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HomeMy WebLinkAbout1997-2033.Massa.99-03-04EMPLOY& DE LA COURONNE DE L’ONlARlO COMMISSION DE SE-I-I-LEMENT RkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST. SUITE 600, TORONTO ON MSG 128 TELEPHONE/l-tiLiPHONE : (416) 326-1388 160, RUE DUNDAS OUEST; BUREAU 600, TORONTO (OM h45G 128 FACSIMILElThhZOPIE (416) : 326-1396 GSB # 2033197, 0384198, 0385198 OLB # 002/98, 235/97,413/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER FOR THE THIRD PARTY HEARING March 3,1999 Before THE GRIEVANCE SETTLEMENT BOARD Ontario Liquor Boards Employees’ Union (Joseph Massa) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Randi H. Abramsky Larry Steinberg Counsel, Koskie Minsky Barristers & Solicitors Vice-Chair Michael G. Sherrard Counsel, Ogilvy Renault Barristers & Solicitors Bruce Arnott Ministry of Labour Inspectors Legal Services Branch Grievor Employer ORDER The Employer’s motion to compel the testimony of Health and Safety Inspectors Suhr and Castle is denied. 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 Ontario Health & Safety Act (OHSA). Section 63(3) of OHSA states as follows: An inspector or a person who, at the request of an inspector, accompanies 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 Coroners Act, respecting any information, material, 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 determine 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 certain things 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, material, statement or test acquired, furnished, obtained, made or received under the Occupational Health and Safety Act or regulations. In this matter, it is undisputed that Ms. Suhr and Ms. Castle are Health and Safety Inspectors under OSHA. There is also no dispute that this arbitration is a “proceeding” under the Crown Employees’ 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 in connection with their duties as Inspectors under OHSA. This conclusion is based on the evidence in the record - the grievor’s response to the Employer’s December 8, 1996 notice of intended 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 in their official capacity under the Act. It may well be, at the end of the day, that they had no jurisdiction to address the complaints 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 MunicipaZity) and C. U P.E. Local 7785 (1990), 11 L.A.C. (4’h) 16 1 (Kates), and it is distinguishable 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 completed his tests. The complainant asserted that the statements disclosed management’s bias against him and the true motivation for his discharge. The Board held at p. 264 that “[tlhe alleged statements by supervisory personnel clearly fall within the ambit of statements received under the Act.” The Board further rejected other information that the complainant wanted the inspector to testify about, such as meeting dates and times, who was present and how the investigation was initiated, concluding that all of that information would not have been acquired “but for the fact that he was on company premises performing one or more of his various functions under the Act.” The same conclusion applies here. The statements made by the grievor 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 criteria for the exemption under Section 63(3) of OSHA have been met. In so ruling, I have fully considered the arbitration policy concerns raised in Re Durham, supra, and I am sensitive to the difficulties that not allowing 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. Accordingly, for the reasons set forth above, I conclude that the Inspector’s are not compellable under Section 63(3) of OSHA. Issued this 4th day of March, 1999, in Toronto.