0391-92 Hilton Works, Parkdale Works, Frost Works, and General Office, Applicants v. Jane MacDonald and Stelco Inc., Respondents
Before : Mary Ellen Cummings, Vice-Chair; Bruce Budd and Janet Slone Taylor, Members
Appearances: James B. Noonan, Toni-Anne N. Dasent, Jerry Joy and Roger Fulton for the Applicants and the Respondent Stelco Inc.; Minh Ngoc Thi Pham and Senka Dukovich for the Respondent MacDonald
Cite As: Hilton Works (No. 1) (1993), 4 P.E.R. 12
Practice and Procedure - Production of Documents
The parties requested an order from the Tribunal incorporating their agreement with respect to production and use of "sensitive business documents". The Tribunal declined to order the parties' agreement in its entirely. The Tribunal balanced the parties' desire for confidentiality with its obligation to provide a fair and public hearing, render a comprehensible decision and to comply with the requirements of other statutory schemes.
Pratique et procédure - Production de documents
Les parties ont demandé au Tribunal de rendre une ordonnance qui incorporerait leur entente relative à la production et à l'utilisation de «documents d'ordre confidentiel». Le Tribunal a refusé d'incorporer, dans son ordonnance, l'intégralité de l'entente intervenue entre les parties. Il a pris en considération, d'une part, le désir des parties de maintenir le caractère confidentiel de leurs documents et, d'autre part, son obligation de tenir une audience juste et publique, de rendre une décision intelligible et de respecter les exigences d' autres mesures législatives.
DECISION OF THE TRIBUNAL, APRIL 8, 1993
1At the first day of hearing, the parties indicated that they had reached agreement on disclosure of most of the documents that the Respondent, Jane MacDonald, had requested. However, with respect to documents that Hilton Works, Parkdale Works, Frost Works, General Office (hereafter collectively called "the Business Units") and Stelco Inc. referred to as sensitive business documents, the parties had agreed to a process for disclosure that they wished the Tribunal to embody in an order.
2The parties have outlined a process whereby the Business Units and Stelco Inc. will provide the documents to counsel for MacDonald. Counsel will then review the documents and attempt to agree on which information is relevant. If documents are to be relied on in the hearing, those having access to them will be restricted to those agreeing to respect the confidentiality of the information.
3Some aspects of the proposed order concern the panel. They are as follows:
d) The Tribunal will abide by the terms of this order, even if it receives a request for the protected material from another government agency. In the event such occurs, including
any request pursuant to relevant freedom of information legislation, notice will be given to the Applicant of such request and a hearing scheduled by the Tribunal for the purposes of considering such request, prior to any disclosure of information by the Tribunal.
g) If a portion of the protected materials are introduced into, or used in, the administrative hearing record, the relevant pleadings, transcripts, and exhibits will be kept under seal, and testimony and argument relating to them will be held "in camera".
h) If any portion of the protected material is required to be used in the written decision of the Tribunal, all possible discretion will be used by the Tribunal to use such material in a manner that does not divulge to the general public any confidential information in the protected material.
i) Any breach of the terms of this order is subject to contempt proceedings pursuant to section 13 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.
1 The Tribunal is willing to assist the parties to protect the content of sensitive documents when such protection does not impede the Tribunal in its obligation to provide a fair and public hearing and render a comprehensible decision. However, the Tribunal is unable to guarantee to any party that sensitive documents will be protected in all circumstances.
2 First, it is not in the jurisdiction of a panel of the Tribunal to prohibit access to documents to all persons in all circumstances. For example, where a request for disclosure is made pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F 31, it is the Freedom of Information Commissioner who will ultimately determine if documents in the custody and control of the Tribunal will be released.
3 Further in an application for judicial review, the Tribunal is obliged pursuant to section 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22 to:
compile a record of any proceedings in which a hearing has been held which shall include,
(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or purpose for which any such documents may be used in evidence in any proceedings;
(e) the transcript, if any of the oral evidence given at the hearing
Consequently, in an application for judicial review, the Tribunal's record would have to include all the documents and all the transcripts unless another statute expressly limited the purpose for which the documents could be used in evidence.
1 Second, the Tribunal is unable to promise that aspects of relevant documents will be excluded from decisions. We will be sensitive to the contents of the documents, but will include in our decisions whatever evidence is necessary to the decision.
2 Third, we are unwilling to make the Tribunal subject to the contempt proceedings of the Statutory Powers Procedure Act, which would be the effect of paragraph (i) of the proposed order.
3 We suggest that the parties endeavour to render sensitive documents less sensitive by blocking out those portions that are not relevant to the purposes that the parties wish to make of them. We are also prepared to deal with sensitive documents in camera where necessary, but again, this is no guarantee that the documents or oral testimony will never be available to third parties. It would be preferable, however, for the parties to choose documents or parts of documents that can be dealt with in open hearing.
We have reviewed the proposed order of the parties. In light of the above, we have removed some paragraphs and modified others, but have attempted to give effect to the agreement of the parties with respect to dealing with sensitive documents. Our order is as follows:
The following documents are subject to a protective order:
a) the financial statements of the Business Units. b) the mission statements, strategic and business plans for the Business Units.
3 These documents will be provided to counsel for the respondent Jane MacDonald. Counsel undertakes that she will not divulge the contents of such documents to any other person, nor copy or replicate the documents in any manner.
3 Counsel for the parties will meet in an attempt to reach agreement as to what if any of the information contained in the documents is relevant to the issues in dispute and in what form the information should be submitted to the Tribunal.
3 In the event of disagreement, counsel retain the right to argue before the Tribunal the relevance of such documents and the form in which information should be submitted to the Tribunal.
3 In the event that the Tribunal orders that the documents are relevant, counsel agree that the following restrictions shall apply to information contained in the documents:
a) Only the participants who agree to be bound by this order will be permitted to inspect the protected documents; b) Each person who inspects the protected documents shall be required to execute a form stating that he or she is familiar with the terms of this order and agrees to be bound by the terms even after he or she ceases to be associated with the proceeding; c) Unless permission is granted, no witness or potential witness shall retain custody of the documents; d) The protected documents shall not be used for purposes other than the conduct of this proceeding; e) An inventory of all copies of the documents shall be kept and handwritten notes,
except as required by counsel and witnesses for the purposes of this proceeding, are prohibited; f) Counsel may request that those parts of the hearing dealing with the protected documents be held in camera. g) An alleged breach of this order will be dealt with in the same manner as other alleged breaches of Tribunal decisions and orders.
- We anticipate that other issues may arise with respect to the handling of sensitive documents. We will strive to balance the need to hear all relevant evidence, in a public hearing, with the concerns about the sensitive content of the evidence.