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HomeMy WebLinkAbout1997-2033.MASSA99_03_04 \ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-139/5 GSB # 2033/97,0384/98 0385/98 OLB # 002198 235/97 413/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Joseph Massa) Grievor - and - The erown m RIght of OntarIO (LIquor eontrol Board of OntarIO) Employer BEFORE RandI H. Abramsky V Ice-ehmr FOR THE Larry Stemberg UNION Counsel, KoskIe Minsky Barnsters & SolICItors FOR THE MIchael G Sherrard EMPLOYER eounsel, OgIlvy Renault BarrIsters & SOlICItorS FOR THE Bruce Amott THIRD PARTY MImstry of Labour Inspectors Legal ServIces Branch L HEARING March 3, 1999 ORDER The Employer s motIOn to compel the testImony of Health and Safety Inspectors Suhr and eastle IS demed. Upon consIderatIOn of the facts and the able legal submIsSIOns of counsel for the partIes, as well as counsel for the MInIstry of Labour, I conclude that the Health and Safety Inspectors are not compellable under SectIOn 63(3) of the Ontano Health & Safety Act (OHSA) SectIOn 63(3) of OHSA states as follows An Inspector or a person who, at the request of an Inspector, accompames an Inspector, or a person who makes an eXamInatIOn, test, InqUiry or takes samples at the request of an Inspector IS not a compellable WItness In a CIVIl SUIt or any proceedIng, except an Inquest under the eoroners Act, respectIng any InfOrmatIOn, matenal, statement or test acqUired, furnIshed, obtaIned, made or receIved under thIS Act or the regulatIOns In Murphy v Domtar Inc [1988] OLRB Rep Feb 262, the Board set forth a three-part test to detenmne when a duly supoenaed WItness would qualIfy for an exemptIOn under thIS statutory prOVISIOn, at p 792 1 He or she must be an Inspector or a person who accompanIes hIm or her, or does certam thmgs at the Inspector's request; 2 The proceedIngs must be a CIVIl SUIt or any "proceedIng", 3 The eVIdence for whIch he or she was subpoenaed must be In respect of any InfOrmatIOn, matenal, statement or test acqUired, furnIshed, obtamed, made or receIved under the OccupatIOnal Health and Safety Act or regulatIOns In thIS matter, It IS undIsputed that Ms Suhr and Ms eastle are Health and Safety Inspectors under OSHA. There IS also no dIspute that thIS arbItratIOn IS a "proceedmg 1 , under the Crown Emplovees Collective Bargaining Act, and thus a proceedIng" wIthIn the meanIng of ArtIcle 63(3) of OHSA. Further, I conclude that the statements Mr Massa allegedly made to the Inspectors were receIved by them m connectIon WIth theIr dutIes as Inspectors under OHSA. ThIS conclUSIOn IS based on the eVIdence In the record - the gnevor s response to the Employer s December 8 1996 notIce of mtended dISCIplIne (Ex 37) whIch In my VIew may constItute an exceptIOn to the hearsay rule and the testImony of Manager McDowell about hIS conversatIOn wIth Inspector Suhr (whIch IS claSSIc hearsay) The eVIdence shows that Mr Massa went to the MInIstry of Labour Health and Safety Inspectors In theIr offiCial capacIty as Inspectors HIS complaInts and the statements he made to them were receIved by the Inspectors m theIr offiCial capacIty under the Act. It may well be at the end of the day, that they had no jUnSdIctIOn to address the complamts he raIsed, but they stIll receIved the InformatIOn he presented and hIS statements as part of theIr dutIes and responsibIlItIes as Inspectors under the Act. ThIS IS not a case of "general InfOrmatIOn" as occurred In Re Durham (Regional Municlpalzty) and CUP E. Local 7785 (1990) 11 L.A.e (4th) 161 (Kates), and It IS dIstmgUIshable from that case on thIS baSIs. That IS not the sItuatIOn here Rather It IS more akIn to the SItuatIOn In Strong v General Motors of Canada Ltd [1984] OLRB Rep Mar 459 In that case the complaInant alleged that he was dIscharged for purSUIng health and safety concerns and sought to compel the testImony of a health and safety Inspector as to statements allegedly made by supervIsors to the Inspector after he 2 completed hIS tests The complamant asserted that the statements dIsclosed management s bIas agamst hIm and the true motIVatIOn for hIS dIscharge The Board held at p 264 that "[t]he alleged statements by supervIsory personnel clearlv fall wIthm the ambIt of statements receIved under the Act." The Board further rejected other InformatIOn that the complamant wanted the mspector to testIfy about, such as meetIng dates and tImes, who was present and how the mvestIgatIOn was InItiated, concludIng that all of that InfOrmatIOn would not have been acqUIred "but for the fact that he was on companv premIses performmg one or more of hIS vanous functIOns under the Act The same conclusIOn applIes here The statements made by the gnevor to the Inspectors would not have been made to them "but for" the fact that they were performIng their functIOns under the Act. As a result, all of the cntena for the exemptIOn under SectIOn 63(3) of OSHA have been met. In so rulmg, I have fully considered the arbItratIOn polIcy concerns raIsed In Re Durham, supra, and I am sensItIve to the dIfficultIes that not allowmg the Inspectors to testIfy may present to the Employer Despite the appeal that the Re Durham approach offers and the urge to admIt all relevant eVidence I find the OLRB cases to be more on pOInt under the facts of thIS case AccordInglv, for the reasons set forth above, I conclude that the Inspector s are not compellable under SectIOn 63(3) of OSHA 3 Issued thIS 4th day of March, 1999 m Toronto <' MUUll ~. / VZ (- Randl Hammer Abramskv 4