Toronto Transit Commission v. William H. McNaught
File No.: 3616-99-U Applicant: Toronto Transit Commission Responding Party: William H. McNaught
Before: M. A. Nairn, Vice-Chair.
Decision of the Board: May 15, 2000
Decision
1This decision deals with two issues, first, a request for reconsideration of the Board’s decision of April 3, 2000, and secondly, the outstanding jurisdictional issues raised in the response filed by Mr. McNaught.
2In the April 3, 2000 decision I made certain directions including ordering:
a) submissions by Mr. McNaught on the assertion of a lack of jurisdiction;
b) particulars from the TTC regarding two issues; and
c) that Board File Nos. 3616-99-U and 3297-99-OH be listed together for hearing.
I also declined to dismiss the application for want of a prima facie case. I have now received submissions from both parties regarding the jurisdictional issue and have received the representations from the parties in respect of the request for reconsideration. I have reviewed them.
3The request for reconsideration is based on the assertion that this Vice‑Chair drew conclusions in the April 3, 2000 decision based on the erroneous view that two documents relied on by the applicant (the “TTC”) in this application had been produced in connection with Board File No. 3297-99-OH only. Mr. McNaught renews his request that this application be dismissed for want of a prima facie case on the basis of this misunderstanding. He further asserts that this application ought not to be listed for hearing with Board File No. 3297-99-OH, as, he asserts, there is no connection between them.
4On a more careful review of the material filed in a number of proceedings between these parties Mr. McNaught is correct in one assertion. Two of the documents on which the TTC relies in this proceeding were filed in its response in connection with Board File Nos. 3335-98-HS, 3415-98-HS, 0830-99-HS, 1050-99-HS, and 1052-99-HS. However, I am not persuaded that this fact makes a difference to the conclusions reached in the April 3, 2000 decision. While there is much detail in Mr. McNaught’s submissions, the matter comes down to the conclusion reached in paragraph 11 of the April 3, 2000 decision, that is, that one of the allegations of the TTC is that Mr. McNaught has used the documents in question for the purpose of intimidating a potential witness. Even if parties to a proceeding are allowed access to documents (at any stage of the proceeding), there can be improper use made of those documents. Whether or not the TTC can establish such improper use is a matter to be determined at a hearing. There are sufficient particulars alleged to satisfy me that the matter ought not to be dismissed at this stage.
5Mr. McNaught asserts that Board File Nos. 3616-99-U and 3297-99-OH ought not to be listed together for hearing. He asserts that as the two documents in question were not filed in Board File No. 3297-99-OH, there is no factual connection between the two applications and that they ought to be dealt with separately. From a review of Board File No. 3297-99-OH it appears that there will be an issue between the parties as to the effective date of any termination from employment and the grounds on which the TTC is entitled to rely in support of its decision to terminate Mr. McNaught’s employment. It is however the case that prior to filing this application, the TTC had forwarded a letter to Mr. McNaught (dated February 25, 2000) in which it sets out its asserted grounds for termination. Those grounds include an allegation that Mr. McNaught distributed materials filed by the TTC for the purpose of intimidating and coercing a witness. Thus the TTC will attempt, in Board File No. 3297-99-OH, to rely on the very allegation raised in this application. In addition, the application in Board File No. 3297-99-OH asserts, at page 3 of Appendix “A”, that Mr. McNaught was told his employment was terminated for two reasons, including being party to and participating in the pressuring and coercion of safety representatives. The various pleadings disclose that the potential witness relevant to this application was a safety representative at the relevant time. Whether or not it is the same person is a matter of particulars. The essence of the allegation however is identical in both files and warrants the two matters being heard together.
6Finally, it appears that the documents in issue may have been introduced in evidence in connection with Board File Nos. 3335-98-HS et. al. The panel of the Board hearing those appeals will determine whether or not they are relevant to that proceeding. That does not change the fact that the allegations in this application and in Board File No. 3297-99-OH are related so as to warrant listing the applications together for hearing.
7The remaining matter is the issue of the jurisdiction of the Board to hear and determine this application brought pursuant to section 13 of the Statutory Powers Procedure Act (the “SPPA”).
8Mr. McNaught asserts that the Board has no jurisdiction to hear and determine this application on the grounds that:
a) the TTC has not filed an application under section 96 of the Labour Relations Act, 1995 (the “Act”) and that the Board cannot therefore proceed to hear this matter as if it were a section 96 application;
b) section 96 of the Act does not provide the Board with jurisdiction to inquire into an alleged contravention of the Occupational Health and Safety Act (“OHSA”) or the remedial authority to state a case pursuant to section 96 of the Act; and
c) that having determined to consider the matter as one to which the Act applies, there is no jurisdiction in the Board to proceed given section 3(2) of the SPPA.
9All of these assertions arise from the fact that the Registrar’s Office of the Board has communicated with the parties in respect of this application as if it were filed pursuant to section 96 of the Act. The fact is, applications brought pursuant to section 13 of the SPPA are rare and the Board has not created forms appropriate for their filing. The TTC’s application is abundantly clear that it has filed this application pursuant to section 13(1)(c) of the SPPA. The cover letter notes the lack of an appropriate form and makes it clear that the TTC has attempted to provide all the information relevant to processing its claim. The Registrar’s Office has utilized a mechanism, which, while not ideal, is appropriate to its ability to process the application.
10The Board has jurisdiction as a tribunal within the meaning of section 13 of the SPPA to inquire into and state a case for contempt in the appropriate circumstances (see for example, Plaza Fiberglass Manufacturing Limited et. al. unreported decision of the Board dated December 16, 1988.)
11Having regard to all of the above, I hereby decline to reconsider the decision of April 3, 2000. Further, I hereby dismiss the allegation that the Board has no jurisdiction to enter into this inquiry pursuant to section 13 of the SPPA. Finally, I note that the TTC has now filed the particulars ordered by the April 3, 2000 decision.