Lastella v. Oakville Hydro Corporation, 2009 HRTO 1806

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rafaele Lastella Applicant

-and-

Oakville Hydro Corporation, Dan Steele and Marcia Best Respondents

interim decision

Adjudicator: David Muir

Date: October 28, 2009

Citation: 2009 HRTO 1806

Indexed as: Lastella v. Oakville Hydro Corporation

Written SUBMISSIONS BY

Rafaele Lastella, Applicant ) John R. Evans, ) Counsel

Oakville Hydro Corporation, ) Peter J. Thorup, Dan Steele and Marcia Best, Respondents ) Counsel

1This is an Application filed September 29, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a claim of privilege advanced by the respondents over a number of documents sought by the applicant.

2The respondents have identified a number of documents which may be arguably relevant to the issues in dispute between the parties but over which they claim a legal privilege. The parties agreed to have the respondents provide the documents for my review and determination of the issue of privilege, to the extent I could do so on the basis of the documents alone. I indicated to the parties that I may have to hear some evidence or further submissions with respect to the material before making final determinations on the their production.

3Upon reviewing the documents provided by the respondents, I determined in a July 23, 2009 Case Assessment Direction that the bulk of the documents were privileged.

4In a further Case Assessment Direction dated October 14, 2009, I requested submissions in respect of the remaining documents which I described for the parties as follows:

a) A note of Marcia Best made on January 2, 2007, of an initial conversation with the investigator.

b) A note of Marcia Best made on January 3, 2007, of a conversation with the investigator.

c) A further note of Marcia Best made on January 3, 2007, of a conversation with the investigator.

d) A further note of Marcia Best made on January 3, 2007, of a conversation with the investigator.

e) A note of Marcia Best made on January 4, 2007, of two conversations with the investigator.

f) A note of Marcia Best made on January 5, 2007, of a conversation with the investigator.

g) A note of Marcia Best made on January 8, 2007, of a conversation with the investigator.

h) A note of Marcia Best made on January 10, 2007, of a conversation with the investigator.

i) A note of Marcia Best made on January 11, 2007, of a conversation with the investigator.

j) An email exchange between Marcia Best and the investigator on April 2, 2007.

k) Report of investigator, dated April 4, 2007.

l) A note of Marcia Best dated January 3, 2007 recording a conversation between Ms. Best and AB about potential response to the alleged failure of Mr. Lastella to provide the SCADA passwords.

5In coming to my initial conclusions, I considered the following statement of the law quoted with approval by the Ontario Court of Appeal in General Accident Assurance Company v. Chrusz, 1999 CanLII 7320:

R. J. Sharpe, prior to his judicial appointment, published a thoughtful lecture on this subject, entitled “Claiming Privilege in the Discovery Process” in Law in Transition: Evidence, L.S.U.C. Special Lectures (Toronto: De Boo, 1984) at 163. He stated at pp. 164-65:

It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

Rationale for Litigation Privilege

Relating litigation privilege to the needs of the adversary process is necessary to arrive at an understanding of its content and effect. The effect of a rule of privilege is to shut out the truth, but the process which litigation privilege is aimed to protect – the adversary process – among other things, attempts to get at the truth. There are, then, competing interests to be considered when a claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial preparation; there is also the need for disclosure to foster a fair trial.

6The court in Chruzs, supra, also adopted the dominant purpose test. That is for the privilege to apply, the dominant purpose, not one of the purposes or a substantial purpose, for the creation of the document in question had to be the contemplation of actual or anticipated litigation.

7The respondents state that adjudicators accept that there is a reasonable prospect of litigation when an employer terminates the employment relationship, particularly where just cause for the termination is asserted. The implication being that the inference can be drawn from the circumstances. The respondents also state that the decision to retain a security firm to conduct surveillance of the applicant was on the advice of counsel as a result of the applicant’s alleged misconduct in the days leading up to his termination. The respondents further state that investigations undertaken on the advice of counsel are privileged, pursuant either to solicitor client privilege or, if undertaken in contemplation of litigation, litigation privilege.

8The applicant states that the decision to retain an investigator was made prior to the decision to terminate and accordingly litigation could not reasonably have been contemplated at that stage. The applicant also states that although the bulk of the surveillance documents came into existence after the decision to terminate, they are factually and legally linked together and should be treated as a package. The applicant states as well that the investigation was part of the fact finding process and should not be considered part of the “work file” of counsel in relation to any anticipated litigation. More generally the applicant states that the respondents have not met the evidentiary burden required of them to establish any privilege over the documents in question.

9If there is a privilege that attaches to these documents it is litigation privilege. The respondents’ statement that the decision to retain a security firm was made on the advice of counsel is an assertion. Litigation privilege cannot be presumed, the onus to establish the privilege rests with the party asserting it. No evidence other than the notes themselves was submitted. In the absence of any other evidence, I am left to determine the issue on the basis of the notes themselves. As regards to the submission of the respondents that the fact that litigation was reasonably contemplated can be inferred from the mere fact that a termination ensued, I have reviewed the authorities relied upon by respondents and do not agree that they stand for this proposition. It remains the case that the party relying on the privilege must prove that the document in question was created for the dominant purpose of pending or reasonably anticipated litigation, or for the purpose of obtaining legal advice.

10Considering what I have called the surveillance documents, there is no evidence before me that the decision to retain an investigator was made on the advice of counsel or that the investigation was conducted for the purpose of anticipated litigation or for the purpose of obtaining legal advice. The notes themselves give no direct indication of the reason for retaining an investigator other than locating the applicant because he had the SCADA passwords, and although the decision to do so appears to have been made only shortly before the decision to terminate, the notes themselves do not indicate any connection between those two events. In short, I am not prepared to draw the inference from the coincidence in the timing of these two events that the dominant purpose for the retaining of an investigator was to gather evidence for reasonably contemplated litigation or for the purpose of obtaining legal advice.

11Similarly, the note of the conversation between Ms. Best and AB on January 3, 2007 is not privileged. It appears to be part of a note made of a discussion between Ms. Best, AB and Dan Steele, all employees of the respondent, about their options in the event that the applicant complied with their requests to provide the SCADA passwords, or, alternatively, if he did not. There is no evidentiary basis to conclude that the dominant purpose for the creation of this note was contemplated litigation notwithstanding the fact that the notes contemplate the applicant’s termination.

12Accordingly the Tribunal makes the following Orders:

a) Pages 1 to 14 of Ms. Best’s notes, except for those portions that I have determined are protected by solicitor/client or litigation privilege above, and as described in the Case Assessment Direction of October 14, 2009, will be produced to the applicant. A redacted version of these documents will be provided to the parties in due course.

b) The respondents do not claim privilege over an email exchange between Marcia Best and Dan Steele on January 3, 2007 (two pages) as well as an email dated January 9, 2007 to Dan Steele, Marcia Best and Everett Chubbs. These documents will be produced to the applicant.

c) The email exchange between Ms. Best and the investigator on April 2, 2007 and report of the investigator are not privileged and will be produced to the applicant.