Ontario Labour Relations Board

[1985] OLRB Rep. February 262

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

BEFORE: Robert 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; H. P. Rolph for Fred Iacovoni and the Ministry of Labour.

DECISION OF THE BOARD; February 6, 1985

1. On January 31, 1985, during the thirteenth day of hearing of this complaint under section 24 of the Occupational Health and Safety Act (the "Act"), the Board heard submissions concerning the compellability of Fred Iacovoni, an inspector under the Act, to testify in these proceedings in respect of certain matters. After hearing the submissions of counsel for the complainant, counsel for the respondent, and counsel for Mr. Iacovoni and the Ministry of Labour (the "Ministry"), the Board reserved its ruling on that matter, and advised the parties that it would issue a written ruling prior to the continuation of hearing scheduled for Fe­bruary 14, 1985.

2. The matters about which counsel for the complainant seeks to compel Mr. Iacovoni to testify are:

(1) the dates and times of certain meetings that Mr. Iacovoni attended on the respondent's premises, and the people who were present during this investigation;

(2) the details of Mr. Iacovoni 's contact with the complainant after Mr. Iacovoni had decided that the work in question was safe and had given his oral report to that effect;

(3) Mr. Iacovoni's recollection of whether or not the complainant was invited to he present at the tests conducted by the Ministry and, if so, what the complainant's response was to that request; and

(4) how Mr. Iacovoni 's and Mr. Toth's investigation was initiated, i.e., how they were "called in".

3. On March 5, 1984, during the first day of hearing in this matter, counsel made submissions to the Board concerning the compellability of Mr. Iacovoni, who had been served with a summons at the instance of the complainant. After hearing the submissions of counsel and recessing to consider them, the Board made the following unanimous oral ruling (reported in [1984] OLRB Rep. March 459):

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 complainant 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 respondents supports Ms. Dietrich's position, and suggests that any attempt to limit his cross-examination of Mr. Iacovoni in the manner implicit in 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 OR. (2d) 378, and Re Harry Woods Transport 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.

4. Counsel for the complainant contends that the four matters concerning which he now seeks to question Mr. Iacovoni are not covered by our prior ruling and do not fall within the scope of section 34(2). Counsel for the respondent submits that the complainant is precluded from calling Mr. Iacovoni to testify concerning any of those matters by the Board's ruling of March 5, 1984, and by the provisions of section 34(2). It is also the position of Mr. Rolph, as counsel for Mr. Iacovoni and the Ministry, that all of those matters fall within the purview of section 34(2). Thus, he asks the Board to rule that they are not matters on which Mr. Iacovoni can legally be compelled to testify in these proceedings.

5. Having carefully considered the able submissions of counsel, we are of the view that Mr. Iacovoni is not a compellable witness in respect of any of the four matters set forth above. All of the information which Mr. Iacovoni may have concerning the dates and times of the meetings in question, and the people present during the investigation, is information acquired under the Act or regulations, as he would not have been involved in any of those meetings or even have been in a position to acquire information of that sort but for the fact that he was on company premises performing one or more of his various functions under the Act. Similarly, evidence concerning the details of any of Mr. Iacovoni 's contacts with Mr. Strong on the company's premises in relation to the subject matter of these proceedings falls squarely within the scope of any information, material, or statement acquired, furnished, obtained, made or received under the Act or regulations. The fact that one or more of Mr. Iacovoni 's contacts with the complainant on the company's premises may have occurred after Mr. Iacovoni had decided that the work was safe and had given his oral report to that effect does not change the fact that Mr. Iacovoni 's continuing contact with the complainant resulted from Mr. Iacovoni 's attendance at the workplace in respect of what was, or was said to be, a continuing refusal by the complainant to perform certain work under the Act. We are also of the view that any evidence which Mr. Iacovoni might be in a position to give concerning whether or not the complainant was invited to be present at the tests conducted by the Ministry and, if so, what the complainant's response was to such request, would unquestionably be evidence "respecting any information, material, statement or test acquired, furnished, obtained, made or received under this Act or the Regulations" within the meaning of section 34(2) of the Act. The same is true of any evidence which Mr. Iacovoni might be in a position to give concerning how he and Mr. Toth came to be called in to perform their investigation under the Act.

6. As noted in our earlier ruling, if an inspector is to be able to 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 or interacts 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. Moreover, as submitted by Mr. Rolph, the protection provided by section 34(2) of the Act ensures that the inspector's position as a neutral investigator and decision-maker will not be tarnished by the appearance of partisanship which could result if he were required to testify at the behest of an employee, an employer, or a union, in a civil suit or administrative proceeding, such as the present complaint, respecting any information, material, statement or test acquired, furnished, obtained, made or received under the Act or the regulations. Thus, we are of the view that the interpretation that we have placed on section 34(2) in our previous ruling and in the present ruling is the type of "fair, large and liberal construction or interpretation" mandated by section 10 of the Interpretation Act and best suited to attaining the object of the Act according to its true intent, meaning, and spirit.

7. The hearing of this matter will continue on February 14, 25, and 28, 1985, as previously scheduled.