In a relatively minor decision that may have significant implications, the Ontario Labour Relations Board (“OLRB”) has ordered Ministry of Labour Inspectors to produce certain investigation records related to litigation before the OLRB.
Dollarama is appealing the orders of several Ministry of Labour Inspectors which were made under the Occupational Health and Safety Act (“OHSA”). Dollarama sought production of the Inspectors’ notes, photographs and other investigation records (Dollarama LP v Marcelo).
The Ministry did not allege the records were irrelevant to the appeal but objected to the production request on the basis of “privilege” and section 63(3) of the 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.
The OLRB rejected the Ministry’s argument and held that the restriction in 63(3) of the OHSA deals only with the issue whether an inspector may be compellable as a witness. Instead, the OLRB found that production could be ordered, relying on subsection 63(4), which expressly permits an inspector to disclose and produce “information, material, statements or the result of a test acquired, furnished, obtained, made or received under this Act or the regulations.” Though not recited by the OLRB in the decision, in appeals of inspectors’ orders the OLRB is said to be in the shoes of the Inspector. As such, it is only logical that what an inspector would be empowered to do the OLRB may order to be done.
Perhaps the most remarkable aspect of the decision is what is not discussed. The Ministry has 12 months to lay charges once it has reasonable and probable grounds to believe an offence has been committed. Ordinarily, where the Ministry has already laid charges under the OHSA it must produce its investigation file to the defendant in the ordinary course of the prosecution (generally referred to as “disclosure”). Where the Ministry has already laid charges, the OLRB’s practice is typically to adjourn an appeal of an inspector’s order at the request of either party, pending final disposition of the prosecution. However, the Board has held that, before the Ministry lays a charge it would be inappropriate to adjourn an appeal of an inspector’s order if the employer objects; otherwise, employers would be forced to wait one year or more before appealing inspectors’ orders (See, for example, Humberline Packaging Inc. v. Zaher).
At least one of the orders under appeal in Dollarama was made on June 6, 2011. By ordering production at this stage the OLRB has effectively permitted the appellant to obtain discovery of the contents of what may be an ongoing penal investigation (there is no discussion in the decision about whether the Ministry is considering laying charges). This leads to a, perhaps, unintended but significant conclusion. When Dollarama is read in conjunction with Humberline, it would appear that an employer who initiates an appeal of an inspector’s order can oppose adjournment of the appeal and can request pre-hearing production in the appeal to obtain mid-investigation disclosure.
It is unclear whether the Ministry made submissions about this issue and, oddly, the Ministry’s submissions in respect of privilege were not referenced in the decision(assuming they were separate from its submissions on section 63(3)). One would expect that the Ministry would have asserted privilege over any legal opinions sought or obtained, notes related to them and other documents related to the process for determining whether to lay charges. The inspectors’ notes may well contain information pertaining to such ordinarily privileged subjects. Moreover, there are strong public policy arguments for the protection of crown investigation files from disclosure while the penal investigation is ongoing. Unfortunately, the decision does not touch on any of those issues.