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Document
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P-1345
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File #
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P_9600351
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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 Ontario Labour Relations Board (the Board) received a requestunder the Freedom of Information and Protection of Privacy Act (the Act )for access to the records contained in two specified Board files. The requesterwas a party to a proceeding before the Board which is the subject of one of thefiles. He was an employee of Ontario Hydro (Hydro), which is also aninstitution for the purposes of the Act . The institution in this appealis, however, the Board. The Board responded to the request by informing therequester that by virtue of section 65(6), the Act has no application tothe records sought. The requester, now the appellant, appealed this decision. A Notice of Inquiry was provided to the appellant and the Board by thisoffice. Representations were received from both parties. Because Hydro, in itscapacity as the employer in the Board proceeding, is also an institution for thepurposes of the Act , it was invited to make submissions on theapplication of section 65(6) to the records contained in the Board file as well. Representations on this issue were received from Hydro. PRELIMINARY ISSUE: TIMING OF THE REQUEST On May 15, 1995, the appellant made a request to the Board for transcriptsand minutes of certain "meetings" involving the Board which were heldon April 11, 12, 18 and 19, 1995. This was followed by another request to theBoard on June 19, 1995 for the same information as well as any records whichwere kept by a named Labour Relations Officer (LRO) employed by the Boardconcerning the appellant's Board proceeding. Again, on July 24, 1995, theappellant requested "any and all documentation relating to the Board'sinvestigation of my case. Specifically, minutes/transcripts of meetings withthe Board". The request which has given rise to this appeal was made onAugust 6, 1996 and pertained to the contents of the Board's files. The appellant submits that because the Board's response to his request madeoriginally in June 1995, should have (but did not) deal with the records whichare the subject of the present request, I should deal with the request as if itpredates the enactment of the amendments to the Act , including section65(6), which were included in the Labour Relations and Employment StatuteLaw Amendment Act (Bill 7), was passed into law in November 1995. If Iagree with this submission, I will have to consider whether the amendments tothe Act introduced by Bill 7 operate retroactively. I will, therefore, determine whether the requests submitted by the appellantin May, June and again in July 1995 included the information contained in theBoard's files which was requested on August 6, 1996. The Board submits that the subject matter of the pre-Bill 7 requests did notinclude the contents of the Board's files but, rather, was limited to "minutes/transcriptsfrom meetings with the labour board" and "documents which the LROassigned to the case would have pertaining to the case". It also submitsthat the Board's decision regarding access to the information responsive tothese requests was upheld in Order P-1230, which I issued on July 17, 1996. The Board further submits that the requester's pre-Bill 7 requests werecompletely disposed of in my Order P-1230. For this reason, the Board arguesthat the information sought in the present appeal is either res judicata or issubject to issue estoppel (if it involves the same records as the earlierrequest) or, falls within the ambit of section 65(6) and is not subject to the Act (if it involves other records). In my view, the records requested by the appellant in his August 6, 1996request are separate and distinct from the records sought in his earlierrequests. The earlier requests dealt specifically with "minutes/transcripts"of particular Board hearings and records maintained by a specified Boardemployee. The present request was not so specifically framed. The appellant isnow seeking access to the Board's files, which consist of some 435 pages ofdocuments, including correspondence between the Board and the parties to theproceedings, their pleadings and various administrative records created by theBoard in preparing for the hearings themselves. In conclusion, I find that the present request and appeal were madefollowing the enactment of the Labour Relations and Employment Statute Law Amendment Act in November1995 and I will proceed with my determination as to whether the responsiverecords in fact fall outside the ambit of the Act under section 65(6). DISCUSSION: APPLICATION OF SECTION 65(6) Sections 65(6) and (7) read: (6)Subject to subsection (7), this Act does not apply to recordscollected, prepared, maintained or used by or on behalf of an institution inrelation to any of the following: 1.Proceedings or anticipated proceedings before a court, tribunal orother entity relating to labour relations or to the employment of a person bythe institution. 2.Negotiations or anticipated negotiations relating to labour relationsor to the employment of a person by the institution between the institution anda person, bargaining agent or party to a proceeding or an anticipatedproceeding. 3.Meetings, consultations, discussions or communications about labourrelations or employment-related matters in which the institution has aninterest. (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 whichends a proceeding before a court, tribunal or other entity relating to labourrelations or to employment-related matters. 3.An agreement between an institution and one or more employees resultingfrom negotiations about employment-related matters between the institution andthe employee or employees. 4.An expense account submitted by an employee of an institution to thatinstitution for the purpose of seeking reimbursement for expenses incurred bythe employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue whichgoes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section appliesto a specific record, in the circumstances of a particular appeal, and none ofthe exceptions listed in 65(7) are present, then the record is excluded from thescope of the Act and not subject to the Commissioner's jurisdiction. In Order P-1223, former Assistant Commissioner Tom Mitchinson found that inorder for a record to fall within the scope of paragraph 1 of section 65(6), aninstitution, in this case the Board, must establish that: 1.the record was collect
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Feb 12, 1997
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Type
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Order
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