GSB# 2023-02514

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Association)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 24, 2024, April 10 and June 4, 2025

Decision

Introduction

1The grievance before me relates to the benefit program and arose because an individual member of the bargaining unit filed a civil lawsuit against the insurance administrator, Canada Life, with respect to the denial of certain benefits under the benefit plan. The employee did not follow the dispute resolution procedure set out in Article 32 of the collective agreement but instead hired outside legal counsel and filed a civil action directly against Canada Life. The Employer has advised the Association that the Crown was not a defendant in the legal action. The key fact is that the civil action was ultimately settled directly between the employee and Canada Life. The Employer advised the Association that the civil suit settlement contained both confidentiality and non-disclosure provisions.

2The parties are in agreement that the method for the resolution of employee disputes with respect to benefit coverage is found in Article 32 of the collective agreement, which sets up a special process whereby disputes are referred to the Joint Benefits Committee (JBC). Unresolved disputes are referred to a Grievance Settlement Board (GSB) adjudicator for resolution.

3The Association grieved the fact that the dispute in this case had been wrongly processed as a civil suit, rather than being properly processed under the collective agreement. The employer did not take issue with the general principle behind the grievance. The parties were able to draft a Memorandum of Settlement (MOS) to resolve the grievance, setting out their shared understanding as to how employee benefit complaints are to be processed, and what should happen in the event any employee attempts to file a civil suit in the future with respect to a matter that is properly within the jurisdiction of the Article 32 JBC process. There was, however, one point on which the parties could not agree and for that reason the MOS was not executed. The remaining difference is that the Association seeks disclosure of the civil suit settlement document signed between Canada Life and the employee. This decision deals with the narrow issue of whether the Employer should be required to disclose the civil suit settlement to the Association.

Employer Submissions

4The Employer opposes the Association's request for disclosure of the civil suit settlement document for three reasons. First, the Employer argues that, under the West Park Hospital decision, the material sought by the Association is not arguably relevant to the dispute and there is no nexus between the issues at stake and the civil settlement document. Second, the Employer argues that the civil suit settlement is protected by settlement privilege, the privilege has not been waived, and the legal exceptions to settlement privilege do not apply in the current case. Third, the Employer asserts no labour relations purpose would be served by the disclosure of the document.

5The Employer asserts that the Association has not identified any aspect of the civil suit settlement that is arguably relevant to a dispute between the parties. The parties to the grievance have drafted an agreement in principle that resolves all the other outstanding issues. The Employer asserts that there can be no relevance, in these circumstances, to the further step of requiring disclosure of the civil suit settlement document to the Association. The Employer argued the Association was attempting to engage in an “end run” to obtain a copy of the civil suit settlement between Canada Life and the employee without articulating why it is relevant to the issues in dispute between the parties.

6The Employer’s second objection to disclosure is that the document in dispute is subject to document privilege which has not been waived and to which the known exceptions do not apply. The Employer relied on the decision of the Supreme Court of Canada in Sable Offshore in which the SCC articulated the two main exceptions to settlement privilege, i.e. either that disclosure would serve a public interest purpose that outweighs confidentiality, or that disclosure is necessary to determine the ‘scope’ of the settlement, such as to ensure proper interpretation and enforcement of the settlement.

7The Employer argued that the jurisprudence confirms that it would be improper to order the disclosure of the civil suit settlement given that the only relevant issue in dispute is whether the settlement existed, which has been conceded. There is no reason why the contents of the settlement could be seen to be arguably relevant to any ongoing dispute between the parties. The jurisprudence also indicates that a party cannot unilaterally waive confidentiality or settlement privilege. In this case, neither the Employer nor the Association had the standing to waive settlement privilege let alone challenge the scope for purposes of enforcement, as neither were party to the settlement, and thus the second exception to the privilege did not apply.

8The Employer also relied on the decision of Owen Gray in the Liquor Control Board, to the effect that the obligation to disclose evidence must be assessed against the test of arguable relevance, which means there should be a clear nexus between the evidence and the issues in dispute. Given that the contents of the civil suit settlement document were unknown to the Association, the Association's request for disclosure could be seen as a fishing expedition.

9The Employer relied on the following authorities: Sable Offshore Energy Inc., 2013 SCC 37, [2013] 2 S.C.R. 623; York Region District School Board, (unreported, Leslie Reaume, June 17, 2021); Toronto District School Board, (unreported, Janice Johnston, February 24, 2023); Liquor Control Board