GSB# 2006-1704, 2006-1705, 2006-1706, 2007-0707, 2007-0708

UNION# 2006-0528-0004, 2006-0528-0005, 2006-0528-0006, 2007-0528-0003, 2007-0528-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fenech)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Janina Fogels Cavalluzzo Hayes Shilton McIntyre & Cornish Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Counsel Ministry of Government and Consumer Services

TELECONFERENCE

June 9, 2008.

Decision

The Board is seized with five grievances filed by Ms. Catherine Fenech (“grievor”), the last of which was dated March 7, 2007. For the present purposes, it suffices to note that all of the grievances relate to the alleged failure by the employer to appropriately accommodate the grievor’s disability.

The union called the grievor to testify. After her examination in-chief was completed (subject to a reservation that additional examination may be required) and before the cross-examination had commenced, a dispute arose as to disclosure. I received submissions by way of a teleconference on June 9, 2008. Both counsel indicated that they rely on case law to support their respective submissions. I instructed counsel to forward to me that case law as soon a possible. Both counsel did so. Employer counsel, however, enclosed some additional submissions along with his case law. Since my instructions were only to submit the case law, and because it could be prejudicial to the union, to receive additional submissions from employer counsel, I have disregarded those additional submissions.

Union counsel advised that the employer’s request was for the disclosure of “a ringed note-book which the grievor used, to keep account of how her request for accommodation evolved”. The note-book contains notes about conversations and interaction that occurred between the grievor and members of management, subsequent to the filing of the grievances.

The only grounds raised by union counsel in resisting disclosure was litigation privilege. She submitted that following the filing of the grievances, the grievor recorded notes of her interaction with members of management with respect to her accommodation because she was aware that her grievances would eventually come up, and wanted the notes in order to be prepared.

Employer counsel pointed out that the notes in question were made contemporaneously about events as they occurred. Even though post-grievance, the grievor had testified in-chief about the same events recorded in the note-book. He argued that the dominant purpose of the notes cannot reasonably be seen as litigation. He submitted that disclosure of the notes is necessary to test the grievor’s credibility by confronting her with any notes which contradict or vary from her oral testimony. Counsel pointed out that the employer was not seeking disclosure of any communications between the grievor and counsel, which would be privileged. In his view the notes in the grievor’s note-book are personal notes taken by the grievor routinely as events occurred, and are not covered by any litigation privilege.

Union counsel relied on Re Brewers Retail Inc. (1998) 1998 CanLII 19066 (ON LA), 71 L.A.C. (4^th) 28 (A.P. Aggarwal). The arbitrator reviewed a number of authorities which discuss the nature and purpose of the litigation privilege. He set out the following excerpt from Evidence and Procedure in Canadian Labour Arbitration, authored by Professor Morley Gorsky:

(g) Litigation Privilege

Although most frequently invoked by lawyers, this privilege should not be confused with solicitor-client privilege. It has an entirely separate rationale and thus its own distinctive requirements. This privilege attaches to documents that have been prepared for the conduct of litigation. This “work product” privilege encompasses material such as reports, notes of interviews with potential witnesses and other material produced in preparing the case. The rationale is two-fold. First, the thorough preparation of cases might be discouraged if any resulting unfavorable material had to be disclosed for use by the other side. Rather than leaving no stone unturned, counsel might be reluctant to lift some rocks because of the potentially damaging evidence that might emerge. Second, it is unfair to allow one side to take advantage of the other side’s work.

Although this common law privilege does not bind an arbitrator, the rationale underlying a court’s exclusion is compelling and applies equally in arbitrations. As well, the privilege is not limited to a lawyer’s work. It applies to material prepared by non-lawyers in anticipation of litigation. The key in all cases is that that material was prepared for the purpose of actual or contemplated litigation. However, where a dual purpose underlies material, it will be sufficient if preparation for litigation was the “dominant purpose”.

In Re Brewers Retail Inc. the grievor had testified that she felt discriminated against by the employer because of her gender. She had telephoned the Ontario Human Rights Commission, and on the advice of the commission she started to keep a diary. The employer demanded production of the diary. The union claimed that the diary was covered by a litigation privilege.

The arbitrator wrote at p. 37 as follows:

Materials created in anticipation of litigation are protected from disclosure under the litigation privilege doctrine. Litigation privilege protects notes, investigative reports and other materials prepared to assist with litigation. As held in Cuddy, litigation privilege is not limited to materials prepared by lawyers and can include materials prepared by clients. In Cuddy, although the Steward, Ms. Brown, did not explicitly state that she was preparing notes to further the grievance, the arbitrator, however, found that Ms. Brown’s notes were prepared principally for the purpose of advancing the grievance which might be filed and that the notes were thus covered by litigation privilege. In the case before us there appears to be no other reason for the maintenance of a diary by the grievor upon the advice of the OHRC except for use in anticipated litigation. Further, litigation is not confined only to court proceedings but encompasses administrative tribunals and arbitration as well.

At p. 38 the arbitrator concluded as follows:

Having regard to the submissions of the parties, and having reviewed the materials put before me, and for the foregoing reasons I think it is clear that at the time when the grievor began to keep her diary, she was justified in coming to be conclusion that litigation in respect of discrimination against her could well be anticipated. Therefore, it is my opinion that the grievor is entitled to claim privilege in respect thereof and is not required to produce the same upon discovery.

It is not clear from the award in Re Brewers Retail Inc. what exactly the notes were in the diary kept by the grievor. Whether the notes were a recording of facts as they occurred or something more than that. If the notes were confined to a recording of facts as they occurred, it is my view based on the authorities, that such notes were not protected by a litigation privilege. It is clear from the authorities that merely because litigation is underway or contemplated, all material that may relate to that litigation is not privilege. The only material so privileged are those produced with litigation as the dominant purpose. A manager may record day to day events that occur at the workplace relating to a particular employee with the anticipation that the employee may be disciplined. It may well be that the manager anticipates that the discipline may be grieved. He may intend to rely on the notes in the anticipated grievance/arbitration proceeding. Similarly, an employee may anticipate that he will be disciplined and may record events as they occur with the intention of using such notes in support of a grievance. In my view, in both hypothetical situations, the notes that merely record facts as they occur are not entitled to a litigation privilege, even though litigation was contemplated or anticipated at the time. In drawing this distinction between material that merely record facts and material prepared with the dominant purpose of preparing for litigation, I rely on the judgment in Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex.C.R. 27. At pp. 33-34, Mr. Justice Jackett wrote as follows:

… the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system.

What is important to note about both of these rules is that they do not afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that come into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the materials created for the lawyer’s brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them.

(Italics added)

In Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, the Supreme Court of Canada stated the purpose of litigation privilege as follows at para. 27:

Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

The court states that the object of litigation privilege is to leave parties to litigation “to prepare their contending positions in private”. Recording of facts and events is different from preparing a position to be taken at litigation. In my view, the law does not, through litigation privilege, cast such a broad net as to capture recordings of facts and events, merely because at the time a grievance is filed or is contemplated. If the grievor had used factual information contained in her note-book, or for that matter elsewhere, and prepared an analysis, report or instruction to be used in litigation, those would fall within the protection of litigation privilege. Such documents would constitute preparation of the grievor’s position. However, the notation of the facts themselves would not be privileged.

No evidence was led before me. Nor have I seen the note-book in question. However, from the description stipulated by union counsel, the disputed notes are factual notes of events. Those notes relate to events about which the grievor had already testified, or will be testifying. They are, therefore, clearly relevant. Since I have concluded that no privilege attaches, the notes are subject to disclosure.

It is for those reasons that I ordered disclosure of the note-book subject to terms, in a bottom-line ruling dated June 13, 2008.

Dated this 17^th day of June, 2008 at Toronto, Ontario.