



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



British
                Columbia v. British Columbia Government

and
                Service Employees' Union,









2005 BCCA
            14




Date: 20050112




Docket: CA031778

Between:

Government
      of the Province of British Columbia

Appellant

(
Plaintiff
)

And

British
      Columbia Government and Service Employees' Union

Respondent

(
Defendant
)











Before:



The Honourable
            Madam Justice Prowse





The Honourable
            Mr. Justice Mackenzie





The Honourable
            Mr. Justice Smith









P.A. Gall,
            Q.C. and M.F. Rusen



Counsel for the Appellant





K.R. Curry
            and E. Ostrower



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





November 12, 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





January 12, 2005









Dissenting
              Reasons by
:





The Honourable
            Madam Justice Prowse





Written
              Reasons in the Majority by:





The Honourable
            Mr. Justice Mackenzie (Page 30, para. 61)





Concurred
              in by:





The Honourable
            Mr. Justice Smith





Reasons for Judgment of the Honourable Madam Justice
        Prowse:

INTRODUCTION

[1]

The
      Government of the Province of British Columbia (the "Employer")
      is appealing pursuant to s. 100 of the
Labour Relations Code
,
      R.S.B.C. 1996, c. 244 (the "Code") from the interim order of
      an Arbitrator, made March 26, 2004, providing for the pre-hearing disclosure
      of the medical records (including psychological records) of a grievor who
      has made a disputed claim for Short-Term Illness and Injury Plan Benefits
      ("STIIP").  The disclosure order was made subject to strict conditions
      on the use of those records.  Leave to appeal was granted on June 29, 2004.

[2]

The
      impugned provisions of the order in issue, which counsel have referred
      to as a "
Ryan
order" (the name is taken from the
      Supreme Court of Canada decision in
A.M. v. Ryan
, [1997]
      1 S.C.R. 157), state that the records requested be disclosed, but on terms
      that:

. . . only Counsel for the Employer and its medical experts may view
      all of [the grievor's] clinical records; any person who views the documents
      must keep them confidential; the documents are to be used only for the
      purposes of the hearing; only one copy of the notes are to be made.  Finally,
      all of the Grievor's medical documents must be destroyed at the conclusion
      of this hearing.  [at pp. 18-19]

[3]

In
      making this order, the Arbitrator made it clear to the parties that they
      could re-apply in the event that these strict terms proved unworkable.  This
      is apparent from the last paragraph of the Arbitrator's reasons, where
      he states:

Finally, this is an interim order.  Although I have
      found that the
Ryan
conditions do not result in a denial of a fair
      hearing to the Employer, as the B.C. Court of Appeal has stated in
Jones
      v. Nelson
, [(1980), 24 B.C.L.R. 109], such orders must be "flexible" and "workable".  As
      the hearing approaches or, in fact, during the hearing itself, each party
      is entitled to reapply to examine these conditions should circumstances
      warrant.

[4]

It
      is common ground that the Employer made no attempt to obtain or review
      the disputed documents in accordance with the terms of this order, or to
      seek a variation of the order in the event it proved unworkable.  Instead,
      the Employer sought leave to appeal.

ISSUES ON APPEAL

[5]

The
      Employer submits that the Arbitrator erred in law in making a
Ryan
order
      on the basis that the effect of the order is to preclude the Employer from
      being able to make full answer and defence to the grievor's claim and to
      interfere with the ability of the Employer to fully instruct and receive
      advice from its counsel.  In summary, the Employer says that the order
      is "outside the bounds of acceptability" of disclosure orders.

[6]

The
      parties also raise an issue as to the appropriate standard of review of
      the Arbitrator's order.  The Union submits that the standard is one of
      reasonableness; the Employer submits that the standard is one of correctness.

[7]

It
      is not disputed that this appeal has been properly brought pursuant to
      s. 100 of the Code; that is, that "the decision or award is a matter
      or issue of the general law not included in section 99(1)."

BACKGROUND

[8]

The
      grievor has been working for the Employer in various capacities since 1979,
      initially as a corrections officer, and more recently as an employee in
      Crown Counsel's office.  In 1990, she was terminated for working full time
      at another job while collecting STIIP.  Her termination was grieved, and
      in 1994 she was ordered reinstated by Arbitrator Williams.  In his Award,
      Arbitrator Williams referred to the grievor's dysfunctional family background,
      which included a history of physical and sexual abuse.   He also referred
      to the evidence of Dr. Richard Colby, a Registered Psychologist, who diagnosed
      the grievor as suffering from a "post-traumatic stress disorder" originating
      in her childhood experiences, but triggered by workplace harassment.

[9]

A
      second arbitrator, Arbitrator McConchie, completed the Williams Award in
      June 1999 and the grievor returned to work.

[10]

On
      November 13, 2002, the grievor's supervisor and Crown Counsel at the office
      where she was working had discussions with the grievor concerning her work
      performance.  Shortly thereafter, on November 14, 2002, the grievor left
      work and did not return.  She made a claim for STIIP on the basis that
      she was suffering from panic attacks, anxiety and poor concentration.  In
      support of her claim, she filed a report from Dr. Colby which diagnosed
      her as suffering from "Post-traumatic Stress Disorder; Panic Disorder
      with Agoraphobia; and Major Depressive Disorder, Recurrent."  Amongst
      other things, the report stated that Dr. Colby had been treating the grievor
      since 1991 "primarily in relationship to stresses that were in response
      to work related situations", that "[t]he current situation is
      specifically related to [the grievor's] current employment status" and
      that "any occurrence of employment conflict returns her to her symptomology."

[11]

The
      Employer denied the grievor's claim for STIIP.  It took the position that
      the grievor's absence from work was a response to workplace issues, not
      medical conditions, and that she was medically capable of working.  The
      Employer then made a request for Dr. Colby's notes and records from 1991
      to present; the records of Dr. Chan, a medical doctor in general practice,
      from 1991 to the present, the records of Dr. Marr, a medical doctor in
      general practice, from 1996 to the present, and all of the grievor's medical
      records from the Government Employees' Health Services ("GEHS").

[12]

The
      grievor agreed to provide the Employer with the requested records but only
      on condition that the Union and grievor be allowed to black out all irrelevant
      material, and that only counsel for the Employer and the Employer's medical
      experts have the right to inspect the records.  The Employer would not
      agree to those restrictions.

THE ARBITRATION AWARD

[13]

After
      setting out the relevant background to the dispute, the Arbitrator delineated
      the positions of the parties (at p. 6 of his award):

The
      Employer states that the only restriction that ought to be placed on the
      production of these documents is that they be used solely for the purposes
      of this litigation ("
Jones
order").  The circumstances
      of this case, it argues, does not justify either a
Halliday
order
      [
(1986), 1 B.C.L.R. (2d) 194 (C.A.)]
 the opportunity for the grievor to inspect
      the documents first and remove any irrelevant material  or a
Ryan
order
       restrictions placed on who may have access to the grievor's records.  The
      Employer states that neither the
Halliday
order nor the
Ryan
order
      are to be granted as a matter of right.  And in the case of a
Ryan
order
      it argues that there is a high evidentiary burden.  The Employer further
      argues that to apply anything other than a
Jones
order to the disclosure
      of these documents would unduly restrict its ability to prepare its case.

The Union argues that the parties have negotiated a
      collective agreement that does not permit the Employer to receive all medical
      information in the "first instance"; for example, an Employees'
      application for STIIP benefits.  In these instances, the employer is not
      able to access a physician's confidential report.  The Union argues that
      it is not essential for the Employer's preparation of its case to permit
      persons who are lay witnesses access to the Grievor's clinical records.  However,
      it states that there is great prejudice to the privacy of the Grievor in
      permitting disclosure of her medical records to persons other than counsel
      or medical experts.  They state that this is especially the case in an
      employment relationship.

[14]

The
      Arbitrator then went on to review in some detail court and arbitral decisions
      which had grappled with the issue of disclosure of medical and other personal
      records for the purposes of litigation or arbitration.  His review is admirable
      in terms of its scope, incisiveness and clarity.  I need not refer to his
      reasons at length since the Employer is no longer taking the position that
      the arbitrator erred in refusing to make a
Jones
order, or
      in making a
Halliday
order.  This appeal is restricted to
      the question of whether the arbitrator erred in making a
Ryan
order.

[15]

The
      Arbitrator analyzed the
Ryan
decision in some detail. He
      also referred to several court decisions which had considered or referred
      to
Ryan
, including
Franco v. White
(2001),
      53 O.R. (3d) 391 (Ont. C.A.) (
Ryan
order refused, but disclosure
      also refused under the relevant Ontario Rules of Civil Procedure);
Prasad
      v. College of Physicians and Surgeons
, 2000 BCCA 530 (in Chambers)
      (leave to appeal disclosure order refused, without comment on whether the "
Ryan
order" argument
      constituted an arguable ground of appeal); and
R. v. Mills
,
      [1999] 3 S.C.R. 668 (which considered the constitutionality of ss. 278.1
      to 278.91 of the
Criminal Code
,

R.S.C. 1985,
      c. C-46, in relation to disclosure in sexual assault proceedings).

[16]

The
      Arbitrator also referred to arbitral decisions in which
Ryan
orders
      had been made, including
Celgar Pulp Inc., and Pulp, Paper and Woodworkers
      of Canada, Loc. 1 (Landis)(Re)
(1999), 85 L.A.C. (4th) 436 (Hickling),
      and
British Columbia v. British Columbia Government and Service Employees'
      Union
, [2003] B.C.C.A.A.A. No. 150 (QL), as varied on January 29,
      2004 (Germaine).

[17]

After
      observing that the
Ryan
decision contemplated a partial privilege
      for confidential medical records in certain circumstances, the Arbitrator
      went on to consider whether a partial privilege should be recognized on
      the facts before him.  In so doing, he considered the four factors underlying
      a claim of privilege set forth in
Wigmore on Evidence,
vol.
      8 (McNaughton rev. 1961), and adopted in
Ryan
, namely: (1)
      the communications must originate in a confidence; (2) the confidence must
      be essential to the relationship in which the communication arises; (3)
      the relationship must be one which should be "sedulously fostered" in
      the public good; and (4) if the first three requirements are met, whether
      the interests served by protecting the communications from disclosure outweigh
      the interest in getting at the truth and disposing correctly of the litigation.

[18]

The
      Arbitrator noted that the first three factors were not in dispute, and
      focused his attention on the fourth factor.

[19]

The
      Arbitrator emphasized the extensive nature of the medical records sought,
      and the fact that they would likely cover all aspects of the grievor's
      life, including psychological and medical treatment over the past 12 years.  He
      recognized that because the claim raised "past and current issues
      of post-traumatic stress arising from her previous childhood memories and
      workplace events" and because the grievor was relying on Dr. Colby's
      report, many of the records sought would be relevant.  For that reason,
      he made a
Halliday
order and expressly provided that the
      Employer was entitled to an explanation for any deleted (blocked) materials
      and that any disputed materials could be forwarded to him for determination
      of their relevance.

[20]

In
      dealing specifically with the question of who could review the documents,
      the Arbitrator went on to consider the potential ramifications of unrestricted
      disclosure of the grievor's records in the employment context.  With respect
      to the latter point, the Arbitrator stated (at pp. 17-18):

An individual's employment involves a significant part
      of their life.  It may also involve long-term relationships with co-workers
      and supervisors.  Difficult emotional, psychological and medical issues
      can arise in the workplace.  Where workplace issues and personal issues
      overlap, a delicate balance in regard to privacy must be maintained.  No
      employee should find themselves in circumstances of going back to their
      place of employment, subsequent to an arbitration hearing, with the knowledge
      that their co-workers, supervisors or human resource managers have had
      access to all their most intimate psychological and medical history.  To
      prevent such a result must surely be one of the intended purposes of the
      Supreme Court of Canada remarks in
R. v. Mills
where it stated that
      the right of privacy includes the protection of the mental integrity of
      complainants and witnesses.  Moreover, as stated in
R. v. Mills
,
      disclosure of these kinds of medical and psychiatric records raises issues
      not only of privacy but also security of the person.

[21]

The
      Arbitrator found that the submissions of the parties and the uncontested "evidence" contained
      in them, met the evidentiary onus for a
Ryan
order, with
      particular emphasis on the undisputed fact that the psychological and medical
      history of the grievor involved prior treatment for physical and sexual
      abuse.  I note here that the Arbitrator's reference to uncontested "evidence" must
      be a reference to uncontested "facts", namely the grievor's history
      of abuse and its effect on her in the past (as referenced in the earlier
      Williams and McConchie Awards).  In addition, the Arbitrator had the more
      recent report of Dr. Colby.

[22]

The
      Arbitrator found that the issue of disclosure in this case was distinguishable
      from cases in which the medical records sought related to physical injuries
      flowing from a motor vehicle accident or to a workers compensation claim,
      in which he opined a
Jones
order might be appropriate.

[23]

In
      the result, the Arbitrator concluded that the nature and breadth of the
      documents sought justified not only the editing of clearly irrelevant material
      (a "
Halliday
order") but also restrictions on who
      may review the documents and on what terms (a "
Ryan
order").  In
      his view, the granting of a partial privilege reflected by the
Ryan
order
      protected all interests at stake  discovery, privacy and privilege.

[24]

As
      earlier stated, the Arbitrator emphasized that his order was interim, and
      that it was open to the parties to apply for a review of the conditions
      of disclosure if they proved to be inflexible or unworkable.  (This Court
      was advised that such an application could be dealt with very expeditiously.)

DISCUSSION


(1)
Standard of Review

[25]

The
      determination of the standard of review of an arbitrator's decision has
      been addressed recently by the Supreme Court of Canada in
Voice Construction
      Ltd. v. Construction & General Workers' Union, Local 92
, [2004]
      1 S.C.R. 609, at paras. 15-16:

Canadian jurisprudence
      is plain that in assessing an arbitrator's ruling, the reviewing judge
      should adopt a pragmatic and functional analysis to determine the appropriate
      standard of review:
U.E.S., Local 298 v. Bibeault
, [1988] 2 S.C.R.
      1048;
Pushpanathan v. Canada (Minister of Citizenship and Immigration)
,
      [1998] 1 S.C.R. 982;
Canada (Deputy Minister of National Revenue) v.
      Mattel Canada Inc.
, [2001] 2 S.C.R. 100, 2001 SCC 36;
Dr. Q v. College
      of Physicians and Surgeons of British Columbia
, [2003] 1 S.C.R. 226,
      2003 SCC 19;
Law Society of New Brunswick v. Ryan
, [2003] 1 S.C.R.
      247, 2003 SCC 20;
Toronto (City) v. C.U.P.E.
,
Local 79
, [2003]
      3 S.C.R. 77, 2003 SCC 63. The purpose is to ascertain the extent of judicial
      review that the legislature intended for a particular decision of the administrative
      tribunal:
Pushpanathan
,
supra
, at para. 26;
Dr. Q
,
supra
,
      at para. 21;
C.U.P.E., Local 79
,
supra
, para. 13.

The pragmatic and functional approach involves the consideration
      of four contextual factors: (1) the presence or absence of a privative
      clause or statutory right of appeal; (2) the expertise of the tribunal
      relative to that of the reviewing court on the issue in question; (3) the
      purposes of the legislation and the provision in particular; and (4) the
      nature of the question  law, fact or mixed law and fact:
Pushpanathan
,
supra
,
      at paras. 29-38;
Dr. Q
,
supra
, at para. 26;
Ryan
,
supra
,
      at para. 27. No one factor is dispositive:
Mattel
,
supra
,
      at para. 24.

[26]

The
      question in this case is whether the standard of review is one of reasonableness,
      as posited by the Union, or one of correctness, as posited by the Employer.

[27]

I
      will deal briefly with the application of each of the four factors referred
      to in
Voice Construction
, some of which are overlapping.

(a)
Absence of a Privative Clause

[28]

There
      is no full privative clause protecting the decision of the arbitrator.  Rather,
      s. 100 of the Code provides for a statutory right of appeal to the Court
      of Appeal "if the basis of the decision or award is a matter or issue
      of the general law not included in section 99(1)."  The absence of
      a privative clause and the presence of a statutory right of appeal support
      a less deferential standard of review.

(b)
Relative Expertise
          of the Tribunal

[29]

Where
      the issue is one of general law, as here, the expertise of the courts is
      generally considered to be greater than that of the arbitrator.  The only
      qualification I would add to this statement is that an arbitrator will
      have more expertise in applying the general law to the employment situation,
      and a better understanding of how such an order might impact in the labour
      context than the courts.  Nonetheless, the relative degrees of expertise
      in this case tend to support a less deferential standard of review.

(c)
Purposes of the Legislation and
          the Provision in Question

[30]

The
      general purpose of labour legislation (the Code) was dealt with in
Voice
      Construction
, albeit in relation to the Alberta
Labour Relations
      Code
.  There, Mr. Justice Major, speaking for the majority, stated
      (at para. 28):

The
LRC
seeks
      to regulate and resolve labour disputes in the most efficacious and least
      disruptive way.  Generally, the resolution of labour relations disputes
      by the Labour Relations Board requires "polycentric" decision
      making which means it involves a number of competing interests and considerations,
      and calls for solutions that balance benefits and costs among various constituencies:
      see
Pushpanathan
, at para. 36.
By contrast, proceedings before
      an arbitrator do not require the consideration of broad policy issues.  Instead,
      the role of the arbitrator is to resolve a two-party dispute.
In this
      appeal, that dispute related to the employer's obligation to hire dispatched
      workers.  Even so, this factor suggests a deferential standard of review.

[Emphasis added.]

[31]

In
      the case before this Court, the relevant provision of the Code which provides
      for pre-hearing disclosure is s. 92(1)(c) which simply says that an arbitrator
      may issue pre-hearing orders.  While the application of this provision
      in these circumstances has raised broader policy issues than may usually
      arise in an arbitration, reference back to the greater expertise of the
      courts in matters of general law again tends to support a less deferential
      standard of review.

(d)
The Nature of the Question

[32]

The
      nature of the question here is one of general law involving the interpretation
      and application of the law of privilege in relation to a pre-hearing disclosure
      order.  While there is an element of discretion involved in the determination
      of the terms, if any, which should attach to such an order, the fundamental
      question raised by the Employer in this case is whether a
Ryan
order
      was justified at all.  In my view, the nature of the question also indicates
      a less deferential standard of review.

(e)
Conclusion on Standard of Review

[33]

After
      considering all of these factors, I conclude that the standard of review
      in this case is one of correctness.

(2)
Applicability of a
Ryan
Order

[34]

Since
      the Employer is no longer taking the position that a
Halliday
order
      was inappropriate in this case, the critical issue on this appeal is the
      applicability of the
Ryan
decision and, in particular, the
      applicability of the strict terms imposed in
Ryan
for the
      disclosure of the medical and psychological records in dispute.  Thus,
      for the purpose of this discussion, I will assume that the grievor and
      counsel for the Union will block out those parts of the records which are
      clearly irrelevant to the issue of the grievor's entitlement to STIIP.  It
      is important to note, however, that the blocking of clearly irrelevant
      material from the records does not answer the question of whether the Arbitrator
      erred in granting a partial privilege from full disclosure, since the whole
      point of privilege is to protect documents from disclosure whether they
      are relevant or not.

[35]

I
      turn, then, to the
Ryan
decision. I will refer to both the
      Court of Appeal (1994), 98 B.C.L.R. (2d) 1, and Supreme Court of Canada
      decisions to highlight the difference in the approach they took to the
      issue of disclosure.

[36]

In
Ryan
,
      the plaintiff sued her former psychiatrist for damages for sexual assaults
      he perpetrated on her while she was his patient. Subsequent to the assaults,
      the plaintiff sought treatment from another psychiatrist, Dr. Parfitt.

[37]

The
      defendant applied pursuant to Rule 26(11) of the
Rules of Court
,
      B.C. Reg. 221/90, for production of Dr. Parfitt's clinical records, including
      reporting letters and notes.  Dr. Parfitt, supported by the plaintiff,
      objected to production of her notes, but not of the reporting letters.

[38]

On
      appeal to this Court, the Court found that, because the plaintiff had not
      asserted privilege over the disputed documents, she must be taken to have
      waived any claim of privilege.  The Court went on, however, to find that
      there was a discretion available under Rule 26(11) which could be exercised
      in favour of protecting a  plaintiff's privacy interests where the balancing
      of interests required it.  In the result, this Court held that, "at
      this stage" Dr. Parfitt did not have to disclose her "notes to
      myself which are an attempt to make sense of what the patient is telling
      me" (since Dr. Parfitt was not being called as a witness for the plaintiff),
      but that she did have to produce the reporting letters (to which no exception
      to production had been taken) and notes which recorded discussions between
      herself and the plaintiff.  The latter category of notes were ordered produced
      on the strict conditions imposed by the Arbitrator in this case, including
      terms that they be produced only to the defendant's lawyers and expert
      witnesses.  The order anticipated that one or more of the terms could be
      varied with leave of the Court.

[39]

On
      appeal by the defendant to the Supreme Court of Canada, Madam Justice McLachlin
      (now Chief Justice), speaking for the majority, framed the issue before
      the court at para. 1 of the decision:

Put in terms of principle, should a defendant's right to relevant material
      to the end of testing the plaintiff's case outweigh the plaintiff's expectation
      that communications between her and her psychiatrist will be kept in confidence?

[40]

In
      the result, the majority of the Supreme Court of Canada upheld this Court's
      order restricting disclosure, but did so on the basis of partial privilege,
      rather than under Rule 26(11).  In so doing, McLachlin J. expressly disavowed
      the use of Rule 26(11) on the grounds that "[w]here the doctrine of
      privilege applies, it displaces any residual discretion which might otherwise
      be thought to inhere in favour of the party claiming privilege." (Para.
      15.)  In dissenting reasons, Madam Justice L'Heureux-Dubé agreed that a
      successful claim of privilege had been established.  In her view, however,
      there was a residual discretion under Rule 26(11) to preclude disclosure,
      and any disclosure should have been precluded pursuant to that rule.

[41]

In
      discussing the specific question of whether partial privilege should adhere
      to communications between psychiatrist and patient, McLachlin J. found
      that there was a compelling interest in protecting the communications from
      disclosure under the
Wigmore
criteria, but went on to state
      as follows (at paras. 31-33):

More, however, is
      required to establish privilege.  For privilege to exist, it must be shown
      that the benefit that inures from privilege, however great it may seem,
      in fact outweighs the interest in the correct disposal of the litigation.


At this stage,
        the court considering an application for privilege must balance one alternative
        against the other.  The exercise is essentially one of common sense and
        good judgment.  This said, it is important to establish the outer limits
        of acceptability.
I for one cannot accept the proposition that "occasional
        injustice" should be accepted as the price of the privilege. . .
        .

It follows that
      if the court considering a claim for privilege determines that a particular
      document or class of documents must be produced to get at the truth and
      prevent an unjust verdict, it must permit production to the extent required
      to avoid that result.  On the other hand, the need to get at the truth
      and avoid injustice does not automatically negate the possibility of protection
      from full disclosure.
In some cases, the court may well decide that
      the truth permits of nothing less than full production.  This said, I would
      venture to say that an order for partial privilege will more often be appropriate
      in civil cases where, as here, the privacy interest is compelling.  Disclosure
      of a limited number of documents, editing by the court to remove non-essential
      material, and the imposition of conditions on who may see and copy the
      documents are techniques which may be used to ensure the highest degree
      of confidentiality and the least damage to the protected relationship,
      while guarding against the injustice of cloaking the truth.

[Emphasis added.]

[42]

Both
      the Union and the Employer rely on the passage just quoted.  The Union
      emphasizes the statements that the decision to make an order of partial
      privilege is "one of common sense and good judgment"; that an
      order for partial privilege will be more readily made in civil, as contrasted
      with criminal, proceedings; and that the balancing of interests can be
      achieved by attaching terms to disclosure.  The Union submits that the
      Arbitrator's order is in keeping with those comments.

[43]

The
      Employer submits that the order here is "beyond the outer limits of
      acceptability".  In essence, the Employer submits that
Ryan
orders
      should be limited to "
Ryan
-like" situations in
      which a victim of sexual assault seeks to prevent disclosure of therapeutic
      records generated as a result of the assault, to the perpetrator of the
      assault.  The Employer submits that it is only in cases of that nature
      that it can be said that the privacy interests of the plaintiff outweigh
      the defendant's interest in full and unrestricted disclosure for the purpose
      of making full answer and defence.

[44]

In
      that regard, there is no doubt that there are distinctions between this
      case and
Ryan
.  Perhaps the most significant distinction
      is that the grievor was not sexually assaulted by the party claiming production
      of her records, or by anyone working for the Employer.  In other words,
      this is not a situation where the grievor will be re-victimized in the
      sense of being forced to produce her records to the very person who assaulted
      her.  The grievor is, nonetheless, a victim of past physical and sexual
      abuse, who has been treated for years for the repercussions flowing from
      that abuse.  In that respect, she is at risk of being re-victimized by
      being forced to fully disclose her medical records, even if the re-victimization
      is not at the hands of the perpetrator.

[45]

Further,
      as in
Ryan
, the disclosure of therapeutic and medical records
      of victims of sexual abuse in proceedings such as these, if known, might
      well impact on the willingness of victims to seek treatment or, alternatively,
      to pursue legitimate workplace grievances if they had sought treatment.  In
      other words, if victims of sexual abuse were aware that records of any
      medical and psychological treatment they sought would be available to future
      employers or workers compensation boards in the event of a disputed claim
      in the workplace, they might well wonder if the benefits of counselling
      and other medical treatment were worth the risk of potential future disclosure.

[46]

Finally,
      as in
Ryan
, there is an equality concern underlying the issue
      of disclosure in this case since, as noted in
Ryan
, the victims
      of sexual assault are most often female.

[47]

For
      these reasons, I do not find persuasive the Employer's argument that
Ryan
orders
      should be restricted to cases which closely mirror the facts in
Ryan
.  The
      same policy considerations which justified a finding of partial privilege
      in
Ryan
also tend to justify a finding of partial privilege
      here.  The fact that disclosure is being sought in an employer-employee
      context is an additional reason to restrict disclosure, for the reasons
      given by the Arbitrator and quoted at para. 20 of my reasons.

[48]

In
      my view, the Employer is advocating an unduly narrow interpretation of
      the
Ryan
decision.  While I agree that
Ryan
orders
      should not be made as a matter of course, I am satisfied that the
Ryan
decision
      was intended to provide a framework within which applications for disclosure
      of medical, psychological and other records triggering the
Wigmore
criteria
      could be examined on a case-by-case basis to determine whether a partial
      privilege was warranted, and if so, on what terms.  The decision-maker
      must apply the
Wigmore
criteria, take into account
Ryan
and
      other relevant decisions, and make a judgment call as to where the balance
      falls on the facts.  That is precisely the approach taken by the Arbitrator
      in this case.

[49]

It
      does not follow, however, that because an Arbitrator follows the correct
      approach, his or her order will necessarily be correct.  There may well
      be cases in which it is obvious that a
Ryan
order cannot
      be justified, or where it is apparent that the Arbitrator erred in balancing
      the interests at stake, or otherwise.

[50]

In
      this case, the principal reasons given by the Arbitrator for limiting disclosure
      of the grievor's medical and therapeutic records to the Employer are set
      out at paras. 19-23 of these reasons.  In addition to recognizing the compelling
      privacy interest the grievor had in her medical and therapeutic records
      in light of her background, the Arbitrator was particularly concerned about
      the effect of unrestricted disclosure on the employee-employer relationship.  In
      that regard, he referred to decisions in which similar orders had been
      made by arbitrators in the labour context, including
British Columbia
      Government and Service Employees' Union,
supra,
and
Celgar
,
      supra
(albeit without much discussion in the latter case).

[51]

The
      Arbitrator recognized, however, that the Employer had a valid concern about
      its ability to properly prepare its case and instruct counsel.  For that
      reason, he expressly provided that the parties could apply for directions
      in the event the order proved to be unworkable.  In that regard, it is
      worth noting that where claims are made for STIIP supported by a medical
      report or certificate, it appears to be common for those claims to be dealt
      with in the first instance by the Employer's medical experts, who advise
      the Employer as to whether a claim is justified or whether further medical
      information is required, while preserving the confidentiality of the records.  Although
      the Employer is not restricted to that procedure in the case of disputed
      claims, the procedure recognizes that the foundation of the claim is essentially
      medical in nature and, in my view, provides a further rationale for limiting
      disclosure to counsel and the Employer's medical experts in the first instance.

[52]

While
      it is true that the effect of a
Ryan
order is to interfere
      with the solicitor-client relationship to some extent, it is apparent from
Ryan
and
      other decisions that the Supreme Court of Canada and other courts (and
      tribunals) have concluded that a limited degree of interference with the
      solicitor-client relationship is justified in the balancing of interests
      in some cases.  The Arbitrator was not breaking new ground in making the
      order in dispute.  The fact that the Employer may be placed at somewhat
      of a tactical disadvantage or may have to justify obtaining further direct
      disclosure of documents in order to obtain settlement instructions, for
      example, has not been recognized as a persuasive basis for refusing a
Ryan
order
      where it is otherwise warranted.

[53]

In
      the result, I am not persuaded that the Arbitrator erred in finding that
      the requested documents were subject to a partial privilege in this case.  However,
      that does not end the matter.  A finding of partial privilege triggers
      a consideration of terms which will protect the grievor's privilege to
      the greatest extent possible, while interfering with the Employer's right
      to make full answer and defence and properly instruct its counsel to the
      least extent possible.  Can it be said that the terms imposed here are "outside
      the bounds of acceptability", as contended by the Employer?  In my
      view, the answer to that question must start with a review of the manner
      in which this case was argued before the Arbitrator.

[54]

I
      begin by observing that the Employer over-reached in its claim for production
      of all records on the basis of a
Jones
order.  That request
      completely ignored the privacy and relevancy concerns presented on the
      facts, particularly given the findings of physical and sexual abuse and
      related psychological problems suffered by the grievor and set out in the
      earlier Williams Award.  Further, the Employer placed negligible restrictions
      on the representatives of the Employer who would have access to any records
      produced.  In this Court, the Employer referred to these representatives
      as the Employer's "team".  The factum did not indicate the size
      or make-up of the team; nor does it appear that this was made clear to
      the Arbitrator.

[55]

At
      the hearing of this appeal, the Employer acknowledged that its reference
      to its "team" was unhelpful, and it indicated that effective
      disclosure could likely be made to one or two representatives of the Employer
      who generally handle these types of claims (in some cases without engaging
      counsel).  These would be the people who, together with the Employer's
      medical experts, would instruct the Employer's counsel.  As I understood
      the Employer's submission in this Court, the Employer would not be seeking
      disclosure to anyone with whom the grievor had worked, including her supervisor(s)
      or personnel manager(s).  While those individuals might be witnesses in
      relation to workplace incidents involving the grievor, there was no suggestion
      that they should be privy to the grievor's medical or therapeutic records.

[56]

If
      the Employer had taken this approach before the Arbitrator in the first
      instance, it is possible that the Arbitrator may have made an order which
      permitted one or more persons specified by the Employer to have access
      to the medical records in order to instruct counsel.  Unfortunately, the
      Arbitrator was not asked to consider this option, or to canvass whether
      such an order would be sufficiently protective of the grievor's privacy
      interests.  Nor was it suggested to the Arbitrator that the category of
      documents for which disclosure was sought should be broken down into sub-categories
      with different terms of disclosure being considered for each category.  These
      approaches to disclosure, amongst others, were approved, although not mandated,
      by the majority judgment in
Ryan
.

[57]

Although
      this Court has been provided with a more persuasive case for making a less
      restrictive order for disclosure than was made before the Arbitrator, the
      question remains whether the order made by the Arbitrator was incorrect.

[58]

In
      the result, I am not persuaded that the order was "outside the bounds
      of acceptability" in these circumstances.  It would only be outside
      those boundaries if the
Ryan
decision were given the narrow
      interpretation advocated by the Employer.  I have already stated my view
      that the decision is not so restricted.  Rather, as both the majority and
      dissenting judgments in
Ryan
make clear, the issue of partial
      privilege and the terms of orders made where partial privilege is found
      have to be decided on a case-by-case basis.  That is the approach taken
      by this Arbitrator in his very careful and thorough reasons.  It remains
      open to the parties to return to him in the event the order proves unworkable.

[59]

I
      find it necessary to add that the order cannot reasonably be regarded as
      unworkable unless and until the Employer makes an effort to make it work.  That
      effort would begin with the parties complying with the
Halliday
and
Ryan
orders,
      providing the resulting documents to the Employer's counsel and to the
      Employer's experts, and then returning to the Arbitrator, if necessary,
      in the event that problems arise which require further directions.

CONCLUSION

[60]

I
      would dismiss the appeal.



The Honourable
Madam
      Justice Prowse


Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[61]

The
      Province of British Columbia (the "Employer") appeals with leave
      the order of an arbitrator concerning disclosure of medical records of
      a grievor in a disputed claim for disability benefits.  The grievor's claim
      is based on a medical condition extending back into a pre-employment medical
      history that includes sensitive particulars of physical and sexual abuse.  The
      background is outlined in the reasons of Madam Justice Prowse.

[62]

Before
      the arbitrator, the Employer contended that the only restriction on full
      disclosure of the records to its "team" should be that the records
      would be used solely for the purposes of the litigation.  The arbitrator
      imposed
Halliday
and
Ryan
terms on disclosure,
      referencing
Halliday v. McCulloch
(1986), 1 B.C.L.R. (2d)
      194 (C.A.) and
A.M. v. Ryan
, [1997] 1 S.C.R. 157.  The
Halliday
terms
      allowed counsel for the grievor to review the records for relevance before
      making disclosure.  The
Ryan
terms required that any person
      who views the documents must keep them confidential and the documents are
      to be used only for the purposes of the hearing.  Only one copy is to be
      made and all of the grievor's medical documents must be destroyed at the
      conclusion of the hearing.

[63]

On
      this appeal, the Employer accepted those terms as reasonable and confined
      its objection to one
Ryan
term, namely that "only Counsel
      for the Employer and its medical experts may view all of [the grievor's]
      clinical records".  The Employer submits that this condition conflicts
      with its ability to receive advice from counsel and to instruct counsel
      in the grievance proceedings.

[64]

It
      is a fundamental common law axiom that a party to litigation is entitled
      to full disclosure of all documents and other evidence that is relevant
      to the litigation, subject only to privileged exceptions.  Disclosure of
      documents to counsel for a party that is withheld from the party itself
      compromises the candor of the relationship between lawyer and client and
      impairs counsel's ability to obtain fully-informed instructions in the
      conduct of the proceedings.  Disclosure limited to counsel and expert witnesses
      should be discouraged in all but very exceptional cases.

[65]

The
      facts of
Ryan
illustrate the exception.  The defendant who
      sought disclosure of the plaintiff's intimate psychiatric records was the
      individual who had sexually assaulted her in the course of his prior psychiatric
      treatment.  The sensitivity to the disclosure of records of therapeutic
      psychiatric treatment to the perpetrator of the assault was acute.  It
      threatened to impair the therapeutic relationship between the plaintiff
      and her treating psychiatrist.  McLachlin J.(now C.J.C.) for the majority
      of the Supreme Court, upheld an order restricting disclosure of the treating
      psychiatrist's reporting letters and notes of discussions with the plaintiff
      to the defendant's solicitors and, as necessary, to his expert witnesses.

[66]

The
      Employer's case before the arbitrator was weakened by its resistance to
      sensible terms, and its reference to the Employer's "team" which
      left the impression of an amorphous group to whom disclosure would be made.  In
      his oral submission before us, Mr. Gall clarified the "team" as
      limited to two officials charged with the responsibility of instructing
      counsel in grievance proceedings and perhaps one additional person at a
      more senior level in the event of a matter that exceeded the authority
      of the others to give the necessary instructions.  None of these individuals
      would have any connection to the grievor's workplace, either as co-workers
      or supervisors.

[67]

This
      clarification would have assisted the arbitrator. The passage from his
      reasons quoted by Prowse J.A. indicates that the Union's main concern in
      resisting disclosure was in permitting access to "persons who are
      lay witnesses".  The arbitrator shared that concern, evident from
      his quoted reference to the difficulty of the grievor returning to employment
      if co-workers and others in the workplace had access to her intimate psychological
      and medical history.  Mr. Gall's position before us was that none of the
      persons to whom it wishes to have disclosure would have any co-worker or
      supervisory connection to the grievor's workplace.  For clarification,
      it should be noted that the records in issue relate primarily to the grievor's
      pre-employment medical history and there is no relevant restriction on
      records related to the grievor's workplace history which counsel may have
      to discuss with co-workers or other lay witnesses in the course of preparing
      their testimony for the grievance hearing.

[68]

In
      my view, the limitation on disclosure goes farther than is necessary to
      meet the legitimate concerns expressed by the Union and the arbitrator
      and cannot be supported under
Ryan
.  The limited disclosure
      in issue does not raise privacy concerns that are similarly compelling.  The
      Employer is an institutional party and its representatives to whom disclosure
      is sought are presumed to be responsible officials charged with the mandate
      of instructing counsel in the defence of the grievance.  They are not part
      of the grievor's workplace environment and they are required by the terms
      of the arbitrator's order to maintain the strict confidentiality of the
      disclosure.  The arbitrator's expedient, a re-application for further disclosure,
      is not an effective answer.  Counsel could be required to explain to the
      arbitrator why he wished to make disclosure to his client.  That would
      impinge on the confidentiality of the solicitor-client relationship and
      potentially involve an explanation to the arbitrator that would prejudice
      the Employer at the hearing.

[69]

The
      appeal comes to this Court pursuant to s. 100 of the
Labour Relations
      Code
, R.S.B.C. 1996, c. 244.  I agree with Prowse J.A. that the
      standard of review on the issue before us is one of correctness.  Applying
      that standard, I think that the arbitrator made a reviewable error by restricting
      disclosure to counsel and the expert witnesses in the face of the Employer's
      presumptive right to full disclosure.  I am satisfied that a more limited
      restriction will adequately meet the compelling privacy concerns of the
      grievor.  The relationship between party and counsel is impaired if counsel
      is unable to fully inform the client and obtain instructions based on full
      and candid disclosure.

[70]

I
      would amend the arbitrator's order to allow the instructing representatives
      of the Employer to view the clinical records to the extent required by
      Employer's counsel to give informed advice and obtain instructions in the
      conduct of the Employer's case.  Under this term, counsel will keep control
      of the records and will have the responsibility to confine disclosure on
      a "need to know" basis to Employer's representatives who are
      not connected to the grievor's workplace and who will be required to maintain
      confidentiality.

[71]

Accordingly
      I would allow the appeal.



The Honourable
Mr. Justice Mackenzie

I Agree:

The
      Honourable
Mr. Justice
      Smith




