CAUT | ACPPU
Canadian Association of University Teachers
CAUT Policies
Policy Statement on Confidentiality in the Grievance Process
Preamble
1.1
This Policy Statement is for the use of Faculty Association members and staff who assist grievors during the grievance process.
1.2
Its purpose is to:
i) underscore the importance of the duty of confidentiality owed to a grievor by his or her Faculty Association representative; and
ii) provide guidance to the representative in those rare circumstances when the conduct of the grievor gives rise to a belief that the grievor may present a threat to the safety of others.
1.3
This Policy Statement:
i) defines the content of the duty of confidentiality;
ii) identifies the source of the duty; and
iii) describes the circumstances which may necessitate a breach of the duty and the appropriate course of conduct if such a situation arises.
The Duty of Confidentiality
2.1
An individual who advises or represents a grievor owes a duty of confidentiality to the grievor. All communications between the representative and the grievor that relate to the grievance must not be disclosed to a third party without the consent of the grievor. The duty is similar to the one owed by a solicitor to a client.
2.2
In most circumstances the burden of the duty of confidentiality will be carried by the individual member of the Faculty Association (the Grievance Officer, Shop Steward or Grievance Representative) assigned to represent a grievor. However, because the Faculty Association as a whole has responsibility for the handling of grievances, the duty also extends to the executive of the Association, the membership of the Grievance Committee and the Association’s professional staff and legal counsel. Information about a particular grievance may be shared and discussed within this group as required, but must not be divulged outside of this circle.
2.3
The duty of confidentiality is for the benefit of the grievor. The duty ensures that the grievor feels free to discuss all aspects of his or her case with the representative without fear that the information will be disclosed. The social imperative behind this duty is the need for honesty and candour so that the representative can properly advise the grievor and effectively present his or her case.
Content of the Duty
3.1
The representative must keep all communications with the grievor, whether oral, written or electronic, in confidence. Inadvertent breaches of confidentiality can result from the discussion of cases in public locations and from lack of care:
i) in the use of cellular phones, electronic mail and facsimile transmission machines;
ii) in the storage of documents (including computer disks and video tapes); and
iii) in the disposal of office waste.
Legal Foundation of the Duty
4.1
It is a general principle of law that a person who requests and receives information in conjunction with a promise of confidentiality may not use the information against the person who made the confidential communication.1
4.2
Further, communications are privileged (protected from disclosure by law) if the following conditions are met:
i) The communication must originate in a confidence that it will not be disclosed;
ii) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
iii) The relation must be one which in the opinion of the community ought to be sedulously fostered, and
iv) The injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation.2
4.3
The grievor/representative relationship, and communications therein, have been held to meet these conditions.3 A representative can therefore claim privilege at an arbitration hearing and refuse to disclose the contents of discussions or correspondence with the grievor.
Breaching the Duty
5.1
The grievance process inherently involves conflict. The future of the grievor’s career may be at stake. In these stressful circumstances it is not uncommon for a grievor to make inappropriate or abusive comments. These comments may very rarely include threats of physical harm or death against others.
5.2
Should the grievor threaten such violence, the representative must balance the duty of confidentiality with the responsibility to protect the safety of others. In John Smith v. James Jones (1999) S.C.J. No.15, the Supreme Court of Canada set out the factors to be considered in determining whether solicitor-client privilege should be set aside in the interest of protecting public safety. As the representative-grievor relationship is similar to the one between solicitor and client, John Smith v. James Jones provides direct guidance to a representative who, in the interests of public safety, is considering the disclosure of a threat made by a grievor.
The factors for consideration set out in John Smith v. James Jones are:
i) Is there a clear risk to an identifiable person or group of persons?
ii) Is there a risk of serious bodily harm or death?
iii) Is the danger imminent?
The decision states that privilege should only be set aside where the facts raise real concerns that an identifiable individual or group is in imminent danger of death or serious bodily harm. The Court cautions that the facts should be carefully considered and notes that a statement made in a fleeting fit of anger will usually be insufficient to warrant disclosure.
5.3
Whether the duty should be breached is dependent on the circumstances of each particular case and is ultimately a matter of judgement. To assist in this exercise of judgement, a representative may wish to question the grievor about the meaning of the threat. The representative should, if possible, consult with the Association’s executive, Grievance Committee, professional staff and legal counsel, all of whom are within the ambit of representative-grievor confidentiality.
5.4
If a decision is made to breach confidentiality:
i) the confidential information must be relayed only to the proper authorities (for example the police or university security) and to the intended victim; and
ii) the disclosure must be limited to the threat itself and not include other information gathered by the representative in the course of assisting the grievor.
Approved by the CAUT Council, November 1999.
Endnotes1. Slavutych v. Baker (1976) 1 S.C.R. 254
2. John Henry Wigmore, Evidence in Trials at Common Law, vol. 8 (McNaughton rev.)(Boston: Little, Brown and Company, 1961) at page 527. This is the "Wigmore Test", established by the noted American law professor and expert on evidence to determine if legal privilege should extend to a relationship. The test was adopted by the Supreme Court of Canada in R. v. Fosty (1991) 3 S.C.R. 263 (sub nom. R. v. Gruenke). Note the first criterion - that there must be an assurance that all communications within the relationship will be kept confidential. A prior indication by a representative to a grievor that certain communications (for example threats of violence) may be revealed undermines a claim for privilege.
3. Re British Columbia and B.C.G.E.U., Loc. 1103, (1990) 13 L.A.C. (4th) 190 and Re British Columbia and B.C.G.E.U., (1992) 28 L.A.C. (4th) 237
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