Editor’s Note: Addendum released on June 11, 2010. Original judgment has been corrected with text of addendum appended.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael McKinnon Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Correctional Services, Frank Geswaldo, George Simpson, Phil James and James Hume Respondents

-and-

Ontario Public Service Employees Union Intervenor

INTERIM DECISION

Adjudicator: H. Albert Hubbard Date: June 2, 2010 Citation: 2010 HRTO 1235 Indexed as: McKinnon v. Ontario (Correctional Services)

APPEARANCES

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Ministry of Correctional Services, ) Leslie McIntosh and Frank Geswaldo, George Simpson, ) Christopher Thompson, Counsel Phil James and James Hume, Respondents )

Ontario Public Service Employees ) Joshua Phillips, Counsel Union, Intervenor )

Introduction

1Submissions regarding the Complainant’s demand for the production of certain documents in accordance with the Tribunal’s longstanding “arguably relevant” disclosure ruling were heard on May 19, 2010. The documents in question are the minutes of settlement of grievances relating to three substantiated Workplace Discrimination and Harassment Prevention policy (“WDHP”) complaints that arose in the Toronto East Detention Centre (“TEDC”). Although there were three complaints, counsel for the Respondent Ministry of Correctional Services (the “Ministry”), now the Ministry of Corrections and Public Safety, indicated that there were only two settlement agreements because the complaints of Roy Rusaw and Sherri Fic involved the same circumstances and concerned the same respondent, Acting Superintendent Rose Buhagiar. Their grievances were for that reason dealt with in the same settlement agreement. The other grievance settlement related to the WDHP complaint made by Don Carter against Paul Medeiros, a manager at TEDC.

2Counsel for the Ministry maintains that the settlement agreements in question are privileged and that their production cannot be compelled.

3Counsel for the Complainant is of the view that the documents are not privileged and that, even if a privilege attaches to them, they must be produced by way of exception.

4Counsel for the Ontario Public Service Employees Union (“OPSEU”) agreed in large part with the Complainant’s submissions and suggested that another factor to be taken into account when considering whether to require production of a privileged communication is the purpose for which it is sought. After explaining the union’s interest in the matter, Mr. Phillips advised the Tribunal that, as a party to the settlement in the Rusaw-Fic-Buhagiar matter, OPSEU had no objection to its disclosure. His remarks in that regard were as follows:

OPSEU has an interest in this matter because, although we've talked about things like the Fic and Rusaw grievance, in fact it's an OPSEU grievance. OPSEU was the bargaining agent, OPSEU has carrying rights of the grievance and OPSEU is a signatory to the settlement. So the privilege we've been talking about attaches to OPSEU as much as it does to the Ministry. I think it would be helpful for you to hear OPSEU's perspective because of that interest.

5Counsel for the Ontario Human Rights Commission (the “Commission”) agreed with the Complainant that the privilege in question must be established on a case-by-case basis. However, he went on to suggest that I consider using the “O’Connor” procedure as a middle ground that might satisfy the needs of the parties. He referred to two decisions of the Human Rights Tribunal of Ontario in that regard: Washington v. Toronto Police Services Board, 2009 HRTO 217; Hogan v. Ontario (Health and Long-Term Care), 2003 HRTO 16. The end result of that procedure (which takes its name from R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411) is that the document in question is provided to the Tribunal to determine whether all or any of it must be produced to the other parties. I did not find that procedure (to the use of which the other parties objected) suitable in the circumstances of this case.

6Because of the apparent urgency with which it was required, following a short recess a brief explanation for my ruling that the settlement documents must be disclosed was delivered orally, along with the assurance that comprehensive written reasons would follow. Counsel for the Ministry advised me that she required time to consult with her client to consider whether to seek a judicial review of that ruling, and a stay of that order was granted without objection on the understanding that the Ministry would call a witness who could speak to the settlement agreements should they be produced and found admissible.

Nature and Scope of Settlement Privilege

7Towards the start of her submissions on behalf of the Ministry, Ms. McIntosh took me to the following passage in the judgment of Lamer C.J.C. in R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, 67 C.C.C. (3rd) 289, as it is set out in paragraph 5 of Middelkamp v. Fraser Valley Real Estate Board, [1992] B.C.J. No. 1947, 1992 CanLII 4039 (B.C.C.A.), a British Columbia decision on which she placed much reliance:

... 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 is 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 category. [Cases omitted.] 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”, 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.

8In Middelkamp, McEachern C.J.B.C. went on to say that it seems apparent from Gruenke that Wigmore’s four tests are the standard by which case-by-case privilege will be measured and that, although they should not be regarded as “carved in stone” they provide “a general framework within which policy considerations may be analyzed.” The Wigmore tests or principles, as set out in paragraph 7 of Middelkamp, are as follows:

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

(2) The element of confidentiality must be essential to the maintenance of the relationship in which the communication arose.

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

(4) The injury caused to the relationship by disclosure of the communications must be greater than the benefit gained for the correct disposal of the litigation.

9It is beyond question that a privilege of some sort may attach to settlement agreements and, by reason of section 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended: “Nothing is admissible in evidence at a hearing that would be inadmissible in a court by reason of any privilege under the law of evidence”. Since it is clear that I cannot admit privileged documents or communications that would be excluded by a court, I must first decide whether the privilege claimed by the Ministry is of a kind to be established on a case-by-case basis or whether it is a prima facie privilege that applies unless the Complainant brings his demand for production within the scope of an exception.

10The Ministry maintains that settlements are protected by a prima facie privilege, in support of which view the following passages from Middelkamp were brought to my attention:

18. Considering the enormous scope of production which is required [and] the questionable relevance and value of documents prepared for the settlement of disputes, and the public interest, I find myself in agreement with the House of Lords [in Rush & Tompkins v. Greater London Council, [1988] 3 W.L.R. 939] that the public interested in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged. I would classify this as a “blanket”, prima facie, common law or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

19. In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not a settlement is reached.

11Counsel for the Ministry referred to Sun Life Trust Co. v. Dewshi, [1993] O.J. No. 57 (Ont. Gen. Div.), regarding the rationale for the “without prejudice” rule (of which she said settlement privilege is a kind). In that case, Simmons J. (at pp. 4 and 5) quotes extensively from the decision in Rush & Tompkins in which the House of Lords said that:

The “without prejudice rule” is ... founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. ... I believe the question has to be looked at more broadly and resolved by balancing two different public interests, namely the public interest in promoting settlements and the public interest in full discovery between parties, to litigation. ...

I would therefore hold that as a general rule the without prejudice rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It, of course, goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was reached with that party. ...

12Simmons J. then went on to say:

As already noted, Ontario courts have accepted the view that the concept of litigation privilege is founded on public policy. Having regard to the House of Lords decision in Rush & Tompkins Ltd., I accept the view that the without prejudice rule should be considered as a rule which is founded on public policy and not partly on public policy and partly on implied agreement. I further accept the view that, as a general matter, the without prejudice rule should preclude the admission into evidence of admissions made for the purpose of or during the course of an attempt to reach a settlement whether or not a settlement is reached and whether or not such admissions are contained in the negotiations leading up to settlement or in any settlement agreement, itself.

13As to exceptions to settlement privilege, Ms. McIntosh referred to Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, [2005] B.C.J. No. 5. In that case, the British Columbia Court of Appeal followed its previous decision in Middelkamp. The relevant passages from Dos Santos that appear under the heading “Exception to Blanket Privilege” (paragraphs 17 to 21), and under the heading “Necessary in the Circumstances of the Case” (paragraphs 27 and 37), are as follows:

17 In Middelkamp, supra, Chief Justice McEachern said there must be exceptions to the blanket privilege for settlement communications. Notably, he referred to the proper disposition of litigation.

18 In my view, Middelkamp did not close the door on what might constitute a valid exception to the blanket privilege...

19 However, the test for discharging the burden to establish an exception should not be set too low. The public policy behind settlement privilege is a compelling one. It is so compelling that even threats arising in the context of settlement negotiations may not justify an exception.

20 To establish an exception in this case, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.

21 Some authorities appear to find exceptions to settlement privilege on the basis of relevance alone …. However, mere relevance does not provide a sufficiently high threshold to displace the compelling public policy underlying settlement privilege. ...

27 The defendant says an exception to settlement privilege is necessary to prevent injustice through excessive compensation to the plaintiff. The defendant says the blanket privilege is displaced because the public interest in the proper disposition of the case outweighs the public interest in encouraging settlement...

37 In these circumstances, I agree with the defendant that the only way to establish objectively what the plaintiff has actually received in lost earnings is to recognize an exception for these documents that would otherwise have been protected by settlement privilege. Both the relevance and necessity of the documents therefore militate in favour of recognizing an exception.

14As to whether the reasoning of the Court of Appeal of British Columbia applies in Ontario, Ms. McIntosh forthrightly drew my attention to Ontario (Liquor Control Board) v. Magnotta Winery Corp., 2009 CanLII 92118 (ON SCDC), [2009] O.J. No. 2980, a decision of the Divisional Court in which she appeared for the Attorney General of Ontario as Intervenor. That decision, she said, is under appeal. Ms. McIntosh took me through a number of passages in the judgment delivered by Carnwath J. on behalf of the Court, including the following:

45 There is strong support for a public-policy based class privilege for settlement privilege. However, that support comes from cases where the court analyzes each claim in the context of its particular facts.

46 The case-by-case analysis is preferable. It is particularly important in the following instances:

(a) where discussions have led to a settlement;

(b) where the interests of third parties in other litigation might be affected;

(c) where there is a dispute over whether litigation was “in contemplation”.

47 I point out in the matter before us, there is no argument over the terms of the settlement. There is no evidence of interests of third parties in other litigation which might be affected by the settlement. There is no dispute over whether litigation was “in contemplation”. Litigation had begun with a vengeance.

48 Nevertheless, a case-by-case analysis must be undertaken, given that the development of settlement privilege continues as is so often the case with the common law. At its current stage, it is not yet a class or absolute privilege nor has it evolved into a substantive rule of law. [Emphasis added.]

15According to my reading of the cases relied on by the Ministry, if a given settlement privilege is a prima facie privilege then the Wigmore tests are inapplicable and the party seeking disclosure must establish an exception by showing (inter alia) that the benefit exceeds the harm. On the other hand, if those tests must first be satisfied in order to find a privilege, it is precisely because there is no prima facie privilege; indeed, no privilege of any kind attaches unless the party relying on it establishes (inter alia) that the harm caused by disclosure is greater than the benefits of production. In my view, applying the Wigmore tests in order to establish a prima facie privilege would be logically inconsistent: if there is a prima facie privilege then Wigmore does not apply; but if Wigmore applies, then a prima facie privilege could not have been found; and, surely, any privilege that then emerges could not morph into a prima facie privilege, the existence of which would have excluded the application of those tests in the first place. All that is needed to establish a prima facie privilege is evidence that the communication falls within a class that is so protected, to which end Wigmore is irrelevant.

16If I have read those cases correctly, it follows that, should a party who is required to satisfy the Wigmore criteria manage to do so, the privilege thus established cannot be a prima facie or blanket privilege to which an exception can be made only on the basis of relevance, necessity and overriding public policy. And Ms. McIntosh appeared to concede that in Magnotta the Divisional Court takes a different view as to the nature of settlement privilege than that espoused by the courts of British Columbia. In that regard she had the following to say, at different places in the course of her submissions:

There's no doubt that there's a common law settlement privilege. The only dispute is, is it a class privilege like solicitor-client privilege where as soon as you say this is minutes of settlement, bang, it's not producible, it's not admissible unless it comes within one of the exceptions. Or, is it the other way around - if I can put it that way -- and you have to -- you'll see, you have to make a case, a case-by-case case, that the particular document in fact meets certain criteria, the Wigmore criteria. I think that's the difference that Middlekamp highlights, and I think it's the difference that the Divisional Court is picking up here.

But I think that there are two lines of authority, one from the British Columbia Court of Appeal and one from our Divisional Court. So that's why I'm giving you both tests now and asking you to consider what you would say about that on either test. So how do you go about establishing settlement privilege on the assumption that it is not a class privilege? Well, it must be established by applying the Wigmore test …

17Counsel for the other parties submitted that the Magnotta case is an authority that it is incumbent upon me to follow, and that the decision in that case runs counter to the proposition that a settlement agreement is protected by a prima facie privilege. I agree with them. Although the reasoning of the House of Lords and the Court of Appeal of British Colombia regarding settlement privilege was taken into consideration by it, the Divisional Court declined to follow that path. Even if I were inclined to do so, having regard to the futility of divergence, I would not consider myself free to depart from the clear opinion of a court to which an appeal from my decision may be taken; and the fact that the decision in Magnotta is under appeal does not give me licence to do so. Thus, since in my opinion the onus is on the Ministry to show why the documents in question should be privileged, I must turn to the Wigmore tests to determine whether it has established that a privilege attaches to those particular settlements.

Relevance of the Settlements

18To begin with, the production of documents cannot be compelled unless they are arguably relevant. I find the settlement agreements sought by the Complainant clearly relevant because they touch upon matters that lie at the heart of this litigation. Both settlements involve the TEDC. One of them involves a WDHP complaint made by Mr. Carter, who was the Complainant’s representative on the Compliance Committee established by the Tribunal. Mr. Carter will be giving evidence in this proceeding and, for that reason, was excluded from the hearing when matters relating to that settlement were dealt with. The other settlement agreement raises the suspicion that it was reached in order to remove from the WDHP system a substantiated claim against Ms. Buhagiar, the Acting Superintendent of the TEDC at the time. Both the Commission and OPSEU share that concern, Mr. Rajan having the following to say in that regard:

From the Commission's perspective, we share the same concerns Mr. McKinnon has with respect to the Fic and Rusaw and Medeiros matter. From a broader public systemic standpoint, you know, obviously on its face we have concerns that matters that are being substantiated in the WDHP arena are being settled off in another arena. I’m saying on its face because we haven't probed any further, but on its face there are some concerns with the settlement of a complaint, for example, against Rose Buhagiar who was, at the time, Superintendent of TEDC which is, of course, a focus of these proceedings.

19As to that document’s relevance, it is important to note that Ms. Buhagiar has been implicated in matters dealt with by the Tribunal in all three of its major decisions. This is made plain by the following paragraphs of the Tribunal’s January 30, 2007 decision (2007 HRTO 4):

[242] In attempting to establish a pattern of preferential treatment accorded his antagonists by the Ministry, Counsel for the Complainant pointed out that several of those who were found in the 2002 decision to have acted improperly towards Mr. McKinnon had received promotions, and she singled out Ms. Mooney and Ms. Buhagiar in that regard. For instance, after referring to “the exorbitant denunciation of the Complainant made by one Candice Mooney regarding an incident in which he was truly blameless and she but a bystander”, I pointed out (in paragraph 206) that:

… In her memorandum to the Superintendent, however, Ms. Buhagiar went beyond reporting the facts she had gathered and took it upon herself to proclaim the "concerns" of Ms. Mooney regarding a matter that was really none of her business. Those "concerns", which bear repetition in the present context were that: "Mr. McKinnon complains about his work environment being poisoned when in fact what he does poisons everyone else's work environment — she said when he's at the meeting she doesn't want to be there — she said he needs to be taken to task for everything he does as what he complains about the most he does to other people”.

[243] Ms. Buhagiar was found in the 2002 decision to have acted improperly in several respects (see paragraphs 123, 203 and 205), and the resentment of Mr. McKinnon that she appeared to share with Ms. Mooney is something of an obstacle to his return to the workplace, since Ms. Buhagiar is now the Acting Superintendent of the TEDC. Ms. Buhagiar, who was implicated in the Laforest incident dealt with next, appears to be of questionable judgment, at least where Mr. McKinnon is concerned, as the following passage from the 2002 decision indicates:

[205] As it happened, the suggestion that Ms. Buhagiar censure the complainant was withdrawn because, as explained in her memorandum to Mr. Hamblin, "When I reminded Ms. Minassian of the concerns Mr. McKinnon had with me, she advised that I do the fact-finding and forward the information to the Superintendent". And she added that, "When asked Ms. Minassian said there was no need to tell Mr. McKinnon of the complaint at this time". The expert advice given was not to recuse herself because of a conflict of interest, but to conduct the fact-finding investigation behind the accused's back. Indeed, although he had written an occurrence report immediately after the incident, the complainant did not learn of this sorry affair until it was inadvertently mentioned in testimony given by Ms. Kosarov three months after Ms. Minassian had testified and could not be cross-examined on it.

20The basis for the Complainant’s concern regarding the Fic-Rusaw settlement, and the importance he attaches to its disclosure, is what appears to him to be a continuation of the pattern of shielding managers who have been antagonistic towards him from the consequences of their WDHP infractions. I am not yet in a position to judge whether his suspicions are well-founded; but if they are, then that is clearly relevant. For reasons to which I will come, I cannot address that issue in the absence of the evidence he is attempting to secure through the disclosure process.

21Since I find them to be relevant, these documents must be produced in compliance with the Tribunal’s standing order, unless the Ministry can bring them within the scope of the Wigmore tests. (Whether, once produced to the parties, they are to be admitted may be the subject of further submissions.)

The Wigmore Tests

22The first Wigmore test is that “the communications must originate in a confidence that they will not be disclosed”. Since counsel for the Ministry has given her assurance that the minutes of settlement in question contain a confidentiality clause, it is safe to assume that the communications leading thereto originated in confidence. Thus the first test appears to have been met. The other parties did not suggest otherwise.

23The second and third tests focus on “the relationship in which the communication arose”, and the maintenance and fostering of that relationship. The word “relationship” connotes a connection between two or more identifiable persons or groups. For instance, they may be John and Jane, who might be married; or they may be Rusaw and Fic, who might be partners; they may be fellow employees, or a manager and an employee; they may be corporate bodies, such as the Ministry and OPSEU. However, I take it that what is to be sedulously fostered and maintained is not a particular foundational relationship of such kind, but (if I may so call it) the “negotiation relationship” itself. Once the parties, however otherwise connected, agree to negotiate, a new and additional relationship arises between them vis-à-vis the reaching of a settlement, and presumably it is the maintenance and fostering of their relationship as negotiators that the tests contemplate.

24What is it that generates a relationship between negotiating parties that ought to be fostered and maintained, and for which purpose non-disclosure is a necessity? The connection cannot be simply that they are parties to a settlement, because that would render the test meaningless: all settlements would by definition satisfy the test, the application of which would be superfluous. However, as seen in a decision of the Grievance Settlement Board, Ontario Public Service Employees Union (Young) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB# 2001-0660; Union# 01A734, 2004 CanLII 55317, some settlements are confidential and others are not, and Ms. McIntosh appears to be of the view that it is the element of confidentiality, pure and simple, that brings the parties into a relationship that, ipso facto, satisfies Wigmore’s second and third tests. According to her, given a confidentiality clause, the “negotiation relationship” regarding the substance of the agreement cannot be maintained if confidentiality is breached; neither can it be sedulously fostered if disclosure is a prospect. Thus, Ms. McIntosh deals with the application of the second and third tests to the facts of this case as follows:

Now, applying the Wigmore factor to the Fic and Rusaw settlement, the communications originated in confidence. I can tell you that there is a confidentiality clause in the settlement. … So the number one factor -- that they will not be disclosed -- is, I think, established [and] is absolutely routine for all of these grievance settlements that have confidentiality clauses. The element of confidentiality must be essential to enable the relationship, and the relationship is one that must be sedulously fostered. What I have done is reproduced a decision of the Grievance Settlement Board in Young which talks about the importance of maintaining the confidentially ... in grievance settlements and the importance of settlements of grievances to the community.

25The Young case concerns an OPSEU member who breached the confidentiality term of a settlement, in consequence of which she was required to repay the money provided to her in accordance with that settlement. The reasons provided in that decision emphasize the importance to the workplace community of being able to settle grievances―an observation that appears to add nothing of principle to what has been seen. The adjudicator noted that, although not all settlements are confidential, those that are require that the parties (as distinct from a court) adhere to the “gag orders” contained in their agreement. Although he made certain references to “community” in the course of his reasons, having regard to the context in which they were made, in my opinion they are not relevant to an understanding of the Wigmore tests with which, in fact, Young had nothing to do.

26The fourth test requires that “the injury caused to the relationship by disclosure of the communications must be greater than the benefit gained for the correct disposal of the litigation”. In my view, not only has the Ministry failed to establish that the harm caused by disclosure of the documents (if, indeed, there is any in the circumstances of this case) exceeds the benefit of producing them, but the potential injury either to the substance of the settlements or to the “negotiation relationship” of the parties to them pales in comparison to the potential benefit that disclosure would gain for the correct disposition of the litigation before me, to which aspect of the matter I will return.

27I pause at this point to consider the extent to which the decision in Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, 2004 SCC 31 has any bearing on the matter before me. That case was cited by the Ministry as authority for the proposition that “human rights do not trump settlement privilege.” Ms. McIntosh made that point in this way:

The Commission had a legal opinion in its file about the matter on which Ms. Sanson [counsel for the appellant] sought on the grounds that procedural fairness in the context of the human rights complaints trumped solicitor-client privilege. The Court said that the requirements of natural justice, even in the human rights context, would not trump solicitor-client privilege. So I rely on that for the proposition that even in the human rights context there is not automatically a greater countervailing interest in disclosure than there is in settlement discussions.

28The question to be decided in Pritchard was formulated (in paragraph 13) as follows: “... whether a legal opinion, prepared for the Ontario Human Rights Commission by its in-house counsel, is protected by solicitor-client privilege in the same way as it is protected by outside counsel retained for that purpose.” Solicitor-client privilege seems virtually untouchable and, because it is so much more rigorously protected than any other kind of privilege, what is said in respect of it cannot be readily ascribed to settlement privilege. Moreover, the holding that solicitor-client privilege applies to in-house counsel had nothing to do with the fact that the parties were the Human Rights Commission and a disgruntled complainant/appellant. In rejecting the submission that the document should be produced as a matter of procedural fairness or natural justice, the Supreme Court decided nothing as to whether solicitor-client privilege “trumps” human rights, to which rights no reference was made. Rather (it seems to me), the Supreme Court simply found that procedural fairness (which is not a statutory human right) was actually one of the reasons requiring the privilege to be sustained, and so the appellant was unable to establish that such fairness required disclosure. Here is what the Court said in that regard:

31. Procedural fairness does not require the disclosure of a privileged legal opinion. Procedural fairness is required both in the trial process and in the administrative law context. In neither area does it affect solicitor-client privilege; both may co-exist without being at the expense of the other. In addition, the appellant was aware of the case to be met without production of the legal opinion. The concept of fairness permeates all aspects of the justice system, and important to it is the principle of solicitor-client privilege. [Emphasis added.]

29Returning to the matter of weighing “the injury caused by disclosure” of the settlements against the benefits of their production, it is important to note that the Tribunal has been reconvened in order to deal with serious allegations regarding the implementation of its orders intended to deal with racism in the Ministry. The Ministry’s position is that those orders are in the process of being complied with as quickly and fully as possible and in complete good faith. Of course, that has been its standing story ever since the Tribunal’s decision of April 28, 1998, and it is a story that proved false in the past when closely examined following the lengthy sessions of the Tribunal that resulted in its decisions of November 29, 2002, and January 30, 2007.

30The Complainant is of the view (and the Commission and OPSEU share a similar concern) that the Ministry continues to drag its heels and to act in bad faith. Evidence that relates to those allegations is crucial to a proper resolution of the matters before the Tribunal, and the production of such evidence is in the interests of all the parties and of the workplace community—and, indeed, of the entire Province. One need only read the comments made by the Divisional Court (before which this matter came on two occasions), as well as those of the Court of Appeal, to appreciate the importance of uncovering what lies at the root of the malaise of a Ministry that has been for a great many years the subject of excoriating human rights criticism. For instance, in Ontario v. McKinnon, 2003 CanLII 32438 (ON S.C.D.C.), Lane J. observed (in paragraph 17) that:

It is clearly desirable that the racist atmosphere of the workplace should be attacked as soon as possible. The two reports [i.e., the 1998 and 2002 decisions of the Tribunal, since upheld by the Court of Appeal] indicate the existence of a shameful situation that is totally unacceptable in a civilized country. The continued exposure within the Ministry of other minorities to the harassment and discrimination experienced by Mr. McKinnon must stop. … [Emphasis added.]

31To the extent that it may be relevant in the context of weighing the harm that might be caused against the expected benefit of disclosure, it is to be noted that the production of the minutes of settlement for the purposes of this proceeding poses no threat to the employer-employee and management-union relationships on which the negotiation relationships rest; nor would a court-ordered disclosure interfere with the substantive terms of those agreements to the detriment of the persons involved.

32Thus, in my view, the Wigmore tests have not been met regarding the settlements in question, and the Ministry has not satisfied me that a settlement privilege attaches to either of them. It follows that the settlement documents must be produced in accordance with the Tribunal’s general disclosure ruling. However, I do not want to cross any bridges until I come to them, and whether (once produced to the parties) they are to be admitted as evidence is a separate matter. Counsel for OPSEU alluded to that aspect of the matter in this way:

I would make this preliminary order or specificity with respect to the existing production order. You are not, at this stage, being asked about admissibility and they are two separate issues. I don't think they should be conflated at this point. As Ms. McIntosh pointed out, one of the considerations you will have to take account of, if and when we get to the point of admissibility, is the issue of probative weight versus prejudicial effect. It is simply not the point in the analysis, we say, to do that -- in effect you cannot do to that because we have not seen the document in question. The question is whether it is arguably relevant and, therefore, producible in the face of a claim for privilege.

Prima Facie Privilege

33Even if I am wrong and the reasoning of the House of Lords in Rush & Tompkins and the Court of Appeal of British Columbia in Middelkamp and Dos Santos applies to the settlements here in question, I am of the view that those documents fall within the parameters of the principles underlying the exceptions contemplated in those cases.

34It was submitted for the Complainant that settlement agreements are not protected in Ontario by a prima facie privilege and that, even if they were, the person seeking disclosure need not establish that their admission is necessary. However, I agree with the Ministry’s position that the settlement privilege conferred pursuant to the reasoning of the House of Lords and Court of Appeal of British Columbia can only be offset by some countermanding public policy interest or consideration, together with proof of both relevance and necessity. However, there remains the question: “Necessary to what end?”

35As to the import or connotation of the word “necessary” as used in Dos Santos, Counsel for the Ministry maintained that a settlement privilege can only be set aside if its disclosure is the sole means of proving a fact in issue. Counsel for the Complainant was of the view that all that is required to overcome the privilege, even as it is defined in British Columbia, is relevance. Although I think necessity is a requirement, the question “Necessary to what end?” must be answered, and I begin my attempt to do so by turning to a consideration of paragraph 20 of Dos Santos. In the course of argument, I was called upon to parse the second sentence of that paragraph, which must be read in conjunction with the first:

20. To establish an exception in this case, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.

36In my view, the first sentence in that paragraph sets out the basis for the exception, namely, that the person seeking it “must show that a competing public interest outweighs the public interest in encouraging settlement”, the second sentence serving, not to supplant, but to provide a gloss on that principle. Since that which is necessary must be relevant, nothing need be said about the word “relevant” in analyzing the second sentence, the plain meaning of which seems to me to be this: in order to displace the privilege, disclosure must be necessary either in order to achieve the agreement of the parties to the settlement (which is not the case before me) or for the attainment of an overriding interest of justice. Thus, in my view, it is sufficient if disclosure of a settlement agreement can be shown to be necessary in the interests of justice “in the circumstances of the case”. In short, I do not read that particular sentence in Dos Santos as saying that an exception can be made only if it is the sole means of proving a fact in issue.

37In support of her submission that an exception to a prima facie privilege cannot be made unless it is the sole means of proving a fact, Ms. McIntosh also relied on paragraph 37 of Dos Santos in which Finch C.J.B.C. said:

In these circumstances, I agree with the defendant that the only way to establish objectively what the plaintiff has actually received in lost earnings is to recognize an exception for these documents that would otherwise have been protected by settlement privilege.

38I do not read that passage as laying down a substantive rule of invariable application; rather, I think it is simply a statement as to why it was found that an overriding principle of justice required an exception to be made in “the circumstances of that case”. Furthermore, the proposition that a court cannot compel disclosure of a privileged document required in the interests of justice or overriding public policy, unless it is also the sole means of proving an allegation, seems inconsistent with its obligation to determine the facts on a balance of probabilities―an obligation that can only be met by weighing all the relevant evidence, including the document in question.

39Assuming that a prima facie privilege has attached to the settlements in question, then, having regard to what I have already said concerning relevance and matters of justice and public policy in the context of this case, I am of the opinion that their production is necessary for the attainment of an overriding interest of justice.

40Even should I have misconstrued the meaning of “necessary” as it is used in Dos Santos, it happens that I am of the view that in the circumstances of the present case disclosure of these minutes of settlement is necessary. The failure to have brought their existence to the attention of the other parties is one of a number of failures by the Ministry to disclose relevant matters in a timely way, and the questions that Ms. McIntosh suggests be put to witnesses in lieu of their disclosure might better have been put to Ministry witnesses who gave their evidence long before the existence of the settlement agreements became known to the Complainant. Moreover, without the minutes of settlements as background information there is no clear basis for formulating probing questions or for testing responses that might be simply self-serving. The production of these agreements is necessary in this case because they may constitute critical evidence in deciding an issue of fact; indeed, in the end, these potentially balance-tipping documents might prove to be “the sole” means of resolving that issue There is just too much at stake to leave it to hazard.

41I turn, finally, to the case law provided by Mr. Phillips, who made the point that the purpose for which disclosure is sought may provide the basis for an exception to the rule. This is what he said in that regard:

The circumstances are these, a third party to the Minutes of Settlement, in this case Mr. McKinnon, seeks to obtain copies of the Minutes of Settlement, not to address the issue of whether or not -- I'm going to use Fic and Rusaw as my example because Fic and Rusaw is a case in which OPSEU was signatory to the minutes. Mr. McKinnon, as I understand it, doesn't seek to comment on whether or not Fic and Rusaw have a valid grievance, whether or not the Ministry had a defence, he wants to use it, as I understand it, for a different purpose, that purpose being, is the Ministry being engaged in either an ad hoc or systemic process whereby it protects its managers, such as Ms. Buhagiar, from the consequences of a substantiated WDHP complaint by making the matter go away before that substantiation of the matter of record. So that's a totally different issue than the substance of the Fic and Rusaw complaint.

It seems to us, on our review of the law, that where a third party who is not a signatory to the minutes seeks to obtain the documents because they are relevant to an issue other than the strength or weakness of the case that was the subject of the minutes, that that is an exception to the rule. The reason is because the whole purpose behind the settlement privilege, as it were, is that we all take notice that … encouraging settlement is a value, and it's only going to happen if the parties can have frank discussions, make concessions of a sort in the course of discussions, or if they can reach an agreement and they didn't want any of that thrown back in their face at a later date to say, aha, you knew you had a weak case and that's why you made all those concessions, and that's what it's there to protect. It's that dynamic.

42Mr. Phillips took me through the following decisions of the Ontario High Court of Justice: Mueller Canada Inc. v. State Contractors Inc., 1989 CanLII 4117 (ON HCJ), [1989] O.J. No. 2059; Seanco Investments Inc. v. Betovan Construction Ltd., [2006] O.J. No. 274; Robichaud v. Clarica Life Insurance Co., 2007 CanLII 39764 (ON SC), [2007] O.J. No. 3648; Sabre Inc. v. International Air Transport Assn., [2009] O.J. No. 903. According to Mr. Phillips:

The principle [that emerges from those cases] is on all fours with the production request here. That is, it is not being sought [in order to] throw that settlement in the face of one of the parties to it, to suggest they did or did not have a strong case with respect to the grievance; it's being asked for in the hopes that it will illuminate an entirely different set of circumstances to make an entirely different point.

43Whereas it is unnecessary to repeat his entire submission regarding these cases, the following passages quoted from two of them are helpful:

[From Mueller, at p. 5] Where documents referable to the settlement negotiations or the settlement document itself have relevance apart from establishing one party's liability for the conduct which is the subject of the negotiations, and apart from showing the weakness of one party's claim in respect of those matters, the privilege does not bar production.

[From Seanco, para. 44] A privilege may not exist where negotiations have resulted in a concluded settlement and the evidence is sought for a different purpose. ...

[From Seanco, para. 47] The Defendants are not attempting to use an admission of liability made by Yakubowicz or Normart during the settlement of the 1994 Minden Gross Action for the purpose of making a monetary claim about Yakubowicz or Normart or their affiliates or assigns. The documents, discussions and negotiations leading up to the settlement and the terms of the settlement have relevance apart from establishing Yakubowicz or Normart's liability in the 1994 Minden Gross Action or the weakness of their claim against Lebovic or Minden Gross. I adopt the reasoning of Dougherty J.A. in Mueller and find that the settlement discussions and the terms of settlement ... are not privileged.

44In Rush & Tompkins it was said that “the ‘without prejudice rule’ is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish”. It seems to me that no one would be discouraged from negotiating a settlement simply because a court may order the disclosure of such a document for a purpose that does not impugn that settlement or affect its terms. While I find strong support therein for the conclusion to which I have come, I do not place ultimate reliance on the jurisprudence cited by Mr. Phillips because, unlike in the circumstances before me, admission of the documents was sought in those cases by one of the parties to the settlement. In that context, however, it is worth noting that, although the intervenor OPSEU cannot actively seek its disclosure, Mr. Phillips pointedly advised the Tribunal that his client, as a signatory to the so-called Fic-Rusaw settlement, has no objection to its production for the purposes of this case.

45It is for the above reasons that the Ministry must provide the other parties with the minutes of settlement regarding the Fic-Rusaw and Medeiros grievances in accordance with my ruling of May 19, 2010.

Dated at Toronto, this 2nd day of June, 2010.

“Signed by”

H. Albert Hubbard Adjudicator

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael McKinnon Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Correctional Services, Frank Geswaldo, George Simpson, Phil James and James Hume Respondents

-and-

Ontario Public Service Employees Union Intervenor

Amended INTERIM DECISION

Adjudicator: H. Albert Hubbard Date: June 11, 2010 Citation: 2010 HRTO 1235 Indexed as: McKinnon v. Ontario (Correctional Services)

APPEARANCES

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Ministry of Correctional Services, ) Leslie McIntosh and Frank Geswaldo, George Simpson, ) Christopher Thompson, Counsel Phil James and James Hume, Respondents )

Ontario Public Service Employees ) Joshua Phillips, Counsel Union, Intervenor )

1The following amendments are made to paragraphs 38 and 40 of my Interim Decision 2010 HRTO 1235 issued June 2, 2010. The amendments are underlined.

38I do not read that passage as laying down a substantive rule of invariable application; rather, I think it is simply a statement as to why it was found that an overriding principle of justice required an exception to be made in “the circumstances of that case”. Furthermore, the proposition that a court cannot compel disclosure of a privileged document required in the interests of justice or overriding public policy, unless it is also the sole means of proving an allegation, seems inconsistent with its obligation to determine the facts on a balance of probabilities―an obligation that can only be met by weighing all the relevant evidence, including the document in question.

40Even should I have misconstrued the meaning of “necessary” as it is used in Dos Santos, it happens that I am of the view that in the circumstances of the present case disclosure of these minutes of settlement is necessary. The failure to have brought their existence to the attention of the other parties is one of a number of failures by the Ministry to disclose relevant matters in a timely way, and the questions that Ms. McIntosh suggests be put to witnesses in lieu of their disclosure might better have been put to Ministry witnesses who gave their evidence long before the existence of the settlement agreements became known to the Complainant. Moreover, without the minutes of settlements as background information there is no clear basis for formulating probing questions or for testing responses that might be simply self-serving. The production of these agreements is necessary in this case because they may constitute critical evidence in deciding an issue of fact; indeed, in the end, these potentially balance-tipping documents might prove to be “the sole” means of resolving that issue. There is just too much at stake to leave it to hazard.