Collective Bargaining - NL

Collective Bargaining Newsletter

No. 6, July 2026

When “Without Prejudice” Has Different Meanings

It is not uncommon for various professions to have their own ‘terms of art.’ A term of art is a word or phrase with its own unique meaning that may not be obvious from the specific words used. Medical doctors order ‘work ups’ – a series of unique assessment steps to determine illness or treatment; and architects use the phrase ‘instruments of service’ to describe drawings, files and other creative work that applies to a project. In collective bargaining we use the phrase ‘without prejudice’ to describe various procedural and content protections. But what happens when the negotiating parties don’t share the same definition of the phrase? This was an issue at a recent interest arbitration between the Moose Jaw Professional Fire Fighters Association and the Corporation of the City of Moose Jaw (2025). In a lengthy decision, Arbitrator James Casey considered whether “in the absence of agreement of the parties, is information from collective bargaining admissible in the interest arbitration?”

Background

At arbitration the City argued that evidence of the parties’ proposals and counter proposals was critical to the arbitration board’s understanding of their relative positions at the point of impasse. Since arbitration, for essential services, is a substitute for the right to strike or lockout, arbitrators seek to “replicate” what the parties would have agreed to had they reached a natural conclusion in negotiations. In this case the City argued that there is no better evidence to support replication than where the parties were, even if it is only the point of impasse, when negotiations ended. In making this argument, the City’s interpretation of the without prejudice rule was narrow – protecting only the ability of the parties to modify the wording of bargaining positions. The City did not make clear at any point through negotiations that it took this narrow view and had never made this assertion in five interest arbitrations over the last twenty-five years.

The Association strongly objected to the City’s intent to present evidence on the parties’ discussions during negotiations. Throughout the negotiations, the Association understood the phrase ‘without prejudice’ as protecting both the content discussed, as well as a process assurance that should negotiations fail, the positions and discussions between the parties would be confidential and not, therefore, subject to disclosure to an arbitration board. Through witnesses, the Association’s evidence was that the term ‘without prejudice’ was used frequently and consistently throughout their discussions.

The Parties’ Arguments

The City of Moose Jaw argued that the law on this question has evolved. The City focused on two decisions from British Columbia, including a 2018 fire fighter case. The first case, FortisBC (2014), in a strike/lockout sector, the employer provided a “final offer” to the union which the membership rejected.[i] The members were then locked out. The parties eventually agreed to put the dispute to interest arbitration. At arbitration the employer tabled the final offer (which it had ratified in the interim period), and tendered evidence of the negotiation history. The union objected, making the point that the process was protected by the ‘without prejudice’ expectation. The arbitrator concluded that “interest arbitration is a mere extension of the bargaining that occurred.” As such he determined that there was no such expectation of privilege, there being no “judicial recourse” in a strike or lockout sector. The arbitrator concluded that the negotiation communications could not be expected to be protected from disclosure since there was no statutory dispute resolution process after impasse. The arbitrator also observed “the overwhelming preponderance of arbitral authority” supported the disclosure of bargaining history at arbitration. However, a thorough review of the interest arbitration authorities finds the opposite - that bargaining history is protected in these circumstances.

In a second BC case from 2018, the City of Nelson and its firefighters were at interest arbitration, and the history of negotiations was raised by the employer. In that case the arbitrator followed the FortisBC reasoning and concluded that it would be “antithetical” to the replication principle to deprive the arbitrator of the knowledge of the bargaining history. He also gave weight to the parties’ shared understanding that there was no settlement until everything was resolved.

In Moose Jaw, the City challenged the Association’s evidence that each session began with a ‘without prejudice’ statement and even if the phrase was used, the parties differed on what it meant. In the end, the City argued that the Association failed to establish privilege, or if it did, it waived it in the process.

Association Argument

Each member of the Association bargaining committee gave evidence that at each interaction between the parties, the dialogue commenced with the phrase ‘without prejudice’. At arbitration the Association argued that the collective bargaining process would grind to a halt, limiting the effectiveness of any exchange between the parties. The Association argued that the process must be confidential to ensure that a thorough dialogue could be had. In support of this position the Association relied on a 1974 police decision from Ontario, Board of Commissioners of Police for the City of Brantford and the Brantford Police Association. In that case the arbitrator observed that if the parties entered negotiations with the knowledge that the content of direct negotiations would be placed before an interest arbitrator, the parties’ ability to engage in meaningful negotiations would be completely frustrated. In that case, Arbitrator Fergson concluded:

When engaging in negotiations, with or without the assistance of a conciliation officer, the efforts of both parties are directed to bringing about a full and final agreement. To achieve this end, flexibility must exist so as to permit the making of proposals, and counterproposals, which may be constantly subject to amendment or retraction. If the parties entered negotiations with the knowledge that the content of their direct negotiations would be automatically arrayed before an arbitrator, their abilities to engage in meaningful negotiations is likely to be completely frustrated. Proposals made by one party in negotiations may be considered reasonable in light of other compromises. A collective agreement incorporates a “package” of economic elements woven within a fabric of compromise.

The Association then surveyed an extensive history of the Brantford Police Association decision across interest arbitrations in multiple Canadian jurisdictions, many specifically rejecting the two BC decisions relied on by the City of Moose Jaw. The Association’s “policy” reasoning for excluding bargaining history was supplemented by an argument based on settlement privilege.

The Arbitrator’s Reasoning

In the Moose Jaw case Arbitrator Casey considered the competing positions of the parties in an extensive analysis of the replication principles against the promotion of flexibility and encouraging dialogue between the negotiating parties. The arbitrator accepted, to some extent, the “extension of the bargaining process” argument that supports some disclosure based on the replication principle. He also expressed some support for the difference in interpretation between the parties – one party may conclude that bargaining history is excluded while the other party may not—the parties not sharing an early definition of the meaning of ‘without prejudice’. Finally, the arbitrator expressed some concern that the arbitration process be a “start-over” of the opening positions, with the parties tabling issues before the arbitrator that were not part of the substantive discussions between the parties.

While the arbitrator expressed some sympathy for these positions, he also cautioned that bargaining history should be protected based on the policy reasons expressed in Brantford Police Association. He identified real concerns with anything that would “impede effective collective bargaining”.

Arbitrator Casey distinguished the authorities and expressed his support for those where there was greater clarity on the status of issues in the back-and-forth of negotiations. Where they were clearly marked as without prejudice, was there a shared understanding of its meaning? The arbitrator bridged these points into an analysis of the law on settlement privilege. Taking this course, the arbitrator identified the three elements necessary to establish privilege:

There is a litigious dispute.
The communication was made with the express or implied intention that it would not be disclosed in a legal proceeding in the event negotiations failed; and
The purpose of the communications was to attempt to affect a settlement.

The arbitrator reviewed the history of the common law settlement privilege and concluded that if its three elements are satisfied, the proposal “must be considered privileged and excluded from evidence”. He specifically made this point notwithstanding his earlier comments about the importance of the bargaining history to the replication principle. The arbitrator concluded that “the societal value in protecting the privilege outweighs the value of considering the potentially relevant evidence that is excluded”.

Arbitrator Casey considered the three elements of the common law settlement privilege rule. He concluded that there was a litigious dispute – given the statutory interest arbitration process. He further agreed that, based on the evidence of the Association’s negotiating committee, there was clarity on the expression of their intent that the exchanges were meant to be without prejudice. This satisfied the second settlement privilege test. Finally, the arbitrator had little difficulty concluding that the exchanges were in support of reaching a settlement, thus satisfying the third settlement privilege test. He did so, in relation to the Association’s exchanges, yet reached a different conclusion when considering the City’s exchanges. The arbitrator concluded that the objection raised by the Association didn’t limit the City’s submitting certain of its exchanges, which he determined had not satisfied the second part of the settlement privilege test. As a result, exchanges were not clearly protected.

In the end the arbitrator accepted the Association’s argument on privilege, but rejected its blanket application, thereby accepting limited positions from the City. He concluded that “the lack of an explicit or implicit agreement between the parties as to what information from collective bargaining can or cannot be referenced in the interest arbitration has greatly disrupted the arbitration process”. He observed that the parties, henceforth, should determine what these terms mean earlier in the negotiation process.

Practical Considerations

There are several key practical considerations that come from this recent arbitration decision. While it is my experience that seldom do the parties have this difference of understanding of the phrase ‘without prejudice’, it is worth making clear what it means at the earliest point in the negotiation process. Negotiators who have participated in our advanced collective bargaining training will recall the term “bargaining over the bargaining process” – a list of various process and conduct expectations that are defined at the start of negotiations and reinforced throughout. This is when the definition of without prejudice should be both clear and shared between the parties. Moreover, the decision reinforces the importance of having the phrase in the header or footer of every document exchanged – again this can be protected in well-structured opening statements.

___________

FortisBC and IBEW, Local. 213, 2014, CarswellBC, 3763.

Nelson (City) and IAFF, Loc. 1343, 2018 CarswellBC 1317

Board of Commissioners of Police for the City of Brantford and Brantford Police Association, 5. L.A.C. (2d) 136.

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COLE LABOUR

Bill Cole created COLE LABOUR in early 2023 to focus on collective bargaining, interest arbitration, negotiation training and organizational development for labour unions, with a particular focus on first responders and health care. Bill has extensive experience representing unions in collective bargaining in the police, firefighter, health care, airline pilot, hotel workers, steelworkers, broader public and private sectors. He has wide-ranging experience in mediation and interest arbitration in multiple sectors and jurisdictions across Canada. Bill has developed and delivered introductory, intermediate, and advanced negotiation training to thousands of union representatives across North America. He is the co-author of The Art of Collective Bargaining available at Thomson Reuters.

Bill Cole is a Senior Research Associate at Harvard's Center for Labor and a Just Economy, and a faculty member of Harvard's Trade Union Program where he teaches organizational development. He has a doctoral degree from the University of Western Ontario where his research examined the relationship between union leaders and members, and strategies for improving engagement and organizational resilience.

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