Labourers' International Union of North America, Local Union 183 v. Ontario Humane Society

[1980] OLRB Rep. December 1776

1489-80-U Labourers' International Union of North America, Local Union 183. Complainant, v. Ontario Humane Society, Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members T. G. Armstrong and H. Simon.

APPEARANCES: L. Richmond and B. Yandell for the complainant; Ian F. H. Rogers, Q. C. for the respondent.

DECISION OF THE BOARD; December 15, 1980

1. The name: "Ontario Humane Society Division 028, Keswick, Ontario" appearing in the style of cause of this application as the name of the respondent is amended to read: "Ontario Humane Society".

2. This is a complaint under section 79 of The Labour Relations Act in which it is alleged that the grievors have been dealt with by the respondent contrary to the provisions of sections 14, 56, 58 and 61 of the Act. During the course of the Board's hearing on December 8, 1980, a witness testifying under subpoena refused to answer a certain question put to him by counsel for the complainant, this is an interim decision dealing solely with the relevance of the question asked, the admissibility of the answer and the compellability of the witness to answer the question which was put to him.

3. By decision dated August 8, 1980 in File No. 0782-80-R, another panel of this Board certified the complainant as the bargaining agent for all employees of the respondent at Keswick, Ontario in the Township of Georgina, save and except foremen, persons above the rank of foreman, office, clerical and sales staff. The grievors in the present case are all of the employees in that bargaining unit.

4. Paragraph 4 of the (Form 32) complaint reads as follows:

"The following is a concise statement of the nature of each act or omission complained of...

Since on or about July 3 1st, 1980 and continuing to date, the grievors have been dealt with by the respondent through persons employed by the respondent in managerial or supervisory capacities, contrary to the provisions of sections 56, 58 and 61 of The Labour Relations Act in that the respondent improperly and unlawfully:­

(a) interfered with the selection of a trade union or the representation of employees by a trade union;

(b) sought by threat of dismissal and by other kinds of threats and by other means to compel employees of the respondent to refrain from becoming or to continue to be members of the complainant Union and to cease to exercise other rights under the Act;

(c) sought by intimidation or coercion to compel employees of the respondent to refrain from becoming or to cease to be members of the complainant Trade Union and to refrain from exercising other rights under the Act.

And since on or about August 18th, 1980 and continuing to date the grievors were dealt with by the respondent through persons employed by the respondent in a managerial or supervisory capacity contrary to the provisions of section 14 of The Labour Relations Act in that the respon­dent improperly and unlawfully refused to meet with representatives of the complainant and bargain in good faith and make every reasonable effort to make a collective agreement after having received proper notice under section 13 of The Labour Relations Act."

5. The particulars of the complaint (as set forth in the statement of particulars attached to the complaint and supplemented by letters dated October 30, 1980 and November 5, 1980 from counsel for the complainant to the Registrar of the Board) are as follows:

"i) The respondent provides animal control services under contract with the Township of Georgina at Keswick, Ontario.

ii) The Union commenced its organizing drive in July 1980 and applied for certification on July 11th, 1980. (Board File 0782-80-R).

iii) On July 17th, 1980, T. I. Hughes, Executive Vice-President of the respondent, wrote to the Canadian Union of Public Employees (CUPE) stating, 'It is my understanding that CUPE has already been certified to represent our employees in the Durham region. Georgina is part of our Durham region and obviously two unions cannot represent the same people. I intend to oppose this application on these grounds and I would expect that CUPE would wish to have something to say in the matter as well.'

iv) As well, on or before July 17th, 1980, the respondent posted the 'notice to employees'.

v) Despite the above actions, the respondent failed to file with the Board a reply, a list of employees, or a list of specimen signatures, and requested an adjournment at the hearing of August 1st, 1980.

vi) At the hearing of August 1st, 1980. the Board ruled in paragraph 8 of its decision dated August 8th, 1980, Paragraph 8 'It might be noted that the Canadian Union of Public Employees, Local 1323, appeared at the hearing and sought to intervene in the proceedings, on the basis that it represented a unit of employees at the Township of Georgina. Upon being advised, however, that the employees affected by the instant application have ceased to be employed by the Township, were now employed by the respondent Humane Society, CUPE Local 1323 withdrew its attempt to intervene [sic].'

vii) Accordingly, at the hearing, the Board certified the complainant as exclusive bargaining agent of all employees of the respondent employed at Keswick, Ontario in the Township of Georgina, save and except foremen, persons above the rank of foreman, office, clerical and sales staff.

viii) On August 18th, 1980 a representative of the Union telephoned Mr. Hughes to arrange dates for commencement of negotiations. Mr. Hughes replied that he would not meet the Union because CUPE was appealing the decision of the Board that issued the certificate to the complainant. In fact, no notice of reconsideration or appeal has been re­ceived by the complainant and the complainant believes that no such action has been taken by CUPE.

ix) On August 19th, 1980 the Union sent by registered mail, formal notice to bargain in accordance with section 13 of The Labour Relations Act.

x) On August 20th, 1980, due to the respondent's refusal to arrange dates with the complainant, the complainant applied for the assistance and the appointment of a Conciliation Officer.

xi) On August 22nd, 1980 the respondent sent a letter to the Union stating inter alia, 'There would appear to be little point in attending a meeting as suggested, since you have already chosen to deny the right of the Society to meet with you and have applied for a Conciliation Officer.'

xii) On September 5th, 1980 the Deputy Minister of Labour advised the parties that Mr. J. Leonard had been appointed as Conciliation Officer and would convene a meeting of the parties Monday, September 22nd, 1980 at the Ministry's offices.

xiii) At the meeting of September 22nd, 1980 Mr. John Kirkland, representative of the respondent, informed the complainant that the respondent would not negotiate an agreement with the complainant be­cause the complainant did not represent employees of the respondent.

xiv) On or about September 30th, 1980, at the Animal Shelter in Keswick, Ontario, representatives of the respondent told the employees that the respondent was refusing to renew its contract with the Township of Georgina and would close its shelters unless the employees revoked their Union membership in the complainant.

xv) On or about Wednesday, October 1st, 1980, the respondent caused to be published in a local paper, named', The Georgina Advocate, that the respondent was not renewing its contract with the Township of Georgina.

xvi) On October 1st, 1980, the Minister of Labour issued a 'No Board' report, respecting this bargaining unit."

xvii) On or about October 1, 1980, an officer from mediation services, Mr. Berger, contacted a representative of the complainant Union, Brian Yandell and advised Mr. Yandell that mediation services would be convening a meeting with the parties in order to assist them in reaching a collective agreement, on October 15th or October 16th. Mr. Yandell ad­vised Mr. Berger that he was prepared to meet on either of those days and negotiate in good faith.

xviii) On or about October 14th 1980 Mr. Yandell telephone [sic] Mr. Berger to confirm the date of the meeting. Mr. Berger informed Mr. Yandell that he did not feel mediation services would be useful at this time and the meeting was therefore cancelled. This meeting was cancelled because the Respondent would not meet with the complainant Union.

xix) On or about October 8th, 1980 Mr. Hughes sent a letter to the Chief Administrative Officer of the Township of Georgina which letter claims that the Ontario Humane Society may not be renewing its contract with the Township of Georgina due to a Union dispute. The Respondent did not raise this issue with the complainant Union at any time. The complainant Union understands that termination of their con­tract would result in the employees losing their jobs with the Respondent.

xx) The complainant Union states that the above particulars demonstrate that the actions of the Respondent constitute violation of Sections 14, 56, 58 and 61 of the Labour Relations Act and in particular constitute a failure to bargain in good faith and make every effort reasonable to make a collective agreement in that:

a. the Respondent has refused to recognize the Complainant as the exclusive bargaining agent of the employees for whom the Complainant was certified,

b. the Respondent has sought to undermine the position of the Com­plainant as exclusive bargaining agent of the employees in the eyes of the employees,

c. the Respondent has threatened and continues to threaten to cancel its contract with the Township of Georgina in order to avoid dealing with the Complainant,

d. the Respondent has refused to engage in any rational discussion concerning the contents of any collective agreement with the complainant Union.

xxi) On November 4th 1980 the complainant Union received notice from the Board that six separate applications for Declaration Termi­nating Bargaining Rights had been received by the Board. (Board File 1617-80-R). These applications were made by members of the bargaining unit in this complaint, naming the complainant Union as the Respondent.

xxii) The complainant Union states that the applications for Declara­tion Terminating Bargaining Rights were caused by and brought about through the actions of the Respondent, as set out in these particulars and in contravention of Sections 14, 56, 58 and 61 of the Labour Relations Act." [emphasis added].

6. One of the witnesses called by the complainant at the hearing of this matter was Robert Johnston, the Managing Editor of The Georgina Advocate, a weekly newspaper serving the Regional Municipality of the Township of Georgina. Mr. Johnston, who testified under subpoena, stated that he wrote the following article which appeared on the front page of the Wednesday, October 1, 1980 edition of the Georgina Advocate (which was entered as an exhibit in these proceedings):

"HUMANE SOCIETY TO QUIT?

GEORGINA - The Advocate has learned the Georgina Township has re­ceived a letter from the Ontario Humane Society stating they will cease their animal control services to the Township at the end of December31, 1980.

Wayne Woods, Township Administrator told the Advocate that 'if we have received a letter then I will be reporting on to council following my investigation of it'.

It was only in December, 1979 that the Ontario Humane Society took over the animal control services for the western portion of the Township. On April 1, 1980 they took over the remaining eastern portion of the Township.

As part of the agreement between the Township and the Humane Society the building and all of the equipment inside of it remained the property of the Township.

The vehicle that had been used by the Township for its animal control work has been transferred to another department in the Township.

The Ontario Humane Society Office in Georgina was contacted but no one would comment. The Ontario Humane Society's main office was also contacted but no comment was made on the subject."

7. In his examination in chief by counsel for the complainant, Mr. Johnston testified that he received several telephone calls on September 29, 1980 and wrote the story quoted above from the information received through those calls. It was his evidence that prior to the calls, he was not planning any articles on the respondent and had no idea that the respondent was "quitting". After questioning Mr. Johnston concerning his attempts to confirm the story, counsel for the complainant asked the following questions and received the following responses:

Q: You said you received "several calls". How many calls is "several"?

A: I received two phone calls.

Q: Who were they?

A: I prefer not to divulge their names. We're a small weekly newspaper.

I must respectfully not reply to this. I must protect my sources.

Q: There's no privilege of the press. You're here under subpoena. You're not volunteering it. I ask you again who they were.

[The Board directed the witness to answer the question.]

A: I'm sorry sir. I'll respectfully decline to answer the question. I mean no disrespect to the Board by this.

8. Counsel for the complainant then requested and was granted a brief recess to consider his position. When the hearing resumed, the Board heard the submissions of counsel for the complainant and afforded the witness, who had discussed the matter with his employer's solicitor, an opportunity to respond.

9. A court or administrative tribunal can compel a journalist to reveal his sources of information for a particular story where the identify of his informants is relevant to an issue before it. The jurisprudence on this point is aptly summarized in the following passage from Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at 211:

"It has long been established that neither in Canada nor in England is there any privilege relating to a newsman's sources of information."

(See also Volume 2 of Schiff, Evidence in the Litigation Process (Toronto: Carswell, 1978) at 1010; J. Buzzard et al., ed., Phipsonon Evidence (l2thed. London: Sweet and Maxwell, 1976) at 243; Cross, Evidence (3rd ed. London: Butterworths, 1967) at 244 and Nokes, Cockle's Cases and Statutes on Evidence (11th ed. London: Sweet & Maxwell, 1970) at 108.) The rationale for this legal principle was explained in the following passage from the judgment of Sir Owen Dixon in McGuiness v. A. G. of Victoria (1940), 63 C.L.R. 73, at 102 (High Court of Australia), which was quoted with approval by Lord Parker C.J. in Attorney-General v. Clough, [1963] 1 All E.R. 420, at 427 (Q.B. Div.) and by Sheppard J.A. in McConacby v. Times Publishers Ltd. (1964), 1964 CanLII 448 (BC CA), 49 D.L.R. (2d) 349, at 358 (B.C.C.A.):

"No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege [such as husband and wife, attorney and client].. . an inflexible rule was established that no obligation of honour, no duties of non-disclosure, arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box."

(See also Attorney-General v. Mulholland, [1963] 1 All E.R. 767, in which the Court of Appeal upheld the sentences of six months and three months respectively which Gorman J. had passed on two reporters who refused to reveal to a tribunal of inquiry (which was inquiring into certain matters which the British Parliament had required to be investigated) their sources of information for articles which they had written germane to the subject matter of the inquiry.)

10. Section 92(2) of The Labour Relations Act provides in part as follows: "Without limiting the generality of subsection 1, the Board has power,

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases . .

Section 12, 13 and 15 of The Statutory Powers Procedure Act, 1971, S.O. 1970, c. 47, provide in part as follows:

"12.-(I) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at a hearing; and

(b) to produce in evidence at a hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceedings and admissible at a hearing.

13. Where any person without lawful excuse, . . .

(b) being in attendance as a witness at a hearing, refuses.., to answer any question to which the tribunal may legally require an answer...

the tribunal may, of its own motion or on application of a party to the proceedings, state a case to the Divisional Court setting out the facts and that court may, on application on behalf of and in the name of the tribunal or by such party, inquire into the matter and, after hearing any witness who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.

1 5.-( 1) Subject to subsections 2 and 3, a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject matter of the proceedings and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceedings arise or any other statute.

(3) Nothing in subsection I overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceedings."

11. The Board considers that it is requisite to the full investigation and consideration of the matters in issue in this complaint that Mr. Johnston answer the aforementioned question put to him by counsel for the complainant concerning his sources for the article quoted above. The identity of those sources is clearly relevant to the factual issue of whether "on or about Wednesday, October 1, 1980, the respondent caused to be published in a local paper, namely, The Georgina Advocate, that the respondent was not renewing its contract with the Township of Georgina", as alleged in paragraph xv of the complainant's statement of particulars set forth above. (Indeed, Mr. Johnston's testimony may well constitute the only effective manner in which that allegation could be proved since it is certainly not realistic to expect counsel for the complainant to subpoena every officer and agent of the respondent and every person employed by the respondent in managerial or supervisory capacities, in order to ask them whether they directly or indirectly caused the aforementioned article to be published in The Georgina Advocate.) Thus, it is proper and necessary that the question be answered by Mr. Johnston as the factual issue to which it pertains is relevant to the legal issue of whether the respondent has violated sections 56, 58 and 61 which provide as follows:

"56. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support of a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

58. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employee or continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

61. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act."

That factual issue might also be relevant to the legal issue of whether the respondent has violated section 14 of the Act, which provides:

"14. The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement."

12. Accordingly, at the hearing the Board made an oral ruling that the answer to the question put to Mr. Johnston was relevant and admissible, and that Mr. Johnston could be compelled to answer it. In so ruling, the Board explained to Mr. Johnston that there is no privilege under the law of Ontario which permits a journalist to refuse to reveal to the Board his sources for a particular story where such information is relevant to an issue in proceedings before the Board. The Board further explained to the witness that by refusing to obey the Board's order that he answer the question, he exposed himself to contempt proceedings under section 13, of The Statutory Powers Procedure Act, 1971, which could result in his imprisonment.

13. Mr. Johnston, who it may be noted was polite and courteous at all times in his responses to the Board and to counsel, then stated:

"I'm not prepared to answer the question. I don't wish any disrespect to the Board or its hearing. My job is in a small community. Our job would be much harder if we begin revealing our sources."

14. The hearing was then recessed at 12:20 p.m. to resume at 1:30 p.m. Prior to the recess, the Board suggested to Mr. Johnston that it might be advisable for him to consult further with his employer's solicitor with respect to the matter during the recess.

15. When the hearing resumed, the Board asked Mr. Johnston if his position had changed and he indicated that it had not. The question set forth above was then put to Mr. Johnston again and the Board ordered him to answer it. He refused to do so and thereby breached an order of the Board.

16. Counsel for the complainant request the Board to initiate contempt proceedings forthwith against Mr. Johnston. He further indicated that if the Board declined to apply to the Divisional Court on its own motion with a view to having the witness punished for contempt, the complainant would itself make such application forthwith.

17. Pursuant to section 13 of The Statutory Powers Procedure Act, 1971, the Board, on application by the complainant consents to state a case to the Divisional Court with respect to the punishment appropriate in light of Mr. Johnston's contempt in the face of the tribunal (see Extendicare Ltd., North York, [1979] OLRB Rep. July 641) so that the Court may, on application by the complainant, determine the matter in accordance with that section.

18. Counsel for the complainant and counsel for the respondent agreed that under the circumstances, further examination of Mr. Johnston should be deferred pending disposition of the application to the Divisional Court for punishment of the witness for contempt, which application counsel for the complainant undertook to make in relation to the case to be stated by the Board. On the agreement of the parties, the Board heard the evidence of one other witness who had been subpoenaed by the complainant and then adjourned the hearing sine die.