Reasons for decision

Jonathan André Leclerc,

applicant,

and

Laurentian Bank of Canada,

employer,

and

Syndicat des employées et employés professionnels-les et de bureau, section locale 434, SEPB-CTC-FTQ,

certified bargaining agent.

Syndicat des employées et employés professionnels-les et de bureau, section locale 434, SEPB-CTC-FTQ,

complainant,

and

Laurentian Bank of Canada,

respondent.

The Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice‑Chairperson, and Ms. Lisa Addario and Mr. Richard Brabander, Members.

Appearances

Mr. Irving Gaul, for Mr. Jonathan André Leclerc;

Mr. Michel A. Brisebois, for the Laurentian Bank of Canada.

Mr. Claude Tardif, for the Syndicat des employées et employés professionnels-les et de bureau, section locale 434, SEPB-CTC-FTQ.

These reasons for decision were written by Ms. Louise Fecteau, Vice-Chairperson.

[1] At the hearing of January 12, 2018, Mr. Irving Gaul, counsel for Mr. Jonathan André Leclerc (the applicant), raised an objection regarding the evidence presented during the examination-in-chief of the witness Mr. Francis Périard by Mr. Claude Tardif, counsel for the Syndicat des employées et employés professionnels-les et de bureau, section locale 434, SEPB-CTC-FTQ (the union).

[2] The following are the questions Mr. Tardif asked Mr. Périard that led to Mr. Gaul’s objection:

Mr. Tardif: Had you met Mr. Gaul before today?

Mr. Périard: Yes.

Mr. Tardif: In what context?

Mr. Gaul: Objection. This is a privileged relationship. Mr. Périard admitted he had consulted me and Mr. Tardif wants to know the content of our conversation and this is covered by solicitor-client privilege.

[3] Mr. Gaul’s objection concerns the admissibility as evidence of communications between Mr. Périard and counsel for the applicant during the preparation of the cases in question. Are these communications protected by litigation privilege or by solicitor-client privilege?

I. Positions of the Parties

A. Mr. Irving Gaul, Counsel for the Applicant

[4] Although Mr. Gaul mentioned solicitor-client privilege during the oral objection he raised at the hearing, he states in his written submissions that his objection is related to the concept of “the protection of litigation privilege” (translation), as developed in common law. In this regard, he refers the Board to a recent decision of the Supreme Court of Canada (the Supreme Court) in Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52; [2016] 2 S.C.R. 521.

[5] Mr. Gaul submits that, in light of this decision, litigation privilege encompasses written and oral communications with third parties called as witnesses when preparing for a case.

[6] Mr. Gaul argues that in this case, he called Mr. Périard as a witness for the union and it was in this context that he met with him to discuss his testimony. At that time, he had verbal discussions with Mr. Périard. As such, according to counsel, this situation is similar to that in Lizotte, supra.

[7] Still referring to Lizotte, supra, Mr. Gaul adds that litigation privilege is a fundamental concept that must apply to all adversarial and judicial matters and that applies to the rules of law in force before the Board in this case.

[8] Mr. Gaul concludes that, both in the presentation of Mr. Périard’s evidence and during his examination, counsel for the union cannot ask questions involving the verbal or written communications between Mr. Gaul and the witness during the preparation for the case, as they are inadmissible as evidence and are protected by litigation privilege.

[9] Mr. Gaul asks the Board to declare that the verbal and written communications between him and Mr. Périard are protected by litigation privilege as they took place during the preparation for the hearing before the Board.

B. Mr. Claude Tardif, Counsel for the Union

[10] From the outset, Mr. Tardif submits that Mr. Périard is not a third party in these cases; he is instead a collective representative by virtue of the Canada Labour Code (Part I–Industrial Relations) (the Code) and the Canada Industrial Relations Board Regulations, 2012 (the Regulations), as a party seeking the revocation of the certification order. Mr. Tardif submits that the interests of Mr. Périard, who had admitted at the hearing that he had signed a confidential statement pursuant to section 36 of the Regulations to obtain the revocation of the union’s certification order, are also represented by Mr. Gaul, counsel for the applicant.

[11] With regard to the rules or principles of solicitor-client privilege, Mr. Tardif refers the Board to the Supreme Court judgment Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647, to argue that solicitor-client privilege requires a relationship between a solicitor and his or her client.

[12] He refers to another judgment, R. v. Campbell, [1999] 1 S.C.R. 565, at paragraph 50, to support his argument that the Supreme Court does not recognize all services provided by a solicitor as being subject to solicitor-client privilege.

[13] Mr. Tardif argues that in this case, counsel for the applicant failed to establish that solicitor-client privilege applied. He feels that it is necessary for the questions that the witness is asked to involve the communications that are deemed confidential and that took place for the purpose of obtaining legal advice. He adds that at the stage in the proceedings when questions were asked of Mr. Périard, they did not involve confidential information. Procedural questions and those relating to a witness’s knowledge of the facts alleged in this proceeding are not subject to solicitor-client privilege.

[14] Relying on the Supreme Court judgment Campbell, supra, Mr. Tardif notes that he is allowed to ask questions in order to discover and determine the reasons and the circumstances in which Mr. Périard met with Mr. Gaul.

[15] As for the litigation privilege Mr. Gaul raised in his written submissions, Mr. Tardif notes that in principle, this privilege only applies when a third party acts to help another party. In this sense, he feels that Mr. Périard would be a party to the application for revocation rather than a third party.

[16] Mr. Tardif adds that the party that raises litigation privilege must bear the burden of proof and to do so, as with solicitor-client privilege, counsel for the union must be allowed to ask questions to discover and determine the reasons and circumstances in which the person in question met with counsel for the opposing party.

[17] Relying on the Supreme Court judgment Blank v. Canada (Minister of Justice), 2006 SCC 39; [2006] 2 S.C.R. 319, Mr. Tardif argues that unlike solicitor-client privilege, litigation privilege is neither absolute in scope nor permanent in duration.

[18] Mr. Tardif adds that he wants to know whether Mr. Périard met with counsel for the applicant to prepare for the case in which he is a signatory to the revocation application. He submits that he has the right to know what was said or discussed during this meeting between Mr. Périard and Mr. Gaul, considering the union’s allegations that concern the participation of the employer (Laurentian Bank of Canada (the Bank)) in the de-unionization campaign and that the applicant alleged he was unaware of in his reply to the revocation application.

[19] Mr. Tardif adds that litigation privilege cannot shield Mr. Périard from the disclosure of evidence related to the acts that he is accused of and that were allegedly the subject of discussions with counsel for the applicant.

[20] Mr. Tardif asks the Board to dismiss Mr. Gaul’s objection and declare that at this stage of the proceedings, no privilege applies to protect the communications between Mr. Gaul and the witness in these matters.

C. Mr. Michel A. Brisebois, Counsel for the Bank

[21] Counsel for the Bank submits that Mr. Gaul’s objection is important in these matters because such an objection could be raised again due to the nature of the ongoing dispute and the opposing interests of the parties involved.

[22] Mr. Brisebois insists that the Bank’s submissions were made for the sole purpose of allowing the Board to perform a thorough and complete analysis of the issue.

[23] According to Mr. Brisebois, the communications between Mr. Périard and Mr. Gaul are subject to solicitor-client privilege or litigation privilege.

[24] With respect to solicitor-client privilege, the Bank refers the Board to the Supreme Court’s teachings in Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; and Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) Inc., 2004 SCC 18; [2004] 1 S.C.R. 456.

[25] As for litigation privilege, the Bank refers the Board to the Supreme Court judgments Lizotte and Blank, supra. Mr. Brisebois submits that this is a common law principle but it applies to these matters considering the Board’s federal jurisdiction.

II. Analysis and Decision

[26] It is well recognized that the Board, as an administrative tribunal, is the master of its own proceedings in taking evidence. Section 16(c) of the Code provides the following:

16 The Board has, in relation to any proceeding before it, power

…

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not.

[27] Therefore, in taking evidence, the Board may sometimes intervene more than the common law courts and, as provided in section 16(c) of the Code, it may require the production of any document or testimony as it sees fit.

[28] Nonetheless, and to ensure the secure and effective administration of justice, the Board finds that litigation privilege applies in this case and could be used to guide its decision. All evidence, even when relevant, is not automatically admissible before the Board.

[29] Following the Supreme Court’s teachings in Lizotte and Blank, supra, it is known that the concept of solicitor-client privilege is sometimes confused with the litigation privilege that comes from common law, which was introduced in Quebec.

[30] The judgment Lizotte, supra, involves the investigation of a claims adjuster. The assistant syndic of the Chambre de l’assurance de dommages asked the insurer to send her a complete copy of its claim file with respect to one of its insured. In response, the insurer withheld certain documents on the ground that they were covered by either solicitor-client privilege or litigation privilege. Faced with this refusal, the union filed a motion for declaratory judgment.

[31] Having taken the care to distinguish the concept of litigation privilege from solicitor-client privilege, the Supreme Court confirmed the decisions issued by the Superior Court of Quebec and then the Court of Appeal of Quebec, which had both determined that litigation privilege is applicable to third parties unless clear language abrogates it.

[32] While solicitor-client privilege only applies to confidential communications between clients and their counsel, litigation privilege applies to non-confidential communications between solicitors and third parties, and it even encompasses material of a non-communicative nature. In Blank, supra, the Supreme Court clearly explained the distinction between the two:

Thus, the Court explained in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, and has since then reiterated, that the solicitor-client privilege has over the years evolved from a rule of evidence to a rule of substantive law. And the Court has consistently emphasized the breadth and primacy of the solicitor-client privilege: see, for example, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; and Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31. In an oft-quoted passage, Major J., speaking for the Court, stated in McClure that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance” (para. 35).

It is evident from the text and the context of these decisions, however, that they relate only to the legal advice privilege, or solicitor-client privilege properly so called, and not to the litigation privilege as well.

Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.

Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege:

It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

(“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164–65)

With the exception of Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129, a decision of the British Columbia Court of Appeal, the decisions of appellate courts in this country have consistently found that litigation privilege is based on a different rationale than solicitor-client privilege: Liquor Control Board of Ontario v. Lifford Wine Agencies Ltd. (2005), 76 O.R. (3d) 401; Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 62 O.R. (3d) 167 (“Big Canoe”); College of Physicians & Surgeons (British Columbia) v. British Columbia (Information & Privacy Commissioner) (2002), 9 B.C.L.R. (4th) 1, 2002 BCCA 665; Gower v. Tolko Manitoba Inc. (2001), 196 D.L.R. (4th) 716, 2001 MBCA 11; Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. (2000), 188 N.S.R. (2d) 173, 2000 NSCA 96; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321.

American and English authorities are to the same effect: see In re L. (A Minor), [1997] A.C. 16 (H.L.); Three Rivers District Council v. Governor and Company of the Bank of England (No. 6), [2004] Q.B. 916, [2004] EWCA Civ 218, and Hickman v. Taylor, 329 U.S. 495 (1947). In the United States communications with third parties and other materials prepared in anticipation of litigation are covered by the similar “attorney work product” doctrine. This “distinct rationale” theory is also supported by the majority of academics: Sharpe; J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 745–46; D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 197–98; J.-C. Royer, La preuve civile (3rd ed. 2003), at pp. 868–71; G. D. Watson and F. Au, “Solicitor-Client Privilege and Litigation Privilege in Civil Litigation” (1998), 77 Can. Bar Rev. 315. For the opposing view, see J. D. Wilson, “Privilege in Experts’ Working Papers” (1997), 76 Can. Bar Rev. 346, and “Privilege: Watson & Au (1998) 77 Can. Bar Rev. 346: REJOINDER: ‘It’s Elementary My Dear Watson’” (1998), 77 Can. Bar Rev. 549.

Though conceptually distinct, litigation privilege and legal advice privilege serve a common cause: The secure and effective administration of justice according to law. And they are complementary and not competing in their operation. But treating litigation privilege and legal advice privilege as two branches of the same tree tends to obscure the true nature of both.

Unlike the solicitor-client privilege, the litigation privilege arises and operates even in the absence of a solicitor-client relationship, and it applies indiscriminately to all litigants, whether or not they are represented by counsel: see Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407. A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or “chamber” of privacy. Another important distinction leads to the same conclusion. Confidentiality, the sine qua non of the solicitor-client privilege, is not an essential component of the litigation privilege. In preparing for trial, lawyers as a matter of course obtain information from third parties who have no need nor any expectation of confidentiality; yet the litigation privilege attaches nonetheless.

In short, the litigation privilege and the solicitor-client privilege are driven by different policy considerations and generate different legal consequences.

(pages 329–333)

[33] In his written submissions, Mr. Gaul, counsel for the applicant, submits that litigation privilege applies in the present case. He notes that Mr. Périard was called by the union to testify for the purposes of hearings before the Board, and he indicates that this is the context in which he met with Mr. Périard to discuss his testimony. He adds that he and Mr. Périard exchanged verbal communications and that the questions that counsel for the union asked Mr. Périard about the verbal or written communications that he had with him when preparing the case are inadmissible as evidence since they are protected by litigation privilege.

[34] Counsel for the union instead feels that, considering the specific context of a revocation application, Mr. Périard is the client of counsel for the applicant. As a result, this witness would be a party to the revocation application rather than a third party, and litigation privilege does not apply in this case. Mr. Tardif submits that the applicant failed to establish that solicitor-client privilege applies in the circumstances.

[35] At any rate, counsel for the union states that the applicant claims to be unaware of the acts that Mr. Périard is accused of regarding employer interference in the de-unionization campaign; it is therefore completely normal to be able to examine this witness on the meeting that he states he had with counsel for the applicant.

[36] According to counsel for the union, this situation would also justify waiving the litigation privilege, if it applies, based on an abuse of procedure, improper conduct by the union or an expressed or implied waiver of the privilege.

[37] In this case, counsel for the applicant amended the nature of his objection and is no longer raising an objection based on solicitor-client privilege. As a result, the Board shall only consider the objection before it now, that is, whether the communications between Mr. Périard and counsel for the applicant are protected by litigation privilege.

[38] The Supreme Court’s teachings are clear that litigation privilege aims to protect a process rather than a relationship between a solicitor and a client. As noted in Blank, supra, this privilege covers communications between a solicitor and third parties; its goal is to create a zone of privacy, to ensure the efficiency of the adversarial process and to allow the parties to the proceeding to prepare their case in private, with no adversarial interference. In Lizotte, supra, the Supreme Court stated that litigation privilege creates disclosure immunity for documents and communications whose dominant purpose is the preparation for a case.

[39] This is exactly the context in which counsel for the applicant raised his objection to the questions asked by counsel for the union that involve the exchanges between Mr. Périard and counsel for the applicant for the preparation of his testimony for the hearings before the Board.

[40] Mr. Périard admitted that he had met with counsel for the applicant. Mr. Gaul’s objection concerns the content of the conversations he had with the witness during his preparation for the case in question.

[41] In light of the Supreme Court’s teachings in Blank and Lizotte, supra, the Board finds that litigation privilege applies in this case and creates disclosure immunity for all the documents and all the verbal communications that may have occurred between Mr. Périard and counsel for the applicant and whose dominant purpose was the preparation for this case.

[42] The Board also finds that the arguments of counsel for the union have not convinced it to waive the litigation privilege because counsel did not establish the factual basis required to support the application of exemptions to litigation privilege. The Board is unable to find that there was prima facie evidence of improper conduct or abuse of process merely because the applicant, and not necessarily Mr. Périard, “was unaware of” (translation) certain allegations made by the union that were not yet submitted into evidence.

[43] The Board is also unable to find that there was an expressed or implicit waiver of the privilege simply because the witness indicated that he had met with counsel for the applicant or because the applicant alleged certain facts in his reply to the union’s complaint. The Board notes that the facts alleged do not mention communications with counsel for the applicant. The witness’s interests are not likely those of the union. Nothing is preventing counsel for the union from asking Mr. Périard relevant questions, without revealing the discussions this witness allegedly had with counsel for the applicant.

[44] For these reasons, the Board allows the objection raised by counsel for the applicant regarding all questions on the verbal or written communications between him and Mr. Périard. The Board therefore declares that these communications are inadmissible as evidence in this case.

[45] This is a unanimous decision of the Board.

Translation

	____________________ Louise Fecteau Vice-Chairperson
____________________ Lisa Addario Member		____________________ Richard Brabander Member