason to assume that the personnel officer would not be called upon to provide advice to the supervisor in much the same way as a shop steward would advise a member. But even if the supervisor were only required to provide an account of what happened in circumstances where the personnel officer would be expected to assess the viability of the case for the employer in a dispute with the union or where the supervisor might make admissions to him against the employer’s interest, those communications should be protected. The social interest is to promote candour between supervisors and those who might be dealing with a grievance on behalf of the employer in precisely the same way as a shop steward may be called upon to advise a member of a union. The supervisor must be able to communicate with the person who is responsible for processing grievances with some confidence that the communication will remain private.

…

47 I also agree with the following comments that the arbitrator made in Canadian Broadcasting Corp.:

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The circumstances in which the management memoranda were prepared in this case justify the conclusion that those who prepared them believed that they would not be disclosed. They consisted of reports prepared by one member of management for another, recommending certain disciplinary action against the grievor and setting out the reasons for the recommendations. Memoranda of the sort in issue here might be expected to contain references to the strengths and weaknesses of the employer’s case in the event of a termination… Until the decision to terminate the grievor was made the recommendations were nothing more that that; they could conceivably have been accepted, accepted in a modified form or rejected. One can appreciate that the parties to this process of giving advice to senior management would expect it to remain in confidence, much as a union steward might expect that advice he gave to a grievor would be kept confidential. Whether the communications between members of management preceded or followed an actual grievance seems not to be critical to this question. Such discussions do not happen in a vacuum and managers would have to be aware of the potential for a grievance when the decision they were considering was whether to terminate an employee.

…

48 While I agree that the relationship, and more specifically the communications, between management representatives or between bargaining agents and the employees that they represent ought to be sedulously fostered, the interests of those actors must always be balanced with the need to ensure the proper administration of justice and that is the purpose of the fourth criterion.  Moreover, in this particular case, I consider that a second relationship ought to be sedulously fostered and it is the relationship between the adjudicator and the parties. One should not lose sight that what is at stake in this case is whether the parties complied with an order made by an adjudicator under the Act.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

49 I conclude that the fourth criterion favours the disclosure of the documents. However important the relation between labour relations officers and management may be, and acknowledging that the disclosure of the documents may be detrimental to this relationship, I consider that the grievor’s right to a fair hearing outweighs the need to protect the confidentiality of the communications. This is a case where, in my opinion, the need to ensure the proper administration of justice outweighs the need to protect, at all costs, the relationship between management representatives and labour relations officers about labour relations matters.

50 I consider that, in the particular circumstances of this case, the context of the dispute and the potential relevancy of the documents must be considered. First, the issues raised by the grievances stem from an order of an adjudicator and not from decisions made by the employer at its own discretion. The issue to be determined on its merits concerns the employer’s compliance with an order issued by an adjudicator, and I consider it of importance that I, as an adjudicator, be able to assess whether the employer did, in fact, comply with the order. This issue relates to the credibility of the grievance process and respect for orders issued by adjudicators.

51 Second, the issue is important for the grievor, whose employment was terminated. However, what I find even more determinant is that the documents relate to the crux of the grievor’s allegations that the employer did not conduct a diligent search and that it acted in bad faith. The grievor has a right to a fair hearing and must benefit from a real opportunity to present her case, and the documents sought are arguably relevant to issues that may become central to the resolution of the dispute.

52 As stated by the Supreme Court in A.M. v. Ryan, “[i]f the court considering a claim of privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result… .” I believe that those principles apply to the circumstances of this case where the need to ensure a fair hearing overrides the need to preserve the relationship within the management and labour relations communities. I acknowledge that there are circumstances where overriding principles of labour relations policy might have the same effect.

53 In this case, I therefore conclude that the employer has not meet its burden of establishing that the Wigmore criteria required to recognize a case-by-case privilege are met.

54 It is interesting to note that arbitrators, in the authorities cited by the employer, recognized that their decisions not to order the disclosure of material could have been different had the circumstances included an allegation of bad faith.

55 In Canadian Broadcasting Corp., the arbitrator expressed the following:

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Even if the other Wigmore conditions should be met, a board of arbitration is bound to be concerned to strike the balance indicated in the fourth condition. That is, does the need for the correct disposal of this litigation override the labour relations importance of maintaining confidentiality of these communications? As indicated earlier in this award one can appreciate that the series of management memoranda may well be relevant to the union’s allegation that the employer acted in bad faith in dismissing the grievor. Given what has been said about the theory of the union’s case, the memoranda are at least arguably relevant to that issue. Arguable relevance has been found to be the test for deciding whether certain documents must be produced in response to a subpoena duces tecum … but we are beyond that point now, the documents having been produced to the union. The issue here is whether the documents should be admitted into evidence despite their confidential nature and their doubtful relevance for other purposes.

The union has indicated that it intends to show through evidence that the employer acted in bad faith. As I understand the union’s position the memoranda will not by themselves establish bad faith but they are said to be relevant to that issue. Thus, until some other evidence is put forward by the union in support of the contention of bad faith (the onus of establishing bad faith being on the union), the memoranda will not be of any particular assistance to this board. If evidence of substance laying a factual foundation for the allegation of bad faith is brought forward, however, it may again be appropriate to consider whether the memoranda should be admitted as relevant to that issue. If that point is reached it may well be the case that to continue to exclude the memoranda will be to risk that the proper disposition of the litigation will not be achieved. It will still be necessary to weigh the balance between the labour relations interest in exclusion and the competing interest in favour of the proper disposition of the case. However in my judgment that issue is best determined, if it needs to be determined, once the nature of the union’s other evidence with respect to the issue has become clear.

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56 In University of Manitoba, arbitrator Freedman also based his findings on the specific circumstances of the case as follows:

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… I think the relationship between the University and its members could be seriously strained. One must consider whether there is a benefit to the production of the Documents that would outweigh that harm. In this case the facts fall far short of establishing any such benefit. I agree with the University that there is no evidence before me to suggest any possible bias, improper motivation, bad faith, or improper consideration of criteria. There is absolutely nothing that has been put forward that would suggest that there is a benefit that could be gained by the production sought…

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57 Although, I have concluded that the documents should be disclosed, I consider that safeguards must be put in place to minimize any injury to the relationship between the employer’s labour relations officers and management representatives and between management representatives. Therefore, disclosure at this point is limited to the grievor and her representative. None of the documents may be copied, conveyed or communicated in any manner by the grievor or the bargaining agent for any purpose other than this adjudication, and all documents shall remain in the exclusive possession of the grievor’s representative.

58 I wish to add that this order does not equate to a decision about the admissibility of the documents into evidence. This is the pre-hearing disclosure stage, and if the grievor wishes to introduce some of those documents during the hearing, the employer will have the opportunity to question their relevancy. I will finish by saying that I intend to apply the same principles during the course of the hearing, whether the communications that may be at issue are written or oral. 

59 For all of the above reasons, I make the following order:

V. Order

60 The employer is ordered to disclose to the grievor the documents that it refused to disclose, on the grounds of an alleged labour relations privilege, which relate to the grievances and which are dated between December 8, 2005 (date of adjudicator Mackenzie’s order) up to and including the date of the employer’s response at the final level of the grievance procedure, namely, August 31, 2006.

61 The grievor and her bargaining agent representatives are not to share the documents or copy them, read them, convey them or communicate them in any manner and for any purpose other than this adjudication.

62 I also order that all documents shall remain in the exclusive possession of counsel for the grievor.

March 29, 2010.

Marie-Josée Bédard,
adjudicator