Human Rights Tribunal of Ontario
B E T W E E N:
Andrew Persaud
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto District School Board and Suzana Greenaway
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Persaud v. Toronto District School Board
WRITTEN SUBMISSIONS BY
Toronto District School Board ) John Bell and and Suzana Greenaway, Respondents ) Sheila MacKinnon, Counsel )
Ontario Secondary School ) Heather Alden, Counsel Teachers Federation )
Joint Submissions by:
Andrew Persaud ) Megan Evans-Maxwell, Counsel and Ontario Human Rights Commission ) Monmi Goswami, Counsel )
1This Interim Decision deals with the issue of the admissibility of certain evidence requested from one of the witnesses called by the respondents. This witness is a teacher who testified at the hearing on February 17, 2009. He is also a Local President for the Ontario Secondary School Teachers Federation (“OSSTF”). During cross-examination by Commission counsel, this witness was asked questions about discussions he had with other teachers which formed the basis of his statement to the Board-appointed investigator that the complainant and his brother “had free rein in the school and that was a bone of contention with some staff”. The witness declined to identify the names of the teachers who had shared this information with him on the basis that they had consulted him as Local President about whether they needed union representation for the investigation, and as a result this information was privileged.
2I declined to rule on this issue at the hearing and requested submissions and authorities from the parties. In the meantime, the Commission proceeded with and completed the cross-examination of this witness, with the exception of the contested questions about with whom he had spoken and what they said to him about their views of the complainant and his brother. Following the end of the hearing day, the Tribunal corresponded with the parties to set a schedule to receive submissions on this issue and to give OSSTF notice of the issue and an opportunity to make submissions, which it did.
3All parties are in agreement that there is no “class privilege” that attaches to communications between a union member and a union representative. Rather, the determination of whether any such communication is privileged is determined on a case-by-case basis applying the standard Wigmore criteria: see Abouchar v. Metropolitan Toronto School Board (1996), O.H.R.B.I.D. No. 21, at paras. 33-4; Vetro v. Klassen [2005] B.C.H.R.T.D. No. 263 at para. 62.
4While privilege for communications between a union member and a union representative typically has been applied in the arbitral context to communications in the context of a grievance, there is no hard and fast rule that restricts the application of privilege only to communications made in this context. As noted by OSSTF counsel, there is a presumption that communications between a grievor and a union representative in the context of a grievance will satisfy at least the first three Wigmore criteria: see Vetro v. Klassen, supra at para. 65. But this does not preclude the potential application of the Wigmore criteria to communications between a union member and a union representative in other contexts. As always, the availability of any privilege will depend upon the circumstances of the specific case.
5In the specific circumstances of this case, I am not satisfied that even the first Wigmore criterion, which is that the communications must originate in a confidence that they will not be disclosed, has been satisfied. In the circumstances of this case, the union representative felt free to share with the Board investigator at least part of the general content of what he had been told by the members who consulted him, albeit without expressly identifying the names of the members who shared this information with him. While I appreciate the witness’s evidence that at the time he shared this information, he did not know that this matter would be proceeding to a hearing before this Tribunal, he did know that issues of potential student misconduct were being investigated by a Board-appointed investigator and knew or should have known that the information he shared with the investigator would be reported to management in some fashion. The fact that, in these circumstances, the witness felt free to share even general information about what he had been told by union members indicates that he did not regard the communications as originating in a confidence that they would not be disclosed.
6In my view, the case that is most analogous to the instant case is the arbitral decision in Simon Fraser University and Canadian Union of Public Employees, Local 3338 (Frank Grievance) [1997] B.C.C.A.A.A. No. 226. In that case, the grievor’s supervisor was also a bargaining unit member, and she was called as a witness by the employer to uphold the grievor’s dismissal. During the time she was supervising the grievor, the witness had sought advice from her union representative as to how she should handle the situation. The witness also had supervised another bargaining unit member who had been dismissed and similarly had sought union advice in that context as well. The union sought to question the witness as to her communications in both contexts, and the employer asserted privilege.
7In rejecting the claim for privilege, the arbitrator found that the first Wigmore criterion had not been met on the basis that the witness had not been assured that her communications would be kept confidential nor did she seek such assurance. I note that I have no evidence before me to indicate that any of the union members in the instant case who spoke to the Local President either sought or were given an express assurance of confidentiality. In addition, I also note that the witness in the Simon Fraser case had already testified about some aspects of her communications with the shop steward, and the union argued that it would be unfair to allow her to provide evidence of some communications but not all. I find that a similar concern arises in the instant case, where the witness already has disclosed some of the content of the communications from the union members.
8This ruling in no way should be taken to support any general proposition that communications between a union member and a union representative outside of the grievance context, and particularly where the member is seeking advice about representation or any other matter under the collective agreement, can never satisfy the test for privilege. In particular, had the witness not disclosed some of the content of the member communications in the instant case, a different result may have been reached.
9Accordingly, I require the witness to re-attend at the hearing on March 31, 2009 to answer questions regarding the identity of the members who spoke to him about the applicant or his brother and the content of those communications and any further questions