GSB#2013-1169, 2013-1170

UNION#2013-0424-0002, 2013-0424-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranger)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Craig Flood Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 14, August 25, October 13, December 3 & 9, 2015; January 5, March 30, May 19, August 31, October 14, 2016

Decision

1The union has filed two grievances on behalf of Robert Ranger, hereafter the “grievor”. Mr. Ranger is a Corrections Officer being accommodated in a position at the Ottawa Centre Probation and Parole office. The union has grieved that a five-day suspension received by Mr. Ranger was a breach of the collective agreement because the employer imposed excessive discipline as opposed to progressive discipline. The second grievance alleges that the employer has failed to provide the grievor with a workplace that is free from discrimination and harassment.

2Two issues have arisen with respect to the production of documents. The first relates to the production by the union and the grievor of the grievor's medical records. The second relates to the production of notes taken by the union of the interviews of members of the bargaining unit who are Mr. Ranger's coworkers. Those interviews were conducted after Mr. Ranger received notice in a letter dated April 2, 2013 that an allegation meeting would be held on April 5, 2013.

Production of the Grievor’s Medical Records

3By letter dated May 19, 2016 the union provided clinical notes and records from the grievor’s family doctor subject to the following conditions:

Given that the enclosed documents are of a private and confidential nature, they are being produced to you as counsel for the Crown on the condition and subject to the undertakings that they will be used only for the purpose of the above captioned proceeding, will not be reproduced and/or copied and/or disclosed or communicated by you to any third person, including to any medical practitioner, without the prior express written consent of the Grievor and upon prior notice to the Union and the Grievor, that this material will be maintained in an appropriate and secure location consistent with the status of the documents as health care records and that upon the conclusion of this proceeding, this documentation and all copies (both paper and electronic) will be destroyed at the conclusion of the above captioned proceedings. If you cannot agree to this condition and/or provide the undertakings, please return the documents without making a copy thereof.

4The Union also provided the employer with the clinical notes and records of the grievor’s psychologist. However, the copy provided has had portions redacted that the union says are irrelevant to the issues in these matters. The employer made submissions as to why it should be provided with an unredacted copy of these documents.

5In its submissions the employer offered to identify individuals from the Ministry who will be provided with a copy of clinical notes and records and bind those individuals to the same undertakings as counsel for the Crown, being those requested by union counsel in the letter of May 10, 2016, set out above.

6In its submissions the union said that prior consent and notice to the union and grievor of the identity of those to be provided with a copy of the documents was a requirement to disclosure. It also agreed to provide an unredacted version of the psychologist’s clinical notes and records. Reserving its rights to object to admissibility.

7In its reply submissions the employer identified two individuals that would be provided with copies of the documents subject to the undertakings set out in the correspondence above. The parties agree that should anyone be provided with the documents who has a professional responsibility to keep an archival copy of the documents would be permitted to do so.

8The one remaining issue with respect to the production of the medical documents was the employer's insistence that it not be obliged to notify the union and the grievor of the identity of any medical practitioner to whom the clinical notes and records might be referred as part of the employer’s preparation for the hearing. The union was equally insistent that such notice was essential given the nature of the relationship between the grievor and the employer. In prior protracted proceedings, the grievor and the union were successful in establishing serious allegations of harassment and discrimination of the grievor in the grievor’s workplace. The union submitted it would not ask that the Board draw an adverse inference against those who have seen these medical documents if they are not called to testify.

9The thrust of the employer's submission on this point was that the identity of anyone to whom the materials are referred is protected by litigation privilege. It submitted that litigation privilege creates a zone of silence in which a party may communicate freely in preparation for litigation.

Production of the Union’s Interview Notes

10The interviews were held and the notes at issue were taken on April 2, 2013 after the grievor was given the following allegation letter, which reads as follows:

Dear Mr. Ranger:

On Monday, March 4, 2013, at the Ottawa Center Probation and Parole Office an altercation took place between yourself and Louise Beaulieu. I have completed a fact-finding into this incident and based on my conclusions request that you attend an allegation meeting on Friday, April 5, 2013 at 11:00 a.m. in my office at the Ottawa Center Probation and Parole Office. The purpose of this meeting is to provide you an opportunity to respond to the following allegations:

1. You failed to foster and maintain a positive working relationship based on mutual respect, contrary to the Statement of Ethical Principles.

2. You had unwanted physical contact with Louise Beaulieu for the purpose of detaining her against her will.

As discipline may result from this meeting, you may have a union representative attend the meeting with you. You need to make your own arrangements in this regard. If you failed to attend at the above-noted date and time, the meeting will proceed in your absence, and you will not be entitled to any further notification of proceedings.

Sincerely,

Don Billard, Area Manager

Ottawa Centre P & P

11That same day the grievor’s steward, Georges Sirois, had a conversation with the grievor's Area Manager, Don Billard, which is captured in an email from Mr. Billard to his Superior, Todd Robertson, which reads as follows:

I gave it to him at 9am. No words, no emotional reaction other than a smile which I read as “you guys are out to get me”. One hour later he asked for a vacation day tomorrow in writing-which I approved.

Georges came in to say he was going to talk to staff. I advised him they are not required to respond and that he should ensure that another union rep is present as he is perceived by some staff as being biased. He denied being biased but indicated Jon Coffey was present when he spoke to PPO Vaillant. Georges stated his game plan will depend on what he gets from staff in the office and what Ranger has to say. He does not think he will let Bob talk on Friday.

Georges later spoke with Lorraine in the presence of Jon. Both Lorraine and Veronique came into my office afterwards and were happy they had stood their ground and appreciative Jon was present. I met with Jon and thanked him for his support of staff in general-no names mentioned-and positive contribution to the office.

12The union submitted that the discussions between Mr. Sirois and the employees interviewed are subject to litigation privilege. It said that those discussions were held after the union knew of the allegation meeting. It said that it was possible that the grievor might be disciplined and possible that a grievance would be filed if he was disciplined. The union said that as the grievor's union representative Mr. Sirois was involved in the context of litigation or potential litigation. Further, Mr. Sirois’s reference to his “game plan” indicates that these discussions were a strategic issue. He was not acting as a neutral scribe.

13The employer submitted that where privilege is asserted it falls to the party making the assertion to establish, generally through evidence, that the privilege attaches to the subject matter. Here there is no direct evidence of the union's intentions in interviewing the staff on April 2, 2013. The employer submitted that the union falsely presumes that the email set out above establishes that the union's dominant interest was with respect to litigation. It submitted that the union's purpose at that stage was to investigate and determine how to deal with the allegations at the allegation meeting. It says that it is a false presumption that discipline will necessarily follow, and that litigation will follow that automatically. The employer also drew a distinction between facts and opinions as to their significance in assessing whether or not these interview notes will be protected by litigation.

14This issue arose in the course of the hearing when the union sought to cross-examine Mr. Billard on any steps he took between the allegation meeting and the time discipline was imposed. The union requested production of any arguably relevant documents from within that timeframe. The employer initially resisted such production. However, by the time we reconvened to argue this motion the employer had produced any such documents, redacted with respect to portions that would be protected by solicitor client privilege. In its submissions the employer said that there ought to a quid pro quo, which would result in the union disclosing the documents it seeks.

15In reply, the union submitted that, at best, the jurisprudence stands for the proposition that documents such as these should only be produced at the end of the employer's case and that in any event such production is still subject to a claim of litigation privilege. It also said that there is no direct evidence from Mr. Sirois because this issue arose in the cross-examination of Mr. Billard. It said that there is evidence of the interviews having taken place after the grievor and union knew of the allegations against the grievor, and there is evidence that Mr. Sirois was representing the grievor. This was not some general investigation.

16The parties relied upon the following authorities: Cook v. Ip et al (1985), 52 O.R. (2d) 288; Central Park Lodges (c.o.b. Versa-Care Windsor Place) v. SEIU, Local 210 (Rice Grievance) (2008), 174 L.A.C. (4th) 220; Ontario Public Service Union v The Crown in Right of Ontario (Ministry of Labour) (2008), 174 L.A.C. (4th) 220 (Dissanayake); Cuddy Food Products v. U.F.C.W., Local 175 (1997), 63 L.A.C. (4th) (Snow); Shopper’s World Price Chopper v. U.F.C.W., Local 175 (2005) 147 L.A.C. (4th) (Johnston).

Analysis and Decision

17Litigation privilege is raised in both of the issues before me. There are two elements required to establish that litigation privilege attaches to documents. This was dealt with in Cuddy Food Products, supra, at paragraph 64:

There are two key elements of litigation privilege. First, the material has to have been prepared at a time when either (a) litigation was pending, or (b) if litigation was not yet pending, litigation was reasonably contemplated. Secondly, the material has to have been prepared for purposes of that litigation. If material has been prepared for multiple purposes, it is sufficient for purposes of litigation privilege if the “dominant purpose” was preparation for litigation.

18I turn first to consideration of whether the identity of any medical practitioner retained by the employer is protected by litigation privilege. Manifestly, the first requirement that litigation be pending has been met. If the employer decides to retain an expert to review the clinical notes and records of the grievor’s psychologist it is bound by its undertaking “that they will be used only for the purpose of the above captioned proceeding”. Accordingly, the documents may only be used in this litigation. There can be no doubt that any expert report prepared from a review of the clinical notes and records of the grievor’s psychologist would be privileged unless used in the arbitration proceedings. The question is whether the privilege extends to protect the identity of any such expert retained by the employer. In my view it does.

19In Central Park Lodges, supra, Arbitrator Etherington was dealing with claims for both litigation privilege and a confidential relationship privilege. He cited the following excerpt from Sharpe, Claiming Privilege in the Discovery Process in Special Lectures of the Law Society of Upper Canada, 1984 (Don Mills, Ont.: DeBoo, 1984), cited in Liffey Custom Coatings Inc. and London and District Service Workers’ Union, Local 220 (1996), 59 L.A.C. (4th) (Williamson):

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate. In other words litigation privilege aims to facilitate a process (namely, the adversarial process) while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and client).

(emphasis added)

20In paragraph 62 of Cuddy Food Products, supra, Arbitrator Snow noted that “litigation privilege is sometimes referred to as a work product privilege”. The process of selecting of an expert and the referral to that expert of these materials is part of employer counsel’s work product and is protected by litigation privilege on the basis of “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate”, as set out above.

21I turn now to consideration of whether the witness statements taken on April 2, 2013 are protected by litigation privilege. Litigation privilege is largely fact driven. The germane facts in Cuddy Food Products, supra, are set out in paragraph 13:

Both Mr. Francis and the grievor worked overtime on Saturday, July 27. Mr. Francis alleged that early in the morning of July 27 the grievor attacked him in the Employer plant, pushed and punched him and knocked him to the floor. Mr. Francis complained to the management about the alleged attack by the grievor and the police were summoned. Many people were involved in interviews that morning. Criminal charges were laid by both Mr. Francis and the Grievor. The grievor was sent home that morning pending further investigation. He filed a grievance before leaving the plant.

22It should also be noted that grievor was the chief steward of Plant B.

23Arbitrator Snow dealt with the issue of pending litigation at paragraph 66:

Was litigation pending or contemplated? The Union largely works through its Chief Stewards. I think it reasonable for the Union, particularly for the Chief Steward of Plant B (the grievor), to have been contemplating litigation from the time the grievor was advised of the allegations against him and was advised that he would be sent home on the morning of July 27. From that point I think it fair to conclude, and I do conclude, that legal proceedings were “pending or threatened or anticipated” as it is often described in the authorities. (I note that the grievor actually filed a grievance before he left the plant that day)

24Arbitrator Snow went on to consider the various documents at issue in the case before him as to whether the purpose or dominant purpose for the creation of the documents was litigation. For example, at paragraphs 67 and 69 he found that there was no litigation privilege with respect to notes prepared by union representatives of their conversations with employees on the basis that there was no evidence from which he could conclude that material was prepared for the purpose or the dominant purpose of litigation.

25Here, even if can be said that litigation was reasonably contemplated, the only evidence before me of Mr. Sirois’s purpose is found in Mr. Billard’s email of April 2, 2013, which, for convenience, I again set out the following material portions:

Georges came in to say he was going to talk to staff. I advised him they are not required to respond that he should ensure that another union rep is present as he is perceived by some staff as being biased. He denied being biased but indicated Jon Coffey was present when he spoke to PPO Vaillant. Georges stated his game plan will depend on what he gets from staff in the office and what Ranger has to say. He does not think he will let Bob talk on Friday.

Georges later spoke with Lorraine in the presence of Jon. Both Lorraine and Veronique came into my office afterwards and were happy they had stood their ground and appreciative Jon was present. I met with Jon and thanked him for his support of staff in general-no names mentioned-and positive contribution to the office.

(emphasis added)

26In my view, the emphasized sentences in the email excerpt immediately above indicates that the dominant purpose was preparation for the allegation meeting to be held on April 5, 2013. It is more likely than not that the “game plan” referred to is that for the allegation meeting. The conversation between Mr. Sirois and Mr. Billard related to Mr. Sirois’s preparation for that meeting by way of interviewing the staff. Even if the interviews and the notes might turn out to be useful should litigation ensued, the dominant purpose of conducting those interviews and taking the notes was to prepare for the allegation meeting so that Mr. Sirois could try to stave off any discipline.

27Arbitrator Etherington dealt with the production of union interview notes in paragraph 22 of Central Park Lodges, supra, as follows:

Finally, I turn to the claim for production of union documents concerning interviews or conversations with witnesses. The employer accepted that documents concerning communication between the grievor and union officials concerning preparation for this grievance are privileged. This is consistent with the general arbitral recognition that the union steward-grievor relationship satisfies the four Wigmore conditions. I also note that some arbitrators have recognized that notes or reports of interviews with witnesses prepared by union stewards in furtherance of a grievance may be entitled to privilege if they meet the requirements for litigation privilege. However, I agree with Mr. Wilson that a balanced approach to the production of documents requires that an order for production of union documents concerning witness statements, and notes or reports of conversations with witnesses, including potential witnesses, be granted to the employer, subject to the union’s ability to demonstrate litigation privilege for confidential relationship privilege in relation to specific documents.

He went on to consider the impact such production might have on the burden of proof on the employer to prove just cause. In order to preserve the requirement that the employer prove just cause with clear, cogent and convincing evidence, he decided that production of such documents was not required until after the close of the employer’s case or if, and when, such a witness was called as part of the employer’s case. I also impose that condition.

28For the reasons given, employer counsel is not required to identify the identity of any potential expert witness to whom medical documentation is referred prior to doing so, and the union is required to produce copies of witness statements taken on April 2, 2013 at the close of the employer’s case.