Slavutych v. Baker et al., [1976] 1 SCR 254

SUPREME COURT OF CANADA

Slavutych v. Baker et al., [1976] 1 S.C.R. 254

Date: 1975-01-28

Yar Slavutych Appellant; and

T. D. Baker, Dr. H. B. Collier, Dr. W. H. Swift and the Board of Governors of the University of Alberta Respondents.

1974: December 10; 1975: January 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Evidence—Faculty member requested to give opinion about fellow staff member—Statements made in confi­dential document—Error in law on part of arbitration board in considering faculty member's statements as grounds for his dismissal.

Pursuant to s. 122 of the University of Alberta Facul­ty Handbook, dismissal proceedings were instituted against the appellant, a member of the university's Department of Slavonic Languages. An arbitration board, consisting of the three individual respondents, considered four charges contained in a letter from the president of the university to the appellant. As to three of the charges the board found that two of them had not been established, and the third, although established, was not sufficient cause for dismissal. On the fourth charge, which dealt with a confidential document, referred to as a "tenure form sheet", the board found that the evidence provided sufficient grounds for dismis­sal. It was the board's opinion that the appellant, in using the language he did with reference to a fellow staff member, was guilty of a serious misdemeanour suffi­cient that he should stand dismissed for cause.

The document in question had been completed by the appellant at the request of the university authorities, acting through the head of the Department of Slavonic Languages. It was headed "Confidential" and the direc­tions for submission thereof requested that it be forwarded in a "sealed envelope marked Confidential". Moreover, the appellant stated, and he was not con­tradicted, that he was informed by the head of the department that the information received would be kept strictly confidential until the tenure committee met and then the sheet would be destroyed.

The appellant's appeal from the award by the arbitra­tion board was dismissed by the Appellate Division of

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the Supreme Court of Alberta, and the appellant, with leave, then appealed to this Court.

Held: The appeal should be allowed.

In proceedings initiated by a university with respect to tenure, confidential communications made in good faith by one having a legitimate interest in the proceedings ought not to be used to his prejudice. This Court did not agree with the finding by the Court below that the statements made by the appellant were not made in good faith. The production of the tenure form sheet and the basing of a charge of misconduct thereon should not have been permitted and therefore the arbitration board, in the words of s. 11(2) of The Arbitration Act, R.S.A. 1970, e. 21, had misconducted themselves and their award should be quashed.

Seager v. Copydex, Ltd., [1967] 2 All. E.R. 415; Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd. et al., [1960] R.P.C. 128; Horrocks v. Lowe, [1972] 3 All E. R. 1098, applied; Argyll v. Argyll, [1967] Ch. 302; Bell v. University of Auckland, [1969] N.Z.L.R. 1029, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division', dismissing an appeal from an award by a board of arbitration. Appeal allowed and award quashed.

J. W. McClung, Q.C., for the appellant.

W. J. Girgullis, for the respondents.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judg­ment of the Appellate Division of Alberta pro­nounced on June 22, 1973. By that judgment, the Appellate Division dismissed an appeal from the award by an arbitration board composed of the respondents Baker, Collier and Swift which award had been delivered on June 9, 1972.

The appeal to this Court was taken by leave of the Court granted by its order pronounced on November 5, 1973.

The three respondents who wet e members of the arbitration board were not represented during the argument of the appeal before the Appellate Divi­sion nor in this Court, and in this judgment I shall consider the matter as if it were an appeal by the

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[1973] 5 W.W.R. 723, 41 D.L.R. (3d) 71.

appellant as against the Board of Governors of the University of Alberta alone as respondents.

The appellant had been employed as an associate professor in the Slavonic Languages Department of the Faculty of Arts of the University of Alberta. In accordance with the provisions in the faculty handbook of that university, dealing with the procedures and regulations pertaining to the appointment and termination of appointment of full-time faculty members, Dr. Wyman, the presi­dent of the university, introduced proceedings to dismiss the appellant. Dr. Wyman forwarded to the appellant a very long and detailed letter dated December 16, 1971. In that letter, which was entitled "Evidence of Misconduct", Dr. Wyman outlined in detail his complaints and concluded the letter:

It is my intention to take the next step required in the dismissal procedures of this university and to recom­mend to the Board of Governors that you be dismissed.

As required by s. 122.3, I shall wait at least twenty-one days before taking any further action on my part.

Section 122.3 of the handbook permitted the member upon receiving from the president notice of his intention to recommend dismissal to submit the matter to the Academic Welfare Committee of the Staff Association and that committee could take action and make recommendations.

The appellant did submit the matter to such Academic Welfare Committee and that association, by its letter of February 4, 1972, addressed to Dr. Wyman, cited its resolution as follows:

That the AASUA Executive remains of the opinion that the evidence presented in the Slavutych case is insuffi­cient to warrant dismissal procedures, and recommends that such procedures be dropped.

The Executive also goes on record as deeply concerned that confidential documents intented for use in a Tenure Hearing have been used in a context different from that for which they were intended.

Despite that recommendation, Dr. Wyman evidently determined to proceed with the dismissal procedures and an arbitration board was instituted consisting of the three individual respondents.

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The appeal case includes no formal document of submission to arbitration and it would appear that Dr. Wyman's letter of December 16, 1971, to which I have referred, has been taken as the submission. In that letter, four different charges were outlined. The first three may be dealt with very shortly. As to charges one and three which deal, respectively, with a letter to a prospective graduate student and listing his publications and any other reports in successive years, the arbitra­tion board held that "the evidence was not suf­ficiently firm presenting too many uncertainties to establish wrong-doing". As to charge two, consist­ing of involvement of students in matters between the appellant and the university, the board found that the charge had been established but, "However, this was not sufficient to warrant dismissal". Charge number four dealt with a document which was referred to as a "tenure form sheet". That document was produced as an addendum to the reasons for judgment of Sinclair J.A. of the Appellate Division and I cite it in full:

DEPARTMENT OF SLAVIC LANGUAGES

TENURE FORM SHEET
CONFIDENTIAL

Below the following name, state frankly your opinion on the advisability of tenure, given your factual knowl­edge of the case. Give a YES, NO, or NO OPINION answer, with reasons stated in as much detail as possi­ble. Specific information concerning the candidate's research, teaching, committee-work, public service, per­sonality (over-all effect on the Department) is particu­larly welcome,

Name    T. R. CARLTON, (Candidate for Tenure)

"Yes," "No"

"No Opinion"    ?

Reasons           He was highly dishonest, often unethical.

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He favoured certain students by giving them high marks—so that they might praise him before the administrators.

While teaching Ukrainian, he did not pursue his speaking ability in this lan­guage. On the contrary, he has declined since he uses English almost exclusively, in his senior Ukrainian courses.

He participated in intrigues and the smearing, invented by his former Head. However, he did not hesitate to plunge a long knife in his former chairman's back after the latter was relieved from his duties.

Being almost 40 years old and not having published anything, he has proved that he is definitely not a schol­arly type of person.

In spite of these comments, I would comply with any decision of the Tenure Committee.

Date Nov. 7, 1970       Signature "Yar Slavutych"

Return before November 5th, 1970 in a sealed envelope marked "CONFIDENTIAL" to CHAIRMAN, DEPARTMENT OF SLAVIC LANGUAGES, c/o Mrs. M. Murphy.

The appellant, in his reply to the president's previous letter of November 12, 1971, said, in reference to that tenure form sheet:

3. TENURE FORM SHEET .. .

Dr. Schaarschmidt twice requested from me a confi­dential opinion about Professor T. Carlton, assuring me that the information received will be kept strictly confi­dential until the Tenure Committee meets, and then the sheet will be destroyed. After some hesitation, I openly expressed what I thought of this man. Every word in the tenure form sheet signed by me is true. Now, a year later, I learn from you, Mr. President, that the said form sheet was retained and the requested confidential infor­mation has been used against me. I wish to talk with you about this matter at the time of an appointment.

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This statement was included in a letter dated November 16, 1971, from the appellant to the president and was produced by the president upon the arbitration as Exhibit Wy-v. It was not denied in any way during the testimony upon the arbitration.

There was much discussion during the hearing of the arbitration as to this tenure form sheet. Witnesses do not seem to have been sworn, and it is well-nigh impossible to separate out what is evidence and what is presentation or argument. It is not my intention to go into the proceedings before the arbitration board in any detail although it might be necessary to make short reference thereto hereafter. The actual charge as to this tenure form sheet by Dr. Wyman against the appellant does not seem to have been formulated with exactness but I take a statement in the letter of December 16, 1971, to which I have already referred, as being, in its essence, a charge. That statement is as follows:

My conclusion is that you have made a very serious charge on the flimsiest basis, and have advanced no satisfactory evidence to prove that the charge you made is true.

Despite the objection stated by the appellant in his letter of November 16, 1971, to which I have already referred, the president pressed this charge and the arbitration board made a finding thereon as follows:

Charge Four     Re: Tenure Form Sheet

The Board finds that the evidence presented in Charge Four provides sufficient grounds for dismissal. It is the Board's opinion that Professor Slavutych, in using the language he did with reference to a fellow staff member, was guilty of a serious misdeameanor sufficient that he should stand dismissed for cause.

The board concluded its report by a statement that it was its decision that the appellant should be dismissed with a recommendation that he be allowed 12 months' salary and then added what it termed to be a "Note" as follows:

The Staff Handbook, Section 122.6, requires that the Arbitration Board render a decision of either Yes or No in respect of dismissal. The Board is satisfied that

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dismissal is warranted based on the evidence.. Neverthe­less, it recommends to the President and the Board of Governors that they consider whether some lesser penal­ty might serve, sufficiently, the interests of the University.

The appellant appealed from the report of the arbitration board to the Appellate Division and reasons for judgment of that Court were given by Sinclair J.A., who noted that the only question for determination was whether the arbitrators misdi­rected themselves or otherwise erred in law in considering as grounds for dismissal statements made by the appellant in a confidential document referred to as a "tenure form sheet".

In his reasons for judgment, Sinclair J.A. first dealt with the admissibility of this tenure form sheet under the classification of qualified privilege and cited from vol. 8 of Wigmore on Evidence, 3rd ed., (McNaughton Revision, 1961), para. 2285, cutlining four fundamental conditions as necessary to the establishment of a privilege against the disclosure of communications:

"(1) The communications must originate in a confi­dence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."

Sinclair J.A. concluded his consideration of these grounds with the statement:

If the problem involved in this appeal is to be con­sidered solely from an evidentiary point of view, I do not believe a claim that privilege should be extended to the tenure form sheet can be supported on the grounds of public policy.

On the other hand, if the matter be considered on the question of privilege, I am not of the same view. I address myself to the four fundamental conditions outlined by Wigmore and which I have

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quoted above. As to number one, the communica­tion did originate in a confidence, a confidence stressed in the very words of the form which the appellant was asked to complete and repeated and emphasized by the head of the department when he requested the appellant to complete the form. As to the second condition, certainly confidentiality was essential to the operation of a procedure whereby fellow members of the university staff were requested to give their opinions as to an application for such an important right as tenure. These persons were working every day together and it would be simply impossible to have the statement made by one at the request of the university authorities in reference to the worth of another known either to him or to the balance of the staff. As to the third condition, surely it is in the interest of the university community that the relationship between colleagues must be fostered and that the proper procedures for granting tenure to members of the university staff must be fur­thered. As to the fourth condition, all of the elements which 1 have just recited stress the desir­ability of the preservation of the confidential nature of the communication. There is, of course, an interest in the operation of the proper proce­dures for dismissal and it might be said, although I do not think it can be properly said, that such interest would justify the breach of the confiden­tiality of the communication but I do not think that it can be said that this latter interest is any greater than the interest in the retention of its confidentiality and if the two interests were of equal weight surely the greater effect should be to support the confidentiality of a document given upon the firm agreement of both parties that it should remain confidential, indeed that it should be destroyed so soon as it had been read and perused, especially when the party who proposes the breach of that confidentiality, i.e., the Univer­sity of Alberta, is the party who made the firm commitment that the confidentiality should be absolute.

I would, therefore, be of the opinion that consid­ering this matter only an evidentiary one and under the doctrine of privilege as so ably con­sidered in Wigmore the confidential document

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should have been ruled inadmissible. Any charge based thereon would, therefore, have failed.

I am, however, of the opinion, as was Sinclair J.A., that this is not to be considered as a matter of the application of the doctrine of privilege in the light of evidence but rather, in view of the circum­stance to which I have already referred, that the document came into being and the confidence was attached thereto by the proper officers of the University of Alberta, to wit, the head of the Department of Slavonic Languages. As I pointed out, the document is headed "Confidential" and the directions for the submission thereof request that it be forwarded in a "sealed envelope marked Confidential". Moreover, the appellant stated, and he was not contradicted, that he was informed by Dr. Schwaarschmidt, the head of the Department, that the information received would be kept strict­ly confidential until the tenure committee met and then the sheet would be destroyed.

Sinclair J.A. quoted Lord Denning M.R., in Seager v. Copydex, Ltd.', at p. 417, who, in turn had adopted the statement of Roxburgh J. in Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd. et al.3, as follows:

"As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a springboard for activities detri­mental to the person who made the confidential com­munication, and springboard it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public."

I am of the opinion that that is a sound statement of the doctrine as to revelation of confiden­tial communications when it deals with the actions of those who are parties to the confidence. The fact that that particular statement was made in reference to a commercial situation was, as pointed out, by Sinclair J.A., no reason why it should be

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2 [1967] 2 All E. R. 415. 3 [1960] R.P.C. 128.

confined to such situation and, indeed, Argyll v. Argyll', a decision of Ungoed-Thomas J., shows that it may be applied to very personal situations, in that case confidential revelations by a wife to her husband during coverture. The doctrine was applied by Turner J. in Bell v. University of Auckland', when what was being considered was an attempt by the plaintiff to obtain production from the defendant of certain notes and recom­mendations given to the defendant by persons whom the plaintiff had designated as appropriate sources from whom confidential information might be obtained. As will be seen, some of the circum­stances bear a marked resemblance to the present case. Here, it is the very party who instigated the communication in confidence and stressed its con­fidentiality who desires to not produce it but to use as a basis for a charge of misconduct justifying dismissal. 1 quote from the judgment of Turner J. at p. 1036.

Here the parties to the present action have solemnly agreed before the action that the documents which are now in question should be brought into existence upon the solemn undertaking of both of them that the plaintiff will not be entitled to see the documents.

One of those two parties was the plaintiff, and it was the plaintiff who sought the right to see the documents. In the present case, the solemn undertaking was made between the university, acting through the head of the department, and the appellant, and it is the university which seeks to use the document.

After his reference to Argyll v. Argyll, supra, Sinclair J.A. continued:

I believe the equitable principle of breach of confi­dence has a role to play in the present appeal. It seems to me that when tenure procedure with respect to a candidate is initiated there comes into existence, within the University of Alberta, something which I will call, for want of a better term, an umbrella of confidence. The protection afforded by this umbrella extends to all within the institution who have a legitimate interest in the tenure proceedings. The nature of that shelter is

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4 [1967] Ch. 302.

5 [1969] N.Z.L.R. 1029.

such that confidential communications, made in good faith, ought not to be used to the prejudice of their maker as a member of the university community. That being so, had the tenure form sheet been submitted by the appellant in good faith, it should not have been used as part of his dismissal proceedings.

With respect, I agree exactly with that statement and believe that it puts the matter accurately and succinctly. Sinclair J.A. continued, after quoting from the tenure form sheet:

When one examines the record before us it is clear that these serious charges, levelled in circumstances vital to a colleague's career, were never substantiated. One can draw no other conclusion but that these unsupported allegations were not made in good faith.

With respect, I cannot concur in such a disposition of the appeal.

It must be remembered that under the provi­sions of s. 122.8 of the handbook which, of course, contains the regulations as to the dismissal proce­dure including the arbitration, it is specifically provided: "The burden of proof of justification for dismissal rests on the President."

The very short award of the arbitrators makes no mention whatsoever of good faith or bad faith. The award should be considered in the light of the recommendation which followed and which I have quoted above that the president and the board of governors consider whether some lesser penalty might serve sufficiently the interests of the univer­sity. Such a recommendation could not have been made if the board had been of the opinion that the appellant was acting in bad faith.

In Horrocks v. Lowe6, the Court of Appeal was concerned with an action for libel and slander and the defence of qualified privilege. That defence, of course, could only be alleged if the defendant acted without malice, which I will equate in the circumstances in the present case to acting in good faith. Lord Denning M.R. gave reasons for the

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6 [1972] 3 All E.R. 1098.

Court, and said at p. 1101:

It is accepted that the occasion was privileged. It is of the first importance that the members of a local author­ity should be able to speak their minds freely on a matter of interest in the locality. So long as they honest­ly believe what they say to be true, they are not to be made liable for defamation. They may be prejudiced and unreasonable. They may not get their facts right. They may give much offence to others. But so long as they arc honest, they go clear. No councillor should be hampered in his criticisms by fear of an action for slander. He is not to be forever looking over his shoulder to see if what he says is defamatory. He must be allowed to give his point of view, even if it is hotly disputed by others. This is essential to free discussion.

The one qualification on his freedom is that he must not be actuated by malice. But what constitutes malice for this purpose? I would emphasise that a refusal to withdraw is not evidence of malice. Nor is a refusal to apologise. As the judge said, it may point to the honesty and sincerity of his belief, even though it be obstinate and irrational. Malice is usually to be found when there is personal spite or illwill; or when the defendant does not honestly believe what he says to be true. The judge did not find any of these. But he found that Mr. Lowe was actuated by gross and unreasoning prejudice; and that on this ground malice was established.

And at p. 1102, the learned Master of the Rolls quoted and adopted Gatley:

"If the defendant honestly believed his statement to be true, he is not to be held malicious merely because such belief was not based on any reasonable grounds; or because he was hasty, credulous, or foolish in jumping to a conclusion, irrational, indiscreet, pig-headed or obsti­nate in his belief."

I apply that statement, with which, with respect, I agree, to the present situation, and particularly to the emphasis of counsel for the respondent upon the appellant's failure to in any way withdraw his statements and, on the other hand, his continued assertions in the proceedings that his statements were true, and also in reply to the president's representations before the arbitration board that the appellant made statements and "advanced no

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satisfactory evidence to prove that the charge you made is true".

I, therefore, have come to the conclusion that the production of this tenure form sheet and the basing of a charge of misconduct thereon should not have been permitted and that therefore the arbitration board, to use the words of s. 11 (2) of The Arbitration Act., R.S.A. 1970, c.21, had misconducted themselves and that their award should be quashed. The award dealt, as I have pointed out, with three other charges and found as to two of them the charge had not been established, and as to the third, although established, the charge was not sufficient cause for dismissal. No objec­tion was taken by counsel for the university to such a finding by the arbitration board and counsel for the university entered no cross-appeal either here or before the Appellate Division.

Under these circumstances, I cannot see why those portions of the arbitration award should not stand and the only portion of the said award which should be quashed is that which appeared on the final page thereof dealing with the tenure form sheet. Such portion was entitled "charge 4".

In these reasons, I do not conclude only that the document was not admissible but I conclude as well that no charge could be based on the docu­ment and therefore I see no purpose in quashing the award and returning it for consideration by the arbitration board but I would simply quash the award in so far as it dealt with charge four.

The appellant is entitled to his costs throughout against the respondent the Board of Governors of the University of Alberta.

Appeal allowed; award quashed.

Solicitors for the appellant: McClung & Baker, Edmonton.

Solicitors for the respondent, The Board of Governors of The University of Alberta: Field, Hyndman, Edmonton.