GSB# 2002-0474

UNION# 2001-0506-0001, 2001-0506-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Vangou)

Union

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Hilary Cook

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER

Suneel Bahal

Counsel

Management Board Secretariat

FOR SERCO DRIVER EXAMINATION SERVICES INC:

Irv Kleiner

Torkin Manes Cohen Arbus

Barristers & Solicitors

HEARING

February 28, 2005.

Interim Decision

In this proceeding the Board is seized with a grievance filed by Ms. Emma Vangou alleging that the employer had discriminated against her on the basis of her disability, and harassed her because of her trade union activity. There are a number of allegations made by the union in support of the grievance, including the manner in which the grievor was treated by the employer during her attempts to be accommodated following an injury, and following her return to work; the manner in which the grievor’s work performance was supervised and evaluated; and the employer’s conduct with respect to the grievor’s unsuccessful application for employment as a driver examiner with Serco Driver Examination Services, Inc. (“Serco”). Serco had, under a 10-year agreement with the Crown, obtained the right to operate driver examination centres throughout Ontario, following a decision by the government of Ontario to divest itself of that function. It is the union’s position that the grievor was subjected to harassment and discrimination throughout these events because of her disability and because she had been a union activist.

The instant dispute relates to that aspect of the grievance relating to the grievor’s unsuccessful bid to obtain employment with Serco following the divestment by the Crown. The union served a subpoena duces tecum on an officer of Serco, requiring him to produce the three employment references for the grievor, provided to Serco by three members of management of the Ministry. On the hearing date the subpoena was returnable, counsel for the Serco appeared, and objected to the production of the references. The Ministry supported Servo’s objection, except that it took no position with regard to one of the three references because its author had consented to its production. A hearing was convened at which submissions on a motion to quash the subpoena were received from each of the parties.

The evidence indicates that Serco used three main tools in assessing applicants for driver examiner positions. It reviewed the contents of the application itself, each applicant was interviewed, and references were obtained and checked. The grievor had provided the names of three individuals from the Ministry as referees. Each of them provided a reference for her. The reference checks were done by either Serco staff or contract employees hired for that purpose. They did the checks by telephone, asking the referees a set of questions and writing down notes on their responses. These notes were used in the hiring decisions ultimately made by the Area Manager.

Serco was looking for “above average” employees who had the requisite qualifications, had demonstrated good customer service and ability to work well with supervisors and co-workers. The Director of Human Resources of Serco at the time testified that when measured against these criteria the references provided for the grievor were “bad”. The union is seeking the production of the notes made by Serco reference checkers wherein the referees’ comments over the telephone were recorded.

It is conceded by all parties that pursuant to S.48(12)(b) of the Labour Relations Act this Board has the power “to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing ...”. The test of relevancy at the production stage is not high. If the material sought is “arguably” or “potentially” relevant, the test is met. The Ministry nor Serco took the position that the references sought are not relevant in this sense. Since it is the union’s position that the Ministry acted in bad faith towards the grievor in relation to her application for employment with Serco, I find the references to be arguably or potentially relevant. Therefore, in the normal course, the union was entitled to their production pursuant to a subpoena duces tecum. See, Re Canada Post, (1994), 1994 CanLII 18612 (CA LA), 43 L.A.C. (4^th) 285 (Burkett) at p. 287.

However, material which is relevant to the litigation may nevertheless be not subject to production if they are “privileged”. In R v. Gruenke, (1991) 1991 CanLII 40 (SCC), 3 S.C.R. 263 (S.C.C.), the court distinguished between two categories of privilege. The first type recognized at common law creates a prima facie presumption of inadmissibility if it fits within a recognized class of privilege, such as a solicitor-client privilege, unless the party seeking production can show an exception to the general rule.

The second type of privilege is referred to as “case-by-case privilege”. In this type the prima facie presumption is that the material is not privileged. The party resisting production must satisfy the court or tribunal that in the particular circumstances of the case privilege should be accorded to the material. This is done by satisfying what is known as the Wigmore test. This test, which was adopted by the Supreme Court of Canada in Slavutych V. Baker (1976) 1975 CanLII 5 (SCC), 1 S.C.R. 254 consists of four conditions:

(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.

In Steep v. Scott (2002) 2002 CanLII 53248 (ON SC), 62 O.R. (3d) 173, at p. 179 the Ontario Superior Court of Justice noted that in R. V. Gruenke (supra) the S.C.C. made it clear that in applying the Wigmore test the particular circumstances of the case at bar must be examined. In the Law of Evidence in Canada (2^nd Ed), by Sopinka, Lederman and Bryant at p. 623, the authors observe as follows about the manner in which the Wigmore test has been applied in Canada:

The exclusionary rule of privilege, however, rests upon a different foundation. It is based upon social values, external to the trial process. Although such evidence is relevant, probative and trustworthy, and would thus advance a just resolution of disputes, it is excluded because of overriding social interests.

In any discussion about privilege, one must keep in mind a constant conflict between two countervailing policies. On the one hand, there is a 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 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.

Anglo-Canadian Law has, for the most part, given priority to the administration of justice over external social values. In fact, the trend in Canada is to limit the recognition of privilege in favour of the search for truth in the judicial process.

In the case at hand, the privilege asserted by Serco and the Ministry is of the second type. Therefore the Wigmore test comes in to play.

Counsel for Serco referred me to the following authorities. Slavutych v. Baker (supra); Smith v. Royal Columbia Hospital, (1981), 1981 CanLII 759 (BC SC), 123 D.L.R. (3d) 723 (B.C.S.C.); Straka v. Humber River Regional Hospital, (2000) 2000 CanLII 16979 (ON CA), 51 O.R. (3d) 1 (Ont. C.A.); MacKenzie v. Kutcher (2003) N.S.J. No. 125 (N.S.S.C.); Steep v. Scott (supra); and Hawley v. Fearn-Stewart, (2003) 2003 CanLII 35018 (ON SC), O.J. No. 3910 (Ont. S.C.J.).

I will not review each of the foregoing judgements, because as already noted, the application of the Wigmore test depends on the facts of each particular case. In R v. Gruenke, (supra) at p. 290, the Supreme Court of Canada observed:

This is not to say that the Wigmore criteria are now “carved in stone”, but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court.

(Emphasis added)

Serco relied heavily on the Straka decision (supra), noting that unlike the other authorities cited, it dealt specifically with the application of the Wigmore test to reference letters. In that case the court held that the letters satisfied the four conditions of the test. In Straka the appellant took the position that conditions (2) and (4) of the Wigmore test had not been met. Following a review of the evidence, at para.70 the court concluded “that this evidence is persuasive and that it should be accepted. The second condition in Wigmore is, therefore, satisfied.” Having concluded that condition 3 had also been met, the court turned to the fourth condition at paras. 75 to 84:

75I turn now to the other element to be weighed in the application of the fourth Wigmore condition.

76It may be noted that this condition appears to assume that there is litigation afoot that may not be correctly determined for lack of relevant evidence, i.e. it involves the assertion of the privilege in the course of a trial. This is not quite our situation. The basic question in the present case is whether the appellant should be put in a position, as a result of a successful discovery proceeding, to commence a proceeding against the reference-givers and, then, to have a correct disposition of that proceeding.

77I accept that access to the courts is a fundamental right in our legal system. I would not want to compare it in general terms with a litigant’s right of access to evidence in existing proceedings, with a view to determining which is deserving of greater protection. On the facts of this case, I have already concluded that the appellant’s claim has sufficient bona fides to escape being dismissed at the threshold level. Through no fault of the appellant, of course, his case is not as strong as that of the applicant in Norwich Pharmacal, where it was reasonably clear that the applicant’s patent rights had been infringed and that all that stood in the way of the applicant asserting its rights was lack of knowledge of the infringer’s identity.

78The present case has an additional complexity. Even if it were assumed that the letters were defamatory, there would likely be defences of justification and qualified privilege to be met and overcome before the appellant could ultimately succeed.

79The appellant’s main interest, in the correct disposal of the litigation he contemplates, is the clearing of his name and to “become eligible to obtain an active staff appointment at the respondent hospital”. I have earlier in these reasons set forth a part of the appellant’s affidavit in which this quotation appears. The affidavit was sworn five months after the sending of the appellant’s lawyer’s letter to Humber in which he said that the appellant’s desire to have the reference letters produced “had absolutely nothing whatever to do with Dr. Straka’s locum tenens or medical staff privileges at the Humber River Regional Hospital”. Accordingly, it may be taken that now the appellant has an interest in the active staff appointment at Humber.

80I think that it is at this point that the appellant’s rights under the Public Hospitals Act, ss. 37-39 and 41-43 are a relevant consideration. Under the Act the appellant has the right to have his entitlement to appointment to Humber staff decided by Humber’s board or, on appeal, by the Health Professions Appeal and Review Board or, on further appeal, by Divisional Court. Appeals to the Divisional Court are wide open. They may be based on questions of law or fact, or both, and the court has all the powers of the tribunal below.

81The statutory procedure affords the appellant a straightforward route to clearing his name with the very organization that is in possession of the critical letters. As I have indicated earlier in these reasons, it may be that in this proceeding the letters would not be produced before or at the hearings before the hospital board or the appeal board. The appellant, however, would have reasonable disclosure of the case against him before the hearing and Humber’s medical advisory committee would be obliged to submit its case against the appellant at the hearing. This might necessarily involve the reference-givers being required to testify and subjected to cross-examination. This would not involve any breach of confidence or privilege respecting the correspondence but, if it should, I would think that the claim of privilege would be answered by the policy of the Public Hospitals Act procedure.

82The existence of the statutory procedure, which is open to the appellant, is a relevant factor to take into account in considering what weight should be given to the benefit of the correct disposal of the litigation that the appellant contemplates in the present proceeding. This litigation is somewhat complex and necessarily involves the overriding of an asserted privilege. Its benefit, when weighed in the scales against the injury to the public interest sought to be protected by the privilege, is weakened by the fact that the contemplated litigation is not the only way in which the appellant can achieve his basic purpose. The only possible benefit which the appellant would not have by following the statutory route would be the recovery of damages.

83When the benefit of the correct disposal of the litigation is considered in this wider context, I have little difficulty in concluding that the injury to the relation, i.e. to the peer review process, would clearly exceed the benefit of the correct disposal of the litigation.

84Accordingly, in my view, the fourth Wigmore condition has been satisfied and, in result, the claim for privilege with respect to the letters is established.

Obviously, recognizing that the privilege resulting from the application of the Wigmore test is a case-by-case privilege, Straka does not stand for a general proposition that reference letters are privileged. Each case turns on its own particular facts. It is also to be noted, as the union pointed out, that under S.48(12)(f), this Board has the power to accept oral or written evidence that in its discretion considers proper, “whether admissible in a court of law or not”. In the instant case, the union conceded that the first condition in Wigmore is satisfied. It is significant to note that conditions 2, 3 and 4 all refer to the “relation”. It is this relation that is to be protected and fostered by according a privilege. What is the “relation” that is referred to in Wigmore. In Straka, the court held that in that case it was “...the relation between those replying to requests for reference letters and the requesting hospital”. In the present case the privilege must be considered with a focus on the relation between Sarco and reference-givers from Ministry management.

I will not consider whether conditions two and three of the Wigmore test are met because on a thorough examination of the circumstances of the case before me, I have concluded that condition 4 has not been satisfied. It is my conclusion that the circumstances in Straka are distinguishable from those before me.

First, I turn to the potential injury that may be caused to the relation between Ministry reference givers and Serco by the disclosure of the references. In this regard, the facts are very different than those in Straka, where the relation to be protected was that of a peer review process. Thus at para. 83 the Court in Straka concluded: “When the benefit of the correct disposal of the litigation is considered in this wider context, I have little difficulty in concluding that the injury to the relation, i.e. to the peer review process, would clearly exceed the benefit of the correct disposal of the litigation”. (Emphasis added) In Straka the references in question were part of a peer review process, i.e. medical professionals commenting on the performance and abilities of colleagues. It is not difficult to understand why that peer review process was considered critical. The references were about a medical professional, a certified specialist in Anaesthesia. It is highly improbable that such a medical professional is subjected to any kind of formal performance evaluations as is customary with ordinary workers in a unionized environment. The point is that apart from peer evaluation there will be few, if any, alternative sources of information about the doctor’s performance and abilities. Also, it is not at all difficult to see that a medical professional who is requested to evaluate the performance of a colleague, would find the task awkward. In that situation, the assurance of confidentiality becomes that much more critical in providing the reference giver some level of comfort in giving an honest assessment of his or her colleague.

In contrast, in the case before me, the references are not provided by peers. The references are about employees who are in the normal course subjected to supervision and evaluation by supervisors. It is not at all unusual for supervisors to comment, and if necessary document performance deficiencies of employees under their supervision. Where deemed necessary supervisors would confront employees about work deficiencies or inappropriate conduct. Sometimes supervisors would initiate discipline on employees. In this context, in my view, the weight to be attached to the importance of confidentiality of references provided by these same supervisors for a former employee is much less. If supervisors, as part of their management function, are expected to counsel, confront and even discipline employees during a continuing employment relationship, why would it be any more difficult for the same supervisors to comment on the performance of an individual, who has already left the employ of the Ministry, merely because such comments may not be held in confidence? If anything, it should be less awkward for a supervisor to criticize an ex-employee, than criticizing a current employee who the supervisor must continue to work with. Besides, in the context of the present case, the Ministry was entitled to evaluate the employee performance and to document deficiencies and action taken thereupon (including discipline). This information is typically included in the employee’s personnel file. More often than not, any references provided by supervisors would reflect the contents of the particular employee’s performance as recorded in the file. Indeed, if the references are substantially at odds with the documented record of performance, it would warrant some explanation.

Besides, the evidence indicates that there is no ongoing relations between Serco and the Ministry reference-givers in that the Ministry’s divestment of driver examiner services is complete. There is no suggestion that Serco will in the future continue to request references from Ministry supervisors because the evidence is that the hiring process involving ex-Ministry driver examiners is complete. Serco counsel alerted the Board about the possibility that if production is ordered, Serco will not be able to obtain honest references from anyone. Similarly Ministry counsel expressed concern about the Ministry, and even the crown as a whole, losing the ability to obtain candid and reliable references. However, those concerns are misplaced. The Wigmore test nor this decision results in a pronouncement that reference letters in general are not subject to any privilege. Where they meet the four fold Wigmore test, they will be held to be privileged. This decision only finds that these particular references are not privileged because they do not satisfy the Wigmore test.

This leads me to examine the relative benefit gained for the correct disposal of this grievance by ordering production of the references. In Straka, at stake was a possible litigation with the goal of the appellant (1) clearing his name and (2) becoming eligible to obtain an active staff appointment at the respondent hospital. Those rights were strictly personal to him and of no general public interest. In contrast, in the instant case the rights being pursued in the grievance - the right not to penalized because of union activity and not to be discriminated on the grounds of disability - are rights accorded by the collective agreement that incorporate public policy enshrined in statute, namely the Ontario Labour Relations Act and the Human Rights Code. The protection of these rights is a matter of public policy.

The party to the instant arbitration is the trade union. Quite apart from the grievor’s personal interest in the outcome of the grievance, the union has an institutional interest in ensuring that its bargaining unit members are not unlawfully subjected to retaliation, which is a major part of the allegations in this grievance. In these circumstances, the importance of the correct disposal of the grievance takes greater significance, than in a case like Straka where the rights at stake are personal to the individual litigant.

Serco and the Ministry pointed out that an unfair labour practice complaint filed by the grievor (and several other individuals) was pending before the OLRB. It was argued that as in Straka, that alternate forum available to the grievor should tip the balance in favour of extending a privilege to the references. There is no question that in Straka, the court was greatly influenced by the availability to the appellant of a process under The Public Hospitals Act, to have his right to an appointment to the staff of Humber Regional Hospital determined through a number of appeals, including an appeal to the Divisional Court. However, I note two important factors. In the instant case, the union (the party to the arbitration) is not a party to the OLRB proceeding. The party is the grievor in her personal capacity. More importantly, a careful review of the court’s reasoning in Straka indicates that what influenced the court was not the availability of the alternate process per se, but its conclusion that the appellant, in that process would likely have access to the very information it was seeking. Thus at para. 81 the court wrote:

81The statutory procedure affords the appellant a straightforward route to clearing his name with the very organization that is in possession of the critical letters. As I have indicated earlier in these reasons, it may be that in this proceeding the letters would not be produced before or at the hearings before the hospital board or the appeal board. The appellant, however, would have reasonable disclosure of the case against him before the hearing and Humber’s medical advisory committee would be obliged to submit its case against the appellant at the hearing. This might necessarily involve the reference-givers being required to testify and subjected to cross-examination. This would not involve any breach of confidence or privilege respecting the correspondence but, if it should, I would think that the claim of privilege would be answered by the policy of the Public Hospitals Act procedure.

(Emphasis added)

Thus it was the availability of access to the information, rather than the availability of the alternate process itself that influenced the court. As I understand it, in the pending unfair labour practice complaint both Serco and the Ministry are named as respondents. Yet neither party suggested that the grievor is likely to have any better access to the contents of the references before the OLRB. On the contrary, Counsel for Serco, while pointing out that the respondents will have a reverse onus, candidly took the position that Serco would not be required to, and would not, give up the confidentiality of the references in the OLRB process, and that any summons for production would be met with a similar motion as was brought before this Board.

Counsel for the Ministry submitted that the information sought i.e. the references, are relevant only to one allegation of many made by the grievor against the Ministry, and that the grievor and the union could prove all the other allegations without that information. The suggestion, therefore, was that the information was not very important for the grievor and the union. Counsel for Serco submitted that the “references are a collateral evidentiary issue in a much larger case”. I disagree. The grievance involves an allegation of harassment due to union activity and discrimination on the basis of disability. Harassment and discrimination always involve a course of conduct. The many allegations made are not discreet and unrelated events. They form part of the grievor’s claim that she was the subject of a pattern or course of conduct of harassment and discrimination by the Ministry for unlawful reasons. All of the allegations, if proven, will go to establish that course of conduct.

Unlike in the cases relied on by Serco, in the present case bad faith is front and centre. In other words, the union is seeking access to the references in an effort to prove that the Ministry acted in bad faith in providing the references and that in so doing it was motivated by unlawful considerations. If the references are cloaked in secrecy, the grievor and union, would have no means of ascertaining if its suspicions are well founded. On the other hand, if references are accorded privilege in these particular circumstances, it would enable an employer to contravene the collective agreement and public policy statutes, without fear of being held accountable.

In concluding that the fourth condition in the Wigmore test favours the disclosure of the references, I have also considered the fact that safeguards can be put into place, in order to minimize any injury to the relations between Serco and its reference-givers. On a consideration of all of the factors, I conclude that the motion to quash the subpoena should be denied.

It is hereby ordered as follows:

(1)Pursuant to the subpoena, issued Serco shall produce to the union’s legal counsel, as soon as practicable before the next scheduled hearing date, all notes and records of the references provided for the grievor by the three reference givers.

(2) Union counsel may share the information produced only with the grievor. All documents produced may not be copied, reproduced, read, conveyed or communicated in any manner by the grievor or the union for any purpose other than the present arbitration. The documents shall remain in the exclusive possession of union counsel.

I remain seized in the event the parties cannot agree on the proper implementation of this interim decision.