Court File and Parties
0459-00-R Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Supply Chain Express Inc., Canadian Merchandising Employees’ Union, Responding Parties.
2990-99-R Industrial Wood & Allied Workers of Canada, and its Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., and Supply Chain Express Inc., Responding Parties v. Canadian Merchandising Employees’ Union, Intervenor.
3843-99-U Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Wilson Logistics Inc., Supply Chain Express Inc., Canadian Merchandising Employees Union, Tom Rees and Scott Carter, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: James Fyshe and Bill Brady for the applicant; Fred von Veh for Wilson’s Truck Lines Limited and Wilson Logistics Inc.; Andra Pollak, Patricia Bourk and Scott Carter for Supply Chain Express Inc.; Alick Ryder and Tom Rees for the intervenor.
DECISION OF THE BOARD; November 27, 2000
Decision
1At the commencement of the hearing on November 23, 2000, counsel for the applicant sought leave of the Board to bring a motion with respect to the production of documents. Specifically, the applicant sought to have the Board issue an order requiring a business identified as Sobeys Ontario (“Sobeys”) to produce certain documents. Counsel also indicated he had served a summons on a representative of Sobeys to attend and produce the documents. We assume the individual was summonsed because of his custody and control of the documents arising from his position with Sobeys, rather than any personal knowledge of possession of documents. Counsel for the applicant had instructed the witness not to attend until counsel advised that his presence was necessary.
2The other parties objected to the applicant even raising the issue with the Board on November 23, 2000. The applicant had not raised the issue with any of the other parties to the proceeding prior to November 23, and none of the counsel was prepared to address the matter at that time.
3I ruled that I would not make an order requiring Sobeys to produce any documents to any party. In my view, section 111(2)(c) does not give the Board the power to require production of documents outside of the hearing process from any entity which is not a party to the proceedings. There is authority for the proposition that the Board may require production of documents from a witness who is compelled to attend by way of a summons, without requiring that person to be sworn in as a witness: Heart Construction Co. Ltd., [1983] OLRB Rep. Jan. 84; Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659. However, this issue is one the responding parties and the intervenor may wish to argue more fully.
4On November 23, the Board was hearing evidence called in the case being presented by Wilson Logistics Inc. and Wilson’s Truck Lines Ltd. It will be some time before the applicant commences to call its witnesses. Nonetheless, the applicant wishes to have the documents available for possible use in cross-examination. This would assist in the orderly calling of evidence. However, because of the lack of notice to the other parties, I did not require them to argue the issue on November 23, nor did I order them to do so on the next dates scheduled for hearing commencing December 4, 2000. The next date for hearing after that is January 18, 2001.
5Since the documents may well be documents that the applicant would be entitled to have produced by a witness during the conduct of his own case, it is simply a matter of scheduling the time at which the matter is argued, if it needs to be argued at all. It is preferable, from the Board’s perspective, to conduct hearings which are carried on in an orderly fashion, and in which witnesses are not recalled to deal with matters that have arisen in the applicant’s case. To that end it is preferable to have relevant documents disclosed at as early a time as possible. Accordingly, the Board will allow the applicant, if so advised, to summons the individual to appear on the January 18, 2001 date and to allow the parties to make whatever argument they wish about what should be done at that time.
6Matters of document production ought not to consume excessive amounts of hearing time and the Board would encourage the parties to determine if any accommodation can be reached on any matter relating prior to January 18, 2001. We anticipate that the witness, or more properly Sobeys, would have serious concerns about confidentiality. Either Sobeys or the individual summonsed will be afforded full opportunity to address these concerns to the Board, if such is requested. The Board will make every order necessary to protect the confidential nature of information or documents of any person or entity which is required to produce them for the purposes of a Board hearing, particularly when that person or entity is not a party to the proceeding.
7As indicated above, the Board has no authority to require Sobeys to do anything at this time. If matters can be agreed upon by the parties, the Board will make such orders as the parties and Sobeys or the individual summonsed request. If it is necessary to convene a brief hearing at the end of a day or at a lunch break in order that the documents may be received as part of a formal Board hearing (if the parties deem that to be necessary), the Board will accommodate that process. If no agreement can be reached, it would be of assistance to the Board if, in advance of January 18, 2001, Sobeys or the individual summonsed would indicate which documents covered by the summons exist, and whether, notwithstanding the provision of appropriate safeguards, there are documents which it has a further objection to produce. The Board would also request that, if there is an issue with respect to the authority of the individual summonsed to take possession of and bring to the Board the documents requested, that such issue be raised at the earliest opportunity. This is of course simply a request by the Board and is not binding on anyone.
8The Board directs the applicant to provide a copy of this decision to the individual summonsed, Sobeys, and to any counsel known to the applicant to be acting for either of them in this matter.
“David A. McKee”
for the Board