Ontario Public Service Employees Union v. Her Majesty The Queen in Right of Ontario

[1983] OLRB Rep. April 597

2347-82-R Ontario Public Service Employees Union, Applicant, v. Her Majesty The Queen in Right of Ontario, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members L. Collins and W. H. Wightman.

APPEARANCES: Chris G. Paliare, Pauline R. Seville, Ivor Oram, James Clancy and Art Lane for the applicant; C. G. Riggs, D. Alfieri, J. Hunter, F. Koch and C. Slater for the respondent.

DECISION OF THE BOARD; April 7, 1983

1. This is a application under section 4 of The Successor Rights (Crown Transfers) Act, 1977. It concerns the purported (or impending) transfer to "the private sector" of a home for the developmentally handicapped known as the St. Lawrence Regional Centre and operated by the Crown in Right of Ontario.

2. When this matter came on for a hearing before the Board, counsel appeared on behalf of the Crown and submitted that, there was no intention to impede these proceedings, but they appeared to him to be premature. It was his information that there was, as yet, no legal entity to which any transfer of operations had been effected, although he had been advised that a number of individuals were seeking to create such entity by letters patent, and that subsequently there would be a transaction with the Crown in respect of the subject facility. He suggested that the matter be adjourned until the transaction had crystallized and undertook to advise the applicant of the situation when he himself was advised. Moreover, since the Crown (as predecessor employer) would necessarily be in a position to know when any transaction to which the Act could apply had been completed, this seemed to the Board to be a sensible suggestion and one which could avoid the prospect of unnecessary litigation. For as things currently stand, the union has no means of knowledge about the transaction other than through an application such as this but, because its members' rights depend upon the timing of the transaction's completion, it is put in the position of making repeated applications, some of which will necessarily be premature, simply to protect its bargaining rights. That is obviously in no one's interest.

3. After some discussion, the applicant agreed to accept the suggestion of counsel for the Crown, to adjourn this matter for the time being, and to bring it on again when the situation crystallizes. The applicant was further content to accept counsel's undertaking to keep the union informed.

4. The only other matter which arose involves a subpoena issued to one Robert W. Runciman. Mr. Runciman was shown the original, and personally served with a copy of a subpoena (together with conduct money) requiring his presence for the hearing in Toronto. However, Mr. Runciman indicated that he did not intend to appear because, he said, he had only been left with a copy of the subpoena. He did not in fact appear at the hearing. Since the evidence establishes that service was properly effected, the applicant requested the Board, on its own motion, to seek an appropriate Court order directing compliance with its subpoena. We decline to do so.

5. The authority to issue a subpoena is spelled out in section 12 of the Statutory Powers Procedure Act which reads as follows:

12.-(l) 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.

(2) A summons issued under subsection (1) shall be in Form 1 and,

(a) where the tribunal consists of one person, shall be signed by him; or

(b) where the tribunal consists of more than one person, shall be signed by the chairman of the tribunal or in such other manner as documents on behalf of the tribunal may be signed under the statute constituting the tribunal; and

(c) shall be served personally on the person summoned who shall be paid the like fees and allowances for his attendance as a witness before the tribunal as are paid for the attendance of a witness summoned to attend before the Supreme Court.

(3) Upon proof to the satisfaction of a judge of the Supreme Court of the service of a summons under this section upon a person and that,

(a) such person has failed to attend or to remain in attendance at a hearing in accordance with the requirements of the summons;

(b) a sufficient sum for his fees and allowances has been duly paid or tendered to him; and

(c) his presence is material to the ends of justice,

the judge may, by his warrant in Form 2, directed to any sheriff, police officer or constable, cause such witness to be apprehended anywhere within Ontario and forthwith to be brought before the tribunal and to be detained in custody as the judge may order until his presence as a witness before the tribunal is no longer required, or, in the discretion of the judge, to be released on a recognizance (with or without sureties) conditioned for appearance to give evidence.

(4) Service of a summons and payment of tender of fees or allowance may be proved by affidavit in an application under subsection (3).

(5) Where an application under subsection (3) is made on behalf of a tribunal, the person constituting the tribunal, or where the tribunal consists of two or more persons, the chairman thereof may certify to the judge the facts relied on to establish that the presence of the person summoned is material to the ends of justice and such certificate may be accepted by the judge as proof of such facts.

(6) Where an application under subsection (3) is made by a party to the proceedings, proof of the facts relied on to establish that the presence of the person summoned is material to the ends of justice may be by affidavit of such party.

That section makes it clear that a Board subpoena is binding upon those to whom it is directed, but this does not mean that it is the Board which must seek enforcement, nor has it been the Board's practice to do so. While the Board may be entitled on its own motion to make such application to the Court (see section 12(5)), the Board has generally left it to the party seeking the attendance of a witness to take the necessary steps to ensure that the subpoena is complied with. Certainly, in the circumstances of this case, there is no compelling reason why the Board should enter the arena as a litigant opposed in interest to a potential witness in proceedings before it. Section 12 provides the applicant with a remedy should it seek to pursue it.

7. We also note that these proceedings were commenced under The Successor Rights (Crown Transfers) Act, but the subpoena served upon Mr. Runciman refers to the Labour Relations Act. Thus, it is arguable that the subpoena is defective, even though service was not. Of course, this is a question which would ultimately have to be determined by a Court, but the problem could probably be avoided altogether by the issuance and service of a new subpoena.

8. For the foregoing reasons, this application is adjourned sine die for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated.