[1987] OLRB Rep. 126
1476-85-OH; 1515-85-U Bonita Clark, Complainant, v. Steel Company of Canada, Inc., Respondent, v. The Toronto Star, The Hamilton Spectator and The Globe & Mail, Interveners; Bonita Clark and Local 1005, United Steelworkers of America, Complainants, v. Steel Company of Canada Inc., Respondent, v. The Toronto Star, The Hamilton Spectator and The Globe & Mail, Interveners
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members D. A. MacDonald and B. L. Armstrong.
APPEARANCES: Mary Cornish, Nelson Roland, Laura Trachuk, Bonita Clark and Stan Gray for the complainant Bonita Clark; Brian Shell and Brian Greenaway for United Steelworkers of America, Local 1005; Janice Baker and Terry Thorpe for the respondent; Stuart M. Robertson for the interveners The Toronto Star and The Hamilton Spectator; Peter Jacobsen for the intervener The Globe & Mail.
DECISION OF THE BOARD; January 6, 1987
1File No. 1476-85-OH is a complaint under section 24 of the Occupational Health and Safety Act ("the OHSA") in which the complainant, Bonita Clark, alleges that the respondent, the Steel Company of Canada Inc. ("Stelco") has contravened the OHSA. File No. 1515-85-U is a complaint under section 89 of the Labour Relations Act in which both Clark and the United Steelworkers of America, Local 1005 ("the union") allege that Stelco has contravened sections 3, 64, 66 and 70 of the Act.
2These matters are hereby consolidated.
3The Toronto Star, The Hamilton Spectator and The Globe & Mail are hereby added as interveners hereto for the purpose of this decision.
4This decision sets out in writing two oral rulings made by the Board on this matter with respect to the individuals permitted to take a view of Stelco and the presence of the press in the hearing room.
5The hearing into these matters began on December 4, 1986; certain other preliminary matters were dealt with at that time. In addition, the parties agreed that it would be useful if the Board and the parties took a view of Stelco's Hilton Works in Hamilton. Arrangements were subsequently made to take the view on the morning of December 15, 1986.
6In a letter dated December 12, 1986, counsel for Stelco indicated that the following persons would be able to attend the view: the members of the panel hearing the case, the complainant and her counsel and an official of and counsel for the union. Counsel for Ms. Clark then requested that the Board make an order permitting Nelson Roland, her associate and Laura Trachuk, her articling student and Stan Gray, her adviser, to attend on the view.
7On the morning of December 15, 1986, counsel for Stelco indicated that Stelco would not dispute the presence of Mr. Roland and Ms. Trachuk on the view but would not allow Mr. Gray access. We then heard submissions from counsel for all parties on whether the Board could and should order that Mr. Gray could attend the view. Counsel for Stelco took the position that the Board had no authority to make such a ruling; she indicted also that Mr. Gray was not welcome at Stelco but did not explain why. Counsel for Ms. Clark stated that she required the assistance of Mr. Gray on the view since she was not familiar with the technical aspects of the Stelco operation. After recessing to consider counsel's submissions, we gave the following oral ruling:
Mr. Gray is to be allowed to attend on the view of Stelco.
Under section 102(13) of the Act, the Board is required to "give full opportunity to the parties to any proceedings to present their evidence and to make their submissions". Administrative law requires the Board to provide a fair hearing in accordance with the principles of natural justice.
Section 103(2)(e) of the Act permits the Board "to enter any premises where work is being or has been done by the employees or in which the employer carries on business ... and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any matter...." Section 103(2)(e) of the Act is incorporated by reference as part of the OHSA through section 24(4) of the OHSA.
The above general principles and specific statutory provisions give the Board the authority to order a view and to determine whom the interests of fairness indicate should be allowed to attend on the view. The view is a continuation of the hearing, held more informally in the plant rather than in the hearing room.
The next issue is whether the Board should exercise its jurisdiction in this instance to order that Mr. Gray be permitted to attend on the view. Mr. Gray has been an adviser to counsel for the complainant throughout this matter. She has stated that Ms. Clark would be prejudiced if he is not available to assist her on the view. The employer has not shown that any prejudice would accrue to it if Mr. Gray attends. Accordingly, we order that Mr. Gray be permitted to attend on the view.
We note that attendance on the view is subject to an implied undertaking that any information obtained during the course of the view is to be used only for the purpose of this litigation and for no other purpose. That undertaking applies to everyone involved in the view and any breach of that undertaking would be treated very seriously by the Board.
8After we gave our ruling, counsel for Stelco informed the Board that Stelco would not comply with our order. We then heard submissions on the method of enforcing the order. However, after a recess requested by counsel for Stelco and before we made a ruling on the method of enforcement, counsel for Stelco informed the Board that Stelco would comply with our order. The Board and the parties then took the view.
9At the outset of the following day's hearing, counsel for Stelco requested that the press be excluded from the hearing room or, alternatively, that they be prohibited from publishing any evidence until the end of the case. There was a recess to permit members of the press present in the hearing room to contact counsel representing their newspapers. Counsel for The Toronto Star and The Hamilton Spectator and counsel for the Globe and Mail attended and made submissions to the Board. After hearing submissions from all parties, we recessed and then issued the following oral ruling:
We are satisfied that the Board cannot exclude the press from the hearing room. We are unable at this stage in the proceedings to determine whether any particular matter falls within section 9(1)(b) of the Statutory Powers Procedure Act (SPPA) and make no ruling at this time in regard to exclusions of the press when specific evidence is being given.
If any party believes that a matter falls within section 9(1)(b) of the SPPA, that party will bear the onus of satisfying the Board that section 9(1)(b) applies. We note that section 9(1)(b) is an exception to the presumption that hearings of this tribunal be open to the public. That openness is achieved in large part through the vehicle of the press. Thus section 9(1)(b) is to be construed narrowly. As a general matter we are of the view that these allegations do not fall within the exceptional interests set out in section 9(1)(b). We note, too, that the only alternative open to the Board should it be satisfied that section 9(1)(b) applies, is to hold that portion of the hearing in camera. There is no middle ground which would permit the Board to prohibit the publication of specific evidence, while permitting the press to attend at the hearing.
We note that the parties are agreed that it may not be necessary to reveal the names of all persons to whom reference has been made in the complaints, although there has been no agreement with respect to which specific individuals shall not be referred to by name.
10This case is to continue on March 30, April 7, 9, 16 and June 23 and 24, 1987 on agreement of the parties before this panel of the Board. The parties estimate they will require ten days of hearing in addition to the dates listed. This matter is referred to the Registrar to list at least ten additional days of hearing.