Ontario Labour Relations Board

[1984] OLRB Rep. March 459

2154-83-OH Murray Strong, Complainant, v. General Motors of Canada Limited and Ron Broad, Respondents

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: Howard S. Swartz for the complainant; E. T. McDermott for the respond­ents; Pauline Dietrich for Fred Iacovoni.

DECISION OF THE BOARD; March 13, 1984

1. This is a complaint under section 24 of the Occupational Health and Safety Act (the "Act") in which the complainant alleges that he has been dealt with by the respondents con­trary to section 24(1) of the Act.

2. Counsel for the respondents requested the Board to issue a decision recording its oral ruling with respect to the compellability of Fred Iacovoni, and recording an undertaking given to the Board by the complainant with respect to another complaint which he has filed with the Board. Counsel for the complainant agreed that the issuance of such a decision would be appropriate in the circumstances of this case.

3. At the commencement of the hearing of this matter on March 5, 1984, counsel made submissions to the Board concerning the compellability of Fred Iacovoni, who had been served with a summons at the instance of the complainant. After hearing and recessing to consider those submissions, the Board made the following unanimous oral ruling, which is hereby confirmed:

Mr. Swartz, as counsel for the complainant, seeks to compel Fred Ia­covoni to testify in respect of this complaint under section 24 of the Oc­cupational Health and Safety Act. Mr. Iacovoni is an "inspector" appointed for the purposes of the Act, within the meaning of part 14 of section 1 of the Act. Ms. Dietrich, as counsel for Mr. Iacovoni, submits that Mr. Iacovoni cannot be compelled to testify in respect of this com­plaint by virtue of section 34(2) of the Act, which provides:

An inspector or a person who, at the request of an inspector, ac­companies an inspector, or a person who makes an examination, test, inquiry or takes samples at the request of an inspector is not a com­pellable witness in a civil suit or any proceeding, except an inquest under the Coroners Act, respecting any information, material, state­ment or test acquired, furnished, obtained, made or received under this Act or the regulations.

In support of her position, Ms. Dietrich submits that this hearing is a "proceeding" within the meaning of section 34(2). Counsel for the com­plainant does not dispute that this is a proceeding, but suggests that the evidence which he seeks to adduce through Mr. Iacovoni is not "re­specting any information, material, statement or test acquired, furnished, obtained, made or received under this Act or the regulations". The com­plaint seeks to compel Mr. Iacovoni to testify concerning the time at which he issued his report and concerning certain statements allegedly made by supervisory personnel to Mr. Iacovoni after he had completed his tests, which statements will allegedly disclose their bias against the complainant, and the true motivation for his discharge. Counsel for the respondent supports Ms. Dietrich '5 position, and suggests that any at­tempt to limit his cross-examination of Mr. Iacovoni in the manner im­plicit Mr. Swartz's submission might constitute a denial of natural justice.

Having considered the submissions of the parties, it is our ruling that Mr. Iacovoni is not a compellable witness in respect of any of the matters identified by Mr. Swartz in his able submissions. We agree with Ms. Die­trich's submission that the hearing of this complaint is a "proceeding" within the meaning of section 34(2) of the Act. The broad scope of the phrase "civil suit or any proceeding" is apparent not only from the use of the word "any", but also from the express exclusion of an inquest under the Coroners Act. If the words "any proceeding" did not include administrative hearings, then that exclusion would be unnecessary. (See, generally, Re Dorothea Knitting Mills Ltd. (1975), 1975 CanLII 654 (ON HCJ), 9 O.R. (2d) 378, and Re Harry Woods Thansport Ltd. (1980), 1980 CanLII 4109 (ON LA), 25 L.A.C. (2d) 60.) Moreover, we are satisfied that the evidence which the complainant seeks to compel Mr. Iacovoni to give is evidence respecting information, material, state­ments or tests acquired, furnished, obtained, made or received under the Act or regulations. The alleged statements by supervisory personnel clearly fall within the ambit of statements received under the Act. The issuance of the report was one of the official functions which Mr. Ia­covoni was performing on the premises and was itself information fur­nished by Mr. Iacovoni under the Act. Finally, we would note that there are sound policy reasons for upholding Ms. Dietrich's objection. If an inspector is to be able to properly perform his important functions under the Act, he must be able to freely obtain information from persons in the workplace and carry out his other tasks in a context in which neither he nor the persons with whom he speaks will feel constrained by the pos­sibility that he may subsequently be compelled to testify at the instance of one of the parties to proceedings such as a complaint under section 24 of the Act. Thus, we are satisfied that the objects of the Act are best served by the aforementioned construction of section 34(2), which we feel to be of the type permitted and encouraged by section 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall ac­cordingly receive such fair, large and liberal construction and inter­pretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

Accordingly, we rule that Mr. Iacovoni cannot be compelled to testify in respect of any of the aforementioned matters, and he is hereby released from the summons served upon him by the complainant.

5. On February 23, 1984 the complainant filed with the Board a complaint under sec­tion 89 of the Labour Relations Act in which he alleges that he has been dealt with by the United Automobile Workers contrary to the provisions of section 68 of the Labour Relations Act (Board File No. 2737-83-U). Although General Motors of Canada Limited is not named as a respondent in that complaint, Mr. McDermott expressed concern that the complainant might seek to amend that complaint so as to add the company as a respondent, and to seek reinstatement through that complaint. It was Mr. McDermott' s position that such amendments could place the company in "double jeopardy". Accordingly, he indicated that he wished to raise with the Board the matter of the desirability of consolidating the two complaints, unless the complainant was prepared to give an undertaking which would eliminate that concern. The complainant then gave the Board his personal undertaking that he would not seek to amend that section 68 complaint so as to add the company as a party, to request reinstatement, or to request compensation from the company. Since that undertaking was satisfactory to the company, the question of consolidation was not further pursued.

6. This matter is referred to the Registrar to be listed for continuation of hearing on June 11, 28, July 3, 4, and 5, 1984.