BC Human Rights Tribunal

RR v. Fraser Health Authority and others (No. 2), 2024 BCHRT 194

Date Issued: June 21, 2024
File: CS-000544

Indexed as: RR v. Fraser Health Authority and others (No. 2), 2024 BCHRT 194

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

RR

COMPLAINANT

AND:

Fraser Health Authority and IL and VG

RESPONDENTS

REASONS FOR DECISION
APPLICATION FOR THIRD PARTY DISCLOSURE
Rule 23

Tribunal Member: Shannon Beckett
On their own behalf: RR
Counsel for the Respondent: David J. Bell and Natasha T. Wood
Counsel for the BC Nurses’ Union: Derek G. Knoechel

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I INTRODUCTION

[1] RR alleges that Fraser Health Authority [FHA], IL, and VG [together the Respondents] discriminated against her in employment based on physical disability contrary to s. 13 of the Human Rights Code [Code]. RR says she suffers from back issues and a vision impairment. She alleges that the Respondents: (1) bullied and harassed her, at least in part, due to her physical disabilities; and (2) failed to reasonably accommodate her vision impairment.

[2] This matter is set for a 10-day hearing commencing July 22, 2024.

[3] This decision deals with the Respondents’ application for disclosure from a non-party, the British Columbia Nurses Union [BCNU]. RR was a member of the BCNU at the time material to the complaint.

[4] By way of brief background, the disclosure application arose after RR (who is self-represented in this matter) indicated that she was going to call PG, a BCNU Steward, as a witness at the hearing. PG represented RR as a union steward from time to time during the events that gave rise to this complaint. The Respondents subsequently sought disclosure of all documents in BCNU’s possession or control relevant to the allegations in the complaint. The Respondents have since narrowed the scope of disclosure sought. They maintain, however, that substantial disclosure is required as a matter of fairness, to allow them to understand the nature of the evidence that PG might give at the hearing, and to test that evidence on cross-examination.

[5] BCNU opposes the application and characterizes it as a “fishing expedition”. BCNU says, among other things, that the records sought are voluminous, comprise approximately 18 separate files, and are largely protected from disclosure by the law of privilege. BCNU says that it would face significant prejudice if required to review and disclose them.

[6] Resolution of this application involves consideration of whether disclosure of the documents will further the just and timely resolution of the complaint.

[7] For the following reasons, I grant the application in part. As I explain below, I am not satisfied that all of the requested documents are arguably relevant, and I am not persuaded that ordering disclosure in the manner the Respondents propose would facilitate the just and timely resolution of the complaint. However, I am persuaded that ordering limited disclosure of materials which are redacted for privilege, is an outcome that balances fairness, with concerns about timeliness, efficiency, and proportionality. In coming to this decision, I make no findings of fact.

II BACKGROUND AND POSITIONS OF THE PARTIES

[8] This matter has a lengthy procedural history. The complaint was originally filed in December 2017, then amended twice in April 2018. Since then, there have been several preliminary applications. The matter was originally set for hearing in October 2023, however that hearing was adjourned. It is currently set for a 10-day hearing commencing July 22, 2024.

[9] Briefly, the complaint arises from RR’s employment relationship with FHA. In 2016, RR started work in a new position as a Registered Nurse at a hospital operated by FHA. RR says she suffers from back issues and a vision impairment (bilateral cataracts).

[10] She alleges that after she started work in the new position, she experienced discrimination in two ways. First, she alleges that her colleagues bullied and harassed her, at least in part, because of her physical disabilities. She says her physical disabilities made her slower at performing her work. She says that the individual respondents, as well as other employees of FHA, bullied and harassed her including by subjecting her to inappropriate and overbearing scrutiny at work, disciplining and criticizing her for her pace and performance, and maliciously filing a complaint against her with the BC College of Nurses and Midwives [theCollege]. Second, RR says the Respondents ignored her repeated requests to have her vision disability accommodated. She says they denied her request to be transferred to a different unit or assigned different responsibilities, and required her to continue to do work that did not accommodate her vision disability, including performing extensive computer work.

[11] The Respondents deny discriminating. They deny that physical disability was a factor in their treatment of RR. They say that their conduct was, at all times, motivated by patient safety, carried out pursuant to all applicable policies and regulations, and conducted in a reasonable, respectful, and timely manner. The Respondents further say that they were under a statutory duty to report RR’s conduct to the College. The Respondents also deny they failed to accommodate RR. They maintain that they took reasonable steps to accommodate RR to the point of undue hardship.

[12] In addition to this human rights complaint, RR and the Respondents have been involved in proceedings before the Workers Compensation Appeal Tribunal [WCAT] as well as the College (as referenced above). The BCNU has also been involved, to various degrees and in various capacities, in both of these additional proceedings, and agrees that it possesses documents in relation to each. The BCNU also says it possesses documents in relation to two outstanding grievances involving RR and FHA.

[13] In August 2023, the Respondents say they sent RR a “demand letter” requesting “her BCNU representative’s file”. RR did not disclose those materials to the Respondents, and on September 6, 2023, the Respondents filed the disclosure application. In it, they seek disclosure “of the entire Union file from BCNU as it relates to the Complainant’s accommodation and/or discipline to the Complainant”.

[14] The Respondents say that because RR is calling PG as a witness, “a significant amount of evidence about the complainant’s communications with the Union will likely be adduced” and fairness requires that they be able to access the documents in the union file in order to properly know the case they have to meet, and in order to effectively test PG’s evidence through cross-examination. The Respondents submit that because RR is calling her union representative as a witness, she has expressly or impliedly waived any claim of privilege over “any of her communications with [PG] in relation to the Complaint before the Tribunal.”

[15] On September 11, 2023, I convened a videoconference with the parties to hear oral submissions on the disclosure application. The Respondents made arguments about privilege and waiver of privilege. RR did not respond to those arguments, though she indicated at the time that she opposed the Respondents’ application generally. In order to ensure the Tribunal had full submissions on the disclosure application, including issues of privilege, the Tribunal sought submissions from the BCNU. The Tribunal also provided RR with an opportunity to provide written submissions.

[16] At the BCNU’s request, I temporarily deferred the submission schedule on the application until RR provided the Tribunal, the Respondents, and the BCNU with a will-say statement outlining the reason RR was calling PG, and what evidence RR expected PG to give at the hearing.

[17] After several attempts at providing the requested information, on May 10, 2024, RR provided a will-say statement for PG. The Tribunal then reset the submission schedule on the disclosure application, and both the BCNU and RR’s submissions were due on May 24, 2024.

[18] The BCNU provided written submissions and an affidavit sworn by PG, which sets out her understanding of what she expects she will be asked to testify about at the hearing. I will describe the relevant portions of PG’s affidavit and RR’s will-say statement below in these reasons.

[19] The BCNU objects to disclosure of the requested documents for several reasons.

[20] First, it says the Respondents’ request is an overbroad “fishing expedition”, that if granted, would cause the BCNU to expend disproportionate time and resources. The BCNU advises that it has represented and continues to represent RR in a number of different proceedings involving the Respondents, including in grievance proceedings which are still outstanding and have been referred to arbitration. The BCNU says it has at least 18 different files pertaining to RR, which overlap with the timeline at issue in this complaint, and it would take considerable effort and expense for the BCNU to search for and produce any and all records falling within the Respondents’ broad request.

[21] Second, the BCNU says it would also have to review any potentially responsive documents with its legal counsel to address claims of privilege, and to deal with the redaction of privileged, confidential, or irrelevant information. The BCNU argues that a host of statutory or common law privileges apply to the contents of its files. They point to prohibitions or restrictions on disclosure under the Health Professions Act and Workers Compensation Act.The BCNU also takes the position that the majority of the rest of the union files are protected by overlapping common law privileges such as litigation privilege, solicitor-client privilege, settlement privilege and/or labour-relations privilege. They argue that the resources required to review and appropriately redact the BCNU’s files to address issues of privilege are unduly onerous and disproportionate in the circumstances.

[22] Third, on the issue of privilege, the BCNU argues that any privilege over confidential communications between the BCNU representatives or over any related internal confidential communication is solely for the BCNU to waive, and cannot be waived by RR, as the parties have argued or suggested. Further, they say that the Tribunal does not have the authority to compel disclosure of privileged materials.

[23] Finally, the BCNU says that the Respondents have failed to establish how any confidential communications between RR and BCNU representatives (or any confidential BCNU communication relating to RR) would be “relevant to an issue in the complaint and admissible” [emphasis in original], which the BCNU argues is the higher test required for the Tribunal to order third-party disclosure under s. 34(3)(b) of the Administrative Tribunals Act [ATA].

[24] The BCNU argues that the Respondents have not been specific in their document request, have not established any benefits to be gained by disclosure of the requested documents, and have not addressed the serious prejudice the BCNU would face if required to disclose confidential information protected by labour relations privilege. Ultimately, the BCNU argues that in the entirety of the circumstances, ordering disclosure would not facilitate the just and timely resolution of the human rights complaint.

[25] In their reply, the Respondents’ narrow their request to exclude any documents which relate to the College and WCAT proceedings. However, they maintain their request for “all documents in BCNU’s possession with respect to the events underlying the complaint of discrimination that has been accepted by the Tribunal”.

[26] The Respondents deny that their request is a “fishing expedition”, and say that because PG admits she had many interactions with RR, “it cannot be disputed…that [PG] has relevant evidence to give with respect to the underlying matters in this complaint” and that PG “does not deny that there are documents relating to [the very matters at issue] in the possession of the BCNU”. The Respondents acknowledge that their original request was general, but they say they are not clear about what PG is going to give evidence about, even with the will-say statement, and their primary reason for the document request is to “understand the nature of the evidence that might be given by [PG] at hearing and to be given the means to test same by way of cross-examination”.

[27] On the issue of the time and resources required to review and redact for privilege, the Respondents says this work can be done by the Tribunal. They propose that the BCNU can disclose to the Respondents any unprivileged documents, and that any privileged materials can be provided to the Tribunal for review and further adjudication, as necessary. The Respondents submit that this proposed course of action balances the valid concerns of the BCNU about potentially privileged communications being produced in this proceeding, with those of the Respondents, in requiring an understanding of the case that will be made against them at hearing.

[28] On June 7, 2024, the BCNU filed an application to make a further submission in response to what it characterises as “new requests” and “new argument” in the Respondents’ reply. The BCNU says because the Respondents have raised new issues in their reply, it would be unfair if the BCNU could not respond.

[29] I have decided that I do not require further submissions to fairly decide this application. Although the BCNU raises concerns about what they characterize as the Respondents’ “misstatement” of the law in regard to waiver of privilege, I have determined I do not need to decide whether any privilege has been waived in order to resolve this application. Further, I disagree with the BCNU that the Respondents’ proposed course of action raises “new” issues which require the BCNU’s response to ensure a fair process. For these reasons, I do not accept and have not considered the BCNU’s June 7 submission.

[30] RR did not file written submissions on the application. However, on May 7, 2024, she sent an email to the BCNU and copied the Tribunal, in which she states (as written):

I have requested disclosure of all BCNU. I have all these copies in my [possession], it will part of my exhibits. All my communications with BCNU rep from 2020-2024 for my Human Rights cases.

Since 2020 I was fired by FHA. I am no longer an employee of FHA therefore I am not under obligation or bound by BCNU contracts.

[31] It is not apparent from this email what RR’s position is on the various issues raised by this application. It appears, however, that she may have changed her position and may agree that at least some of the documents contained in the BCNU files relating to her ought to be disclosed and admitted into this proceeding.

III DECISION

Legal Framework

[32] The purpose of disclosure is to “provide a fair opportunity for parties to prepare their case and to make full answer and defence”: Smith v. Provincial Health Services Authority, 2014 BCHRT 223 at para. 18.

[33] Under Rule 23 of the Tribunal’s Rules of Practice and Procedure , an application for disclosure of documents must explain how disclosure of the requested documents will further the just and timely resolution of the complaint, and how the documents may be relevant to an issue in the complaint, response or remedy sought.

[34] Disclosure should, like all aspects of the Tribunal’s process, serve the goals of efficiency and fairness in the administration of justice: Employee v. Overwaitea Food Group Ltd, 2018 BCHRT 84 at para. 10. Proportionality is an important consideration: Johar and others v. College of Veterinarians of BC and another , 2020 BCHRT 179. The Tribunal may decline to order disclosure of arguably relevant documents which are “unnecessary to a just and timely resolution of the complaint”: Smith v. Provincial Health Services Authority , 2015 BCHRT 112 at para. 53.

[35] In the case of an application for disclosure of documents from a non-party, s. 34(3)(b) of the ATAapplies, and the Tribunal may make an order requiring a person to produce a document that is “admissible and relevant” to an issue in the complaint. The BCNU argues that this section of the ATA mandates a higher test for relevance than the Tribunal’s normal test of arguable relevance, and requires the documents to be admissible in Tribunal proceedings prior to the Tribunal ordering disclosure. However, the Tribunal previously considered and rejected that interpretation in Metcalfe v. International Union of Operating Engineers, Local 882 and others (No. 7), 2005 BCHRT 165.

[36] In Metcalfe,the Tribunal emphasised that because the issue for consideration with respect to third-party disclosure is the production of documents to a participant, and not the assessment of the admissibility of those documents at a hearing, the Tribunal is not in a position, at such an early stage, to make a final determination as to the relevance and admissibility of the requested documents. The Tribunal then went on to consider the legislative intent behind s. 34(3)(b) of the ATA , and held (at para. 11):

Section 34(3) should, in my opinion, be read as requiring an applicant to establish only that the documents in question are arguably or potentially relevant or, in other words, that the documents may be relevant. To set the standard higher, and require an applicant to establish that a document is both relevant and admissible, outside of the context of the hearing, would defeat the clear legislative intention of s. 34(3) of the ATA.That purpose was to permit tribunals to order pre-hearing production of documents, including from third parties, thereby rendering hearings both fairer, through the provision of full disclosure, and more efficient, by avoiding delays occasioned by witnesses being required to attend with sought-after documents in the midst of the hearing.

[emphasis added]

[37] Aside from the words of the ATA, the BCNU did not cite any authority for its interpretation of s. 34(3)(b), and does not cite or address Metcalfe.

[38] I agree with the analysis in Metcalfe, and will apply the standard of arguable relevance to my assessment of the disclosure issues raised in this application. It is the Respondents’ burden on this application to demonstrate how the documents they seek from the BCNU are arguably relevant to an issue in dispute in the complaint, and how disclosure of the documents will further the just and timely resolution of the complaint, including, if necessary, by addressing issues of proportionality.

[39] Also relevant to this application is section 27.2(2) of the Code, which limits the jurisdiction of the Tribunal to admit into evidence anything that is inadmissible in a court because of a privilege under the law of evidence.

Analysis

(i) Are the documents sought arguably relevant?

[40] This application was brought in the context of RR calling PG as a witness. The Respondents say they need disclosure to allow them to know what evidence PG might give at the hearing, and to test that evidence through cross-examination. However, the Respondents’ request for “all documents in BCNU’s possession with respect to the events underlying the complaint of discrimination that has been accepted by the Tribunal” is very broad, and does not specify documentation in relation to evidence PG may give at the hearing.

[41] For the Respondents to be able to demonstrate that a specific document or class of documents is arguably relevant to an issue in dispute between the parties, their request must necessarily have a degree of specificity. More than a broad statement that the BCNU may have documents that may be relevant to issues in the complaint before the Tribunal is necessary. I disagree with the Respondents that simply by calling PG, RR has made the content of all communications or documents in the BCNU’s possession that may relate to the events underlying the complaint of discrimination arguably relevant. In my view, the question of arguable relevance relates to PG’s testimony about issues in dispute between the parties.

[42] As such, I must first identify what I understand to be the subject matter of PG’s testimony.

[43] I begin with the will-say statement provided by RR. The will-say statement provides as follows:

[RR] has worked with [PG] since 2012, and [PG] worked with [RR] during 2017, when the events that gave rise to this complaint took place. [PG] is being called to testify about her role as [RR’s] Union representative, and, in particular, all of the harassment [RR] experienced and how [RR] struggled during this time period. [PG] will be able to speak about events that occurred between 2017-2021.

[44] PG has also provided an affidavit. In it, PG describes herself as a Regional Council Member and Steward for the BCNU. It appears from the affidavit that her dealings with RR were somewhat limited. Among other things, PG explains in her affidavit that:

a. There was a full-time BCNU steward assigned to RR’s work area (para. 4). PG was not the full-time steward assigned to RR’s work area.

b. PG provided coverage to the BCNU steward assigned to RR’s work area “from time to time” from 2017 to 2019, and in that capacity, provided assistance to RR, including in various meetings with FHA (para. 14). This included participating in meetings with FHA and RR in 2017 regarding complaints RR had made to FHA about alleged bullying and harassment in the workplace (paras. 15 and 27), and regarding “practice issues” on the unit where RR worked (para. 17).

c. PG understands that RR took a medical leave as a result of the alleged bullying and harassment in the workplace, and PG can provide her own personal observations regarding the impact of the alleged bullying and harassment on RR (para. 38).

d. PG is “not aware of FHA having engaged in any accommodation of the [RR]’s vision issues”, and it is PG’s “understanding that FHA would have its own records of any steps taken to accommodate [RR].” (para. 31).

[45] Based on the above will-say statement and affidavit, I understand the subject matter of PG’s testimony to be her dealings with FHA regarding RR’s allegations of bullying and harassment, her own observations about the impact of the alleged bullying and harassment on RR, and her dealings with FHA and RR regarding issues with RR’s nursing practice.

[46] I now consider whether the subject matter of PG’s testimony relates to the issues in dispute between the parties in the complaint.

[47] As noted above, broadly speaking, the complaint advances two allegations: (1) the Respondents bullied and harassed RR, at least in part, due to her physical disabilities; and (2) the Respondents failed to reasonably accommodate RR’s vision impairment. The key issues in dispute are whether RR suffers from disabilities within the meaning of the Code , whether there is a connection between her alleged disabilities and the adverse treatment she alleges she was subjected to by the Respondents, and whether Respondents accommodated her vision impairment to the point of undue hardship.

[48] Beginning with the second allegation (that the Respondents failed to reasonably accommodate RR’s vision impairment), I am satisfied that the subject matter of PG’s testimony will likely relate to this allegation. In their Complaint Response the Respondents say they met any duty they had to accommodate RR’s physical disabilities to the point of undue hardship. However, they do not particularize this general assertion. There is no reference to the BCNU’s participation in any accommodation process in the Complaint Response. Similarly, RR’s Complaint does not allege or suggest that the BCNU was involved in the issue of accommodating her vision impairment. However, based on the will-say statement and PG’s affidavit, it appears that PG will speak about her role, at least from time to time, representing RR as a steward, which may well involve issues relating to RR’s vision impairment. PG’s affidavit indicates that she is not aware of FHA having engaged in any accommodation of RR’s vision issues, but that is not the same as saying that she was not involved in discussions relating to RR’s vision issues with FHA during the relevant period. Such discussions may be relevant to the allegation that FHA failed to accommodate RR’s vision impairment. Further, PG’s affidavit indicates that she did meet with FHA to discuss issues with RR’s nursing practice, which meetings may be relevant to the issue of whether the Respondents met any duty they had to accommodate RR to the point of undue hardship.

[49] Based on my review of the materials, I am satisfied that the subject matter of PG’s proposed testimony includes meetings with FHA regarding FHA’s concerns with RR’s nursing practice, and/or potentially regarding RR’s vision issues. I am also satisfied that such testimony may relate to the question of whether FHA accommodated RR’s alleged vision impairment to the point of undue hardship, which is an issue in dispute in this complaint. As such, any documents in BCNU’s possession and control regarding PG’s involvement in meetings with FHA regarding RR’s vision issues or FHA’s concerns with RR’s nursing practice, are arguably relevant.

[50] Turning to the allegations regarding discriminatory bullying and harassment, I am satisfied the subject matter of PG’s proposed testimony will relate to the issues in dispute between the parties in the Complaint. The Complaint alleges that RR was subjected to bullying and harassment by the Respondents in connection with her physical disabilities, and that when she raised these issues with FHA their response was further bullying and harassment. I understand the issues in dispute between the parties on this allegation to include whether the Respondents’ bullied and harassed RR[1], whether the bullying and harassment was connected to her physical disabilities, and how the bullying and harassment impacted RR. From the will-say statement and PG’s affidavit, I understand the subject matter of PG’s evidence will include evidence about how the alleged bullying and harassment impacted RR. I understand it will also include evidence about bullying and harassment in RR’s work area generally, how FHA dealt with workplace culture in the work area generally, and how the Respondents treated RR specifically, including their handling of her workplace complaints about alleged bullying and harassment. As noted above, PG attended meetings with FHA regarding RR’s concerns about bullying and harassment, and is expected to give evidence about that at the hearing.

[51] For the reasons set out above, I am satisfied that PG’s testimony will likely pertain to at least two issues in dispute between the parties: (1) whether the Respondents bullied and harassed RR; and (2) the impact of the alleged bullying and harassment on RR. As such, I am satisfied that any documents in BCNU’s possession and control regarding PG’s involvement in meetings with FHA regarding allegations of bullying and harassment, and PG’s knowledge of the impact of the alleged bullying and harassment on RR, are arguably relevant.

[52] Based on my above findings, the Respondents’ demand for production of “all documents in BCNU’s possession with respect to the events underlying the complaint of discrimination that has been accepted by the Tribunal” is broader than documents which are arguably relevant in connection with PG’s testimony at the hearing. As such, I decline to order disclosure of documents outside of the scope of arguably relevant documents I have described above.

[53] The next question I must consider is whether disclosure of these arguably relevant documents is necessary to facilitate the just and timely resolution of the complaint.

(ii) Would disclosure facilitate the just and timely resolution of the complaint?

[54] I am satisfied that it would facilitate the just and timely resolution of the complaint to order the disclosure of documents which are arguably relevant to PG’s testimony at the hearing. I am satisfied that ordering limited disclosure of materials which the BCNU can redact for privilege, is an outcome that balances hearing fairness, with concerns about timeliness, efficiency, and proportionality.

[55] I begin with the fairness issues raised by the Respondents.

[56] I agree with the Respondents that fairness is engaged in this case, where RR is calling a witness the scope of whose evidence the Respondents have questions about. This is especially the case considering the arguably relevant documents, to the extent any exist, may assist the Respondents in testing PG’s evidence in cross-examination.

[57] I note that the Respondents have the benefit of PG’s will-say statement and PG has provided an affidavit setting out the evidence she expects to give at the hearing.

[58] I note further, as the BCNU points out (and the Respondents do not deny), the Respondents would have notes of any other relevant meetings between them and RR, or them and PG or other members of the BCNU in relation to RR, with respect to these issues during the relevant time period. This material will also assist the Respondents in testing PG’s evidence on cross-examination.

[59] Taking these materials together with the disclosure I have set out above, I am satisfied this is sufficient to address the Respondents concerns about procedural fairness regarding cross-examination of PG.

[60] I now turn to the timely resolution of the complaint.

[61] The BCNU’s submissions raise an issue of whether disclosure would facilitate the timely resolution of the complaint, or whether disclosure would delay it.

[62] I am satisfied that limited disclosure of arguably relevant documents that I have set out in this decision will facilitate the timely resolution of the complaint.

[63] The BCNU has explained that it has at least 18 separate files in relation to RR that it would have to review in detail to look for documents which would be relevant. The BCNU has also set out that any records identified as relevant would require further review for claims of privilege. With respect to the Respondents’ broad request for “all documents in BCNU’s possession with respect to the events underlying the complaint of discrimination”, the BCNU has submitted that the location of potentially relevant documents in the 18 files and the review of those documents for privilege would be unduly onerous and resource consuming.

[64] However, I have no submissions or evidence from the BCNU about the time and effort required to identify and disclose the far narrower classes of documents that I have ordered disclosed. In my decision I have limited to the scope of documents to be disclosed from what the Respondents have sought. I expect this will substantially reduce the time and resources required by the BCNU to locate and review any such documents. Given the detail provided in PG’s affidavit, I infer that some of this work may have already been done by the BCNU, in order to prepare the affidavit. As such, I am satisfied that ordering disclosure will not compromise the timely resolution of the complaint.

(iii) Next steps and process for addressing claims of privilege

[65] The next issue is what the process should be used for next steps and addressing claims of privilege by the BCNU (if necessary).

[66] I do not agree that the Respondents’ proposed manner of dealing with issues of privilege claimed by the BCNU will facilitate the just and timely resolution of the complaint.

[67] As a means of dealing with the BCNU’s various claims of privilege, the Respondents propose that the BCNU deliver all documents over which privilege is claimed to the Tribunal so that the Tribunal can review them and consider the various claims of privilege. The Respondents then suggest that the Tribunal invite further submissions on, presumably, whether privilege applies, has been waived, and/or whether the documents should be disclosed. All of which would have to be completed within approximately four weeks in order to preserve the July hearing dates.

[68] This is not a workable proposal, for both practical and legal reasons. Practically, the Tribunal does not have the capacity to undertake the kind of review proposed by the Respondents in the circumstances or at this stage of the complaint. Legally, the Tribunal does not have the authority to order parties to produce documents subject to a claim of either solicitor-client or litigation privilege, for inspection by the Tribunal: Canada (Privacy Commissioner) v. Blood Tribe Department of Health , 2008 SCC 44; Lizotte v. Aviva Insurance Co. of Canada,2016 SCC 52. As I understand it, the BCNU claims both solicitor-client and litigation privilege (among other privileges) over many of the documents in relation to RR, and opposes producing any such documents.

[69] Instead, the next step will be for the BCNU to produce to the parties the documents I have found to be arguably relevant. If the BCNU claims privilege over any of these documents, for each document the BCNU must describe the document, identify the category of privilege(s) claimed, and explain the basis for the claim of privilege. If, after reviewing and receiving this information the Respondents or RR take issue with any of the claims for privilege, the Respondents or RR can provide submissions on this point, and the BCNU will have an opportunity to reply. Below I set out timelines for each of these next steps. I acknowledge that these timelines are shorter than what the Tribunal’s Rules would normally provide for, however I have set them in the context of the hearing dates being a month away.

[70] In my view this is the fair and reasonable way forward. I do not have sufficient information before me on which I could adjudicate any disputed privilege claims between the parties.

[71] Without making a finding on whether privilege attaches to any of the requested documents, I observe that it is trite law that there is a strong public interest in maintaining confidentiality of internal union communications, including communication between a union member and their union: Vetro v. Klassen and Pacific Transit Cooperative (No. 2) , 2005 BCHRT 263, at para. 65; Worobec v. University of British Columbia (No. 2) , 2010 BCHRT 47, at para. 69. This is especially the case in the present situation, where there are outstanding labour relations matters between the BCNU and the Respondent in relation to RR.

[72] The context of this complaint has made this disclosure application difficult to resolve. The complaint has now been before the Tribunal for six and a half years, and the parties are practically at the eve of hearing, but the Respondents have raised legitimate questions about disclosure. The hearing of this complaint has already been adjourned once, and the Tribunal’s hearing dates are limited. If the hearing, which is scheduled for 10 days, must be rescheduled, it is likely the complaint could not be heard until late 2025 at the earliest. If the hearing is delayed for another year or more, both parties will experience significant prejudice from the further passage of time, fading of witness memories, and continued expenditure of resources to pursue or defend the complaint.

[73] In the context of this application, there is a conflict between issues of fairness, and issues of proportionality, efficiency, and timeliness. To best balance these competing interests, I have determined that the BCNU, a non-party to this complaint, must expend some time and resources in reviewing its files for the limited scope of the arguably relevant documents I have identified above, appropriately redact those documents for privilege, and disclose them to the parties. I have also determined that the Respondents will not have the benefit of the Tribunal’s review of the BCNU’s various claims of privilege in the manner that they have proposed. Though it may be imperfect, this option reflects what is necessary for the just and timely resolution of this complaint.

IV CONCLUSION

[74] For the above reasons, I grant the Respondents’ application in part. I order the following:

a. By no later than Friday July 5, 2024, the BCNU must disclose the following documents to the Respondents and to RR:

i. any documents in BCNU’s possession and control regarding PG’s involvement in meetings with FHA regarding RR’s vision issues and FHA’s concerns with RR’s nursing practice, and

ii. any documents in BCNU’s possession and control regarding PG’s involvement in meetings with FHA regarding allegations of bullying and harassment, and PG’s knowledge of the impact of the alleged bullying and harassment on RR.

b. If the BCNU claims privilege over any of these documents, or portions of documents, in each instance the BCNU must:

i. identify the privilege(s) claimed, and

ii. provide a description of the document, or portion of the document, which gives sufficient information for the Tribunal and the parties to understand what the document is and the basis for the claim of privilege.

c. If the Respondents or RR take issue with any of the claims of privilege, they will have until no later than 4:30 pm on July 10, 2024 , to provide submissions to the Tribunal. Thereafter, the BCNU will have until no later than 4:30 pm on July 15, 2024 to provide a reply. Because of the proximity of the hearing dates, these are firm deadlines.

[75] For clarity, and recognizing that circumstances may change, if at the hearing RR or PG reference, or seek to introduce, documents in the possession of the BCNU which are outside the scope of the documents I have ordered the BCNU to disclose in this decision, then the Respondents may object. Similarly, if at the hearing, RR or PG seek to expand the scope of PG’s testimony, the Respondents will be free to object.

Shannon Beckett

Tribunal Member