Ontario Labour Relations Board

[1984] OLRB Rep. August 1088

1296-82-U; O 195-83-U Luciano D'Alessandro and Donato Marinaro, Complainants, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents

BEFORE: Robert D. Howe, Acting Chairman, and Board Members F. W. Murray and W. F. Rutherford.

APPEARANCES: Ed J. Brogden for the complainants; A. M. Minsky, R. D'Andrea and D. D'Andrea for the respondents.

DECISION OF THE BOARD; August 17, 1984

1. The purpose of this decision is to provide in written form certain unanimous oral rulings given by the Board at various stages of these ongoing consolidated proceedings, as jointly requested by counsel for the complainants and counsel for the respondents.

2. On February 2, 1984 the Board ruled as follows:

[Rulings other than that relating to the admissibility of court transcript have been omitted:

Editor]

3. On August 9,1984, the Board ruled as follows with respect to the admissibility of a transcript of the evidence given by the respondent Rocco D'Andrea in certain other proceedings:

Having carefully considered the submissions of counsel, we have decided to exercise our discretion under section 103(2)(c) of the Labour Relations Act and under section 15 of the Statutory Powers Procedure Act to admit the transcript of the evidence given by the respondent Rocco D'Andrea in proceedings against him in the County Court Judges Criminal Court of the County of Lambton concerning alleged alteration of Union Executive Board Minutes pertaining to the operation of the Local 1089 hiring hall. In ruling in favour of admitting this transcript, we make no ruling as to the weight, if any, to be given to such transcript as we are of the view that that is a matter best left for decision, if necessary, after we have heard final argument. In opposing the admission of that transcript, Mr. Minsky submits that it does not contain any admissions against interest by Mr. D'Andrea. However, as noted by complainants' counsel, the Board cannot decide whether or not the transcript contains any such admissions until it has received and read the transcript. In view of our broad powers to admit (and act upon) any oral testimony and any document or other thing relevant to the subject matter of the proceedings, it is unnecessary to determine whether the transcript would be admissible in a court under common law principles. However, we would note that admissions made by a party have traditionally been regarded by the courts as admissible at the instance of the opposite party as an exception to the hearsay rule. The weight to be given to such evidence depends upon a number of factors, including the solemnity of the occasion on which it was made. While such admissions need not be made under oath to be admissible, the fact that the alleged admissions were made under oath in a County Court trial at which Mr. D'Andrea was represented by counsel are factors to be taken into account in determining the weight to be given to such evidence. Those factors also highlight the absence of any prejudice to Mr. D'Andrea or Local 1089 in the Board's acceptance of this transcript into evidence. Moreover, if Mr. D'Andrea feels that any admissions contained in that transcript should be qualified or explained in some manner, it is open to him to testify before the Board in the present case.

Respondents' counsel also relies upon section 13 of the Canadian Charter of Rights and Freedoms in support of his contention that the transcript in question is inadmissible. That section provides as follows:

A witness who testifies in any proceedings has the right not to have any incriminatory evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Counsel relies upon the British Columbia Court of Appeal decision in Re Donald and Law Society of Alberta (1983), 1983 CanLII 550 (BC CA), 2 D.L.R. (4th) 385, in support of his submission that section 1 3 applies to the present proceedings before the Board. That decision held that section 13 barred the Benchers of the Law Society of Alberta from admitting as evidence in disciplinary proceedings a transcript of evidence given by the appellant, a member of the Law Society, in a civil action. In reaching that conclusion, the majority of the Court indicated (at page 391) that "section 13 of the Charter should not be restricted to criminal proceedings but rather should be given a broader meaning extending its operation to any proceedings where an individual is exposed to a criminal charge, penalty or forfeiture. . . ." All three members of the Court noted that it was clear that in the proceedings before the Benchers, the member could be found "guilty" of a statutory offence and subjected to a penalty which could include a reprimand, fine, suspension or disbarment. By way of contrast, a section 89 complaint before this Board is not penal or quasi-criminal. Indeed, a prosecution arising out of an alleged offence under the Act can only be taken with the consent of the Board, granted pursuant to an application under section 101(1) of the Act. The Board has broad remedial authority under section 89 to fashion compensatory remedies. However, section 89 does not empower the Board to impose a penalty (or forfeiture) on a respondent. See, for example, Third Dimension Manufacturing Limited, [1983] OLRB Rep. Feb. 261, in which the Board wrote, in part, as follows (at paragraph 30):

.... the Board has consciously refrained from allowing its remedial orders to become in any way punitive. (Radio Shack, [1979] OLRB Rep. Dec. 1220). As the decision in Radio Shack, as confirmed by the Court (Sub. Nom. Re Tandy Electronics Ltd. and the United Steelworkers of America) (1980), 30 OR. (2d) (Div. Ct.) made clear, any relief by the Board on a finding of an unfair labour practice under section 89 of the Act must be compensatory and not punitive. As the Court observed at page 47 (O.R.):

So long as the award of the board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself, then the award of damages is within the jurisdiction of the board.

Section 89 of the Act has, therefore, been consistently viewed by the Board, with the approval of the courts, as remedial and not punitive legislation....

Indeed, this panel of the Board applied that very approach in the present case when on January 31st it denied a request by Mary Portis (then counsel for Mr. D'Alessandro) to amend his complaint to include a request for punitive damages.

Therefore, we find that section 13 does not preclude the admission of the transcript in question as it could not be used to "incriminate" the respondent Rocco D'Andrea, within the meaning of section 13, in these quasi-civil, compensatory proceedings. In this regard, we also note that the central thrust of the complainants' case is that the respondent trade union has contravened section 69 of the Act, which contravention, if established, might prompt the Board to order that the respondent trade union compensate the complainants for their losses. No such order could be made against the respondent Rocco D'Andrea for contravention of that section since section 69 can only be contravened by a trade union (albeit through the actions of its officers, officials or agents). Finally, we note that even if the transcript could not be admitted for the purpose of establishing quasi-civil liability on the part of the respondent Rocco D'Andrea or his employer, Local 1089, for contravention of the Labour Relations Act by virtue of section 13 of the Charter, that provision would not preclude its admission for the purpose of showing the Union's records pertaining to the operation of the hiring hall to be inaccurate or unreliable.

For the foregoing reasons, the Board will admit the transcript in question, subject to proper proof (unless such proof is waived by Mr. Minsky on behalf of the respondents in the interest of expediting these proceedings).

Counsel for the complainants submitted that the respondents' objection to the admissibility of the transcript is so hollow and specious as to be an abuse of the Board's processes for which the complainants seek solicitor and client costs in any event of the cause. We do not agree with that categorization, nor do we find anything in the circumstances to justify a departure from the Board's normal practice of not awarding costs.