PAY EQUITY HEARINGS TRIBUNAL
0508-94 Salvation Army on behalf of Group of Employers, Applicants and Group of Employees (Anonymous), Respondents
Before: Katherine Laird, Vice-Chair and Members Geri Sheedy and Charles Taccone
Appearances: Mary Beth Currie and M.M. Smith for the Salvation Army and the Group of Employers
Sharon Ffolkes-Abrahams for the Group of Employees
Cite as: Salvation Army (Group of Employees), May 27, 1996, 0508-94 (P.E.H.T.)
DECISION OF THE TRIBUNAL, MAY 27, 1996
This interim decision is further to the May 24, 1996 decision of the panel with respect to disclosure, and deals with issues arising out of the testimony of in-house counsel on the negotiation of collective agreements at various individual centres and facilities. Counsel for the respondents raised the issue of whether privilege had been waived by the applicants in this area due to the testimony of Mr. Hutchinson.
In examination-in-chief, Mr. Hutchinson gave evidence with reference to a number of collective agreement documents (first page and signing page only) taken from his files. He testified that, during the relevant time, there was no complete central depository of collective agreements at Territorial Headquarters, and that the first and final pages of some agreements had been collected at Territorial Headquarters. He gave evidence, to the best of his knowledge, on who signed the collective agreements on behalf of the employer, and in what capacity. He also gave general evidence about his own involvement in certain negotiations.
In cross-examination, Mr. Hutchinson gave further evidence about the history of negotiations at certain centres, his own involvement in reviewing some agreements before and/or after execution, and the involvement of Social Services Department Heads in certain of the negotiations. He testified that he was not sure what percentage of collective agreements were sent to him for review. With reference to Exhibit 95, the Policy and Procedural Manual of Correctional and Justice Services Department, he testified that he gave advice to individual centres which was consistent with the suggestion in the manual that agreements be subject to “central review” to ensure that Salvation Army “national policies” were not violated. He further stated that, in reviewing draft collective agreements, he did not review “local items”, but gave advice on minimum legal and Salvation Army standards.
The question for the panel to determine is whether counsel for the respondents is prevented from asking further questions with respect to the role of in-house counsel in collective agreements and his instructions, if any, in respect of the negotiation of collective agreements. The applicants have argued that his legal advice and his instructions with respect to negotiations are privileged. The respondents have not disputed the privileged nature of advice and instructions, but have submitted that privileged has been waived.
In our view, counsel for the respondents may ask further questions of the witness in the areas in which he has already testified, as outlined above. Privilege may not have attached to his testimony in these areas, and in any event, privilege has been waived by his responses already given. The applicants may claim privilege with respect to the actual legal advice given on particular collective agreements, and with respect to specific instructions received.