[1994] OLRB Rep. February 129
3095-92-U Ontario Secondary School Teachers' Federation, Applicant v. Essex County Board of Education, Responding Party
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members W. H. Wightman and K. Davies.
DECISION OF THE BOARD; February 2, 1994
1This is an application pursuant to section 91 of the Labour Relations Act.
2The Board has conducted hearings in this matter on numerous days commencing April
27, 1993. Further hearing dates are scheduled in March, April and May of 1994. At the hearing held on November 19, 1993, during the course of cross-examination of Douglas Fox, counsel for the applicant requested that the Board direct the responding party to produce certain documentary evidence, namely, a "Pay Equity Report" (hereinafter "the Report") received by the respondent from its consultant in early 1990. It was agreed that Mr. Fox, who is the responding party's Director of Education, is in possession of such document for purposes of its production; indeed, during the course of his examination-in-chief, Mr. Fox had made reference to the Report on at least one occasion. However, counsel for the responding party declined to produce the document on the grounds that the material in it is not relevant to the present proceedings and because its production is prevented by the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (hereinafter "MFIPPA"). Counsel for the employer also objected to the production of the Report because, it was asserted, the applicant is seeking to obtain the document for an improper purpose unrelated to the present litigation. The responding party requested and was granted the opportunity to provide to the Board written submissions with respect to this matter. Similarly, the applicant was provided an opportunity to respond to any such submissions. It was agreed that, should the Board direct the production of the Report, the responding party would provide the applicant a copy of it no later than February 4, 1994.
3The Board is in receipt of the responding party's and the applicant's submissions on December 9, 1993 and January 12, 1994, respectively. Although the responding party indicated in correspondence dated January 21, 1994 that it would be "issuing a response as soon as possible", to date the Board is not in receipt of any such materials. The Board notes that a further right of response was neither requested by nor granted to the responding party employer at the hearing of November 19, 1993. In light of this, and bearing in mind the imminence of the agreed-upon deadline for the production of the Report, the Board's decision is made without reference to any further response by the employer.
4Section 105(2) of the Labour Relations Act grants the Board the power, inter alia,
(a.1) to require any party to produce documents or things that may be relevant to a matter before it and to do so before or during a hearing;
(a.2) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce the documents and things that the Board considers requisite to the the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases;
5Having regard to all of the circumstances surrounding the applicant's request, including the parties' submissions, the Board cannot agree with the submissions of counsel for the responding party employer that the Report is not of sufficient relevance to permit its production. In particular, the Board notes that Mr. Fox, who has to date been the responding party's only witness, made reference to findings in the Report during the course of his evidence-in-chief on September 29, 1993, and that the subject matter of the Report touches upon the supervisory duties performed by at least some of the persons whose "employee" status is at issue in these proceedings. Consequently, in accordance with Section 105(2) of the Labour Relations Act and the principles set out in the Board's decision in Shaw-Almex Industries Limited, [1984] OLRB Rep. Apr. 659, we are satisfied that the Report could be relevant to the determination of the issues before the Board in this case.
6Furthermore, the Board is not satisfied that the responding party's objections to production based on the provisions of MEIPPA are meritorious. Counsel for the employer relied on various provisions of that Act to support the proposition that the applicant had no right to the production of the Report and that this Board had no jurisdiction to direct his client to deliver the Report to the applicant. It is unnecessary for the Board to determine whether or not the provisions referred to by the responding party constitute "exemptions" to the general rule of access to information under MFIPPA. However, the Board notes that subsection (1) and (2) of Section 51 of MFIPPA provide as follows:
(1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation;
(2) This Act does not affect the power of a court or a tribunal to compel a witness to testify or compel the production of a document.
7We are satisfied that, in light of this provision, none of the other restrictions to access set out in the MFIPPA affect the exercise of the Board's powers to direct production of documents under section 105(2) of the Labour Relations Act. Although the Legislature appears to have taken considerable pains to ensure that certain categories of information, as set out in sections 6 to 15 of MFIPPA, are exempted from the usual requirements of disclosure under the Act, the legislation is abundantly clear that such restrictions do not interfere with the powers of tribunals such as the Labour Relations Board to compel production of documents in the course of litigation before it. Accordingly, the Board does not accept the responding party's arguments in this respect as well.
8In the result, the Board is satisfied that the Report sought by the applicant is potentially relevant to the issues raised in these proceedings, and that there is no statutory prohibition otherwise preventing its production. Accordingly, pursuant to its powers under Section 105(2) of the Labour Relations Act, the Board directs the responding party to provide the applicant with a copy of the Pay Equity Report it received early in 1990 from the consultant it retained in that regard by no later than February 4, 1994.