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HomeMy WebLinkAbout2012-4451.Rouatt.13-04-02 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-4451 UNION#2013-0546-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Rouatt) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Len Hatzis Ministry of Government Services Labour Practice Group Deputy Director of Labour Practice Group HEARING March 27, 2013. - 2 - Decision [1] This case was argued on the basis of the written declarations (and documents attached thereto) filed by the parties in support of their positions in relation to the union’s application for interim relief. The union filed a declaration prepared by Michael Rouatt (the “grievor”), who is employed in the Ministry of Labour (“MOL”) as an Occupational Health and Safety Inspector (“inspector”) under the Occupational Health and Safety Act (“OHSA”). The grievor holds an appointment as inspector under s. 6 of OHSA and is also designated as a Provincial Offences Officer pursuant to the Provincial Offences Act. [2] In its response to the application, the employer filed a declaration prepared by Jody Young, the Regional Director, Central West Region, Occupational Health and Safety Branch, Operations Division, Ministry of Labour. [3] There were few, if any, salient facts in dispute between the parties and neither party specifically challenged the facts asserted in the other’s filings. In addition, there were a number of further facts stipulated by the union without objection from the employer. I now set out the essential facts. [4] In his capacity as an inspector and as a result of safety violations he observed on a field visit, the grievor, on or about May 12, 2009, issued order(s) against a retail food store (the “store”). These included an order that items stored on the top of a freezer be removed as they presented a hazard to workers. Several weeks later, in August 2009, there was a tragic accident at the store, which resulted in the death of a worker, who fell through a drop ceiling while removing materials from the area. [5] The estate and family of the deceased worker have launched a civil action naming, among others, the Crown as defendant. The action alleges negligence by the Crown in its enforcement of OHSA’s safety requirements and its inspection of the store. The store has apparently asserted that the accident occurred in the course of its attempts to comply with the grievor’s order. The grievor is not named as a defendant in the civil action. It is common ground between the parties before me that, under OHSA, while the grievor is - 3 - insulated from any personal liability for his conduct as an inspector, the Crown can be found vicariously liable for that conduct (see s. 65 of OHSA). [6] The employer, pursuant to its right under s. 8 of the Proceedings Against The Crown Act (“PACA”), has designated the grievor as its agent to attend and be examined in the civil action discovery process. The grievor has, under protest, participated in some of the preparatory work in anticipation of the discovery, currently scheduled to be held on April 3, 2013. He has made it clear to his employer, however, that he does not wish to be proffered as the Crown witness at discovery. Indeed, he has expressed the view, which is at the heart of the dispute between the parties, that, pursuant to s. 63(3) of OHSA, his employer cannot compel him to give evidence in the discovery proceedings. The OHSA section provides: 63(3) 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. There were discussions between the parties (including between counsel at the Crown Law Office – Civil and the union’s General Counsel) to address the grievor’s concerns. The matter was not resolved and by letter dated February 20, 2013, Ms. Young reiterated the employer’s expectations of the grievor. The letter concluded as follows: It has been the Ministry’s intention, as evidenced through the actions that have been taken to date, to support you and alleviate, where possible, any concerns you have. However, I am confirming with you that, as a public servant, you are required to follow the Employer’s direction, which in this case is to fully co-operate and participate in meetings with CLOC counsel to prepare for the discovery proceeding as counsel may require, the discovery itself and any other proceedings connected with the civil action as a witness on the Crown’s behalf. As a result, I am directing you to attend the office at 9:30 am located at 1290 Central Parkway West, 3rd Floor, Mississauga on Friday, February 22nd, 2013 to meet with CLOC counsel, Chantal Blom, and her associate to begin the preparation for your attendance at the discovery scheduled for April 3, 2013. While I appreciate that you are finding this process stressful, I need to advise you that failure to attend this meeting at the appointed time will be viewed as insubordinate conduct on your part, and accordingly may result in disciplinary action up to and including dismissal. - 4 - Two days later, a grievance was filed on behalf of the grievor. The Statement of Grievance reads as follows: I grieve that the employer is in violation of article 2, 3, 9, and 21 of the Collective Agreement and the Occupational Health and Safety Act sections 2, 50, 63(3) and any other related article or section by forcing me, on threat of discipline, to testify at a civil proceeding that I am not compellable by law to testify at. The employer has used intimidation, coercion and threats of discipline and dismissal while I have acted in compliance with and sought enforcement of the Occupational Health and Safety Act. [7] On March 14, 2013 the union filed an application for interim relief with this Board, seeking “an interim order suspending the Employer’s direction that Inspector Michael Rouatt … be compelled to testify in the civil proceeding [i.e. at the examination for discovery] … pending an adjudication of the grievance dated February 22, 2013”. [8] That application was set down for hearing on March 27, 2013 before me. I had the opportunity to review the parties’ filings before the scheduled hearing date. It appeared to me, on the basis of my preliminary review of those materials, that it was largely legal questions and not facts which separated the parties. As a consequence, in a communication to counsel, through the Registrar, I suggested that the parties might wish to consider proceeding directly to a hearing of the merits of the grievance rather than simply dealing with the interim application on the scheduled hearing date. [9] When the parties attended at the Board on the appointed day, it appeared that suggestion had found favour with them, subject to their shared desire that a decision (perhaps even in the form of a “bottom-line” award) could issue prior to the scheduled discovery date (i.e. by April 2, 2013, the second Board working day following the hearing). [10] However, it also appeared that there was some basis for hope that the parties might be able to resolve the matter. The parties then proceeded to enter into settlement discussions. Unfortunately, these discussions were ultimately (and by “ultimately”, I mean sometime after 4PM) unsuccessful. Thus, the parties were ready to commence the formal hearing at a - 5 - time much closer to the usual end rather than start time of hearings at the Board. The parties continued to be content with the potential economy of proceeding on the merits of the grievance rather than the interim application (thus disposing of the need to deal with a number of issues unique to the latter). However, it quickly became apparent that this agreement, such as it was, resulted in a further issue between them. [11] While the parties were ad idem with the concept of proceeding on the merits, they did not agree on the procedural manner through which to accomplish that shared objective. The union asserted that the matter ought to be dealt with in accordance with the Mediation/Arbitration (“med-arb”) Procedure contemplated under Article 22.16 of the collective agreement. For its part, the employer was prepared to adopt virtually all of the procedural hallmarks of the med-arb process, save Article 22.16.7, which contemplates that decisions under this process “shall have no precedential value”. In effect, the employer was asserting that, notwithstanding its agreement to an expedited process, the matter should be considered as a “regular arbitration” (see, for example Article 22.16.6) and the decision should therefore have all of the precedential value normally associated with an arbitration (as opposed to a med-arb) decision. [12] Despite this disagreement, neither party argued that the late emergence of this procedural issue vitiated or otherwise compromised their agreement to proceed on an expedited basis and when the hearing did proceed and on agreement of the parties, no viva voce evidence was called and the merits of the grievance were, as already indicated, argued solely on the basis of the parties’ written materials and a few additional stipulated facts. The parties thus left to me the question of whether these proceedings should be considered a med-arb or a “regular arbitration” process. [13] Among the factors pointed to by the employer was the fact that the grievance alleged, inter alia, a violation of Article 3 of the collective agreement, which deals with discrimination. And Article 22.16.6 requires that grievances dealing with “human rights” are to proceed through the regular arbitration process. The union, however, promptly countered that it was in agreement with the employer’s pleadings to the extent that they asserted that there are no facts in the grievor’s declaration or the union’s written submissions to substantiate any - 6 - claim of a violation of Article 3 of the collective agreement. The union thus withdrew its grievance insofar as it made any such claim. [14] I am satisfied that the instant proceedings are and must be viewed as having been dealt with through a med-arb process. Although, in this Vice-Chair’s experience, the parties frequently, by express (or even perhaps implied) consent, proceed differently, the “default” dispute resolution process under the parties’ collective agreement is med-arb. There is a clear disagreement between the parties here as to how to characterize the instant proceedings, chiefly, if not exclusively, with a view to what the precedential value of this decision will be. The (real) subject matter of the case does not bring it into the exceptional types of cases contemplated by Article 22.16.6. And even if it might be suggested that (what is little more than a passing) reference to Article 3 brings the case within the exceptions, the union has withdrawn its claim under that article. [15] Thus, the precedential value of my decision in this case is governed by Article 22.16.7. [16] The hearing, which commenced after 4PM on March 27, 2013, proceeded and continued until after 10PM that night. A med-arb decision is required by Article 22.16.2 to be “succinct”. I am mindful of the real time pressures in this case and the parties’ shared desire to know the result before April 3, 2013. I am also grateful for the spirited and robust presentation of counsel in this matter. I am therefore making every effort to balance the expedition of the succinct with an appreciation and acknowledgement of the detailed submissions of counsel. [17] The employer raises a number of jurisdictional objections to this Board’s capacity to deal with the instant matter. [18] First, and to the extent that the grievance relies on Article 2, the “management rights” clause, it is asserted that unless some other violation of the collective agreement is asserted and proved there can be no violation of Article 2. Second, and to the extent the grievance asserts a violation of Article 9 (Health and Safety), no case is made out. Third, and to the extent the grievance relies on the just cause provision of the collective agreement, the - 7 - employer’s impugned conduct consists of threatening to discipline the grievor. The threat of discipline is not, in and of itself, discipline. The grievor can certainly rely on this article if and when discipline is imposed, but none has and the grievance is therefore, at its highest, premature. The employer also argues that this Board has no jurisdiction over the grievor’s complaint that he has suffered a reprisal, i.e. been threatened with discipline contrary to OHSA. [19] I am constrained to observe that I have found some of these submissions troubling or, at least, surprising, in particular the submission regarding the threats of discipline not being amenable to this Board’s jurisdiction. My surprise is perhaps more rooted in labour relations considerations than strict legal ones. Indeed, there is some legal authority for the position the employer advances (see OPSEU (Halsall) v. Ontario (OMAFRA), GSB No. 2007-1045 (Briggs). There is, however, something unsettling in the employer’s assertion that the only way the grievor can have his position vindicated or even considered is to disobey the employer’s orders, be disciplined and then grieve. Indeed, employer counsel asserted that if the grievor opted to obey the employer’s order and grieved later, he would still, in the employer’s view, be precluded from a determination because the grievance would not engage any provision of the collective agreement. This is a surprising position for the Ministry of Labour to adopt in the circumstances of the present case. [20] While, as will become evident, I do not agree with the grievor’s interpretation of the OHSA provisions in issue, it is neither a frivolous nor fanciful claim that he advances. It raises a legitimate concern. And, based on the materials filed by the employer regarding other existing and possible future civil litigation against the Crown, it is an issue which may well arise again. It is difficult to conceive of a more responsible or less disruptive manner for the grievor to have sought a determination as to his asserted rights. In fairness, my surprise at the employer’s efforts to preclude a determination of a significant interpretive issue is somewhat tempered by the union’s ultimate insistence that this be a decision without precedential value. I have already, however, determined the soundness of the union’s legal position in that regard. I turn now to the employer’s jurisdictional issues. - 8 - [21] First, I agree with the employer that the facts asserted by the union fail to disclose any case of a violation of Article 9 of the collective agreement. Thus, and to the extent it alleges such a violation, I would be prepared to dismiss the grievance on a preliminary basis. Such a ruling, however, has little effect on the union’s case as, in the hearing before me, no significant reliance was placed on that article. [22] I am not prepared to accept the employer’s submissions with respect to the management rights clause – certainly not to the extent that I would dismiss the grievance on a preliminary basis. Again, the employer’s position is not without legal support in the jurisprudence of this Board (see for example Halsall, cited earlier, and OPSEU (Seguin et al) v. Ontario Science Centre, GSB No. 2010-1025 (Briggs) and the cases cited therein). Indeed, there is no lack of occasions on which this Board has dismissed alleged violations of the management rights clause where no other protected collective agreement right is involved. It remains unclear to me, however, that this necessarily means the employer can conduct itself in an arbitrary, discriminatory or bad faith manner without fear of any possible review by this Board. And captured within that formulation might well be situations in which the employer’s conduct is, or at least is asserted to be, unlawful, particularly where the illegality can be grounded in the provisions of an employment related statute. In the present case, the union alleges that the employer’s direction and threat each conflict with different sections of OHSA. Regardless of the ultimate soundness of the claim, this is not a matter to be dismissed on a preliminary basis. [23] Similar considerations apply to the employer’s position rooted in the fact that the grievance is filed in relation to the mere threat of rather than actual discipline. Despite the authorities relied upon by the employer, none of the cases referred to involved situations where the impugned employer direction or the threat of discipline was, in and of itself, alleged to be unlawful. The grievor is entitled to the protection of the OHSA as a worker. Section 50 of OHSA provides (in part): 50(1) No employer or person acting on behalf of an employer shall, … (b) … threaten to discipline or suspend a worker; (c) impose any penalty upon a worker; or (d) intimidate or coerce a worker, - 9 - because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act. [24] The grievor was, in this case, clearly seeking enforcement of the Act. And while his interpretation of the Act and, in particular, section 63(3) thereof is (as will be seen) not one that I share, there is no doubt in my mind that it was a reasonable and reasonably held view of the legislation. I am also drawn to the soundness of the various authorities relied upon by the union (chief among them, the well known “lights and sirens” case, see Toronto (Metropolitan) v C.U.P.E., Local 43, (1990) 74 O.R. (2d) 239 (C.A.)). There are clearly circumstances, particularly, though not necessarily restricted to those where an employer’s order gives rise to health and safety concerns or issues regarding the very legality of the order, that have led arbitrators to offer decisions almost in the nature of advance rulings. There are clearly circumstances where it would be unnecessarily onerous to subject grievors to the risks that may attend safety concerns or other unlawful conduct. Indeed, as I believe it would be in the instant case, it is frequently in the interest of both collective bargaining parties to have rulings on legal questions before the need for the actual imposition of discipline arises. [25] I am not inclined to dismiss the grievance, on a preliminary basis, on the ground that it complains of threatened rather than actual discipline. [26] Finally, and as is evident from my consideration of the reprisal provisions of OHSA above, I have not accepted the employer’s assertion that this Board cannot entertain the grievor’s reprisal complaint. The employer points to section 50(6) of OHSA, which provides: The Board shall exercise jurisdiction under this section when a complaint filed under subsection (2) or a referral made under subsection (2.1) is in respect of a worker who is a public servant within the meaning of the Public Service of Ontario Act, 2006. 2011, c. 11, s. 13 (6). [27] There is no issue that the “Board” as referred to in that section is the Ontario Labour Relations Board (“OLRB”). The employer effectively argues that this section confers exclusive jurisdiction on the OLRB to hear a reprisal complaint from a person such as the - 10 - grievor. The very board, i.e. the OLRB, which the employer asserts has exclusive jurisdiction, has rejected that view (see The Crown in Right of Ontario, [1997] OLRB Rep. July/August 562). So do I. [28] I turn now to the merits. The grievor has been directed to participate in the defense of the Crown defendant in a civil proceeding, in particular to attend and be proffered by the Crown as a witness to be examined in the discovery process. The employer asserts that this is a logical, rational and necessary requirement of the grievor as part of his employment obligations. The grievor claims the benefit of and the ability to invoke the protection of s. 63(3) of OHSA, which provides: 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. [29] If the employer lacks the legal authority, indeed, if it is precluded by law from directing the grievor to attend as its witness at the examination for discovery, then the employer’s direction that the grievor attend and its warning of possible discipline should he not do so are subject to challenge. Thus, the result in the instant case turns effectively on the interpretation and application of s. 63(3) of OHSA. [30] The union’s case is relatively straightforward. No other party to the civil litigation in issue has the power to compel the grievor to testify. The Crown should not be treated any differently simply by virtue of the fact that it is the grievor’s employer. It should not be permitted to hide behind its assertions that it is merely directing the grievor to attend as an incident of the employment relationship. The factual matrix makes it clear that the grievor does not wish to testify. His employer is purporting to compel him to do so. It cannot lawfully do that. The union advances certain policy reasons (to which I shall return) to support its interpretation and the importance of permitting inspectors, not their employer, to determine whether or not to waive the protection of the statute. - 11 - [31] The employer’s position is somewhat more complicated. It is essentially two-pronged. First, in what might be characterized as a technical argument, it asserts that s. 63(3) has no application in the present case because the grievor has not been, is not being compelled to testify, at least not in the manner contemplated and potentially precluded by that section. The employer further asserts that even if that position is rejected, a proper reading of section 63 and the statute as a whole combined with a proper consideration of the relevant policy concerns leads immutably to the conclusion that it is the Crown (as embodied by the Ministry of Labour, the employer in this case) that has the power and the discretion to waive the application of s. 63(3) to one of its inspectors. [32] The first argument hinges on the meaning of “compellable witness”. In the employer’s view, the phrase, as used in s. 63(3), is a legal term of art, its meaning is explained in Sopinka, Lederman & Bryant, The Law of Evidence in Canada at p. 885: 13.43 A compellable witness is one who may be forced by means of a subpoena to give evidence in court under the threat of contempt proceedings should he or she refuse to comply. And as the grievor is not facing the legal force of a subpoena, he cannot invoke the protection of the statute. [33] The union approaches the issue differently and, reflecting the nature of the dispute between the parties on the point, relies on definitions found in more conventional sources than legal texts. The Concise Oxford Dictionary contains the following entry: Compel … 1 force or oblige to do something. > bring about by force or pressure. … Compellable … Law (of a witness) able to be made to attend court or give evidence. And the Merriam-Webster Dictionary defines a “compellable witness” as “a person that can claim no exemption from testifying in a legal proceeding”. [34] I find this to perhaps be the most difficult of all the questions put before me in this proceeding. It pits the employer’s position, which might be, somewhat unfairly, characterized as a technical literal legal reading of the statutory provision, against the - 12 - approach of the union, which might be characterized as a more purposive reading of the statutory provision. [35] There is no question that the grievor in this case is not being compelled by force of a subpoena or other legal process. There is equally, however, no question that he is being required, indeed, being compelled through the direction of his employer and under threat of discipline that could include dismissal, to provide his evidence and testify in a legal proceeding. [36] If the purpose of the section is to prevent inspectors from being compelled to testify in legal proceedings, it is difficult to see how that objective is obtained if an inspector can be compelled to testify merely because the compulsion does not manifest through the traditional vehicles of the legal process. I accept the union’s purposive reading and reject the employer’s argument that s. 63(3) does not apply simply because the grievor has not been served with a subpoena. [37] I am, however, persuaded that there are much more (not to put too fine a point on it) compelling reasons to conclude that the grievor cannot claim the benefit, protection or immunity conferred by s. 63(3) in the circumstances of this case. This brings me to the final question in this matter which relates not as much to how but rather at whose instance the compulsion operates. [38] In short, the union asserts that the protection offered by s. 63(3) belongs to the class of persons described therein, including the grievor in his capacity as inspector. The employer, while it perhaps did not go quite so far as to say the benefit of s. 63(3) “belongs” to the Crown, clearly advanced the position that the Crown (whether in lieu of or in addition to an inspector) has the capacity to waive any possible reliance on the otherwise non-compellable status of an inspector. [39] The parties’ positions in this final issue require a further consideration of the statute and its policy objectives. The central statutory provisions relevant to the case at hand are the following: - 13 - Information confidential 63. (1) Except for the purposes of this Act and the regulations or as required by law, (a) an inspector, a person accompanying an inspector or a person who, at the request of an inspector, makes an examination, test or inquiry, shall not publish, disclose or communicate to any person any information, material, statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the regulations; Compellability, civil suit (3) 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. R.S.O. 1990, c. O.1, s. 63 (3). Power of Director to disclose (4) A Director may communicate or allow to be communicated or disclosed information, material, statements or the result of a test acquired, furnished, obtained, made or received under this Act or the regulations. R.S.O. 1990, c. O.1, s. 63 (4). It is useful, however, to read those subsections in the context of the entirety of section 63 (and, indeed, the Act as a whole): Information confidential 63. (1) Except for the purposes of this Act and the regulations or as required by law, (a) an inspector, a person accompanying an inspector or a person who, at the request of an inspector, makes an examination, test or inquiry, shall not publish, disclose or communicate to any person any information, material, statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the regulations; (b) Repealed: 1992, c. 14, s. 2 (2). (c) no person shall publish, disclose or communicate to any person any secret manufacturing process or trade secret acquired, furnished, obtained, made or received under the provisions of this Act or the regulations; (d) Repealed: 1992, c. 14, s. 2 (3). (e) no person to whom information is communicated under this Act and the regulations shall divulge the name of the informant to any person; and (f) no person shall disclose any information obtained in any medical examination, test or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case. R.S.O. 1990, c. O.1, s. 63 (1); 1992, c. 14, s. 2 (2, 3) Employer access to health records (2) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent. R.S.O. 1990, c. O.1, s. 63 (2). Compellability, civil suit (3) 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, - 14 - 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. R.S.O. 1990, c. O.1, s. 63 (3). Compellability of witnesses (3.1) Persons employed in the Office of the Worker Adviser or the Office of the Employer Adviser are not compellable witnesses in a civil suit or any proceeding respecting any information or material furnished to or obtained, made or received by them under this Act while acting within the scope of their employment. 2011, c. 11, s. 16. Exception (3.2) If the Office of the Worker Adviser or the Office of the Employer Adviser is a party to a proceeding, a person employed in the relevant Office may be determined to be a compellable witness. 2011, c. 11, s. 16. Production of documents (3.3) Persons employed in the Office of the Worker Adviser or the Office of the Employer Adviser are not required to produce, in a proceeding in which the relevant Office is not a party, any information or material furnished to or obtained, made or received by them under this Act while acting within the scope of their employment. 2011, c. 11, s. 16. Power of Director to disclose (4) A Director may communicate or allow to be communicated or disclosed information, material, statements or the result of a test acquired, furnished, obtained, made or received under this Act or the regulations. R.S.O. 1990, c. O.1, s. 63 (4). Medical emergencies (5) Subsection (1) does not apply so as to prevent any person from providing any information in the possession of the person, including confidential business information, in a medical emergency for the purpose of diagnosis or treatment. R.S.O. 1990, c. O.1, s. 63 (5). Conflict (6) This section prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. 2004, c. 3, Sched. A, s. 93. [40] The union sounds two related themes to support its view that the grievor in this case, as an inspector, ought to be permitted to avail himself of the right to not be compelled to testify in the civil action. First, it notes that inspectors, as office holders, occupy a special type of position that distinguishes them from most public servants. The performance of their office involves independent decision-making and they must therefore be afforded a degree of regulatory independence. Parties who are subject to inspectors’ orders will have an enforceable right to have inspectors’ decisions made as independently as contemplated by the enabling statute (see Hadwen et. al, Ontario Public Service and Employment and Labour Law at p. 281 et. seq.) [41] Related to that concern is the need for inspectors (as others who may perform a mediation function in a labour relations context) to be able to assist parties to reach mediated - 15 - resolutions of their disputes. That requires both inspectors and the parties with whom they deal to engage in frank and candid discussions. To the extent that parties may be concerned that their statements and the discussions with an inspector will become the stuff of future litigation, this will inhibit the free and frank discussions required to effect the objects of the statutory regime. (On this point, see General Motors, [1984] OLRB Rep. March 459 at para. 6.) [42] As will be seen, however, this has not resulted in an absolute absence of inspector testimony in legal proceedings, particularly in those that may, themselves, be seen as enforcement of the Act. Indeed, if insulating the inspector from ever having to testify was the object, the Legislature could easily have obtained that goal by simply deeming inspectors to not be competent to do so. Inspectors’ legislatively undisturbed competence has had both purpose and effect. [43] Both parties referred to and relied upon the formulation of the Court of Appeal regarding the interpretive approach to be taken to OHSA: The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purpose and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided. (See Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 at para. 16.) [44] But while this interpretive approach, which I, like the parties, accept, may aid the union in responding to the employer’s argument regarding “compellable witness” as a term of art, it is less clear to me that it assists the union in this branch of the case. [45] The employer asks me to consider the interpretation of s. 63(3) in the context of the purposes and objectives of the Act and, for the reasons that follow, I am persuaded that such an approach favours the employer’s interpretation. - 16 - [46] First, the union points to s. 63(1)(a) and its prohibition on the disclosure of information as a provision the employer seeks to require the grievor to breach by proffering evidence in the civil case. But there is no issue between the parties that a Director may undo the prohibition found in 63(1) by the exercise of the discretion conferred by section 63(4). Thus, there is no issue that the Director may lawfully choose to disclose any and all relevant documents, including those that may have been authored by the grievor. But, argues the union, s. 63(4) in no way qualifies or diminishes the non-compellability of the grievor as contemplated by s. 63(3). [47] I do note, however, that the wording of 63(4) is broad – it not only permits the director to communicate (i.e. directly) information etc., but also to allow that same information to be communicated or disclosed. The supplemental use of the passive voice arguably supports an interpretation that would include the capacity to direct an inspector to communicate or disclose information in a legal proceeding. [48] The employer asserts a myriad of reasons why having the grievor testify makes good litigation sense, including, but not limited to, the fact that the grievor is the only Ministry official with first hand knowledge of the events in question. The union did not dispute that or any of the other reasons asserted by the employer as to why having the grievor testify makes good litigation sense. [49] In that context, the employer urges that, reading the section and the Act as a whole, it must be inferred that the privilege against being required to testify is one that resides and should be seen to reside not in the grievor personally but, rather, is one that the Crown may choose to waive. [50] There is no lack of instances where inspectors have testified in legal proceedings; a number of cases were referred to (typically involving appeals of inspector orders; one might expect similar occurrences in prosecutions under OHSA). This, however, is a case of first impression and the nature of the privilege from the perspective required in the instant case was not explicitly addressed in any of those cases. None of the cases involved (potential) - 17 - testimony in a civil action, certainly not one where the Crown was a named defendant. But while those cases provide little, if anything, by way of legal authority to assist us, I do note that there are formulations in a number of them that are more consistent with the employer’s approach here. I refer to those cases more in the nature of a reference to “empirical data” than legal authority. [51] A number of the cases appear to contemplate circumstances where it is a Ministry official (i.e. a Director) other than the inspector who “waives” the “privilege”. Perhaps the best example is found in Boeing Canada/DeHavilland Division, [1989] OLRB Rep. Dec. 1213 (a case in which the Crown was not a party). In that case the OLRB was surprised that an inspector was being called to testify in a case of an alleged reprisal contrary to OHSA but, accepting his competence to do so and the Ministry’s explanation, permitted the evidence to be heard. The decision includes the following description (at para 4 et seq.): Counsel for the Ministry of Labour and the Occupational Health and Safety Branch stated that the privilege under section 34(2) [identical, for our purposes to the current s. 63(3)] of the OHSA was being waived and Harkins [the inspector] had been instructed to attend the Board proceedings and testify. He indicated that the Ministry had made a policy decision, that given Harkins’ involvement, no other witness but Harkins could testify to those events and the Ministry wished to assist the parties by making Harkins available … Specifically, the Director had authorized Harkins to testify, pursuant to section 34(3) [now 63(4)] of the OHSA. [emphasis added] [52] The employer’s position, in essence, is that decisions regarding the conduct of litigation affairs (whether an appeal of an inspector’s order or, as here, the conduct of civil litigation which relate to the administration of the Act) should be within the competence and control of the Ministry not individual inspectors. In that context, the discretion conferred upon a Director under s. 63(4) must be read to include the ability to waive the privilege conferred by section 63(3). And a good faith exercise of that discretion ought not to be interfered with. [53] There is no doubt (as the Position Description for inspectors attests) that “giving evidence in court” and “acting as an agent of the Ministry in court proceedings” form part of an inspector’s essential job duties. And while that may occur more often in cases of appeals of - 18 - inspector’s orders or prosecutions under the Act, accepting the union’s position in the instant case would mean that inspectors have an unassailable right to simply refuse to proffer evidence in any such proceedings. Such a result cannot possibly be seen to be consistent with the enforcement or legislative goals of OHSA. The civil proceeding which gives rise to the instant dispute is undoubtedly different from the typical proceeding in which inspectors participate. However, it is one where the proper enforcement of the Act is clearly being called into question (though it was not suggested by anyone before me that the grievor’s order was ever the subject of an appeal). [54] I am sympathetic to the union’s urgings for the protection of inspector neutrality/independence but I note there is no specific allegation in the instant case of any bad faith or otherwise improper effort to inhibit the scope of inspector neutrality/independence as it may have been exercised here (contrast the case referred to by the union where impugned motives may have led to a Ministry effort to undo a prior determination/communication of an Employment Standards Officer). Such concerns might be more likely to arise in a situation where the employer might be directing an inspector to NOT testify or in a case where the (otherwise indivisible) Crown had a dual capacity as the employer (for example with respect to a correctional facility) subject to an inspector’s order AND as the MOL responsible for the administration of OHSA. But in the present case there would appear to be a significant overlap as between the interests of the grievor and his employer – the Ministry appears to be defending a challenge to the integrity of the grievor’s order. [55] The employer is a defendant in a civil proceeding. No other party to that proceeding can compel the grievor’s testimony. The employer, however, in its capacity as defendant has several interests that must guide its conduct. Included in those is how it responds to allegations that impugn the integrity of the inspection process. To deprive it of the ability to make good faith decisions about its litigation strategies is to deprive it of one of its paramount legislative objectives, i.e. to maintain and protect the integrity of OHSA regime. [56] For all of these reasons, I am not persuaded that there was any impropriety or illegality in the employer’s impugned direction to the grievor. A reading of s. 63(3) in the context of - 19 - the entire section (and particularly s. 63(4)), the entire Act and its objectives, leads me to conclude that the employer has and properly exercised the discretion to waive the privilege set out in section 63(3). [57] The grievance is dismissed. Dated at Toronto this 2nd day of April 2013. Bram Herlich, Vice-Chair