John Kohut v. The National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (C.A.W.-Canada) and its Local 303, 1990 CanLII 5705

[1990] OLRB Rep. October 1042

0768-90-U John Kohut, Complainant v. The National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (C.A.W.-Canada) and its Local 303, Respondent, v. General Motors of Canada Limited, Intervener

BEFORE: S. A. Tacon, Vice-Chair.

APPEARANCES: Harry Kopyto for the applicant; Robert E. Tindale, Robert J. Ryan, Pat Clancy and Richard Fleming for the respondent; E. T. McDermott, Dave Dimartile and Margaret Szilassy for the intervener.

DECISION OF THE BOARD; October 5, 1990

1. The style of cause is hereby amended to add "General Motors of Canada Limited" as the intervener in this proceeding.

2. This is a complaint pursuant to section 89 of the Labour Relations Act alleging violation of section 68.

3. Several preliminary motions were made by the parties. Those motions are first summa­rized. The complainant's representative asserted a right to make a tape recording of the proceed­ings notwithstanding the objection of the respondent and intervener. Further, the complainant's representative contended that the Board lacked jurisdiction to proceed in the absence of an official recording of events. Counsel for the intervener sought dismissal of the complaint on several grounds, including the delay involved in filing the complaint, the lack of prima facie case and the nature of the relief claimed. With respect to this last ground, counsel for the intervener requested clarification of the precise relief the complainant was seeking.

4. The Board heard submissions with respect to the complainant's two preliminary motions, both opposed by the other parties, and herein gives its decision on those matters. A date was set for continuation of the proceedings to hear argument on the preliminary motions raised by the intervener. In that regard, the complainant's representative was directed by the Board to sub­mit the relief requested in writing and he did so as follows:

Relief sought by the Complainant

1. The right to reinstatement with full compensation for lost income

and benefits, or compensation in lieu of reinstatement.

2. A positive letter of recommendation and expurging all references to dismissal of complainant.

3. In the alternative to 1 above, new grievance hearings and proceed­ings from the first stage onwards up to and including arbitration, if required; an order excluding introduction of criminal transcripts in such proceedings, or in the alternative - releasing complainant from all obligations or undertakings given on his behalf by the Respondent CAW regarding evidence to be admitted on arbitration or in griev­ance proceedings.

4. An order adding the Intervener Employer as a party Respondent to these proceedings on the basis collusion with the Respondent CAW in denying s. 68 rights and for purposes of granting the relief sought, if required and requested.

5. The arguments of the parties with respect to the two preliminary motions raised by the complainant's representative are set out in an abbreviated form.

6. With respect to the first motion, the complainant's representative sought to make a tape recording of the Board proceedings, unobtrusively, as an aide memoire, while reserving the right to produce and rely on a "transcript" based on that recording in the event of a dispute during the testimony of a witness or in submissions. The complainant's representative argued that it was pre­mature to decide if the tape recording could be played back to a witness or during submissions. Such a determination, it was submitted, should only be made if a dispute arose and the complain­ant's representative sought to play the tape. It was contended that any difficulties with respect to

the integrity of the tape and its accuracy could be resolved by the Board in a proceeding akin to a voir dire. A decision of the Ontario Public Service Relations Tribunal, Glenny and Ontario Public Service Employees Union, et al (T10001189, unreported June, 1990), was cited in support.

7. Counsel for the intervener argued that it was extraordinary to permit one party to record proceedings, perhaps selectively, in contrast to a complete transcript produced by a certi­fied court reporter. Counsel stressed the intimidating effect of such a recording on witnesses and the potential that such recordings would destroy the labour relations climate between the parties. It was asserted there was no legal requirement to permit such a recording and traditional methods of note-taking had proved sufficient.

8. The respondent's representative generally adopted the intervener's submissions, emphasizing the intimidating effect of tape recording the testimony of the witnesses and the diffi­culty in establishing the veracity of a recording made by one party. It was argued that the Board had control of its practice and procedure and that there was no legal requirement to permit a recording.

9. With respect to the second motion, the complainant's representative argued that the Board lacked jurisdiction to proceed in the absence of a reporter transcribing the evidence in some acceptable fashion. It was noted that courts of record are required by statute to produce a tran­script and some tribunals also operate with official transcripts of proceedings even though those tri­bunals often deal with less "important" issues and are not required to do so by their enabling stat­utes. Some examples were given. The complainant's representative then asserted that the overwhelming majority of quasi-judicial tribunals maintain an official record of proceedings, not­withstanding the absence of a statutory obligation to do so, on the grounds of "justice". He acknowledged that the Board to date has not produced transcripts but submitted there was no legal impediment to so doing in the Statutory Powers Procedure Act and, further, section 7 of the Charter of Rights and Freedoms now required such transcripts as a matter of "fundamental jus­tice". In this regard, the Glenny case, supra, was distinguished as the cases referred to therein pre­dated the Charter. In the alternative, it was contended that the absence of a Board transcript vio­lated the common law principles of natural justice applicable to the Board, especially the right to be heard, to cross-examine, and to make a full defense or answer. The complainant's representa­tive submitted there were a number of advantages to the Board's recording of proceedings, includ­ing: increased speed of the hearing in that the tribunal need not take notes in longhand; facilitating litigation at judicial review through avoidance of affidavit evidence; fairness to parties who cannot afford to retain private court reporters; clarity, succinctness and integrity would be added to the quality of the evidence. With respect to the costs involved, he argued that the Board was a creature of government, that there were no strict financial constraints precluding the Board from retaining an official transcriber if the Board considered it appropriate to incur such expense and the govern­ment could readily provide the money through lottery proceeds, for example. In any event~ the costs must be weighed against the effective regulation of labour relations rights. He disputed any assertion that a record would stand in the way of an expeditious hearing and argued that, in lengthy hearings involving many witnesses, the Board would benefit from an official record. It was also suggested that a recording would impress on the witness the need to tell the "truth" as his or her words could be reread or played back. Finally, the complainant's representative submitted that, even if an official record was not required by the Charter or natural justice at common law, the Board should exercise its discretion to do so for the reasons already given.

10. Counsel for the intervener submitted, that pursuant to section 102(13) of the Act, the Board could determine its practice and procedure and, thus, had the authority to maintain a record of proceedings in the form of a transcript. Counsel submitted that reasons of expedition, cost and

informality led the Board not to establish that practice. It was argued that confrontational aspects of Board proceedings should be minimized in the interests of the parties' ongoing relationship, in contrast to civil litigation, for example. That is, formal transcripts were not in the interests of har­monious industrial relations. Counsel disputed the assertion that transcripts would involve insignif­icant costs and would not interfere with the expeditious hearing of the dispute. For example, coun­sel noted that there would be a delay involved in the production of transcripts before cross-examination. With respect to the Charter argument, counsel submitted that notice to the Attorney General of Ontario had not been given nor was there an application to the courts and, thus, that issue could not be argued before the Board. In any event, the section 7 guarantee of "life, liberty and security of the person" was unrelated to the maintenance of an official transcript by the Board.

11. The respondent's representative argued that the Board had the authority to determine whether an official transcript should be produced and could so decide in appropriate cases. There was no statutory requirement to keep such a record, however, nor had the case law so compelled a transcript on other grounds. Hence, the Board was urged to reject this preliminary motion of the complainant.

12. In reply, the complainant's representative argued that notice to the Attorney General was not required as he was not seeking to have section 102(13) of the Act declared null and void and that section did not preclude the producing of a transcript. The Board was competent to deter­mine the section 7 Charter argument, it was submitted. The complainant's representative reiter­ated his submissions that the costs involved were minimal, delay could be avoided through the pro­duction of transcripts on short notice and an official transcript was not logically related to increased confrontation or formality.

13. The Board regards it as appropriate to first consider the second preliminary motion to the effect that the Board is required to produce a transcript or should exercise its discretion to so do so and, thereafter, the motion that the complainant's representative be permitted to tape record the proceedings.

14. There is no requirement in the Labour Relations Act that a transcript of Board proceed­ings be maintained; that was not disputed by the complainant's representative. In this respect, the Board's enabling statute stands in contrast to the inclusion of such an obligation in the legislation governing the Ontario Human Rights Commission or the Discipline Committee of the Law Society of Upper Canada. The Statutory Powers Procedure Act (the SPPA) does contemplate the possibil­ity of a transcript. Section 20 of the SPPA reads, in part:

15. A tribunal shall compile a record of any proceedings in which a hearing has been held which shall include,

(e) the transcript, if any, of the oral evidence given at the hearing;

Thus, as was also not an issue, the SPPA does not oblige the Board to produce a transcript of its proceedings. The complainant's representative did not refer to any authorities in support of his assertion that a verbatim record of tribunal proceedings was required at common law or that fail­ure to do so constituted a denial of natural justice. Nor did he refer to or attempt to distinguish those cases which contradicted his position. In the Board's view, there is no requirement at common law that, as a matter of natural justice, a tribunal must prepare an official transcript of the proceedings: R v. Northumberland Compensation Appeal Tribunal; ex parte Shaw, [1952] 1 All E.R. 122; Re United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and Reynolds (1976), 1975 CanLII 962 (AB SCTD), 68 D.L.R. (3d) 81; Grain handlers Union No. 1 v. Grainworkers Union, Local 333, C. L. C. et al, 1977 CanLII 3109 (FCA), [1978] 1 F.C. 762; Blagdon v. Public Service Commission, 1975 CanLII 2300 (FCA), [1976] 1 F.C. 615 (C.A.); Town of Bridgewaterv. Ross (1970), 1970 CanLII 1747 (NS SC), 2 N.S.R. (2d) 766 (N. S.S. C.); International Association of Heat and Frost Insulators and Asbestos Workers, Local 110 v. Construction and General Workers' Union, Local 92 and Associated-Kellog Ltd. (1986), 1986 ABCA 142, 70 A.R. 228 (C.A.); B.S.O.I.W. v. Canron Inc. and Alberta Labour Relations Board (1983), 1983 ABCA 90, 43 A.R. 229 (Q.B.); Thompson v. Calgary Police Commission (1987), 90 A.R. 193 (Q.B.).

15. The Board need only briefly deal with the argument that section 7 of the Charter requires the Board to make a transcript of its proceedings. Section 7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

With respect to the right of the complainant's representative to raise this argument, the Board is prepared to assume for purposes of these proceedings, without deciding, that, as the constitutional validity or constitutional applicability of the Labour Relations Act is not in question, notice to the Attorney General of Ontario need not be given. The Board is prepared to consider the proposition asserted on this basis. Beyond the assertion that section 7 obliged the Board to make a verbatim record, the complainant's representative did not refer the Board to any authority which was directly on point or even remotely analogous. Nor did he provide a cogent analysis of the section in relation to the Labour Relations Act and the Board's authority and practices thereunder. The Board fails to see a logical connection between the "life, liberty and security of the person" and a purported resultant obligation on the Board to make a verbatim record. Since the Board is not per­suaded that section 7 of the Charter imposes any such obligation, the Charter argument cannot suc­ceed.

16. The Board next considers whether the Board, as an exercise of its discretion, should maintain a verbatim record of its proceedings. By virtue of section 102(13), the Board is entitled to determine its practice and procedure. Since its inception in 1944, the Board has conducted oral hearings but has not produced transcripts of its proceedings. Moreover, since the decisions of the Board are final and binding and are not subject to a right of appeal to the courts (sections 106(1) and 108 respectively), maintenance of a verbatim record by the Board has been unnecessary. The more limited scrutiny of the courts through judicial review applications does not require a record in the form of a transcript. It is interesting to note that the Canada Labour Relations Board aban­doned its practice of maintaining a verbatim record once the right of appeal from its decisions was replaced by the more narrow scope of judicial review. Of the difficulties occasioned by the prepa­ration of a verbatim record and the labour relations considerations favouring abandoning that practice once the scope of review by the courts was narrowed by statute, the Canada Labour Rela­tions Board had this to say in Canadian Merchant Service Guild and Canadian Pacific Limited, [1983] 3 Can LRBR 87:

On the question of recording proceedings at Board hearings the Board followed the practice of its predecessors. The primary purpose was to have available to the Federal Court of Appeal, should one party wish it, a transcript of Board proceedings to scrutinize to determine if a Board decision was reviewable under section 28(1)(b), an error of law not on the face of the record or 28(1)(c), an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the Board.

A price was paid for this practice. The Board's physical set up at a hearing discouraged non-le­gally trained persons from appearing. The presence of microphones and recordings intimidated employees and employer and union representatives. Fearful of being "caught in a slip-up" and wary of the "technicalities of the law" they chose to speak through legal counsel, who in turn aware of the record spoke "for the record". Objections and preliminary skirmishes far removed from the labour relations problem became the model of behaviour. All of this led the Board fur­ther from the original vision of the Board as a forum for labour relations principals - employees, employers and unions - not a court or forum for lawyers. It prolonged proceedings and allowed parties to delay - the tool that can unhinge a situation to advantage.

The Board was aware of these adverse effects from its own experience. It also began to receive complaints across the country. Some parties volunteered to forego recording hearings to avoid expense to the Board and make the proceedings less formal. Others, including their counsel, made representations to abolish recording to avoid delays in judicial review proceedings. The Rules of the Federal Court allow withholding grounds for review until the record is filed with the Court. Where a transcript is added by Court direction that prolongs the time when a party may not know the grounds for review of a decision in its favour. At the same time, the Board was aware that on judicial review proceedings, transcripts were being asked for by affluent par­ties and not by others. This was occurring in the case of counsel and parties in areas, such as Ontario or British Columbia, where on similar proceedings from provincial labour relations boards there was no concern that proceedings were not recorded.

In 1977 and 1978 the Board was actively discussing the merits of continuing recording and dis­cussing the practice with some provincial labour relations boards. On occasions when the Board acted on short notice, such as when there was an alleged illegal work stoppage or on occasions where recording was not available because of technical problems in the hotel or hall where a hearing was being held, or winter weather delayed arrival of equipment, the Board was impressed by the less technical and more problem solving attitude of the parties and their coun­sel. Neither affluent nor small union or employer nor counsel acting for them on these occasions argued the absence of recording adversely affected them. The Board was coming to the conclu­sion that the perceived benefits of recording were outweighed by its detrimental effects on Board proceedings and its emerging role as a broadly mandated labour relations problem solver. In 1978 the scope of judicial review of Board decisions was narrowed to section 28(1 )(a) of the Federal Court Act (see section 122(1)). Parliament was recognizing the adverse delays occa­sioned by judicial review and the shift of roles from courts to the Board in the administration of labour relations law.

Thus in the fall of 1979, [following the decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation (1979), 79 CLLC 26 14,029 (S.C.C.)] the Board could give ascendance to its objective of creating a better climate for labour relations problem solving at its hearing by discontinuing recording and avoiding the formality and regard for form over substance that accompanied recording. In so doing it knew it would please some communi­ties which had advocated this approach and probably find disfavour in others. But this is a labour relations board not a labour court and our wish is to fulfil the objectives of the Code by bringing practical solutions to labour relations problems not merely by one gatepost in a long avenue of litigation.

For the same reasons we have decided not to allow one party to have recording facilities at a hearing. To do so will reintroduce, on a selected basis, the atmosphere we seek to eliminate by discontinuing recording and act contrary to the purposes we seek to achieve. Although we see and our experience has shown us little advantage during the conduct of the hearing, a recording may be of some advantage afterward. Otherwise why would a party want it? That advantage could be in written propaganda surrounding a dispute, or to play edited versions of the proceed­ings on radio or television, or to prepare future witnesses where there has been an exclusion of witnesses or adjournment, or for other reasons within the imagination of parties. The Board will not allow its proceedings and mediative efforts to be open to this potential for compromise.

17. Concerns with expedition, avoidance of delay and informality are echoed as well in the Glenny case, supra, and Re Health Labour Relations Association (1984), 1984 CanLII 5173 (BC LA), 17 L.A.C. (3d) 443 (Peck) in rejecting the proposition that a verbatim record should be maintained by the tribunal or arbitra­tion board. [The latter case is referred to in more detail infra].

18. The complainant's representative argued that the hearings would proceed more expedi­tiously if a verbatim record was prepared as longhand notes need not be taken and the "clarity, succinctness and integrity of the evidence" would be enhanced through verbatim records provided by the Board. The Board disagrees and notes those propositions run counter to the experience of the Canada Labour Relations Board and the views expressed in Glenny, supra and Re Health Labour Relations Association, supra. Even if verbatim recording permitted testimony to be received at a somewhat quicker pace, longhand notes would continue to be taken by the parties to assist in the conduct of the case and by tribunals to record their observations, assessments and evi­dence with the view to deciding the issues in dispute. To give but one example, tribunals could not await the production of a transcript to make evidentiary and procedural rulings during a hearing without incurring extraordinary delay. Further, decisions on the merits would be delayed as well. It was suggested that transcripts could be produced on short notice. Even if that were true in a partic­ular case, the costs involved are not insignificant and to do so on a widespread basis would be extraordinarily expensive. Apart from any "expediting" of the production of transcripts, the costs of adopting a practice of a verbatim record would be quite considerable, given the Board's case­load. The complainant's representative dismissed this consideration on the basis that the govern­ment could readily allocate funds. It is not appropriate for the Board to respond to that proposi­tion directly. Apart from this issue, in the Board's view, the production of transcripts would represent an incredible drain on the Board's financial resources and, critically, without any real benefit to the process resulting therefrom. Indeed, the Board concurs with the concerns expressed in the cases referred to that the adoption of such a practice would interfere with the expeditious and efficient resolution of labour relations disputes.

19. Moreover, a uniform practice of verbatim recordings of Board proceedings would intro­duce an unnecessary and unhelpful degree of formality to the proceedings. Labour tribunals have not adopted the formality of the judicial system in a number of respects. That decision is grounded on the premise that labour tribunals are intended to fulfil a different mandate. The relative infor­mality of labour tribunal proceedings has increased accessibility and provided the flexibility needed to facilitate dispute resolution through voluntary settlements even in the context of adjudication.

20. The complainant's representative asserted that judicial review applications would be simplified if the Board prepared a transcript of its hearings and a transcript provided by the Board would be "fairer" to parties unable to afford court reporters. The Board does not conduct its hear­ings as a form of discovery for the parties or to encourage further proceedings. The Board, by stat­ute, is to determine the matters in dispute and its decisions are final and binding. Neither does the Board regard its current practice as "unfair" to one or other party. Court reporters are present on behalf of a party in extremely rare instances. More importantly, all parties have an opportunity to take notes during the proceedings on the same basis.

21. Thus, the Board is not persuaded that a verbatim record of its proceedings should be maintained as an exercise of the Board's discretion and declines to do so.

22. • More problematic is whether the Board must or should permit the complainant's repre­sentative to record the proceedings on tape. In the Board's opinion, to refuse that request would not be a denial of natural justice. In Eastern Provincial Airways Ltd. v. Canada Labour Relations Board et al (1983) 1983 CanLII 2951 (FCA), 2 D.L.R. (4th) 597, 6 Admin L.R. 139, the Federal Court of Appeal concluded that the refusal to permit one party to make a verbatim record of the Canada Board's proceedings was not, per se, a denial of natural justice: see also Re Canadian Merchant Service Guild and Cana­dian Pacific Limited, [1980] 3 Can LRBR 87. At least one arbitrator has also refused to permit one party, where the other objected, to make a verbatim record of the proceedings, rejecting the asser­tion that such a refusal was tantamount to a denial of natural justice: Re Stelco Inc. Hilton Works and United Steelworkers, Local 1005 (1988), 1988 CanLII 9154 (ON LA), 2 L.A.C. (4th) 219 (Haefling).

23. The Courts of Justice Act, 1984 permits a tape recording of proceedings subject to certain conditions:

146(2) Nothing in subsection (1),

(b) prohibits a solicitor, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.

[emphasis added]

24. In the Glenny case, supra, the Ontario Public Service Labour Relations Tribunal granted the request by one party to make use of a recording device. (The Board notes that the complainant's representative herein acted on behalf of the complainant in those proceedings.) The tribunal noted the use of such recording devices in court proceedings and that such a recording "stands on no different footing than a party's handwritten notes and doe not constitute an official record of the proceedings". The tribunal concluded as follows:

The use of such a device shall not be permitted to interfere with the conduct of the hearing and will not, therefore, hamper the Tribunal in fulfilling its mandate under the Crown Employees Collective Bargaining Act. The possibility that a recording made in these circumstances could be used for an improper purpose is a matter which can be dealt with by the Tribunal at the appro­priate time. This is not, however, a sufficient basis for denying the request to make such a recording.

25. The Board also notes the decision of a B.C. Arbitration Board in Re Health Labour Relations Association, supra, to refuse a request by one party to make an official stenographic record of the hearing but did permit a party to take notes through a stenographer or court reporter, for its own use, and subject to certain conditions. It is useful to set out the following pas­sage from that decision:

The solemn responsibilities of an official court reporter, alluded to earlier, are reflected in the oath which that person takes upon certifying a transcript to be a thorough and accurate account of a proceeding. Because a certified court reporter's transcript can constitute the official record of proceedings, accuracy and comprehensiveness are essential ingredients to such a transcrip­tion. In recognition of the reporter's statutory obligations to be accurate, court etiquette accords the reporter a prominent position in the court-room, near enough to witnesses, counsel and judge so that which the reporter hears and records can safely be certified as an accurate tran­script. Section 55 of the Supreme Court Act permits either party, at any time during a proceed­ing to request the reporter to read his notes aloud. Judicial etiquette similarly allows court reporters to request witnesses or counsel to speak louder or to repeat themselves so that tran­script accuracy will not be compromised. In short, when a court reporter is present it is impor­tant that participants in a proceeding acknowledge the reporter's goal of perfect veracity, and co-operate by conducting themselves with this in mind. This is altogether consistent with the for­mal atmosphere of court proceedings and is accepted as a matter of course by participants in the judicial forum.

III

However, these proceedings do not take place in the court setting. They are interest arbitration proceedings occasioned by agreement of the parties. Arbitration is intended to be an inexpen­sive, informal and speedy mechanism for the resolution of labour disputes, whether these be rights or interest disputes, and thus, apart from arbitrations referred by court order, all proce­dural rules of court need not be respected. In the absence of procedural terms of reference sub­mitted by the parties, or statutory procedural direction, the general rule is as stated by Ayles­worth JA. in Re Walker and N. Grimsby, [1958] OWN. 269 at p. 270 (Ont. CA.):

Arbitrators, traditionally, have been allowed considerably more leeway as to proce­dure and as to the conduct of the proceedings than has been the case in the ordinary civil suit in litigation. This by no means entitles an arbitrator to disregard ordinary and clearly enunciated judicial principles, nor does it permit him non-judicial or biased conduct.

In other words, in the absence of procedural directives, submitted or statutory, an arbitration board is empowered to establish its own procedure, so long as that procedure satisfies funda­mental legal requirements such as the duty to act in accordance with "natural justice". We understand our obligation to give the parties a fair hearing and to allow them adequate opportu­nity to present their case. We appreciate our duty to act honestly, without bias, and to conduct the proceedings in good faith and in the spirit of justice. But we also believe that arbitration proceedings must fulfil the important labour relations goal of speedy, informal dispute resolu­tion, geared to the real substance of the matters at hand, and the involvement of laymen, rather than to procedural technicalities.

In our view, the presence of a court reporter with the attendant responsibility of preparing an official record would introduce an unnecessary element of formality to the arbitration proceed­ings, an element with the potential to inhibit and intimidate witnesses, laymen, advocates and perhaps even board members. The interference and interruptions which would necessarily flow from the reporter's need to ensure veracity we deem to be inconsistent with the fundamental nature and thrust of contemporary labour arbitration as it is practised both here and elsewhere. Moreover, we note that even in Supreme Court trial proceedings, the presence of a court reporter is not an essential element of a fair hearing; in the absence of a reporter the judge's notes constitute the true record of the evidence adduced at trial (ss. 38 and 39, Supreme Court Act).

IV

We conclude by reiterating that we have no objection to either party having a person (be it a stenographer or court reporter) present to furnish for its own use notes of these proceedings, provided that the notes are taken in an unobtrusive manner. However, the notes recorded and transcribed by this person shall not constitute an official transcript or record of these proceed­ings. The chairman's notes shall constitute the official record of the proceedings, except where the parties agree to the contrary or the board rules to that effect.

With regard to the taking of notes, the following requirements will prevail:

(1) The note taker shall be physically situated in such a manner that she (he) does not intrude upon the line of vision of a witness.

(2) The note taker shall not be entitled to interrupt the proceedings for any purpose including that of clarifying questions or answers given in these proceedings.

26. The Board has, in the past, permitted a verbatim recording of its proceedings by a qual­ified verbatim recorder where the parties have agreed and on the basis that the parties bear the costs involved preparing the transcript, including copies for the parties and the Board. Such a tran­script has not constituted part of the official record of the proceeding. In the instant case, no quali­fied court reporter would be employed to make a verbatim record. Rather, the complainant's rep­resentative wishes to himself record the proceedings for his own use in lieu of handwritten notes but perhaps also to produce extracts in typed form or to play excerpts to witnesses or during sub­missions.

27. The Board need not reiterate the analysis grounding its conclusion that the Board should not exercise its discretion to make a verbatim record of the proceedings. The Board is not unmindful that some of those factors are relevant to the Board's decision whether or not to permit the complainant's representative to make a tape recording of the proceedings. However, it is a longstanding practice in Board hearings for the parties to take notes during the proceedings to assist in their conduct of the case. The Board is not persuaded that the unobtrusive recording of the proceedings on tape "for the sole purpose of supplementing or replacing handwritten notes",

to adopt the words of section 146(2)(b) of the Courts of Justice Act, 1984, should be treated differ­ently. The Board concurs with the reasoning in the Glenny case, supra, that the possibility that a tape recording of the Board's proceedings may be used for an improper purpose is not a sufficient basis for denying a request to record the proceedings (cf, for example, Canadian Merchant Service Guild, supra, at pp. 95-96 where the potential for abuse was one basis for refusing to permit one party to tape record proceedings).

28. The Board does not agree with the position of the complainant's representative that a determination of the possible use of a tape recording should be deferred until he wishes to play excerpts to a witness or during submissions and that the Board could conduct a voir dire with respect to the integrity and accuracy of the tape at that point. Such a process would constitute an unwarranted intrusion into the Board's conduct of the hearing and, further, the Board, in that the tape recording would have been made in its presence, would be a witness to the matter in dispute (i.e., the integrity and accuracy of the tape). This situation is readily distinguishable from instances where the Board has permitted the introduction of a tape recording (otherwise admissible) of events which are themselves in dispute, that is, where the tape recording is a piece of evi­dence of a particular type and form: see Royce-Dupont Poultry Packers, [1989] OLRB Rep. May 492 and the cases cited therein.

29. Critical to the Board's decision to permit a tape recording is the requirement that any such recording be unobtrusive. That is, the taping of the proceedings will not be permitted to inter­fere with the Board's conduct of the hearing pursuant to its authority over its practice and proce­dure in section 106(13). The hearing, including the giving of testimony by witnesses, will be con­ducted as if no tape recording was being made. The tape recording may not be played back to a witness or during submissions. The complainant's representative may state orally to a witness (or to the Board, in submissions) his version of testimony given earlier and, if that version is disputed by another party, it is the Board's view which will be determinative. Such a process is consistent with the Board's longstanding practice. The fact that the complainant's representative may have utilized a tape recording as an aide memoire rather than longhand notes is irrelevant with respect to the Board's proceedings. Any such recording does not constitute an official record of the pro­ceedings and stands no higher than a party's notes for all purposes.

30. For the foregoing reasons, the Board dismisses the preliminary motions of the com­plainant's representative other than to permit the complainant's representative (and any other party, if so desired) to make a tape recording of the proceedings on the basis stated above.