Executive Summary: Key Legal and Evidentiary Issues

• A unionized employee was dismissed for allegedly harassing coworkers and creating a toxic work environment, triggering a grievance under a collective agreement.

• The arbitration panel ruled there was no just cause for dismissal and awarded the employee damages, including aggravated and punitive damages, but not reinstatement.

• The Credit Union challenged the arbitration decision via judicial review, claiming procedural unfairness and a reasonable apprehension of bias.

• A key affidavit from the dissenting arbitrator alleged exclusion from deliberations, prompting the union to attempt to strike it based on deliberative secrecy and statutory privilege.

• The court ruled the affidavit admissible due to the recognized exception to deliberative secrecy where procedural fairness is in question.

• The issue of whether the arbitrator can be cross-examined and the final ruling on costs were deferred pending the full judicial review.

Facts of the case and procedural background

An employee of Affinity Credit Union was terminated on July 16, 2020, after ten years of service. The termination was allegedly for just cause, citing harassment, bullying of coworkers, and contributing to a toxic workplace. The employee, a member of the United Food and Commercial Workers, Local 1400 (UFCW), filed a grievance asserting unjust dismissal and breach of the collective agreement.

A three-member arbitration panel was constituted: John Comrie (chair), Lorraine St. Cyr (UFCW nominee), and Laura Sommervill (Credit Union nominee). The arbitration hearings extended from late 2021 into mid-2022. The panel’s majority decision, delivered on January 10, 2023, and a supplemental decision on August 8, 2023, held that the employee’s conduct contributed to a toxic workplace but did not amount to harassment under The Saskatchewan Employment Act. The panel found no just cause for dismissal and awarded damages but did not order reinstatement. The dissenting arbitrator, Ms. Sommervill, disagreed and concluded that termination was justified.

The Credit Union then filed for judicial review seeking to overturn the arbitration decisions, asserting procedural unfairness, bias, and legal errors by the majority. In support, it filed Ms. Sommervill’s affidavit detailing her exclusion from the decision-making process and alleging an adversarial dynamic with the other panel members. The affidavit included internal communications as exhibits.

Union’s motion to strike the affidavit

UFCW filed a motion to strike Ms. Sommervill’s affidavit, invoking both Section 6-121 of The Saskatchewan Employment Act and the common law doctrine of deliberative secrecy. These provisions are designed to protect confidential information obtained in the course of arbitration and to preserve the independence of tribunal deliberations. UFCW also challenged the admissibility of related correspondence filed by the arbitration chair, Mr. Comrie.

The union argued that allowing the affidavit would breach the statutory and common law protections afforded to the arbitration process and set a dangerous precedent by permitting internal tribunal communications to be scrutinized. It also claimed that any privilege over deliberations could not be unilaterally waived by a single arbitrator.

Court’s analysis and findings

The court dismissed the union’s motion, finding that an exception to deliberative secrecy applies when there is a clear and objectively reasonable concern about procedural fairness, as established in precedents like Tremblay and Commission scolaire de Laval. The court determined that the affidavit provided a valid evidentiary foundation to support claims of procedural unfairness and bias. Since these claims cannot be meaningfully assessed without examining the deliberative process, the affidavit was deemed necessary and admissible.

The court held that Section 6-121 of The Saskatchewan Employment Act does not apply in these particular circumstances, since the affidavit concerns alleged conduct that may itself breach the procedural obligations of the tribunal. As such, that information falls outside the intended scope of the statutory confidentiality protections.

While the court rejected the Credit Union’s argument that Ms. Sommervill’s affidavit waived privilege for the entire tribunal, it found that the affidavit could still stand on the basis of the recognized exception to deliberative secrecy. However, the main judicial review application is still pending, and no final winner has been determined yet regarding whether the termination was justified.

Cross-examination and next steps

The court deferred its decision on whether Ms. Sommervill could be cross-examined until UFCW decides whether to file additional evidence on the fairness and natural justice issues. The court emphasized that allowing or denying cross-examination prematurely would be procedurally unfair given the unsettled state of the record. The decision on costs was also deferred until the main judicial review application is decided.

The matter now proceeds to a future hearing on the substantive judicial review, where the court will determine whether the arbitration panel’s decision should be upheld or quashed.