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Home My WebLink About2449-94-U - Abrams 95-08-23 ONTARIO LABOUR RELATIONS BOARD 2449-94-U Don Abrams, Applicant v. Ontario 'Public Service Employees Union, Responding Party v. Algonquin College of Applied Arts & Technology, Intervenor. BEFORE: Lee Shouldice, Vice-Chair. DECISION OF THE BOARD; August 23, 1995 1. This proceeding is an application brought pursuant to section 76 of the Colleges Collective Bargain%n~ Act R.S.O. 1990, c. C.15. By way of the decision dated February 24, 1995, I dismissed the complaint lodged by Mr. Abrams. Reasons for the decision were released on May 31,.1995. What was, in effect, ~ ~e.quest for reconsideration was denied by way of decision dated July 11, 1995. The applicant has now written to the Board requesting "a copy of any notes of our February 22, 1995 meeting/hearing, or othe~ documents or reports that you might have utilized in the determination of your decision to discuss my application for a hearing" and, as well, "the report or any notes pertaining to my complaint filed by the Senior Labour Relations Officer, Mr. William Jackson, appointed to this proceeding". The purpose of these requests would appear to be Mr. Abrams' desire-to proceed further with his complaint in some other forum. 2. In Antoine A. Plennevaux, [1994] OLRB Rep. May 593, the Chair of the Board made the following observations with respect to a similar request for her notes of a hearing: 3. Turning first to Mr. Plennevaux's request for my notes, it is useful to clarify the role of notes taken by.panel members in the Board's hearing process generally. They do not constitute a'transcript or record of the proceedings and have no official status or role whatsoever. Rather, they a~e merely personal memory aids to assist panel members in.their subsequent deliberations. They may contain references to testimony and they may not. Indeed,'there may be cases where few or no notes are taken. Since they are -entirely for the personal use of the ~djudicator who takes them, it is left to' - 2 - the discretion of each panel member whether to takes notes at all and what, if anything, to put in them. Among other things, this means that the notes in question are likely to be of'little value to the applicant for the purpose he cites, since they are not a verbatim transcript of the evidence in his case. 4. In addition, there are important public policy considerations involved. Notes taken by panel members are inextricably linked to the Board's thought processes and mental deliberations. They may record tentative or preliminary reactions'and assessments which 'may be subsequently changed. This is par~tic~larly true in a tripartite system, w~ich involves a joint discussion and decision-making process.. It is not an overstatement to say that delivering up the Board's notes would be an invasion of the delicate and confidential nature of decision-making. 5. In Consolidated-Bathurst Packa~inq Ltd.. and International Woodworkers of America, Local 2-69 et al. (1985.), 51 O.R. (2d) 481 (Div. Ct.) the Court referred to notes and draft decisions in the same breath in commenting oh the'harm to the process: APart from being contrary to the procedure and traditions of this court, the effect upon this and other boards of the precedent t~at we were asked to establish would be incalculable. Who is to say how many drafts of any particular judgement or decision may have been prepared before the final document issues? If a full draft, why not brief memoranda prepared in .contemplation .of a draft? If such memoranda, why not notes taken by board members in the course'of their hearing or their private and personal deliberations? No justification for such an order can be shown, at least in the present case. In' any event, the thrust of the attack on the decision of the board is as to the - 3 - procedure adopted, and the fate of the application should depend on our review of that procedure, not the contents of a particular document. (emphasis added) 6..While notes are an important memory aid .for most adj.udicators, particularly in lengthy and complex cases, they are also highly personalized. Among other things, they may include initial or passing thoughts undiluted by the overall perspective of the case the adjudicator will ultimately possess. If the Board produced its notes to the parties, this would be likely to restrict or change the nature of note taking significantly. The effect may be to diminiSh:the value of the notes to the adjudicator, and to hinder or interfere with the hearing or decision-making process in this respect as well. 7. Moreover', the Board's notes may often be misleading or meaningless to the parties. For example, they may be illegible or in Various shorthand forms. There is also no way of knowing why a note was made of one point and not another. Notes may be made because the adjudicator agreed with a point, disagreed, thought it was significant, thought it was so insignificant that he or she would need a note to even remember the point, and so forth. 8. The Board issues reasons for its final decisions, in some,cases, routinely, and in others, upon request. Those reasons set out the basis on which the Board has reached its conclusion. .They contain all the information .about the decision-making process to-which a party is fairly entitled. The release of notes even for a purpose unrelated to its.proceedings would create a precedent which would be highly problematic, and which has the potential to erode the high standard of - 4 - administrative justice reflected in the Board's proceedings. As a result, I decline to provide a copy of my notes, certified or otherwise, to the applicant. I agree with these observations. For the reasons set out above, I decline to provide~Mr. Abrams with a copy of my notes of the hearing held on February 22, 1995. 3. A number of documents were filed with the Board by the parties. During' the course of the hearing, I ruled that certain documents filed by the applicant were not relevant to the substance of the complaint. The remaining documents were before the Board and reviewed for the purposes of determining the application. To the extent that particular documents were significant, those documents are referenced in the decision. Should the applicant require the return of any particular documen~ he-'filed with the Board, he may contact the Registrar of the Board specifying what particular document or documents he requires. 4. Finally, Mr. Abrams requests access to "the report" or any notes filed by the Senior Labour Relations Officer appointed-to this proceeding. As I noted in the decision of July 11, 1995, no such "report" of the Senior Labour Relations Officer exists in the Board File. Section 77(3) of the Colleges Collective Bargainin~ Act provides that the Labour Relations Officer appointed to inquire into the complaint is'"to report the results of his. or her inquiries" to the Board. No formal report is prepared by the Board. Officer. In this case, an "L.R.O." summary sheet attached to the Board File merely indicates that the matter was not settled and that 2-3 hearing days ought to be scheduled for the consideration of preliminary matters, and 3-4 hearing days ought to be scheduled should the matter proceed on its merits. 5. Unless Labour Relations Officers are specifically directed by the Board to confer with the parties and report back to the Board with respect to the outstanding issues (as often is the case with, for example, list or bargaining unit description disputes in construction certification applications), the interaction between Board Officers and the parties to a proceeding is not communicated to the panel of the Board assigned to determine the-matter, and for sound reasons - the appointment of a Board Officer serves various purposes, including that of encouraging settlement of the dispute between the parties. In many matters, settlements are effected only where full and frank discussions occur - 5 - amongst all of the participants, including the Board Officer. If the Board Officer were to document the discussions of the parties "for the record", and the panel of the Board were to have access to such a document or report, those full and frank settlement discussions would rarely, if ever, occur. The filing of such a document or report in the Board File would also potentially taint the panel hearing the merits of · the matter. Quite simply, a Board Officer's discussions with the parties are almost always "off the record". Accordingly, it is not surprising that there is no extensive "report" in the Board File in this proceeding, and it follows that I did not utilize such a report when reaching my decision. 6. For reasons which are similar to those described above, it is also inappropriate to release to Mr. Abrams any notes compiled by Mr. Jackson in the pursuance of his duties. The Colleges Collective Bargainin~ Act provides, in section 82(3), that the Board is to determine its own practice and procedure. In my view, it ough~nOt°to be (and is, in fact, not) the practice of the Board to routinely authorize disclosure of notes taken by Labour Relations Officers appointed to inquire into complaints which are filed pursuant to the Act. To permit parties to access the notes of Board officers would compromise the ability of Board officers to effectively perform their duties and therefore would hardly be in the best interests of labour relations. Accordingly, the Board declines to provide Mr.'Abrams with authorization to access any of Mr. Jackson's notes respecting this proceeding. "Lee Shouldice" for the Board