[1998] OLRB REP. MARCH/APRIL 167
2076-96-U Ontario Public Service Employees Union (OPSEU), Applicant v. The Crown in Right of Ontario as represented by Management Board of Cabinet, Responding Party v. Manpower Services (Ontario) Ltd., The Employment and Staffing Services Association of Canada (Essac), AIDA Canada Ltd., Armor Personnel Inc., Bradson Staffing Services, Drake International Inc., Ecco Staffing Services, Ian Martin Limited, Keith Bagg Staffing Resources Inc., Kelly Services (Canada), Ltd., Nursing & Homemakers Inc., Olsten Services Limited, Herzing Services Inc., Quantum Management Services Limited, T.E.S. Contract Services Inc., Tosi Placement Services Ltd., Y&R Personnel Services Inc., Interim Healthcare, Intervenors
BEFORE: G. T Surdykowski, Vice-Chair.
APPEARANCES: Gavin Leeb for the applicant; Dennis W Brown, Q.C. and Liane Brossard for the responding party; no one appearing for the intervenors on the motion.
DECISION OF THE BOARD; March 11, 1998
The responding employer, the Crown, objects to producing the documents identified in a Board summons served by the applicant trade union, OPSEU, in this proceeding.
This is a complaint under section 96 of the Labour Relations Act, 1995 in which OPSEU alleges that the Crown has violated section 17 of the Act.
Once an appropriate notice to bargain is given, section 17 obliges the collective bargaining partners to bargain in good faith and make every reasonable effort to make a collective agreement. OPSEU alleges that the Crown has violated section 17 in the negotiations which led to the collective agreement currently in effect between them. The following facts, taken (but not quoted exactly) from OPSEU's pleadings, are not in dispute:
The applicant and respondent are parties to a collective agreement that was reached March 29, 1996, following a 5 week strike.
Collective bargaining commenced in April, 1995.
The recognition clause of the collective agreement specifically provides for the inclusion of "GO Temps" in the bargaining unit.
GO Temp employees work on temporary assignment in the Province's ministries, agencies, boards and commissions. 'GO Temp' is the Government of Ontario temporary help service administered through the Management Board Secretariat.
Articles 3.38, 3.X and Appendix 16 of the collective agreement specifically apply to GO Temp employees.
This is the first collective agreement between the applicant and respondent to include GO Temps in the bargaining unit.
On 31 January, 1996, Ms. Michele Noble, Deputy Minister, Management Board Secretariat, informed Ministry employees regarding the existence of a Business Plan for the Ministry.
On April 11, 1996, Mr. David Johnson, Chairman, Management Board
of Cabinet, released an Interim Report on Business Planning and Cost
Savings Measures indicating that GO Temp services will be restructured.
On August 23, 1996, the Management Board secretariat issued a Request for Proposals to privatize the provision of temporary help services for the Province's ministries, agencies, boards and commissions.
Approximately 2,100 people were regularly employed as GO Temp employees on an ongoing basis.
Approximately 1,300 GO Temp employees were employed throughout the Government of Ontario each week.
At least eight (8) full-time OPSEU members worked for GO Temp Services on a permanent basis, providing GO Temp employees to ministries across the government.
In addition, OPSEU alleges that:
(a) The Union devoted considerable effort, resources and time towards representing GO Temp employees' interest in bargaining with the respondent. The parties exchanged proposals regarding GO Temps during bargaining.
(b) On April 12, 1996, employees of GO Temp services were advised by the Director of General Business Services, Ms Ianis Clarke, that they would be losing their jobs as a result of Mr. Johnson's announcement regarding restructuring the day before.
(c) In accordance with Appendix 16 of the collective agreement, OPSEU appointed members to a sub-committee to fulfil its obligation pursuant to Appendix 16.
(d) The Respondent failed to advise the Applicant during bargaining that it was about to restructure and eliminate GO Temp Services.
In short, OPSEU alleges that the Crown violated section 17 by failing to disclose its decision to privatize the "GO Temp" service during bargaining.
The Crown denies OPSEU's allegations, and that it has breached the Act in any way.
Although the proceeding has been delayed several times (as a result of circumstances which it is unnecessary to recount), the hearing is well underway. Indeed, OPSEU has closed its case-in-chief, and is set to begin its cross-examination of the Crown's first witness, Peter Wallace (Director of Expenditure Management and Reporting for the Management Board Secretariat).
An issue has arisen concerning the production of documents which OPSEU requests the Crown be required to produce for the purpose of cross-examination. Although the specific device employed by OPSEU to obtain production which has given rise to this issue is a Board summons, what OPSEU seeks is a Board order (which of course the Board summons is) requiring the Crown to produce documents identified by OPSEU as follows:
All submissions prepared for and/or provided to the Management Board of Cabinet, including drafts and all supporting documents, in relation to the privatization and/or consideration of 'alternate service delivery' for GO-Temp Services, including but not limited to the Ministry's Business Plan as it relates to GO-Temp Services.
The document(s) referred to as the "Business Plan, Estimates and the Budget" in J. Clarke's e-mail to Linda Barber dated July 17, 1996. See attached. [copy of e-mail attached to this decision as Appendix "A"]
All documents, reports, memoranda or any other material that was either prepared for or reviewed in the preparation of the Interim Report on Business Planning and Cost Saving measures delivered April II, 1996 by the Chair, Management Board of Cabinet, in relation to GO-Temp Services.
(taken verbatim from Schedule "A" to the summons served by OPSEU)
The Crown objects to the production order requested on the basis that the request is untimely, and also claims Crown privilege or immunity with respect to the documents themselves.
The Board heard the representations of the parties with respect to the issue at a hearing held on February 5, 1998.
Subsequently, by letter dated February 11, 1998, OPSEU seeks to make further representations regarding the Crown's assertion that OPSEU's production request is untimely. By letter dated February 17, 1998, the Crown objects to OPSEU's written representations, on the basis that is an improper attempt to re-open or re-argue one of the issues which were before the Board on February 5, 1998. There was a further subsequent exchange of correspondence as well.
I am satisfied that the Crown's objection to OPSEU's post-hearing written representations must be sustained.
As counsel for the Crown points out, when the hearing on February 5, 1998 commenced he indicated that he had not advised OPSEU that the Crown was taking the position that the union's production request was untimely until that morning, and that if OPSEU's representative felt he needed time to prepare to deal with that part of the Crown's position he had no objection to that opportunity being afforded him. Although Mr. Leeb grumbled about the timeliness of the Crown's timeliness objection, he gave no indication that he required or wished to have an opportunity to prepare submissions in that respect. Instead, he dealt with that issue in his submissions. I note that while his post-hearing written submissions are somewhat more detailed, there is little of substance in them which was not addressed in its oral submissions at the hearing on February 5, 1998.
In the result, in dealing with the production issue the Board will not consider any representations made or materials filed subsequent to the February 5, 1998 hearing.
The Board is the master of its own procedure, both generally and specifically when it comes to the production of documents and other evidentiary matters. In that respect, subsections 111(1) and (2) of the Act provide, inter alia, that:
111.(l) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.
(2) Without limiting the generality of subsection (I), the Board has power,
(b) 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;
(c) 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;
(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not.
[emphasis added]
However, notwithstanding that the Board is not bound to follow any particular procedure in a hearing, and that it is not bound by the rules of evidence which apply in a Court proceeding, Board proceedings are not litigation free-for-alls. Parties to a Board proceeding are absolutely entitled to fairness and natural justice, and the Board applies these principles in its proceedings. To that end, the Board also applies the logic if not the letter of various exclusionary rules of evidence.
It is fundamental to the system of justice in this province, both generally and specifically before the Board, that all parties to a proceeding have a full and fair opportunity to make their case, or to answer the case asserted against them. In our adversarial system, this includes a broad right to test the evidence presented by another party by cross-examining its witnesses.
Although the right to cross-examine is a broad one, it is not unlimited. A party can only cross-examine on issues which are relevant to the matters in issue.
The Crown has chosen to make itself qua employer subject to substantially the same labour relations structure which other employers in this Province must operate within. Having said that, the Crown is not in exactly the same position as every other employer, and as a party, it is not in exactly the same position as every other party involved in a labour relations proceeding, whether before this Board or elsewhere. One difference is highlighted in this case; namely, the Crown can claim an immunity with respect to the production of otherwise arguably relevant documents or information which other litigants cannot claim (except perhaps at the instance of the Crown).
In this case, there are two aspects of the Crown's timeliness objection to OPSEU's attempt to obtain production:
(a) that OPSEU had and failed to pursue an earlier opportunity to acquire the information, and that it has sufficient information for its purposes in any event; and
(b) in seeking production after it has closed its case, OPSEU is improperly attempting to split its case.
The first question is whether the documents in question are relevant. If they are not, they would need not be produced even if the Crown's objection regarding the timeliness of OPSEU's request, or its claim to immunity, were denied.
It is well-established that one of the purposes of the duty to bargain in good faith established by section 17 of the Act is to encourage the settlement of collective agreements through a rational and informed bargaining process which minimizes the need to resort to or continue with the economic sanctions of a strike or lock-out. Section 17 requires the parties to bargain in a frank and honest manner (see, Inglis Ltd., [1977] OLRB Rep. Mar. 128, among others). Accordingly, misrepresentations designed to deceive or which result in the other collective bargaining partner adopting or accepting a position which is materially different from the position it could and would have taken if it had known the real facts, are prohibited by section 17 (see, for example, Indalloy, Division of Indall Ltd., [1979] OLRB Rep. Jan. 35; Old Oak Properties Inc., [1996] OLRB Rep. July/Aug. 648).
Section 17 therefore requires an employer to respond honestly if a union asks in bargaining about an employer's settled intentions regarding a matter which is likely to have a significant impact on the union or bargaining unit. An employer is only required to reveal decisions, including defacto decisions, which have actually been made, and not plans, ideas or proposals which are merely under consideration (Westinghouse Canada Ltd., [1980] OLRB Rep. Apr. 577, application for judicial review dismissed, 80 CLLC ¶14,062 (Divisional Court); Kennedy Lodge Nursing Home, [1980] OLRB Rep. Oct. 1454; Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411; Plaza Fiberglass Manufacturing Ltd., [1990] OLRB Rep. Feb. 192; application for judicial review dismissed, [1993] OLRB Rep. Jan. 83 (Divisional Court)). Sometimes this raises the question of whether the employer's decision-making process is sufficiently far along that it should have been disclosed. In Consolidated Bathurst Packaging Ltd., supra, the Board put it this way:
On the other hand, plans and decisions to close a plant can effectively extinguish a bargaining unit and the relevance of the usual terms of a collective agreement. In this context, where a decision to close is announced “on the heels" of the signing of a collective agreement, the time of such a significant event may raise a rebuttable presumption that the decision-making was sufficiently ripe during bargaining to have required disclosure or that it was intentionally delayed until the completion of bargaining. It can be persuasively argued that the more fundamental the decision on the workplace, the less likely this Board should be willing to accept fine distinctions in timing between ~'proposals" and “decisions" at face value and particularly when strong confirmatory evidence that the decision-making was not manipulated is lacking. This approach is sensitive to the positive incentive not to disclose now built into our system, and the potential for manipulation. Indeed, a strong argument can be made that the de focto decision doctrine should be expanded to include “highly probable decisions' or “effective recommendations' when so fundamental an issue as a plant closing is at stake. Having regard to the facts in each case, the failure to disclose such matters may also be tantamount to a misrepresentation. We might also point out that there are decisions taken because of costs which really ought not to be made until the underlying problem is discussed with the union to see if adjustments can be made and the decision avoided. However, for the reasons discussed above we are not willing to adopt the Ozark Trailers test of "thinking seriously" for unsolicited disclosures as urged upon us by the complainant. The failure to reveal such "possibilities" as a general matter is not tantamount to a misrepresentation and therefore lacks the bad faith rationale developed in Westinghouse justifying unsolicited disclosure. The purpose of such information would be investigative and to facilitate the rational discussion purposes of the bargaining duty. Accordingly, the purpose of the information and the difficulties detailed above with unsolicited disclosure militate against any substantial expansion of the unsolicited disclosure obligation as elaborated to date. The interests of employees are real but the Board is not ignoring these interests by requiring a questioning approach to disclosure as a general matter. The position urged upon us by the complainant has too much potential or "greater heat than light" at the bargaining table. There is already enough uncertainty over precisely how significant and what nature a decision must be to trigger the unsolicited disclosure duty. Unsolicited disclosure must be understood to be exceptional and centred essentially on a bad faith rationale.
Further, as the Board pointed out in Union Carbide Canada Ltd., [1992] OLRB Rep. May 645, the fact that an employer's negotiators were themselves unaware of a de facto decision is no defence, because the employer is obliged to send properly informed and instructed negotiators to the bargaining table.
In this case, in order for the Board to determine whether the Crown breached section 17 of the Act as alleged by OPSEU, the Board must be able to determine when the defacto or actual decision to eliminate its Go Temp service was made. When that decision was effectively (if not officially) made is fundamental to the Board's considerations. Indeed, although OPSEU's request and submissions were somewhat more expansive, that is really what the union is after.
Accordingly, it is apparent that at least some of the documents which OPSEU seeks to have the Crown produce are at least arguably relevant (the test employed by the Board) to the matters in issue. That is sufficient to require the Board to consider the Crown's objections. I turn first to the Crown's timeliness objection.
Could OPSEU have obtained or have sought to obtain the production it seeks earlier? Of course it could have. But the fact that a party has not pursued an earlier opportunity to obtain production, either within or outside of a particular proceeding, does not necessarily preclude it from seeking such production after a hearing has begun, or even after it has closed its case in chief. There must be good reason to circumscribe a party's right to the production of otherwise relevant documentary or other evidence.
When it comes to arguably relevant evidence, the general principle to be applied is production rather than non-production; that is, every relevant fact should be made available to the parties and the tribunal unless there is a good reason not to (see, R. v. Snider, [1954] S.C.R. 479 (Supreme Court of Canada)).
Further, production is not the same as proof. The mere fact that a party is able to obtain production of apparently or arguably relevant documents before or during a hearing does not mean that it will also necessarily be able to prove them so that they actually become evidence before the Board. The mere fact that a document is produced, whether voluntarily or in response to a summons or other Board order, does not make it evidence. Unless it is entered into evidence on consent, every document must be properly proved before it can become evidence. Accordingly, a party which waits to try to prove part or all of its case in cross-examination of another party's witness(se) risks disappointment.
The Act specifically contemplates the production of documents in the course of hearings before the Board, it is not unknown for a party to seek production during cross-examination, and it is not obvious why the mere fact that OPSEU did not seek the production it now seeks earlier should operate to disentitle it from that production.
In that respect, I note that the earlier opportunity to which the Crown adverted was a consultation process in which the Crown engaged with a number of trade unions on the basis that the bargaining unit information revealed through the process would remain confidential and could not be disclosed or used elsewhere. Because of that condition, OPSEU declined to participate in the process. It is far from clear that OPSEU could have used any information it might have obtained through that process in this proceeding (although it is not clear that it couldn't have done so either, since it may be that events have overtaken the need for that particular confidentiality). In any event, that process is part of the background, but is not directly related to this proceeding. In addition, the Crown asserts no actual prejudice which cannot be remedied within this proceeding, other than the prejudice underlying its claim to immunity.
Further, while OPSEU may encounter difficulty if it seeks to prove or bolster its case in reply, any objection in that respect is premature. At the moment, OPSEU is not seeking to call reply evidence, or to enter into evidence a document which has not been proved. It is seeking to test the evidence of the Crown's first witness by cross-examining him with what it hopes will be the aid of the documents which it seeks to have the Crown be required to produce. Subject to the substantive part of the Crown's objection, OPSEU is entitled to try to do so with the aid of the Crown's own documents.
The Crown's timeliness objection to OPSEU's request is therefore dismissed.
Turning to the more substantive part of the Crown's objection, counsel filed the affidavit of Robber Christ, who identifies himself in the affidavit as an Assistant Deputy Minister of Policy Coordination of the Cabinet Office of the Government of Ontario, in support of its assertion of Crown immunity. OPSEU did not object to the affidavit. Nor did OPSEU seek to cross-examine the deponent. In his affidavit, Mr. Christ deposes as follows:
ONTARIO LABOUR RELATIONS BOARD
Ontario Public Service Employees Union (OPSEU) v. The Crown in Right of Ontario as represented by Management Board of Cabinet, et al.
[OLRB file 2076-96-U]
Affidavit of Robber Christ
I, Robber Christ, of the City of Torrent, make oath and say as follows:
I am Assistant Deputy Minister of Policy Co-ordination of the Cabinet Office of the Government of Ontario, and as such have knowledge of the matters herein deposed to.
1 have read and considered carefully the documents referred to below, and have formed the opinion that their production would not be in the public interest for the reasons outlined below.
In my considered opinion, disclosure of the contents of these documents would prejudice and inhibit the functioning of Cabinet government with respect to the ability of Cabinet to act and of both Ministers of the Crown and the public service to advise. It is essential for the proper working of government that Ministers and the public service not be hampered in their ability to give complete and honest advice on matters before Cabinet without concern that that advice, or parts of it, may be disclosed.
Generally speaking, Cabinet submissions set out the background and context of the issue under consideration, various options for addressing it, with the advantages and disadvantages of each, including legal advice, and a recommended course of action. Often the policy process requires consideration of a wide range of options viewed from different aspects and in a variety of configurations.
The present collection of documents shows the efforts of one ministry, Management Board Secretariat, to reduce its costs. It ranges from a speech to Cabinet by the Minister (Chair of Management Board) through submissions to Management Board of Cabinet (a committee of Cabinet) on the ministry's estimates and business plan, to briefing notes for members of Cabinet on these submissions. Many of them are of general application; a few deal exclusively or almost exclusively with the closing of Go-Temp.
The relevant parts of these documents touch on the government's policies on human resource management, a very sensitive issue that may involve questions of the proper size of government itself the manner in which public services are delivered to the public, the role of the private sector in supplementing or supplanting public sector services, and the like.
In addition, the documents set out options for reducing public expenditures as a series of options, comparing the feasibility and desirability of some with others. Some of the options not chosen may come under consideration for future decision. Revealing other options, especially those not chosen, may create misleading and unnecessary unease among those who might appear to be affected by them.
The context of Cabinet's deliberations must also be kept in mind. The documents may reveal government strategies to deal with personnel matters that are still in force or still a matter of negotiation. The collective agreement, made in 1996 after a lengthy strike and difficult negotiations, remains in effect. Sensitive legal and political aspects of the government's compliance with its obligations may emerge from the document, to the detriment of the government's position in ongoing and future discussions with the Union.
Labour relations matters involve continuing negotiation and shifting advantages over the life of a collective agreement and on its renewal. They therefore require a high degree of secrecy, to avoid prejudicing negotiating positions and strategies that are of nearly constant relevance to the operations of government.
In short, the issues discussed in the documents relate to the formulation of significant, complex and sensitive public policy which has been the subject of intense and ongoing discussion in Cabinet and the Legislature and among the public.
Further, many of the documents have only the most marginal relevance to the dispute before the Board. References to the potential closure of Go Temp are few and far between. The other material in these documents may or may not have been the subject of Cabinet decisions or government announcements. It would be highly prejudicial to government operations to fuel speculation about other policies through the release of these documents.
I have reviewed the documents in detail to consider whether divulging some parts of the
submission would not harm the public interest.
The first class of document - those with passing references to Go Temp - should not be disclosed, even only as to those references, because the references are out of context. lt is very difficult to tell from them the reasons for the policy, or the scope of the policy, or the stage of the policy in the decision process. Disclosure would be misleading.
Another group of documents deal more specifically with the closure of GO-Temp. They are Cabinet documents: submissions and pink notes" or briefing notes intended for the members of Management Board. In my view all of them raise the concerns expressed in paragraphs 8 through 10 of this affidavit. These concerns are current, not merely historical, though Go Temp's closure has been announced and carried out. The government's approach to such matters, and its current relations with its employees' bargaining agents, stand to be affected by the contents of the documents in ways that may reduce the flexibility of policy development in this area in the future.
In my view, releasing substantial portions of these records would adversely affect the proper functioning of Cabinet and the public service. Releasing the narrower portion would present a
distorted view of material that was actually before Cabinet, as well as risk hampering policy development.
Disclosing all or part of the Submission would present a misleading, incomplete or erroneous impression of government's present or future policy in this area.
Long ago, the Crown was above the litigation fray. Rules which applied to other litigants did not apply to the Crown in the same way or at all. This included rules regarding the production of documents or other information. In essence, documents or information provided to or emanating from the Crown were subject to an absolute privilege and production could not be compelled over the objection of the Crown.
Except where the federal government is involved, that is no longer the case. Section 39 of the Canada Evidence Act provides an absolute immunity for certain Cabinet documents upon the objection by a Minister or the Clerk of the Privy Council. To the extent that section 39 does not cover a document, and matters of national security or international diplomacy are involved (see section 38 of the Canada Evidence Act), any balancing of interests which is left to be done is heavily weighted in favour of a federal Crown claim to immunity.
There is no legislation analogous to section 39 of the Canada Evidence Act which applies to the provincial Government of Ontario. Accordingly, the Crown in Right of Ontario, the responding party herein, is in much (although not entirely) the same position as any other litigant. No longer is there an absolute privilege which can be invoked by or at the request of the Crown which can operate to avoid production. A more limited public interest immunity may be invoked by or at the request of the Crown, but the Crown holds no veto in that respect. It is for the court or tribunal before which the claim to immunity is made to determine the merits of such a claim, after inspecting the documents for itself if necessary (Carey v. Ontario 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637 at page 654; 35 D.L.R. (4th) 161 at page 174 (Supreme Court of Canada)).
In considering whether Crown immunity is properly applied to exclude otherwise admissible evidence, the tribunal must balance two conflicting public interests. On one hand, there is a public interest in protecting the integrity and proper functioning of the government decision-making process. The revelation of Cabinet discussions or planning at a developmental stage when there is a significant public interest in the matter may seriously interfere with the proper functioning of the executive. On the other hand, the public interest in the proper administration of justice is a very important one. The former public interest tends to favour non-disclosure, while the latter is promoted by permitting litigants full access to relevant evidence and therefore favours disclosure.
It is clear that the public interest in government secrecy does not have absolute priority over the public interest in the administration of justice. This is as it should be in a common-law democracy where there is a separation between the government and an independent judiciary (which for these purposes includes quasi-judicial entities). On the other hand, it is equally clear that secrecy is essential to the proper functioning of a democratic government. The question is how much secrecy is required. In a particular case is whether the public interest in government secrecy outweighs the public interest in the administration of justice.
The public interest immunity which the Crown can assert has evolved into an exclusionary rule of evidence. As the Australian High Court pointed out in Snaky v. Whilom [1978] 21 A.L.R. 505, it is a "rule of evidence designed to serve the public interest" and it should therefore not "become a shield to protect" government wrong-doing, an observation cited with approval by the Supreme Court of Canada in Carey, supra. After all, the purpose of secrecy in government is to promote the proper functioning and legitimate concerns of government, not to facilitate improper conduct. As Lord Sacrament asked rhetorically in Burma Oil v. Bank of England, [1979] 3 All E.R. 700 (House of Lords) at page 733 (also cited with approval by the Supreme Court of Canada in Carey supra):
What is so important about secret government that it must be protected even at the price of injustice in our courts?
Accordingly, the public interest in the proper functioning of government does not always favour secrecy.
In the result, the mere fact that something is a "Cabinet document" does not necessarily mean that it is immune from disclosure. Instead, the two public interests involved (together with any other relevant interest identified in the particular case), must be balanced. Where, on balance, the public interest favours non-disclosure, the immunity invoked by the Crown must be sustained, and any documents or information in the Crown's possession, power or control to which the immunity is found to properly apply need not be produced or otherwise disclosed, however relevant these may be to the matters in issue. Even secondary evidence of a document covered by this immunity is not comparable (Air Canada v. Secretary of State for Trade (No. 2) [1983] 1 All E.R. 910 (House of Lords)).
The Supreme Court of Canada's decision in Carey, supra, is the leading case in Canada on Crown public interest immunity. While that decision makes it quite clear that Cabinet documents must be disclosed like any other evidence unless it would be contrary to the public interest to require disclosure, the Supreme Court of Canada has made it equally clear that a tribunal must proceed with caution in that respect, particularly where the documents in question concern decision-making at a high government level. It appears that in balancing the two interests, it is appropriate to consider at least the following factors:
(a) the level and stage of the decision-making process concerned;
(b) the nature of the policy or subject involved;
(c) the contents of the documents themselves;
(d) the temporal proximity of the decision-making process and policy to the proceeding in which production is sought;
(e) the importance of the proceeding, and whether production is necessary or desirable to ensure that the case is fairly presented and considered;
(f) the nature of the allegations.
Keeping all of this in mind, it is immediately apparent that some of the documents OPSEU seeks are described very generally. This is understandable since except for the documents which have been specifically identified OPSEU cannot know what documents may exist.
However, the affidavit filed by the Crown in support of its claim to immunity is also very general. This is to be contrasted with the situation in Carey supra, where the documents in issue were listed in schedules appended to the affidavit. This is less understandable since the Crown presumably knows what documents it has. However, this lack of specificity does not impede the Board's ability to make a decision in this case.
As I outlined above, what is in issue is what decision was made when" regarding the Crown's elimination of its Go Temp Services operation, and to have that service provided by the private sector. The Crown does not deny that such a decision was made and implemented. The issue between the parties is when that decision was effectively made, and whether it was made at a time and in circumstances which created an obligation on the Crown to reveal that decision to OPSEU during collective bargaining. To put it another way, was the Crown qua employer obligated to advise the union during bargaining, of the decision (if any) it had made to eliminate a part of the bargaining unit which had only recently been added to it?
1 am not satisfied that "all submissions prepared for and/or provided to the Management Board Cabinet, including drafts and all supporting documents, in relation to the privatization and/or consideration of "alternate service delivery" for Go Temp Services (see point #1 in paragraph 8, above) are sufficiently arguably relevant that they should be produced. These are documents which would probably reveal the basis upon which the decision in issue was made, but not what the decision was or when it was made. In the alternative, and notwithstanding that the candor argument has been given little weight in the modern approach to public interest immunity, I am satisfied that the importance of keeping "advice and recommendation" Cabinet documents confidential is greater than the likely probative value of such documents in this case (see. Masse v. Ontario (Corn. & Soc. Services) (1996) 1996 CanLII 12491 (ON CTGDDC), 134 D.L.R. (4th) 20 (Div. CT)). I am therefore satisfied that the public interest immunity applies to these documents, and that they should not be disclosed for that reason as well.
The description "Ministry's Business Plan as it relates to GO-Temp Services" tends to suggest a different type of document, in the sense that a "Business Plan" suggests that decisions have been made. However, as I understand it, "Management Board Secretariat" and "Management Board of Cabinet" are not the same thing. The former is a Ministry of the government. The latter is not. Indeed, the latter is "Cabinet". The manner in which OPSEU had described this document suggests that it is in the same class as the other document referred to in point #1 of paragraph 8 above; that is, that it is a document submitted by the Ministry to Cabinet as a proposal. As such, it would be a suggestion or advice to Cabinet and not a decision of Cabinet. Even if it is in an area in which the Ministry can and does effectively make decisions, it does not present as such in this case, even if at some subsequent point Cabinet adopted it in its entirety. Accordingly, the reasoning in the previous paragraph applies equally to this document, and it need not be produced both because it lacks probative value, and because the public interest immunity claimed by the Crown applies to it.
The "Business Plan, Estimates and the Budget" document or documents referred to in point #2 of paragraph 8, above, present differently. It is not clear whether this refers to one or more than one document. In either event, reference to this is found in a document which is Exhibit #18 in this proceeding.
Exhibit #18 consists of three e-mails. The subject of the e-mails is identified as being "Status of GO-Temp Program - Reply - Reply". The first specifically asks whether a decision has been made about the "fate" of the GO-Temp Program. The second responds that the decision has been made, "as stated in the Business Plan, Estimates and the Budget" but not implemented. The third e-mail asks how imminent implementation is.
Accordingly, the "Business Plan, Estimates and the Budget" referred to in Exhibit #18 appears to reflect a decision which had been made, and which has since been publicly implemented. Insofar as the document(s) reflect a decision which has been made, and implemented during the life of the collective agreement which was the subject of the bargaining which is under scrutiny in this proceeding, it is relevant to the matters in issue. To the extent that the document(s) reveals an effective decision, the Crown cannot assert a labour relations secrecy, since this is the very matter in issue.
Further, to the extent that any such document reflects an effective decision, it is not part of the decision-making process which prima facie requires public interest immunity protection in the context of this case. It is both necessary and desirable that such a document be produced in this proceeding, where the issue is whether the Crown has violated its own legislation. Finally, notwithstanding the on-going nature of a collective bargaining relationship, and notwithstanding that collective bargaining parties are entitled to some secrecy in developing on-going collective bargaining positions strategies, complaints such as this one require a forensic analysis of the past collective bargaining conduct of the parties. I am not satisfied that the fact that other probative documents are already in evidence or may be available is a reason to refuse production. On the basis of the materials before me, I am satisfied that the balancing of interests favours disclosure and public interest immunity does not apply to this document.
For the reasons given in paragraph 46, above, "all documents, reports, memoranda or any other material that was either prepared for or reviewed in the preparation of the Interim Report" referred to in point #3 of paragraph 8, above, (which interim report is part of Exhibit #20 in the proceedings) are both not relevant and subject to the public interest immunity. They need not be produced.
Having regard to the caution which the Supreme Court of Canada has held should be exercised in these matters, I am not prepared to order production of the Business Plan, Estimates, and the Budget referred to in Exhibit #18 directly to OPSEU. Instead, I order the Crown to forthwith deposit those documents with the Board for my personal and confidential inspection. If upon inspecting the documents I am satisfied they should be produced to OPSEU, the Board will make them available to the union.