Date: 20110323
Docket: A-384-09
Citation: 2011 FCA 115
CORAM: EVANS
J.A.
SHARLOW
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
RUDY QUADRINI
Respondent
and
PUBLIC SERVICE LABOUR
RELATIONS BOARD
Intervener
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
This is an
application for judicial review by the Attorney General of Canada to set aside
a decision of the Public Service Labour Relations Board (Board), dated August
28, 2009. The Respondent to the application is Rudy Quadrini, a former employee
of the Canada Revenue Agency (CRA).
[2]
In that
decision (2009 PSLRB 104), the Board dismissed an objection by the CRA and R. Larry
Hillier, CRA Assistant Commissioner, Ontario Region (referred to collectively
in these reasons as the CRA), that the Board had no authority to determine the
validity of a claim for solicitor-client privilege. The Board ordered them to
provide an affidavit sworn by the CRA’s solicitor describing the nature of the
contents of pages that had been redacted from an exhibit on the ground that
they were subject to solicitor-client privilege.
[3]
The
Attorney General on behalf of the CRA says that solicitor-client privilege may
only be abrogated with express or necessarily implied statutory authority, and
none exists here. The Board responds that it has implicit legal authority to
decide all questions of fact and law (including constitutional law) necessary
to dispose of matters properly before it. It would unduly delay and disrupt
Board proceedings, it is argued, if decision-making powers were bifurcated by a
requirement that claims for privilege arising in Board proceedings must be decided
by the Court. The Board also says that, if it has the power to decide privilege
claims, its decisions would be subject to judicial review on a standard of
correctness. This, the Board submits, would provide sufficient judicial
protection for the important interests at stake in privilege claims.
[4]
The
present case was argued before the Board and in this Court on the level of general
principle. Relatively little attention was paid to the nature of the documents
in dispute, the factual and legal contexts from which the issue of privilege
arose, or the relevance of the documents to the underlying dispute. This
resulted in part from the fact that Mr Quadrini represented himself and
participated in the application for judicial review to only a limited extent,
and that counsel for the Board was constrained from addressing the merits of
the claim for privilege.
[5]
In my view,
the Board’s decision should be set aside because Mr Quadrini did not establish
that the redacted pages, which prima facie appear to contain privileged
communications, may be relevant to the questions in issue in the proceeding before
the Board. Hence, it is not necessary to decide whether the Board may determine
the validity of claims for solicitor-client privilege. Moreover, because the
submissions made to the Court were limited in scope, it would not be
appropriate for the Court to make a ruling broader than is required to dispose
of the application.
Factual background
[6]
The
dispute underlying this proceeding has a long history. It is recounted by the
Board in its decision in 2008 PSLRB 37, where the Board dismissed a preliminary
objection by the CRA that Mr Quadrini’s complaint that it had committed an
unfair labour practice was frivolous and vexatious. The facts reviewed in that
decision provide background information that is important for a contextual
understanding of the decision under review.
[7]
In April 2003,
the CRA dismissed Mr Quadrini for misconduct, alleging that he was working for
the Ontario Ministry of Revenue (OMoR) while on paid sick leave from the CRA.
Mr Quadrini grieved his termination. The grievance was referred to the Board, a
mediation session was held, and the grievance was settled. Under the memorandum
of agreement, dated October 4, 2004, Mr Quadrini agreed to offer to resign, effective
July 2, 2003, and the CRA agreed to accept his resignation as of that date. In
return, the CRA made compensatory payments to Mr Quadrini, who continued working
in the corporate tax division of the Ontario Ministry.
[8]
Under an
agreement in 2007 between Ontario and Canada, the CRA assumed
responsibility for the collection of Ontario
corporate tax. The positions of approximately 370 employees of the OMoR were
affected by this transfer of functions agreement, including that of Mr
Quadrini. According to him, of all the employees whose positions were affected
by the agreement, and who were interested in being employed by the CRA, he was
the only one to whom the CRA did not offer employment.
[9]
In a
letter, dated September 13, 2007, Mr Hillier advised Mr Quadrini that, although
his name was on the list of OMoR employees whose positions were directly
affected by the transfer agreement, he would not be receiving an offer of
employment from the CRA. The letter stated as follows the basis of this
decision.
I trust that you recall the
mediation of your grievances concerning the termination of employment action
taken by the CRA when it was discovered that, while you were on paid sick leave
with CRA, you were reporting to a new position with the Ontario Government. As
a result, I must advise you that the CRA is not prepared to offer you employment.
[10]
After
receiving this letter, Mr Quadrini filed an unfair labour practice complaint
with the Board under paragraph 190(1)(g) of the Public Service Labour
Relations Act, S.C. 2003, c. 22 (Act). He alleged, among other things, that
the CRA’s refusal to offer him employment breached its duty under subparagraphs
186(2)(a)(iii) and (iv) of the Act. These provisions prohibit an employer
from refusing to employ individuals because they have presented a grievance
under Part 2 of the Act or exercised any right under it, and are included in
the definition of an unfair labour practice by section 185. The statutory
provisions referred to in these reasons are set out in the Appendix.
[11]
In its reply,
dated December 5, 2007, the CRA objected to Mr Quadrini’s complaint, on the
ground that it was not within the Board’s jurisdiction and, in any event, did
not make out a prima facie breach of the Act. Accordingly, it said, the
Board should dismiss the complaint under subsection 40(2) of the Act as
frivolous and vexatious. The CRA stated that the settlement of Mr Quadrini’s
grievance in 2004, set out in a memorandum of agreement, was a full and final
settlement that ended their employment relationship. It would, the CRA said, be
an inappropriate “undoing” of the settlement to require it to re-employ him as
a result of the transfer of functions agreement with Ontario.
[12]
In
response to the Board’s request for written submissions, the CRA reiterated that
it had refused to hire Mr Quadrini because of his misconduct while a CRA
employee and that he had adduced no evidence to the Board in support of his
allegation that the refusal was a reprisal for grieving his dismissal.
[13]
From the
extensive and wide-ranging representations and voluminous evidence submitted to
it by Mr Quadrini, the Board distilled the essential question before it to be this:
had the complainant established a prima facie link between the CRA’s decision
not to hire him in 2007 and the exercise of his right to grieve his dismissal
by the CRA in 2003? The Board found in favour of Mr Quadrini: there was no
reasonable way to argue, it held, that there was no link between the two
events.
[14]
Consequently,
the complaint proceeded to a determination of its merits. At that stage, subsection
191(3) of the Act placed on the CRA the burden of showing that its refusal to
employ Mr Quadrini was not a reprisal in breach of subsection 186(2).
[15]
In
preparing for the hearing of the merits of his complaint, Mr Quadrini made
several requests to the CRA for information under the Privacy Act, R.S.C
1985, c. P-21. Of the documents that he received in response to his request, pages
000007 to 000011 were redacted. The CRA’s Access to Information and Privacy
Directorate explained this on the basis of sections 26 and 27 of the Privacy
Act, which exempt from disclosure personal information about another
individual and information that is subject to solicitor-client privilege.
Decision of the Board
[16]
On the
sixth day of the hearing of the merits of his complaint, Mr Quadrini asked the
Board to order the CRA to disclose the redacted pages because they might cast
doubt on the Respondents’ defence to his complaint. He argued that he had been
unable to discover the ground on which the CRA refused to hire him. If the redacted
pages contained a legal opinion, it might reveal the basis of the decision, and
thus be relevant to the determination of his complaint.
[17]
The CRA objected
when the Board attempted to make an order for production of the pages redacted
from the documents released by the CRA. It said that the Board had no power either
to order the production of documents subject to solicitor-client privilege, or
to determine the validity of the claim for privilege.
[18]
The Board
adjourned the hearing and requested written submissions from the parties on the
following two questions:
1. In the context of a complaint
filed under section 190 of the Public Service Labour Relations Act, does
the Board have the authority to satisfy itself that a document is subject to a
solicitor-client privilege?
2. If the answer to question 1 is
in the affirmative, what procedure should the Board follow in order to satisfy
itself that a document is subject to a solicitor-client privilege?
[19]
The Board
did not agree with the CRA’s submission that Mr Quadrini had accepted the prima
facie validity of the claim for privilege. As a result, the Board said, the
issue in dispute was not limited to deciding whether one of the exceptions to
the protection afforded to privileged communications applied. Referring to the
Board’s power under paragraph 40(1)(h) of the Act to compel at any stage
of a proceeding the production of any document or thing “that may be relevant”,
the Board assumed that the redacted pages might be relevant because it was not
aware of their content.
[20]
Turning to
the question of whether it had the authority to determine the validity of
claims for legal privilege, the Board considered the decision in Canada
(Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44,
[2008] 2 S.C.R. 574 (Blood Tribe). The question in that case was
whether the Privacy Commissioner’s general powers to compel the production of
documents and to accept any evidence in the course of investigating an alleged breach
of the Personal Information Protection and Electronic Documents Act,
S.C. 2000, c. 5, impliedly authorized the Commissioner to determine claims for
legal privilege over the documents sought.
[21]
The Court
held that they did not. The Board surmised that the Court would probably have taken
the same view of its general powers to require the production of documents.
[22]
However,
the Board noted (at para. 84) that the Court also stated in Blood Tribe
(at para. 22) that the courts’ power to review a document to determine a claim
for privilege was derived from their power “to adjudicate disputed claims over
legal rights”, and that the Privacy Commissioner has no such power. Further,
the Court said (at para. 23) that, unlike a court, the Commissioner could
become adverse in interest to the person resisting disclosure, with the result
that the Commissioner may lack the appearance of impartiality in deciding the
question of privilege.
[23]
The Board
distinguished Blood Tribe on the ground that, unlike the Commissioner, it
is an adjudicator and is impartial between the contesting parties before it.
Like the courts, the Board reasoned, its power to determine claims for legal privilege
is inherent in its adjudicative functions and the fact that it never becomes
adverse in interest to a party.
[24]
The Board
saw no basis for excluding the determination of claims to legal privilege from
its implicit statutory power to decide questions of law necessary to dispose of
a matter properly before it. Indeed, to hold otherwise, it said, would unduly
disrupt the Board’s proceedings. This would thwart Parliament’s intention that
the Board should render its decisions with a minimum of delay and expense in
order to promote good labour relations in the federal public service. These
arguments, the Board noted, had recently been accepted by the Ontario Labour
Relations Board in Proplus Construction & Renovation Inc., [2008]
O.L.R.D. No. 4940.
[25]
The Board
declined to consider at this stage the CRA’s submission that no exception to legal
privilege existed in this case, because it was not yet dealing with the merits
of the claim for privilege, but only with its authority to decide it.
[26]
Dismissing
the CRA’s objection that it had no authority to decide the privilege question,
the Board ordered the CRA to provide to the Board, with a copy to Mr Quadrini,
an affidavit sworn by the CRA’s solicitor clearly establishing the nature of
the contents of the redacted pages and explaining why they are subject to
solicitor-client privilege.
[27]
On a
motion to this Court, the Attorney General argued that the Board’s order was a
breach of solicitor-client privilege and requested a stay pending the
disposition of this application for judicial review. The stay was granted on
February 17, 2010.
Analysis
[28]
The term
“solicitor-client privilege” may refer to two distinct forms of privilege:
legal advice privilege and litigation privilege. Somewhat different
considerations apply to each. The privilege claimed in the present case is for
legal advice.
[29]
It is
widely acknowledged that the protection of the confidentiality of legal advice
communicated by lawyers to their clients is of fundamental importance to the
administration of justice. Incursions are to be kept to an absolute minimum. Disclosure
is permitted only when it is an “absolute necessity … as restrictive a test as
can be formulated short of an absolute prohibition in every case”: Goodis
v. Ontario (Correctional Services), 2006 SCC 31, [2006] 2 S.C.R.
32 at para. 20.
[30]
Whether or
not a tribunal has the legal authority to determine if documents are subject to
solicitor-client privilege, it may conduct a preliminary screening, without
inspecting them or issuing an order that would breach the privilege if validly
claimed. A bare assertion of privilege should not be allowed to automatically
derail the conduct of a proceeding if the tribunal has no authority to decide
the validity of the claim, any more than a tribunal with authority to decide a
privilege claim should inspect the document the moment a party challenges the
validity of the claim.
[31]
If a tribunal
is not satisfied on the basis of the information available to it that the documents
in question are capable of being the subject of a valid claim for
solicitor-client privilege, it can admit them or order their production. If the
tribunal is not satisfied that the documents may be relevant to issues in
dispute before it, it will exclude them or not order their production on this
ground. In either case, the tribunal’s rulings would be subject to appeal or
judicial review.
(i) nature of the communication
[32]
It may be
apparent from the surrounding circumstances whether or not a communication
could possibly fall within a category to which legal privilege could attach. If
it does not meet this threshold, the tribunal may call for its production or
admit it into evidence, subject to an appeal or an application for judicial
review by the party claiming privilege. If, on the other hand, it is plausible
to think that the communication may be privileged, the tribunal will proceed to
the next stage and ask if it may be relevant to the issues in dispute before
it.
[33]
In the
present case, the CRA says that the basis of its claim is that the redacted pages
comprise a series of e-mails containing legal advice to it from its legal
advisors and are thus presumptively subject to solicitor-client privilege. This
is the reason that the pages were not disclosed by the CRA in response to Mr
Quadrini’s Privacy Act request, in which he asked for the production of,
among other things, legal advice obtained by the CRA in connection with his
situation.
[34]
In his
submissions to the Board, Mr Quadrini did not admit that the redacted pages
were subject to legal privilege. He said that it was not clear that a lawyer
was involved in the communication or that, even if the communication was from a
lawyer, its subject was legal advice, as opposed to policy advice. Finding that
Mr Quadrini had conceded only that the redacted pages may be a legal opinion,
the Board said (at para. 72) that the validity of the CRA’s claim for
solicitor-client privilege remained a live issue.
[35]
However,
in his oral submissions before this Court, Mr Quadrini accepted that the
redacted pages contained legal advice to the CRA. This is sufficient for the CRA’s
claim to satisfy an initial screening. “Legal advice” in this context is
understood broadly and can include advice as to what it may be prudent to do in
a particular legal situation: International Minerals & Chemical Corp.
(Canada) v. Commonwealth Insurance Co. (1991), 47 C.C.L.I. 196 (Sask. Q.B.);
Canadian Jewish Congress v. Canada (Minister of Employment and Immigration),
[1996] 1 F.C. 268 at 294 (T.D.); Phipson on Evidence, 16th edn. (London: Sweet & Maxwell Ltd.,
2005), 23: 62-64.
(ii) relevance
[36]
To be
admissible in legal proceedings, evidence must be relevant to the subject
matter of the proceeding, a principle that applies to proceedings before both
courts and adjudicative administrative tribunals. If the decision-maker is not
satisfied that the document is relevant, it should be excluded and no order
made for its production.
[37]
In the
present case, the Board may order the production of documents “that may be
relevant” (paragraph 40(1)(h) of the Act). When privilege is claimed for
documents, an assessment of relevance at the initial screening stage must take
into account the fact that neither the decision-maker nor the party seeking to
adduce it or obtain its production has seen the material in question.
Nonetheless, the party seeking production must establish a realistic
possibility that the documents may be relevant to an issue in dispute in
proceedings before the Board. Mere speculation as to their possible relevance is
not sufficient.
[38]
The
applicable law is accurately described in MacMillan Bloedel Ltd. v. British
Columbia (1984), 16 D.L.R. (4th) 151 (B.C. S.C.) (MacMillan Bloedel).
In that case, McLachlin J. (as she then was) stated that the relevance of
documents for which Crown privilege (as public interest privilege was then
known) is claimed should be determined, at least in a preliminary
manner, before the court examines them to determine the validity of the claim
for privilege.
[39]
For the
purpose of this preliminary screening exercise, the Judge adopted the classic test
of relevance on discovery in Cie. Financière & Commerciale du
Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63 (Eng. C.A.) as
including every document
…which it is reasonable to
suppose, contains information which may – not which must – either directly or
indirectly enable the party requiring … [it] either to advance his own case or
to damage the case of his adversary.
McLachlin J. went on to say (at 156) that if documents
satisfied this test of relevance at the screening stage, and were not shown to
be inadmissible on some other ground, the court would determine their actual
relevance on inspecting them.
[40]
MacMillan
Bloedel was
addressing the procedure to be followed by courts when a claim for Crown privilege
is raised in a proceeding before a court. However, in my opinion, McLachlin
J.’s analysis is equally applicable to claims for solicitor-client privilege in
proceedings, regardless of the adjudicative forum where they are made. Thus,
administrative tribunals should conduct an initial screening for relevance,
regardless of whether they have the legal authority to determine the validity
of claims for privilege: see Ontario (Human Rights Commission) v. Dofasco
Inc. (2001), 57 O.R. (3d) 693 at para. 57 (C.A.).
[41]
If the document
is found not to be relevant, it will be unnecessary for a tribunal to refer the
matter to the Court to determine the privilege claim, assuming that it does not
have the authority to do so itself. So, too, a tribunal with power to determine
privilege claims will not need to inspect the document for this purpose if it
is clearly irrelevant. As the Court said in Blood Tribe (at para. 17):
Even courts will decline to
review solicitor-client documents to adjudicate the existence of privilege
unless evidence or argument establishes the necessity of doing so to fairly
decide the issue.
[42]
A tribunal
with legal authority to decide privilege claims has not completed its task
when, after inspecting the documents, it concludes that they are indeed
relevant. It may not order production of the documents until it is also
satisfied that none of the limited exceptions to the general rule precluding
the production of material containing legal advice applies: see Smith v.
Jones, [1999] 1 S.C.R. 445 at para. 74; R. v. McClure, 2001 SCC 14,
[2001] 1 S.C. R. 445 at paras. 34-38.
[43]
In the
decision under review, the Board did not apply the test identified in MacMillan
Bloedel for making an initial determination of the relevance of documents
for which privilege is claimed before they are inspected by the decision-maker.
Thus, the Board stated (at para. 73):
In the situation that arose at
the hearing, I was unable to rule on the possible relevance of pages 000007 to
000011 because of the uncertainty about the exact nature of their contents. For
the purpose of these reasons, I must assume their potential relevance.
[44]
It was an
error of law for the Board to “assume” the relevance of the redacted pages
without forming a view of relevance on the basis of the above test. On the
Board’s approach, nearly all documents would pass the initial relevance test
because, according to the Board, it was sufficient for this purpose if there
was any doubt about their content.
[45]
Solicitor-client
privilege is of central importance to the proper functioning of the legal
system and is beyond the specialized expertise of the Board. Accordingly, despite
the strong preclusive clauses in the Act and the judicial deference normally
afforded to the Board’s decisions, its determinations of questions of law
relating to privilege claims are subject to review on a standard of
correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 60.
[46]
This is
sufficient to set aside the Board’s order requiring the CRA’s solicitor to
swear an affidavit specifying the nature of the contents of the redacted pages.
However, I am also satisfied that, if the Board had applied the correct legal test,
only one conclusion was reasonably open to it: the redacted pages were not
relevant to the issues raised by Mr Quadrini’s complaint. Accordingly, it is
unnecessary to remit the question for the Board’s determination.
[47]
Mr
Quadrini stated that the CRA had refused to tell him the basis of its decision
not to hire him when his position was directly affected by the transfer of
functions from the OMoR to the CRA. However, Mr Hillier’s letter of September
13, 2007, advising Mr Quadrini that he would not be hired by the CRA, refers
specifically to the settlement of the grievance arising from the termination of
his employment for allegedly taking other employment while on paid sick leave
from the CRA.
[48]
It seems
clear from this letter that the CRA’s decision was based on Mr Quadrini’s previous
misconduct as a CRA employee, and the CRA’s refusal to, as it saw it, “undo”
the settlement of the grievance contained in the memorandum of agreement by
re-hiring him. This point was repeated in the CRA’s written representations to
the Board (at para. 34):
It is clear from the complaint
that the basis of the Employer’s decision not to re-employ the complainant was
due to his previous misconduct and is in no way related to the fact that he
presented a grievance challenging the Employer’s decision to terminate his
employment in 2003.
[49]
The
essence of Mr Quadrini’s unfair labour practice complaint is that the CRA refused
to hire him as a reprisal for grieving his dismissal in 2003, and not, as the CRA
alleges, because of his misconduct, and the full and final settlement of his
grievance. However, he has not explained how the legal advice contained in the
redacted pages may be relevant to this issue, nor has he provided any
evidential basis from which relevance could be inferred.
[50]
Hypothetically,
the redacted pages might reveal that the CRA was asking for legal advice about how
to disguise the fact that it was not prepared to hire Mr Quadrini because he
had grieved his dismissal for misconduct in 2003 through the channels legally
open to him.
[51]
On its face,
this possibility is far-fetched. It is not supported by the e-mails that Mr
Quadrini obtained from the CRA under the Privacy Act. The e-mails were
exchanged among CRA officials between September 11, 2008 and early in the
morning of September 13, the day when Mr Hillier sent the letter advising Mr
Quadrini that he would not be receiving an offer of employment from the CRA.
[52]
The
e-mails disclose that officials were concerned about the mechanics of informing
Mr Quadrini that the CRA would not be offering him a job. The questions raised
in them include the following. Should he be contacted directly by mail
addressed to his home, or should the letter be sent to him via the OMoR?
Should the letter be sent in a double envelope to ensure confidentiality? Should
it be signed by someone who had been involved in terminating his employment in
2003 and in negotiating the settlement of the subsequent grievance? If
different officials signed it, would this expose the CRA to an allegation that it
had divulged information in breach of the confidentiality clause of the memorandum
of agreement with Mr Quadrini? Should the letter to him be signed by the person
who signed the letters offering employment to the OMoR employees whose
positions were also affected by the transfer of functions?
[53]
An e-mail
dated September 11, 2008, states that the writer drafted the letter to be sent
to Mr Quadrini and “received legal’s input”. The draft was attached, and the
recipient of the e-mail was asked to call “if it isn’t okay.”
[54]
These communications
indicate that the CRA paid considerable attention to the details of the letter
of September 13, 2008, and that legal advice was obtained on its wording. Given
the history of the previous employment relationship between the CRA and Mr
Quadrini, and his propensity to litigation, it is hardly surprising that the
CRA approached with caution the wording and mode of delivery of the letter.
[55]
If the
redacted pages contain advice from the CRA’s lawyers on the drafting of the
letter (which the CRA has not admitted), these e-mails provide no support for the
notion that the redacted pages may be relevant to Mr Quadrini’s complaint that
he was not hired because he had grieved his dismissal in 2003.
[56]
Mr
Quadrini also suggested that the legal advice contained in the redacted pages
might pre-date the settlement of his grievance in 2004 and reveal that the CRA
was then considering how it could avoid hiring him if his position with the OMoR
were affected by a future transfer of functions. Again, this is mere speculation,
and provides no basis for establishing a realistic possibility that the
redacted pages may be relevant to the determination of the issues in dispute in
his complaint.
Conclusions
[57]
For these
reasons, I would allow the application for judicial review, set aside the
decision of the Board, and remit the matter with a direction that the Board
resume its hearing on the merits of Mr Quadrini’s complaint.
“John
M. Evans”
“I
agree
K.
Sharlow J.A.”
“I
agree
J.D.
Denis Pelletier J.A.”
APPENDIX
Public Service Labour Relations Act, S.C. 2003, c. 22
|
40. (1) The Board has, in relation to any
matter before it, the power to
…
(h) compel, at any stage of a proceeding,
any person to produce the documents and things that may be relevant;
(2) The Board may dismiss summarily any
application or complaint that in its opinion is frivolous or vexatious.
185. In this Division, “unfair labour
practice” means anything that is prohibited by subsection 186(1) or (2),
section 187 or 188 or subsection 189(1).
186. (2) Neither the employer nor a person
acting on behalf of the employer, nor a person who occupies a managerial or
confidential position, whether or not that person is acting on behalf of the
employer, shall
(a) refuse to employ or to continue to
employ, or suspend, lay off or otherwise discriminate against any person with
respect to employment, pay or any other term or condition of employment, or
intimidate, threaten or otherwise discipline any person, because the person
…
(iii) has made an application or filed
a complaint under this Part or presented a grievance under Part 2, or
(iv) has exercised any right under this
Part or Part 2;
190. (1) The Board must examine and inquire
into any complaint made to it that
…
(g) the employer, an employee organization
or any person has committed an unfair labour practice within the meaning of
section 185.
191. (3) If a complaint is made in writing
under subsection 190(1) in respect of an alleged failure by the employer or
any person acting on behalf of the employer to comply with subsection 186(2),
the written complaint is itself evidence that the failure actually occurred
and, if any party to the complaint proceedings alleges that the failure did
not occur, the burden of proving that it did not is on that party.
|
40. (1) Dans le cadre de toute affaire
dont elle est saisie, la Commission peut :
[…]
h) obliger, en tout état de cause, toute
personne à produire les documents ou pièces qui peuvent être liés à toute
question dont elle est saisie;
(2) La Commission peut rejeter de façon
sommaire toute demande ou plainte qu’elle estime frustratoire.
185. Dans la présente section, « pratiques
déloyales » s’entend de tout ce qui est interdit par les paragraphes 186(1)
et (2), les articles 187 et 188 et le paragraphe 189(1).
186. (2) Il est interdit à l’employeur, à
la personne qui agit pour le compte de celui-ci et au titulaire d’un poste de
direction ou de confiance, que ce dernier agisse ou non pour le compte de
l’employeur :
a) de refuser d’employer ou de continuer
à employer une personne donnée, ou encore de la suspendre, de la mettre en
disponibilité, ou de faire à son égard des distinctions illicites en matière
d’emploi, de salaire ou d’autres conditions d’emploi, de l’intimider, de la
menacer ou de prendre d’autres mesures disciplinaires à son égard pour l’un
ou l’autre des motifs suivants :
[…]
(iii) elle a soit présenté une demande
ou déposé une plainte sous le régime de la présente partie, soit déposé un
grief sous le régime de la partie 2,
(iv) elle a exercé tout droit prévu par
la présente partie ou la partie 2;
190. (1) La Commission instruit toute
plainte dont elle est saisie et selon laquelle :
[…]
g) l’employeur, l’organisation syndicale
ou toute personne s’est livré à une pratique déloyale au sens de l’article
185.
191. (3) La présentation par écrit, au
titre du paragraphe 190(1), de toute plainte faisant état d’une
contravention, par l’employeur ou la personne agissant pour son compte, du
paragraphe 186(2), constitue une preuve de la contravention; il incombe dès
lors à la partie qui nie celle-ci de prouver le contraire.
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Privacy
Act, R.S.C.
1985, c. P-21
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26. The head of a government institution
may refuse to disclose any personal information requested under subsection
12(1) about an individual other than the individual who made the request, and
shall refuse to disclose such information where the disclosure is prohibited
under section 8.
27. The head of a government institution
may refuse to disclose any personal information requested under subsection
12(1) that is subject to solicitor-client privilege.
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26. Le responsable d’une institution
fédérale peut refuser la communication des renseignements personnels demandés
en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui
fait la demande et il est tenu de refuser cette communication dans les cas où
elle est interdite en vertu de l’article 8.
27. Le responsable d’une institution
fédérale peut refuser la communication des renseignements personnels demandés
en vertu du paragraphe 12(1) qui sont protégés par le secret professionnel
qui lie un avocat à son client.
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