International Woodworkers of America v. Atway Transport Inc., 1988 CanLII 3756

[1988] OLRB Rep. April 361

1634-87-U International Woodworkers of America, Complainant v. Atway Trans­port Inc., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and J. Sarra.

APPEARANCES: W. Dubinsky, Ed Kidd, Lyle Pona and Wilf Mcintyre for the complainant; D. F. Nelson and Y. L. J. Fricot for the respondent.

DECISION OF THE BOARD; April 12, 1988

1. This is a complaint under section 89 of the Labour Relations Act in which the complain­ant alleges that the grievor, Edward Kidd, has been dealt with by the respondent contrary to the provisions of sections 66 and 70 of the Act. In its reply to the complaint, the respondent submitted that the grievor was not an employee of the respondent but was at all material times an indepen­dent contractor. At the commencement of the hearing of this complaint, the parties agreed that the Board should hear evidence and argument concerning that issue as a preliminary matter. The pur­pose of this decision is to record certain oral rulings which were made by the Board during the course of hearing evidence regarding that issue.

2. On April 6, 1988, the Board made the following unanimous oral ruling concerning the admissibility of photocopies of certain computer print-outs ("photocopies 1, 1A, 2, 3, and 4") which the respondent sought to introduce as exhibits:

Subject to the respondent producing the original computer print-outs from which photocopies 1, 1A, and 2 have been made, so that the photocopies can be compared with the originals, we are prepared to admit those photocopies as exhibits in these proceedings once they have been identified by Mr. Per­rier. If the respondent fails to produce, for inspection by Mr. Dubinsky, the underlying documentation, if any, which forms the basis of those print-outs, that may well affect the weight, if any, to be given to those print-outs. How­ever, that is a matter which may be left for final argument.

With respect to photocopies 3 and 4, we are not prepared to admit them as exhibits unless Mr. Dubinsky is provided with the originals from which they were photocopied and is provided with the names of the persons to whom the information contained in them pertains. In this regard, we recognize the sensitive nature of that financial information, but are of the view that Mr. Dubinsky is entitled to know the names in order to verify the validity of the information and to be in a position to meaningfully cross-examine on that material. We would also note that confidential information received during the course of a Board hearing can only be used by a party or party's repre­sentative for purposes of the hearing, and that the use of that information for extraneous purposes would constitute contempt of the Board.

3. On April 7, 1988, the Board made the following unanimous oral ruling regarding production of documents pursuant to a summons duces tecum which the complainant had caused to be served on persons including Robert Halstead and Claude Perrier, the first two witnesses called by the respondent in this matter:

Having carefully considered the submissions of the parties and the case law to which we have been referred, we have reached the following conclusions. The app roach which the Board has adopted with respect to the production of documents pursuant to a summons duces tecum is now well established in the Board's jurisprudence. A summons 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. However, as noted by the Board in Mollenhauer Limited, [1987] OLRB Rep. Sept. 1156, at paragraph 5, "a party seeking production of doc­uments through a summons need not demonstrate any more than that the documents are arguably relevant to the matters in issue'. See also Forintek Canada Corp., [1985] OLRB Rep. July 1050; Dinnerex Incorporated, [1985] OLRB Rep. March 398; Gordon-Nelson Development Company Limited, [1984] C'LRB Rep. June 807; Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659; and The Becker Milk Company Limited, [1974] OLRB Rep. Oct. 732.

Having regard to the principles set forth in those decisions, we have con­cluded that the following documents must be produced in the circumstances of the instant case:

(1) the respondent's payroll documents for 1987 in respect of each of the drivers characterised by the respondent as "em­ployees" and each of the drivers characterised by the respon­dent as "contractors", and

(2) all contracts signed with drivers characterised by the respon­dent as "contractors" who performed work for the respon­dent in 1987.

We are f the view that these two groups of documents are of arguable rele­vance to the preliminary issue of whether the grievor, Edward Kidd, was an employ e of the respondent at the time of his termination, as contended by the complainant, or an independent contractor, as contended by the respon­dent. In this regard, we note that some payroll information regarding per­sons other than the grievor has already been ruled admissible at the behest of the respondent (namely, a computer print-out referred to as "photocopy 3"). To dens the complainant access to payroll documents concerning other driv­ers would be to permit the respondent to place material before the Board on a selective basis. With respect to the contracts, we note that samples of these documents have already been introduced as exhibits (34 and 35) by the respondent. Moreover, production of those documents is of arguable rele­vance t( the matter of whether the grievor is the only one of the persons characterized by the respondent as "contractors" who has not signed such a contract. This in turn may well have a bearing on whether Mr. Kidd is or is not an independent contractor.

We are not prepared to direct production of any of the other documents sought by the complainant as Mr. Dubinsky has not demonstrated that they are arguably relevant to the issue before us, i.e., whether Mr. Kidd was at the material time an employee of the respondent or an independent contrac­tor. In our view, the other documents sought by the complainant all pertain to collateral matters, and would not assist us in deciding the issue of Mr. Kidd's status vis-a-vis the respondent.

In directing production of the aforementioned documents, we note that there is an implied undertaking by a party to whom documents are produced, pur­suant to a summons duces tecum, that the documents will not be used for col­lateral or ulterior purposes (see, for example, Shaw-Almex Industries Limited, supra). We also note that in the instant case that implicit undertak­ing has been made explicit by Mr. Dubinsky, who has undertaken on behalf of himself and on behalf of the complainant that the documents produced by the respondent in these proceedings will be used only for purposes of these proceedings and not for any other purpose.

4. Later that day, the Board made the following unanimous oral ruling concerning the admissibility of five other computer print-outs ("computer print-outs #1 to #5"), and concerning a clarification sought by Mr. Fricot (of counsel for the respondent) regarding the ruling set forth in the preceding paragraph of this decision:

Having considered the submissions of the parties concerning the admissibil­ity of computer print-outs #1 to #5, we are unanimously of the view that they are inadmissible insofar as they pertain to 1986. In this regard, we note that in the ruling which we made this morning concerning documents to be produced pursuant to a summons duces tecum, we ruled that payroll docu­ments for 1987 in respect of each of the drivers characterised by the respon­dent as "employees" and each of the drivers characterised by the respondent as "contractors" must be produced in the circumstances of this case. That ruling rejected the complainant's request for production of payroll docu­ments for 1986 and 1985 on the ground that they, and numerous other docu­ments sought by the complainant, are not arguably relevant to the issue of Mr. Kidd's status vis-a-vis the respondent at the material time. The same is true of the computer print-outs which the respondent now seeks to intro­duce, insofar as they pertain to 1986. In conformity with yesterday's ruling in respect of photocopies 3 and 4, we are not prepared to admit those parts of computer print-outs #1 to #5 which pertain to 1987 unless Mr. Dubinsky is provided with the names of the persons to whom the information contained in them relates. As was the case with photocopies 3 and 4, we recognize the sensitive nature of the information contained in computer print-outs #1 to #5, but are of the view that Mr. Dubinsky is entitled to know the names in order to verify the validity of that information and to be in a position to meaningfully cross-examine on that material. Our earlier comments regard­ing Mr. Dubinsky's undertaking in respect of the use to be made of docu­ments produced by the respondents in these proceedings are, of course, equally applicable to computer print-outs #1 to #5.

Mr. Fricot has also asked the Board to clarify our earlier ruling regarding production pursuant to the summons duces tecum, by indicating whether the production ordered therein is tied to the respondent's introduction of photo­copy 3 and Exhibits 34 and 35. (Exhibit 34 was introduced by the respondent through its first witness, Robert Halstead. After Mr. Halstead identified that document, it was marked as an exhibit. Mr. Halstead was unable to identify the document which has been marked as Exhibit 35. However, it was received by the Board and marked, subject to the respondent's undertaking to prove it through another witness.) In response to that request, we hereby expressly indicate that the production ordered therein is not tied to the respondent's introduction of those documents. We have directed production of the documents covered by that ruling on the basis that they are arguably relevant to the issue of whether Edward Kidd was an employee of the respondent at the time of his termination or an independent contractor. Our view that such information and documentation is arguably relevant to the issue before us is also what prompted us to rule that photocopy 3 may be admitted (under the conditions specified in our ruling concerning that docu­ment) and to admit Exhibits 34 and 35. The unfairness which would result if the Board were to receive those documents but not permit the complainant to obtain production of similar documents is merely another independent basis for that ruling.

5. This matter has already been listed for continuation of hearing in Thunder Bay on June 6, 1988. The following additional continuation dates have been set by the Board, in consultation with the parties: July 26 and 27, August 16 and 17, and September 12 and 13, 1988. The matter is referred to the Registrar to be listed for continuation of hearing in Thunder Bay on those dates.