NSCA denies privilege claim for statement made in collective agreement bargaining

On March 10th, the Nova Scotia Court of Appeal held that a government statement made to the province’s teachers union in the course of collective agreement bargaining was not subject to settlement or case-by-case privilege.

The union has brought an application that alleges breach of the duty to bargain in good faith and a Charter infringement. The statement it wishes to use in this application is hardly a secret. The Deputy Minister of Finance and the Treasury Board apparently told the Union’s lead negotiator that, if the teachers did not accept an offer, the Government would introduce legislation to impose lower compensation. The negotiator then conveyed the statement to the union’s 9,300 person membership by way of letter in advance of a ratification vote.

In this context the Court held that the a privilege claim could not be rightly made. In addressing the settlement privilege claim, the Court also held that the inevitability of litigation could not be presumed.

Nova Scotia (Attorney General) v Nova Scotia Teachers Union, 2020 NSCA 17 (CanLII).

Recent OCA journalist-source case a “squeaker” with good statements of principle

The Court of Appeal for Ontario’s March 27th decision in 1654776 Ontario Limited v Stewart is a journalist-source privilege decision in which the Court made some significant statements of principle in protecting a journalist’s confidential sources.

The case is about whether the Court would reveal the identities of two insiders to the attempted takeover of BCE in 2008. The insiders provided information about the tenor of confidential negotiations to the Globe and Mail, who published the information and protected its sources. The plaintiff claimed the insiders breached the Securities Act by making false and materially misleading statements. He sought their identities, stressing that the insiders were not whistleblowers leaking information about wrongdoing and, rather, had merely given business information to a journalist and used the Globe to manipulate the markets.

Here are the statements of principle Justice Juriansz made on behalf of the Court:

  • It is an error of law to apply an elevated standard in the first step of the Norwich Pharmacal test because an expressive interest is involved; at the first step, an applicant must merely demonstrate a bona fide claim. This finding weighs against protection.
  • Courts should recognize that “generally” the relationship between a journalist and a confidential source should be “sedulously fostered”; concerns about the value of the specific source-journalist relationship at issue should be considered in weighing competing interests. This finding weighs in favour of protection.

On the facts, Justice Juriansz protected the sources, noting the case was “difficult.” The lack of evidence to support the plaintiff’s assertions was significant to Justice Juriansz as was the plaintiff’s alternative potential remedy against several corporate actors. Justice Juriansz did not devalue the journalist-source claim because the insiders were not whistleblowers; making information about the transaction available was in the public interest, he held. However, given the plaintiff’s attack on the quality of the sources’ information, Justice Juriansz held that the public’s right to know was a neutral factor in the circumstances. It seems, therefore, that if the plaintiff had a stronger factual basis for his claim lawsuit he would have prevailed in his quest to identify the anonymous sources.

1654776 Ontario Limited v Stewart, 2013 ONCA 184 (CanLII).