3616-99-U Toronto Transit Commission, Applicant v. William H. McNaught, Responding Party.
BEFORE: M. A. Nairn, Vice‑Chair.
DECISION OF THE BOARD; April 3, 2000
1The applicant (the “TTC”) has filed this application pursuant to section 13(1)(c) of the Statutory Powers Procedure Act (the “SPPA”). The TTC is requesting that the Board state a case to the Divisional Court so that that Court may take such steps as allegedly may be required to punish the responding party for contempt.
2These parties are engaged in a variety of proceedings before the Board. A large number of files represent appeals under the Occupational Health and Safety Act (the “OHSA”) brought by Mr. McNaught (and others) against the Ministry of Labour and the TTC alleging various health and safety issues and seeking redress. More recently, the TTC has terminated Mr. McNaught’s employment. That action is the subject of Board File No. 3297-99-OH, a complaint brought by Mr. McNaught against the TTC pursuant to section 50(1) of the OHSA (the “reprisal complaint”).
3In its response to the reprisal complaint, the TTC filed certain documents upon which it intended to rely in its defense, as required by the Board’s Rules. Two specific documents are in issue; a transcription of a telephone voice mail message and a written statement from an employee at the Danforth yard where Mr. McNaught was employed. Both documents emanate from the same individual. That individual is a likely witness in respect of the reprisal complaint.
4The TTC asserts that Mr. McNaught has made use of the two documents in a manner that is inconsistent with an asserted implied undertaking that the documents would only be used for purposes of the litigation for which they were produced, and for no other purpose. The TTC further asserts that Mr. McNaught has circulated these documents to employees of the TTC with the intent of intimidating the person whom Mr. McNaught knew or should have known was likely to be a witness in a proceeding before the Board.
5The TTC delivered a copy of its application to Mr. McNaught, who has filed a response with the Board. That response asserts certain jurisdictional issues and further asserts that there is no prima facie case for the remedy requested by the TTC and that it therefore ought to be dismissed. This decision deals with some of those preliminary matters.
6Mr. McNaught makes two assertions with respect to the Board’s jurisdiction to hear this matter pursuant to section 13 of the SPPA. Mr. McNaught is hereby directed to make any and all submissions with respect to these jurisdictional issues by no later than April 20, 2000 at which time I will review those representations. A copy of those submissions is to be forwarded to the TTC at the same time that they are delivered to the Board. I will remain seized for the purpose of reviewing those submissions.
7Mr. McNaught also identified three reasons for finding that the TTC has failed to make out a prima facie case of the alleged improper conduct. In dealing with such a motion, I must assume the facts as asserted by the TTC to be true and provable and ask whether or not, based on that assumption, they make out an arguable case of improper conduct.
8The first assertion by Mr. McNaught is that there has been a failure to identify the specific alleged act of contempt. Mr. McNaught asserts that the TTC has not established that allegedly distributing “copies of part of the submission filed under the Decision of Vice Chair Nairn, dated December 7, 1999 are in fact act(s) of contempt since the TTC workers who received these documents are either appellants or potential witnesses in Board File No. 3415-98-HS”. Mr. McNaught relies on section 5 of the SPPA to assert that parties are entitled to copies of all documents filed by a respondent. Mr. McNaught also relies on this panel’s earlier decision of March 3, 2000 in Board File Nos. 3415-98-HS et. al. which he asserts confirmed the right of the contact person to review the material with other appellants.
9The fundamental flaw in this first assertion is that the two documents in question were produced in respect of Board File No. 3297-99-OH only. They did not form part of any submission by the TTC in matters dealt with by the Board in its decision of December 7, 1999 or its decision of March 3, 2000. Mr. McNaught is the only applicant in Board File No. 3297-99-OH. The assertion is not responsive to and is irrelevant to the TTC’s position that there is an implied undertaking not to use the material except to pursue the litigation in Board File No. 3297-99-OH.
10The second assertion by Mr. McNaught is that the TTC has failed to establish that parties are not entitled to have access to submitted documents. He relies on section 9(1.1) of the SPPA. That section apparently makes reference to access to documents submitted at a hearing. Board File No. 3297-99-OH has not progressed to a hearing stage. Mr. McNaught also suggests that this material forms part of Board File No. 3415-98-HS such that it can be disclosed to the applicants named therein. I reject the assertion that the material is relevant to Board File No. 3415-98-HS. The only issue in Board File No. 3415-98-HS, as I have repeated in the decision of March 3, 2000 is whether the Inspector was correct in determining there was no health and safety concern arising from the brake pedal on the RTS bus. Neither the reprisal complaint nor this application form part of Board File Nos. 3415-98-HS et. al.
11In respect of the reliance on section 9(1.1) of the SPPA the assertion fails to take into account that regardless of any issue of disclosure of the documents, one of the allegations of the TTC is that Mr. McNaught has used the documents in advance of a hearing for the purpose of intimidating a potential witness. A tribunal has the authority and the responsibility to ensure that the integrity of its processes are maintained, including that witnesses be able to testify free of intimidation or coercion. Thus I am not persuaded that this second ground in any way assists in establishing that there is no prima facie case of improper conduct.
12The third assertion is that the TTC has failed to comply with section 8 of the SPPA. This is essentially an assertion that there has been a failure to provide sufficient particulars of the complaint and is a separate matter and is raised again in more detail later in the response. There is no basis from which to conclude however that the applicant has failed to make out a prima facie case of improper conduct.
13There are a number of other issues raised as preliminaries. Mr. McNaught also seeks the dismissal of the application on the basis that the documents are not admissible in Board File No. 3415-98-HS because they were obtained in violation of section 63 (1)(e) of the OHSA. I note that the TTC is seeking to rely on these documents in the reprisal complaint, Board File No. 3297-99-OH. Assuming that Mr. McNaught maintains this assertion in respect of use of the documents in the reprisal complaint, the parties will be required to deal with this assertion as necessary.
14There is also a request for further particulars (at page 4 of the Appendix to the response –paragraph IIIII). I note that sub-paragraphs (iii) and (iv) are more in the nature of matters for argument and I decline to order further particulars in respect of those particular sub-paragraphs.
15Sub-paragraph (i) is a request for particulars as to how the employer obtained the documents and is referenced in paragraph 3 of Schedule A to the application. Any further particulars as to the manner and/or means by which the TTC came into possession of the documents is to be disclosed by the TTC to Mr. McNaught no later than three weeks prior to the scheduled hearing in Board File No. 3616-99-U.
16Sub-paragraph (ii) is a request for the names of persons who observed the alleged distribution of the documents, where it occurred, and to whom the copies were allegedly distributed. Certain reference is made in paragraph 11 of Schedule A of the application to a restaurant where the material is alleged to have been distributed. The TTC has indicated that it has statements from witnesses who observed the distribution of the material but that in the circumstances, it is unwilling to disclose those names. The TTC is directed to provide further particulars as to where the material was allegedly distributed and to whom, no later than three weeks prior to the scheduled hearing in Board File No. 3616-99-U In the circumstances I am not prepared to order the TTC to disclose prior to the hearing the names of the persons who allegedly observed the distribution of the material. That may result in some delay in the hearing process should Mr. McNaught require time to respond. However any such potential for delay will be balanced by the fact that I hereby direct that this matter be scheduled for hearing with the hearing of the reprisal complaint. Whether or not this alleged conduct would amount to contempt, there is a prima facie allegation of improper conduct which may be relevant to any exercise of the Board’s direction in Board File No. 3297-99-OH.
17I decline at this stage to strike any portions of the application as requested at page 5 of the Appendix to the response.
18I will remain seized for the limited purpose of reviewing the submissions directed by paragraph 6 of this decision. Board File No. 3616-99-U is hereby listed for hearing together with Board File No. 3297-99-OH, scheduled for May 30, June 19, 20 and July 4, 2000. The hearing will commence in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario, to commence at 9:30 a.m. each day.
“M. A. Nairn”
for the Board