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Document
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P-1223
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File #
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P-9600117
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Institution/HIC
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Ministry of Agriculture, Food and Rural Affairs
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Summary
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NATURE OF THE APPEAL: The Ministry of Agriculture, Food and Rural Affairs (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to a Workplace Discrimination and Harassment Prevention Investigation Report (the WDHP Report) which had been prepared by the Ministry in response to a complaint made by the requester. The requester is a former employee of the Ministry. The Ministry denied access to the report, claiming that it falls within the parameters of paragraphs 1, 2 and 3 of section 65(6) of the Act , and therefore, outside the scope of the Act . The requester (now the appellant) appealed the Ministry's decision. This office sent a Notice of Inquiry to the appellant and the Ministry seeking representations on the jurisdictional issue raised by sections 65(6) and (7). Representations were received from both parties. DISCUSSION: The only issue in this appeal is whether the records fall within the scope of sections 65(6) and (7) of the Act . These provisions read as follows: (6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (7) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment- related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. My analysis of paragraph 1 of section 65(6) indicates that, in order for a record to fall within the scope of this provision, the Ministry must establish that: 1. the record was collected, prepared, maintained or used by the Ministry or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and 3. these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the Ministry. The Ministry has provided documentation to establish that the appellant filed a grievance under the collective agreement (the collective agreement) between the Ontario Public Service Employees Union (OPSEU) and the government. The appellant was a member of OPSEU when the grievance was filed. The collective agreement was negotiated under the terms of the Crown Employees Collective Bargaining Act ( CECBA ). Article 27 of the collective agreement sets out various grievance procedures for OPSEU members, one of which (Article 27.10.1) deals specifically with sexual harassment. The appellant's grievance was filed under Article 27, and related to management's response to an alleged harassment situation. The Ministry submits that the WDHP Report was prepared, maintained and used to respond to the appellant's sexual harassment grievance, and also that it was prepared and maintained in anticipation of proceedings before the Grievance Settlement Board. The Ministry also submits that the grievance process under the terms of the collective agreement and CECBA constitutes "proceedings" for the purposes of section 65(6)1, and that these proceedings relate to both labour relations and the employment of a person by the Ministry. The appellant's representations do not address the specific requirements of section 65(6). I will now consider whether the Ministry has established the three requirements of section 65(6)1, as outlined above. 1. Was the record collected, prepared, maintained or used by the Ministry or on its behalf? It is clear from the face of the record that it was prepared by an employee of the Ministry on its behalf. This person was appointed under the provisions of the WDHP directive to act as an impartial investigator and to report his findings to the Deputy Minister and the WDHP Co-ordinator. Therefore, I find that the record was prepared by the Ministry. 2. Was this preparation in relation to proceedings or anticipated proceedings before a court, tribunal or other entity? " proceedings or anticipated proceedings " The words "proceedings" and "anticipated proceedings" appears in section 65(6)1 in the context of the phrase "proceedings or anticipated proceedings before a court, tribunal or other entity ". In my view, the words I have highlighted in bold must be considered in defining the words "proceedings" and "anticipated proceedings". Turning first to "proceedings", in its legal sense, this word has been given a wide variety of meanings, as can be seen from the following definitions. In Black's Law Dictionary (6th ed.), the definition begins
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 10, 1996
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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