Canada: Recent Alberta Court Of Queen's Bench Decision Finds That Grievance Process Communications Are Privileged

Last Updated: April 20 2013
Article by Michael Wall

A grievance process is designed to promptly resolve workplace disputes by encouraging a frank and open dialogue between the parties.  Accordingly, Arbitrators have long held that communications exchanged in the grievance process are privileged and, subject to narrow exceptions, not producible in subsequent proceedings.  However, until the recent Alberta Court of Queen's Bench decision in Thomson v. University of Alberta, the courts had yet to consider whether settlement privilege extended to communications exchanged in the grievance process.

In Thomson, the plaintiff, a member of the Academic Staff at the University of Alberta (the "University"), sued the University for wrongful dismissal. The University brought an application to strike the plaintiff's Statement of Claim for want of jurisdiction, in which it argued, citing the Supreme Court of Canada's decision in Weber, that exclusive jurisdiction over the plaintiff's employment dispute resided within the grievance and arbitration provisions of the collective agreement.

The University and the plaintiff's bargaining agent, the Association of Academic Staff: University of Alberta (the "AASUA") are parties to a collective agreement that governed the plaintiff's employment (the "Faculty Agreement"). Several months before the plaintiff commenced his wrongful dismissal claim, the AASUA, on the plaintiff's behalf, initiated a grievance that arose from the facts that would form the basis of the wrongful dismissal claim (the "Grievance").  In accordance with the grievance process contained in the Faculty Agreement, an AASUA representative met with a University official to discuss the Grievance, and, following that meeting, the University provided AASUA with its written decision regarding the merits of the Grievance (the "Decision Letter").

In his Affidavit resisting the University's application to strike, the plaintiff indicated that the University had refused to accept the Grievance.  During examinations on the Affidavits filed in relation to the University's application to strike, the plaintiff sought an undertaking to produce the Decision Letter.  The University declined the plaintiff's requested undertaking, advising the plaintiff that the University considered the Decision Letter privileged. In so doing, the University clarified that the Decision Letter did not refuse the Grievance, but simply communicated the University's position that the Grievance was without merit. 

The plaintiff brought an application to compel production of the Decision Letter.  The plaintiff advanced three arguments: (1) since the Decision Letter was not an attempt to settle matters, it did not attract settlement privilege; (2) even if privilege applied, the University had waived it by revealing part of the Decision Letter; and (3) the Decision Letter was so relevant and material to the University's application to strike, the interests of justice required it be produced as an exception to settlement privilege.

In dismissing the plaintiff's application, Master R.P. Wacowich held that (1) settlement privilege applies to communications exchanged in a grievance process; (2) revealing the conclusion of a letter does amount to waiver of privilege over its contents; and (3) exceptions to the settlement privilege that runs in grievance process are rare.

At the outset of his reasons, Master Wacowich noted that the courts have long recognized that the public policy interest in settling disputes justifies characterizing communications aimed at settling such disputes as privileged.  Labour arbitrators, Master Wacowich observed, have long relied upon the same principle to characterize communications exchanged in the grievance process as privileged.  In short, the purpose of a grievance process is to promptly resolve workplace disputes:  Settlement privilege facilitates that process by encouraging a frank and open dialogue between the parties to the grievance.

If grievance meetings are to remain open and effective forums to resolve disputes, Master Wacowich held that "the discussions and documents flowing therefrom should remain confidential...[and] within the protected category of settlement privilege".  Accordingly, Master Wacowich held that the Decision Letter was subject to settlement privilege.

Master Wacowich agreed that fairness may require waiver of an entire privileged communication when a partial disclosure is likely to mislead the court.  However, as the University simply revealed the result the Decision Letter, which did not misrepresent the letter's contents, fairness did not require a waiver, and the University had not implicitly waived privilege over the entire contents of the letter in these circumstances.

Finally, Master Wacowich held that there was no basis to order production of the Decision Letter as an exception to settlement privilege.  According the Alberta Court of Appeal's recent decision in Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., exceptions to settlement privilege should be rare, and will arise only where (1) the protection afforded by the privilege has been abused, and (2) the exception is justified by a policy objective that supersedes the public's interest in the resolution of disputes.   

Although Master Wacowich's decision does not establish a new principle of labour arbitration, it is a rare judicial statement unequivocally recognizing the privileged nature of communications within the grievance process.  As such, it provides additional clarity and certainty for employers and unions alike.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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