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Document
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P-1560
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File #
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P-9700334
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Institution/HIC
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Ontario Labour Relations Board
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ontario Labour Relations Board (the OLRB). The request was for access to all records which relate to the appellant which are in the custody of the OLRB. The OLRB responded by denying access to the requested records on the basis that, pursuant to sections 65(6)1, 2 and 3 of the Act , the requested records fall outside the ambit of the Act . The appellant appealed the OLRB's decision. A Notice of Inquiry was sent to the appellant and the OLRB. Representations were received from both parties. After these representations were received, a Supplemental Notice of Inquiry was sent to the appellant, the OLRB and the appellant's employer at the time of the request, the Hamilton-Wentworth District School Board (formerly the Board of Education for the City of Hamilton). In the supplemental notice, the parties were asked to consider the application of section 65(6) of the Act where the institution which receives the request is not the employer, as well as where the employer is not an institution under the Act governing the request, but is an institution under the corresponding Act (municipal or provincial). As the issues in this appeal have the potential to affect the interests of other institutions, Management Board Secretariat was invited to submit representations on the issues identified in the supplementary notice as well. Representations were received from the appellant, the OLRB and the Hamilton-Wentworth District Board of Education (the HWDSB). Management Board Secretariat did not submit representations. RECORDS: The records at issue include letters sent by the appellant to the OLRB and other agencies, as well as their responses, records relating to several other persons whose complaints had been heard at the same time as the appellant, minutes of meetings, interview questions for a job competition, union records, records used during contract negotiations and records relating to the OLRB's hearing and reconsideration process. DISCUSSION: JURISDICTION Sections 65(6) and (7) read: (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. In Order P-1223, Assistant Commissioner Tom Mitchinson found that in order for a record to fall within the scope of paragraph 1 of section 65(6), an institution, in this case the OLRB, must establish that: 1. the record was collected, prepared, maintained or used by the OLRB 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 OLRB. The OLRB submits that the files sought by the appellant contain information which falls within the ambit of section 65(6)1 of the Act . The OLRB argues that: 1. these records have been collected and/or prepared and/or maintained and/or used by the OLRB; 2. the OLRB is an "institution"; 3. the records relate to proceedings or anticipated proceedings before the OLRB; 4. a complaint filed with the OLRB is a "proceeding"; 5. the OLRB is a "tribunal" relating to labour relations. In the proceedings before the OLRB which resulted in the creation of the requested records, the employer was the HWDSB and not the OLRB. The only involvement of the OLRB in this matter was in its role as adjudicator. In Order P-1345, Inquiry Officer Donald Hale considered a similar appeal involving the OLRB. Inquiry Officer Hale stated: Section 65(6)1 refers to the collection, preparation, maintenance or use of records by or on behalf of an institution in proceedings before a court, tribunal or other entity. In my view, this does not extend to situations where the records relate to
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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May 11, 1998
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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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