An arbitration hearing into the termination of a City of Toronto snowplow driver sparked a debate over labour relations privilege and procedural transparency after the city refused to hand over an email between a superintendent and an HR professional about the incident.
The worker was terminated on Feb. 10, 2022, after he allegedly “verbally attacked a citizen” riding an e-bike on Jan. 6, 2022.
Initial reporting through 311 call
The event was initially reported through a 311 call handled by city employee CG.
According to the city, the caller reported a City of Toronto snow plow driver speeding on Eglington Avenue East between Pharmacy Avenue and Warden Avenue from 6:57 to 7:05 a.m.
The truck, identified as #075015, allegedly sped “as fast as he possibly could” from one intersection only to stop at a red light at another. While stopped, the truck operator was accused of verbally abusing an e-bike driver. The operator also reportedly edged the truck closer to the e-bike driver while continuing the verbal abuse. The caller described the truck operator as having “clearly lost his temper
CG testified in the hearing and provided a transcript of the conversation.
Following the call, he emailed the Acting Safety Manager in Fleet Safety and Compliance, which was subsequently passed on to JB, a Superintendent in Road Operations. JB was responsible for gathering additional details on the incident by contacting the original 311 caller.
Follow-up with complainant
JB testified that he was not involved in the decision to terminate the worker. During cross-examination, the discussion focused on an email sent by JB to KJ, a Senior Human Resources Consultant.
JB said he followed up with the complainant who called 311, but the caller said he did not wish to be involved further and provided no response. On cross examination, JB was asked about the date he conducted the followup with the caller — and he responded that he couldn’t remember and would have to look it up.
He did so and determined that he responded on Jan. 10, the day on which he had sent an email to KJ. The union’s counsel asked for production of that email.
The city objected to revealing the email, citing labour relations privilege, and the cross-examination of JB was suspended. Both parties agreed on a schedule for written submissions to address this objection.
Lack of evidence in affidavits
Affidavits were submitted by both KJ and TW, the Human Resources Manager. Neither affidavit specifically addressed the confidentiality of the email in question.
TW, however, stated in generalized terms that communications between labour relations and divisions are confidential.
Questioning labour relations privilege
The arbitrator questioned the city’s claim of labour relations privilege, specifically for failing to meet any of the Wigmore criteria (see below), which include the necessity for confidentiality.
Furthermore, there was no specific evidence supporting the email’s confidentiality. The city also did not clarify whether its stance on labour relations privilege would extend to other emails between divisional management staff and KJ, despite the union’s specific focus on the JB-KJ email.
The ruling
The city has been directed to produce the email to the union no later than 10 calendar days following the decision, as it could not establish that the email was to be considered privileged.
For more information, see Toronto Civic Employees’ Union, Local 416 v Toronto (City), 2023 CanLII 76834 (ON LA)
Sidebar: The Wigmore criteria
The Wigmore criteria are a set of principles employed in Canadian labour law to evaluate whether a communication should be considered privileged and thus exempt from disclosure in a legal proceeding. Although originally developed for determining attorney-client privilege, these criteria have been adapted for use in other areas of law, including labour and employment disputes.
The Wigmore criteria typically include the following:
- The communications must originate in a confidence that they will not be disclosed: This means that both parties must have had an expectation of confidentiality at the time the communication was made.
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties: The confidential nature of the communication should be crucial to maintaining the relationship, whether it be between an employee and employer or between other relevant parties.
- The relation must be one which in the opinion of the community ought to be sedulously fostered: The relationship itself should be considered important enough by societal standards to warrant the protection of confidentiality.
- The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation: There should be a weighing of interests to determine if revealing the communication would do more harm than good, considering both the specific relationship and the broader purpose of justice.
These criteria offer a balanced framework for assessing whether the benefit of maintaining confidentiality outweighs the need for full disclosure in legal proceedings. Each case usually requires a nuanced approach to determine whether or not a given communication should be considered privileged under these criteria.
