Tenure-ous logic? Slavutych v Baker, 35 Years Later
Journalists, lawyers, police officers, and students of evidence law are still awaiting the Supreme Court of Canada’s (“SCC”) decision on the scope of ‘informer-journalist’ privilege in R v The National Post, 2008 ONCA 139 [National Post], arguments heard May 22, 2009. I do not intend to try my hand at divining the result or the Supreme Court’s eventual reasoning in this case (for discussion of National Post, see here and here).
My aim is to break new ground at TheCourt.ca by looking at the foundation for contemporary Canadian “case-by-case” privileges first established in obiter by the Supreme Court decision in Slavutych v Baker et al,  1 SCR 254 [Slavutych]. In addition to commemorating the thirty-fifth anniversary of this case, this article aims to examine how the decision has held up in light of subsequent case law. In doing so, the application of the Wigmore test (so named because it originated in the classic Evidence text Wigmore on Evidence), which received short shrift in Slavutych can be examined with an eye to considering the result if such a case were to be argued in the near future.
For readers not familiar with the Canadian law of evidence, there are two broad approaches to determining whether certain probative evidence should be excluded from the trier of fact because of a legal privilege attaching to that evidence. A class privilege attaches on a prima facie basis to all communications made in certain contexts; the classic example is the ‘solicitor-client’ privilege jealously protected by the common law.
Conceptually, the public interest in protecting the confidential nature of lawyer-client relationships outweighs the substantial public interest in deciding cases on their merits. This veil of secrecy is such that even the starting principle of evidence law (that all relevant and reliable evidence should be admitted, unless a specific reason for exclusion can be demonstrated) is turned on its head: parties seeking to challenge the exercise of a class-based privilege bear the burden of proving disclosure is warranted, by showing either why the evidence at issue does not fall into a class-privilege or that said evidence does fall within a narrow exception to the blanket exclusionary rule.
Case-by-case privileges, on the other hand, are markedly more narrow. There are some confidential relationships, such as “journalist – confidential source” or “spiritual advisor – parishioner,” which society may wish to protect in certain instances but which are not so integral to the justice system as to warrant the blanket exclusion of practically all communications made in all instances of such relationships. In such cases, it is up to the party advancing a privilege to prove why evidence should be excluded, contrary to the normal rules of evidence. Slavutych provided the SCC with an opportunity to articulate the appropriate criteria for courts to use when assessing such claims.
The appellant Slavutych was a professor at the University of Alberta. As part of the University’s internal vetting process for tenure applications, he was asked by the president of his department to provide his opinion of a colleague whose name had been put forward for promotion. After receiving assurances that the information would be kept in strict confidence and then destroyed, Slavutych agreed to fill in a “Tenure Form Sheet,” which stated:
Below the following name, state frankly your opinion on the advisability of tenure, given your factual knowledge of the case. [Emphasis in original]
Slavutych’s response included the following unsubstantiated allegations:
He [the other professor] was highly dishonest, often unethical.
He favoured certain students by giving them high marks—so that they might praise him before the administrators.
He participated in intrigues and the smearing, invented by his former Head. However, he did not hesitate to plunge a long knife in his former chairman’s back after the latter was relieved from his duties.
As a result of these allegations (as well as others not relevant to this case), the president initiated disciplinary action in accordance with Slavutych’s contract of employment. Ultimately, these proceedings went to a board of arbitration, which held that Slavutych’s derogatory and untruthful statements on the “Tenure Form Sheet” constituted just cause for his termination. Slavutych appealed the arbitration board’s findings, first to the Alberta Court of Appeal (“ABCA”) and eventually to the SCC.
Neither the ABCA (see  5 WWR 723) nor the SCC decided Slavutych on privilege alone; indeed, the SCC ultimately preferred to use the doctrine of equitable confidences to decide the case. Nevertheless, both levels of court accepted the Wigmore test as determinative of whether privilege should attach to the Tenure Form Sheet:
… four fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [emphasis in original]
The ABCA accepted the Wigmore test as helping to illustrate a proper approach to privilege, centered on balancing public policy considerations. The Court of Appeal also noted, however, that a communication made in confidence is not ipso facto a privileged communication; rather, in words of Sinclair J.A., the critical question was whether: “public policy demands a recognition of the appellant’s claim to privilege because the tenure form sheet was secured from him on a confidential basis?” In his view, candidness in the tenure review process was satisfactorily protected by qualified privilege (as a defence to tortious claims potentially advanced by aggrieved tenure applicants).
Further, while the Court of Appeal acknowledged the potential public interest in ensuring faculty are free to provide frank and fully confidential opinions of other colleagues as part of a tenure process, there was an equal public interest demanding “that the University, and the community as a whole, be be served by professors whose fitness, in the final analysis, is determined by the dismissal procedure… in which it is fundamental that all matters relevant to the issue of fitness be considered.” As Slavutych had not made out a compelling case for attaching privilege to his Tenure Form Sheet, the Court of Appeal upheld the arbitration board’s decision to terminate his employment.
The SCC disagreed, finding Slavutych’s statement met all four Wigmore criteria. In the Court’s view, the communication clearly originated in confidence: not only did the President stress the confidentiality of Slavutych’s opinion, but the Tenure Form Sheet itself stated that its contents were to be confidential. Spence J. had no difficulty deciding that confidentiality was essential to the tenure vetting procedure, as it would have been “simply impossible” for confidential statments to become known to an applicant for tenure or to other staff.
The third condition received little judicial attention; Spence J. simply concluded that, “surely it is in the interest of the university community that the relationship between colleagues must be fostered and that the proper procedures for granting tenure to members of the university staff must be furthered [emphasis mine].” The Court found that, therefore, the first three factors “stress[ed] the desirability of the preservation of the confidential nature of the communication.”
At the fourth and final balancing stage, the Court recognized an interest in the proper functioning of discipline procedures, but Justice Spence felt this was not sufficient to justify breaching the confidentiality of the Tenure Form Sheet. Even if the two could be equated, Spence J. found confidentiality of the document, given that not only was there firm agreement between both parties that the material should remain confidential, but the party (the University of Alberta) who sought to introduce Slavutych’s statements was the party which repeatedly emphasized the confidentiality of same. Accordingly, had the Court been required to decide the issue, the impugned statements would have been inadmissible.
More Recent Developments
The Supreme Court again wrestled with issues of case-by-case privilege some sixteen years later in R v Gruenke,  3 SCR 263. In determining whether ‘religious communications’ could attract a case-by-case privilege, the Court provided guidance as to the proper context for the Wigmore factors. L’Heureux-Dubé J. (concurring) pointed out that the Wigmore test was originally proposed as a set of criteria to determine when a new categorical privilege would be recognized. In her view, “[a]n ad hoc approach to privilege may overshadow the long-term interest which the recognition of a religious privilege seeks to preserve.” Accordingly, she would have focused on the long-term, broader, societal interests in protecting religious communications.
Her view was not accepted by the majority. According to Lamer C.J., the Wigmore criteria provide a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court.” While Charter values can play an important role in assessing claims of privilege under this approach, it is up for judges to consider the particular circumstances of each case on a case-by-case basis.
Unfortunately for our purposes, neither the majority nor the minority found it necessary to embark on a thorough application of the Wigmore factors as they both agreed the relevant communication did not originate in circumstances of confidence. The full Wigmore test was considered in M(A) v Ryan,  1 SCR 157, a civil case involving allegedly privileged psychiatric treatment records involving the plaintiff, who had been sexually assaulted by the defendant. The majority had no qualms accepting that psychiatrist – patient communications occurred in confidence, and that confidence is essential to the successful maintenance of the relationship. As to the third factor, McLachlin J. (as she then was) found it was:
…widely accepted that it is in the interests of the victim and society that such help be obtained. The mental health of the citizenry, no less than its physical health, is a public good of great importance. Just as it is in the interest of the sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society. […] The relationship itself and the treatment it makes possible are of transcendent public importance.
Finally, regarding the appropriate balancing of factors, the majority noted that common law (including the Wigmore test) should be in accordance with Charter values. Thus, in addition to the personal and societal interests in ensuring victims of sexual assault are able to seek effective treatment, sections 8 and 15 of the Charter militate in favour of protecting psychiatrist-patient confidentiality.
At this stage, McLachlin J. adds a new dimension to the test for this specific case-by-case privilege, much to the dismay of L’Heureux‑Dubé J. (who dissented vigorously on this issue). The majority held the fourth stage of Wigmore is not necessarily an ‘all-or-nothing’ exercise. In some cases, getting to the truth of a matter may well demand full disclosure of all relevant documents; in others, full protection for the privacy of such records outweighs even the substantial public interest in ensuring the courts do not work injustices.
Often, however, disclosure of a select number of documents vetted by the court may suffice if coupled with strict conditions governing the accessibility and use of the documents disclosed. McLachlin J. opined this may especially be so in civil suits, where the less severe potential consequences for defendants may result in diminished disclosure interests, and accordingly greater privileges accorded to psychiatric records.
Most recently, in Glegg v Smith & Nephew Inc.,  1 SCR 724, the Supreme Court briefly acknowledged the continued pre-eminence of the Wigmore test in common law provinces. While this case involved disclosure of confidential documents in a civil context, disclosure in Quebec is “governed by a complex set of legislative rules” and thus the case is otherwise not of particular assistance.
Thirty five years later, how has the Slavutych conception of “privileged tenure commentary” stood the test of time (and subsequent judicial reasoning)? Surprisingly well in principle, I would argue. The Court has repeatedly cautioned that the Wigmore framework is flexible, ought to be applied in line with relevant Charter principles, and is subject to variation based on the unique public policy aspects associated with each variety of potential case-by-case privilege. Despite these refinements, the Wigmore framework has nevertheless been clearly adopted by the Supreme Court as the governing framework for scrutinizing claims to case-by-case privilege.
Examining the actual application of the Wigmore test, however, shows Slavutych in a somewhat less flattering light. It seems clear on the facts that Slavutych provided his comments on the Tenure Form Sheet on the understanding they were to remain confidential. The Court then identified confidentiality as integral to the tenure application review process, without clearly defining the relevant relationship the mooted privilege was intended to protect: was it ‘assessor – department head’; ‘assessor – university tenure review body’; or, ‘assessor – colleagues’?
This confusing flaw is compounded by the Court’s perfunctory analysis of the third stage, where Spence J. finds that the “university community” has an interest in both fostering relationships between colleagues and in ensuring that tenure is granted properly. Be that as it may, this is no different from any other workplace which promotes from within on the basis of confidential evaluations. While the Supreme Court would be free to distinguish this situation on broader policy grounds at stage four, I question whether such relationships are of such important that the ‘community’ believes they should be assiduously advanced.
The answer likely would depend on the scope of the “community” whose views are considered at the third stage of the Wigmore analysis. As I’ve emphasized above, Spence J. referred to the “university community,” as opposed to the Canadian community, the public, or some other equally sweeping abstraction. Though subsequent jurisprudence has not yet addressed this question directly, McLachlin J.’s consideration of public opinion writ large at the third stage of the Wigmore test in M(A) v Ryan could be highly indicative of how the Court will treat this issue in future cases.
This whole discussion is more than a tempest in an ivory-teapot: while the tenure system and its associated processes appear to remain integral to Canadian universities, and many members of said university communities feel strongly about the importance of maintaining both the integrity of the tenure process and the collegiality of their work environment, I strongly doubt today’s Court will readily accept (without empirical data) that Canadian society views any one of the aforementioned relationships as an object to be “sedulously fostered” to a similar extent as “journalist – confidential” or “spiritual advisor – supplicant” relationships.
If this hurdle is overcome, however, in McLachlin J.’s discussion of the lesser disclosure interest in civil matters I hear echoes of Spence J.’s ultimate conclusion that greater weight should ultimately be accorded to the confidentiality of the Tenure Form Sheet in Slavutych. While it is possible Spence J.’s result would be upheld by a future Court (perhaps on the public interest in enforcing private agreements of future confidentiality as between relevant private parties), the fourth Wigmore test appears open to a potential rebalancing. For my part, I am deeply disturbed that employees could be free to spread malicious rumours about their colleagues without fear of repercussion, but I’d be interested to hear what others think.
For my part, Slavutych indicates that, if one is concerned about back-stabbing, one might just be safer a couple of blocks down the street well away from the hallowed halls of academe. At least when courts consider charges of Assault with a Weapon, the truth might eventually out.