City of Ottawa v. IATSE Local 471, preliminary award dated March 16, 2017 (re. Settlement Privilege)

This proceeding concerned a policy grievance regarding the scope of the collective agreement between the parties, specifically, whether the collective agreement covered stagehands on all future performing arts venues at Lansdowne. On the first day of the hearing, the arbitrator determined that the scope clause in the collective agreement was ambiguous and, as such, the parties could rely on extrinsic evidence as an aid to interpretation.

The Union sought to rely on an agreement previously reached between the parties concerning the bargaining unit covered by the collective agreement. In particular, it sought to rely on the without prejudice proposals it had put forward during the negotiations of a settlement agreement of another matter. The employer objected to the admission of without prejudice proposals as extrinsic evidence on the basis of settlement privilege.

The arbitrator held that an exception to settlement privilege applied and the Union could rely on without prejudice proposals made in the course of negotiating a previous settlement agreement. First, he determined that although the previous settlement discussions related to a proceeding before a labour relations board, they concerned an amendment to the scope provision of the collective agreement and made the settlement agreement part of the collective agreement. Therefore, the settlement discussions were, at least in part, mid-term collective bargaining discussions. Secondly, the arbitrator held that where a dispute arises as to the meaning of a settlement, an exception to settlement privilege applies and exchanges made in furtherance of the settlement may be put into evidence for the purpose of establishing the true understanding of the parties with regard to the settlement they have entered into. Therefore, having found that the provision of the collective agreement in question was ambiguous, the Union could adduce extrinsic evidence, including the settlement document.

The arbitrator ordered that the matter proceed to a hearing on the merits.

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English (Canada)