United Brotherhood of Carpenters and Joiners of America, Local 27 v. Mollenhauer Limited, 1987 CanLII 3082

[1987] OLRB Rep. September 1156

0250-87-R; 3291-86-R; 3457-86-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Mollenhauer Limited, Respondent v. Labourers International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Ellis-Don Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. The Form Work Council of Ontario, Intervener #2 v. Metropolitan Toronto Apartment Builders Association, Intervener #3; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Milne & Nicholls Ltd., Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and P. Grasso.

APPEARANCES: Douglas J. Wray and David McKee for the applicant; W. Thornton for the respondents; A. M. Minsky for Intervener #1 and The Form Work Council of Ontario; Doug Gilbert for the Metropolitan Toronto Apartment Builders Association.

DECISION OF THE BOARD; September 8, 1987

1. In the course of these proceedings the applicant caused a summons to be served on Mr. Harold Green and another on Mr. Michael Reilly. In addition to commanding Mr. Green to attend before the Board, the summons requires him to bring with him:

1. All collective agreements between Local 183, Labourers' International Union of North America (hereinafter referred to as "Local 183") and the Metropolitan Toronto Apartment Builders Association (hereinafter referred to as "the MTABA") with respect to the House Builders or other employers employing persons in the residential sector of the construction industry other than persons employed in the construction of Apartment Buildings.

2. With respect of all collective agreements of any type whatsoever between the MTABA and Local 183 from 1969 until the present time:

   i) all proposals made by either party for amendment or renewal of any agreement, whether during renewal negotiations or at any other time;

   ii) all notes made by any representative of the MTABA during collective bargaining between the MTABA and Local 183 for the amendment or renewal of any collective agreement.

3. All collective agreements between any member of the MTABA and any trade union or council of trade unions other than Local 183 covering any work in the construction industry other than work in the ICI. sector.

4. All certificates, recognition agreements, correspondence, memoranda, or other document, whatsoever with respect to bargaining rights held by Local 283 for any member of the MTABA.

5. Any correspondence, agreement, memoranda, or other document whatsoever between the MTABA and the Toronto Housing Labour Bureau (hereinafter referred to as the "THLB"), and any notes of discussions between the officers or agents of the MTABA and the THLB.

6. Any proposals, notices, or other documents with respect to the MTABA "House Builders" Collective Agreement with Local 183, expiring 30 April, 1983 and the renewal or amendment thereof, in the possession of the MTABA.

Mr. Reilly's summons requires him to bring with him:

1. All collective agreements between Local 183, Labourers' International Union of North America (hereinafter referred to as "Local 183") and the Metropolitan Toronto Apartment Builders Association (hereinafter referred to as "the MTABA") with respect to House Builders or other employers employing persons in the residential sector of the construction industry other than persons employed in the construction of Apartment Buildings.

2. With respect to all collective agreements of any type whatsoever between the MTABA and Local 183 from 1969 until the present time:

   i) all proposals made by either party for amendment or renewal of any agreement, whether during renewal negotiations or at any other time; and

   ii) all notes made by any representative of Local 183 during collective bargaining between the MTABA and Local 183 for amendment or renewal of any collective agreement

   relating to the scope of the collective agreement including the employees, work, jurisdiction or classification to be covered by the collective agreement, and any proposals relating to subcontracting.

3. All certificates, recognition agreements, correspondence, memoranda, or other document whatsoever with respect to bargaining rights held by Local 183 for any member of the MTABA.

4. Any proposals, notices, or other documents with respect to the MTABA "House Builders" Collective Agreement with Local 183, expiring 30 April 1983 and the renewal or amendment thereof, in the possession of Local 183.

5. All collective agreements, letters of understanding, ancilliary agreement and correspondence or other documents with respect to the terms of the [sic] any collective agreement with the Toronto Housing Labour Bureau (hereinafter referred to as the "THLB") and Local 183.

6. All bargaining proposals, and notes of collective bargaining, between the THLB and Local 183 for the purpose of renewing or amending any collective agreement, between the THLB and Local 183 relating to the scope of the collective agreement including the employees, work, jurisdiction or classifications to be covered by the collective agreement any any proposals relating to subcontracting.

2. The Metropolitan Toronto Apartment Builders ("the MTABA") objects to the scope of the summons to Mr. Green on the basis that the documents referred to in paragraph 2 of the list, of which only documents relating to the most recent round of negotiations are apparently available, are irrelevant because they relate to matters that occurred subsequent to the date that this application was made. The MTABA asserts that paragraph 4 is overly broad in its scope and constitutes a "fishing expedition" by the applicant. The MTABA objects to the demand that Mr. Green produced the documents referred to in paragraph 5 on the basis that these are irrelevant to the issues before the Board in this proceeding. Counsel for the MTABA submits that the Board should be sensitive to the nature of documents and information of the kind requested in paragraphs 2, 4 and 5 and should not lightly require that these be produced.

3. The Labourers' International Union of North America, Local 183 ("Local 183") objects to the lack of specificity with respect to the documents that the summons to Mr. Reilly directs he bring with him. Local 183 does not object to the production of those "high-rise" collective agreements between it and the MTABA that were in effect at or prior to the date that this application was made or the documentation with respect thereto. It does, however, object to the demands in paragraphs 1, 2, 4, 5 and 6 insofar as these relate to any other or subsequent collective agreement on the basis that these are irrelevant. Counsel for Local 183 submits that the general wording of the summons shows that the applicant is on a "fishing expedition" and, accordingly, is an abuse of process. He further asserts that the wording is so broad that Mr. Reilly cannot reasonably be expected to know what it is that he must bring with him.

4. The Board has the power to compel the production of documents pursuant to section 103(2)(a) which provides:

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;

The production of documents is commonly accomplished through a summons directing a person to attend before the Board and bring with him/her "specified" documents or things. This is often referred to as a subpoena duces tecum. The Board's power to compel the production of documents is a significant one and must therefore be exercised circumspectly, particularly where those documents relate to the preparation for or conduct of ongoing negotiations for a collective agreement. Accordingly, a subpoena duces tecum is not to be used as a search warrant or to permit a party to search for a case of which it has no knowledge (that is, conduct a fishing expedition) (see The Becker Milk Company, [1974] OLRB Rep. Oct. 732; Dinnerex Incorporated, [1985] OLRB Rep. March 398; Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659; Re Bell Canada and Communications Workers of Canada (1980), 1980 CanLII 4017 (CA LA), 25 L.A.C. (2d) 200 (P. Picher)).

5. A subpoena which requires the person summoned to bring documents to a hearing with him/her must specify with as much precision as possible the particular documents demanded. The specificity with which documents must be described will depend on what is fair and reasonable in the circumstances. In this regard, it is appropriate to consider whether the documents are identified with sufficient particularity to enable the person summonsed to identify what is required, whether the party issuing the summons has had an opportunity to examine beforehand or otherwise ought reasonably to be aware of the documents, the witness' familiarity with the documents, the scope of the proceedings, and the purpose for which the documents are sought (see Dalgleish and Basu, 1974 CanLII 913 (SK QB), 51 D.L.R. (3d) 309 (Sask.Q.B.)). In civil proceedings in the District and Supreme Courts of Ontario, the rules of civil procedure provide for extensive discovery of documents both by affidavit and pre-trial examination. That is not the case in proceedings before the Board (except in applications under section 40a and section 91 of the Act where the Board's Rules of Procedure and practice provide for a form of discovery). Consequently, proceedings before the Board are not analogous to civil proceedings in the courts and the Board must be careful not to impose restrictions which, though appropriate in the courts, are not necessarily so in proceedings before the Board. Although there is a difference between the production of documents and the discovery of documents, the distinction between them is somewhat blurred in proceedings before the Board where it is inevitable that some discovery will and must go on through a subpoena duces tecum. It is therefore appropriate for the Board to take the broader approach that it has adopted to the production of documents pursuant to a subpoena duces tecum. In our view, a party seeking production of documents through a summons need not demonstrate any more than that the documents sought are arguably relevant to the matters in issue (Dinnerex Incorporated, supra; Shaw-Almex Industries Limited, supra; The Becker Milk Company Limited, supra).

6. The three applications before us are being heard together with respect to the issues that are common to all three; that is, the status of the interveners to participate in the proceedings and the description of the unit of employees of the respondent to each application that is appropriate for collective bargaining. To deal with the former issue, the Board will have to interpret and apply a collective agreement dated May 9, 1985, between the MTABA and Local 183 ("the MTABA agreement"). Deciding the latter issue may also involve the interpretation and application of the MTABA agreement. There is also a collateral issue relating to the interpretation and application of the MTABA agreement; that is, the admissibility of extrinsic evidence relating to the history of the collective bargaining leading to, and the application of, the MTABA agreement. Although the applicant opposes the introduction of such evidence, the procedure adopted by the Board, on agreement of the parties, is that the evidence will be heard and the issue of its admissibility dealt with in final argument. Indeed, the Board has already heard some of this extrinsic evidence and each of the series of MTABA agreements have been made exhibits. In addition, Local 183 (and the Form Work Council of Ontario) has submitted a brief of documents which includes a collective agreement between the Toronto Housing Labour Bureau and Local 183 dated May 1, 1985, a collective agreement between the Residential Framing Contractors Association of Metropolitan Toronto and Vicinity Inc. and Local 183 dated May 2, 1985, and a collective agreement between the Ontario Form Work Association and the Form Work Council of Ontario dated July 16, 1985.

7. Having taken the positions that they have, and seeking, as they do, to rely on extrinsic evidence relating to the MTABA agreement and (presumably) to the other collective agreements which have been submitted, though not yet proved, it is not now open to either the MTABA or Local 183 to refuse to produce the documents that relate to the history of the collective bargaining leading thereto insofar as these may be relevant to the issues before the Board. Mr. Green has been called as a witness by the MTABA. He has yet to be cross-examined by the applicant. In our view, it would be quite proper for counsel for the applicant to cross-examine Mr. Green with respect to the existence of such documents and to require their production if they exist. It is unclear whether Local 183 intends to call Mr. Reilly as a witness. If it does do so, the comments made with respect to the cross-examination of Mr. Green apply equally to him. Whether or not he is called, however, has little bearing on the issue of production of documents. As the Board noted in Shaw-Almex lndustries Limited, supra at paragraph 19:

Although the custodian of a document is described as a witness in the context of the issuance of 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 document described in the summons exists 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 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.).

8. In our view, the documentation relating to the negotiations with respect to the MTABA agreement and the collective agreements between Local 183 and the Toronto Housing Labour Bureau, Local 183 and the Residential Framing Contractors Association of Metropolitan Toronto and Vicinity Inc. and the collective agreement between the Ontario Form Work Association and The Form Work Council of Ontario, or the application thereof, are at least arguably relevant on the basis of the positions taken by the MTABA and Local 183. The purpose for which the documents are sought, namely to test the assertions and evidence of the MTABA and Local 183, is perfectly legitimate. Nor are many of the documents likely to be particularly sensitive in that it seems unlikely that many of them will relate to ongoing negotiations. Even if they do, however, the nature of these proceedings is such that justice and the balance of convenience favour production. Further, the applicant has not had an opportunity to examine the documents demanded beforehand and cannot reasonably be expected to be aware of them or their existence. We note also that both Mr. Green and Mr. Reilly are familiar with both the issues in these proceedings and with the documentation being requested. In our view, their familiarity is sufficient to permit them, particularly with the assistance of their counsel, to identify the documents being requested. If there is doubt with respect to the relevance of any document(s) they can (and should) be produced to the applicant which may be able to assist in determining their relevance. Ultimately, of course, it is for the Board to determine what evidence, either documentary or otherwise, is relevant. The fact that the production of a great many documents may be required is not a relevant consideration. Either the documents are arguably relevant, in which case they must be produced, or they are not, in which case they need not be produced.

9. On the other hand, some of the language used in the two summons is too broad having regard to the scope of these proceedings. Accordingly, Mr. Green is directed to bring with him the following documents (which term means all records, notes, memoranda, or other notation) to the next scheduled hearing:

a) all collective agreements between Local 183 and the MTABA with respect to house builders or other employers employing persons in the residential sector of the construction industry other than persons employed in the construction of apartment buildings;

b) all documents in the possession or power of the MTABA which relate or refer to the scope of any collective agreement between it and Local 183, including the employees, work, jurisdiction, classifications, or subcontracting thereunder;

c) all documents relating to bargaining rights held by Local 183 with respect to the MTABA or any member thereof that are in possession or power of the MTABA;

d) all documents relating to any communication between the MTABA and the Toronto Housing Labour Bureau that relate to the scope of either the MTABA agreement or the agreement between Local 183 and the Toronto Housing Labour Bureau.

Mr. Reilly is directed to bring with him to the next scheduled hearing:

a) all collective agreements between Local 183 and the MTABA with respect to house builders or other employers employing persons in a residential sector of the construction industry other than persons employed in the construction of apartment buildings;

b) all documents in the possession or power or Local 183 which relate or refer to the scope of any collective agreement between it and the MTABA, including the employees, work, jurisdiction, classifications, or subcontracting thereunder;

c) all documents relating to bargaining rights held by Local 183 with respect to the MTABA or any member thereof that are the possession or power of Local 183; and

d) all collective agreements and documents referring or relating to the scope thereof (including the employees, work, jurisdiction, classifications, or subcontracting thereunder) between Local 183 and the Toronto Housing Labour Bureau, Local 183 and the Residential Framing Contractors Association of Metropolitan Toronto and Vicinity Inc., and between the Ontario Form Work Association and The Form Work Council of Ontario that are in a possession or power of Local 183.