United Steelworkers of America v. Shaw-Almex Industries Limited, 1984 CanLII 918

[1984] OLRB Rep. April 659

1649-83-U United Steelworkers of America, Complainant, V. Shaw-Almex Industries Limited, Respondent.

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. D. Bell and W. F. Rutherford.

APPEARANCES: C. M. Mitchell and N. Carriere for the complainant; James T Heather, F Churchmuch and L. Shaw for the respondent.

DECISION OF THE BOARD; April 12, 1984

1. This is a complaint filed under section 89 of the Labour Relations Act. The complainant alleges violations of sections 3, 15, 64 and 66 of the Act. The major complaint is that the respondent has failed to bargain in good faith with respect to the renewal, with amendments, of the parties' last collective agreement, which expired January 31, 1983. The hearing of this complaint commenced November 22, 1983. At the conclusion of that day of hearing, the hearing was scheduled to continue January 10 and 12, 1984. On January 3, 1984, the Board released a decision confirming oral rulings made at the hearing of November 22, 1983 and disposing of evidentiary issues argued before and reserved by the Board on that day. The hearing continued, but was not completed, on January 10 and 12, 1984. The hearing was then scheduled to continue February 3, 1984. This decision deals with procedural matters which arose at the hearing of February 3, 1984.

I

2. The trade union's complaint was filed October 21, 1983 and elaborated in further particulars filed November 15, 1983. The complainant gave notice to bargain on January 5, 1983, and the parties first met January 27, 1983. The employer applied for the appointment of a conciliation officer on January 31, 1983. A second meeting between the parties took place March 22, 1983. A "no board" report was issued April 5, 1983, followed by the appointment of a "mediator" by the Ministry of Labour on April 11th. The parties met with the mediator April 21, 1983. On April 22nd the complainant began a legal strike. The complainant alleges that no negotiations whatsoever took place during the period April 22 to September 26, 1983. On September 26th, officials of the union met with Jim Heather, a consultant who had negotiated for the respondent in previous years but had not been directly involved in the 1983 negotiations. At this meeting, the complainant says, the union put forward a settlement offer to which it had not, to the date the complaint was filed, received a response.

3. The complaint was summarized in paragraph 14 of the complaint's further particulars filed November 15, 1983, in the following way:

The union asserts that from the commencement of negotiations, and at the very least from the commencement of the strike in April 1983, the respondent employer has formed an intention not to bargain and not to enter into a collective agreement with the applicant union and has engaged in superficial surface bargaining with no intention of entering into an agreement, and indeed since the commencement of the strike has refused to meet and bargain at all.

The existence of this intention is something which the complainant claims can be inferred from the positions taken by and behaviour of the respondent at bargaining meetings and on other occasions during the period up to the filing of the complaint, October 21, 1983.

4. The trade union's complaint was enlarged prior to the hearing of January 10, 1984, by additional allegations set out in a letter to the Board dated January 3, 1984. Those ad­ditional allegations were as follows:

5. On November 24, 1983 following the last hearing at the Ontario Labour Relations Board the employer and the union met in negotiations. J. Heather and J. Shaw represented the employer.

6. The employer bargained in bad faith, did not make every reasonable effort to reach a collective agreement, and indeed sought to avoid any collective agreement being entered into by:

(a) withdrawing and notifying the union for the first time that the previous wage increase offer no longer applied and that it would only agree to a one year agreement with no wage increase;

(b) indicating that while it would be willing to be flexible with regard to some of the union's non-monetary proposals, it would only table its position with respect to them if the union agreed to concessions on benefits, including long term disability and dental premiums, OHIP, etc. The employer had not previously demanded such concessions throughout the prior negotiations.

When the hearing continued January 10th, the trade union's representative in bargaining was still giving his evidence-in-chief for the trade union. The respondent did not object to the complainant enlarging its complaint to include the above-quoted allegations, and the complainant's witness testified with respect to the meeting of November 24, 1983 and was cross-examined on that subject and others on January 10 and 12, 1984. The cross-examination and re-examination of that witness were completed January 12th. The hearing was then adjourned to February 3rd, and the parties agreed to meet and bargain again before then, in the hope of settling both a collective agreement and this complaint. Regrettably, the parties settled neither. Indeed, when the hearing resumed February 3, 1984, the Board had before it a letter dated January 31, 1984 from counsel for the complainant setting out additional allegations with respect to positions taken at a meeting of January 23, 1983 and the cancellation of a meeting set for January 24, 1984. For the present purpose it is necessary only to quote the following portion of those additional allegations:

…,it is alleged that by its overall position and in particular by insisting that striking employees would have to accept concessions with respect 1o benefits, and by continuing to refuse to adhere to its initial wage offer, the employer attempted to ensure that no collective agreement would be arrived at. The employer position with regard to the wages and benefits of the striking unionized employees is being taken notwithstanding that higher wages and benefits are being paid to non-union employees and to strike replacements.

5. At the opening of the hearing of February 3, 1984, the respondent's representative said he had no objection whatsoever to the Board hearing evidence with respect to the bargaining-related events which had occurred since the last hearing date, and had no objection to the complainant recalling its witness to deal with those matters. He did, however, take strong objection to a summons the complainant had served on John Shaw. John Shaw is an officer of the respondent. He is said to have represented the respondent in its bargaining with the complainant. He has been in constant attendance at the Board hearings in this matter, as an advisor to the respondent's representative. It is the announced intention of the respondent's representative to call Mr. Shaw as a witness in this case. The respondent's representative did not object to the summons insofar as it commanded Mr. Shaw to be present at the Board's hearing of February 3, 1984. His complaint was with respect to that portion of the summons which commanded Mr. Shaw

to bring with you and produce at such time and place all payroll and benefit records of the company for all employees for the period April 1, 1983 to date.

The respondent's representative also objected to the Board hearing any evidence with respect to the allegation that the concessions demanded in bargaining were improper insofar as they offered lower wages and benefits than were currently being paid to non-union employees and to strike replacements.

6. The respondent's representative argued that the documents sought in the summons were irrelevant and that the use of the summons constituted a "fishing expedition". The allegation with respect to wages and benefits of strike replacements had not been raised in a timely fashion, he said, because the request for concessions was not a new factor. That had occurred in November, 1983, and had been raised in complainant's letter of January 3, 1984; anything related to that factor should have been alleged at that time, he argued. Counsel for the complainant acknowledged that that bargaining behaviour in relation to wages and benefits had occurred at the November 24, 1983 bargaining session referred to in his letter of January 3, 1984. He said this had led the complainant to investigate the level of wages and benefits being paid to strike replacements, in order to make a responsible decision whether to raise that aspect as an additional allegation in this matter and seek the best evidence to support the allegation by means of a summons of the sort now in question. Counsel pointed out the obvious difficulty the complainant faced in attempting to obtain information with respect to wages and benefits being paid to strike replacements whose interests were at odds with those of the complainant. Having eventually obtained information that strike replacements were receiving wages and benefits in excess of those then being offered in collective bargaining, the complainant determined to serve the summons in question. Counsel for the complainant pointed out that the respondent had not yet opened its case and that the respondent's representative had indicated an intention to call both John Shaw and Jim Heather. He argued that he would be entitled to ask both witnesses about the respondent's operations during the strike. He also argued that the respondent would have to explain the withdrawal of its earlier wage offer, the demands for concessions and the timing of those events, and that the company's economic position and changes in that position during the strike were relevant to an assessment of the respondent's motivation in taking those positions at the times it did. In reply, the respondent's representative said that the complainant could call as a witness the source of its information with respect to wages and benefits paid to strike replacements, and therefore did not need production of the respondent's records in that regard. He also argued that the use of the summons to require the production of documents was abusive. While conceding that Mr. Shaw could be asked questions in cross-examination, he said that the problem the complainant would have would be that if counsel got an answer he didn't like, he would be stuck with it. Counsel for the respondent characterized the summons of documents as an improper attempt to avoid this problem.

7. After retiring to consider the submissions of counsel, the Board ruled orally that it would hear evidence with respect to all of the allegations raised by counsel for the complainant in his letter of January 31, 1984, and for that purpose would permit the complainant to reopen its case. The Board further ruled that it saw no objection to the duces tecum portion of the summons directed to Mr. Shaw, except to the extent that the reference to "all employees" would include office employees and members of management. The relevance of the wages and benefits of those employees had not been expressly addressed in the initial submissions, and the Board invited further submissions on that point.

8. Counsel for the complainant argued three grounds for relevance of office and managerial wages, salaries and benefits. Firstly, he said there was a historical linkage between the wages and benefits enjoyed by plant workers and those enjoyed by office workers. Because of that linkage, information with respect to the wages and benefits enjoyed by office workers at the time the respondent requested wages and benefit concessions from striking plant workers would be relevant to assessing the motivation of the respondent in requesting those concessions. Secondly, during the strike managerial and office employees had been engaged in production work normally performed by the striking production workers, and in that respect the wages, salaries and benefits paid to them were just as relevant as the wages and benefits paid to employees hired as strike replacements in assessing the motivation for the respondent's take-backs and concession demands in its bargaining with the replaced workers' representatives. Finally, counsel for the complainant argued that the economics of the respondent's operations during the strike would generally be relevant to assessing whether economics played any real part in the positions taken by the respondent in bargaining from and after September 19, 1983.

9. With respect to the trade union's first point, the respondent's representative conceded a historical linkage between benefits (but not wages) of plant and office workers, and said he planned to lead evidence to establish that the respondent would alter the benefit package enjoyed by office workers in match the package ultimately negotiated for the bargaining unit, when that contract is settled. With respect to the second point, and in response to the Board's questions, the respondent's representative advised that there were approximately 15 strike replacements hired exclusively to perform production work, that some salaried office employees had performed production work while continuing to perform office functions, and that members of management might also have performed some production work during the strike. He took the position that information concerning the salaries and benefits of the office and managerial employees was "confidential", and that the complainant and the Board should be satisfied with his "admission" that salaried employees continued to receive the same salary and benefits during the strike as they had enjoyed prior to the strike. He did not respond specifically to the argument that the respondent's bargaining behaviour had made its economic position relevant, other than to repeat the respondent's concern about the "confidentiality" of information with respect to office and managerial salaries and benefits. He did not disclaim reliance on an economic explanation for the respondent's change of position at the bargaining table.

10. After retiring to consider these further submissions, the Board ruled orally that the records producible pursuant to the summons would be payroll and benefit records with respect to those employees who had at any time from and after April 1, 1983 performed any work similar in nature to work performed prior to the strike by employees in the bargaining unit represented by the complainant. The Board then adjourned, making the suggestion that the respondent permit counsel for the complainant the opportunity to review the documents in question in order to expedite the proceedings. The parties met for some time during which, we were told, they had made further unsuccessful efforts to resolve this complaint and settle a collective agreement. When the hearing resumed, we were advised by counsel for the complainant that he had been shown documentation with respect to hourly-rated employees hired as strike replacements, but not the payroll and benefit records of the company for salaried employees who had, during the strike, performed work as described in the Board's oral ruling. The respondent's representative advised the Board that the decision not to give up that information was based on the respondent's belief that it was justified in doing so because the information was "confidential". He emphasized the family nature of the business and the small community within which it is located. He said the company officers had difficulty understand­ing what was going on. He requested written reasons for the Board's earlier ruling with respect to the producibility of payroll and benefit records of any salaried managerial employees. He said the respondent wished to consider an application to the courts on that issue. He conceded that the summons had been properly served on Mr. Shaw, and that the documents in issue were in his power or possession.

11. Counsel for the complainant noted that there was insufficient time left in the day to reach the point in evidence at which he would attempt to introduce the disputed documents and have their admissibility individually determined. Counsel expressed concern lest this dispute remain unresolved until that point, which might not occur for several weeks because of scheduling difficulties, and noted that further delay would then be created if it was at that point that court proceedings became necessary either to review or to enforce the summons. Counsel for the complainant therefore asked the Board for an affirmative order directing production of records of the nature described in its earlier oral ruling on the propriety of the summons. The Board invited counsel to supplement their earlier arguments with any additional material they felt the Board should consider in disposing of this request. After hearing the submissions of counsel, the Board advised the parties that it would reserve its decision on the complainant's request. The hearing was then adjourned, and is now scheduled for continuation in May.

II

12. We will begin our evaluation of the complainant's request with an elaboration of the basis for our ruling on the propriety of the summons issued to the respondent's officer, John Shaw.

13. The complainant accuses the respondent of failure to comply with its duty under section 15 of the Act: to "bargain in good faith and make every reasonable effort to make a collective agreement". It says the respondent secretly wants to avoid making an agreement. The respondent's denial that this is so will ultimately be judged in the context of the parties' conduct in bargaining. A part of the complainant's case is that during the period September 1983 to January 1984, in response to the trade union's moderation of its bargaining position and abandonment of a number of bargaining demands, the respondent introduced new demands for concessions not previously sought and withdrew economic terms it had previously offered. Left unexplained, such behaviour is more consistent with a desire to avoid agreement than a desire to make one. In Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397, after reviewing a series of American authorities, the Board noted that:

14. Ontario cases also make it clear that a sudden unexplained change in the bargaining stance of one of the parties can raise serious doubts about that party's good faith. In Graphic Centre, [1976] OLRB Rep. May 221 the Ontario Board said:

"The tabling of additional demands after a dispute has been defined must, in the absence of compelling evidence which would justify such a course, be construed as a violation of the duty to bargain in good faith."

On the other hand, a previously made offer was withdrawn without a section 14 violation being found in the case of Toronto Jewellery Manufacturers' Association, [1979] OLRB Rep. July 719. The complainant union attempted to accept a proposal made over two months prior to the date the membership voted to accept the proposal. The union argued first that a collective agreement was in effect by virtue of the offer and acceptance. In the alternative it was argued that the respondent was in breach of section 14 in not holding to its previous position. In finding that there was no such breach, the Board made the following comments:

"The complainant, after determining that no further proposal was forthcoming, then resorted to the ultimate form of rejection by embarking on a strike. Is it entitled to expect, after being on strike for up to three weeks, that the offer is still there for the taking? It would seem from the Association's silence that it thinks not, however, that is a matter for the Board to determine. Having regard to the Board's comments in Pine Ridge, supra, about the collective bargaining process, it would be naive in the extreme for parties to collective bargaining to expect that conditions which prevailed before a strike or lockout to still prevail afterward. That is not to say that both parties might not see it to be in their best interests to agree to pick up bar­gaining where they left off before a strike or lockout; rather it is to say that neither party is entitled to rely on that being the situation. The Board's jurisprudence on section 14 complaints recognizes this reality when it is dealing with the refusal of one party to resume bargaining during or following a strike or lockout. One of the factors the Board takes into account is whether the party requesting that bargaining be resumed has indicated that it is prepared to make significant concessions from its position prior to the onset of economic sanction. In the absence of such an indication, the Board usually will not find a refusal to resume bargaining to be a section 14 violation. the evidence in this case establishes that the complainant, by going on strike, has taken its best shot at the Asociation to try and get an improved settlement offer. It has failed and is now trying to salvage the terms which were available before the strike."

14. This issue was also addressed in Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. July 1136, in the following terms:

15. We start with the long held view of this Board that "the parties are best able to fashion the law which is to govern the workplace and that the terms of an agreement are most acceptable when the parties who live under them have played the primary role in their enactment." (See the DeVilbiss (Canada) Ltd. case, [1976] OLRB Rep. March 49 at para. 13.) This Board recognizes the concept of voluntarism as relied upon by the resondent company. As a general proposition a party is free to take whatever position best satisfies its self interest providing it maintains the intention of concluding a collective agreement. The difficult cases arise where a party tables a position which it maintains is legitimately in its self interest but which the other side maintains is destructive of the process or designed to avoid a collective agreement and to undermine the trade union. In the Pine Ridge District Health Unit case, [1977] OLRB Rep. Feb. 65 the Board noted:

"Collective bargaining does not take place in a vacuum or in a period where time and events are frozen. Generally, as in this case, it occurs over an extended period of time against a fluid backdrop of events. A party may thus come to reshape its view of its own best interests from one point in time to another and so wish to change its position at the bargaining table. The party opposite cannot be taken to be unaware of the increasing likelihood of that happening with the passing of each successive day and week. The old caution, "Take it before I change my mind" reflects a widely accepted bargaining precept that has its proper application in collective bargaining ..."

(See also Toronto Jewellery Manufacturers' Association [1979] OLRB Rep. July 719).

However, the Board's views as expressed in the Pine Ridge District Health Unit case, supra, cannot be taken as a carte blanche to alter one's bargaining position at any time and for any reason. Clearly, an alteration of position designed to wreck the critical decision-making framework necessary for collective bargaining would be contrary to section 14 of the Act. (See the Graphic Centre (Ontario) Inc. case, 11976] OLRB Rep. May 221.) Similarly, the move to a position tailor-made for rejection would betray an intention not to conclude a collective agreement contrary to the duty imposed by section 14 of the Act. It follows, therefore, that while the parties may govern themselves by self-interest and may alter bargaining positions in response to changes in relevant conditions, a party which alters its bargaining position may leave itself open to the allegation that it is bargaining in bad faith. It falls to the Board in these cases to examine the evidence in light of the labour relations dynamics and draw the appropriate inferences.

In Wilson Automotive Limited, the complainant trade union had initiated a lawful strike; the respondent employer had simultaneously implemented the last offer it had made to the trade union. Some employees in the bargaining unit continued to work; they received the benefit of that last offer. The employer suffered substantial losses as a result of the strike, but made no change in its position on economic issues until 12 days before the expiry of the 6-month period during which employees engaged in a lawful strike are entitled to claim their jobs under section 73 of the Act. At that point, the employer took the position that the offer it had implemented at the outset of the strike would have to be reduced by the unspecified losses the company had since experienced, and could not remain open for acceptance in its original terms. The employer did not then or at any time earlier reduce the rates of pay or benefits of employees who had continued to work at the outset of the strike or had later exercised the right to return to work under section 73 of the Act. The Board noted at paragraph 10 of its decision that:

A natural suspicion attaches to the motives of an employer who alters his bargaining position at a critical stage in negotiations; . ... When the employer who is revising his position in this manner has paid those working during and after a strike on the basis of his last pre-strike offer and has not unilaterally cut these rates in response to changing economic conditions as he is entitled to do, the Board must draw the inference that the employer no longer has the intention of entering into a collective agreement.

15. As will be apparent from the foregoing, where an employer changes its bargaining position in the manner alleged by the complainant in this case, the terms and conditions of employment of those doing the work of striking employees become relevant as do, indeed, the economic circumstances generally of the employer. It is difficult to imagine a justification for the changes in bargaining position alleged by the complainant, unless it is that the changes were in response to changing economic circumstances of the respondent. The respondent's representative has not argued that there is any other explanation. Indeed, he has not indicated what the explanation will be. Of course, the respondent is not obliged to particularize its defence at this stage. At the same time, however, counsel for the complainant is entitled to an­ticipate that the defence may be an orthodox one, and on that assumption seek to ensure that he has the best evidence available to cast doubt on that defence. The complainant is not obliged to accept as true statements of fact made by the respondent's representative, even if enticingly described as "admissions".

16. In short, the respondent's labour costs involved in continuing production during the strike, whether the labour was that of an employee freshly hired as a strike replacement or one temporarily doing double duty as a production worker in conjunction with or in lieu of his or her normal functions as an office worker or manager, could be relevant to a determination of the issues before the Board in this case. The ultimate relevance of the information sought need not and can not be resolved at this stage. That is a matter the Board can determine only when all the evidence is in. It is enough that information in the documents might be relevant, and that the documents sought might be admissible. (See Re Chelsea Inn, (1979) 11 C.P.C. 239 (Ont. Div. Ct.)).

III

17. The Board's power to compel the production of documents is found in subparagraph 103(2)(a) of the Act which reads as follows:

103.-(2) 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.

By analogy with proceedings in civil courts, the summons (sometimes referred to as "subpoena") duces tecum is the usual, although perhaps not the only, instrument by which this power is exercised. As the Board noted in The Becker Milk Company Limited, [19741 OLRB Rep. Oct. 732 at paragraph 7:

7. Obviously this power is a substantial one and must be exercised in a very circumspect manner. A subpoena duces tecum cannot be used as an instrument to harass or to annoy unreasonably an opponent; (see Rene v. Curling Export Brewing Co. (1927), 61. O.L.R. 495; Clemens v. Crown Trust Co. 1952 CanLII 78 (ON CA), [1953] O.R. 87 at p. 94, [19521 O.W.N. 434; and Brittain Steel Fabricators Ltd. v. Amiable (1967), 1967 CanLII 584 (BC SC), 64 D.L.R. (2d) 663 (B.C.)). And a subpoena duces tecum should state with reasonable particularity the documents which are to be produced; (see A. G. v. Wilson, 9 Sim. 526 at 529; Earl of Powis v. Negus [1923] 1 Ch. 186 at 190; The Commissioner for Railways v. Small, supra, and Lee v. Angas (1866), L.R. 2 Eq. 59). Furthermore, although the limits of this principle are vague, a subpoena duces tecum should not be used "for the purpose of fishing, i.e., endeavouring, not to obtain evidence to support [a] case, but to discover whether [one] has a case at all"; (see The Commissioner for Railways v. Small, supra, at p. 575; Hennessy v. Wright 24 O.B.D. 445 at 448; Griebart v. Morris [1920] 1 K.B. 659 at 666). And finally, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant; (see Steele v. Savory [1891] W.N. 195).

While it is important to consider the way courts handle these issues, the Board noted in the Becker Milk case at paragraph 5 that:

... it is equally as important to note the big differences between the Ontario Labour Relations Board's procedures and a civil court's in order to assess just how closely the "civil approach" should be followed. In this regard, no discovery accompanies the Board's procedures hence hearings before the Board cannot be completely analogized to hearings in civil matters, and a fortiori, the subpoena duces tecum (used by both the Board and the courts) may not have an identical nature in both proceedings. In other words, not only should this Board examine the judicial pronouncements depicting the nature of the subpoena duces tecum but it should go on to consider some of the principles that circumscribe the discovery procedures of a civil court.

In the Becker Milk case, the application of these principles resulted in the Board's narrowing the scope of a broad subpoena by refusing to enforce it with respect to certain portions by which the complainant sought a potentially great number of documents which the Board said were not, at that time, "sufficiently relevant". The Board went on to say:

9. Having made these rulings, the Board wishes both to emphasize that it is not precluding the complainants' requests for all time, and to justify the part of the subpoena that continues to apply to the records of those employees who have been dismissed within the period January 1, 1971 to January 3, 1974. A balance of convenience must be struck in these matters. We recognize that some "discovering" must go on by way of the subpoena duces tecum and that the courts can afford to take a narrower view because of the availability of a discovery process to civil litigants. A party to a civil proceeding has a right to obtain from his opponent discovery of anything which can fairly be said to be material to enable him to ascertain his own case or to destroy the case set up against him; ...

10. The respondent contended that the records in question are "confidential". No explanation of this nomenclature was offered by the respondent's representative. There was no suggestion that the records or the information in them were the subject of any statutory or common law privilege (see Extendicare Ltd., [1979] OLRB Rep. July 641; Ontario Humane Society, [1980] OLRB Rep. Dec. 1776). It was not argued, and is by no means apparent, that the documents or information in them came into the possession of the respondent as a result of a confidential communication (a necessary, although not sufficient, condition to establishing a qualified privilege: see Slavutych v. Baker et al., [1976] S.C.R. 254; 1975 CanLII 5 (SCC), [1975] 4 W.W.R. 620; (1975) 55 D.L.R. (3d) 224 (S.C.C.) at p. 260 S.C.R., p. 625 W.W.R., p. 228 D.L.R.; D. v. National Society for the Prevention of Cruelty to Children, [1977] 1 All E.R. 589 (H.L.)). We conclude that the respondent used the word "confidential" to describe that which is personal, not public: that which it does not wish to reveal. This lay reaction to a production requirement is not unusual; it often occurs at the discovery stage in civil proceedings, as noted in the following passage from Riddick v. Thames Board Mills, [1977] 3 All E.R. 677 (C.A.) per Lord Denning at p. 687b:

Discovery of documents is a most valuable aid in the doing of justice. The court orders the parties to a suit, both of them, to disclose on oath all documents in their possession or power relating to the matters in issue in the action. Many litigants feel that this is unfair. I have often known a party, faced with such an order, saying to his solicitor: 'Need I disclose this document to the other side? It will damage our case greatly if they get to know of it.' The solicitor's answer is, and must be: 'Yes, you must disclose it, however much it damages your case.' Again I have known a party to say to his solicitor: 'But these are my own confidential papers, my own personal diary, our own inter-departmental memoranda. Must I disclose them?' The answer of the solicitor again is: 'Yes, you must disclose them.' Confidential information has no privilege from disclosure: see Alfred Crompton Amusement Machines Ltd. v. Customs & Excise Comrs (No. 2). The court insists on your producing them so as to do justice in the case.

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e. in making full disclosure.

Lord Denning went on to observe that there are certain important consequences to the use of legal compulsion to force disclosure of private documents (p. 6870:

Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party, or anyone else, to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. Very often a party may disclose documents, such as inter-departmental memoranda, containing criticisms of other people or suggestions of negligence or misconduct. If these were permitted to found actions of libel, you would find that an order for discovery would be counter-productive. The inter-departmental memoranda would be lost or destroyed or said never to have existed. In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purpose of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, or for bringing a libel action, or for any other alien purpose. The principle was stated in a work of the highest authority 93 years ago by Bray J:

'A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit: nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order.'

Since that time such an undertaking has always been implied, as Jenkins J said in Alterskye v. Scott. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose. The modern authorities are well discussed by Talbot J in Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd, and I would accept all he says, particularly as to the weighing of the public interests involved.

See also Alterskye v. Scott, [19481 1 All E.R. 469 (Ch.D.); The Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd., [1975] 1 All E.R. 41 (Q.B.); Church of Scientology of California v. Department of Health and Social Security et al., [1979] 3 All E.R. 97 (C.A.); Williams v. Home Office, [19811 1 All E.R. 1151; Home Office v. Harman, [1981] 2 All E.R. 349 (Q.B.D. and C.A.); aff'd [1982] 1 All E.R. 532 (H.L.); ITC Film Distributors v. Video Exchange Ltd. et al., [1982] 2 All E.R. 241; Anderson v. Anderson (1980) 1979 CanLII 1673 (ON HCJ), 14 C.P.C. 87 (Ont. H.C.) at p. 91; and, Haliburton Co. v. Northstar Drillstem Ltd., (1982) 1982 CanLII 5603 (FC), 65 C.P.R. (2d) 122 (F.C.). Although the passages and cases just cited all concern production of documents on discovery in civil actions, the principles set out therein bear equal application to any legally compelled production of documents which occurs in the course of a quasi-judicial proceeding otherwise than upon the admission of the documents into evidence in a public hearing.

19. Although the custodian of a document is described as a witness in the context of the issuance and enforcement of a summons duces tecum, it is not necessary for the party seeking the document to call that person as its witness. The person summoned may be called upon to say whether the documents described in the summons exist and, if they do, to produce them without first being sworn. Upon production being made, the party seeking production is entitled to prove the documents through some other witness: see Heart Construction Co. Ltd., [1983] OLRB Rep. Jan. 84, and the authorities referred to therein. Production pursuant to the summons therefore precedes the attempted introduction of those documents into evidence. The witness through whom the attempt is made need not be the custodian, nor need he necessarily be a witness called by the party seeking production. Indeed, it may be that no witness is necessary when, for example, some statutory provision so permits or the docu­ment's relevance springs entirely from the fact that it was in the possession of the person producing it. In any event, the party attempting to introduce a document into evidence must necessarily see it before the attempt is made. Others may have to see it, in order to intelligently resolve any dispute over its admissibility. The contents of a party's confidential documents may thus become known to others before the documents are admitted in evidence. Documents so produced may sometimes not be admitted or, if circumstances warrant, admitted only in camera (see section 9, Statutory Powers Procedure Act, R.S.O. 1980, c.484). In our view, there is an implied undertaking by a party to whom documents are produced as a result of the use of a summons duces tecum issued by the Board. It is an undertaking to the Board as much as to the party from whom production is compelled. The undertaking is that the documents will not be used for collateral or ulterior purposes. The undertaking is similar in scope and effect to the undertaking discussed in the cases cited above. Breach of the latter undertaking is a contempt of court, as is the breach of any undertaking given to a court. By virtue of section 13(c) of the Statutory Powers Procedures Act, breach of an undertaking to the Board may be the subject of contempt proceedings in the Supreme Court of Ontario; that court's power to punish for "contempt of the Board" is not limited to cases of failure of witnesses to attend, testify or produce documents: Re Ajax and Pickering General Hospital et al. and Canadian Union of Public Employees et al. (1981) 1981 CanLII 1917 (ON HCJ), 32 O.R. (2d) 492 (Ont. Div. Ct.); reversed on other grounds at (1982) 1981 CanLII 1849 (ON CA), 35 O.R. (2d) 293; 82 CLLC ¶14,164 (Ont. C.A.).

20. Having dwelt at length on the restraints on abuse which come into play when resort is had to the summons duces tecum, we should make it clear that there is no suggestion that the complainant or its counsel intend or would permit improper use of the documents of which they ask the Board to order production by Mr. Shaw. The respondent's representative expressed no such concern.

21. With the limitation set by our oral ruling (see ¶10, supra), we are satisfied the documents sought in the subject summons ought to be produced. We will affirmatively order their production. As noted earlier, there is no requirement that their custodian, Mr. Shaw, be the complainant's witness for the purpose of introducing the documents into evidence. Production need not await the point at which Mr. Shaw takes the stand, nor does the obligation to produce depend on his doing so. Had this ruling been made at the hearing while Mr. Shaw was present, we would have ordered the immediate deposit of the documents with the Board pending any attempt to introduce them into evidence. The Board would then have adjourned to permit counsel for the complainant an opportunity to examine the documents produced (see Metropolitan Toronto Board of Commissioners of Police, at al and Ontario Human Rights Commission, et al, (1979) 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48 (Div. Ct.) at p. 53).

22. Production need not now await the next scheduled sittings of the Board in this matter. The Board's jurisdiction is broad enough to permit a different approach, if necessary. For example, in E. Del Medico Limited, [1970] OLRB Rep. June 383, the trade union applicant for certification had served the president of the respondent employer with a summons requiring that he bring with him to the hearing certain documents which would have revealed the number and classification of the respondent's employees employed on the date of execution of a collective agreement between the respondent and one of the intervener trade unions. The respondent's president attended the hearing, acknowledged that his records would disclose the facts sought, and stated, without explanation, that he had failed to bring those records with him. In response, the Board appointed a Labour Relations Officer to inquire into and report to the Board on the names and classifications of all employees of the respondent employed as of the relevant date. The Board further directed the respondent to provide the examiner with the records originally specified in the summons duces tecum with which the respondent's president had been served.

23. There have, of course, been major bad faith bargaining cases in which the complainant was found entitled to recover substantial damages in amounts which remained to be quantified in subsequent hearings; e.g. Radio Shack, [1979] OLRB Rep. Dec. 1220; Westinghouse Canada Limited, [1980] OLRB Rep. April 577; Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397 and [1981] OLRB Rep. Feb. 145 and Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583 and [1981] OLRB Rep. Dec. 1722. Claims for damages of this sort by their nature involve examination of extensive documentary evidence, tracing the losses of and expenditures by the employees, trade union or employer, as the case may be, arising out of the failure of the opposite party to bargain in good faith. In Canada Cement Lafarge Ltd., [1981] OLRB Rep. Dec. 1722 at 1732, the Board noted that motions requesting production of documents had been entertained by the Board in such cases, and granted, in whole or in part, pursuant to the Board's powers under section 103(2)(a) of the Labour Relations Act:

... in some of these cases, a Labour Relations Officer has been appointed by the Board to facilitate the exchange of material between the parties and to assist in settlement efforts. Clearly, if such cases are to be litigated fairly and, particularly, if there is to be any chance of settlement, full and frank disclosure by the parties of both the detailed particulars of a damage claim and the documentary evidence that will be relied upon must occur prior to a hearing before the Board.

24. We are satisfied we should go farther in this case than simply to require that the documents be produced on the next day fixed for the hearing for this matter. The respondent has suggested it may seek judicial review of our ruling. Even if the respondent does not apply for judicial review, the complainant would have to apply to the Court to enforce our order if Mr. Shaw contravenes our ruling. If the intervention of the courts is desired by either party, our order should ensure that both parties are in a position to bring their application at the earliest opportunity. The complainant will not be in that position unless and until there has been a demonstrable failure to comply with a specific order of this Board.

25. In this case, the documents to be produced are not so voluminous, complex or uncertain of identification as to require the formal intervention of a Labour Relations Officer in the production process. By analogy with the procedure which would have pertained had our order been made and complied with on the last day of hearing in this matter, our order now will be that the documents be filed with the Registrar on or before a date which the parties will be at liberty to adjust by agreement. This will afford the parties the opportunity to make more informal arrangements with respect to production, if so advised. At the same time, it will give the complainant the opportunity to establish a clear basis for application to the Ontario Supreme Court pursuant to the provisions of the Statutory Powers Procedure Act, R.S.O. 1980, c.484, if the respondent persists in its refusal to produce the documents which are the subject of our order. In order to avoid any unnecessary disruption to the respondent's operation, the respondent will be permitted to comply with our direction by filing with the Board a notarially certified true copy of any or all of the documents in question, in place of the originals; in that event, Mr. Shaw will remain obliged to produce the originals at the continued hearings in this matter. Finally, any duly authorized representative of the complainant will be afforded the opportunity to examine any records filed with the Board during the Board's normal business hours upon proof satisfactory to the Registrar or his deputy that the respondent's representative has been given at least 48 hours' notice of the proposed time of attendance at the Board's offices for those purposes.

26. The Board therefore orders and directs as follows:

(a) John Shaw is hereby ordered to produce all payroll and benefit records of Shaw-Almex Industries Limited for the period April 1, 1983 to date with respect to all employees who at any time during that period performed work similar in nature to work performed prior to April 1, 1983 by any person covered by the collective agreement between the complainant and respondent which expired January 31, 1983;

(b) production of the aforesaid documents shall be made by depositing the said documents with the Registrar of the Ontario Labour Relations Board at the Board's offices at 400 University Avenue in the City of Toronto within ten days following the date of release of this decision or forty-eight hours following personal service on John Shaw of a true copy of this decision, whichever is later, or within such further period of time as may be agreed to in writing by the complainant and respondent;

(c) compliance with the aforesaid directions will be sufficient if John Shaw deposits within the time and at the place aforesaid either the originals of the records aforesaid or notarially certified legible true copies of the said records, but in the event any notarially certified copies are filed, John Shaw shall produce the originals of such documents on the dates and at the places and times appointed by the Board for the continuation of its hearings in this matter;

(d) the complainant's duly authorized representative shall be entitled to examine, at the Board's premises and during the Board's normal business hours, any documents deposited with the Registrar pursuant to the directions hereinbefore set out, upon proof satisfactory to the Registrar or his deputy that the respondent's counsel has been given at least 48 hours notice of the time of attendance of the complainant's representative for that purpose;

(e) during any examination of the documents pursuant to the provisions in the next proceeding subparagraph, the complainant's authorized representatives shall be permitted to take copies, at their own expense, of any documents produced, and the respondent's duly authorized representative is entitled to remain in attendance during any such examination.