Administrative law — Judicial review — Standard of review — Reasonableness — Patent unreasonableness — Civil evidence — Witnesses — Compelling attendance by subpoena — Subpoena duces tecum — Labour law — Labour relations boards — Judicial review — Jurisdiction — Procedure.
Appeal by Wal-Mart from a judgment of the Saskatchewan Queen's Bench, which quashed two interim orders of the Saskatchewan Labour Relations Board. The United Foods and Commercial Workers had applied to the Board to be certified as the representative of certain employees of Wal-Mart. Some of these employees filed unfair labour practice applications against the Union, alleging that it had attempted to coerce them into joining the Union. Prior to commencing the hearing, the Board issued a subpoena duces tecum requiring Wal-Mart to attend the hearing and bring with it certain documents, including one entitled AWal-Mart: A Manager's Toolbox to Remaining Union Free@. The Union argued that these documents were relevant to whether the employees who brought unfair labour practice applications had been influenced by Wal-Mart. Wal-Mart brought a motion for an order setting aside the Board's orders. The judge set aside the orders on the basis that they amounted to a discovery of documents or an examination for discovery, which were beyond the powers of the Board to require. The judge also held that the Board abused its powers by compelling the production of irrelevant documents.
HELD: Appeal allowed. Determining the relevance of evidence was a matter within the Board's exclusive jurisdiction. Given the specialized nature of the Board, the expertise of its members and the strong privative clause protecting its decisions, the standard of review for decisions regarding the relevance of evidence was patent unreasonableness. The Board's decision in this regard was reasonable. The judge failed to distinguish between disclosure, production, discovery and admissibility of documents, all separate matters. He also confused examination for discovery with cross-examination of a witness during a Board hearing. Characterizing the cross-examination of a witness as an examination for discovery and discovery of documents was contrary to the plain meaning of s. 3 the Public Inquiries Act, which empowered the Board to require witnesses to give evidence under oath and to produce documents. There was no basis upon which the judge could find that the Board acted improperly in issuing the subpoena. The orders in this case were not made prior to a hearing on the merits, and therefore could not be characterized as either a discovery of documents or an examination for discovery.
Statutes, Regulations and Rules Cited:
Canada Labour Code, R.S.C. 1970, c. L-1, s. 118(a).
Canadian Charter of Rights and Freedoms, 1982, s. 1.
Public Inquiries Act, R.S.S. 1978, c. P-38, ss. 3, 4.
Saskatchewan Queen's Bench Rules, Rules 305, 306, 669.
Trade Union Act, R.S.S. 1978, c. T-17, ss. 4(6), 9, 18.
Counsel:
Drew S. Plaxton for the Appellant
John Beckman, Q.C. and Richard Elson for the Respondent
Melanie Baldwin for the Labour Relations Board
Michael Nolin watching brief only
THE COURT:—
I. OVERVIEW AND ISSUES
¶ 1 This appeal is from a Queen's Bench judgment which quashed two interim orders made by the Saskatchewan Labour Relations Board requiring the production of certain documents during the course of hearing a certification application and several related unfair labour practice applications. It concerns the scope of the powers of the Board to compel a witness to produce documents. The judge set aside the orders of the Board on the ground that they amounted to a "discovery of documents" or an "examination for discovery", something beyond the power of the Board to require. He further found that the Board abused its powers in that it had required the production of documents irrelevant to the proceedings before it.
¶ 2 The relevant powers of the Board are granted to it by s. 18 of The Trade Union Act, R.S.S. 1978, c. T-17, and ss. 3 and 4 of The Public Inquiries Act, R.S.S. 1978, c. P-38, which are as follows:
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18 The board and each member thereof and its duly appointed agents have the power of a commissioner under The Public Inquiries Act and may receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it may deem fit and proper whether admissible as evidence in a court of law or not. |
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3 The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire. |
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4 The commissioners shall have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. |
These sections have been judicially interpreted in Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 S.C.R. 724, (hereinafter referred to as CALPA); Pyramid Electric Corp. v. International Brotherhood of Electrical Workers, Local 529 (1999), 185 Sask.R. 82 (Sask. Q.B.), affirmed (2000), 199 Sask.R. 1 (Sask. C.A.), (hereinafter referred to as Pyramid No. 1); and Pyramid Electric Corp. v. International Brotherhood of Electrical Workers, Local 529 (2001), 208 Sask.R. 118 (Sask. Q.B.), affirmed (2002), 223 Sask.R. 70 (Sask. C.A.), (hereinafter referred to as Pyramid No. 2). The main issue is whether the chambers judge correctly interpreted the statutes and these judgments and properly applied them to the case before him.
¶ 3 Since the impugned orders of the Board were made on the foundation of a subpoena duces tecum issued by the Board, a related issue concerns the powers of the Board to issue such a subpoena and the extent of the obligations of the party or person to whom the subpoena is directed to search for and find the documents.
¶ 4 Underlying all of the issues is the question of the standard of review to be applied by a court when undertaking a judicial review of the orders made by the Board.
¶ 5 Some incidental or subsidiary issues are whether:
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The factum filed by the Board, in presenting an argument defending the reasonableness of its decision, went beyond the usual limits of its right to make representations, that is, to speak to the question of jurisdiction; and 2. The transcript of the proceedings and evidence before the Board was properly admitted into evidence as a part of the record. |
II. THE FACTS
¶ 6 The Union applied to the Board for an order certifying it to be the representative of certain employees of the employer for the purpose of collective bargaining and requiring the employer to bargain collectively with the Union with respect to those employees. The employer filed a reply stating that the bargaining unit applied for was not an appropriate unit. In addition, a group of employees filed a reply opposing the application and filed with it a petition signed by some employees in the proposed unit opposing the application. Some of these employees filed unfair labour practice applications, claiming the Union had used threatening, intimidating or dishonest conduct in attempting to coerce them into joining the Union. The Union filed replies to the employees' applications alleging that they were made as a result the influence or interference or intimidation by the employer and that the applications should be dismissed under the authority of s. 9 of The Trade Union Act. The Board directed that all of the applications be heard at once.
¶ 7 Prior to the commencement of the hearing, the Board, at the request of the Union, issued a subpoena duces tecum directed to the employer corporation requiring it to attend at the hearing and to bring with it certain documents. Some documents had to do with the appropriateness of the unit applied for and others with employee records required to determine which employees formed a part of that unit. These items are not in contention in this appeal. However, the employer objected to the requirement to produce other documents listed in the subpoena as follows:
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The document entitled "Wal-Mart: A Manager's Toolbox to Remaining Union Free" and any similar documents evidencing communications from the corporation to its managers, including all revisions, extracts and related versions of same or similar communications and all notes, memoranda and other communications passing between the employer and its managers concerning trade unions and unionization; |
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Produce the "Wal-Mart Associate Handbook" and any similar documents evidencing communications from the corporation to its employees, including all revisions, extracts and related versions of same or similar communications and all notes, memoranda and other communications passing between it and employees which touch on the matters of trade unions and unionization; |
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Communication entitled "To the new Wal-Mart Associate" and all other information given to new hires; |
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Corporate Policy CPD-42, as referred to in the said Associate Handbook and any replacements, modifications or substitutions for same; |
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Corporate Policy COP-08, as referred to in the said Associate Handbook and any replacements, modifications or substitutions for same; and |
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All and any communications between the employer, its managers and others concerning the "Store within a Store" method of management and any similar or other policies or strategies concerning management operations and other documents concerning the powers and duties of department managers. [Appeal Book, p. 50a] |
The Union argued that these documents were relevant to whether the employee applications had been influenced by the corporation contrary to s. 9 of The Trade Union Act.
¶ 8 At the commencement of the hearing of the applications on their merits on May 7, 2004, the employer objected to the scope of the subpoena and the use to which it was being put, claiming that it was overly broad, sought material not relevant to the issues, and was nothing less than a "fishing expedition." On May 21, 2004, the Board ruled, in writing, as follows:
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With respect to items 7, 8, 9, 10, 11 and 12, given that issues have been raised with respect to employer influence or interference and the status of department managers, we are of the opinion that the Employer shall produce the following documents: "Wal-Mart a Manager's Toolbox to remaining Union Free"; the current "Wal-Mart Associate Handbook"; the document entitled "To the New Wal-Mart Associate" and other documents provided to newly hired employees; Corporate Policies CPD-42 and COP-08 as referred to in the Wal-Mart Associate Handbook; documents and communication to employees regarding trade unions or unionization; documents regarding the operational status of store departments and the concept of a "Store within a Store." |
¶ 9 The hearing continued on May 25 and 26, and on June 10, 11 and 24. The Union closed its case upon the understanding that the employer would call a witness, Bev Ginter, who could speak for the employer in respect to production of the documents required by the subpoena and subsequent Board order. The employer called Ms. Ginter. After cross-examination of Ms. Ginter, the Union asked for production of additional documents. The Board ruled in its favour. The substance of its decision, as recorded in the transcript of the hearing on June 24, was as follows:
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That being said, Ms. Ginter will be directed to determine whether the - let me get the exact documents here - the manager's toolbox document, Sam's club supervisor document, the labour relations of the Wal-Mart Distribution Centre, number 6022 document do exist in Canada and are within the knowledge of the managers in Canada. She will also determine - she will also find the grassroots survey form. I don't think that it's relevant as to what the results of the survey is, but given that there are appropriate testimony about questions on there directed to determining employee morale and this specific employee morale could include such things, from the manager's point of view, as union activity in the workplace. The form itself should be - should be produced. The results, as I said, are not important and don't have to be produced. She should make production of the hotline - the morale hotline, cards given to assistant managers and doing a check and make sure that other documents that exist are internal with respect to the hotline. The next item was the PowerPoint presentation for the assistant managers (INAUDIBLE) matters of unionization. And I believe the final item, subject to correction, is the - whether the document "You and Your Labour Relations, What a Wal-Mart Supervisor Should Know about Labour Unions" - whether that document exists in Canada, unless as proposed there's no Canadianized form of the document, that doesn't mean the document isn't used here or is in use here or it's in summarized form. Is there anything I haven't covered? Then that's your -- [Appeal Book, pp. 203a - 205a] |
¶ 10 The employer then brought a motion in the Queen's Bench for an order setting aside the Board's orders of May 21, 2004 and June 24, 2004. It also asked that s. 9 of The Trade Union Act, which authorizes the Board to dismiss any application made to it by employees where it is satisfied that the application is made in whole or in part on the advice of, or as a result of or interference or intimidation by, the employer or employer's agent, be declared to be unconstitutional as an infringement of the employer's right to freedom of expression set out in s. 2(b) of the Charter of Rights and Freedoms.
¶ 11 The judge quashed the orders of the Board as requested by the employer. The Union appeals against this part of the decision. The judge declined to decide the constitutional question as being premature. No appeal has been taken against this part of his decision, although the Union has taken exception to some remarks made by the judge expressing opinions on the matter he expressly decided was not appropriate for him to rule upon.
III. APPLICATION FOR FRESH EVIDENCE
¶ 12 The Union filed an application to adduce fresh evidence on the appeal. The Court determined the evidence in question was not relevant to the issues. The application stands dismissed.
IV. THE ROLE OF THE LABOUR RELATIONS BOARD
¶ 13 The Saskatchewan Labour Relations Board, in its factum, sought to argue that the decisions of the Board were not patently unreasonable. It relied on the following passage from the judgment of LaForest J. in Canadian Association of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at pp. 1016-17, as authority supporting its right to do so:
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[39] In British Columbia Government Employees' Union v. Industrial Relations Council (unreported, B.C.C.A., May 24, 1988) [now reported at 26 B.C.L.R. (2d) 145], the British Columbia Court of Appeal held that the Industrial Relations Council had the right to make the submissions that the court below had erred in substituting its judgment for that of the Industrial Relations Council, and that the court erred in finding the Council's interpretation of the Act to be patently unreasonable. In the course of his judgment, Taggart J.A. for the court made the following statement with which I am in complete agreement, at p. 13: |
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The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them. |
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[40] Before this Court, the Industrial Relations Council confined its submissions to two points. It first argued that the Court of Appeal erred in applying the wrong standard of review to the decision of the Board. It submitted that the Court of Appeal reviewed for correctness instead of for reasonableness. As I have already indicated, I agree that the Court of Appeal erred in adopting such an approach. The second branch of the Council's submissions was to show that the Board had considered each of the union's submissions before it, and had given reasoned, rational rejections to each of the arguments. The argument before us emphasized that the Council had made a careful review of the relevant authorities and had made a decision that was within its exclusive jurisdiction. At no point did it argue that the decision of the Board was correct. Rather it argued that it was a reasonable approach for the Board to adopt. The Council had standing to make all these arguments, and in doing so it did not exceed the limited role the Court allows an administrative tribunal in judicial review proceedings. |
The employer objected to that part of the Board's factum. The decision under review in this case did not involve application of the Board's specialized knowledge so as to render it open to such representations by the Board. The Board was directed to restrict its representations during the course of the appeal hearing to matters of the record, the standard of review, and the Board's jurisdiction.
V. THE RECORD
¶ 14 There was some argument as to whether the transcript of the evidence and arguments before the Board should have been a part of the record.
¶ 15 When an application for judicial review of its decision is made to the Court, Queen's Bench Rule 669 requires the Board to make a return to the Court consisting of "the conviction, order, decision, (or as the case may be) and the reasons therefore, together with the process commencing the proceeding, and the warrant, if any, issued thereon." The Board argued that the record, for the purpose of judicial review, should be confined to these documents.
¶ 16 The courts in this Province have adopted the definition of record put forth by Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw, [1952] 1 All E.R. 122 (C.A.) as follows:
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Following these cases, I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. |
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When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. [at p. 131] |
See Revelstoke Pre-Mix v. Chauffeurs, Teamsters and Helpers, Local 395 and Labour Relations Board of Saskatchewan, [1977] 2 W.W.R. 39 (Sask. C.A.) and Canadian Paperworkers Union, Local 1120 et al. v. Prince Albert Pulp Company Ltd., [1987] 1 W.W.R. 628 (Sask. C.A.) at pp. 640-41; (1986), 52 Sask.R. 178, paras. [23] to [26].
¶ 17 Since the application to the Queen's Bench alleged want of jurisdiction, and since both the Union and employer required parts of the transcript to be in evidence as a necessary part of the proof of their respective cases, the judge made no error in admitting the transcript into evidence as a part of the record to the extent that it was required to determine the question of jurisdiction, but only to that extent.
VI. THE STANDARD OF REVIEW
¶ 18 The chambers judge was correct in determining that the standard of review was correctness insofar as it involved the question of whether the relevant statutory provisions authorized the Board to make the impugned orders. The Supreme Court of Canada, in CALPA and this Court in both Pyramid judgments treated the interpretation of identical or the same statutory provisions as being jurisdictional and judicial review thereof as being by the correctness standard.
¶ 19 However, some of the grounds relied on by the chambers judge to quash the order went beyond interpretation of the statutes and judgments. He found that the Board issued a subpoena duces tecum improperly because it made no inquiry as to the relevance of the documents it commanded the employer to produce, and that the Board abused its process in making the impugned orders by directing production of irrelevant documents. These grounds turn upon the relevance of the documents to the issues before the Board. The question of relevance of evidence is a matter put by the legislature within the exclusive jurisdiction of the Board by s. 18 of The Trade Union Act, quoted above. Counsel for the employer conceded that a decision of the Board respecting relevance of evidence was subject to a standard of review other than correctness. Applying the pragmatic and functional approach set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 and Voice Construction Ltd. v. Construction and General Workers' Union, Local 92 [2004] 1 S.C.R. 609, and taking into account the specialized nature of the Board, the expertise of its members, the strong privative clause protecting its decisions, and s. 18 of The Trade Union Act, we are of the view that the standard of review of a decision of the Board concerning the relevance of evidence is whether the decision was patently unreasonable.
VII. DID THE BOARD HAVE JURISDICTION TO MAKE THE IMPUGNED ORDERS?
¶ 20 The chambers judge based his decision largely upon his interpretation of the judgments in CALPA and the four Pyramid judgments. It is appropriate to begin this review with an analysis of those judgments.
¶ 21 In CALPA, the Supreme Court of Canada had under considerations. 118(a) of The Canada Labour Code, R.S.C. 1970, c. L-1, which was virtually identical to s. 3 of The Public Inquiries Act in enabling the tribunal in question, the Canada Labour Relations Board, to compel the attendance of witnesses and to compel them to give evidence and "to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding." Prior to the hearing of a matter before the Board, the Board made a request to one of the parties for the production of documents and certain information. When the party failed to comply, the Board issued an order under s. 118(a) compelling the party to do so. The order of the Board was set aside by the Federal Court of Appeal. The Supreme Court affirmed the judgment of the Federal Court of Appeal. Gonthier J., speaking for the majority, summarized the result at p. 747:
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[29] The extent of the power granted by s. 118(a) of the Code appears from the plain meaning of the words of the provision. The Board may exercise its power to compel the production of documents only in the context of a formal hearing. This conclusion is supported also by the fact that the nature of the power is coercive, and that the limits on its exercise must be respected. The fact that the power is also judicial in character makes extension of its application to an administrative context, one which would require clear words to that effect. The structure of the provision makes the power to compel the production of documents a part of a complete process which is limited to a formal hearing to which witnesses may be summoned and where they may give evidence on oath. |
¶ 22 In Pyramid No. 1, a union filed an unfair labour practice application with the Saskatchewan Labour Relations Board. Prior to any hearing, the union asked the employer to provided certain information and documents. The employer provided some, but not all of the information requested. The union asked the Board to direct the employer to provide the information. The Board convened a hearing to determine the question. The matter was thoroughly argued by the parties in two separate hearings. In the end, the Board ordered the production of the documents requested. Dawson J., of the Queen's Bench, set the order aside, at least in part, on the basis that the order offended the principle set forth in CALPA. This Court affirmed her decision, pointing out that the facts and relevant statutory provisions in CALPA were very similar and that the judge was correct in applying the reasoning in CALPA.
¶ 23 In Pyramid No. 2, upon the return of the case to the Labour Relations Board, the union renewed its demand for documents and asked the Board to issue a summons to an officer of the corporation to produce the documents originally requested. The corporation advised the Board that it had produced all of the documents available to it and offered to let the union cross-examine a corporate officer who was present in that respect. After the cross- examination, the Board said it was satisfied the officer questioned had no personal knowledge about whether any of the documents demanded existed at the present time or ever, because he had relied on hearsay information from others for the answers he provided. It then went on to make an order directing the corporation to, in effect, search its records and then prepare and file a statement of documents in a form apparently modelled on the form used by the Court of Queen's Bench. The order was accompanied by a warning that failure to comply might result in the striking of its reply to the application. The Board was not satisfied with the return made by the corporation and made it clear that it believed that the corporation and its officers "were attempting to unlawfully obstruct the Board's process." It ordered that the corporation's reply be struck, and went on to decide the issue in the main application in favour of the Union.
¶ 24 The corporation applied for judicial review of the order directing the production of a statement of documents; the order striking the corporation's reply; and the order granting the Union's application. The application was heard by Laing J. The substance of his decision is found in the following paragraphs:
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[24] There is nothing in the foregoing sections authorizing a commissioner to order a witness to conduct an investigation, whether for discovery of documents, or for any other reason. At the same time, the foregoing sections provide a commissioner with the power to order the production of documents or things, not the creation of documents or things, which the order to produce a statement as to documents amounts to in this case. A plain reading of the sections referred to do not authorize the Board to order a witness or a party to a proceeding before it to produce a statement as to documents. |
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[28] I find the Board was without jurisdiction to order Pyramid to produce a statement as to documents; however, the decision on the merits would not be set aside on this account. It was an interlocutory order which might have justified an application for review at the time, but given the history of this file, it is understandable why this did not occur. In any event, the Board's making of this order did not affect Pyramid's rights with respect to the merits of the application. |
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[30] As noted, supra, the Board has no inherent jurisdiction, and consequently has no inherent coercion powers. Totally apart from the principles of audi alteram partem, it is implicit in the Board's regulations that interested parties who have filed a reply are entitled to participate in any Hearing. Regulation 23 states: |
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23 The secretary shall give notice to the applicant, to any trade union intervening in an application, and to any trade union, labour organization or person replying to an application, of the time when and the place where the application will be heard by the board. |
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Pyramid had filed a reply to IBEW's application. There is nothing in the regulations that gives the Board the right to strike a reply, or deny a party to the proceeding the right to participate in the Hearing. |
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[32] A good summary of the principles of "audi alteram partem" is contained in the judgment of Gonthier J. in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 et al., [1990] 1 S.C.R. 282; 68 D.L.R. (4th) 524 at p. 566, wherein he stated: |
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Since its earliest development, the essence of the audi alteram partem rule has been to give the parties a "fair opportunity of answering the case against [them]": Evans, de Smith's Judicial Review of Administrative Action, 4th ed. (1980), at p. 158. It is true that on factual matters the parties must be given a "fair opportunity ... for correcting or contradicting any relevant statement prejudicial to their view": Board of Education v. Rice, [1911] A.C. 179 (H.L.), at p. 182; see also Local Government Board v. Arlidge, [1915] A.C. 120 (H.L.), at pp. 133 and 141, and Kane v. Board of Governors of the University of British Columbia, supra, 110 D.L.R. (3d) 311, at p. 322. However, the rule with respect to legal or policy arguments not raising issues of fact is somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments ... |
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In this case the Board by its order denied Pyramid the opportunity to answer the case against it and to answer the arguments advanced by IBEW in support of the orders eventually made by the Board on the merits. This was a clear breach of the rules of natural justice that has no justification in the Act or at common law. It follows that the Board's orders of December 19, 2000 set out in the foregoing must be set aside, and it is so ordered. |
¶ 25 The Union appealed to this Court which dismissed the appeal as follows:
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[2] Having heard from the appellant and the Board, we are all of the view the appeal must be dismissed and we do not need to hear from the respondent on the substantive issues. We agree for substantially the reasons given by the chambers judge the Board exceeded its jurisdiction in ordering production of documents in the manner it did. We also agree the Board exceeded its jurisdiction and breached the rules of natural justice by striking the respondent's reply, denying it standing and proceeding to decide the issues in the absence of the respondent. |
The matter was remitted to the Board to be dealt with according to law.
¶ 26 The chambers judge in this case summarized the law from these cases, and particularly the judgment of Laing J. in Pyramid No. 2 at para. [48], as follows:
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A subpoena duces tecum is available to the Board to compel a witness to attend the hearing with relevant documents. |
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There is no statutory authority authorizing the Board to order a witness or a party to conduct an investigation, whether for discovery of documents or for any other reason, or to produce a statement as to documents. |
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The ability of a tribunal to make and enforce an order for disclosure depends on whether it has been conferred with jurisdiction to require discovery. Where a statute provides for discovery procedures, those procedures are available to all parties without reference to an order from the tribunal. The discovery procedures also contain provisions to ensure compliance with pre-hearing disclosure and discovery obligations. They have no application once a trial has commenced. |
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The Board's interpretation of Pyramid No. 1, namely that it had jurisdiction to compel Pyramid to disclose and produce documents so long as it did so at the hearing and not at the pre-hearing stage, is in error. The Board is also in error to conclude that Pyramid No. 1 did not abrogate its discovery powers but merely enunciated the process by which those powers could be exercised. |
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The Board purported to incorporate the rules, law and practice and procedure of the Court of Queen's Bench as part of the procedures of the Board with the proviso, based on its erroneous interpretation of Pyramid No. 1, that this procedure could only be invoked at the hearing. |
In our view, the judge erred in a number of respects. At the outset, his analysis makes little or no distinction between disclosure of documents, production of documents, discovery of documents and admissibility of documents into evidence, all separate matters. Furthermore, he confused examination for discovery, a pre-trial procedure, with cross-examination of a witness during a Board hearing. He also erred in his interpretation of the judgments in CALPA and the Pyramid cases.
¶ 27 The judgment in CALPA, followed in Pyramid No. 1, simply holds that, from the "plain meaning" of the relevant legislation, the tribunal may exercise its power to compel the production of documents only in the context of a formal hearing and through a witness who has possession or power over the document. The judgment in Pyramid No. 2, says nothing more than that the Board did not have jurisdiction to order production of a statement of documents, whether during a formal hearing or otherwise, and even then this was not the ground for setting aside the decision of the Board. The decision was set aside because the Board violated the audi alteram partum rule when it struck the corporation's reply to the Union's application.
¶ 28 These decisions do not speak to the situation here, where the impugned orders were made during the course of a formal hearing on the merits of the cases before the Board. The first order, made on May 21, was made as a result of objections to the scope of the subpoena made by the employer at the opening of the hearing on the merits of the applications before the Board on May 7, and the effect of the order was to narrow the scope of the subpoena. The employer seemed to accept the order as it produced documents in response to it, and proffered a witness to respond to the subpoena and order. The second order was made after the cross-examination of the witness produced by the corporation in response to the subpoena. The decision of the chambers judge, in characterizing the issue of the subpoena and the cross-examination of the witness as "an examination for discovery" and a "discovery of documents" and thus beyond the powers of the Board, goes contrary to the plain meaning of s. 3 of The Public Inquiries Act which empowers the Board to require witnesses to give evidence on oath and "to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire." And given the important functions entrusted by the legislature to the Board, it is obvious that these powers are required by the Board if it is to adequately carry out its duties, and that the legislation intended it to have them.
¶ 29 Although the motion for judicial review before the chambers judge did not attack the subpoena duces tecum, and, indeed, the employer conceded the Board's right to issue it subject to objections respecting the documents required to be produced, the chambers judge nevertheless began his analysis by finding the Board misused its authority to issue the subpoena. He viewed the impugned orders as orders for the enforcement of the subpoena and that seemed to be his reason for determining its validity. We will review this part of the judge's decision only to the extent necessary for the purpose of this case.
¶ 30 The chambers judge gave two reasons for finding as he did.
¶ 31 The first reason was that the Board issued the subpoena without any prior consideration as to the relevance of the documents that it required the employer to produce. He held that the issue of the subpoena was "not purely an administrative or ministerial act but requires the exercise of a discretion after considering the relevancy and possibly the privilege of the documents sought." He cited in support of that proposition the judgments in Canada (Restrictive Trade Practices Commission) v. Canada (Director of Investigation & Research, Combines Investigation Act) (1983), 145 D.L.R. (3d) 540 (C.A.); Bortolotti v. Ontario (Ministry of Housing) (1977), 76 D.L.R. (3d) 408 (C.A.); Retail, Wholesale and Department Store Union, Locals 544, 496, 635 and 955 v. Dairy Producers Co-operative Ltd., [1985] 3 W.W.R. 110 (Sask. C.A.). These judgments do not support the proposition for which they are cited. The first deals with particular statutory provisions which bear no resemblance to those before us. The second and third judgments deal with rulings on the admissibility of evidence, and not the requirements for issue of a subpoena.
¶ 32 Since the power of the Board to issue a subpoena duces tecum was assumed by all concerned, and has not been put into issue in this appeal, we shall also assume, without deciding, that the power existed for the purpose of this judgment. Neither ss. 3 nor 4 of The Public Inquiries Act, nor the Rules of the Court of Queen's Bench (Rules 305 and 306, and Form 27) require that any enquiry be made into the relevance of documents required to be produced by the subpoena prior to its issue. In the case of the Court of Queen's Bench, subpoenas are not issued by a Judge of the Court. They are issued by the local registrar of the court who is in no position to make any assessment as to the relevancy of documents. Indeed, the subpoenas may be, and usually are, issued in blank, with the names of the witnesses, and the description of the documents to be produced, to be added later by the party obtaining issue of the subpoena without any supervision by the court. We see no basis in law to impose any different obligation on the Board in this case. The judge erred in finding the subpoena in issue invalid due to failure of the tribunal to make any assessment of the relevance of the documents required to be produced by the subpoena prior to its issue.
¶ 33 Furthermore, in this case, the subpoena issued by the Board was signed by the Vice-Chairman on behalf of the Board. Section 18 of The Trade Union Act authorizes him to do so on behalf of the Board. Subsection (6) of s. 4 of the Act deems any document signed by the Vice-Chairman to have been duly authorized by the Board unless the contrary is shown. There was no evidence to the contrary and nothing to indicate whether the Board, or the Vice-Chairman made any preliminary assessment as to the relevance of the documents required to be produced. It is quite possible that they did. There was therefore no basis upon which the judge could find that the Board acted improperly in issuing the subpoena.
¶ 34 This is not to say that any court or tribunal is entitled to issue or to enforce subpoenas compelling production of irrelevant or privileged documents. If that is done, the injured party has the same recourse as was resorted to by the employer in this case: to move to have the tribunal quash the subpoena or to rule on the issues of relevance or privilege in respect of the documents which it does not believe it should be compelled to produce.
¶ 35 The appropriate practice is set out in an article referred to by the chambers judge, Subpoena Duces Tecum, by James E. Dunn, (1983), 4 Adv. Q. 94 at p. 99:
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If the witness can demonstrate that the evidence sought by the subpoena is clearly irrelevant then he is entitled to have the subpoena quashed. Obviously, if there is any doubt at all about the relevance of the documents, the subpoena should be upheld and the witness should be directed to attend with his documents before the trial judge. The relevance of the documents is a question of fact for the court to determine and, accordingly, the witness is obliged to comply with the terms of the subpoena whether or not he believes the documents are material. [footnotes omitted] |
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A subpoena should not be quashed in advance of trial unless it is abundantly clear that it is being used for an improper or coercive purpose. Again, the proper procedure is to uphold the validity of the subpoena and then refer the question to the trial judge who may penalize the litigant in costs should circumstances warrant. The onus to prove that the subpoena has been issued for an improper purpose is upon the person attacking the subpoena. [footnotes omitted] |
¶ 36 Wigmore on Evidence, (McNaughton rev. 1961) (Toronto: Little, Brown and Company, 1961), Vol. VIII, art. s. 2200(1)(v) at pp. 127-9 says as follows:
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(v) It often happens, however, that the party desiring the evidence does not precisely know what documents exist in the hands of the witness or what existing documents contain relevant material, or that a document, if of a certain tenor, would be privileged from disclosure on one or another ground (s. s. 2210-2233 infra). In such a situation, it is obviously not for the witness to withhold the documents upon his mere assertion that they are not relevant (s. 2210 infra) or that they are privileged. It is his duty to bring what the court requires. The court can then to its own satisfaction determine by inspection whether the documents produced are irrelevant or privileged. This does not deprive the witness unduly of any rights of privacy, since the court's determination is made by its own inspection, without submitting the documents to the opponent's view. Unless such a mode of determination were employed, there could be no available means of preventing the constant evasion of duty by witnesses. [footnotes omitted] |
¶ 37 This is the procedure suggested by counsel for the Union, and although the Board never ruled on the point, there is no reason to believe that it would not have followed that procedure when the documents were produced in response to the impugned orders. Indeed, the judge, at para. [75] of his judgment noted that the Board said:
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... So at any point when a party is seeking to admit any of the documents in evidence, objections can be made on the basis of relevancy or anything else, any other objection that might pertain at that time. But in any event what we are saying is that the subpoena must be responded to. |
¶ 38 The second reason given by the chambers judge for finding the issue of the subpoena to be an abuse of process was that it amounted to a discovery of documents, lacked reasonable particularity, was a fishing expedition, and so on. That reason is answered in part by the opening part of the above quotation from Wigmore. However, since the employer did not, in its motion for judicial review, attack the validity of the subpoena, but rather the two subsequent orders of the Board, the point is moot. What is de terminative of the outcome of this case is not the description of the documents in the subpoena, but the description of the documents in the two impugned orders, and these issues will be dealt with in relation to the orders.
¶ 39 Upon his consideration of the two orders of the Board under review, the judge viewed them as enforcement of the improperly issued subpoena, (para. [67]), as a discovery of documents (para. [67]), as permitting improper cross-examination because it amounted to an examination for discovery and a fishing expedition (para. [71]), and as requiring the production of irrelevant documents (paras. [74] and [75]), although the documents were not before him and he did not know what was in them. He erred in this respect.
¶ 40 Discovery of documents and examination for discovery in a judicial setting are pre-trial procedures for the purpose of permitting the parties to prepare for trial and are clearly not available to the Board by reason of the authorities discussed earlier. But the orders in this case were not made prior to the hearing on the merits of the applications before the Board. The first order was made during the course of the hearing into the merits at the instance of the employer to clarify what was required to be produced by what we have found to be a properly issued subpoena. The second was made as a result of information properly obtained by the Union during cross-examination of the witness produced by the employer in response to the subpoena during the course of the hearing into the merits. As such, they cannot be characterized as either a discovery of documents or an examination for discovery, which are pre-hearing procedures. The orders were clearly within the words of s. 3 of The Public Inquiries Act authorizing the Board to require a witness to "give evidence on oath, ... and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire." A court cannot take away these statutory powers to permit cross-examination of a witness and to compel production of documents during the course of a hearing on the merits by characterizing them as allowing "discovery of documents" or "examination for discovery." The employer relied on Re Dalgleish and Basu (1974), 51 D.L.R. (3d) 309 (Sask. Q.B.) in support of its argument. However, that case was governed by a different statute with terms dissimilar to those under consideration here.
¶ 41 As to the suggestion that the documents demanded were so broadly and vaguely described that they amounted to a fishing expedition, the law in this respect was fairly summarized by Bayda J. (as he then was) in Dalgleish and Basu after a careful analysis of the relevant authorities. Although the judgment was in respect of a subpoena, the principles apply here. He found the issue to be determined was whether the specification was so broad and indefinite that the demand is oppressive and exceeds the demanding party's necessities. In determining this question, the tribunal must take into account (1) whether the witness is informed with sufficient particularity of the documents that are needed for the inquiry; (2) whether the party issuing the subpoena had an opportunity to examine the documents beforehand; if not, greater latitude must be given; (3) whether the witness is or is not a party to the proceedings so that she has some familiarity with the documents; and (4) what the scope of the proceedings is.
¶ 42 Dealing with the first factor mentioned in Dalgleish, it must be borne in mind that the witness, Bev Ginter, was produced in response to a subpoena issued to the employer corporation, a procedure approved by Wigmore, Vol. VIII, art. s. 2200(1)(vii), and Dunn, at p. 105. Accordingly, the obligation to produce the documents demanded was upon the corporation, and was with respect to all documents within the power or possession of the corporation, rather than within the power or possession of an individual officer of the corporation. Ms. Ginter was produced by the corporation as the officer of the corporation with the knowledge required to respond to the subpoena. Her obligation was to be sufficiently familiar with the documents of the corporation to be able to properly respond to the subpoena, and if not sufficiently familiar, to become so.
¶ 43 The first order required production only of reasonably clearly described specific documents, with the exception of "documents and communications to employees regarding trade unions and unionization; documents regarding the operational status of store departments and the concept of a 'Store within a Store'." This is a sufficient description to inform the appropriate officer of the corporation which of the corporation's documents are required.
¶ 44 The second order, as reproduced above from the transcript, also described reasonably clearly the exact documents required to be produced. It did not, as the chambers judge suggested, require the employer to produce everything demanded by the subpoena, but is confined to the documents referred to in the quotation.
¶ 45 As to the second Dalgleish factor, since the Union had no right to pre-hearing discovery of documents, it is generally recognized that a less detailed description will be tolerated. This proposition was also noted in the above quotation from Wigmore, art. s. 2200(1)(v).
¶ 46 As to the third Dalgleish factor, since the subpoena was issued to the employer corporation rather than to a third party, and Ms. Ginter was produced to respond, it must be assumed that she knew the issues reasonably well, and a more general description of the documents is acceptable.
¶ 47 Upon application of the tests set out in Dalgleish, we are satisfied that the impugned orders were within the jurisdiction of the Board to make. This case is not like Dalgleish where the subpoena in question demanded essentially all documents in the possession of the College of Physicians and Surgeons relating to Dr. Basu, who was the subject of disciplinary proceedings before the Discipline Committee of the College. The subpoena there was quashed insofar as it required production of documents, but with leave to reissue with a proper description.
¶ 48 There remains the decision of the trial judge that the impugned orders were an abuse of process because they required production of irrelevant documents and privileged documents. The judgment is somewhat unclear on this point, since the judge did not rule any particular documents to be irrelevant or privileged. The judge seemed to act on this ground on the basis that the employer so argued and the Board did not give reasons for granting the impugned order over these objections.
¶ 49 The judge erred in doing so. As observed earlier in respect of the subpoena, the proper procedure when there is a requirement to produce documents, whether by subpoena or otherwise, and there is a genuine dispute as to their relevance or as to whether they are privileged, is to have the documents produced, so that the tribunal charged with determining their relevance will have them available for examination. This is the procedure the Board intended to follow. If any of the documents then turned out to be irrelevant, the privacy interest of the owner would be protected as the documents would not then be provided to the party making the demand, that is, there is no disclosure of the document to the Union.
¶ 50 It would be otherwise if the documents demanded were so plainly irrelevant that there was no need for their inspection prior to any ruling. But the Board made it clear from comments during the argument that it thought that the Union had made out a case of at least "likely relevance", a term coined by the employer's counsel during the hearing. The Board said that that the documents might be relevant to the issue of whether or not the unfair labour practice applications brought by the employees had been made as a result of influence, interference or intimidation by the employer, something which, under s. 9 of The Trade Union Act, would render those applications subject to rejection or dismissal. Questions such as this are peculiar to labour relations, an area in which the Board has experience and expertise, which is a part of its reason for being. The courts should extend deference to decisions of the Board in such areas. Furthermore, any question of relevance of evidence is clearly within the exclusive jurisdiction of the Board, particularly because of s. 18 of The Trade Union Act. Indeed, the employer's counsel conceded that the standard of review of any decision of the Board concerning relevance of evidence was that of reasonableness. The decision of the Board in this respect was reasonable. Thus, the employer's concession disposes of this issue.
¶ 51 It is appropriate to make two parting comments.
¶ 52 In para. [73] of his reasons for judgment, the chambers judge suggested that an impartial observer might conclude that the impartiality of the Board had been compromised because the Union succeeded in all its demands and the employer in none. The comment was unnecessary given that lack of partiality was not raised as an issue by either party or referred to by anyone during the hearing. The Board was left with no means to defend itself against the accusation. In our opinion, the comment should not have been made.
¶ 53 In para. [95] of his reasons for judgment, the judge, although he decided that it was not appropriate to decide the constitutional validity of s. 9 of The Trade Union Act, nevertheless made his own opinion clear in rather strong terms, suggesting the legislation to be "out of touch with reality" and as permitting a "labour relations board, in a stereotypical and patronizing manner, to disregard the deliberate and informed actions and legitimate wishes of employees on the basis of irrelevant and improper considerations." Since the judge declined to make any ruling on the issue, those gratuitous comments should not have been made. First, the Board had not been asked to make any ruling on the constitutional validity of s. 9 and it is questionable that it would be an issue on judicial review. Secondly, it would be inappropriate for this Court to express an opinion on the constitutional validity of s. 9 by reason that it is unnecessary for our decision. The judge's remarks however require that we observe that if s. 9 does violate the Charter, there is a strong argument that it is saved by s. 1 as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, by virtue of sound policy reasons, long accepted in the labour law of this Country, for its continued existence.
VIII. CONCLUSION
¶ 54 For these reasons, the appeal must be allowed, the judgment in the Queen's Bench set aside, and the orders of the Board reinstated. The Union and the Board shall have their costs in the usual way.
TALLIS J.A.
VANCISE J.A.
SHERSTOBITOFF J.A.