[1987] OLRB Rep. January 45
0376-86-R; 0389-86-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant, v. Elgin Construction Company Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: Stephen Krashinsky for the applicant; Richard J. Charney for the respondent; no one appearing for the objectors.
DECISION OF THE BOARD; January 7, 1987
- The continuation of the hearing in this application for certification was scheduled to deal with certain matters arising out of charges filed by the respondent with respect to the membership evidence filed by the applicant. After receiving the submission of counsel, the Board delivered the following oral decision at its hearing in this matter on December 23, 1986:
In this application for certification, the respondent filed allegations about the manner in which the applicant obtained its membership evidence. Those allegations, in the main, suggest that the applicant informed employees that it would only cost one dollar to join at the time of organizing, but would cost $300.00 later.
Counsel for the applicant submits that the Board should not entertain any evidence about these allegations on the grounds that the respondent violated the Labour Relations Act in obtaining the information that forms the basis of the allegations. Counsel suggests that the Board should develop and apply a rule of evidence, not unlike the exclusionary rule developed in criminal cases in the United States and now in Canada under section 24 of the Canadian Charter of Rights and Freedoms. Counsel argued that the Board had a discretion to admit or refuse to admit evidence under section 103(2)(c) of the Labour Relations Act. In exercising that discretion, the Board should be concerned about the manner in which evidence was obtained since admitting evidence that came to the Board's attention as a result of a violation of the Act would only serve to encourage people to violate the Act. Counsel also submitted that an exclusionary rule of evidence would ensure that employers would not violate the Act in trying to obtain information that impairs a union's membership evidence.
The Board's duty in a normal certification proceeding is set out in sections 6 and 7 of the Act, or as in this case, in section 144 of the Act. The Board makes that determination based upon the evidence of membership filed and on any other evidence that is relevant to that determination.
While section 103(2)(c) of the Act may give the Board the discretion to refuse to admit relevant evidence, as counsel for the applicant argues based upon Olympia Floor and Wall Tile Co., [1986] OLRB Rep. Feb. 270, we believe that section 102(13) of the Act, which states, in part:
"The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions....
[emphasis added]
provides a positive direction to the Board to receive evidence that would be relevant, cogent and material to the issues. Proceedings before the Board are not criminal trials. Therefore, we believe that section 24(2) of the Canadian Charter of Rights and Freedoms has no application to the reception of evidence in this proceeding.
We believe that the common law rules with respect to the admissibility of relevant evidence, as set out in The Queen v. Wray (1970) 1970 CanLII 2 (SCC), 11 D.L.R. (3d) 673 (S.C.C.) is the preferable approach to follow in proceedings before the Board. Mr. Justice Martland, for the majority, wrote at page 685:
“…I am not aware of any judicial authority in this country or in England which supports the proposition that a trial Judge has a discretion to exclude admissible evidence because, in his opinion, its admission would be calculated to bring the administration of justice into disrepute. The test of admissibility of evidence was stated by Lord Goddard, C.J., in Kuruma v. The Queen, [1955] A.C. 197 at p. 203, as follows:
'In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.'"
We are concerned here with determining the facts relevant to the issues that arise in the certification proceeding. If the evidence is relevant and material to the issues it ought to be admitted. Even though we acknowledge that we have the discretion to refuse to admit relevant evidence, we believe that the manner in which the evidence was obtained is not a proper basis upon which to exercise that discretion.
In St. Michael's Shops Canada Limited, [1979] OLRB Rep. April 376 the Board wrote at 377:
"The authorities, however, do not stand for the proposition that a party to a certification proceeding may not bring forth evidence which might raise a doubt as to the reliability what otherwise appears to be acceptable membership evidence. In an application for certification the Board relies on hearsay evidence in determining the membership support of an applicant union. It is not feasible for the Board to hear from each individual who signed a card to ascertain his true wishes or inquire into the circumstances under which he signed a membership card. For this system to operate effectively the Board must consider any substantial allegation which might cause the Board to doubt the reliability of the membership evidence. To insist that employees alone may raise allegations of intimidation by a union would create an anomalous situation. The more effective the intimidation might be the less likely the Board would be to hear of the violation as its continuing effect could deter the employees from lodging a complaint. For the reasons set out above, therefore, the Board finds that the respondent company in this proceeding has status to raise the allegations of intimidation."
More recently, the Board in Dough Delight Ltd. [1986] OLRB Rep. May 603 wrote at 605-606:
"The instances of "non-pay" ultimately established by the Board's inquiry came to light as a result of the actions of a person acting on behalf of the employer - actions which counsel for the applicant say constitute an unfair labour practice. He says this should be taken into account, and that anything short of outright certification would amount to a reward to the employer for these unfair labour practices. We note that the alleged unfair labour practices occurred after the membership evidence in question had been collected and submitted to the Board. The Act clearly defines in section 8 the circumstances in which the occurrence of employer unfair labour practices can diminish the standard or quality of membership evidence which an applicant trade union must otherwise establish in order to be granted either a representation vote or outright certification. The applicant has not invoked that section. We are focusing solely on the reliability of membership evidence, and not on the punishment or reward either of the trade union or of the employer. We cannot ignore facts relevant to a matter which we have a statutory duty to decide merely because of the way their existence was discovered and brought to our attention. We are not satisfied that there is reliable membership evidence in sufficient quantity to grant outright certification or order a vote and so have jurisdiction to do neither. If the respondent or someone acting on its behalf has committed some unfair labour practice, a question we are not called upon to decide, then the appropriate response may be sought from the Board and, if the applicant is so advised and receives Board consent, the court."
Furthermore, we believe that to adopt the applicant's submission would only lead to further protracted proceedings where the focus of the hearings would change from determining the merits of the application to deciding the legality of the process used to gather the evidence that a party might seek to adduce.
We have decided the manner in which evidence is obtained is not relevant to its admissibility. That does not mean that evidence relating to the employer's investigation of the circumstances that gave rise to the allegations is irrelevant. Rather, it may well be that such evidence is relevant to the credibility of the witnesses who testify in support of the allegations, or to some other issues.
Therefore, the motion made by counsel for the applicant to exclude evidence relating to the allegations relating to the collection of membership evidence is hereby dismissed.
- The hearings in this matter are to continue before this panel of the Board on the dates previously scheduled.