Jill Bettes v. Boeing Canada/DeHavilland Division, 1989 CanLII 2983

Jill Bettes v. Boeing Canada/DeHavilland Division

[1989] OLRB Rep. December 1213

1761-88-OH Jill Bettes, Complainant v. Boeing Canada/DeHavilland Division, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Daniel A. Harris, Gus Goncalves and I. Bettes for the complainant; L. Bertuzzi, H. R. Dyer and P. Irwin for the respondent; Mark Alchuk for the Ministry of Labour and The Occupational Health and Safety Branch (at the November 7,1989 hearing).

DECISION OF THE BOARD; December 11, 1989

1. This is a complaint alleging violation of section 24 of the Occupational Health and Safety Act (hereinafter referred to as the "OHSA"). During the proceedings, counsel for the complainant issued a summons to J. Harkins, an inspector with the Occupational Health and Safety Branch. Harkins and several other officials of the Ministry of Labour had been involved in the various investigations and meetings in connection with the work refusals which eventually led to the instant complaint. Harkins appeared at the hearing and indicated that the legal department of the Occupational Health and Safety Branch had said "it was allright" for him to testify.

2. Because this was a matter of first impression and because Harkins initially appeared unaccompanied by counsel for the Ministry, the Board directed the parties to make submissions addressing several of its concerns relating to the orderly conduct of its hearing in accordance with the principles of natural justice and also directed that the Ministry be given notice to afford them an opportunity to make representations. The various submissions of the parties are next set out briefly.

3. Counsel for the complainant reviewed the statutory language in section 34(2) of the OHSA and contrasted that wording with that used in other comparable statutes such as the Labour Relations Act and the Employment Standards Act. As the OHSA only provided for the non-compellability of inspectors, in contrast to the broader wording in the other statutes which spoke of non-compellability and non-competence, counsel argued Harkins was a competent witness. Counsel stressed that exceptions to the first principle that the public has a right to all the relevant testimony should be kept to a minimum and, here, the statute did not preclude such evidence. Counsel carefully reviewed a number of decisions of the courts and the Board in support of his submissions that the paramount policy interest was the public's right to hear all relevant testimony and exceptions should be restricted as far as possible. In rely, counsel argued that the statement by Mr. Alchuk, as counsel for the Ministry of Labour and the Occupational Health and Safety Branch, that the Director had given permission to Harkins to testify was sufficient to satisfy the Board with respect to section 34(3). Finally, counsel acknowledged that there were policy ramifications in permitting Harkins to testify but stated that was for the Director to consider in deciding whether or not to grant permission to Harkins and the Director must be taken to have weighed those matters. Cases cited included: Re Motor Transport Industrial Relations Bureau of Ontario, 1970 CanLII 1613 (ON LA), 22 LAC 61 (Weatherill); Toronto Newspaper Guild v. CCH Canada Limited, (1974) 74 CLLC ¶16,114 (Adams); Re Dorothea Knitting Mills Ltd. and Canadian Textile & Chemical Union et. al. (1975), 1975 CanLII 654 (ON HCJ), 9 OR. (2d) 378 (Ont. Div. Ct.); Re Canadian Workers Union and Frankel Structural Steel Ltd. et. al. (1976), 1976 CanLII 829 (ON HCJ), 12 O.R. (2d) 560 (Ont. Div. Ct.); Retail Clerks Union, Local 401 v. 4 Way Wholesale Ltd., (1979), 79 CLLC ¶16,206 (Alta. Ind. Rel. Bd.); Re Harry Woods Transport Ltd. (1980), 1980 CanLII 4109 (ON LA), 25 LAC (2d) 60 (Weatherill); Auto Jobbers Warehouse Ltd., [1982] OLRB Rep. May 649; International Harvester Company of Canada Limited, [1983] OLRB Rep. June 898; General Motors of Canada Limited, [1985] OLRB Rep. Feb. 262; Domtar Inc., [1988] OLRB Rep. Aug. 780. Counsel also referred to excerpts from: Sopinka & Lederman, The Law of Evidence in Civil Cases, pp 457-460; Canadian Encyclopedic Digest (3rd edition), pp 233-234; Brown & Beatty, Canadian Labour Arbitration (3rd edition), pp 3-29, 3-30; Gorsky & Steinbert, Evidence and Procedure in Canadian Labour Relations, pp 213-215.

4. Counsel for the Ministry of Labour and the Occupational Health and Safety Branch stated that the privilege under section 34(2) of the OHSA was being waived and Harkins had been instructed to attend the Board proceedings and testify. He indicated that the Ministry had made a policy decision, that given Harkins' involvement, no other witness but Harkins could testify to those events and the Ministry wished to assist the parties and the Board by making Harkins available. It was submitted that Harkins was a "competent" witness, that section 34(2) only dealt with compellability and Harkins would attorn to the jurisdiction of the Board. Specifically, the Director had authorized Harkins to testify, pursuant to section 34(3) of the OHSA. Counsel added that, once Harkins took the stand, he should be treated as any other witness and could not raise section 34(2) thereafter during his examination or cross-examination. With respect to the position of other officials who had been involved in the various investigations and meetings, counsel stated that, while the question had taken him by surprise, the rationale proffered by the Ministry for Harkins' testifying would likewise apply to such other officials as had relevant information and the Ministry would not raise section 34(2) of the OHSA in respect of such persons if the parties sought to compel their testimony. Finally, counsel noted that the Ministry had given permission for an inspector to testify in this case only. That is, the Ministry would decide on a case by case basis if section 34(2) of the OHSA would be invoked to prevent the testimony of inspectors in other cases.

5. Mr. Dyer, as counsel for the respondent, agreed that, in the proper circumstances and despite its policy concerns, an inspector could testify. That is, counsel conceded that section 34(2) of the OHSA only addressed the "compellability" and not the "competency" of an inspector. However, it was argued there were several "preconditions" to be satisfied before Harkins could testify. Two "preconditions" appeared not to be in issue, namely, counsel for the Ministry agreed that Harkins could be treated as any other witness once he took the stand and could not thereafter raise section 34(2) of the OHSA and, further, counsel for the Ministry agreed that the same rationale for permitting Harkins to testify would apply to other officials involved in the investigation and meetings and section 34(2) would not be raised as a bar to their testifying at the instance of either party. Counsel for the respondent submitted that a third precondition was that the Director should appear before the Board in person to give consent, pursuant to section 34(3), with reasons for so doing. Alternatively, the inspector could give his evidence in documentary form. Counsel reviewed a number of cases dealing with the compellability of the OHSA inspectors. He emphasized that the rationale for the statutory provision in section 34(2) was consistently depicted in the cases as necessary to preserve the neutrality of the inspectors' position and to encourage a neutral satisfactory resolution of the dispute. Those policy considerations, counsel argued, applied at least equally to a prohibition against an inspector voluntarily testifying at the behest of one party in litigation before the Board. Because of the negative impact on the OHSA process if an inspector voluntarily testified at the request of one party, counsel contended that the Director should be required to personally outline the rationale for permitting an inspector to testify in a particular proceeding. Cases cited included: General Motors of Canada Limited, supra; General Motors of Canada Limited, [1984] OLRB Rep. Mar. 459; Domtar Inc., supra; The Corporation of the Township of Innisfil v. The Corporation of the Township of Vespra et al., 1981 CanLII 59 (SCC), [1981] 2 S.C.R. 145; as well as an excerpt from Wigmore on Evidence, Vol 8, pp. 634-639.

6. Sections 34(2) and 34(3) of the OHSA read as follows:

34(2) 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 a inspector is not a compellable witness in a civil suit or any proceeding except an inquest under The Coroners Act, 1978, respecting any information, material, statement or test acquired, furnished, obtained made or received under this Act or the regulations.

34(3) A Director may communicate or allow to be communicated or disclosed information, material, statements or the result of a test acquired, furnished, obtained, made or received under this Act or the regulations.

7. It was not disputed that the statutory language permits an inspector to refuse to testify, notwithstanding that he or she was properly served with a summons by a party and may have knowledge or information relevant to the matters at issue. The Board caselaw in this regard was not challenged: General Motors of Canada Limited, supra (Feb. 1985); Domtar Inc., supra; General Motors of Canada Limited, supra (Mar. 1984). The Board notes that it was also not in dispute that a Board hearing is a "proceeding" within the meaning of section 34(2) of the OHSA. An issue was raised as to whether Harkins had attorned to the summons by simply appearing before the Board and whether that appearance, of itself, constituted a waiver of the protection of section 34(2) of the OHSA. In the circumstances, the Board need not finally determine that question but would note that the Board would generally be loathe to treat a mere appearance before the Board by a person served with a summons but who intended to avail himself or herself of a statutory or other "defence" to the usual consequences of proper receipt of a summons as attorning to the jurisdiction of the Board.

8. What is novel in this complaint is that this appears to be the first instance before the Board in which an inspector duly served with a summons has not raised section 34(2) to preclude his or her testimony. Counsel for the Ministry and the Occupational Health and Safety Branch informed the Board that the inspector in question (Harkins) had been instructed to attend the Board's proceedings and testified. In the Ministry's view, given Harkins' involvement, no other witness but Harkins could testify to those events and the Ministry wished to assist the parties and the Board by making Harkins available. Mr. Alchuk noted that this wavier of section 34(2) applied to this case only and the Ministry would decide on a case by case basis whether it would invoke the protection of section 34(2) of the Act.

9. Mr. Alchuk, on behalf of the Ministry, addressed directly several of the concerns raised by the summons. That is, Mr. Alchuk clarified that Harkins had been directed to appear by the Director pursuant to section 34(3) of the OHSA. Further, once Harkins took the stand, he would be subject to the same conditions as any other witness and could not thereafter raise section 34(2) of the OHSA. Finally, Mr. Alchuk asserted that the same rationale for permitting Harkins to testify would apply to other officials involved in the investigation and meetings and that section 34(2) would not be raised as a bar to their testifying at the instance of either party.

10. It was asserted that the Director must appear in person to satisfy the Board with respect to his authorization to Harkins to testify pursuant to the Director's right to do so in section 34(3) or, at least, conveying that authorization through counsel was insufficient. The Board disagrees. It is usual to accept the undertakings or stipulations of counsel on behalf of his or her client rather than to require the client to personally undertake or so stipulate. The Board sees no reason to adopt a different practice with respect to this matter. Mr. Alchuk informed the Board he was duly retained and authorized to appear on behalf of the Ministry and the Occupational Health and Safety Branch. The Board accepts Mr. Alchuk's stipulation that the Director, pursuant to his discretion in section 34(3), has authorized Harkins to testify.

11. Section 34(2) of the OHSA only speaks to the "compellability" of an inspector and not to his or her "competence". It would appear that there is no restriction with respect to the competence, in the legal sense of that term, of an inspector to testify as to matters within his or her personal knowledge. This aspect of section 34(2) was noted in Domtar Inc., supra. Moreover, the wording of section 34(2) of the OHSA stands in sharp contrast to the language in two other statutes dealing with the circumstances of roughly comparable persons, which statutes do stipulate that the persons are neither competent nor compellable, namely the Employment Standards Act, R.S.O. 1980, c. 137 and the Labour Relations Act. Section 45(3) of the Employment Standards Act specifically provides that:

45(3) No employment standards officer is a competent or compellable witness in a civil suit or proceeding respecting any information, material or statements acquired, furnished, obtained, made or received under the powers conferred under this Act except for the purposes of carrying out his duties under this Act.

Section 111(6) of the Labour Relations Act stipulates that:

l11.-(6) No information or material furnished to or received by a labour relations officer under this Act and no report of a labour relations officer shall be disclosed except to the Board or as authorized by the Board, and no member of the Board and no labour relations officer is a competent or compellable witness in proceedings before a court, the Board or other tribunal respecting any such information, material or report.

[Sections 111(4) and 111(5) of the Labour Relations Act, as well, address both the competence and compellability of various other Ministry officers and conciliation board members.]

12. The jurisprudence confirms the statutory language, in that the various officials have not been required to testify, despite proper service of a summons although the issues in those cases appear to have focused on compellability rather than competence; see C. E. Jamieson & Co. (Dominion) Limited, [1985] OLRB Rep. Mar 375; Re Harry Woods Transport, supra; Seven Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87; Plaza Fiberglas Manufacturing Limited, [1985] OLRB Rep. Oct. 1503; Shaw-Almex Industries Limited, [1984] OLRB Rep. Jan. 109; Toronto Newspaper Guild v. CCH Canadian Limited, supra; Auto Jobbers Warehouse, sup ra. Thus, the absence of the term "competent" from section 34(2) of the OHSA, particularly in light of the express use of both competent" and "compellable" in the Labour Relations Act and the Employment Standard Act would support the conclusion that Harkins is a competent witness.

13. Counsel for the respondent argued, in part, that the policy considerations enunciated in the jurisprudence as the rationale for an inspector's non-compellability applied equally to a prohibition against an inspector voluntarily testifying at the behest of one party. It is useful to refer to the following passage from General Motors of Canada, supra, (Feb. 1985) at paragraph 6 which elaborates on the rationale for section 34(2):

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. Ralph, 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.

This theme of perceived neutrality as an investigator and decision-maker untainted by the appearance of partisanship is likewise reflected in General Motors of Canada, supra, (Mar. 1984) and Domtar Inc., supra. Indeed, this concept of neutrality and the roles of mediators, conciliators and labour relations officers in the settlement process are echoed throughout the cases dealing with the statutory protections against "compellability" and "competence" in the Labour Relations Act and the Employment Standards Act (see C. E. Jamieson, supra; Re Harry Woods Transport, supra; Seven Up/Pure Spring Ottawa, supra; Plaza Fiberglas, supra; Shaw-Almex Industries, supra; Toronto Newspaper Guild, supra; Auto Jobbers Warehouse, supra). The Board considers that the policy concerns expressed in the General Motors passage quoted above may well apply with equal force to the question of "competence". It does seem somewhat anomalous to make an inspector non-compellable" to preserve his or her role as a neutral, non-partisan investigator or decision-maker only to permit the investigator to testify voluntarily at the behest of one or other party. Nonetheless, that anomaly exists by virtue of the statutory wording of section 34(2). The Board simply cannot read "competence" into section 34(2). The reference is not there and, in its absence, the Board finds that Harkins is a competent witness.

14. For the foregoing reasons, the Board finds that Harkins is a competent witness. The hearing is to continue on the days previously scheduled.

CONCURRING DECISION OF BOARD MEMBERS D. A. PATTERSON AND J. A. RONSON: December 11, 1989

1. We would add the following comments. As representatives of trade unions and employers respectively, we were perplexed when the inspector, Mr. J. Harkins, appeared before us in answer to the complainant's subpoena, and advised that the Occupational Health and Safety Branch of the Ministry of Labour did not object to this appearance as a witness in these proceedings.

2. We were mindful of the reasoning found in General Motors of Canada Limited, [1985] OLRB Rep. Feb. 262. The following excerpt set out the interpretation of the governing legislation which, to the Board, best fulfilled the intent and purpose of the Occupational Health and Safety Act:

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.

3. On a subsequent hearing day, counsel for the Ministry of Labour and the Occupational Health and Safety Branch appeared before us and advised that the Director had directed Mr. Harkins to testify because only Mr. Harkins could give evidence of his involvement in the dispute before us. With the greatest respect to Ministry counsel, who was not present during the first 19 days of these proceedings, it seems to us that such reasoning could apply to each and every safety related dispute that comes before the Board.

4. In our representative capacities we mirror the desire of our respective communities of interest to see that the Occupational Health and Safety Act functions in the most efficient manner according to what we perceive to be its guiding intent and spirit. Having said that, it is clear to us that under the legislation it is the Director's obligation to make policy decisions, and it is not our function to call them into question. We therefore concur with Vice-Chair Tacon that the inspector is a competent witness duly directed by the Director to testify before us.