[1991] OLRB Rep. January 12
2442-89-M United Steelworkers of America, Local 7921, Applicant v. Camco Inc., Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
DECISION OF THE BOARD; January 9, 1991
1This is an application, under section 106(2) of the Labour Relations Act, for a determination by the Board of whether or not a number of individuals are "employees" within the meaning of the Act.
2In accordance with its usual practice in such applications, the Board authorized a Labour Relations Officer to inquire into and report to it with respect to the duties and responsibilities whose status is in issue between the parties. In the course of the inquiry by the Officer designated to do it, a question has arisen with respect to the admissibility of certain evidence which the respondent employer seeks to call and which the Officer has ruled inadmissible.
3By letter dated December 3, 1990, and pursuant to Board Practice Note No. 4, the respondent challenges the Officer's ruling and asks that the Board direct the Officer to permit it to call the evidence in question. By letter dated December 20, 1990, the applicant takes the position that the Officer "was and is in the best position to make ... a determination" with respect to the admissibility of the evidence in question and the Board should not interfere with his ruling.
4The respondent describes the evidence which the Officer has ruled inadmissible as including:
…..the collective agreements entered into between the parties, bargaining history between the parties material to the status of employees in question, evidence relating to grievances filed by the Applicant with respect to the positions concerned and the manner in which these grievances were resolved, and historical evidence relating to the creation and bargaining unit status of a number of positions in dispute.
The respondent indicates that it intends to use this evidence to establish the "historical dimension" of the duties and responsibilities of a number of the persons whose status is in issue in this application. In its response, the applicant writes that:
We have carefully reviewed the submissions of the respondent, and have noted the jurisprudence cited. We are aware that the Board has often stated that the "historical context" may be relevant in certain circumstances, and such evidence will be subject to a determination of the appropriate weight be it given in each case. However, we are also concerned with preserving expeditiousness of the instant process. We believe that the Board Officer examination procedure, and more specifically Section 10 of Practice Note #4, are aimed at ensuring the speedy resolution of "status" disputes. The attempt by a party to introduce irrelevant evidence may frustrate this aim.
5Paragraphs 6, 10, 11, and 14(b) and (c) of Board Practice Note No. 4 provide that:
All the evidence concerning the matters which he is authorized to inquire into must be placed before the Labour Relations Officer, and, subject to the exceptions noted below, no party will be afforded an opportunity to supplement its evidence at any subsequent hearing before the Board.
If a party wishes to present evidence on matters that the Labour Relations Officer considers to be beyond the scope of his authority to entertain, the Labour Relations Officer will not permit such evidence to be adduced but shall obtain from the party and record in his report a brief statement of the nature of the evidence proffered and shall note his ruling with respect to such evidence. The party is to be advised that it has the right to challenge the Labour Relations Officer's ruling by making representations in writing to the Board.
If none of the parties desire to call any witnesses, or if the parties have called all their witnesses and the Labour Relations Officer has not refused to entertain any of the evidence submitted, the Labour Relations Officer will state in his report that full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues before him was afforded to all parties. If the Labour Relations Officer has rejected certain testimony proffered by one of the parties, he will indicate that full opportunity to be heard was afforded the parties except with respect to the evidence rejected.
Objections to the accuracy of the Labour Relations Officer's report must be limited to
(b) Additional evidence which was tendered by the parties to the Labour Relations Officer but which was ruled inadmissible by the Labour Relations Officer at the time of the examination.
(c) New evidence which could not have been discovered by reasonable diligence at the time of the examination.
[emphasis added]
6The Board has previously indicated that it is reluctant to intervene in inquiries conducted by its Labour Relations Officer because of the delays that this would engender in circumstances where the concerns of the parties could be addressed by the Board, in accordance with Practice Note No. 4, after the inquiry was completed (see, for example, Maple Engineering & Construction Canada Ltd., [1990] OLRB Rep. Nov. 1142, Dunmark Electric (Ancaster) Limited, [1988] OLRB Rep. May 489, Strongland Construction Ltd., [1987] OLRB Rep. Oct. 1330 and Kaneff Properties Limited, [1980] OLRB Rep. Nov. 1653). In that respect, the Board may, in appropriate circumstances, permit a party to adduce evidence which has been ruled inadmissible by a Labour Relations Officer in a hearing before the Board after the Officer has completed his/her inquiry.
7While the Board is reluctant to intervene in an Officers inquiry, either by ruling on the correctness of the Officer's evidentiary rulings or otherwise, it will do so in appropriate circumstances. Indeed, paragraph 10 of Practice Note No. 4 contemplates this possibility.
8In this case, we are satisfied that the evidence which the Officer has ruled inadmissible is arguably relevant to the matters and issue in this application (though what weight might be given to such evidence is quite another matter and cannot be determined until all of the evidence is before the Board). Indeed, even the applicant appears to admit its relevance. The applicant's primary objection seems to be that allowing the respondent to adduce the evidence will slow down the proceeding. Of course, it takes time to adduce all evidence. That cannot be used as a basis for ruling relevant evidence inadmissible, except perhaps in circumstances where its relevance is so marginal and would consume so much hearing time that it would not be in the interests of justice to allow it to be adduced. In the circumstances herein, and having regard to the Board's comments in The Windsor Star, [1988] OLRB Rep. Apr. 427 and subsequent cases, it cannot, at this stage, be said that the evidence which the respondent seeks to adduce in the Officer's inquiry herein is of marginal relevance.
9Accordingly, we find it appropriate to direct the Officer to permit the respondent to adduce the evidence described in the second paragraph of its December 3, 1990 letter (see paragraph 4, above).