[1989] OLRB Rep. September 983
2241-86-R The Society of Ontario Hydro Professional and Administrative Employees, Applicant v. Ontario Hydro, Respondent v. Canadian Union of Public Employees - C.L.C. Ontario Hydro Employees Union Local 1000, Intervener v. The Coalition to Stop the Certification of the Society on behalf of certain employees, Tom Stevens, C. A. Stevenson, and Michelle Morrissey-O'Ryan and George Orr on behalf of certain objecting employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; September 14, 1989
1. In our decision of July 13, 1989, we gave directions with respect to the examination of persons whose employee status as of the application date is in dispute. One of those directions was that
- No less than ten days before the commencement of an examination with respect to an individual whose employee status as of November 5, 1986 is in dispute,
(a) each party to that dispute shall file with the Board the documents on which it relies in connection with that dispute; and,
(b) with respect to each document on which it relies, deliver to the other parties either a copy of the document or a list of documents relied upon which identifies that document with particularity.
In a letter to the Registrar dated August 21, 1989, the respondent ("Hydro") states that this provision was the subject of discussion at a meeting of representatives of Hydro and the applicant ("the Society"), during which
…….the Society expressed the view that all documentation to be used in any part of the duties and responsibilities phase must be produced ten days before an employee's examination.
The letter goes on to say that
Ontario Hydro is prepared to provide official job documents such as job specifications and descriptions in accordance with paragraph 7. Bearing in mind that the employee is the witness of the Labour Relations Board raises concerns in our mind as to the impact of advance consultation with witnesses which would be required by either parties to produce all relevant documentation. There will also be other documents that may be properly and normally identified during the course of an employee's examination that could not be relied on because they were not produced prior to the examination.
Because of the latter concerns, Ontario Hydro believes that the documentation referred to in paragraph 7 should be interpreted as "relevant Job documents".
In a letter to the Registrar dated August 23,1989, the Society refers to Hydro's letter of August 21, 1989, confirms that it is its position that paragraph 7(a) of the Board decision dated July 13, 1989 requires the prior disclosure of all documentation upon which the parties intend to rely, and asks "that the Board determine this question."
2. We intended paragraph 7 of our order of July 13, 1989 to require that each party produce by the stated deadline each and every document in its possession, custody or power on which it wishes to be able to rely thereafter. While it seems implicit that a party cannot be expected or compelled to produce a document which is not in its possession, custody or power, the parties' correspondence suggests to us (whether they intended it do so or not) that that requires clarification. Accordingly, subparagraph 7(a) of our decision is hereby amended to replace the word "documents" with the phrase "documents in its possession, custody or power" and subparagraph (b) is amended to replace the phrase "document on which it relies" with the phrase "document referred to in subparagraph (a)".
3. We note that documents in the possession of an examinee as a result of the exercise of his or her duties and responsibilities as an employee of the respondent would ordinarily be documents in the possession, custody or power of the respondent as a matter of law. The fact that the examinee will be served with a summons in no way prevents the respondent from obtaining information and documents from him or her before the examination. In that respect it does not matter who pays the conduct money which accompanies the summons, nor whether the examinee's examination will begin with questioning by a labour relations officer or by a representative of one of the parties. There is no property in a witness; the Board certainly claims none in its proceedings.
4. It is entirely proper for a party to communicate with any examinee before he or she begins testifying if the communication is for the purpose of obtaining from the examinee information relevant to the proceedings at hand. We see no reason for concern about any party's consulting any examinee for that purpose. Indeed, the Board expects that all parties will make every effort to fully inform themselves with respect to the issues in dispute at the earliest possible time.