Toronto Transit Commission v. Amalgamated Transit Union Local 113

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Wilton-Siegel, D.L. Corbett and Sutherland JJ.

April 30, 2020

150 O.R. (3d) 602 | 2020 ONSC 2642

Case Summary

Administrative law — Judicial review — Prematurity — Arbitrator making evidentiary ruling against employer in one of 11 test cases — Parties agreeing that result in one case applied to all — Employer applying for judicial review — Application was premature — Employer not establishing special circumstances to displace considerations against judicial review of interlocutory orders.

Arbitration — Judicial review — Arbitrator making evidentiary ruling against employer in one of 11 test cases — Parties agreeing that result in one case applied to all — Employer applying for judicial review — Application was premature — Employer not establishing special circumstances to displace considerations against judicial review of interlocutory orders.

Employment — Labour relations — Arbitration — Judicial review — Arbitrator making evidentiary ruling against employer in one of 11 test cases — Parties agreeing that result in one case applied to all — Employer applying for judicial review — Application was premature — Employer not establishing special circumstances to displace considerations against judicial review of interlocutory orders.

Hundreds of the applicant's employees were involved in a fraudulent benefits scheme. Most were terminated from their employment, but nine employees were offered a suspension and repayment of money taken and exchange of mutual full and final releases. The respondent launched hundreds of grievances in respect of the terminated employees. The parties selected 11 test cases to litigate. The respondent did not dispute the fraud but relied on defences such as condonation [page603] and "discriminatory discipline". In the present case, the respondent sought production and a finding of admissibility of the documents of the employees who resolved their cases by accepting the lesser punishment. The applicant argued that the documents were covered by settlement privilege or, in the alternative, "case-by-case privilege". An arbitrator found that documents related to three of the settling employees were potentially relevant and probative of an issue before him. He found that the documents were closer to "disciplinary documents" rather than "settlement documents" and were not subject to settlement privilege. He also found no "case-by-case" privilege. The applicant applied for judicial review of the arbitrator's decision.

Held, the application should be dismissed.

The application was premature. Labour arbitration cases should almost always be decided finally before review by the Divisional Court. The applicant argued that it was an exceptional case justifying judicial review. However, the fact that it was a test case in which the parties agreed to apply the result in the remaining ten test cases was not sufficient to displace the considerations weighing against judicial review of an interlocutory order. The first of those considerations was hardship to the applicant. The applicant was not facing undue burdens in terms of costs, delay, or other irremediable consequences if the cases proceeded on the basis of the impugned ruling. The substance of the settlements was already known and there was no evidence that would result in actual prejudice to the applicant's privilege if the contents of the documents were disclosed in the agreed redacted form. The potential consequences of the parties' agreement to apply the one result to all test cases did not constitute hardship within the meaning of the test for exceptional circumstances. The second consideration involved wasted process. The decision was a simple evidentiary ruling with no wasted process for the applicant in having to defer judicial review of the privilege issues until after a final award. Third, even though it was a test case, the fastest, most efficient approach was to have just one round of appeals and reviews, after a final decision was rendered. Fourth, there was the possibility of fragmentation of issues. For example, the result of the underlying arbitration might not turn on the disputed interlocutory ruling. Finally, although the applicant had an arguable case, it was by no means overwhelming and certainly not to the point where the arbitrator's decision was clearly wrong with consequences that could not be redressed on a judicial review of the final decision.

Cases referred to

Ackerman v. Ontario (Provincial Police), [2010] O.J. No. 738, 2010 ONSC 910, 259 O.A.C. 163, 11 Admin L.R. (5th) 304, 186 A.C.W.S. (3d) 533, 2010 CarswellOnt 1060 (Div. Ct.); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.); Brown v. Cape Breton (Regional Municipality), [2011] N.S.J. No. 164, 2011 NSCA 32, 302 N.S.R. (2d) 84, 331 D.L.R. (4th) 307, 201 A.C.W.S. (3d) 367; C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J No. 274, 2010 FCA 61, [2011] 2 F.C.R. 332; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, 122 D.L.R. (4th) 129, 177 N.R. 325, J.E. 95-232, 26 Admin. L.R. (2d) 1, [1995] 2 C.N.L.R. 92, 52 A.C.W.S. (3d) 1185; C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, [2011] 2 F.C.R. 332, 2010 FCA 61; Deutsche Bank Securities Ltd. v. Ontario (Securities Commission), [2012] O.J. No. 3189, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.); Girouard v. Canadian Judicial Council, [2014] F.C.J. No. 1360, 2014 FC 1175; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, [1993] O.J. No. 61, 99 D.L.R. (4th) 738, 63 O.A.C. 393, 37 A.C.W.S. (3d) 1106, 1993 16422 (ON SCDC), 19 C.H.R.R. D/199 (Div. Ct.); Ontario (Liquor Control Board) v. Lifford Wine Agencies (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401, [2005] O.J. No. 3042, 201 O.A.C. 1, 36 Admin. L.R. (4th) 192, 141 A.C.W.S. (3d) 158 (C.A.); Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville (2015), 125 O.R. (3d) 732, [2015] O.J. No. 2684, 2015 ONSC 3085, 253 A.C.W.S. (3d) 887, [page604] [2015] CLLC para. 230-043, 23 C.C.E.L. (4th) 1, 334 O.A.C. 300, 81 C.H.R.R. D/225, 98 Admin. L.R. (5th) 92 (Div. Ct.); Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, [1988] O.J. No. 3114, 53 D.L.R. (4th) 90, 29 O.A.C. 84, 34 Admin. L.R. 87, 89 CLLC para. 17,013 at 16090 , 1988 4851 (ON SC), 10 C.H.R.R. D/5761, 11 A.C.W.S. (3d) 333 (Div. Ct.); Rudinskas v. College of Physicians and Surgeons of Ontario, [2011] O.J. No. 4714, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.); Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623, [2013] S.C.J. No. 37, 2013 SCC 37, 359 D.L.R. (4th) 381, 446 N.R. 35, J.E. 2013-1134, 332 N.S.R. (2d) 1, 22 C.L.R. (4th) 1, 37 C.P.C. (7th) 225, [2013] I.L.R. para. G-2526, 228 A.C.W.S. (3d) 78, EYB 2013-223434, 2013EXP-2138; Toronto (City) Police Services Board v. Briggs, [2017] O.J. No. 1700, 2017 ONSC 1591, 378 C.R.R. (2d) 117, 280 A.C.W.S. (3d) 122, 86 C.H.R.R. D/126 (Div. Ct.); Unimac-United Management Corp. v. St. Clare's-Monaco Place, [2015] O.J. No. 4134, 2015 ONSC 4760, 257 A.C.W.S. (3d) 6, 53 C.L.R. (4th) 63 (Div. Ct.); Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240

Statutes referred to

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 2

Authorities referred to

Brown, Donald J.M., and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Carswell, 2013)

APPLICATION for judicial review of an arbitrator's interlocutory decision.

Frank Cesario and Amanda Cohen, for applicant.

Joshua Phillips and Saneliso Moyo, for respondent.

The judgment of the court was delivered by

[1] D.L. CORBETT J.: — This application concerns the principles of settlement privilege and "case-by-case" privilege in the context of hundreds of cases of alleged benefits fraud involving employees of the applicant Toronto Transit Commission ("TTC"). However, I would decide this application on the principles of prematurity: even in a test case, such as this one, judicial review is generally not available from an arbitrator's interlocutory decision:

For some time now, the Divisional Court has . . . taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. . ..[^1] [page605]

Background

[2] Hundreds of TTC employees were involved in a fraudulent benefits scheme. Most were terminated from their employment for their involvement in this scheme. Nine employees involved in the fraud were, however, offered a less severe penalty (a suspension rather than termination and repayment of money taken) and exchange of mutual full and final releases. The respondent union ("ATU") has launched hundreds of grievances in respect to the employees who were terminated. The parties have selected eleven test cases to litigate. The rest of the grievances are in abeyance pending determination of these test cases.

[3] ATU does not dispute that fraud occurred but relies on defences such as condonation and "discriminatory discipline".

[4] The matter before the court is one of the 11 test cases. In this case, ATU sought production and a finding of the admissibility of documents of the employees who resolved their cases by accepting an offer of discipline of suspension (rather than termination) and the repayment of benefits improperly received. TTC argued that the documents were covered by settlement privilege or, in the alternative, by "case-by-case" privilege. Arbitrator Slotnick found that documents related to three of the settling employees were potentially relevant and probative of an issue before him. He then found that the documents were closer to "disciplinary documents" than "settlement documents" and could not therefore be considered subject to settlement privilege. Finally, he found that "case-by-case" privilege should not be applied to shield the documents from production. TTC seeks judicial review of the Arbitrator's decision on these issues.

[5] The Arbitrator's decision is interlocutory. Ordinarily this court will not entertain judicial review of an interlocutory decision on the basis of "prematurity": the court requires the parties to complete the process below, to a final decision on the merits, and then judicial review may be sought on issues pertinent to the final result.[^2]

[6] TTC argues that this case is one of those "exceptional cases" where the court should entertain judicial review of an interlocutory decision: the decision will be applied in this case and in the other ten test cases and thereafter will be potentially relevant to [page606] hundreds of other cases, and, accordingly, obtaining an authoritative disposition of the issue is important to an efficient process before the Labour Board.

[7] On the merits, TTC argues that the Arbitrator "lost focus" on the essential issues underlying settlement privilege and failed to consider the intention of the parties and the purpose of the communications. TTC also argues that the Arbitrator ignored relevant evidence that established that the parties intended the communications as a confidential settlement. The TTC argues that, in considering "case-by-case" privilege, the arbitrator failed to consider all of the Wigmore criteria and, that as a result, his balancing of the Wigmore factors was "flawed".

[8] ATU argues that the application is premature, and this court should not entertain an application for judicial review on an issue that may not need to be determined by this court at all, depending on the final result in the arbitration below. On the merits, ATU argues that the impugned decision is reasonable on the facts and on the law, and reflects a sensitive application of the principles of settlement privilege and "case-by-case" privilege in the context of employment discipline cases.

Summary and Disposition

[9] In my view, the application is premature. Labour arbitration cases should almost always be decided finally before review is taken in this court and further appeals are taken from the decision of this court. In my view, special or exceptional circumstances do not exist in this case. I appreciate that this is a test case, but in my view the fact that the parties have agreed that the arbitrator's decision in this case shall be applied in the remaining ten test cases is not sufficient to displace the considerations that weigh against judicial review of an interlocutory order.[^3] The case should proceed through the administrative process and any judicial review should be brought thereafter on issues that turn out to be of significance to the result.

Analysis

[10] Generally, this court will not exercise its discretion to hear a judicial review of an interlocutory decision unless

(a) the administrative action is clearly erroneous; [page607]

(b) there are special or exceptional circumstances; or

(c) where the inconvenience and cost warrant intervention.[^4]

[11] TTC argues that this case meets the "exceptional circumstances" test for judicial review of an interlocutory order. "Exceptional circumstances" are assessed on the basis of the following factors:

(1) hardship to the applicant if the administrative process continues without the court's intervention;

(2) waste if the applicant has to follow the administrative process until the end and then, if a negative decision is rendered against it, has to re-apply for judicial review with respect to the same issue;

(3) delay in the administrative process caused by the court's intervention and the possible impact on other proceedings if the parties use this process for the purpose of delaying the proceedings or forcing the more vulnerable party to surrender;

(4) fragmentation of issues that may proliferate litigation because immediate intervention will not prevent either party from making an application for judicial review of the ultimate decision made by the administrative body; and

(5) strength of the applicant's case.[^5]

[12] TTC argues that "test cases" and cases with "broad implications for other cases in which there are overlapping issues" may be appropriate cases for this court to exercise its discretion to hear a judicial review of an interlocutory decision from an administrative tribunal.[^6] [page608]

[13] TTC argues that the parties have adopted a practical and efficient process for determining interlocutory issues that will arise in multiple grievances: they have agreed that the first arbitration decision on an interlocutory issue will apply in the remaining ten test arbitrations. The decision under review is the first decision on the issue of disclosure of the six documents related to three cases in which employees accepted offers of discipline. As such, the decision will be applied in the other ten test cases and, by extension, may potentially affect hundreds of other grievances.

[14] ATU agrees that the decision in this case will, by agreement, be applied in each of the other ten test cases. However, it argues that this is not enough to establish exceptional circumstances:

Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy granted.[^7]

[Citations omitted]

The privilege issue in this case, ATU argues, like every interlocutory issue on which the arbitrator rules, should await any judicial review that may be brought from the arbitrator's final disposition.

[15] The fact that there are 11 test cases is not a basis to conduct judicial reviews of interlocutory decisions in any of them. The parties have agreed between themselves that interlocutory decisions made in one of the test cases will be applied in the other test cases. They need not have so agreed -- in principle, the decision of one arbitrator is not binding on another. Just because the parties have agreed not to relitigate interlocutory issues at arbitration does not mean that this court should entertain interlocutory appeals: indeed, the efficiency achieved by litigating the issue only once below will be undone, at least in part, if, instead, there are interlocutory reviews and appeals.

[16] The parties have chosen to proceed with 11 test cases. TTC now wants this case, on this issue, to be treated as a test case for the other test cases. The parties have not agreed to proceed in this fashion, and if they had, the appropriate course would be to complete the arbitration in this case to a final decision, including any applications for judicial review that might follow it, and any further appeals, and then to apply the end result to remaining cases. [page609]

[17] In my view, all of the policy reasons against judicial review of interlocutory decisions apply with full force in the context of this case, as a test case. Running 11 test cases in lieu of litigating hundreds of underlying grievances makes obvious sense. The net effect is to delay adjudication of hundreds of underlying grievances, but potentially to reduce, significantly, the overall costs of conflict resolution. For this to work practically, of course, it is important that the test cases proceed with reasonable dispatch. "Reasonable dispatch" would be compromised by judicial review and subsequent potential appeals of interlocutory rulings.

(1) Hardship to the applicant

[18] I see no hardship to the applicant if the test cases continue without the court's intervention at an interlocutory stage. When the parties agreed to run select "test cases", they should have done so with ordinary principles of judicial and appellate review in mind. The test cases will proceed on the basis of the impugned ruling, as agreed between the parties. They will run their course. And then applications for judicial review will be available to a party unsatisfied with the results. Those applications will work their way up the ladder of judicial and appellate review, and once they are concluded the parties will have precedents to guide them in the hundreds of outstanding grievances.

[19] The applicant is not facing undue burdens -- in terms of costs, delay, or other irremediable consequences if this case and the other test cases proceed on the basis of the impugned ruling. While it might be argued that there is some affront to the applicant's privilege (as alleged), the substance of the settlements is already known, and no evidence has been placed before us that there would be actual prejudice if the contents of the documents are disclosed in the agreed redacted form.

[20] The one arguable area of hardship is an incident of the parties' agreement respecting test cases. It is true that, if TTC is right in its position on the privilege issues, all 11 test cases will be decided on the basis of the impugned ruling, and, potentially, the final dispositions of each of the 11 test cases will have to be scrutinized on judicial review. But that is the choice the parties made by running 11 test cases, instead of one, and agreeing that interlocutory rulings by one arbitrator will be applied in respect to all of the 11 test cases. These potential consequences of the parties' agreement do not constitute "hardship" within the meaning of the test for "exceptional circumstances". [page610]

(2) Wasted process

[21] I see no material risk of wasted process if judicial review awaits the final disposition of the underlying issues. This is not a case where there has been an obvious fatal defect in proceedings below, such as an evident flaw in the decision-making process,[^8] an obvious want of jurisdiction,[^9] or a lack of procedural fairness that cannot be cured in the administrative process,[^10] nor is this a case where an interlocutory decision on a preliminary point, such as a limitations defence, will have the effect of avoiding the process below, with substantial cost savings. Even in these examples, the general principle is to await the conclusion of the process below. In the instant case, we are dealing with no more than an evidentiary ruling -- the kind of ruling arbitrators are called upon to make routinely during the course of arbitrations. As I understand the agreement between the parties, even if this court were to render a decision on the Arbitrator's ruling in this case, that will not prevent judicial reviews of the application of that ruling in the test cases. The test case arbitrations will proceed in any event, and I see no material wasted process for the TTC in having to defer judicial review of the privilege issues until after a final award. Of course, if this court decides to intervene with the ruling on judicial review, at the end of the process, this could affect the final result -- but that is why there is judicial review available. Moreover, even if this court were to render a decision on the Arbitrator's ruling in this case, nothing prevents a judicial review of the application of that ruling to the remaining ten test cases by the unsuccessful party. The fact that there could be judicial review later is not a sufficient basis to permit a premature judicial review now.[^11] [page611]

(3) Delay in administrative process

[22] Generally, judicial review of interlocutory rulings cannot but result in (a) delay in the process below; (b) impracticality arising from the judicial review being decided after a final decision is rendered below (possibly rendering the application for judicial review stale or moot); and/or (c) requiring expedited process for judicial review in this court. These consequences cannot but compromise the underlying goal of the administrative process in labour law cases: the expeditious resolution of workplace disputes.[^12]

[23] The "ordinary course" delay in a judicial review brought in Toronto is between 12 and 18 months based on current "times out" and filing deadlines.[^13] Once this court renders a decision, the parties are entitled to seek leave to appeal to the Court of Appeal. If both parties are diligent, but no direction is given by the Court of Appeal to expedite the motion for leave to appeal, current "times out" for a decision on the motion for leave to appeal seem to be nine to 12 months from the date of the decision in the Divisional Court. If leave to appeal is granted, again, without an order expediting the appeal, but with reasonable diligence and respect for filing deadlines by all parties, the "times out" for a hearing in the Court of Appeal seem to be between 12 and 18 months from the time that leave to appeal is granted. And then, of course, there is the possibility of further appellate proceedings in the Supreme Court of Canada, likely with similar, or longer, "times out" than those at the Court of Appeal.

[24] The time periods set out above do not include the time that decisions are under reserve -- and those reserve periods can range widely (from immediate oral decisions or appeal book endorsements to many months under reserve). These points are well understood by the bar -- the course of justice is slow, in the ordinary course. It can be much slower if a party is less than diligent, or if an intervening event arises, such as conflicting court commitments or illness of an essential participant.

[25] All of these time periods can be expedited, in an appropriate case. But there is a cost to expediting cases -- both for the court and for the parties. For the court, resources must be redirected from dealing with the court's "ordinary course" docket. This leads [page612] to further delay in regular matters, something that is obviously undesirable. It also leads to a sense of unfairness for parties waiting for a court date: why should this case "jump the queue"? For counsel, of course, it may raise similar concerns: most counsel have more than one client, and if a case is placed on an expedited schedule, then counsel's other cases must wait, and perhaps be delayed, while the expedited case proceeds.

[26] In my view, none of this changes because this is a test case. However, the privilege issue is resolved, the arbitration has to be heard and a decision rendered. Then, after the final award, parties will have a further opportunity for judicial review. The potential for two rounds of judicial review and appeals, instead of one, could lead to substantial delay in bringing the results of the test cases to bear on the hundreds of underlying grievances. Further, the arguments in favour of early review of the impugned interlocutory ruling could be marshalled to justify reviews of other interlocutory rulings: on the record before us, the risk is for two sets of review and appeal proceedings. If, however, review is permitted here, in principle there could be multiple reviews of multiple interlocutory rulings. And, at least theoretically, this could arise in each of the 11 test cases. The fastest, most efficient approach is to have but one round of reviews and appeals, after a final decision is rendered.

[27] I appreciate that in this case the underlying arbitration has gone ahead while this application for judicial review has been outstanding in this court. Thus, the case below should not, in fact, have been delayed awaiting this decision. However, this raises three points. First, assuming the arbitration has moved forward with all due dispatch, this would render this aspect of the test for exceptional circumstances neutral: the absence of demonstrated delay is not a reason, by itself, to hear a judicial review of an interlocutory ruling. Second, if the arbitration has proceeded with all reasonable dispatch, there must have been at least some chance that the arbitration would conclude, and a decision be rendered, before this decision was released. Such an event could render this decision stale, or moot, or worse -- a decision that undermines (to some extent) the final award. Third, the arbitration continued in this case, at least in part, in the context of well-established legal principles that administrative processes should not be delayed by the unilateral decision of one party to seek judicial review of an interlocutory ruling. The policy reason for this principle is obvious: were it not so, any party could obtain an adjournment by initiating judicial review in the middle of a hearing. If, however, this court finds, in this case, that test cases constitute "special circumstances", the impracticality of proceeding simultaneously with an [page613] arbitration and an interlocutory judicial review could well result in substantial delays in future test case arbitrations.

[28] In those very rare cases where there appear to be exceptional circumstances, it would be important to try to expedite the process in this court so that the court's ruling would not be stale, moot, or destabilize a final administrative ruling made before the application for judicial review was decided. That these complications may not have arisen in this particular case is not, however, a basis to ignore the consequences of a general principle that places test cases into the category of "exceptional circumstances".

(4) Fragmentation of issues and process

[29] TTC argues that the agreement between the parties excludes any fragmentation of issues. I do not agree.

[30] The result of the underlying arbitration may not turn on the disputed interlocutory ruling. That is, the documents admitted by the impugned ruling may turn out to be immaterial to the ultimate disposition of the case: for example, the arbitrator may find that "discriminatory discipline" is not proved on the facts, or that such "discriminatory discipline" that is established does not, either as a matter of law, or as a matter of fact, preclude the employer from imposing the discipline that it did. And this is the first potential fragmentation: this court could be required to decide an issue on this application which may turn out to be immaterial to the final result.

[31] Or it could be that this court holds against TTC on the merits of this application, that the arbitrator rules against TTC on issues to which the disputed documents are material, and TTC wishes to judicially review the arbitrator's final decision, not on the basis of whether the documents ought to have been produced, but by reason of the use made of them by the arbitrator, the facts found by the arbitrator on the basis of the documents, the arbitrator's legal conclusions and application of the law to facts arising from the documents -- all questions connected with the impugned privilege rulings. It is not an efficient use of the court's process to have two different panels of this court review such closely related issues in separate judicial reviews.

[32] Further, TTC argues that a consequence of refusing to hear this application is that the identical issue may have to be litigated in all eleven test cases on judicial review. Perhaps. That is a consequence of the agreement the parties have reached regarding their approach to test cases. Further, I am confident that the parties will devise a practical approach to applications for judicial review following final disposition of the test cases -- and if they have [page614] difficulty coming to a sensible approach, the Divisional Court can arrange case management for them to assist in that process.

(5) Strength of the applicant's case

[33] This aspect of the test is not to invite this court to engage in a thorough-going analysis of the underlying merits to decide the question of prematurity. If there is no merit, or very little merit, to an applicant's case, and this is apparent on the face of the case, then of course the court will be inclined to refuse to hear the application for judicial review of the interlocutory decision below. However, that is not to say that an "arguable" application weighs in favour of early judicial review. Not at all. This aspect of the test only has significant force in the narrow range of cases where the applicant's case is very strong, almost sure to succeed, and there will be substantial negative consequences awaiting the final award to make this decision. Put another way, if it appears that the decision below is clearly wrong, and that it will have consequences as a result that cannot be redressed on a judicial review of the final decision, then the court will be more likely to exercise its discretion to hear an early application for judicial review.

[34] That is not this case. Traditionally, settlement privilege applied to discussions aimed at settling a dispute, but not to the settlement itself. Historically, settlement privilege did not operate to shield the substance of a settlement from disclosure in other legal proceedings if the substance of the settlement was relevant to those proceedings. Of course, the underlying settlement may have been confidential -- and the settling parties may have agreed that it is confidential -- but confidentiality is not privilege.

[35] However, these historical approaches to settlement privilege have been superseded by a broader approach to settlement privilege that shields the results of settlement negotiations, and not just the negotiations themselves.[^14] The metes and bounds of this more robust approach to settlement privilege remain open to debate, and have not been addressed definitively in the labour law context, and, more specifically, in the area of employee discipline.

[36] Further, the arbitrator found that the requested documents were more in the nature of "discipline documents" than [page615] "settlement documents". Of course, they could be both. But the gravamen of his decision was that settlement of discipline disputes does not shield the discipline results from disclosure where they are relevant to other discipline proceedings.

[37] This logic may be reasonable in the context of labour relations. However, the application of principle to the specific documents in issue cannot be said to be settled. The applicants have an arguable case, but it is by no means overwhelming: this is a developing area of the law. The fifth branch of the test does not militate in favour of exercising discretion to hear this application before final disposition of the arbitration.

Conclusion

[38] On all branches of the test for "exceptional circumstances", I am not persuaded the court should exercise its discretion to hear this application to review an interlocutory evidentiary ruling. In particular, I am not persuaded that the fact that this is one of 11 test cases should change this conclusion. Accordingly, I would dismiss the application because it is premature, without prejudice to the positions of the parties on this issue on any judicial review that may be taken from the arbitrator's final disposition of the case.

Order

[39] The application is dismissed, with costs of $6,500, inclusive, as agreed by the parties.

Application dismissed.

Notes

[^1]: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, [1993] O.J. No. 61 (Div. Ct.), at p. 800 O.R.

[^2]: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, at para. 8; Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 355 D.L.R. (4th) 518, paras. 61-70.

[^3]: This agreement does not limit the parties' rights on judicial review in each of the 11 test cases.

[^4]: Brown, Donald J.M., and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Carswell, 2013), at 3-63 to 3-64.

[^5]: Girouard v. Canadian Judicial Council, [2014] F.C.J. No. 1360, 2014 FC 1175, at para. 32. See, also, Unimac-United Management Corp. v. St. Clare's-Monaco Place, [2015] O.J. No. 4134, 2015 ONSC 4760 (Div. Ct.), at para. 10, per Harvison-Young J. (as she then was). As can be seen, this test includes aspects of all three branches of the analysis suggested in Judicial Review of Administrative Action in Canada (see note 4, above).

[^6]: Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville (2015), 125 O.R. (3d) 732, [2015] O.J. No. 2684, 2015 ONSC 3085 (Div. Ct.), at para. 88; Toronto (City) Police Services Board v. Briggs, [2017] O.J. No. 1700, 2017 ONSC 1591 (Div. Ct.), at para. 24.

[^7]: C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J No. 274, 2010 FCA 61, at para. 33.

[^8]: Ackerman v. Ontario (Provincial Police), [2010] O.J. No. 738, 2010 ONSC 910 (Div. Ct.), at para. 19.

[^9]: Volochay v. College of Massage Therapists of Ontario, supra, note 2, at para. 67; C.B. Powell Ltd. v. Canada (Border Services Agency), supra, note 7, at para. 42.

[^10]: Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401, [2005] O.J. No. 3042 (C.A.).

[^11]: Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.). Similar principles apply to most statutory appeals from administrative tribunals: Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, [1988] O.J. No. 3114 (Div. Ct.), at para. 26; Rudinskas v. College of Physicians and Surgeons of Ontario, [2011] O.J. No. 4714, 2011 ONSC 4819 (Div. Ct.), at paras. 72-73; Deutsche Bank Securities Ltd. v. Ontario (Securities Commission), [2012] O.J. No. 3189, 2012 ONSC 1576 (Div. Ct.).

[^12]: Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 2.

[^13]: These time periods are based on "times out" prior to the current COVID-19 suspension of ordinary court operations.

[^14]: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, [2013] S.C.J. No. 37; Brown v. Cape Breton (Regional Municipality), [2011] N.S.J. No. 164, 2011 NSCA 32, 302 N.S.R. (2d) 84.