Ontario Allied Construction Trades Council v. Electrical Power Systems Construction Association, 1990 CanLII 5779

[1990] OLRB Rep. September 930

0461-90-G Ontario Allied Construction Trades Council; International Union of Operating Engineers; International Union of Operating Engineers, Local 793, Applicants v. Electrical Power Systems Construction Association, Ontario Hydro, Respondents

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: S. B. D. Wahl, J. Kennedy and B. Austin for the applicants; Harvey Beresford, V. P. Johnston, V. W. Medri and Bruce H. McPherson for the respondents.

DECISION OF THE BOARD; September 25, 1990

1. The applicant has referred a grievance in the construction industry concerning the inter­pretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act.

2. The grievance alleges that Beverly Austin has been dismissed without just cause. Austin had been employed as a crane operator by the respondent, Ontario Hydro, at its Darlington Gen­erating Station. His employment was terminated effective April 5, 1990 as a result of an incident which occurred on March 20th.

3. The respondent's grounds for terminating his employment are set out in a letter to the grievor dated April 5, 1990 from W. W. Gundry, the respondent's Mechanical Superintendent at Darlington. It states as follows:

RE: TERMINATION OF EMPLOYMENT

This will confirm the termination of your employment for cause effective April 5, 1990.

Your employment is being terminated due to your failure to follow proper and safe crane oper­ating procedures leading to the upset of a 100 ton Grove Mobile Crane.

You will not be considered eligible for rehire at Darlington G.S.

4. The burden of proof in this grievance rests with the respondent and, in the ordinary course, such proof would be confined to the grounds for discharge set out in the letter. That means that Ontario Hydro will have to prove the factual basis of the grounds for discharge as set out in the letter and, if proven, establish whether those grounds are just cause for discharge.

5. A short time before this application came on for hearing by the Board, both counsel caused a summons duces tecum to be issued, directed to representatives of the party opposite. Counsel for the applicant had its summons served on Mr. H. Zuzek, Manager of Construction for Ontario Hydro. Counsel for Ontario Hydro attempted service of a summons on Mr. Joseph Ken­nedy, Business Manager of the applicant, but was unsuccessful in doing so through no fault of Mr. Kennedy. Both counsel objected to the demands in the summons of the other party for the produc­tion of documents.

6. The summons served on Mr. Zuzek requires him to attend before the Board and bring with him "all documentation, records and materials relating to the [grievance], including but not limited to, ...":

(1) all foremen's, general foremen's, supervisors' and managers' reports with respect to the accident;

(2) all records, disciplinary or otherwise, and reports with respect to the maintenance and operation of all cranes including but not limited to cranes involved in upset incidents including but not limited to all mobile carrier cranes including hut not limited to the 100-ton Grove carrier cranes at the Darlington site and at all other Ontario Hydro installations throughout the Province of Ontario;

(3) the physical production of the "positive cab lock dog" which was replaced after the accident and production of the "replacement dog";

(4) Ontario Hydro Foreman's Handbook, Generating Stations Division;

(5) Ontario Hydro policy manuals or directives concerning the imposition of and duration of disciplinary penalties including but not limited to No Rehire policies.

7. The summons which respondent counsel attempted to serve on Mr. Kennedy sought to have him attend at the Board and bring with him:

(1) all documents, descriptions, materials and written information pertaining to any and all training programs and courses for crane operators or crane operation of any type or description taught, given, sponsored or contributed to by members of the Interna­tional Union of Operating Engineers, Local 793;

(2) all documents, records and materials relating to any such training or participation in any such training by Beverly Austin;

(3) all documents, records and materials pertaining to Beverly Austin generally and any showing his places of employment, the names and addresses of his employers, the nature of the work performed by Beverly Austin for such employers, the discipline records for him at each place of employment and any documents or records of any discipline received by Beverly Austin at any place of employment; and

(4) any documents or records of any incidents involving Beverly Austin in connection with the operation of cranes during the time he has been a member of the Interna­tional Union of Operating Engineers, Local 793.

8. Respondent counsel did not object to the production of all of the documents sought in the applicant's summons and agreed to produce a substantial part of the documents and material demanded in items 1, 3, 4 and 5. He focused his objection primarily on the documents in group 2. He contended that the demand to produce these documents was an attempt at the production of documents on discovery, a procedure not available in proceedings under the Labour Relations Act, both generally and pursuant to the arbitration of grievances under section 124 of the Act; that the material sought was not relevant to the issues of the grievance; and, that the demand amounted to a "fishing expedition" to see whether the applicant had a case at all. Counsel argued further that, since there is no discovery process in the Board's proceedings, he had to know at the outset whether the Board was going to find the documents sought to be relevant in order to know the case which he had to meet. For, were the Board to find them to be relevant, he would want to deal with the documents in his case-in-chief and not as part of the applicant's case-in-chief. Counsel submits that, if the Board does not decide the relevance of the documents sought at the commencement of the case, he would have to prepare to call a substantial volume of evidence which later may be found not to be relevant.

9. Counsel for the applicant argues that the grievor was discharged for his alleged failure to follow proper and safe operating procedures when the crane he had been operating upset on March 20th. He asserts that all of the documents sought in the summons are arguably relevant to safe craning procedures, to the incident itself and to the Ontario Hydro policies on which it relies for discharge and barring him from rehire at Darlington. Counsel argues further that the Board should not determine at the start of the case what is the proper scope of the summons because it would be deciding the relevance of the documents in a vacuum. Instead, counsel argues, the Board should assess in the course of the hearing, the relevance of any document not provided in accor­dance with the summons, if when an issue arises over its relevance and production. As long as the documents sought are arguably relevant to the issues before the Board, counsel contends that they are returnable on summons. Therefore, having regard to the scope of the grievance, the reasons for discharge and the applicant's defence of the grievance (mechanical failure and the grievor oper­ating the crane under the instructions of Ontario Hydro's equipment foreman), he submits that the documents demanded by the summons are arguably relevant to those issues and they should be produced prior to the hearing into the grievance on its merits.

10. Respondent counsel relied on the following authorities in support of his argument that the Board should determine the relevance of those documents, the production of which he opposed: The Becker Milk Company Limited, [1974] OLRB Rep. Oct. 732; Dominion Citrus and Drug Ltd., [1982] OLRB Rep. Oct. 1479; Re Canada Post Corp. and Canadian Union of Postal Workers (Best) (1986), 1986 CanLII 6670 (CA LA), 24 L.A.C. (3d) 157 (Weatherill); and, Re Bell Canada and Communica­tions Workers of Canada (1980), 1980 CanLII 4017 (CA LA), 25 L.A.C. (2d) 200 (P. C. Picher). Applicant counsel referred the Board to Shaw-Almex Industries Limited, [1984] OLRB Rep. Apr. 659 and Mollenhauer Limited, [1987] OLRB Rep. Sept. 1156.

11. When the Board sits as an arbitrator under section 124 of the Act, it has the same pow­ers as an arbitrator appointed pursuant to section 44. Thus it has the power granted by subsection 44(8)(a)

to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases.

12. In Mollenhauer Limited, supra, the Board commented as follows about the exercise of its power to compel the production of documents:

4... .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. 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).

The Board herein agrees and adopts the view expressed in Mollenhauer, supra, that "..., 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...".

13. The Board will turn first to the documents sought from Ontario Hydro. Counsel for Ontario Hydro has agreed to produce certain of the documents demanded. With respect to the first group, counsel has agreed to produce all of the reports of Ontario Hydro management with respect to the upset of the crane being operated by the grievor Austin on March 20, 1990. This would appear to satisfy all of the documents in the first group. With respect to the second group, counsel advised the Board that there are four sets of records kept with respect to the operation of cranes owned by Ontario Hydro. These include a daily log book, a monthly log book, a repair log book and a file of correspondence pertaining to each unit, referred to as the "unit file". Counsel agreed to produce the three log books for the crane in question, but reserved on producing the unit file until he had satisfied himself as to the relevance of the correspondence in that file. With respect to the third group, counsel agreed that Ontario Hydro would produce the damaged swing lock dog. The parties agreed that it would not be necessary for Ontario Hydro to produce the actual replace­ment dog and that the production of an identical one would satisfy the summons. Applicant coun­sel claims that the foreman's handbook referred to in the fourth group of documents contains sec­tions dealing with discipline procedures, crane operating procedures and crane maintenance. Respondent counsel has agreed to produce those sections of the handbook if in fact they do exist and if he agrees that they are relevant. Finally, with respect to the group 5 documents, respondent counsel has agreed to produce any manuals or directives which deal with the imposition and dura­tion of disciplinary penalties including, but not limited, to Ontario Hydro's "no re-hire" policies.

14. Having regard to respondent counsel's undertaking to produce certain documents described above and to the issues involved in the merits of the grievance, the Board directs that Mr. H. Zuzek attend the hearing scheduled for October 2,1990 and bring with him the following documents and materials:

(1) all foremen's, general foremen's, supervisors' and managers' reports with respect to the crane being operated by Beverly Austin at the Darlington Generation Station on March 20, 1990;

(2) all daily and monthly log books and repair log books from January 1, 1987 to date with respect to the crane operated by Beverly Austin at the Darlington Generation Station on March 20, 1990; and, in addition, all correspondence respecting that crane from January 1,1987 to date which deals with the operation or maintenance of the unit and any discipline related to its operation or maintenance;

(3) the damaged swing lock dog which was removed from the crane in question and a duplicate of the part which was used to replace it;

(4) one Ontario Hydro Foreman's Handbook, Generating Stations Division, together with copies of any sections thereof dealing with the procedures for discipline, crane operation and crane maintenance; and,

(5) a copy of any Ontario Hydro policy manual or directive dealing with the imposition of disciplinary penalties and their duration, including but not limited to any "no re-hire" policy.

The Board will not require at this time production of the balance of the documents sought by the applicant, particularly those relating to cranes other than the one which the grievor Austin was operating on March 20th. The volume of documents in question is potentially very large and the Board is not satisfied that they are sufficiently relevant to the issues before it in order to warrant their production at this time. In the Board's view, it would be "unreasonable and oppressive" to borrow the Board's turn of phrase in comparable circumstances in Master Insulation Company Ltd.,[1979] OLRB Rep. Mar. 236, para. 10, to require Ontario Hydro to produce at the outset the documents sought by the applicant respecting all cranes at Ontario Hydro's installations in the Province of Ontario. Having regard to the fact that Ontario Hydro will have to proceed first with its proof of "just cause" for the discharge, the Board is of the further view that its direction bal­ances suitably the need for some discovery to take place and for limiting the scope of the inquiry to that which is relevant to the issues to be decided. See Becker Milk Company Limited, supra. That is not to say that the applicant is prevented from pursuing its demands for any of those documents at some later point in the proceedings if, during examination or cross-examination of a witness, it is established to the Board's satisfaction that a document is relevant to and probative of the issues to be decided. In those circumstances, the Board would direct the production of the documents.

15. The Board, at this time, will not direct the production of any of the documents described in the summons duces tecum which Ontario Hydro attempted to serve on Joseph Ken­nedy. The Board is not satisfied at this preliminary stage of the proceedings that they are relevant either to the issues raised by Ontario Hydro's ground for discharge of Beverly Austin or to the applicant's intended defence that, at the time of the crane upset, he had been following proper craning procedures, had acted under the instructions of Ontario Hydro's equipment foreman and that mechanical failure of the equipment was involved. As with the applicant's summons, the Board's ruling is not to be taken as preventing Ontario Hydro from pursuing its demands for any of those documents later in the proceedings, if during the examination or cross-examination of a wit­ness it is established to the Board's satisfaction that the document is relevant to and probative of the issues to be decided. In those circumstances, the Board will direct the production of the docu­ment.