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Home My WebLink About2019-0169.Policy.24-01-25 Decision GSB# 2019-0169; 2019-0622; 2019-1920; 2019-2978; 2020-1096 UNION# G-012-19 COR; G-039-19 BOW; G-140-20-BFF; G-014-20-BOE; G-039-20-BOW IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Policy) Union - and - The Crown in Right of Ontario (Metrolinx) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Simon Blackstone and Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Co-Counsel FOR THE EMPLOYER Bonnea Channe and Mark Van Ginkel Filion Wakely Thorup Angeletti LLP Co-Counsel HEARING January 8, 2024 Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 - 2 - DECISION [1] This interim decision addresses whether any of four described documents held by the Employer are exempt from production on the basis that they are subject to solicitor- client privilege. Three of these are described as email exchanges. The fourth is described as a Senior Management Team (“SMT”) briefing note. The Employer concedes that this material is arguably relevant to the issues in dispute, and, subject to the claim of privilege, would be required to be produced to the Union. The Union argues on behalf of that disclosure and, in the alternative argues that, if the briefing note is captured by solicitor- client privilege, that privilege has been waived by the Employer. [2] The primary issue before the Board in these proceedings is the reasonableness of the Employer’s Fitness for Duty (”FFD”) Policy as it was amended following the legalization of cannabis use. The Union challenges the Policy’s imposition of a ban on the recreational use of cannabis and/or cannabis products both on and off-duty by employees working in safety-sensitive positions. It also challenges the Policy’s requirement for disclosure of medical cannabis use and the Employer’s response to such disclosure. Individual grievances also challenge specific applications of the Policy. [3] At the hearing on August 11, 2022, and confirmed by the Board in a summary email to counsel the same day, the Employer was to provide any remaining production and any issue of privilege was to be identified by no later than September 15, 2022. Any outstanding issue of privilege was to be heard on October 7, 2022. [4] By correspondence dated September 29, 2022, the Employer advised that material not yet produced was not arguably relevant and/or reflected an overly broad disclosure and was also exempt from production based on solicitor-client privilege. The undisclosed material was then described by the Employer as “drafts of the FFD Policy and internal communications relating to policy development, drafting and revisions”. [5] I note at this juncture, that this description is wholly inadequate as a basis from which a party might assert a claim of solicitor-client privilege as, at its most basic, there is no reference to any solicitor-client relationship and/or any involvement of legal counsel at all in the creation, discussion, and/or development of the draft documents and/or any involvement of legal counsel in the internal communications. [6] On October 7, 2022, the issue of relevance and breadth of production was heard and determined in an interim decision dated October 14, 2022. My notes of that day indicate that the Employer argued that drafts of the policy sought to be disclosed went beyond the scope of the issues as only those provisions dealing with cannabis use were at issue. No other material was referenced in argument and the Employer rejected the Union’s request that it prepare a schedule of documents for which the Employer claimed privilege. It was in reply that the Union noted that the Employer had earlier referenced internal communications. That reference was raised in the context of the Union’s assertion of its inability to assess any claim of privilege in the absence of pertinent information about the documents. - 3 - [7] The decision of October 14, 2022, notes that the only documentary material identified and not yet produced by the Employer were copies of drafts of the FFD Policy. That characterization was based on the Employer’s submissions on October 7, 2022. No clarification or objection to that characterization was taken by the Employer. In that decision, the Employer was directed to confirm whether it was claiming privilege with respect to the relevant portions of drafts of the policy and if so, the basis of its claim. The parties were further directed to be prepared to argue any outstanding issue of privilege when the hearing reconvened on November 2, 2022. [8] By letter dated October 24, 2022, the Employer advised the Union that it was claiming solicitor-client privilege over drafts of the policy provisions that were prepared in communication with its legal counsel, and which communications occurred for the purpose of obtaining legal advice. At the same time, a draft policy dated November 13, 2018, was produced, there being no claim of privilege made with respect to that document. [9] On November 2, 2022, the hearing again convened to deal with the issue of any claims of privilege, as well as certain other procedural issues. At the outset, it was confirmed that there were no remaining issues with respect to privilege and nothing further in that regard was raised by either party. At that time it would have reasonably been understood that the only materials not produced and subject to a claim of solicitor- client privilege were drafts of the policy changes prepared in communication with legal counsel or prepared by counsel in the course of providing legal advice, as described by the Employer in its correspondence of October 24, 2022. [10] The hearing has since proceeded with the Union calling its evidence with respect to the various outstanding issues that include both its challenge to the FFD Policy regarding cannabis use and its application to the grievors. The Union closed its case in chief on November 20, 2023, and the Employer called Shelley Waterman, its Manager, Fitness for Duty, as its first witness. Her will-say statement was received in chief and her cross-examination began. [11] During that cross-examination, evidence disclosed Ms. Waterman’s involvement in the preparation of a report for senior management regarding the potential implementation of a ban on recreational cannabis use for employees employed in safety- sensitive positions. This report, subsequently described as the SMT briefing note, had not been produced to the Union and the Employer has taken the position that it is exempt from disclosure based on solicitor-client privilege. The Union was unwilling to conclude its cross-examination of the witness until there had been a determination of whether the report (and any associated work product, notes, emails, or other related material) ought to be produced. [12] It was confirmed that the existence of this document was known to the Employer throughout. It was not apparent that the report reflected the same documentary material earlier described as “drafts” and it appeared otherwise. On November 20, 2023, I noted that the report referred to in evidence ought to have previously been identified and any claim of privilege made much earlier in these proceedings. I directed the Employer to - 4 - conduct a thorough review of its materials and to produce a list of any materials for which privilege was being claimed in order for that claim to be considered and determined. [13] That schedule of documents was provided on December 5, 2023. It identifies four sets of documentary material. No issue is taken with their arguable relevance to the issues in dispute. Those materials are described as follows: October 11, 2018 - E-mail exchange between Jessica Fay (Legal Counsel) and Helen Ferreira-Walker (cc: Fiona Gardner; and Pam Hooke) in which legal advice about a cannabis ban was sought and obtained. The e-mail correspondence was to/from legal counsel to Metrolinx for the purpose of seeking legal advice. November 1, 2018 - E-mail exchange between Jessica Fay (Legal Counsel) and Caitlin Kavanagh in which Ms. Kavanagh requested Ms. Fay to provide a legal recommendation in response to an issue to be addressed in the Senior Management Team (“SMT”) Briefing Note. The e-mail correspondence was to/from legal counsel to Metrolinx for the purpose of seeking legal advice. November 2, 2018 - E-mail exchange between Jessica Fay (Legal Counsel), Helen Ferreira-Walker and Caitlin Kavanagh regarding other issues requiring legal recommendations in the SMT Briefing Note. The e-mail correspondence was to/from legal counsel to Metrolinx for the purpose of seeking legal advice. November 5, 2018 - SMT Briefing Note authored by Jessica Fay (Legal Counsel) and Shelley Waterman, addressed to Phil Vorster, CEO. The memo is less than 1.25 pages in length and consists of legal advice and legal recommendations in respect of a potential recreational cannabis prohibition by Metrolinx. The document identifies Ms. Fay, Metrolinx’s legal counsel, as the first of two co-authors. The content and purpose of the Briefing Note was the provision of legal advice in connection with the legalization of recreational cannabis and a potential prohibition on recreational cannabis use by safety-sensitive employees. [14] The Union sought further and particularized confirmation as to the efforts undertaken by the Employer to ensure that this schedule was complete. I accepted Employer counsel’s undertaking and assurance that the schedule was complete. At the outset of the hearing on January 8, 2024, no new evidence was tendered in support of the claim for privilege except for the filing of various correspondence between counsel for the parties reflecting the chronology of this issue throughout these proceedings. [15] In her cross-examination, Ms. Waterman described a report of perhaps 2-3 pages in length that had been prepared jointly by her and Jessica Fay, the Employer’s in-house legal counsel, which report was addressed to Phil Verster, Chief Executive Officer of Metrolinx. She described that report as constituting a legal opinion and that it had been marked confidential. She described her contribution as providing the research on which the legal opinion was based. She testified that the research consisted of materials received from attending a conference on October 3 and 4, 2018, offered by DriverCheck Inc., the organization used by the Employer to perform alcohol and drug testing of its drivers. Those conference materials have been disclosed in this proceeding. - 5 - [16] Ms. Waterman testified that the report did not contain draft policy language. She had been instructed by “Caitlin” and “Fiona” to look into cannabis legalization and what could be done by way of ensuring employee safety and to look at what other companies were doing. Ms. Fay was not present in any meeting when those instructions were given. [17] The individuals referred to are Caitlin Kavanaugh and Fiona Gardner, individuals holding senior management positions in human resources with Metrolinx and identified as having participated in the email exchanges for which privilege is being asserted. The schedule of those email exchanges does not refer to Ms. Waterman as a participant. [18] According to Ms. Waterman, she and Ms. Fay met in the fall of 2018 on a few occasions to review the material provided by Ms. Waterman and to prepare their report. Ms. Waterman acknowledged that her input did not reflect advice, but information gleaned from the documents she had reviewed. * [19] The cases cited in argument and reviewed are found in Appendix A to this decision. In his decision in Toronto District School Board, infra, Arbitrator Shime reviewed the basis for pre-hearing production and set out certain fundamental principles at paragraph 24: … (iii) All documents which are arguably or seemingly relevant…must be produced. The test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage… (iv) The primary onus to produce documents rest with the party who has or has had possession, control or power of the documents… (v) The burden lies on the party who resists disclosure to justify the refusal to disclose. (emphasis added) [20] In 2004 in Pritchard v. Ontario (Human Rights Commission), infra, the Supreme Court of Canada restated the criteria when assessing a claim of solicitor-client privilege: 15 Dickson J. outlined the required criteria to establish solicitor-client privilege in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 837, as: "(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties". Though at one time restricted to communications exchanged in the course of litigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not… 16 Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of the professional relationship. The privilege, once established, is considerably broad and all-encompassing… The scope of the privilege does not extend to communications: (1) where legal advice is - 6 - not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct… [21] In 2022, the Ontario Superior Court of Justice summarized its approach to assessing a claim of solicitor-client privilege in Wintercorn, infra, (some underlying citations omitted): [45] There is no dispute as to the general principles governing solicitor-client privilege. I summarize the following relevant principles: (i) Solicitor-client privilege is a principle of fundamental justice: Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 17; (ii) The protection associated with solicitor-client privilege is “indispensable to the continued existence and effective operation of Canada’s legal system. It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner”: Thompson, at para. 17; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc, 2004 SCC 18, [2004] 1 S.C.R. 456, at para. 34; (iii) Solicitor-client privilege must “remain as close to absolute as possible”: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 36; (iv) Solicitor-client privilege applies to all communications between solicitor and client that entail the seeking or giving of legal advice and that are intended to be confidential by the parties: Landry et al. v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1297, at para. 14; Solosky v. Canada, [1980] 1 S.C.R. 821, at p. 838; (v) Not all communications between lawyers and clients are privileged: the lawyer must be acting in her professional capacity as a legal advisor: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 36; (vi) The onus of establishing that privilege exists is on the party asserting it. A defendant cannot establish privilege “by merely asserting it ... Broad privilege claims will fail if the party asserting the privilege has failed to meet its burden of proof”: Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2015 ONSC 4714, at para. 73; General Accident Assurance Company v. Chrusz (1999), 45 O.R. (3d) 321 (Ont. C.A.), at para. 95… (vii) Solicitor-client privilege attaches not only to the advice itself, but to all communications passing between client and solicitor relating to the provision of legal advice: Archean Energy Ltd. v. Minister of National Revenue (1997), 202 A.R. 198 (Alta. Q.B.), at para. 5; (viii) Documents, information, and communications shared or created in a “continuum of communications” for the purpose of obtaining legal advice are - 7 - privileged. This includes documents that are a “necessary step” in the process of receiving legal advice, that are “incidental” to the obtaining and giving advice, and/or that, if produced, would tend to reveal that advice: 578115 Ontario Inc. o/a McKee’s Carpet Zone v. Sears Canada Inc., 2013 ONSC 4135, [2013] O.J. No. 2785, at paras. 27-30; Concord Pacific Acquisitions Inc. v. Oei, 2016 BCSC 2028, at para. 27; Landry, at para. 14; (ix) Solicitor-client privilege also protects a lawyer’s work product and prohibits the disclosure of the contents of their client file where that file is compiled with the knowledge or skill of the lawyer and/or the disclosure of the contents of the file would reveal what the lawyer considered in providing legal advice to the client: Sears Canada, at paras. 19-20; Archean Energy, at para. 5; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 49; (x) There is no distinction between privileged “communications” and unprivileged “facts”. Instead, there is a rebuttable presumption that “all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature”: Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336, at para. 40; Foster Wheeler, at para. 42; … (xiv) The onus to prove waiver or another exception is on the party seeking to displace privilege: Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2007 BCSC 1420, at para. 22; Industrial Alliance Securities Inc. v. Kunicyn, 2020 ONSC 3393, 151 O.R. (3d) 306, at para. 27; (xv) Lawyers have a professional duty to claim and maintain privilege on behalf of their clients. It is improper for a lawyer not to claim privilege on behalf of their client unless it has been shown that privilege has been properly waived: Bell v. Smith, [1968] S.C.R. 664, at p. 671; (xvi) Where a third party seeks production from a lawyer of “information pertaining to a solicitor-client relationship”, the “proper course for counsel to follow ... is to refuse to do so” unless the client has given clear, valid, and explicit consent to disclose: Kelly Lake Cree Nation v. Canada, [1999] 1 F.C. 496, 162 F.T.R. 23, at para. 11; and (xvii) Courts resolve conflicts about whether solicitor-client privilege covers a given document in favour of protecting privilege. The stakes are high in this context. Invoking solicitor-client privilege necessarily imports constitutional and institutional considerations, not merely the balance of convenience or fairness among the parties. Courts “err on the side of non-disclosure if unable to determine whether a communication is or is not privileged”: R. v. Unnamed Respondents, 2008 BCSC 815, at para. 28; Camp Development Corporation v. South Coast Greater Vancouver Transportation Authority, 2011 BCSC 88, [2011] B.C.J. No. 104, at paras. 40-46. - 8 - The Briefing Note – is it subject to solicitor-client privilege? [22] This document is described in content and purpose as consisting of legal advice and legal recommendations rendered by in-house counsel in respect of a potential ban on recreational cannabis use by employees of the Employer working in safety-sensitive positions. [23] There is no dispute that a solicitor-client relationship exists as between in-house counsel and the Employer. The Union asserted that a distinction need be drawn between legal advice and mere business or policy advice (see Pomerleau Inc., infra, at para. 18). Recognizing this distinction between protected legal advice and unprotected executive or policy/business advice, the Supreme Court of Canada in Prichard, infra, instructed: 20 Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered… [24] Ms. Waterman testified that she and Ms. Fay worked together to create the briefing note. This can suggest that the briefing note may be focussed more on policy considerations/recommendations than on whether those policy considerations would meet a legal test. However, the legal issue before this Board is whether the Employer’s policy decision, implemented pursuant to its retained management rights under the collective agreement, is reasonable. The policy considerations underlying the substance of the Employer’s FFD Policy are the very basis of the Union’s legal challenge under the terms of its collective agreement. [25] Advice from in-house counsel with respect to the validity, reasonableness, or otherwise of a potential prohibition on recreational cannabis use by workers in safety- sensitive positions, while incorporating policy considerations, is, in this context, legal advice. This Board will be required to assess those same, and perhaps other policy considerations in determining the legal issue of whether the terms of the FFD Policy regarding cannabis use by employees employed in safety-sensitive positions are reasonable, and thereby whether the collective agreement between the parties has been violated. [26] Notwithstanding the late disclosure of the briefing note, and, contrary to the Union’s submissions, I am also satisfied that there is sufficient evidence from which to both identify and assess the nature of the briefing note. That evidence confirms that at least part of the briefing note was prepared by in-house legal counsel for the purpose of providing legal advice regarding a potential ban on cannabis use by employees employed in safety- sensitive positions. [27] The Divisional Court in Currie v Symcor, cited at paragraph 36 of XGC Consultants, infra, noted that a claim of solicitor-client privilege is very broad, including not just the “legal advice”, but also the “factual, financial and administrative information provided to - 9 - legal counsel, for the purpose of allowing legal counsel to give legal advice...” And see sub-paragraphs (viii) and (x) of the quote from Wintercorn, above. [28] The Employer argued that the contents of the briefing note must be treated as a whole, such that the information provided by Ms. Waterman and reviewed in the briefing note is also privileged. That information cannot be said to form part of the solicitor’s work product. It is the product of Ms. Waterman’s research. This gathering and synthesizing of information that was external to the client is not a function essential to the maintenance or operation of the solicitor-client relationship. The fact that the briefing note was co- authored by in-house counsel does not automatically or necessarily clothe the note with solicitor-client privilege. [29] Ms. Waterman cannot claim to be in a similarly privileged relationship with the Employer. The research materials and information acquired by Ms. Waterman bear no indicia of confidentiality. The information she provided for the briefing note was described by Ms. Waterman as a summary of the resource materials obtained at a conference as well as public reports as to how other employers were addressing the issue of cannabis use following legalization. She noted reliance on Dr. Adler-Smith’s opinion as an expert, from whom a report has also been produced. [30] The evidence as to Ms. Waterman’s role in the preparation of the briefing note is somewhat contradictory. On the one hand, she testified that she was authorized to gather information from external sources and pass it on. As Manager, Fitness for Duty, Ms. Waterman has some expertise in issues involving fitness for duty. However, she claimed not to enhance her contribution in the briefing note by way of any analysis or explanation of the information and denied that she had provided advice. She agreed that "sections of it are [a] record/distillation” of “things [she] wanted her superiors to know”. This would suggest that portions of the briefing note can be attributed to and/or reflect the non- privileged materials compiled by Ms. Waterman, which materials have already been disclosed in this proceeding. I considered, and initially was inclined to reject a conclusion that those portions of the briefing note acquired protected status simply because they were found in the briefing note. [31] On the other hand, Ms. Waterman testified that she discussed the materials with Ms. Fay during meetings in anticipation of the preparation of the briefing note and that they produced the report together. This suggests a melding of the information as between the co-authors and can indicate that the briefing note ought properly to be considered as a whole. [32] I am persuaded that these considerations reflect the difficulty of attempting to meaningfully distinguish between policy and/or business advice (not protected) and legal advice (protected) in the particular circumstances of this case. The very nature of this legal dispute renders that distinction effectively inconsequential. The legal issue of whether the Employer’s FFD Policy meets a standard of reasonableness incorporates consideration of a multitude of factors that can equally be described as business and/or policy considerations, and includes factors discussed in the materials disclosed. - 10 - [33] The cases involving lawyers as investigators are not helpful. Much, if not all of the information referred to by Ms. Waterman is not fact-finding in the sense of interviewing witnesses to determine what happened. The information is of a nature to assist the Employer in assessing if and how it should respond to the legalization of cannabis use. [34] The cases are however clear that solicitor-client privilege is broad and all encompassing, and “must remain as close to absolute as possible”. While it may be possible to extract Ms. Waterman’s summary or sections as reflecting information that is not otherwise privileged, it is also the case that the material was shared for the purpose of obtaining legal advice from in-house counsel to the Employer. [35] In the particular circumstances here, I am persuaded that it is appropriate to ‘err on the side of caution’ in respect of the scope of solicitor-client privilege. I find therefore that the briefing note is subject to solicitor-client privilege and is not to be produced. Waiver of solicitor-client privilege attaching to the briefing note [36] The Union asserts that even if captured by solicitor-client privilege, the Employer has waived any privilege attaching to the briefing note. The Union relies on the history of these proceedings. The refusal until December 5, 2023, to provide a schedule of documents over which it claimed privilege required a response that holds the Employer to its conduct, argued the Union. [37] It is the case that the Employer’s instructing client was present throughout the proceedings when issues of production and privilege were being discussed and that the Employer was aware throughout of the existence of the briefing note, as confirmed by its counsel. The Board’s communication of August 11, 2022 and its order of October 14, 2022 should have made expectations clear. The Employer was given every opportunity to identify the existence of the briefing note and did so only on December 5, 2023, following evidence of its existence from the witness. [38] The briefing note is not encompassed by the earlier description of policy ‘drafts’ and can be described as an ‘internal communication’ only in the broadest and vaguest of terms. An internal communication does not indicate or even suggest legal advice. As noted at the outset of this decision, the materials as earlier described provide no basis for a claim of solicitor-client privilege. [39] However, I do not find the cases relied on by the Union in asserting waiver to be persuasive in the circumstances. All arise in the civil context. So, for example, in Greater Vancouver, infra, an asserted inadvertent but actual disclosure of material was found to have been intentional, resulting in the waiver of any claim of privilege. Although indicating that a waiver may result from conduct, none of the cases determine that late identification of an undisclosed document waives the claimed privilege, even where that omission may be said to be deliberate. [40] I am not persuaded that the Employer has waived the solicitor-client privilege attaching to the briefing note. That is not to say that I condone the Employer’s conduct. - 11 - Production requires the proper identification of the specific arguably relevant materials over which privilege is being claimed. That onus rests with the party asserting the privilege. There was a failure to earlier and properly identify these documents with an accurate and more complete description. Of more concern, there was an inherent confirmation at the hearing on November 2, 2022, that all arguably relevant documents had been fully and properly identified to the Union and that all claims of privilege had been dealt with, when it was, or should have been apparent to the Employer that such was not the case. This has resulted in delay and additional cost to the parties. It has also negatively affected the measure of trust between the parties who are well aware that they exist in an ongoing relationship. [41] I have also considered whether Ms. Waterman’s actual knowledge of the legal advice contained in the briefing note constitutes a waiver of solicitor-client privilege, as the legal advice was arguably not confidential to the client, Metrolinx. However, Ms. Waterman is not a third party in the sense described in the decision in XCG Consultants Inc., infra. She had no authority to instruct Ms. Fay and the legal advice was disclosed to an employee. However, in the labour relations context, that employee was a member of management and the duties performed by a manager would typically be considered to be actions of the Employer and consequently, I am satisfied that the advice disclosed fell within the bounds of advice to the client. The email exchanges dated October 11, 2018, November 1, 2018 and November 2, 2018 [42] These three email exchanges all fall within the period spent in the preparation of the briefing note. They are specifically identified as requesting a legal recommendation and/ or legal advice in relation to the briefing note which was for the purpose of providing legal advice in connection with the legalization of recreational cannabis and a potential prohibition on recreational cannabis use by those employed in safety-sensitive positions. [43] Although the Union argued that there was insufficient information from which to draw any conclusions as to the asserted solicitor-client privilege, and that the Board should therefore review the documents, the exchanges are identified by date, with specific indication of those participating and the purpose of the communications. While the description of the November 1, 2018 exchange vaguely refers to an “issue to be addressed”, it is qualified more specifically as requesting a legal recommendation regarding an issue to be addressed in the briefing note, which is identified as consideration of a potential ban on cannabis use for employees in safety-sensitive positions. [44] Similarly, the November 2, 2018 exchange is described with less detail, although again in reference to issues requiring legal recommendations in the briefing note. Each of the three exchanges occurred between and among senior management and in-house legal counsel. To the extent that there may be overlap between policy recommendations and legal advice, as reviewed above, I am satisfied that those recommendations and advice fall within the ambit of legal advice in the circumstances and context of the issue being considered. - 12 - [45] These email exchanges reflect a continuum of communications undertaken for the purpose of obtaining legal advice. Solicitor-client privilege attaches both to the legal advice and to the communications passing between client and counsel relating to that provision of legal advice. I am satisfied that solicitor-client privilege attaches to these communications and that they are not to be produced. [46] Therefore, having regard to the above, I hereby find that: 1) the briefing note is subject to solicitor-client privilege and is not to be produced. 2) the email exchanges of October 11, November 1, and November 2, 2018 are captured by solicitor-client privilege and are not to be produced. [47] This matter is scheduled to reconvene on February 8, 2024. At that time the Employer’s case will continue with the Union’s cross-examination of Ms. Waterman. Dated at Toronto, Ontario this 25th day of January, 2024. “Marilyn A. Nairn” _______________________ Marilyn A. Nairn, Arbitrator - 13 - APPENDIX A Cases/Authorities cited: Toronto District School Board and C.U.P.E., Loc. 4400 (2001-B-01), [2002] O.L.A.A. No. 992 XCG Consultants Inc. v. ABB Inc., [2014] O.J. No. 899 Pomerleau Inc. v. Newfoundland and Labrador (Minister of the Department of Transportation and Works), [2012] N.J. No. 283 Nova Chemicals (Canada) Ltd. v. Ceda-Reactor Ltd., [2014] O.J. No. 3284 Adam M. Dodek, Solicitor-Client Privilege, (LexisNexis Canada Inc., 2014), at 3.4.7 Lawyers and Internal Investigators Wilson v. Favelle, [1994] B.C.J. No. 1257 North Bay General Hospital v. Ontario Nurses' Assn. (Discipline Grievance), [2011] O.L.A.A. No. 506 De Francesca v. Centric Investigation Services Inc., [2017] O.H.R.T.D. No. 800 Rules of Civil Procedure, RRO 1990, Reg 194, s 30.04(6) Bank of Montreal v. Sasso, [2013] F.C.J. No. 648 Hogan v. Ontario (Minister of Health and Long-Term Care), [2003] O.H.R.T.D. No. 16 Ontario Public Service Employees Union v. Ontario (Ministry of Finance) (Lau Grievance), [2001] O.G.S.B.A. No. 27 Greater Vancouver Water District v. Bilfinger Berger, AG [2015] B.C.J. No. 659 Leadbeater v. Her Majesty the Queen in right of Ontario, [2004] O.J. No. 1228 Byers v. Pentex Print Master Industries Inc., [2000] O.J. No. 601 Milicevic v. T. Smith Engineering Inc., [2016] O.J. No. 1719 The Law of Evidence in Canada, 6th Ed., Sopinka, Lederman & Bryant, paragraphs 14.47 to 14.52; 14.97 to14.101; 14.155 to 14.156; and 14.163 to 14.181. Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 Blank v Canada (Minister of Justice), 2006 SCC 39 - 14 - Wintercorn v Global Learning Group Inc, 2022 ONSC 4576. Canadian Pacific Ltd v Canada (Director of Investigation & Research), 1995 CarswellOnt 695 (Ont Sup Ct Gen Div) Windsor (City) Professional Employees Trade Union v Windsor (City), 2008 CarswellOnt 2853 (OLRB). Mitsui and Co (Point Aconi) Ltd. v Jones Power Co, 2000 CarswellNS 234 (Roscoe, Flinn, Cromwell JJ.A.) Re Toronto Transit Commission and Amalgamated Transit Union, Local 113, [2004] 125 LAC (4th) (Ont Arb) (Springate) Gower v Tolko Manitoba Inc., 2001 MBCA 11 Zenex Enterprises Limited v Pioneer Balloon Canada Ltd, 2012 ONSC 7243 Bell v Smith, 1968 CarswellOnt 79 (SCC) Re British Columbia (Attorney General), 2020 BCIPC 1 Ontario (Community Safety and Correctional Services) (Re), 2013 CanLII 10462 (ON IPC) Rogers-Shaw - Reasons for Order and Order on Motions to Compel Answers to Questions Refused on Examinations for Discovery, 2022 CanLII 135601 (Comp. Trib.)