London Professional Fire Fighters Association v. City of London
1510-10-PE London Professional Fire Fighters Association, Applicant v. City of London, Responding Party.
BEFORE: Diane L. Gee, Chair, P. LeMay and Pauline Seville, Members.
APPEARANCES: Cathy Lace, Nadine Blum, Jim Holmes, Sue Casey and Phillip King for the applicant; Carolyn Kay, Adriana Hagan, Brian Wm. George, Patty Malone for the responding party.
DECISION OF THE TRIBUNAL: August 22, 2011
This matter is an application pursuant to section 24(6) of the Pay Equity Act (the “Act”) that is scheduled to be heard commencing on September 27, 2011.
The London Professional Fire Fighters Association (the “applicant”) made a request of the City of London (the “respondent”) for the production of a number of documents. The respondent produced all of the documents sought with the exception of documentation related to reports made to the Board of Control and Council for the City of London with respect to pay equity for the London Professional Fire Fighters Association. For ease of reference, the documents that have not been produced by the respondent are referred to in this decision as simply the “reports”. The applicant brought a motion for an Order requiring the respondent to produce the reports. Such motion was heard on June 27, 2011.
At the hearing of the motion, the respondent did not dispute that the Tribunal has the jurisdiction to order production of the reports or that the reports are arguably relevant to the issues in dispute. Rather, the respondent explained that it resisted production of the reports on the grounds that they are confidential and thus subject to the “Wigmore” privilege as set forth in Slavutych v. Baker (1975), 1975 CanLII 5 (SCC), 55 DLR (3d) 224 (SCC) at page 228.
There are four preconditions that must exist in order for the Wigmore privilege to apply. They are as follows:
The communications must originate in confidence that they will not be disclosed;
the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
the relation must be one which, in the opinion of the community, ought to be sedulously fostered; and
the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
The respondent did not file affidavits or call any evidence in support of its position. Rather, the respondent relied on the by-laws that govern the operation of the Municipal Council of the Corporation of the City of London (“City Council”), provisions of the Municipal Act, 2001 S.O. 2001, C.25, provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, C. 56, a Policy Manual posted on the respondent’s website and the normal practices and procedures of the City Clerk when processing confidential matters as set out in an Agreed Statement of Fact to establish that issues of the type discussed in the reports are to be dealt with “in-camera” and are to be handled by all concerned in a manner that ensures confidentiality is maintained. The respondent argues that, the fact that the by-laws, statutes, Policy Manual and practices of the respondent permit the reports to be received in-camera, protect them from disclosure and require that their confidentiality be maintained, is sufficient to establish that all four preconditions of the Wigmore test have been satisfied.
The Tribunal does not agree. The mere fact that a document is one that, according to municipal by-law or statute, can be considered by a Board of Control or Council in-camera, or is not subject to production pursuant to a request under the Municipal Freedom of Information and Protection of Privacy Act, does not, for that reason alone, mean that the Wigmore test has been satisfied. Rather, whether or not the Wigmore test has been satisfied must be determined in the context of the very document that is in issue. In this regard, in order to succeed on the motion, the respondent was required to establish:
The individual who prepared the reports was assured that it would not be disclosed;
continuing to preserve the confidentiality of the reports is essential to the future relationship of the author of the reports and the Board of Control and/or Council;
the relationship between the author of the reports and the Board of Control and/or Council is one which, in the opinion of the community, ought to be sedulously fostered; and
injury would be caused by the disclosure of the reports that is greater than the benefit to the administration of justice (or otherwise) that would be gained.
Assuming without finding that the first three preconditions have been met, the Tribunal is not satisfied that the fourth precondition has been met. There is simply no evidence before the Tribunal of harm that would result from the production of the reports. While it was suggested, and may be a fair inference, that requiring the production of the reports would damage the ability of employees to report frankly to the Board of Control or Council in the future, the Tribunal is not persuaded that such potential injury is greater than the benefit to the administration of justice and the Tribunal’s ability to fairly adjudicate upon the issues in dispute that would obtain if the reports were produced. This conclusion is consistent with the Tribunal’s determination in Windsor (Huron Lodge) (05 October 1995) 0504-94; 0544-95 (P.E.H.T.) wherein the Tribunal ordered the production of minutes of an in-camera meeting of the City of Windsor Council on the basis that it was not persuaded that the value of employees being able to communicate confidentially with Council outweighed the social utility or benefit for the proper conduct of litigation that would result from the production of the minutes. It is also consistent with the result in McIntosh Estates Ltd. v. Surrey (City of), 1996 CanLII 2631 (BC SC) wherein the City of Surrey was ordered to produce minutes of in-camera meetings on the basis that any injury that would be caused by the disclosure of in-camera deliberations could not outweigh the benefit which would be gained by the correct disposal of the litigation.
For the reasons set out above, the Tribunal finds that the reports are not subject to the Wigmore privilege and orders their production by the respondent to the applicant no later than 10 days from the date of this decision. The respondent is permitted to redact from the reports any content that does not pertain specifically to pay equity.
“Diane L. Gee”
Diane L. Gee, Chair
“P. LeMay”
Member
“Pauline Seville”
Member