Ontario Labour Relations Board
[1998] OLRB REP. JANUARY/FEBRUARY 98
2801-97-U United Steelworkers of America, Local 1005 ("union"), Applicant v. Stelco Inc. (Hilton Works) ("company"), Responding Party
BEFORE: G. T Surdykowski, Vice-Chair.
APPEARANCES: P. Turtle, Doug Olthuis and Warren Smith for the applicant; Stephen J. Shamie, Elizabeth M. Brown, Amanda Hunter, Robert Jones and Rodger Fulton for the responding party; Glenn Frelick and Deric Jacklin for the Pension Commission of Ontario.
DECISION OF THE BOARD; January 29, 1998
By decision dated January 22, 1998 the Board dismissed the company's motion for a prepleading production order. The Board's reasons for that decision follow herein. This decision also deals with the Board summons issue which was not addressed in the January 22, 1998 decision.
This is a complaint under section 96 of the Labour Relations Act, 1995. The union alleges that the company conducted itself in a manner contrary to section 17 of the Act in the collective bargaining which led to the collective agreement currently in effect between them.
Although only filed on October 28, 1997, this complaint already has a "history". However, the manner in which the parties decided to proceed meant that that history, while interesting, is not germane to the issues before me at the hearing on January 12, 1998.
The company moved for a production order requiring the Pension Commission of Ontario to produce documents which the company asserted are relevant and which it said it requires in order to prepare a proper response to the complaint. The motion was opposed by the Commission and by the union. Also in issue were two Board summonses which the company had served on the Commission's Director of Research and Policy, Mr. Nurez Jiwani.
The company identified the documents in issue as follows:
All records showing access to the Stelco Inc. Bargaining Unit Pension Plan for Members of the United Steelworkers of America, Registration Number 0354878 by name, organization, if applicable, date and time between June 14, 1996 and July 27, 1997 [the "access records].
All records and documents in the possession of the Pension Commission of Ontario that are submissions from unions or other labour organizations (including any documents indicating the position of such unions or organizations) and responses to those submissions or notes relating to the submissions that were heard or received relating to section 5.1 of Regulation 909 to the Pension Benefits Act as amended by Regulation 712/92 prior to November 26, 1992, the date the Regulation came into effect [the "submissions documents"].
The motion raised a novel issue. The question was whether the Board can or should make a pre-pleading production order against the Commission, which is neither a party nor has any interest in the proceeding. Counsel were unable to find any quasi-judicial or judicial decision which is directly on point, and I am unaware of any.
The company argued that this complaint concerns the manner in which the collective bargaining in question was conducted, and that the conduct and knowledge of the negotiators for both parties is therefore in issue. The complaint concerns that collective bargaining between them for the collective agreement currently in effect between the parties, and the company's subsequent election, under section 5.1 of Regulation 909 under the Pension Benefits Act, not to make solvency deficiency payments with respect to the defined benefit pension plan in the collective agreement. Although this election was made on June 14, 1996, the union asserts in its complaint that it first became aware of it on June 25. 1997.
The company argued that it is required and entitled to file a complete response to the complaint, and that it requires the documents it sought to have produced for that purpose.
The company submitted that it required the access records kept by the Commission in order to ascertain whether there is a basis for arguing that the complaint should be dismissed on the basis of delay.
The company submitted that it requires the submissions documents in order to prove the nature and extent of the knowledge of the union's negotiators of the existence and operation of section 5.1 of Regulation 909 of the Pension Benefits Act, and that the position which the union took with respect to that provision before it became law is relevant to the matters in issue. The company asserted that it would be prejudiced if it is refused access to these documents before it files its response. In that respect, the company submitted that it is entitled to know the facts before it has to plead its response as a matter of natural justice, and that the production it seeks would expedite the proceeding.
To date, the Commission has denied the company's request for the documents, and has refused to respond to the summonses which have been served in that respect. The company has also requested the documents in question under the Freedom of Information and Protection Privacy Act. As of January 12, 1998, it had not received a response to that request.
Counsel for the Commission submitted that the Board's consideration of the company's motion should take into account whether the documents in question are relevant, whether they are protected from disclosure, and the effect of the order sought on the Commission's ability to fulfill its regulatory functions. Counsel referred to the provisions of the Pension Benefits Act, and pointed out that this legislation is intended to benefit employees, and that in administering that legislation the Commission must treat both plan beneficiaries and employers in a fair and even-handed manner. Counsel submitted that the access records sought by the company contain personal information which is provided on a confidential basis, and which is normally not made available under the Freedom of Information and Protection Privacy Act. Counsel expressed the Commission's concern that there could be a chilling effect on the willingness of plan beneficiaries to bring pension concerns to the Commission's attention if it was required to produce the documents requested, and that requiring the Commission to produce the documents would undermine the Commission's functions and ability to administer the Pension Benefits Act. Counsel argued that it would also be contrary to the public interest to require production of the access records.
With respect to the submissions documents, counsel for the Commission expressed a concern with the scope of the company's request, which he submitted would include privileged documents. Counsel argued that to the extent that the submissions documents requested are not privileged, it would be contrary to the public interest to require that they be produced.
Finally, counsel submitted that the November 19, 1997 summons issued to Mr. Jiwani is void on its face, and that the January 2, 1998 summons is both premature and not properly issued in the exercise of the Board's power under section 11 l(2)(c) of the Labour Relations Act. 1995, because the company has not established the relevance of the documents it seeks.
The union did not take issue with the Board's jurisdiction to order production of the documents sought under section 98 of the Labour Relations Act, 1995, or under the Statutory Powers Procedure Act. However, counsel referred the Board to the decision in Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659 and to Rule 30.10 of the Ontario Civil Rules of Procedure, and submitted that the Board should decline to make the orders sought on the basis that the company is "fishing" to see if it has a case, and because it is an abuse of process in that it would require a great number of insufficiently relevant documents to be produced. Counsel also agreed with the submissions of counsel for the Commission in that respect.
Further, counsel for the union submitted that the company has failed to demonstrate the relevance of either the access records or the submissions documents. In that respect, she referred to Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411 and argued that the knowledge or conduct of the union's negotiators is not in issue in this complaint, and that the company does not require the documents in issue in order to plead its case. Counsel submitted that the questions raised are evidentiary matters which were properly dealt with during the hearing of the complaint on the merits.
The company has estimated the potential value of this complaint to be approximately $350 million. The union did not suggest otherwise. The complaint is also important to the parties because of its labour relations ramifications.
The applicant union has pleaded its complaint. The responding company has not filed a response. It seeks production of documents which it only suspects may exist, at least some of which originated with the applicant or an affiliated entity if they exist at all, not from the applicant, but from an uninterested third party, which happens to be a regulatory agency of the government established to, among other things, administer the legislation which governs the pension plan with which this complaint is concerned.
In what is admittedly a novel motion, it is useful to start with first principles, and to ask:
(a) is there a reason why this motion is novel?
(b) how should it be disposed of?
There are few absolutes in law, but they do exist. Everyone involved in a judicial or quasi-judicial proceeding is entitled to be treated fairly and in accordance with the principles of natural justice. But what constitutes fairness, or what satisfies or is required by natural justice depends on the circumstances.
As a matter of both fairness and natural justice, a party against which allegations of wrongdoing are made must be given sufficient notice of the allegations to enable it to discern the case which is alleged against it and prepare its answer in that respect. The Board has long recognized this, and both in its Rules and otherwise has required everyone who alleges that the Act has been breached to identify the breaches alleged, the party alleged to have committed them, the relief requested, and to plead the material facts upon which it relies in that respect with particularity (see sections 12, 16 and 20 of the Board's current Rules of Procedure). -
A more recent development (relatively speaking), is the requirement that a party which is identified in an application or complaint to the Board file an equally particularized response if it wishes to oppose the application or complaint or otherwise participate in the proceeding (sections 13, 14, 16 and 20 of the Board's Rules).
Further, every party must produce copies of the documents upon which it intends to rely to the Board and to the other parties, prior to the hearing (sections IS and 20 of the Rules).
In this case, there was no suggestion that the union's complaint lacks particularity or that the company has any difficulty in discerning the case which must be answered. Further, the company appears to have a reasonably well developed theory of its own case. What the company seeks, in effect, is some discovery of some aspects of its theory, apparently so that it can assess the probable strength of certain aspects of the defence it is contemplating, before it pleads its case. Moreover, it seeks this discovery from a non-party.
It has been suggested that as a matter of natural justice a party is entitled to the production of relevant documents, if necessary by order of the tribunal (Canadian Fishing Co. v. Smith (1962) 1962 CanLII 430 (BC CA), 35 D.L.R. (2d) 355 (BCCA); Furniture Workers' Union v. Alberta (Board of Industrial Relations) (1969) 60 L.R. (3d) 83 (Alberta Supreme Court); Carter v. Phillips (1987) 1987 CanLII 4133 (ON HCJ), 59 O.R. (2d) 289 (Divisional Court); United Brotherhood of Carpenters and Joiners of America, Local 1238 v. Maclean Construction Limited Employees (1984) 1984 CanLII 4963 (PE SCTD), 153 A.P.R. 217 (P.E.I. Supreme Court)). However, that is no more than a statement of a branch of the trite proposition that, subject to any applicable privilege or other exclusionary rule, a party is entitled to have relevant evidence produced during either a pre-hearing discovery process (like the pre-trial discovery processes the courts employ) or the hearing itself. It does not mean that a party is entitled to pre-pleading production.
Neither fairness or natural justice entitle the company to the discovery it seeks in this case. It is important to remember that there is a difference between pleadings and proof. Pleadings are not an end in themselves. The purpose of pleadings is to define the dispute and the issues which will have to be determined, and to give each party notice of the case it must meet in that respect. Pleading a case and proving it are two very different things. Questions of relevance can only be determined by reference to the pleadings, and questions of what can or must be proved can only be determined having regard to the structure provided to the proceeding by the pleadings.
It is true that even with pleadings, it is sometimes difficult to determine whether a fact or document is relevant until all the evidence is in and the parties have made their submissions. In such a situation, the Board will admit otherwise admissible information or documents on the basis that it is arguably relevant to the matters in issue. The Board developed this approach in an attempt to speed up its proceedings at a time when the pleading requirements in Board proceedings were not as stringent as they are now. Nevertheless, there remain occasions when this approach will be appropriate. But even arguable relevance can only be determined having regard to the pleadings. For information or a document to be even arguably relevant, there must be some theory on which it relates to the issues, which issues are defined by the pleadings. Consequently, it cannot be said that something will be arguably relevant and admissible at a hearing before the pleadings which give structure to the proceeding are in. Before that, the question of relevance is premature.
The fact is that at this point neither delay, nor the conduct or knowledge of the union's negotiators, assuming that that can be an issue in a complaint such as this one, has been placed in issue. The documents which the company seeks to have produced are not necessary to enable it to plead its case or any aspect of it, although they or some of them may be relevant or necessary to prove the case which it appears the company intends to plead. This is the time for pleading, not for proof.
Of course, it is appropriate that a party not advance an allegation or position which is frivolous, vexatious, abusive, or completely without foundation. It is appropriate that a party make whatever investigations it can of the case against it and of its answer. But it is not entitled to use the Board's processes to force either another party or a stranger to the proceeding to assist it in discovering whether it has a tenable position or defence particularly when it is unable to say whether information or documents it seeks even exist. The Board's production and subpoena powers are not there to assist parties in fishing expeditions.
In this case, the company is suspicious of the time between the date it made its section 5.1 election and the date this complaint was filed, and of the union's assertion that it did not become aware of the election until almost a year after it was made. Without more, mere suspicion is not enough to engage the Board's processes at this stage of the proceeding or perhaps ever.
The same is true even in proceedings under section 1(4) (related employer) and 69 (sale of a business) of the Act, an example of which is the Highland York Flooring Company Limited, [1993] OLRB Rep. July 607, decision cited by the company. As the reverse evidentiary onus provisions of subsections 1(5) and 69(13) suggest, the nature of those proceedings is somewhat different from that of unfair labour practice proceedings (including those to which the reverse burden of proof provisions of subsection 96(5) of the Act apply). Nevertheless, even in those proceedings, where the Board has ordered pre-hearing production, it has done so after pleadings have been closed (which includes circumstances in which a party has failed to file a pleading but the time for doing so has expired).
As far as I am aware, neither this Board nor any other judicial or quasi-judicial tribunal has ever ordered that pre-hearing production be made to a party which has not filed its own pleadings in the proceeding. Although the Board's jurisdiction to make such an order under the Labour Relations Act, 1995 or the Statutory Powers Procedure Act, was not challenged in this case, it is not at all clear that the Board has such a jurisdiction. The Supreme Court of Canada's decision in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Association (1993) 93 CLLC ¶14,062; (1993), 1993 CanLII 31 (SCC), 108 D.L.R. (4th) 1, suggests that a general provision like section 98 of the Labour Relations Act, 1995 or sections 5.4 and 16.1 of the Statutory Powers Procedure Act do not confer such a jurisdiction, particularly when it comes to non-parties. In any event, it is inappropriate for the Board to make a pre-pleading production order except where the applicable legislation specifically contemplates such an extraordinary order.
In the result in this case, I am not satisfied that either of the production orders requested is necessary or appropriate. The company's motion is therefore dismissed.
Turning to the two Board's summonses which have been served to Mr. Jiwani, the first one (dated November 19, 1997) contains no date, time or place at which it is returnable. Accordingly, it is defective on its face. It is therefore vacated.
The second summons, dated January 2, 1998, was returnable at the January 12, 1998 hearing and raises different issues.
It has been observed that issuing a summons is a judicial or quasi-judicial act which requires the tribunal under whose authority it is issued to exercise its discretion in that respect (except where the legislation provides otherwise). Accordingly, a summons should not be issued unless the tribunal is first satisfied that the purpose of the summons is to secure information which is useful, necessary and admissible in the proceedings to which the summons relates (see, Robert W. MaCaulay, Q.C. and James L.H. Sprague, Practice and Procedure Before Administrative Tribunals (1997, Carswell, Scarborough) at Volume 2, pages 12-80 to 12-88). The practice of automatically providing blank pre-signed summonses has been criticized on that basis.
As a theoretical matter that is quite correct. Indeed, some tribunals do perform at least some screening of requests for summonses (the Workplace Safety and Insurance Appeals Tribunal, formerly the Workers' Compensation Appeals Tribunal, for example). Others do not. Interestingly, the Becker Milk Company Limited, [1974] OLRB Rep. Oct. 732 decision cited at length by MaCaulay and Sprague in that respect is a decision of this Board, which has long had a practice of issuing pre-signed blank summonses, both to parties in a particular proceeding, and in bulk to counsel who regularly appear before the Board. It would be an inappropriate use of the Board's scarce resources to conduct an inquiry every time a party wants to subpoena someone as a witness or to engage the Board's powers in order to secure the production of documents. Further, the Board's practice reflects what I understand continues to be the practice of the Ontario Court (General Division).
This does not mean that every Board summons is valid or will be enforced, even if it is properly served. A challenge to a summons is properly made to the Board at the time appropriate in the circumstances. This will inevitably be after the summons has been served. But as a matter of process delays can be minimized while the right to make objections to the summons is preserved.
The purpose of a Board summons is to obtain the attendance of a witness who can give relevant material and admissible evidence, or to obtain the production of documents which are relevant, material and admissible at the hearing at which the issues to which the evidence relates are being dealt with. At the pleading stage, such a summons is premature. Nor is such a summons the appropriate means by which pre-hearing production may be obtained. Accordingly, I am satisfied that the second summons in this case should be vacated as well, and I so order.
Although this disposes of the issues raised at the hearing on January 12, 1998, the result is somewhat unsatisfactory because if the company pleads its case as everyone appears to anticipate it will, many of the issues of relevance, necessity, privilege and public interest which were addressed in argument are likely to have to be revisited. However, in my experience, it is generally less than useful to anticipate what might happen, and I am not seized with this matter. Accordingly, I decline to comment further on the issues of relevance, privilege, confidentiality or public interest, except to say that the production sought by the company appears to be overly broad even as an evidentiary matter.