Case Report – OLRB affirms power to adjudicate on privilege

5 Dec

On October 8th, the Ontario Labour Relations Board affirmed an order requiring a party to attend at a hearing along with all arguably relevant records that it claimed to be subject to solicitor-client privilege.  

The Board made its order in its joint hearing of two construction industry contracting out grievances.  The responding employer had failed to disclose or produce records customarily produced in such grievances (e.g. contracts, bid documents and payroll records). Instead, it produced a few records and claimed “all other records in our client’s possession are privileged.”  The impugned order became necessary after the employer twice resisted Board orders to specifically identify the records it claimed were privileged.

The Board rejected the employer’s argument it lacked jurisdiction to order the production of documents over which a claim of solicitor-client privilege has been made.  It distinguished the Supreme Court of Canada’s recent Blood Tribe decision by explaining that it was not about an adjudicative body’s power to control its hearing procedure.

The difficulty with the argument made by the responding party is reflected by the passage above.  The Privacy Commissioner is not an adjudicator, but an investigator.  It would be problematic if an investigator had the authority to compel disclosure of documents that are subject to a solicitor-client privilege, because there is the possibility that the documents or their contents could be used by the investigator against the party claiming the privilege.  In fact, the Court in Blood Tribe Department of Health specifically notes that a major distinction between the Privacy Commissioner and a court is that in pursuit of her mandate the Privacy Commissioner may become adverse in interest to the party whose documents she wants to access.  

The circumstances are entirely different before the Board.  The Board is not an investigator, and is not and will not become adverse in interest to the responding party.  Although the Board is not a court of law, it is a quasi-judicial statutory tribunal that is responsible for determining all questions of fact or law that arise in any hearing before it, including grievance referrals filed with it pursuant to section 133 of the Act.  

In these two proceedings filed with the Board, one of the questions that has risen before the Board is whether the documents that the responding party asserts are covered by solicitor-client privilege are, in fact, covered by that privilege.  The Board is responsible for verifying claims of privilege to ensure the integrity and proper functioning of its processes, including grievance referrals under section 133 of the Act.  If all of the documentation asserted by the responding party to be covered by solicitor-client privilege is, in fact, covered by a legitimate solicitor-client privilege, the applicant will not be entitled to production of the documentation.  However, the determination as to whether the documentation is covered by a legitimate solicitor-client privilege is for the Board to make at first instance.

Thank you to OLRB Solicitor Voy Stelmaszynski for providing a copy of the award and speaking to it at last night’s panel on Blood Tribe.

Re Proplus Construction & Renovation Inc. (8 October 2008, O.L.R.B.).

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