An auto-shops teacher was sent home with pay pending an investigation that lasted nearly two years. Following his termination for alleged cause, the union sought a production order covering any documentation generated during the investigation process. The employer refused production of any documents following the employee’s suspension other than those on which it would be relying at the hearing. In doing so, it asserted litigation privilege and/or solicitor-client privilege over those documents.
The employer testified, at the outset of the hearing, that it was clear at the time the employee was sent home, that some disciplinary action would ultimately be taken and that, given the employee’s history of denial, any action taken by the employer would ultimately be disputed. The arbitrator accepted that at the time that the employee was sent home, it was reasonable to anticipate that discipline would be imposed and that it would be grieved.
The arbitrator commented that “to meet the test for non-disclosure on the grounds of litigation privilege, the documents must fulfil two requirements: they must have been created at a time where litigation was pending or reasonably anticipated; and they must have been created for the dominant purpose of that litigation.” The issue here was the employer’s contention that “all documents created after the date of anticipated litigation are automatically protected from disclosure by litigation privilege.” While the arbitrator acknowledged that there was some support for this approach, he found that “in the context of labour arbitration, a party claiming litigation privilege for a document created after litigation is anticipated must still establish that the document’s ‘dominant purpose’ was the litigation.” He commented that “placing a blanket protection over interview notes and statements made during the ensuing litigation would insulate from production documents that are normally disclosed in termination cases where the employer has conducted its investigation before the employee is sent home. Furthermore, it would undermine the firmly established trend toward greater pre-hearing production in labour arbitration … [which] include[s] the narrowing of issues, facilitation of settlement and the avoidance of delays when documents are requested and produced for the first time during the hearing.”
The arbitrator stated that “a document can have only one ‘dominant purpose.’ In his view, the dominant purpose underlying all the documents was investigation, not litigation, in that the majority of the documents were statements, notes of phone calls and interview notes with students and other relevant individuals. These were part of the investigation. The employer had not established that they were protected by privilege, and, accordingly, production was ordered.
In doing so, the arbitrator commented that “disclosure of these documents will not infringe on the ‘zone of privacy’ to which the employer is entitled in order to prepare the case for hearing. The documents at issue are simply part of the investigation that led to the hearing.” Peel District School Board (2012), 216 L.A.C. (4th) 352 (Slotnick)