Home Arbitration/Labour Relations OLRB rules against solicitor-client privilege claim in long-term care dispute

OLRB rules against solicitor-client privilege claim in long-term care dispute

by HR Law Canada

The Ontario Labour Relations Board (OLRB) ruled that a portion of a document central to a labour relations case involving the Canadian Union of Public Employees (CUPE), Trillium Health Partners, Partners Community Health (PCH), and the Service Employees International Union (SEIU) is not protected by solicitor-client privilege.

The case centers on the application of labour relations and unfair labour practice provisions under the Labour Relations Act. CUPE Local 5180, representing public health employees, challenged the disclosure status of the “Accelerated Long-Term Care Build Pilot Project” document, dated June 2022.

The dispute focused on whether parts of this document, which PCH asserted were privileged, should remain confidential.

Background and legal context

The document in question was initially provided to CUPE and other parties in response to a production request. PCH later claimed that a portion of the document should have been redacted as it contained legal advice protected by solicitor-client privilege.

However, CUPE contested this claim, arguing that the content was not privileged and that its disclosure was essential for the proceedings.

The board, in its ruling, detailed the legal principles governing solicitor-client privilege. The decision hinged on whether the redacted portion of the document involved communications between a lawyer and their client, made for the purpose of giving or receiving legal advice and intended to be confidential.

Key points from the ruling

The board noted several critical factors:

Creation and review of the document: The document was drafted by a project manager for PCH, and not a legal professional. Although a paralegal with Bass & Associates reviewed the document, there was no clear evidence that he provided legal advice directly influencing its content.

Absence of detailed evidence: The ruling emphasized the lack of detailed evidence showing that the paralegal’s legal advice was sought or incorporated into the document’s redacted portions. The decision cited the necessity for cogent evidence to establish a connection between legal advice and the document’s content.

Nature of the content: The redacted sections included discussions on labour relations risks and strategies, such as potential recognition of past service for severance and termination pay, related employer risks, and the implications of interest arbitration awards. The ruling found these topics to be operational or business advice rather than privileged legal advice.

Conclusion

The OLRB concluded that the redacted portions of the document did not meet the criteria for solicitor-client privilege.

“Merely passing through the hands of counsel does not convert what is not privileged into something that is,” the board said.

For more information, see Canadian Union of Public Health Employees, Local 5180 v Trillium Health Partners, 2024 CanLII 53961 (ON LRB).

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