Meza v. Capilano University and another, 2024 BCHRT 329
Date Issued: November 20, 2024
File(s): CS-003767
Indexed as: Meza v. Capilano University and another, 2024 BCHRT 329
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:
Jose (Josema) Manuel Zamorano Meza
COMPLAINANT
AND:
Capilano University and Capilano Faculty Association
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO LIMIT DISCLOSURE
Rule 20.2
Tribunal Member: Jonathan Chapnick
Counsel for the Complainant: Alison Moore
Counsel for Capilano University: Sabrina Anis
Counsel for Capilano Faculty Association: James Baugh
I INTRODUCTION
[1] This decision is about document disclosure in Jose (Josema) Manuel Zamorano Meza’s human rights complaint against Capilano University [ University ] and the Capilano Faculty Association [ Union ]. Mr. Zamorano Meza is an employee at the University and a member of the Union. He has taught courses in the Spanish language and Interdisciplinary Studies. The terms and conditions of his employment are set out in a collective agreement between the Respondents.
[2] Under Rules 20 and 20.2 of the Tribunal’s Rules of Practice and Procedure [ Rules ], Mr. Zamorano Meza must disclose documents to the University and the Union [collectively, Respondents ] that are arguably relevant to his complaint. To meet this requirement, he says he wants to disclose copies of seven documents that are in his possession. The Union already has these documents and does not want Mr. Zamorano Meza to disclose them to the University. It applies under Rule 20.2(4) to limit disclosure of the documents. It argues that the documents are privileged because they are “internal Union communications … regarding labour relations matters at the University” and/or communications that “form part of a without prejudice mediation process.” As a result, it says the documents are inadmissible in these complaint proceedings under s. 27.2 of the Human Rights Code and the Tribunal should order that they not be disclosed to the University.
[3] For the reasons that follow, I am not persuaded to make the requested order. The Union’s application to limit disclosure of Mr. Zamorano Meza’s seven documents is denied.
II BACKGROUND
[4] The following information is drawn from the parties’ submissions in this application, as well as from the materials provided with, and referenced in, those submissions. It is set out here as background, not as findings of fact. It is not meant to be an exhaustive summary of all the information before me.
[5] Mr. Zamorano Meza originally filed his complaint against the University on April 9, 2021. He subsequently applied to add the Union as a respondent to the complaint. In a letter decision on August 25, 2022, the Tribunal granted his application to add the Union [ Letter Decision ]. The original complaint was later amended by Mr. Zamorano Meza on October 31, 2023, to add further particulars and allegations. The complaint alleges discrimination in Mr. Zamorano Meza’s employment and his union membership based on race, colour, ancestry, and place of origin under ss. 13 and 14 of the Code .
[6] Mr. Zamorano Meza filed a second complaint against the Union and its president on August 16, 2023, alleging retaliation [ Union Retaliation Complaint ]. He then applied to join his two complaints; however, the Tribunal denied his application in Zamorano Meza v. Capilano Faculty Association and another , 2024 BCHRT 101 [ Joinder Decision ]. The Union Retaliation Complaint is not before me.
[7] On February 2, 2024, Mr. Zamorano Meza filed a Form 9.1 with a list of 35 documents that he says may be relevant to his complaint. On April 26, he filed another Form 9.1, with a supplementary list of 15 other documents.
[8] On May 16, Mr. Zamorano Meza filed an additional Form 9.1, with a second supplementary list of 63 more documents. In his materials, he noted that he understood the Union to be claiming privilege over all 63 documents. The second supplementary list includes the seven documents at issue in this application. I will refer to them as the “ Seven Documents .”
[9] On June 27, the Union confirmed to Mr. Zamorano Meza that it was claiming privilege over all the documents on the second supplementary list, subject to certain exceptions. On July 24, Mr. Zamorano Meza told the Union that he wanted to disclose the Seven Documents to the University. Later that day, he informed the Tribunal that the Union was claiming privilege over the documents he wished to disclose. On July 31, I invited the Union to apply to the Tribunal if it wanted to limit Mr. Zamorano Meza’s document disclosure.
[10] The Union filed its application on August 23, identifying the Seven Documents and seeking an order prohibiting Mr. Zamorano Meza from disclosing them to the University. A submissions process followed, during which Mr. Zamorano Meza requested permission to file an extra submission. The University took no position regarding Mr. Zamorano Meza’s request. The Union did not express a position regarding the request, but provided a substantive response to Mr. Zamorano Meza’s extra submission. Under these circumstances, I have considered Mr. Zamorano Meza’s extra submission, the Union’s response, and Mr. Zamorano Meza’s final reply.
[11] In their written submissions regarding the Union’s application, both Mr. Zamorano Meza and the Union invited me to review the Seven Documents. After receiving the parties’ submissions, I ordered the Union to disclose the Seven Documents to the Tribunal for my review. The Union did so, while also sending additional documents, which I did not request and which I have not found it necessary to consider.
III DECISION
[12] The Union claims privilege over the Seven Documents and applies for an order under Rule 20.2(4) prohibiting Mr. Zamorano Meza from disclosing them to the University. The University takes no position on the Union’s application. Mr. Zamorano Meza opposes it.
[13] I will address each of the Seven Documents in turn.
A. Document #52
[14] The first document at issue is listed as document number 52 on Mr. Zamorano Meza’s second supplementary list [ Document #52 ]. It is six pages, one of which is mostly redacted. Document #52 is an email exchange between Mr. Zamorano Meza and the Union’s chief steward [ Chief Steward ]. Three members of the Union’s executive board are copied on the exchange. In the email exchange, Mr. Zamorano Meza seeks advice regarding his rights under the collective agreement.
[15] The Union says Mr. Zamorano Meza should not be permitted to disclose Document #52 to the University. It makes three arguments in support of its position. Its first argument relates to the doctrines of issue estoppel, collateral attack, and abuse of process. Its second argument asserts that the document is privileged. The Union’s third argument, in its reply, responds to Mr. Zamorano Meza’s stated intention to rely on Document #52 “to advance his allegation of systemic discrimination.” I will explain and address each argument in turn.
1. Issue estoppel, collateral attack, and abuse of process
[16] The Union argues that the Joinder Decision of the Tribunal “gives rise to issue estoppel” related to the question of disclosure of several of the Seven Documents, including Document #52. It asserts that the Tribunal already determined, in the Joinder Decision, “that the Union’s internal communications are protected by labour relations privilege and that the Union’s internal communications should not be disclosed to the University.” It asserts that Mr. Zamorano Meza’s attempt to use internal union communications in his complaint is a collateral attack on the Joinder Decision and an abuse of process.
[17] I see no basis in the Joinder Decision for the Union’s assertions. In the Joinder Decision, the Tribunal determined that it would not be fair and reasonable to join this complaint and the Union Retaliation Complaint. In making its decision, the Tribunal distinguished between the different parties, allegations, and time periods involved in each complaint, observing that the Union Retaliation Complaint relates to a later time period and focuses exclusively on the conduct of the Union and its president in the context of internal Union business during that later time period. Given these differences, the Tribunal accepted the Union’s argument that joining the complaints would result in the University becoming privy to information about internal Union business that would not be accessible to it if the complaints were not joined. The Tribunal therefore accepted that joinder would prejudice the Union. It also affirmed that there are strong, labour relations policy reasons why employers do not ordinarily have access to internal union communications. The Tribunal decided that there may be situations where such disclosure is unavoidable; however, the situation before it was not one of them.
[18] The Tribunal made no privilege determinations in the Joinder Decision. It did not decide that the Union’s internal communications should not be disclosed to the University in the present complaint. The Joinder Decision pre-dates Mr. Zamorano Meza’s filing of the second supplementary list of documents, which included the Seven Documents. The Joinder Decision makes no reference to any specific documents, let alone to Document #52 or to other materials within the group of Seven Documents. Mr. Zamorano Meza’s attempt to disclose the Seven Documents in these complaint proceedings under the Tribunal’s Rules is not a challenge to any determination made in the Joinder Decision or any other decision of the Tribunal. It is not a re-litigation of issues previously decided.
[19] There is no issue estoppel here, nor is there a collateral attack or an abuse of process.
2. Labour relations privilege (confidential relationship privilege)
[20] Next, the Union argues that Document #52 is subject to “labour relations privilege” because it consists entirely of internal Union emails regarding labour relations matters.
[21] Concepts of labour relations privilege have evolved over time and may arise in various contexts in unionized workplaces: Vancouver (Regional District) v. Greater Vancouver Regional District Employees’ Union , 2015 CanLII 87692 (BC LA) at p. 41 [ GVRD ]. One specific type of labour relations privilege affords union members “with lay union representation the same type of protection from compulsion of disclosure that is provided to lawyers and their clients”: GVRD at p. 41. This type of labour relations privilege is sometimes referred to, more descriptively, as “confidential relationship privilege”: see Re Centre for Addiction and Mental Health and Ontario Public Service Employees Union , (2004) 133 L.A.C. (4 th ) 178 at p. 186 [ CAMH ]; Gibson v. Labourers’ International Union of North America, Local 247 , 2011 CanLII 19649 (ON LRB) [ Gibson ]; see also S. Michelle Blendell and Jessica L. Burke, “Privilege and Other Grounds for Protecting a Union’s Documents and Communications from Disclosure” (Paper presented to the Continuing Legal Education Society of British Columbia conference, Labour Relations – 2012 , June 2012) [ Blendell and Burke ]. In developing this particular type of labour relations privilege, decision-makers have recognized that, in unionized workplaces, employees are often assisted by stewards and other union representatives who are not lawyers: see, e.g., British Columbia (Ministry of Transportation & Highways) and B.C.G.E.U., Loc. 1103, Re , (1990) 13 L.A.C. (4 th ) 190 at pp. 196-197 [ Transportation & Highways ]; CAMH at p. 188; GVRD at p. 41.
[22] Unlike the confidential communications between a lawyer and their client, there is no general presumption of privilege over confidential relationship-type labour relations communications: School District No. 65 (Cowichan) and Cowichan (District) Teachers’ Assn., Re , (1996) 54 L.A.C. (4 th ) 378 at p. 385 [ Cowichan School District ]; CAMH at pp. 186-188; Klewchuk v. City of Burnaby (No. 2) , 2019 BCHRT 32 at para. 13; see also Government of the Province of British Columbia v. British Columbia Crown Counsel Association , 2019 CanLII 51802 (BC LA) at para. 106 [ Crown Counsel ]. Confidential relationship privilege – and other types of labour relations privilege – may only be established, on a case-by-case basis, if four requirements, commonly known as the “Wigmore criteria,” are met: Klewchuk at para. 13; see, e.g., Transportation & Highways at pp. 194-195; CAMH at pp. 186-187; Cowichan School District at p. 385; Crown Counsel at paras. 139-140; International Union of Elevator Constructors, Local 50 v. OTIS Canada Inc. , 2020 CanLII 76161 (ON LRB) at paras. 12-13; BC General Employees’ Union v. BC Safety Authority , 2023 CanLII 19177 (BC LA); see generally Adam Beatty, David M. Beatty & Donald J.M. Brown, Canadian Labour Arbitration , 5 th ed., looseleaf (Toronto: Carswell, 2021) at 3:4340 [ Canadian Labour Arbitration ].
[23] The four Wigmore criteria are as follows:
a. The communications must originate in a confidence that they would not be disclosed;
b. The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties to the communications;
c. The relationship must be one that, in the opinion of the community, has to be “sedulously” (i.e., carefully and diligently) fostered; and
d. The harm caused to the relationship by the disclosure of the communications must be greater than the benefit that would be gained in terms of the correct disposal of the litigation: Klewchuk at para. 13.
[24] These four requirements “operate to allow narrow exemptions to the general rule that all relevant evidence should be brought to light so that ‘truth may be ascertained’”: Klewchuk at para. 14, citing AM v. Ryan , [1997] SCR 157 at para. 19 [ Ryan ]; R. v. National Post , 2010 SCC 16 at para. 1 [ National Post ]; Canada Safeway Ltd . v. UFCWU Local 1518 (Robert Skirzyk Remedy Grievance) , unreported, October 18, 2011 (McPhillips) at p. 11. In each case, the decision-maker must “weigh the interests served by protecting the communications from disclosure against the ‘interest of pursuing the truth and disposing correctly of the litigation’”: Klewchuk at para. 15, citing Ryan at para. 29.
[25] The Union claims a confidential relationship-type labour relations privilege over Document #52. It describes Document #52 as an email chain with the Chief Steward in which Mr. Zamorano Meza sought her advice about his rights under the collective agreement. It argues that, in Vetro v. Klassen and Pacific Transit Cooperative (No. 2) , 2005 BCHRT 263, the Tribunal held that communications between a union member and his shop steward regarding his rights under the collective agreement are presumptively given in confidence, and that the element of confidentiality is essential to their relationship, which must be sedulously fostered for the purpose of obtaining labour relations advice. Further, citing Vetro at para. 65, the Union says the onus is on the person seeking disclosure of “labour relations privileged documents” to show there are exceptional circumstances establishing that the benefit of such disclosure is greater than the harm it would cause. The Union says Mr. Zamorano Meza “has not established any ‘exceptional circumstances’ to override the labour relations privilege that attaches to communications between a Union member and his Chief (or Senior) Steward seeking advice regarding his rights under the Collective Agreement.” The Union’s evidence is that it never waived privilege over the email exchange in Document #52, and it argues that “it is only the Union that can waive the privilege attaching to those internal Union communications on labour relations matters when the issue is disclosure to the employer.”
[26] For the following reasons, I am not persuaded by the Union’s arguments.
[27] First, Vetro does not stand for the broad proposition that all communications between a union member and their shop steward are privileged. Whether a specific communication between a union member and their union representative is privileged will always depend on a case-by-case application of the Wigmore criteria: Vetro at para. 62. In Vetro , the Tribunal applied the Wigmore criteria to certain communications between a grievor (Mr. Vetro) and his union representative with respect to a grievance, and concluded that, under the circumstances, the communications were privileged.
[28] I acknowledge that Worobec v. University of British Columbia (No. 2) , 2010 BCHRT 47 at para. 69 puts forward a more expansive interpretation of Vetro ; however, in my view, such an interpretation is not supported in the Vetro decision itself. Regardless, the Tribunal in Vetro is clear that a confidential relationship privilege does not attach presumptively to communications between a union member and their union representative; rather, given the case-by-case nature of the analysis, the communications are presumed not to be privileged: Vetro at para. 56; see Mazur v. B.C. Rail and others (No. 3) , 2006 BCHRT 53 at para. 35. It is up to the party claiming a confidential relationship privilege or other form of labour relations privilege to establish that the conditions for the privilege are met in the circumstances: Vetro at para. 56; see generally Klewchuk .
[29] This brings me to the second reason for rejecting the Union’s arguments. The issue before me is not whether to override a privilege that attaches presumptively to Document #52. Nor is the burden on Mr. Zamorano Meza to put forward “exceptional circumstances” to persuade me to do so. Rather, the onus is on the Union, as the party asserting the case-by-case privilege, to establish that all four of the Wigmore criteria are met: National Post at para. 60.
[30] Third, and most important, the confidential relationship privileged attached to Document #52, if any, does not belong to the Union. This is the determinative reason for my rejection of the Union’s position regarding Document #52 and several other documents discussed below.
[31] The type of labour relations privilege asserted by the Union regarding Document #52 is exclusively Mr. Zamorano Meza’s to waive: CAMH at p. 189; see Re Canada Safeway Ltd. and Retail Clerks Union, Local 1518 , (1984) 21 L.A.C. (3d) 50 at pp. 57-60 [ Canada Safeway ] ; see generally Blendell and Burke. As the union argued in Canada Safeway , the privilege attached to confidential conversations between shop steward and union member “cannot be waived by the shop steward”: p. 57. It would undermine their relationship if the steward could be compelled to disclose evidence regarding these types of conversations: see pp. 58-59.
[32] The arbitrator in Canada Safeway was persuaded by the union’s arguments in that case, as am I. The arbitrator found that a union member should be able to expect that conversations with their shop steward are confidential in nature and will not be disclosed by the shop steward to the employer: p. 60. In other words, where a confidential relationship privilege attaches to communications between an employee and their union representative, it is for the benefit of the employee, just as solicitor-client privilege is for the benefit of the client: Gibson at para. 15. It is the employee’s right to waive any such privilege: CAMH at p. 189; Gibson at para. 15; see Blendell and Burke at pp. 2.1.5-2.1.6 and 2.1.9-2.1.10; see also Vetro at paras. 77-80.
[33] I do not agree with the Union’s interpretation of CAMH as holding that an employee’s waiver can only happen in a duty of fair representation [ DFR ] case against their union. The arbitrator in that case clearly affirmed that it was the employee’s right to waive any privilege that may attach under the Wigmore criteria: p. 189. The example the arbitrator provided regarding DFR complaints does not restrict the application of the general principle he stated.
[34] I also do not agree with the Union’s submission that, where a union is a respondent in a human rights complaint, and therefore in an adversarial relationship with their member who is the complainant, the “normal rule that there can be no unilateral waiver of privilege should apply.” In support of this argument, the Union cites Stancor Enterprises Ltd. v. Fiorvento , 2022 BCSC 1842 at para. 94. The Court in Stancor Enterprises , however, did not set out any “normal rule” applicable to the type of privilege asserted by the Union regarding Document #52. Rather, that case dealt exclusively with “settlement privilege,” which is different from the confidential relationship-type labour relations privilege claimed by the Union over Document #52.
[35] Settlement privilege is a “class” or “blanket” privilege (as opposed to a case-by-case privilege) “that arises from settlement negotiations and protects the class of communications exchanged in the course of that endeavour”: Stancor Enterprises at para. 90, citing Sable Offshore Energy Inc. v. Ameron International Corp. , 2013 SCC 37 at paras. 12 and 16. Given the nature of that specific type of class privilege, it belongs to both parties to the negotiations together and cannot be unilaterally waived: Stancor Enterprises at para. 94; see generally Canadian Labour Arbitration at 3:4340. I will return to the concept of settlement privilege later in this decision.
[36] Finally, I acknowledge the Tribunal’s decision in Gardiner v. B.C. (Ministry of Public Safety and Solicitor General) and others , 2007 BCHRT 306, which the Union cited in support of its position regarding waiver. Gardiner was an interim decision regarding the admissibility of documents at a hearing. The self-represented complainant, Mr. Gardiner, was a unionized employee who alleged discrimination by his employer and certain colleagues. Mr. Gardiner put forward his union’s in-house lawyer as a one of his proposed witnesses for the hearing. At the hearing, the union lawyer, who was not a party to the complaint, asserted various types of privilege over some of Mr. Gardiner’s documentary evidence, and sought an order to exclude the documents from the hearing.
[37] The Tribunal member in Gardiner found that solicitor-client privilege applied to communications between the union lawyer and union staff and officials concerning Mr. Gardiner’s ongoing dispute with his employer: para. 38. The Tribunal member also found that a privilege attached to “any communications concerning settlement discussions” involving the union lawyer, union staff and officials, Mr. Gardiner, or his employer: para. 38.
[38] The privileges claimed by the union lawyer in Gardiner also included “privilege under the Wigmore criteria” regarding his communications with union staff and officials related to “any grievances or complaints and any advice Mr. Gardiner sought or received in connection with his rights under the collective agreement”: para. 14. Citing Vetro , the Tribunal member accepted that “Wigmore privilege” applied to the communications between Mr. Gardiner and the union lawyer and other union staff and officials, concerning his ongoing dispute with the respondents: para. 39. In addition, the Tribunal member decided that “litigation privilege” also applied to these communications: para. 40. The Tribunal member defined litigation privilege as applying to “communications between a lawyer and a third person, if, at the time of the making of the communication, litigation was commenced or anticipated, and the dominant purpose of the communication was for use in, or advice on, the litigation”: para. 40. He said the application of this type of privilege was not restricted to lawyers, but also covered union staff and officials. The Tribunal member decided that litigation privilege applied to the communications because, throughout Mr. Gardiner’s relevant dealings with the union, “the information obtained and being exchanged by him and the [union] was done in contemplation of, or pursuant to, the grievance and arbitration process”: para. 40.
[39] In the end, the Tribunal member In Gardiner found that all of the documents identified by the union lawyer were privileged: para. 43. In an appendix to his decision, the Tribunal member provided a table listing the type of privilege that attached to each document. He categorized each document as being covered by either (1) solicitor-client privilege, or (2) settlement privilege, or (3) “Wigmore and Litigation Privilege”: see para. 42 and Appendix 1, pp. 15-24. He then concluded that, since the union lawyer and the union had not waived privilege (except in respect of an excerpt from one document), “all documentation that is subject to privilege is inadmissible”: para. 44.
[40] The Union suggests that the situation in Gardiner was somewhat similar to the matter before me, and asserts that, in that case, the “complainant was not permitted to unilaterally waive the privilege attaching to the documents subject to union labour relations privilege.”
[41] I do not find Gardiner helpful to my assessment of the Union’s application. The relevant portion (paras. 38-44) of the Tribunal member’s decision in that case is unclear and unpersuasive. The Tribunal member discussed various distinct class and case-by-case privileges (solicitor-client privilege, settlement privilege, confidential relationship privilege, and litigation privilege) and, for the entire group, effectively assigned universal waiver rights to the union and the union lawyer. He provided no reasons or case authorities on the specific issue of waiver of a case-by-case, confidential relationship-type labour relations privilege. In contrast, in his earlier discussion of waiver in the context of solicitor-client privilege as between a union’s legal counsel and a grievor, he cited case law in support of his clear and express finding that “it is the union that holds the privilege, and it is the union’s to waive”: para. 35. As far as I can tell – and the parties have not submitted otherwise – Gardiner has not been discussed or followed in any decisions of this Tribunal since it was issued over 15 years ago. Insofar as the Tribunal member in Gardiner determined that an employee does not have exclusive waiver rights over the confidential relationship privilege that may attach to their communications with their union steward or lay representative, I disagree with his determination and decline to follow it based on my review of the relevant authorities.
[42] I therefore find that I can decide the Union’s application to limit disclosure of Document #52 without determining whether the asserted labour relations privilege attaches to it. Accepting for the purposes of this decision that Document #52 is privileged under the Wigmore criteria, I find that the privilege is Mr. Zamorano Meza’s to waive. Given that he is represented by legal counsel, I am satisfied that, in opposing the Union’s application to prohibit disclosure of Document #52 to the University, Mr. Zamorano Meza has voluntarily evinced an intention to waive any privilege over Document #52 in these complaint proceedings. His “actions speak for themselves”: see Lawlor v. PHSA and another , 2019 BCHRT 186 at paras. 28-30.
[43] For the above reasons, I am not persuaded that it is reasonable and fair in the circumstances to limit Mr. Zamorano Meza’s disclosure of Document #52 based on the Union’s claim of a confidential relationship-type labour relations privilege.
3. Systemic discrimination allegation
[44] The Union’s third argument in favour of an order limiting disclosure of Document #52 relates to Mr. Zamorano Meza’s stated intention to rely on Document #52 to advance an allegation of systemic discrimination. The Union argues that, in the Letter Decision, the Tribunal held that allegations of systemic discrimination did not properly form part of Mr. Zamorano Meza’s individual complaint. Therefore, the Union says, “there is no justification for overriding the privilege that attaches” to Document #52. Further, the Union argues that the Tribunal’s holding regarding systemic discrimination was central to its determination about the scope of the complaint. It says Mr. Zamorano Meza “should not be permitted to resurrect any claims regarding systemic discrimination against the [Union] under the guise of attempting to use privileged documents as against the University.” The Union says Mr. Zamorano Meza never tried to have the Letter Decision set aside. It argues that his “attempt to resurrect any complaints of systemic discrimination against the [Union] constitutes a collateral attack on the [Letter Decision], and an abuse of process.”
[45] Somewhat similarly, the University argues that it “is not in the interests of justice to consider” Mr. Zamorano Meza’s allegation of systemic discrimination because “a decision has already been made that the Complaint is an individual complaint and not a complaint of systemic discrimination.”
[46] The Union makes no submissions regarding the arguable relevance of Document #52 to Mr. Zamorano Meza’s allegation of systemic discrimination. The University also takes no position regarding the relevance of Document #52 or the other documents at issue, except to argue that, if Mr. Zamorano Meza’s documents “are only relevant to a claim of systemic discrimination, they are not arguably relevant” to his complaint.
[47] For his part, Mr. Zamorano Meza asserts that the comments in the Letter Decision regarding systemic discrimination were obiter dicta and “are in conflict with binding jurisprudence regarding systemic discrimination in the context of an individual complaint.” I do not agree with these assertions. At the same time, for the following reasons, I am not persuaded to limit Mr. Zamorano Meza’s disclosure of Document #52 on the basis of the Respondents’ arguments.
[48] First, I have already decided that Mr. Zamorano Meza does not need to justify overriding the labour relations privilege claimed by the Union. Any such privilege belonged to Mr. Zamorano Meza and has been waived through his actions in response to the Union’s application.
[49] Second, I do not agree with the Respondents’ interpretation of the Letter Decision.
[50] The Letter Decision was about whether to add the Union as a respondent to Mr. Zamorano Meza’s complaint. In making the Letter Decision, the Tribunal member commented on the scope and nature of the original complaint. In the original complaint, Mr. Zamorano Meza had stated that “Capilano University as [an] institution (Human Resources, members of the faculty, the Interdisciplinary Studies program, the Capilano Faculty Association or Union) has repeatedly made me feel discriminated [against], bullied, and diminished as a person and a professional academic.” He stated in the complaint that he is “a Mexican Mestizo immigrant, a minority within the faculty.“ He alleged that he has been “abusively put down in [his] access to a stable workload as regular faculty in [his] field of specialization,” and he said he believes “this is due to systemic discrimination in this institution.” He further alleged that he has “been repeatedly ignored, minimized, and deceived by Human Resources and by the Union.” He said he believed this was connected to the fact that he is “a minority,” and stated that the “systemic structures in place at the institution … barely allow any diversity across a faculty of over 600 professors.” Elsewhere in the complaint, he said he had “suffered a militant white-supremacist environment at this institution,” which “more often than not … only appears as systemic, rather than direct, racism.”
[51] In the Letter Decision, the Tribunal member made two key observations regarding Mr. Zamorano Meza’s allegation of systemic discrimination. First, she observed that Mr. Zamorano Meza had filed an individual complaint using a Form 1.1, as opposed to a group or class complaint of systemic discrimination using a Form 1.3. Second, she commented on whether Mr. Zamorano Meza had alleged “acts of systemic discrimination in his employment under s. 13 of the Code ” (underlining in original), finding that he had not. She remarked that “None of the alleged facts in [the] complaint set out details regarding a group or class of persons who are allegedly being discriminated against” by the Respondents (underlining in original). In light of these observations, she said that she was considering Mr. Zamorano Meza’s application to add the Union as a respondent “in the context of [him] having filed an individual complaint, not a complaint of systemic discrimination.”
[52] I agree with the Tribunal member that Mr. Zamorano Meza filed an individual complaint, which does not allege discrete acts or omissions of systemic discrimination by the Respondents’ against a group or class of persons. However, I do not agree with the University that this means that evidence of alleged systemic discrimination cannot be arguably relevant to the complaint. And I do not agree with the Union that Mr. Zamorano Meza is attempting to resurrect “complaints of systemic discrimination.”
[53] There is only one complaint in these proceedings. It is a complaint that alleges discrimination by the Respondents against Mr. Zamorano Meza . It is not a group or class complaint that alleges discrimination against racialized faculty at the University. However, while the complaint is centered on Mr. Zamorano Meza, it is expressly framed within an allegedly broader context of systemic discrimination at “the institution,” which, as the Tribunal member noted in the Letter Decision, includes both Respondents. Contextual factors alleged, but perhaps not well-particularized, in the complaint include: structures that allow little diversity among faculty members (Complaint at p. 3); the Respondents consistently acting in ways that protect white faculty’s access to work, which has the effect of marginalizing racialized faculty (Amendment at para. 38); the Respondents’ pattern of protecting white faculty’s decisions (Amendment at para. 44); and Indigenous and decolonization themes and perspectives on education not fitting “the status quo in the institution” (Complaint at p. 2). At a hearing, evidence of a broader context of systemic discrimination, including these alleged contextual factors, may support an inference that Mr. Zamorano Meza’s protected characteristics were a factor in the adverse impacts he alleges: Habib v. The Immigrant Services Society of British Columbia and others , 2024 BCHRT 224 at para. 87. The Tribunal may consider systemic evidence to determine whether an individual has experienced discrimination: Moore v. British Columbia (Education) , 2012 SCC 61 at paras. 64-65 and 68.
[54] Evidence disclosed by Mr. Zamorano Meza under the Tribunal’s Rules in relation to “his allegation of systemic discrimination,” as I have described it in this decision, is therefore arguably relevant to the individual complaint of discrimination against him. His allegation of systemic discrimination, as I have described it, is not outside the scope of the individual complaint that the Tribunal member allowed to proceed in the Letter Decision.
[55] For these reasons, I am not satisfied that either the disclosure of Document #52, or Mr. Zamorano Meza’s intention to use it as systemic evidence in support of his individual complaint undermines the interests of justice or runs afoul of any of the legal doctrines referenced in the Union’s reply.
[56] In sum, the Union’s application to limit disclosure of Document #52 is denied.
B. Document #54
[57] The second document at issue is listed as document number 54 on Mr. Zamorano Meza’s second supplementary list [ Document #54 ]. It is seven pages, one of which is partially redacted. Document #54 is made up of emails between Mr. Zamorano Meza and the Chief Steward over a roughly two-month period. Most of the emails are sent by Mr. Zamorano Meza to the Chief Steward, and involve him requesting a meeting and providing information and commentary. In one email exchange, he says he wants to make a discrimination complaint and wishes to talk to the Chief Steward about it, to which she replies with a suggestion that he take a wait-and-see approach before making the complaint.
[58] In his response to the Union’s application, Mr. Zamorano Meza says that he agrees to redact certain parts of one of the emails in Document #54. Specifically, he agrees to redact the portions of his February 25, 2020 email where “there is some discussion that touches on collective bargaining.” Given his agreement to redact the document in this way, I am satisfied it is reasonable and fair to order Mr. Zamorano Meza to do so under Rule 20.2(4).
[59] The Union says Mr. Zamorano Meza should not be permitted to disclose any portion of Document #54 to the University, relying on two of the three arguments discussed above in my analysis of Document #52.
[60] First, the Union argues that the Joinder Decision gives rise to issue estoppel, asserting that the Tribunal has already determined that the Union’s internal communications should not be disclosed to the University. The Union asserts that Mr. Zamorano Meza’s attempt to use internal union communications like Document #54 is a collateral attack on the Joinder Decision and an abuse of process. I have already dealt with this argument and these assertions. I will not address them again.
[61] Second, the Union argues that Document #54 is subject to labour relations privilege because it consists entirely of internal Union emails regarding labour relations matters. The Union describes Document #54 as “email communications between [Mr. Zamorano Meza] and [the Chief Steward] … in her capacity as Chief (or Senior) Steward regarding the same labour relations matters covered in Document No. 52.” It asserts that the “onus is therefore on [Mr. Zamorano Meza] to establish an “exceptional circumstance” that would justify overriding the privilege that attaches to union member – shop steward communications regarding labour relations matters.”
[62] I understand the Union to be claiming the same confidential relationship-type labour relations privilege over Document #54 as it claimed over Document #52. As above, I am not persuaded that it is reasonable and fair in the circumstances to limit Mr. Zamorano Meza’s disclosure of Document #54 based on the Union’s claim of this type of privilege. The issue before me is not whether to override a privilege that attaches presumptively. Nor is the burden on Mr. Zamorano Meza to put forward exceptional circumstances to persuade me to do so. In any event, the privilege claimed by the Union is Mr. Zamorano Meza’s to waive, and I am satisfied that he has waived any such privilege in opposing the Union’s application to prohibit disclosure of Document #54 to the University.
[63] Mr. Zamorano Meza is ordered to redact Document #54 as set out above. The Union’s application to limit disclosure of Document #54 is denied.
C. Document #55
[64] The third document at issue is listed as document number 55 on Mr. Zamorano Meza’s second supplementary list [ Document #55 ]. It is two pages. Mr. Zamorano Meza says Document #55 is a letter that he wrote to the Chief Steward and Union president, in which he describes what happened in a job interview. The Union says Document #55 was part of an email exchange between Mr. Zamorano Meza and the Chief Steward and Union president “regarding the same labour relations issues for which he was seeking and receiving advice from [the Chief Steward] covered in Documents No. 52 and 54.” The Union says the Chief Steward “responded to his email by providing him with labour relations advice.” It claims a confidential relationship-type labour relations privilege over the entire exchange. It says Mr. Zamorano Meza should not be permitted to disclose Document #55 to the University.
[65] Accepting the Union’s description of Document #55, I deny its application to limit disclosure of the document for the same reasons I denied its application regarding Document #54.
D. Document #108
[66] The fourth document at issue is listed as document number 108 on Mr. Zamorano Meza’s second supplementary list [ Document #108 ]. It is three pages. Parts of the first and third pages are redacted. The Union says Document #108, and the three other documents discussed below, form s part of a without prejudice mediation process involving Mr. Zamorano Meza, the Union’s assistant senior steward [ Assistant Senior Steward ], and a faculty member who was a member of the Union and the program coordinator for Interdisciplinary Studies at the University [ Program Coordinator ].
[67] The Assistant Senior Steward says that, in March 2022, Mr. Zamorano Meza contacted him, in his shop steward capacity, regarding issues Mr. Zamorano Meza was having with the hiring process for a position teaching an Interdisciplinary Studies course, “INTS 335.” The Program Coordinator was responsible for overseeing the hiring process. The Assistant Senior Steward says Mr. Zamorano Meza took issue with the Program Coordinator’s participation in the hiring process. He says Mr. Zamorano Meza asked him, as the assistant senior steward, “to act as a mediator/moderator.” The Assistant Senior Steward says Mr. Zamorano Meza and the Program Coordinator “agreed to enter into an informal mediation process to resolve the issues raised by [Mr. Zamorano Meza], with me acting as the mediator.” He says this process “resulted in an informal mediation agreement” between the parties [ Informal Mediation Agreement ]. He says the University “had absolutely no involvement in the mediation process, and was not provided with a copy of the informal mediation agreement.”
[68] The Assistant Senior Steward says he understood – and he believes that Mr. Zamorano Meza understood and agreed – “that the mediation process was without prejudice” because Mr. Zamorano Meza had agreed that its purpose “was to settle or resolve the issues” with the Program Coordinator regarding the hiring process. He says Mr. Zamorano Meza also agreed to keep the mediation and the Informal Mediation Agreement confidential from the University. Mr. Zamorano Meza says he does not recall ever discussing confidentiality with the Assistant Senior Steward.
[69] Mr. Zamorano Meza claims that the Assistant Senior Steward initially proposed an open dialogue with the Program Coordinator, and only later referred to their meetings as a mediation process. The Union disputes Mr. Zamorano Meza’s claim. I do not need to resolve this disagreement. For the purposes of the Union’s application, I do not accept Mr. Zamorano Meza’s claim that it was only “later,” after the Assistant Senior Steward proposed an “open dialogue,” that the Assistant Senior Steward referred to the meetings as a “mediation process.”
[70] Document #108 is a copy of Mr. Zamorano Meza’s meeting notes. It includes a heading, which states: “Notes To Informal Mediation Zoom Meeting with [the Program Coordinator], Moderated by [the Assistant Senior Steward], About My Concerns to Be SAFE WITH [the Program Coordinator] IN THE HIRING OF INTS 335 HIRING COMMITTEE AND NEXT EVENTS” (capitalization in original). The Union says Mr. Zamorano Meza should not be permitted to disclose Document #108 to the University. It argues that Document #108 is subject to “the privilege attaching to settlement discussions” and “labour relations privilege.” I will address these two types of privilege in turn.
1. Settlement privilege
[71] I discussed the privilege attaching to settlement discussions, or “settlement privilege,” above. Sometimes called the “without prejudice rule,” settlement privilege is “a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute”: Union Carbide Canada Inc. v. Bombardier Inc. , 2014 SCC 35 at para. 31. The purpose of settlement privilege is to promote settlement: Sable Offshore Energy at para. 2.
[72] Settlement privilege may apply even in the absence of statutory provisions or contract clauses regarding confidentiality, and parties do not need to use the words “without prejudice” to invoke it: Union Carbide Canada at para. 34. What matters instead “is the intent of the parties to settle the action”: Union Carbide Canada at para. 34, citing Sable Offshore Energy at para. 14. Mediation is one way for parties to attempt to settle a legal dispute: Union Carbide Canada at para. 38.
[73] There are three requirements for establishing settlement privilege over settlement communications and related documents:
a. A litigious dispute must be in existence or within contemplation;
b. The communications must have been made with the express or implied intention that they would not be disclosed to the court (or tribunal) if negotiations (or mediation) failed; and
c. The purpose of the communications was to attempt to effect settlement: Stancor Enterprises at para. 92, citing Abdul-Ahad v. Challa , 2021 BCSC 795 at para. 35; see Gatica and another obo Temporary Foreign Workers from Guatemala v. Golden Eagle Blueberry Farm and others (No. 2) , 2024 BCHRT 82 at para. 13 [ Gatica ].
[74] The burden of establishing settlement privilege based on the above criteria is on the party claiming it: Gatica at para. 13. Where it is established, there is a “presumption of inadmissibility”: Sable Offshore Energy at para. 12. However, the other party may come within exceptions to the privilege by showing that, on balance, “a competing public interest outweighs the public interest in encouraging settlement”: Sable Offshore Energy at para. 19, citing Dos Santos Estate v. Sun Life Assurance Co. of Canada , 2005 BCCA 4 at para. 20.
[75] The Union argues that “all of the communications between [Mr. Zamorano Meza] and [the Assistant Senior Steward], including at the mediation meetings and after, regarding [Mr. Zamorano Meza’s] complaints against [the Program Coordinator] and his rights under the Collective Agreement” are subject to settlement privilege. It argues that Mr. Zamorano Meza “has not provided any principled legal basis for overriding the privilege that attaches to settlement/mediation discussions and agreements.” Despite these arguments, I am not persuaded that Document #108 is covered by settlement privilege.
[76] The burden is on the Union, as the party claiming settlement privilege, to show me that the criteria for establishing the privilege have been met. It has not done so. There is no evidence before me of a litigious dispute between Mr. Zamorano Meza and the Program Coordinator – either in existence or within contemplation. Despite the Union’s use of the word, “complaints,” in its legal submission, there is no evidence that Mr. Zamorano Meza filed or contemplated filing any complaints, grievances, or other claims against the Program Coordinator. Document #108 does not refer to any “complaints,” nor do the other three documents discussed below. And nor does the Assistant Senior Steward in his sworn statement. The Assistant Senior Steward’s evidence is that Mr. Zamorano Meza had “issues” with the Program Coordinator and agreed to try to resolve the issues through an informal mediation process, with the Assistant Senior Steward acting as a mediator/moderator. Even if it is true that the participants discussed keeping these meetings confidential, there is still no evidence or argument before me as to any express or implied intention not to disclose Document #108 or other communications or documents related to these meetings to a court or tribunal if the mediation failed.
[77] For the purposes of this decision, I accept that the aim of the informal mediation process was to settle or resolve the issues between Mr. Zamorano Meza and the Program Coordinator regarding the INTS 335 hiring process. But that is not enough to cloak the communications and documents related to the process with settlement privilege in the Tribunal’s complaint proceedings. There is therefore no presumption of inadmissibility regarding these materials; there is no settlement privilege to override. Mr. Zamorano Meza does not need to show me that Document #108 comes within the exceptions to settlement privilege.
[78] For these reasons, I am not persuaded that it is reasonable and fair in the circumstances to limit Mr. Zamorano Meza’s disclosure of Document #108 based on the Union’s claim of settlement privilege.
2. Labour relations privilege
[79] The Union also asserts another privilege regarding Document #108. It argues that Document #108 and the three other documents discussed below “relate to labour relations matters with respect to which [the Assistant Senior Steward] was providing advice and assistance to [Mr. Zamorano Meza] in [the Assistant Senior Steward’s] capacity as Assistant Senior Steward, and are therefore also protected from disclosure by labour relations privilege.”
[80] This is an assertion of the confidential relationship-type labour relations privilege discussed above. As above, I am not persuaded that it is reasonable and fair in the circumstances to limit Mr. Zamorano Meza’s disclosure of Document #108 based on the Union’s claim of this type of privilege. The labour relations privilege claimed by the Union is Mr. Zamorano Meza’s to waive, and I am satisfied that he has waived any such privilege by opposing the Union’s application to prohibit disclosure of Document #108 to the University.
[81] The Union’s application to limit disclosure of Document #108 is denied.
E. Document #109
[82] The fifth document at issue is listed as document number 109 on Mr. Zamorano Meza’s second supplementary list [ Document #109 ]. It is three pages. Parts of the first and third pages are redacted. Like Document #108, the Union says Document #109 forms part of the informal mediation meetings involving Mr. Zamorano Meza, the Assistant Senior Steward, and the Program Coordinator.
[83] Similar to Document #108, Document #109 is a copy of Mr. Zamorano Meza’s meeting notes. It includes a heading, which states: “NOTES TO SECOND INFORMAL MEDIATION ZOOM MEETING WITH [the Program Coordinator], MODERATED BY [the Assistant Senior Steward], ABOUT MY CONCERNS TO BE SAFE WITH [the Program Coordinator] IN THE HIRING OF INTS 335 HIRING COMMITTEE AND NEXT EVENTS” (capitalization in original).
[84] The Union says Document #109 is subject to settlement privilege and labour relations privilege. It says Mr. Zamorano Meza should not be permitted to disclose Document #109 to the University, relying on the same arguments discussed above in my analysis of Document #108. I deny the Union’s application to limit disclosure of Document #109 for the same reasons I denied its application regarding Document #108.
F. Document #112
[85] The sixth document at issue is listed as document number 112 on Mr. Zamorano Meza’s second supplementary list [ Document #112 ]. It is listed as being eight pages; however, the Union disclosed a six-page, edited version of the document to the Tribunal for my review. The Union says it is no longer claiming any privilege over certain portions of Document #112. It appears to have removed those portions from Document #112 before disclosing it to the Tribunal. Nevertheless, my decision here regarding Document #112 applies to the entire eight-page document listed in Mr. Zamorano Meza’s second supplementary list.
[86] Like Documents #108 and 109, the Union says Document #112 forms part of the informal mediation meetings involving Mr. Zamorano Meza, the Assistant Senior Steward, and the Program Coordinator. The edited version of Document #112 that is before me is made up of emails between the Program Coordinator, Mr. Zamorano Meza, and others over a roughly one-week period. All but one of the emails are sent by the Program Coordinator; the other is sent by the Assistant Senior Steward. The Assistant Senior Steward is only included in a few of the emails.
[87] In the edited version of Document #112, all but one of the emails are very brief, relate to the scheduling of Mr. Zamorano Meza’s interview for the INTS 335 teaching position, and are copied to at least one other person who is identified as being a member of the hiring committee. The other email is from the Program Coordinator to Mr. Zamorano Meza, and is copied to the divisional assistant for Interdisciplinary Studies. In it, the Program Coordinator offers Mr. Zamorano Meza the teaching position for INTS 335, and discusses course scheduling and other administrative matters.
[84] The Union says Document #112 is subject to settlement privilege and labour relations privilege. It says Mr. Zamorano Meza should not be permitted to disclose Document #112 to the University, relying on the same arguments discussed above in my analysis of Document #108. I deny its application to limit disclosure of Document #112 for the same reasons I denied its application regarding Document #108.
G. Document #113
[88] The seventh and final document at issue is listed as document number 113 on Mr. Zamorano Meza’s second supplementary list [ Document #113 ]. It is three pages. Part of the third page is redacted. Like Documents #108, 109, and 112, the Union says Document #113 forms part of the informal mediation meetings involving Mr. Zamorano Meza, the Assistant Senior Steward, and the Program Coordinator.
[89] Document #113 is the Informal Mediation Agreement, with a brief covering email from the Assistant Senior Steward. The Informal Mediation Agreement is titled, “Mediation Agreement between Josema Zamorano and [the Program Coordinator].” It is largely comprised of a narrative summary of a meeting between the Mr. Zamorano Meza, the Assistant Senior Steward, and the Program Coordinator. At the end of the agreement, it says that Mr. Zamorano Meza is willing to be interviewed for the INTS 335 teaching position if both parties agree to five conditions. The conditions relate to the composition of the hiring committee, Mr. Zamorano Meza’s current teaching appointment in Interdisciplinary Studies, Mr. Zamorano Meza’s concerns regarding decontextualization during the interview process, and certain processes that were to have no bearing on the hiring decision for INTS 335.
[90] The Union says Document #113 is subject to settlement privilege and labour relations privilege. It says Mr. Zamorano Meza should not be permitted to disclose Document #113 to the University, relying on the same arguments discussed above in my analysis of Document #108. I deny its application to limit disclosure of Document #113 for the same reasons I denied its application regarding Document #108.
[91] For all of the above reasons, the Union’s application to limit disclosure of the Seven Documents is denied.
IV CONCLUSION
[92] I am not persuaded that it is reasonable and fair in the circumstances to limit Mr. Zamorano Meza’s disclosure of the Seven Documents based on the arguments put forward by the Union, including its assertions of privilege. As a result, the Union’s application to limit disclosure of Document #52, Document #54, Document #55, Document #108, Document #109, Document #112, and Document #113 is denied. I remind the parties of Rule 23.1 regarding the confidentiality of disclosed documents.
[93] Mr. Zamorano Meza is ordered to redact Document #54 as set out above.
[94] All parties in this matter are represented by experienced counsel. I strongly encourage counsel to make reasonable efforts to resolve any further disclosure issues in light of my reasons for this decision and without requiring the assistance of this Tribunal. The Tribunal continues to experience unprecedented case volumes, with backlogs and delays at every stage of our process. By working together to resolve certain matters themselves through reasonable and creative compromise, participants in the Tribunal’s process can potentially play an important role in helping us overcome these systemic challenges, in furtherance of the purposes of the Code .
Jonathan Chapnick
Tribunal Member