GSB# 2002-2964, 2002-2965, 2002-2966, 2004-2332, 2005-0944, 2005-3167

UNION# 2003-0634-0001, 2002-0634-0005, 2002-0634-0004, 2004-0634-0003, 2005-0634-0001, 2005-0634-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McCormick)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Caroline V. Jones Paliare Roland Rosenberg Rothstein LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris and Fateh Salim Counsel Ministry of Government Services

HEARING

October 16, 2006.

Decision

The union has sought production of a number of documents, and such production has been ordered by the Board. The employer claims privilege to a large number of documents. A hearing was held on October 16, 2006 to consider the employer’s claims of privilege.

The employer’s claims privilege for solicitor/client communications, litigation privilege, and a more general claim under the Wigmore principles for material that can be generally described as internal labour relations communications.

The documents are considered below in the manner in which there were bundled for this motion, i.e. according to their sources. The documents are identified by the date provided in the employer’s spreadsheets for each bundle. The date is used for reference purposes only, and unless otherwise specified, the privilege attaches to all documents in the ‘chain’ printed under the specified date, in accordance with the printed material provided to me. I provide a short reason for each exclusion of document or denial of privilege.

I also wish to note that I have reviewed the full documents in Bundle 3 – Equal Opportunity Handwritten Notes, and am satisfied that the material redacted from the first copies I received are wholly unrelated to the grievances before me. As a result, where I have indicated that such documents are to be disclosed, the employer is to provide a copy to the union with such unrelated material deleted.

Finally, the onus is on the employer to establish that the privilege attaches in relation to each document, and I have made my ruling based on the information provided.

1. Solicitor Client Privilege

Solicitor/client privilege attaches to communications between an individual and a qualified lawyer, made within the solicitor/client relationship, for the purpose of obtaining legal advice and representation.

The following documents are covered by solicitor/client privilege and are not to be disclosed.

Bundle 1 – Equal Opportunity File ‘A’

• May 29/05 – directed to Andrew Baker
• March 18/05 – communication to Andrew Baker regarding legal matters
• December 10/03 – communication detailing legal matters raised by Andrew Baker with Keith Bryer.
• December 15/03 – email discussion arising from report by Keith Bryer on discussion held with Andrew Baker re legal matters
• November 7, 2002 – (page 15 of spreadsheet) – communication of legal matters from Benjamin Perry

Bundle 3 – Equal Opportunity Handwritten notes

• November 6/02 – solicitor client privilege not asserted but also not waived - request for legal advice to be relayed to Ben Perry

Bundle 4 – HR Grievance File Part (i)

• March 21/06 – email to Suneel Bahal dealing with legal matters
• January 31/06 – discussion of legal matters with Suneel Bahal
• December 19/05 - discussion of legal matters with Suneel Bahal
• November 23/05 – discussion of legal matters involving Suneel Bahal
• September 9/05 – although solicitor/client not specifically asserted, it has not been waived – this document deals with a discussion of a document which includes various options, and a recommendation from legal services (Suneel Bahal) with respect to which option is best.
• September 7/05 – although solicitor/client not specifically asserted, it has not been waived – this document deals with a discussion of a document which includes various options, and a recommendation from legal services (Suneel Bahal) with respect to which option is best.
• May 29/05 – email to Andrew Baker, among others, seeking advice re legal matters
• May 16/05 – although solicitor/client not specifically asserted, it has not been waived - email referencing legal advice from Andrew Baker
• March 18/05 – upheld in part – email from Keith Bryer to Andrew Baker and others dated March 18 at 8:42 a.m. including attachment, may be read as requesting legal advice and is privileged. Remainder of exchange, not solicitor/client privileged.

Bundle 5 – HR Grievance File Part (ii)

• August 8/06 - email discussion of legal matters with Suneel Bahal
• July 20/06 - email discussion of legal matters with Suneel Bahal
• July 19/06 - email discussion of legal matters with Suneel Bahal
• July 19/06 – notes of conference call discussion of legal matters with Suneel Bahal
• March 27/06 - email discussion of legal matters with Suneel Bahal
• March 22/06 – email discussion of information requested by counsel
• March 21/06 – notes of discussion with counsel
• January 11/06 - email discussion of legal matters with Suneel Bahal
• January 4/06 – notes of discussion of legal matters with counsel
• December 19/06 - email discussion of legal matters with Suneel Bahal
• December 13/06 - email discussion of legal matters with Suneel Bahal
• November 30/05 - email report on discussion of legal matters with Suneel Bahal
• November 30/05 - email discussion of legal matters with Suneel Bahal
• November 23/05 – copy of Suneel Bahal correspondence and discussion of related legal issue.
• May 5/05 - email discussion of legal matters with Andrew Baker
• April 27/05 - email discussion of legal matters with Andrew Baker
• April 20/05 - email discussion of legal matters with Andrew Baker and Suneel Bahal
• March 30/05 – notes of conference call re legal matters with counsel
• March 18/05 - email discussion of legal matters with Andrew Baker
• February 21/05 - email discussion of legal matters with Andrew Baker
• February 18/05 – notes of conference call re legal matters with Andrew Baker
• February 10/05 - email discussion of legal matters with Andrew Baker
• February 10/05 - email discussion of legal matters with Andrew Baker
• February 9/05 – notes of conference call discussion re legal matters with Andrew Baker
• January 27/05 – email from Andrew Baker re legal matters
• January 11/05 – notes from conference call with Andrew Baker re legal matters
• January 4/05 – email discussion of legal matters with Andrew Baker
• April 23/04 - email discussion of legal matters with Andrew Baker
• November 25/03 – notes of discussion of legal matters with Andrew Baker
• November 21/03 – notes of discussion of legal matters with Andrew Baker

Bundle 6 – Management Files

• January 27/05 – forwarded email from Andrew Baker re legal matters
• February 21/05 – email discussion of legal matters with Andrew Baker
• April 23/05 - email discussion of legal matters with Andrew Baker
• April 26/05 - email discussion of legal matters with Andrew Baker

The following documents are not covered by solicitor client privilege:

Bundle 4 – HR Grievance File Part (i)

• May 31/05 (4th from bottom on page 7 of spreadsheet) – Most of the emails in this chain deal with a discussion of fact finding with respect to WDHP allegations filed by the grievor. The first email in the chain, from Keith Bryer dated May 31, 2005, 8:59, copied to Suneel Bahal and Andrew Baker, is excluded as a communication of information to counsel with respect to this matter. The rest of the chain, including the attachment, is not covered by solicitor client privilege.
• May 31/05 (3rd from bottom on page 7 of spreadsheet) – Most of the emails in this chain deal with a discussion of fact finding with respect to WDHP allegations filed by the grievor. The first email in the chain, from Keith Bryer dated May 31, 2005, 8:59, copied to Suneel Bahal and Andrew Baker, is excluded as a communication of information to counsel with respect to this matter. The rest of the chain, including the attachment, is not covered by solicitor client privilege.
• July 31/02 – no indication that this was a communication with or even about counsel or with respect to legal advice or representation.

Bundle 5 – HR Grievance File Part (ii)

• September 12/03 – two sets of notes of conference call discussion. Scheduling of arbitration mentioned, but notes relate to issue with respect to grievor’s possible return to Wasi. No indication of counsel involved or discussion of legal advice.

2. Litigation Privilege

Litigation privilege attaches to documents that are created for the “dominant purpose” of assisting counsel in the preparation and presentation of a matter for litigation. The purpose of the privilege is to “…ensure the efficacy of the adversarial process…”, by protecting the right of the parties to prepare their respective cases in privacy, without concern that such work will be revealed to the other party. In my view, this does not mean that all documents relating to the grievor became litigation privileged when she filed her first grievance or the first grievance was referred to arbitration. Rather, each document must be assessed in the context of the issues it addresses. Thus, the content must be related to litigation. Furthermore, given the nature of allegations, the Board must be sensitive to the concern that documentation related to the employer’s decision-making and thought process with respect to the grievor are not improperly shielded by assertions of litigation privilege. Documents that were created by either party as part of the grievance/mediation/arbitration process, e.g. notes of grievance meetings, have been included in this category, and, in accordance with establish arbitral jurisprudence, have been excluded from production. Any document for which solicitor client privilege has been upheld and for which the employer has also asserted litigation privilege are not considered.

The following documents are covered by litigation privilege and are not to be disclosed. I provide a short reason for each exclusion:

Bundle 1 – Equal Opportunity File ‘A’

• May 13/05 – although not directed to the lawyer, it contains a draft of a request for a legal opinion that is to be put to the lawyer – if not solicitor/client, it is at least litigation privilege
• May 16/05 – contains email attachment containing advice from Andrew Baker – if not solicitor/client, it is at least litigation privilege
• December 15/03 (on page 9 of the spreadsheet, not page 10) – [the rest of the emails in the December 15/03 chain will be considered below under litigation privilege]

Bundle 2 – Equal Opportunity File ‘B’

• November 25/02 – discussion of options with respect to WDHP investigation focused on how each option would impact at arbitration.

Bundle 4 – HR Grievance File Part (i)

• June 27/06 – report to Suneel Bahal re confidentiality of medical information issue – if not solicitor/client, clearly litigation privilege.
• November /05 – chronology contains details of settlement discussions – appears to have been produced in order to assist with litigation process and, in addition, contains details of settlement discussions.
• November 15/05 – the emails are a discussion of a report of a meeting between Jason Connolly and Suneel Bahal dealing with legal matters.
• November 10/05 – although lawyers not copied, is a discussion of legal materials being prepared by Legal Services, involving Jen Richards and Suneel Bahal.
• March 4/05 – discussion regarding strategy for pending arbitration hearing.
• February 17/05 – notes re mediation
• February 10/05 –notes re conversation re hearing
• September 30/04 – employer’s notes from grievance meeting
• March 17/04 – employer’s notes from grievance meeting
• November 7/03 – discussion regarding strategy for pending arbitration
• March 18/03 & April 14/03 notes – April 14 portion is notes regarding settlement discussions and are not to be produced. March 18 portion not for dominant purpose of litigation and is to be produced. Therefore, employer to produce document with April 14 portion blacked out or otherwise removed.

Bundle 5 – HR Grievance File Part (ii)

• February 1/06 – report and discussion of arbitration hearing.
• July 7/05 – email discussion of steps taken by counsel related to hearing.
• March 9/05 – chronology prepared for litigation process – also contains discussion of settlement proposals.
• December 16/03 – notes from conference call dealing with litigation strategy – I also note there appear to be references to advice/issues raised by legal counsel, Andrew Baker.
• November 24/03 – notes from conference call dealing with litigation strategy.
• April 14/03 – notes re settlement discussions.

Bundle 6 – Management Files

• January 11/05 – email discussion of plans for arbitration session
• January 26/05 – notes from grievance meeting

The following documents are not covered by litigation privilege:

Bundle 1 – Equal Opportunity File ‘A’

• May 25/05 – this document is not related to preparation for litigation but rather a discussion of developments, with a suggestion they be forwarded to counsel.
• May 18/05 – this document is not related to preparation for litigation but rather a discussion of developments, with a suggestion they be forwarded to counsel.
• May 10/05 – these are notes of the investigation of the grievance filed on May 3/05. As part of the investigation, they cannot be said to be for the ‘dominant purpose’ of litigation.
• March 7/05 (first document identified as March 7 on page 8 of the spreadsheet) – discussion of how a potential WDHP complaint was to be handled – although grievor decides she will defer to arbitration, I do not see this document at the employer’s end as having been prepared for the ‘dominant purpose’ of preparing for litigation.
• November 1/04 – no apparent connection between document and pending litigation, rather a discussion of issues, concerns with grievor.
• April 8/04 – document and attachment is directed at dealing with relationship in the workplace. The ‘dominant purpose’ is not for preparation for litigation.
• September 12/03 – discussion of the grievor’s return to work - dominant purpose not for litigation.
• November 7/03 – discussion of work refusal at workplace - dominant purpose not for litigation.
• February 13/03 - discussion of the grievor’s return to work - dominant purpose not for litigation.
• August 20/02 – discussion of whether grievor should attend training while investigation is - dominant purpose not for litigation.
• July 22/02 – discussion of grievor’s pay during investigation - dominant purpose not for litigation.
• July 19/02 – same as July 22 above
• July 8/02 – email re draft letter of suspension for grievor - dominant purpose not for litigation – NOTE – attachment not provided with this document
• July 2/02 – draft of letter to grievor’s former counsel specifically stated in covering email to be an employee relations/WDHP matter not to involve employer counsel. Dominant purpose not for litigation.

Bundle 3 – Equal Opportunity Handwritten notes

• January 27/03 – discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• February 5/03 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• March 1/04 – discussion with grievor re issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• March 8/04 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• March 9/04 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• March 12/04 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation.
• March 16/04 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation
• June 22/04 - discussion of issues related to the grievor’s status in the workplace. Dominant purpose not for litigation

Bundle 4 – HR Grievance File Part (i)

• November 4/05 & November 7/05 – conference call notes dealing with issues arising from grievor’s allegation of breach of confidentiality. Dominant purpose not for litigation.
• October 17/05 – email discussion of issues related to arranging for IME. Dominant purpose not for litigation.
• October 12/05 – email discussion of issues related to arranging for IME. Dominant purpose not for litigation.
• September 27/05 – email discussion of issues related to arranging for IME. Dominant purpose not for litigation.
• September 1/05 – notes of discussion related mainly to grievor’s medical issues. Decision to refer matter to legal services “from now on” but dominant purpose of this document not to assist in litigation.
• May 18/05 – notes of discussion related to pay issue for attendance at grievance meeting. Dominant purpose not for litigation.
• May 10/05 - notes of discussion related to pay issue for attendance at grievance meeting. Dominant purpose not for litigation.
• April 5/05 – doctor’s notes from grievor with comments attached – no basis for concluding the note was written for the dominant purpose of litigation.
• March 18/05 – one email already privileged on solicitor/client basis. Remainder of exchange not covered by litigation privilege as deals with concern raised by grievor, not for the dominant purpose of litigation.
• February 22/05 – merely forwarding of email exchange involving grievor. Not for the dominant purpose of litigation, and grievor previously aware of all exchanges as she was participant.
• February 10/05 – email exchange regarding fact finding on November 15 incident – states on its face that no discipline yet imposed. Dominant purpose not for litigation.
• January 14/05 – email discussion of pay for grievor while attending GSB hearing. Dominant purpose not for litigation.
• September 10/04 – email discussion of grievor’s use of the email system. Dominant purpose not for litigation.
• September 3/04 – email discussing “bite me” incident. Dominant purpose not for litigation.
• September 2/04 – discussion of workplace incidents. Dominant purpose not for litigation.
• June 2/04 – discussion of pay issue related to grievor’s suspension in February 2003. Dominant purpose not for litigation.
• September 19, 2003 – email discussion of grievor’s return to WASI. Dominant purpose not for litigation.
• March 27/06 – the email appears to convey notes that were taken on March 3, 2003. Dominant purpose not for litigation.
• February 10/03 – notes of discussion of workplace issues with grievor. Dominant purpose not for litigation.
• January 15/03 – notes discussing strategy around discipline. Dominant purpose not for litigation.
• January 13/2003 – notes of meeting with grievor. Dominant purpose not for litigation.
• November 21/02 – email discussion of timesheet issue. Dominant purpose not for litigation.
• September 12/02 – email and document re terms of reference for WDHP investigation. Dominant purpose not for litigation.
• August 20/02 – email discussion of training issues. Dominant purpose not for litigation.
• July 31/02 – note to file – prior to first grievance being filed on August 28, 2002. Dominant purpose not for litigation.

Bundle 6 – Management Files

• January 17/05 – email discussion of grievor’s request re attending hearing. Dominant purpose not for litigation.
• May 25/05 – email discussion regarding grievor’s timesheet. Dominant purpose not for litigation.

Wigmore Privilege

Having addressed all of the issues related to solicitor/client and litigation privilege, I must now address the employer’s assertions of Wigmore privilege with respect to some of the documentation.

I do not accept the employer’s assertions with respect to the concept of Wigmore privilege in this case. The documents requested by the union, and not otherwise excluded, are arguably relevant to the matter before me. They relate to the employer’s internal discussions and processes captured by the grievances. I do not think the four Wigmore criteria compel the Board to the conclusion urged by the employer.

Although the communications may well have originated in an environment in which confidence was offered or assumed, the fact that the employer has already, quite properly, disclosed information gained through the WDHP process is an indication of the employer’s awareness that such information cannot be legally restrained. It is not clear to me why confidentiality is essential to maintaining the relationship of the individual’s whose communication is contained in the disputed documents. To the extent that their discussions involve legal advice or preparation for litigation, they are protected by the principles applied above. To the extent that their discussions shed light on the decision making process involving the grievor, they are subject to scrutiny to ensure they are consistent with the provisions of the collective agreement and applicable legislation. This is particularly the case where, as here, the grievor alleges discriminatory or harassing treatment on the part of some or all of those decision makers.

The comparison to the relationship between a shop steward and a grievor is not persuasive since, in the vast majority of arbitrations, the employer is the decision maker, and it is the logic or basis of the employer’s decision that is called into question. If the employer were permitted to shroud its decision making process, the goal of enforcing collective agreement rights would be impeded. For this reason, arbitrators have not hesitated to order full disclosure of such communications. In those rare cases when the employer grieves the union’s actions, one would expect the arbitral response to be consistent. For example, one would not expect that a union could shield itself from a charge of organizing an illegal strike by arguing that all of its communications with members are confidential and privileged and protected by the Wigmore principles.

These thoughts lead into the last significant factor arguing against the employer’s assertion of Wigmore privilege, the damage such a privilege would do to the labour relations process and grievance arbitration in particular. It is my view that the greater good to be served is the correct disposition of the litigation, in this case, the grievances before me. Using the language of the last Wigmore criteria, any ‘injury’ that might inure to the internal labour relations/human resources communications is outweighed by the benefit of resolving disputes between the parties based on an a fair and open process. Given all of the above, the claims of Wigmore privilege are dismissed.

Conclusion

I have maintained the accuracy of my rulings as best I can. However, with so many documents in dispute, there may well be some clerical errors in the above information. I reserve the right to review any such errors and amend the above order accordingly, either at my own behest or on request of either of the parties. In such case, of course, I will hear both parties prior to making any corrections. Finally, I have not produced a list of documents to be disclosed, but have simply ruled on the privileges claimed. I retain jurisdiction to resolve any disputes arising from the implementation of this decision.

Dated at Toronto this 29th day of November, 2006