On April 16, Robert Dion filed an application for decertification of the Builders Union local at Careful Contracting. The union did not fi le a reply to the application, but the employer did. The labour relations board, following the requirements in the relevant legislation, set the date of the decertification vote as April 20, and posted a notice in the workplace about the vote. Voting would take place at the board offices.

After the notice of the vote was posted, the employer contacted the board to request a mail-in ballot for one employee, Samuel Davis. Davis was away on vacation and would not be back in time to participate in the vote. The union filed an objection to this request, as the board had never previously considered vacation an acceptable reason for providing alternate methods of voting in decertification votes. The vote was held as scheduled on April 20. On April 24, the employer contacted the board again and requested that Davis be allowed to vote in person. The relevant legislation allowed a five-day window after the vote was held to resolve any issues around the vote itself. That same day, after receiving the employer’s request, the board set up a polling station at its offices and again sent out the notice of the vote. Davis came to the board offices and cast his vote.

His ballot was segregated from the others, and none of the votes were opened or counted.

The board decided to investigate the application for decertification before proceeding any further with the decertification request. An officer of the board conducted interviews with, among others, the applicant, the applicant’s lawyer, the union’s lawyer, and the employer’s lawyer. When the officer interviewed the union’s lawyer, the lawyer asked the officer to ask the applicant if the employer was paying for the legal fees associated with the application. The officer asked the applicant that question and did not receive a definitive answer. The officer included the question and answer in his report on the investigation, which was circulated to all the parties involved. After reading the report, the board decided to hold a hearing on the application. 

The Union’s Position

The union’s lawyer told the board that the union local had been certified for less than two years, and that the union and the employer were still in the process of developing their relationship. A collective agreement is already in place at Careful Contracting because in this industry the unions and the employers bargain a single province-wide agreement.

The union’s lawyer told the board that the union suspected employer involvement in the decertification application because the law firm representing the applicant is a prominent law firm that generally represents employers in industrial relations matters. The union’s lawyer questioned whether a labourer would be able to afford the cost of representation by such a firm on his own.

The union’s lawyer also told the board that Dion had not given a clear answer to the question of whether the employer was paying the fees associated with legal representation and with filing the application. The union‘s lawyer stated that if Dion was paying his own costs, he likely would have answered the board officer’s question by saying that, or by saying something like “none of your business.”

The union’s lawyer argued that solicitor-client privilege should not apply in this situation because the question was about who was paying for the legal fees, not about the amount of fees. The union’s lawyer stated that the source of the legal fees was an important piece of information for the board in determining whether the application for certification should go ahead, as the information could help determine whether there was employer interference in the application.

The union’s lawyer cited two cases in other provinces where labour relations boards ruled that a question about payment of legal fees was an allowable question whose answer was not protected by solicitor-client privilege.

The Employer’s Position

The employer’s lawyer told the board that the union had no substantive proof for its suspicion and that the union had not provided any evidence to the board that supported its suspicion. The employer’s lawyer stated that it was objectionable for the union to imply that Dion was too poor to pay legal fees on his own, and that the union should have to provide some evidence to indicate employer interference before Dion should be required to reveal who was paying his legal fees.

The employer’s lawyer argued that as Careful Contracting was located in a relatively small city, the applicant had a limited choice of law firms to represent him, especially law firms that regularly represented unions or employees in industrial relations matters. The employer’s lawyer noted that the same law firm that was representing Dion had represented employees in two other decertification applications within the past two years. The employer’s lawyer also noted that many legal firms and individual lawyers occasionally provide pro bono services (for free or at a reduced price) to clients. The employer’s lawyer pointed out that the union had not responded to the decertification application when it was fi led, and that normally a reply would be filed if the union was opposed to the decertification.

The Applicant’s Position

The lawyer representing the applicant told the board that since the union had not filed a response to the decertification application, there was no evidence to form a foundation for allegations of undue influence by the employer. The applicant’s lawyer also argued that the question about the source of payments for the legal fees should be covered by solicitor client privilege, and that since the applicant had not knowingly waived his right to that privilege, he should not be required to answer the question. The applicant’s lawyer added that any discussions of arrangements between the lawyer and the client about the amount of fees or how they would be paid were also protected by solicitor-client privilege.

The applicant’s lawyer stated that the union would not have been concerned about the decertification application if his firm had not been involved in previous applications of that kind. The applicant’s lawyer also argued that since the applicant was seeking decertification of the union, it would not have made sense for him to hire a pro-union law firm as his representative.

The applicant’s lawyer told the board that he agreed that evidence of an employer paying an employee’s legal fees for decertification should trigger an inquiry. However, he argued, an allegation that such a situation may be happening, without any supporting evidence, should not be a reason to investigate the details of the arrangement between the lawyer and the client, either directly or indirectly.

The Union’s Response

The union’s lawyer told the board that in decertification applications, the union has the right to file a reply with the board within ten days of the application being made, but the union is not required to file a reply. The union’s lawyer argued that the union not filing a response to this application does not make the concern about employer interference any less legitimate.

The union’s lawyer also stated that the union’s concerns about the source of the applicant’s legal fees were not baseless. The union’s concerns were supported by the applicant not directly answering the board officer’s question about the source of payment for his legal fees.