Ontario Labour Relations Board

[1995] OLRB Rep. April 395

0853-94-R International Union of Operating Engineers, Local 793, Applicant v. Desourdy Paving, Responding Party

BEFORE: Robert Herman, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.

DECISION OF THE BOARD; April 25, 1995

1. This is an application for certification arising in the construction industry, in which the parties are currently engaged in examinations before a Board Officer. Those examinations are dealing with challenges to the list and composition of the bargaining unit.

2. There is currently another outstanding certification application with respect to the same employer, but involving another union (Board File No. 0863-94-R). In that application, the Board Officer conducting the examinations had made a procedural ruling, over the objection of one of the parties. The parties then addressed submissions to the Board for its decision on the same issue.

3. In upholding the Officer's procedural ruling, the Board wrote, in part, as follows (in a decision dated January 23, 1995) [now reported at [1995] OLRB Rep. Jan. 12]:

Counsel for the responding party took a significant risk by declining to follow the direction of the Board Officer that he commence cross-examination forthwith. While it is certainly true, as reflected here, that parties have the ability to request that the Board itself review an officer's ruling, it is also true that parties who decline to follow a procedural direction of a Board Officer do so at their peril. As a general proposition, the Board will uphold the Officer's procedural directions, absent a compelling reason otherwise. To do otherwise would seriously undermine the ability of Officers to independently conduct examinations, and would too readily lead to interruptions in proceedings.

4. Here, a different procedural dispute has arisen. Counsel for the responding party sought to introduce certain documents and call certain witnesses, the applicant objected, and the Officer ruled that the respondent could do so. The Board has now received submissions from both parties with respect to this ruling by the Officer.

5. The applicant raises a number of objections to the admissibility of this evidence and to the Officer's ruling. However, while not incumbent upon the Officer to do so, the Officer was enti­tled to make a ruling with respect to admissibility, and the Board sees no compelling reason to interfere with the Officer's decision in this respect.

6. However, we do wish to make some additional comments. The Officer, quite correctly, concluded that the documents and evidence in question were arguably relevant. While their argua­ble relevance was acknowledged by the applicant, it sought to exclude the documents and the evi­dence on a number of grounds, including reliance upon the rule in Browne and Dunn (1893) 6. R. 67 (H.L.), and the fact that the evidence and documents had not been pleaded and disclosed at an earlier stage. It appears that the Officer was of the view that an Officer could not make decisions on issues or objections of this nature, but only on whether the evidence was arguably relevant. The Officer was apparently of the view that he was not able to make rulings with respect to technical objections, such as the application of the rule set out in Browne and Dunn.

7. This is not correct. Section 105(2) of the Labour Relations Act reads, in part, as follows:

105.-... (2) Without limiting the generality of subsection (1), the Board has power,

(a) to require any party to furnish particulars before or during a hearing;

(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 full investigation and con­sideration of matters within its jurisdiction in the same manner as a court of record in civil cases;

(b) to administer oaths and affirmations;

(c) to admit and act upon such oral or written evidence as it considers proper, whether admissible in court or not.

(d) to require persons or trade unions, whether or not they are parties to pro­ceedings before the Board, to post and to keep posted upon their premises in a conspicuous place or places, where they are most likely to come to the attention of all persons concerned, any notices that the Board considers necessary to bring to the attention of such persons in connection with any proceedings before the Board;

(e) to enter any premises where work is being or has been done by the employ­ees or in which the employer carries on business, whether or not the prem­ises are those of the employer, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respect­ing any matter and post therein any notice referred to in clause (d);

(f) to enter upon the premises of employers and conduct representation votes during working hours and give such directions in connection with the vote as it considers necessary;

(g) to authorize any person to do anything that the Board may do under clauses (a) to (f) and to report to the Board thereon;

8. The effect of section 105(2)(g), and the subsections that precede it, is to give a Board Officer the authority to conduct such examinations, to summon and enforce the attendance of wit­nesses, and to make rulings with respect to the admissibility and admission of such oral or written evidence as the Officer considers proper. Indeed, it is this power, and the nature of the examina­tions, which were factors relevant to the Board's decision in the other application, in which it con­cluded that it would not interfere with an Officer's decision in this respect, absent compelling rea­son. For the Board to sit as an appellate court of Officer rulings would be counterproductive to the process. This appears to be the role urged upon the Board by the parties.

9. We do not suggest that the rule in Browne and Dunn ought to play a meaningful part in Officer examinations. Dwelling on evidentiary rules and technical objections may well be counter­productive. While officers have the authority to make rulings on such issues, their focus ought to remain on obtaining the evidence that is arguably relevant in an economical and generally fair manner. Even if he was (incorrectly) of the view that he could not rule on a Browne and Dunn objection, the Officer still applied the appropriate general principles in a sensible fashion: to admit arguably relevant evidence without taking an unduly technical approach, while at the same time trying to ensure a fair and expeditious process. There is no compelling reason to interfere with his decision, and accordingly, we decline to do so.

10. This matter is referred back to the Officer for continuation of examinations.