GSB#2015-0353

UNION#2015-0678-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Turpin)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

Caroline V. Jones Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Labour Practice Group Counsel

CONFERENCE CALL

January 29, 2016

Decision

1Mr. Ian Turpin is a Registered Nurse whose employment with the Ministry was terminated on April 9, 2015. He filed a grievance that alleged his discharge was without just cause. By way of remedy he requests full compensation for losses in addition to reinstatement.

2The Employer’s first witness is Ms. Christine Heintzman who is also a Registered Nurse and once a co-worker of the grievor. During the course of giving her evidence in chief, Ms. Jones, counsel for the Union, noted that Ms. Heintzman had an envelope with documents beside her and asked the Board to order that the documents be disclosed. It was noted by the Union that the witness had been seen reviewing at least some of the documents while waiting to testify in this proceeding.

3Ms. Cohen, counsel for the Employer, agreed to provide the Union with a copy of all of the documents save for one. It was the Employer’s view that one of the documents was protected by litigation privilege.

4The sole issue to be considered in this decision is whether the document should be disclosed to the Union, as requested. Given that a determination is needed before litigation can continue and there is precious little time before our next hearing date, this decision will not set out the facts or submissions in full but will provide brief reasons. I do want to assure the parties that all of the arguments and authorities were reviewed in detail in arriving at this decision.

5The Employer described the document at issue as follows:

The document has its origins in an e-mail exchange of September 2015 between employer counsel and Ms. Wight, the nurse manager. It is no longer in e-mail form but it contains the same information from employer counsel to Ms. Wight (which is in a different font) about the theory of the employer’s case, an analysis of certain facts, and requests information from Wight related to those facts.

6When the Union first made the request for disclosure of the documents - at the Board’s request - the witness was asked how she came to possess the document in dispute and to what extent, if any, she reviewed it. Ms. Cohen complied with the Board’s request and Ms. Heintzman testified how she came to have the document and her familiarity with it.

7Ultimately it became apparent that the Union wanted to test the veracity of Ms. Heintzman’s evidence about the disputed document and requested a voir dire. That request was granted and the Union was given the opportunity to cross-examine Ms. Heintzman fully. As in the normal course of events, she was also re-examined in this regard.

8It is not my intention to set out that evidence in this brief decision. It is sufficient to say that the Union was of the view that the witness was not credible in her evidence and had clearly reviewed the document. The Employer urged that this Board could not conclude that in the event this Board was of the view that Ms. Heintzman gave inconsistent evidence it did not mean that she was lying when she said she had not seen the disputed document.

9Both parties provided thoughtful and fulsome submissions including a number of authorities. Again, those submissions will not be set out in full.

10By agreement of the parties, the Board was provided with both the original email thread and the document found in Ms. Heintzman’s envelope. The only differences between the two are that the original question posed to Ms. Wight was missing as are all of the headers setting out email addresses, subject lines, dates and time. The document appears to have been “cut and pasted”, and is identical in its format.

11The Union’s position can be summarized as follows:

• Ms. Heintzman, an independent fact witness, obtained and looked at the document - therefore the Union is entitled to review it because she utilized the document to refresh or bolster her evidence;

• The document cannot be characterized as one protected by litigation privilege due to the reproduction

• In the alternative, if the document is protected by litigation privilege that privilege has been waived when the document was provided to Ms. Heintzman an independent fact witness.

12The Employer’s position was as follows:

• The Union has an onus to show that the document is relevant;

• The document is protected by litigation privilege;

• The litigation privilege was not waived.

13After reviewing the submissions and authorities provided by the parties, I order that the document be disclosed to the Union.

14The document is arguably relevant which is the appropriate test when considering the matter of disclosure. I disagree with the Employer that the document is nothing more than the opinion of counsel as to the tactics to be followed. It has questions and answers about the facts of this case clearly meeting the necessary bar for a finding that it is a producible document.

15I do agree with the Employer that - notwithstanding the fact that the document has been altered from its original email thread version - it is still a document, which is protected by litigation privilege. While I do not have direct evidence as to how (or who) created the document, it is apparent on its face that it is a “cut and pasted” version of the email discussion between Ms. Wight and Employer Counsel. Indeed, with the exception of the removal of the original question posed and the email headers, it is identical in every respect. The content found in both the original and recreated document constitute litigation privilege.

16The Employer urged that because I have no evidence that Ms. Wight intended to disclose the document to Ms. Heintzman or that it came into Ms. Heintzman’s possession any other way than through inadvertence, I cannot find that the litigation privilege has been waived. I must disagree. I did not hear from Ms. Wight about her intention or lack thereof. However, I do have a document that was deliberately reproduced into a different format and found amongst the papers in the possession of the independent fact witness. I also know from Ms. Heintzman’s evidence that she spoke with Ms. Wight about policies and procedures and the document at issue contemplates the medication error policy and College of Nurses standards.

17In my view, litigation privilege has been waived and the Employer is ordered to disclose the document to the Union forthwith.

18At the first date scheduled for the hearing of this matter the parties agreed that a production order was necessary.

19Accordingly the Ministry is directed to disclose and produce any and all documents and other material in its possession which could be arguably relevant in this case.

20It appears that there may be arguably relevant documents currently in the possession of the London Police Services. It may be necessary to subpoena these documents. However the parties will discuss this issue and advise me as to whether a subpoena is required or not.