Salvation Army on behalf of Group of Employers v. Group of Employees (Anonymous), 1996 CanLII 8061

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 Folkes-Abrahams for the Group of Employees

Cite as: Salvation Army (Group of Employees) (24 May 1996), 0508-94 (P.E.H.T.)

DECISION OF THE TRIBUNAL, MAY 24, 1996

1. This interim decision deals primarily with a motion by the respondents for disclosure of certain documents held in the file of in-house counsel for the Salvation Army Territorial Headquarters. The motion arises out of a ruling by the panel on related issues, delivered by registrar’s letter dated April 9, 1996. The text of the April 9, 1996 ruling is set out below.

(1). We find that the Salvation Army Group of Employers has not generally waived solicitor-client privilege with respect to the testimony of its witness, Mr. Hutchinson. Mr. Hutchinson has given testimony about the history, structure and governance of the Salvation Army, the governing legislation, the role of legal counsel and the kinds of advice he is called upon to provide as counsel. His testimony in these areas has not resulted in an implied waiver of solicitor-client privilege in all areas. We find that his testimony has resulted in an implied waiver in the areas in which he gave evidence. The extent of the waiver will have to be determined on an issue-by- issue basis.

(2). We find that the three documents which were the subject of this motion for disclosure are privileged. The two letters from McCarthy and McCarthy, and the memorandum from Mr. Hutchinson to Lt. Col. Rich, are properly considered privileged as communications between counsel and client which occurred for the purpose of obtaining legal advice. The Salvation Army Group of Employers is not required to disclose these three documents.

(3). With respect to the issue of disclosure of Mr. Hutchinson’s pay equity file, we direct the Salvation Army Group of Employers to prepare, prior to the next day of hearing, a list of the documents in the file, describing briefly each document, and indicating if privilege is claimed and, if so, on what grounds.

(4). At the resumption of the hearing, counsel for the Salvation Army Group of Employers will be asked to address the issue of whether privilege has been waived with respect to the communications of Mr. Hutchinson with the various centres and THQ, DHQ and Governing Council on employment matters. Counsel for the Group of Employees will have an opportunity to reply.

(5). At the resumption of the hearing, counsel for the Salvation Army Group of Employers will also be given an opportunity to address the issue of whether privilege attaches to the instructions received by Mr. Hutchinson in respect of the negotiation of a collective agreement, and if so, whether such privilege has been waived. Counsel for the Group of Employees will have the opportunity to reply to the submissions.

2. The issues in paragraphs (3), (4) and (5) above were the subject of submissions at the resumption of the hearing on April 30, 1996. The issues argued were:

• are the documents in the pay equity file of in-house counsel privileged?

• has privilege been waived with respect to communications on employment matters between in-house counsel, on the one hand, and the various Salvation Army-associated centres, or Territorial and Divisional Headquarters and the Governing Council, on the other hand?

• are the instructions received by in-house counsel in respect of the negotiation of a collective agreement privileged, and if so, has the privilege been waived?

This decision deals with the first two issues. The third issue will be dealt with in a later decision.

Pay Equity File of In-House Counsel

3. Pursuant to the ruling of the panel, counsel for the applicants prepared a list of all documents in the pay equity file of in-house counsel. Privilege was claimed, and disputed, in respect of documents numbered 18 to 33, and 36. These documents can be described as follows:

• blank pay equity job questionaire (#18) and various charts (#s 19/20/21/ 22/23/24/28/29/30/31) containing information with respect to the evaluation of jobs for pay equity purposes;

• memoranda to the Pay Equity Committee at Territorial Headquarters from Captain Susan McMillan advising of up-coming meetings and issues emerging from the work of the Committee in endeavouring to comply with pay equity legislation (#s25/26/27/32);

• letter from outside consultant to inside consultant, copied to in-house counsel, discussing legal issues with respect to pay equity (#33);

• handwritten notes of in-house counsel made during a meeting with a Pay Equity Commission Review Officer, and the executive-director of an institution, which meeting followed notice of a pay equity complaint by a group of anonymous employees (#36).

4. Ms. Currie and Ms. Folkes-Abrahams placed before the panel extensive jurisprudence with respect to the importance and scope of solicitor-client privilege, and the competing principle in support of full disclosure. Having considered the jurisprudence, we are satisfied that the test to be applied, in reviewing the documents described above, is whether or not each item can be considered to be part of a communication to counsel for the purpose of obtaining legal advice or assisting in the conduct of litigation. Privilege is not established simply by the fact that documents are located in the file of counsel: Mutual Life Assurance Co. of Canada v. Deputy Attorney General of Canada (1988) 28 C.P.C. (2d) 101 at 105. The determination as to whether each particular document is properly considered part of a privileged communication will depend on whether the dominant or substantial purpose for the creation, collection or copying of the document was to obtain legal advice or to assist with litigation: Waugh v. British Railways Board [1980] A.C. 521 (H.L.); Voth Bros. Construction (1974) Ltd. v. Board of School Trustees of School District 44 (North Vancouver), 1981 CanLII 506 (BC CA), 5 W.W.R. 91 (B.C.C.A.); Shaughnessy Golf & Country Club v. Drake Int’l Inc. (1986), 1986 CanLII 163 (BC CA), 26 D.L.R. (4th) 298 (B.C.C.A.); Hodgkinson v. Simms (1988) 1988 CanLII 181 (BC CA), 55 D.L.R. 577 (B.C.C.A.); Gainers Inc. v. Canadian Pacific Ltd. (1993), 1993 CanLII 7028 (AB QB), 15 C.P.C. (3d) 260 (Alta.Q.B.); Daly et al. v. Petro-Canada et al. (1993) 1993 CanLII 15262 (NB QB), 132 N.B. R. (2d) 346 (N.B.Q.B.); Edmond et al. v. Reid et al. (1993) 47 M.V. R. 284 (Ont. Gen. Div.).

5. The following passage from the decision of the British Columbia Court of Appeal in Hodgkinson v. Simms ((1988), 1988 CanLII 181 (BC CA), 55 D.L.R. (4th) 577 at 589), relied upon by counsel for the applicants, sets out the approach adopted by the panel:

I reach this conclusion because ..... this does no violence to the dominant purpose rule established by Waugh and Voth, both supra. This conclusion merely extends the application of the rule to copies made for the dominant purpose of litigation. It follows that the copies are privileged if the dominant purpose of their creation as copies satisfies the same test (Voth) as would be applied to the original documents of which they are copies. In some cases the copies may be privileged even though the originals are not.

Although the facts in this case involved litigation privilege, the dominant purpose test has also been held to have application where legal advice privilege is claimed: Grant v. Downs (1976), 135 C.L.R. 674 at 677, as quoted by Esson, J. in Shaughnessy at 302, and by Mc Eachern, C.J. in Hodgkinson at 583.

6. The applicants, on whom the onus on this motion rests, have relied on the legal advice branch of solicitor-client privilege in respect of all documents except #36. Litigation privilege is additionally claimed with respect to document #36.

Job Questionaire and Various Informational Charts

7. The job questionaire and the charts (listed as #19 to #24 and #28 to #31) were all described in the evidence of in-house counsel as documents prepared by and/or for members of the Pay Equity Committee. Documents #19 to #24 were prepared prior to the involvement of in-house counsel in the work of the Pay Equity Committee and were handed to him by the Territorial Headquarters staff person responsible for pay equity so that he could prepare for his first attendance at a meeting of the Pay Equity Committee, scheduled for May 1, 1990. In his words, the expectation was that he would provide legal advice at the meeting on “some of the issues that might arise at that time”. He testified that he got the package after April 23, 1990, and went through it prior to the meeting, asked questions on the basis of the materials at the meeting, and put the documents into his file after the meeting. There was no evidence to suggest that his package of materials for the meeting was any different from the materials otherwise provided to the members of the Pay Equity Committee in attendance at the meeting. Neither was there any testimony suggesting that he culled the package, sought out particular included documents, or collected and copied additional materials.

8. Mr. Hutchinson testified that documents #28 to #31 were included in a package provided to him for a meeting of the Pay Equity Committee scheduled for May 24, 1990. He stated that the charts were the work of the Pay Equity Committee, and that copies were provided to him so he could provide advice to the Committee as required. It is unclear whether members of the Committee received the same package at the same time, or whether they had the material prior to receipt by Mr. Hutchinson, given that the materials were described by him as “the work of the Committee”. In any event, the evidence established that the documents were not created, collected or copied exclusively for or by in-house counsel, and that all members of the Committee would have had the same package of materials available to them at the meeting on May 24th, 1990.

9. We find that this group of documents (#18 to #24; #28 to #31) is not privileged. The documents were not created, assembled or copied for the dominant purpose of obtaining legal advice. The package in the file of counsel is best described as a copy of the materials prepared by and for all those attending the meetings of the Pay Equity Committee, persumably to allow the committee to conduct its business. Although the individual particular copies in the file of counsel were given to him so that he could provide legal advice if asked, we find that this is not sufficient to satisfy the test set out in the Hodgkinson v. Simms decision. The dominant purpose for which the documents were created, collected and copied was to provide all those attending the meeting with a factual basis for the work of the committee.

10. In any event, if we are wrong in holding that the particular copies of these documents in counsel’s file are not privileged, we further find that this group of documents is not privileged as found in other files of the applicants, and should be disclosed from such other files as available.

Memoranda to Pay Equity Committee

11. This group of documents consists of four memoranda to the Committee, dated April 26, 1990 (#25); May 3, 1990 (#26); May 8, 1990 (#27); and May 25, 1990 (#32). Two of the memoranda are described in the list prepared by counsel as “cc.” to Mr. Hutchinson: the April 26 memorandum and the May 8, 1990 memorandum. Both these two memoranda were described as “memo advising of meeting”. Additionally, the May 8, 1990 memorandum is described as being “re Approval of Hierarchy”. The other two memoranda also appear to discuss or raise substantive pay equity issues. The May 3, 1990 memorandum is described as “advising that each location is a separate employer for pay equity purposes, and also as “re Evaluation of Non Benchmark Positions”. The May 25, 1990 memorandum is identified as being “re job classes and descriptions”. There are attachments to all the memoranda, including printouts of “chart of work completed” (April 26, 1990; May 3, 1990), a sample letter advising that each institution should be considered a separate employee (May 8, 1990) and a chart of job classes (May 25, 1990).

12. In his evidence, Mr. Hutchinson stated that the memoranda were provided to him to keep him informed of the direction of the Pay Equity Committee so that he could give legal advice “on any issues pertaining to the legislation”. He was specifically asked if he gave advice in respect of the issue raised in the May 3, 1990 memorandum, namely the identity of the employer for pay equity purposes, and he stated that he did so.

13. We find that the memoranda dated May 3, 1990 and May 8, 1990 (#26 and #27) must be considered communications for the purpose of obtaining legal advice, and hence privileged. Although copies of the memoranda went to all members of the Pay Equity Committee, the copies provided to Mr. Hutchinson must be considered communications for the purpose of obtaining legal advice given that the memorandum and/or the attachments raise a specific legal issue on which his advice was subsequently provided. The applicants need not disclose the memoranda listed as documents #26 and 27, nor the attachments thereto.

14. We find that the other two memorandum are not privileged. They were not created or copied for the dominant purpose of obtaining legal advice. All members of the Pay Equity Committee received copies of the memoranda and attachments. Copies were provided to Mr. Hutchinson to, in his words, “to keep me informed” about the direction of the Committee so that he could advise on legal issues as required, but the memoranda in themselves do not raise legal issues or form part of a communication which seeks legal advice. Documents #25 and #32 are to be disclosed to the respondents.

Document #33

15. This document is a letter from an outside pay equity consultant to the Territorial Headquarters staff person responsible for pay equity, and copied on its face to in-house counsel. The letter is described as being in respect of a number of legal issues including the employer issue which is before this tribunal. We find that the letter is squarely within the scope of solicitor-client privilege as a communication to counsel for the purpose of obtaining advice. The outside consultant is properly considered an agent of the Salvation Army and not a third party as argued by the respondents. In these circumstances, the participation of the outside consultant in the communication does not result in a waiver of privilege: Canadian Pacific Limited v. Canada (Competition Act, Director of Investigation and Research) [1995} O.J. No. 4148 (Farley, J., December 31, 1995) at para. 21.

Document #36

16. Counsel testified that this document consists of his handwritten notes at a meeting at which a pending pay equity complaint was discussed, including his comments on the issues raised at the meeting. We find that the comments of counsel, recorded in the notes, are privileged as forming part of the actual legal advice and cannot appropriately be severed from the rest of the handwritten material. The actual discussion at the meeting, including communications made to counsel in the presence of the Review Officer, cannot be considered to be covered by solicitor-client privilege given the presence of the third party, but may be possibly be covered by settlement privilege. We note further that the panel has already ruled that the legal advice of counsel on the issue before this tribunal is not relevant to our inquiry.

Communications on Employment Matters

17. Mr. Hutchinson gave evidence that, in his capacity as legal advisor, he dealt with inquiries from officers, employees and volunteers on a wide range of legal issues. His job description establishes that it was his responsibility, with the “prior approval of the Secretary for Business Administration” to work directly with individual centres, Divisional Headquarters and Territorial Headquarters departments on legal issues arising out of their “ministry or business practices”. He testified that he received calls from management, personnel staff and employees on questions of employment law, and that he consistently advised employees that his role was to represent the institution or centre, not the individual staff members. As an example, Mr. Hutchinson testified that he had given advice with respect to the process to be followed in terminating employees. He did not give evidence about the nature of the advice given or the situation which gave rise to the request for assistance.

18. We find that the testimony of Mr. Hutchinson did not result in an implied waiver of privilege with respect to the substance of communications on employment matters between the office of in-house counsel and the various centres and levels of the Salvation Army. The testimony of in-house counsel with respect to the topics upon which advice has been given and the method of retaining his services has not resulted in a waiver with respect to the substance of his legal advice or of communications for the purpose of obtaining legal advice. This is not a situation in which a party has relied on evidence to support its case and then attempted to use privilege to prevent full cross-examination by the opposing party. The evidence which Mr. Hutchinson gave with respect to the provision of legal advice on employment matters will not doubt be relied on by both parties in making submissions on the issue before this tribunal.