Arbitration board dismisses spoliation motion

On May 6th, the Ontario Grievance Settlement Board dismissed a union motion for the ultimate spoliation remedy – granting of a grievance based on an abuse of process.

The Union made its motion in a seemingly hard fought discipline and discharge case. The Union’s pursuit of electronically stored information “to review the life cycle of certain documents that were exhibits in order to test the integrity and reliability of the documents” began after the employer had put its case in through 40 days of witness testimony. The ESI motion itself took 13 days, and at some point the employer agreed to conduct a forensic examination of certain data. Unfortunately, just before it was about to pull the data, three computers were wiped as part a routine hardware renewal process. Ooops.

Based on two more hearing days the Board held the destruction of the data was inadvertent and not even negligent. Arbitrator Petryshen said:

It is not surprising that the Employer or FIT did not arrange for the imaging of the three bailiff computers prior to September of 2017 because no one considered that there was a risk of losing that data.  Although management at the OTO unit and FIT knew that government computers were replaced every four years, it was reasonable for OTO management to expect that they would be notified when the computers in OTO unit were about to be refreshed. 

Although this is quite forgiving, Arbitrator Petryshen’s finding that the “the granting of grievances due to a loss of potentially relevant documents is an extraordinary remedy” is quite consistent with the prevailing law. In 2006, the Court of Appeal for Ontario quashed an arbitration award that allowed a grievance based on an employer’s inadvertent destruction of relevant evidence, and the Court of Appeal for Alberta’s leading decision in Black & Decker says that even negligent destruction of relevant evidence will not amount to an abuse of process.

Ontario Public Service Employees Union (Pacheco) v Ontario (Solicitor General), 2020 CanLII 38999 (ON GSB).

SCC issues civil production decision stressing discretion and proportionality

Today, a majority of the Supreme Court of Canada affirmed an order that directed the Competition Bureau and the federal Department of Public Prosecutions to produce, for civil discovery purposes, recordings of more than 220,000 private communications that they had obtained pursuant to Criminal Code wiretap authorizations.

Justices LeBel and Wagner wrote a majority judgement with which Chief Justice McLachlin (for the most part) concurred. The majority held that the production order was neither prohibited by the Criminal Code nor the Competition Act and was a proper exercise of discretion.

The discretion to order non-party production, according to the majority, is “great” (para 28), though should be exercised with a view to fulsome disclosure: “relevance is generally interpreted broadly at the exploratory stage of the proceedings” (para 30). Relevant records may be withheld to achieve proportionality and efficiency, but they may not be “unduly” withheld (para 60). In making a non-party production order a judge must consider the “financial and administrative burden” of the order and the impact on non-party privacy (paras 83 and 85).

The majority’s emphasis on balance and proportionality is heavy. It weaves proportionality into the concept of relevance as the concept applies in respect of civil production:

[30] To be relevant, the requested document must relate to the issues between the parties, be useful and be likely to contribute to resolving the issues (Glegg, at para. 23; Arkwright, at p. 2741; Chubb, at p. 762; Westfalia Surge Canada Co.; Autorité des marchés financiers; Fédération des infirmières et infirmiers du Québec).

[31] This relevance requirement ensures that the parties do not conduct “fishing expeditions”. It also ensures that the conduct of the proceedings is not delayed, complicated or even jeopardized by the introduction of evidence that does not assist in establishing the rights being claimed (see Royer and Lavallée, at p. 487; Marseille, at pp. 1 and 21). In this sense, the relevance rule is a procedural balancing rule that ensures the efficiency of the judicial process while facilitating the search for truth.

The majority refers to the 2005 decision in Glegg v Smith & Nephew Inc in which the Supreme Court of Canada espoused similar principles in respect of the production obligations of a party to an action. All the authorities the majority relies on are Quebec authorities, but the majority does not expressly rely on any provision of the Civil Code of Quebec and the principles it applies are broadly applicable.

Justice Abella, in dissent, argued that private communications intercepted by law enforcement are of utmost sensitivity and should be “protected by an almost impermeable legal coating like a privileged communication.” To achieve this purpose, she would have interpreted the Criminal Code to prohibit the production of intercepted private communications in a civil proceeding.

Imperial Oil v Jacques, 2014 SCC 66.