Communications Between Employees and Employer About Repayment of Legal Fees Not Subject to Solicitor Client Privilege

Several employees of Harper’s Recycling applied for decertification. The union challenged the decertification vote and filed an unfair labour practice complaint claiming that the employer was attempting to stack the voters’ list with newly hired employees. During the decertification hearing, the union put a number of questions to an employee witness in an attempt to establish that the employer had agreed to repay legal costs of certain employees in relation to their decertification application.

The questions posed to the employee witness by union counsel were:

1. How much have you paid in legal fees?
2. If you have not paid anything in legal fees, what arrangements have you made to pay?
3. What do you understand are the arrangements for paying for your counsel?
4. What do you understand are the arrangements to pay back to Certain Employees the amounts paid to counsel?
5. How did you come to retain counsel?
6. When was that?

Counsel for the affected employees objected to the questions on the basis of solicitor/client privilege, and brought an interim application, requesting that the Board address the objections to the union’s questions. The union maintained its questions were appropriate and relied on a recent Board decision dealing with a Starbuck’s decertification in which similar questions were allowed.

The Board sustained the objections to the first three questions on the basis of solicitor client privilege, and specifically, that the answers to these questions would reveal the terms of the retainer between the affected employees and their lawyer. The Board also upheld the objections to questions 5 and 6 on the basis that the breadth of these questions could potentially reveal privileged communications between solicitor and client.

However, the Board directed the employee witness to answer the fourth question posed by the union. In this regard, the Board observed that the scope of this question was limited to the arrangements, if any, which existed between certain of the employees and their employer to repay any legal fees incurred. The question contemplated communications between these employees and their employer, and not between these employees and their counsel. As a result, the Board concluded that such communications were not protected by solicitor client privilege.

Certain Employees of GL Harper Scrap Metal and Demolition Ltd. (Harper’s Recycling), BCLRB No. B45/2004, February 9, 2004.