GSB#2009-3165

UNION#2010-0999-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

Kate Hughes Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Ministry of Government Services Deputy Director

Brian Loewen Ministry of Government Services Counsel

Raj Dhir Deputy Director Ministry of Labour, Legal Services Branch

HEARING

March 31, 2010, April 9 and April 22, 2010.

Decision

1Before me is an application for interim relief in connection with a policy and an individual grievance. The Union has alleged that CPIC (Canada Police Information Centre) information has been obtained and disclosed without consent in violation of privacy legislation, the Human Rights Code, the OPS Policy and Guidelines and the Collective Agreement. Also at issue is the release of information relating to internal disciplinary matters. The Union seeks:

(i) An order that the Employer cease and desist from obtaining CPIC checks on Health and Safety Inspectors at the Ministry of Labour without their knowledge and informed consent.

(ii) An order that the Employer cease and desist from disclosing CPIC checks or other confidential information, including content from personnel files, about the Health and Safety Inspectors without giving notice to the Union and the employee and obtaining the employee’s informed consent.

(iii) An order that the hearing of the policy and related grievance be expedited;

(iv) An order that the individual grievor’s name not be disclosed and that his grievance be dealt with in accordance with the confidential processes in appeal procedures in Appendix E of the OPS Personnel Screening Checks Policy Operations Guidelines.

2The individual grievor has been employed as an Occupational Health and Safety Inspector since 2007. On February 11, 2010, he was contacted by his Director who advised him that she had been contacted by a lawyer at Legal Services Branch who had advised her that a CPIC check had been conducted on him, that it had come back with a “hit” and that his manager would be contacted about the matter. The grievor had not been asked to consent to a CPIC check, nor was he advised that one was being conducted. The grievor telephoned the lawyer, who called him back, and advised him of the presence of another manager in the room, who would be on the call to take notes of the discussion. The manager was not the grievor’s manager. The grievor was questioned about the results of the CPIC check, which relate to events of some years prior while he was in a different job and which are currently the subject of a pardon application. The grievor was advised that the information would be released to “everybody”. The grievor stated that he did not wish to have the information released. The grievor is in a personal relationship with his acting manager’s daughter. The grievor was contacted by his acting manager that day about the matter, which, according to the grievor, had come as a shock to him. The grievor’s acting manager had been informed about the matter by the Director, who referred to her motivation in telling him as “more from a personal perspective” having known him for over 20 years. However, she also made reference to her concern about him “hearing through the grapevine” that the information had been disclosed in court, as she anticipated it would. Although there was a suggestion from her evidence that the acting manager was aware of the matter when they spoke, the evidence did not establish that he was aware of it prior to that day. It appears that they may have had two conversations. The matter was addressed by the grievor in reply, and his testimony was reflective of the acting manager being surprised and upset by the information. The grievor is concerned about what has been said about him and to whom. His view is that some of the information in the Employer’s possession about him is not accurate. He has experienced panic attacks, insomnia and anxiety about the disclosure and its implications for his career, reputation and personal life.

3Occupational Health and Safety Inspectors are responsible for administering and enforcing the Occupational Health and Safety Act, and have broad powers of investigation. Inspectors are designated as Provincial Offences Officers under the Provincial Offences Act and are authorized to commence Part I and Part III prosecutions. The testimony of an Inspector is typically required to establish an offence.

4The lawyers in the litigation group at the Ministry of Labour are employees of the Ministry of Attorney General, who are seconded to the Ministry of Labour to provide legal services and conduct prosecutions in the name of the Crown on behalf of the Attorney General under the Provincial Offences Act for violations of the Occupational Health and Safety Act and the Employment Standards Act, 2000. They review investigation briefs that are prepared by Inspectors in order to assess whether there is a reasonable prospect of conviction and thus whether or not it would be in the public interest to proceed with a prosecution. There are currently 679 ongoing prosecutions being handled by the litigation group at the Ministry of Labour. Of these, 483 are Part III prosecutions that can result in a corporation being fined up to $500,000 and individuals being fined up to $50,000 and/or sentenced to 12 months in jail. Fifty of these prosecutions involve workplace fatalities.

5It is the position of the Employer that its actions in obtaining and releasing information were undertaken in order to comply with an obligation on the part of the Crown to provide full and timely disclosure to defendants involved in prosecutions under the Occupational Health and Safety Act due to a defendant’s constitutional right to disclosure of all relevant evidence in a timely fashion, including evidence that may be used to impugn the credibility of officers involved in the investigation. The Employer’s witnesses made reference to the decision of the Supreme Court of Canada in R. v. McNeil (2009), 2009 SCC 3, 238 C.C.C. (3d) 353, (“McNeil”) which, in the Employer’s submission, clarified the obligation of the Crown to include as part of the first party disclosure any information relating to serious misconduct of an investigating officer and mandated an obligation to make inquiries into the existence of such evidence and a corresponding duty to provide full and timely disclosure. It is the position of the Employer that because the CPIC information was and is being sought for law enforcement purposes, consent is not required. The CPIC information was provided by Toronto Police Services without the consent of the individual for whom the check was requested. There is correspondence that reflects the request for and the obtaining of CPIC information. There is no written protocol setting out the terms of the arrangements with the Toronto Police Services, nor is there any correspondence in regard to general arrangements. Reference was made in the evidence adduced by the Employer to the training provided to Inspectors in relation to disclosure obligations. However, it is apparent from the evidence that the clarification of the obligations as were interpreted to be mandated by McNeil was not communicated to the Inspectors. As well, the Inspectors were neither collectively nor individually given advance notice of the intention to obtain and disclose CPIC and other information.

6According to the declaration of the acting Deputy Director of the Legal Services of the Ministry of Labour at the time, the following process was adopted following the January 16, 2009 release of the McNeil decision:

The MOL-LSB established a process to respond to its McNeil obligations. This process involves responding to specific requests made to Crown Counsel by the defence for disclosure requests relating to inspector misconduct. To further ensure that McNeil obligations are being met, Crown Counsel also make proactive inquiries of inspector misconduct when a matter is set down for trial or when the Crown had information in its possession that indicates the existence of inspector misconduct.

In the above circumstances, Crown Counsel will initiate a Criminal Police Investigation Check (“CPIC”) to identify criminal misconduct by the inspector and make a request to the Ministry for internal disciplinary misconduct.

The CPIC is obtained through a written request by a single designated Crown Counsel in the Legal Services Branch to the manager of the Toronto Police Service –Records Management Services Unit.

The CPIC results (positive or negative) are provided by fax to the designated Crown Counsel who then forwards the response to Crown Counsel with carriage of the prosecution file.

Where there is a positive result, the Deputy Director of the Legal Services Branch informs the appropriate Regional Director of the existence of the criminal record. The particular inspector is informed by Ministry management that the Crown Counsel has obtained a copy of the inspector’s criminal record. The inspector is provided with the Deputy Director’s name and contact information.

The process to obtain the internal disciplinary misconduct is for the Crown Counsel with carriage of the prosecution file to make a written request to the appropriate Regional Director asking whether or not the particular inspector has been disciplined.

The Crown has a legal duty to continually assess its case; that is, to assess whether there is a reasonable prospect of conviction and, if so, whether it continues to be in the public interest to continue the prosecution.

Accordingly, if there is a positive CPIC or disciplinary result, the Deputy Director will make follow-up inquiries. In the case of a positive CPIC result, the Deputy Director follows-up directly with the inspector to obtain necessary details relating to the criminal record. In the case of a discipline record, the Deputy Director follows-up with the employer to obtain further information regarding the type of discipline imposed, the date imposed and the reason for discipline.

The details relating to the inspector’s criminal and/or disciplinary record are provided to Crown Counsel who have carriage of ongoing prosecutions in which the inspector is involved or are reviewing investigation briefs in which the inspector is involved. These details are required to determine whether Crown Counsel in a particular case should proceed with a prosecution in which the inspector is involved.

If the Crown concludes that there is no longer a reasonable prospect of conviction or it is no longer in the public interest to proceed with the prosecution, defence counsel is informed that the charges are being withdrawn. In these circumstances, there is no need to disclose the criminal and/or discipline record and other relevant details to the defence.

If the Crown concludes that the prosecution will continue, the Crown’s disclosure obligation requires that relevant information such as the criminal and/or discipline record and other relevant details in the Crown’s possession be provided in a timely fashion to the defence.

Disclosure to defence counsel is made with strict conditions –

1. the information is to be used only to make full answer and defence to the charges that are before the court,

2. the information is not to be disseminated or used for any other purpose.

7The Union takes issue with the application of McNeil to prosecutions under the Occupational Health and Safety Act, noting that the McNeil case entailed issues of disclosure of drug related disciplinary and criminal investigation of a police officer where the officer was the main police witness for the Crown on multiple drug charges on which the accused was convicted. It is submitted that the circumstances must be analogous for the rationale in McNeil to apply. The Union notes that there is no evidence of the application of McNeil in this manner in relation to the regulatory prosecutions that take place pursuant to some fourteen other provincial regulatory prosecution regimes. The Union also submits that the appropriate approach for the Crown to take to deal with issues of such information is to make a pre-trial motion. Perhaps most fundamentally, the Union takes issue with the Employer obtaining and disclosing this information without the consent of the Inspector.

8With respect to the test for interim relief, there is clearly an arguable case before me. There was no real dispute with respect to that issue. There exists, however, a significant dispute between the parties as to where the balance of convenience or harm lies in this instance. The Union emphasizes the privacy issues at stake, referring to a number of decisions that I have issued in which I have noted the impossibility of reversing release of private information and thus the very significant weight to be given to the preservation of that protection while the dispute between the parties is resolved. Ms. Hughes referred me to the comments I made in the first case dealing with an application for interim relief in connection with security checks, Management Board Secretariat and OPSEU (2003), 2003 CanLII 89536 (ON GSB), 117 L.A.C. (4th) 128 (Stewart) where I noted the difficulties in remedying breaches of privacy. The Employer raised concerns about the ability of the Crown to carry out its obligations if interim relief of the kind sought by the Union were to be granted and it identified the potential consequences as including the Crown being found to be in breach of its legal and ethical disclosure obligations, a Court finding that the defendants’ Charter rights have been breached, the irrevocable compromise of prosecutions and orders for costs.

9Mr. Loewen referred me to a decision of the Nova Scotia Court of Appeal: Municipal Association of Police Personnel v. McNeil 2009 NSCA 45 which involved an application for a stay in connection with an application for judicial review with respect to the disclosure of disciplinary records of police officers. In that case, pursuant to the McNeil decision, disciplinary records were identified as potentially relevant and thus appropriate to be shared with the Crown for the determination of relevance. The officers there were given written notice of the intention to release this information to the Crown and they were invited to make written submissions on the issue of disclosure. Those written submissions were provided to the Crown for its consideration. At p. 8 of that decision, it is noted that some records had already been disclosed and thus there was no issue of further harm, however it was unclear whether other records had been disclosed and thus it was apparent that the granting of the stay could prevent harm to individuals. Weighing the harm on the other side, the Court states at p. 8:

The granting of a stay on the other hand may have a negative effect on the ongoing criminal justice system in our jurisdiction. It could thwart an accused’s constitutional right to disclosure of all relevant information in order to make a full answer in defence. It could delay matters coming to trial affecting the rights of the accused persons to be tried within a reasonable period of time pursuant to section 11(b) of the Charter. Whether such a delay would infringe or deny any accused person’s Charter rights is impossible to determine on the evidence before me. If it turned out that such delays were not justified, the granting of a stay could lead to indictments being quashed or withdrawn. This would not be in the public interest, for the public has an interest in ensuring law breakers are brought to trial, dealt with according to the law, and at trial, treated fairly and justly; R v. Askov (1990), 1990 CanLII 45 (SCC), 59 CCC (3d) 449 (SCC).

10Ms. Hughes submitted that the Employer’s assertions of harm are speculative in nature. With respect to the matter of costs, she noted that that costs are awarded against the Crown only where its conduct amounts to a marked and unacceptable departure from the conduct expected of the prosecution. With respect to the prospect of delay, she noted that there is some leeway with respect to the timing of prosecutions and that dealing with evidentiary issues of disclosure in connection with a proceeding is not unusual. The Union raised the prospect of the Court ruling on privacy concerns of Inspectors on the basis of a preliminary motion before the Court.

11With respect to the issue of whether McNeil disclosure obligations arise in connection with regulatory offences of the kind that are conducted by the Ministry of Labour, I note that, as the Employer has pointed out, in R. Vanbots Construction Corp. [1966] O.J. No. 347, the Provincial Court Judge concluded that disclosure obligations existed in connection with a prosecution by the Ministry of Labour under the Occupational Health and Safety Act and at paragraph 16 stated that:

If convicted, the defendant Preston is liable to a substantial fine or imprisonment or both, and the corporate defendant Vanbots faces a substantial fine. The allegations are serious and the consequences grave. I find that the general principles of disclosure as set out in Stinchcombe would apply to this case, notwithstanding that this matter does not involve an indictable offence.

R. v. Fineline Circuits Ltd. 1991 CanLII 13912 (ON CTPD), [1991] O.J. No. 3463 is to a similar effect, where, in the context of charges under the Environmental Protection Act, the Court refers to the disclosure obligations on the part of the Crown and determined at paragraph 7 that their breach: “rendered the trial fundamentally unfair, and have caused a breach of the defendant’s s. 7 Charter rights”. However, as Ms. Hughes has noted, in R v. Collins 2010 APPC 19, where the Alberta Provincial Court was considering the effect of McNeil in the context of a prosecution for a traffic ticket, the Court concludes at the end of paragraph 62 that:

Serious and complex regulatory offences exposing the accused to significant penalties upon conviction will attract the full panoply of disclosure duties. Minor and routine regulatory offences attracting modest penalties upon conviction will not.

12At this stage of the proceedings, without full argument, I am not prepared to conclude that there is no legitimate foundation for the Employer’s actions that have given rise to the individual and policy grievances before me. The disclosure obligation of the Crown flowing from Stinchcombe has been established in relation to cases under the Occupational Health and Safety Act involving substantial fines or imprisonment. The extension of the obligation in accordance with the direction in McNeil would seem logical, on a preliminary view of the matter, at least in some cases. The obvious example is a previous conviction for perjury. To be clear, a perjury conviction is not what is in issue here, but it is an example that illustrates the point of obvious relevance. In Krieger v. Law Society of Alberta 2002 SCC 65, [2002] 3 S.C.R. 372, there is reference to the significant responsibility of the Crown and at paragraph 29 to: “… the gravity of the power to bring, manage and terminate prosecutions”.

13As previously noted, the Union contends that consent is required for the Employer to obtain CPIC information. While the prospect of CPIC information being obtained without consent and without fingerprint verification is not in accordance with the current regime in relation to employment security checks, the manner in which it has been provided is consistent with the Employer’s assertion that such information is made available to the Crown for the purposes of law enforcement. With respect to the Union’s submission that there is no obligation on the part of the Crown to seek out the kind of information that it has here, I am not persuaded that an order prohibiting it from doing so would be appropriate at this stage of the proceedings, where at issue are the prosecutions of important matters.

14A scenario in which consent to obtain criminal record information is refused by an Inspector, necessitating an application before the Court, only to discover that no record exists, is clearly not a desirable use of the resources of the Court, nor is such a process a productive use of other public resources that would be necessarily expended in such an exercise. The Inspectors and the Crowns involved in prosecutions under the Occupational Health and Safety Act are partners in an extremely important endeavor and an internal process to address the concerns that have been raised here would appear to be in the interests of all. In this regard, I note the reference in the Nova Scotia Court of Appeal decision in Municipal Association of Police Personnel v. McNeil, supra, to the process that the parties developed which allowed the privacy interests to be considered, while maintaining the ability of the Crown to carry out its obligations with respect to disclosure. I was also referred to the process developed by the Vancouver Police Department, which refers to the importance of respecting privacy concerns in implementing the McNeil decision.

15In weighing the competing interests in this interim relief proceeding, it is my conclusion, similar to the conclusion reached by the Nova Scotia Court of Appeal, that the interests of the administration of justice outweigh considerations of privacy. I agree with Ms. Hughes that this is not a case of all potential harm to the grievor and other Inspectors already having taken place, which was the case in at least some respects in that case. However, as previously indicated, we are dealing here with the administration of justice as it relates to the very significant matter of prosecutions of breaches of the Occupational Health and Safety Act. While costs may not be ordered and delays may not be considerable if the orders as sought are granted, the prospect of any disruption to the many ongoing prosecutions dealing with matters of considerable public importance is a weighty concern. The orderly and timely proceeding of these prosecutions is an extremely significant matter. As Ms. Hughes concisely observed, when the grievor became an Inspector he did not agree to relinquish his privacy. The grievor did, however, along with all other Inspectors, commit to the duties of a position that involve the administration of justice, duties which include providing testimony and working in partnership with the Crown to ensure that prosecutions are conducted fairly and in accordance with the very high standards imposed upon those who are involved in this important work. On an interim basis, and given that there are some measures that can address the privacy concerns to some extent, it is my view that the balance must weigh in favour of the interests of the administration of justice.

16At the hearing, the Employer conceded the desirability of Inspectors being made aware of disclosure relating to them at the time that it is disclosed to defence counsel. However, it strikes me that the desirability of the Inspectors being made aware of this information prior to that time, and indeed, the fact that such information is being sought, is readily apparent, and ought properly be addressed on an interim basis. To advise the Inspectors at the outset that the information is being sought is not only an appropriate and respectful courtesy, it allows for an early opportunity for the Inspector to provide relevant information to the Crown. Moreover, like all human endeavours, the provision of information from the CPIC database is not flawless, and the solicitation of this information would seem to increase the likelihood that the Crown will have all relevant information in its possession. This will allow the Crown to more effectively carry out its functions, both in relation to the assessment of the strength of the prosecution and in fulfilling its disclosure obligations. In regard to disclosure obligations, I note the Union’s position that the evidence suggests that the Crown intends to disclose all disciplinary and criminal record information. However, there was reference both in the evidence of the Employer and its submissions to the obligation of the Crown to disclose relevant evidence, suggesting that some of these matters may not be considered to be relevant. That approach is consistent with the Collins case, supra, as well as the process contemplated in the McNeil Nova Scotia Court of Appeal case, supra, which I followed with respect to the balance of harm issue. It is also consistent with the comments of the Supreme Court of Canada in McNeil where reference is made to the Ferguson Report and at paragraph 58 to the role of the Crown as a “gatekeeper sorting out what parts of this material, if any, should be turned over to the defence.” I will address the implications of these considerations at the conclusion of this decision.

17I turn now to the issue of the Union’s request for production of the legal opinion that formed the basis for the Employer’s actions. The Employer opposes the Union’s request for the production of this information on the basis that it was prepared for senior executives at the Ministry of Labour and the Ministry of the Attorney General and constitutes legal advice regarding McNeil, which is subject to solicitor client privilege. The matter of solicitor client privilege was raised subsequent to the filing of the declarations, at the outset of the hearing. It is the position of the Union that the privilege has been waived.

18The existence of a solicitor client privilege in relation to legal advice given by in house counsel or government counsel is well established, as noted in Pritchard v. Ontario (Human Rights Commission 2004 SCC 31, [2004] 1 S.C.R. 809 (S.C.C.). The issue here is solely one of waiver. In support of her submission that the privilege has been waived in this instance, Ms. Hughes referred me to the following authorities: Re Toronto Transit Commission & Amalgamated Transit Union, Local 113 (Sartain), (2004), 2004 CanLII 94684 (ON LA), 125 L.A.C. (4th) 90 (Springate), R. v. Campbell 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, and Re Communications, Energy and Paper Workers Union of Canada, Local 774 & Communications, Energy and Paper Workers Union of Canada, Local 3264, v. Beachville Lime Limited 2001 CanLII 14048. In the TTC case, the witness had referred to the opinion in her evidence as the basis for the position taken with respect to the matter in issue and the Board concluded that solicitor client privilege had been waived. Similarly in the CEP case, noting that the party had relied on legal opinions as the basis for its position and had put forward that legal advice as a defence to its position, solicitor client privilege had been waived with respect to that legal advice. The Campbell case, a decision of the Supreme Court of Canada, involved a reverse sting operation and dealt with the issue of whether the solicitor client privilege had been waived in the context of an RCMP officer’s assertion of reliance on a legal opinion provided by a Department of Justice lawyer. At issue was whether there should be a stay of proceedings on the basis that the reverse sting operation constituted illegal police conduct. The Court concluded that it would be unfair to shield the legal opinion and that the privilege had been waived by virtue of the RCMP officer having made, as the Court characterized it at paragraph 73, “… a live issue of the legal advice it received from the Department of Justice”.

19Mr. Loewen emphasized the significance of solicitor-client privilege, a matter about which there can be no doubt. In Campbell, supra, at paragraph 49, there is reference to R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263 at p. 289 where Lamer C.J. stated: “The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the operation of the legal system”. Mr. Loewen also referred me to Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, where at issue was the authority of the Privacy Commissioner of Canada to have routine access to documents claimed to be subject to solicitor client documents in order to carry out her investigatory function and to allow her to determine the existence of a privilege. The Commissioner’s position was rejected on a number of bases and I was referred specifically to the Court’s comments at paragraph 21 where, in the context of consideration of the Commissioner’s position with respect to a role in the determination of a privilege, the Court states:

Client confidence is the underlying basis for the privilege, and infringement must be assessed through the eyes of the client. To a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement to the confidentiality.

The Court goes on, however, in the following paragraph, to state:

In any event, a court’s power to review a privileged document in order to determine a disputed claim for privilege does not flow from its power to compel production. Rather, the court’s power to review a document in such circumstances derives from its power to adjudicate disputed claims over legal rights. The Privacy Commissioner has no such power.

The situation before me is clearly distinguishable from that before the Court in the Blood Tribe case in that the Grievance Settlement Board does have the power and, indeed, the obligation to adjudicate disputes arising under the Collective Agreement between these parties. This power and obligation requires the Grievance Settlement Board to rule upon evidentiary issues, issues which may encompass the validity of an objection based on privilege, which may include a preliminary review the legal advice in issue, for the purposes of determining the privilege issue.

20There was, as Mr. Loewen points out, partial disclosure of legal advice in the CEP case. Accordingly, it is apparent that fairness would dictate that the entirety of the legal advice be provided. In the TTC case the legal opinion was referred to in chief, was asked about in cross-examination and was adopted by the witness as the basis for the Employer’s actions without objection. The privilege objection was raised when the opinion was sought. While, as Ms. Hughes emphasized, the issue of privilege was not raised at the time the declarations were filed, the claim of privilege was advanced at the outset of the hearing. However, the assertion of a claim of privilege or the existence of an intention to waive privilege is not determinative. As is noted in S.&K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 1983 CanLII 407 (BC SC), 45 B.C.L.R. 218 (S.C.), which is referred to in paragraph 19 of the TTC case, waiver may be found “where fairness and consistency so require”. There is some logic to Ms. Hughes’ submission that there is an analogy here to Campbell, where, at paragraph 67 the Court states:

The record is clear that the RCMP put in issue Cpl. Reynolds’ good faith belief in the reverse sting, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. … In my view, the RCMP waived the right to shelter behind solicitor-client privilege the contents of the advice thus exposed and relied upon.

However, in Campbell the issue was the legal advice as an evidentiary matter in relation to the issuance of a stay, in which the legal advice was made “a live issue” in connection with the good faith defence. In the TTC case, the opinion was put forward as the foundation for the disposition of the matter. While, there is no doubt that legal advice was involved in the Employer’s actions that are in dispute, I will be hearing full legal argument on the effect of McNeil and whether there has been a breach of privacy and other rights as claimed by the Union and will make the necessary determination, based on submissions of counsel, in the context of an evidentiary background. There is ultimately no basis upon which an undisclosed legal opinion can buttress the Employer’s position in relation to the determination that I am required to make in that regard. Accordingly, it is my view that the considerations of fairness and consistency that have prevailed in the cases where privilege was determined to have been waived do not mandate the abrogation of the privilege associated with the provision of legal advice in this case.

21I turn now to the specific aspects of the disposition of the interim relief motion. As previously noted, it is my view that on an interim basis, considerations of administration of justice must prevail over the privacy issues that have been raised here, subject to some measures that can be taken to protect the privacy issues at stake. I hereby order that:

i) The hearing of the individual and policy grievances will be expedited.

ii) The individual grievor’s name will not be referred to in any decision of the Board, nor will it be referred to in any administrative correspondence in connection with this matter.

iii) Prior to obtaining CIPIC information about an Inspector, notice of the intention to do so will be provided to the Inspector and disclosure from the Inspector as to such information will be invited.

iv) Upon obtaining CPIC and/or disciplinary information, the Crown will provide the Inspector with written notice of the information in its possession. The Crown will invite written submissions on the extent of disclosure for the Crown’s consideration.

v) The Employer will put in place reasonable measures to protect the confidentiality of information that comes into its possession. These measures will include an assessment of those within its organization who need to be aware of this information and how it is to be conveyed.

22I note, parenthetically, that at the hearing there was reference to the development of a disclosure policy that would be applicable in connection with all prosecutions, across all Ministries, and to the intention of the Employer to engage the Union in discussions about that policy at the appropriate time. I have no doubt that the discussions that will ensue will result in a deeper mutual understanding of the interests and concerns involved and will enhance the likelihood of the resolution of this matter by the parties. I retain jurisdiction to deal with any difficulties that the parties may experience in implementing this interim award, as well as to determine the merits of the grievances before me.