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Document
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P-1346
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File #
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P_9600390
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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 request under the Freedom of Information and Protection of Privacy Act (the Act )for access to two specified Board files. The files relate to two applicationsmade under the Crown Employees Collective Bargaining Act to the Board atthe time of the Ontario Public Service Employees Union strike in the spring of1996. The Board responded to the request by informing the requester that, byvirtue of section 65(6), the Act has no application to the recordssought. 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 the Board only. Because ManagementBoard of Cabinet (MBC), in its capacity as the employer in the Boardproceedings, is also an institution for the purposes of the Act , it was invited to make submissions on the application of section65(6) to the records contained in the Board file as well. No representationswere received from MBC. 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 both MBC and the Board, must establish that: 1.the record was collected, prepared, maintained or used by MBC or theBoard or on their behalf; and 2.this collection, preparation, maintenance or usage was in relation toproceedings or anticipated proceedings before a court, tribunal or other entity; and 3.these proceedings or anticipated proceedings relate to labour relationsor to the employment of a person by an institution. The Board submits that the files sought by the appellant contain informationwhich falls within the ambit of section 65(6)1 of the Act . The Boardargues that: 1.these records have been collected and/or prepared and/or maintainedand/or used by the Board; 2.the Board is an "institution"; 3.the records relate to proceedings or anticipated proceedings before theBoard. 4.an application filed with the Board is a "proceeding"; 5.the Board is a "tribunal" relating to labour relations. In the proceedings before the Board which resulted in the creation of therequested records, the employer was Management Board of Cabinet and not theBoard. The only involvement of the Board in this matter was in its role asadjudicator. Section 65(6)1 refers to the collection, preparation, maintenance or use ofrecords 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 wherethe records relate to proceedings where the institution's involvement is in therole of adjudicator. Rather, in order to qualify as a collection, preparation,maintenance or use by or on behalf of the institution inrelation to the proceedings, the Board would have to be an entity subject to theprocesses of the adjudication body (itself), such as a party to the proceedingsor a witness called to produce evidence which is relevant to the proceedings. By necessary implication, the institution's role in such proceedings must be inits capacity as an employer or former employer in order to bring the recordswithin the scope of section 65(6)1. This interpretation is supported by references throughout section 65(6) toproceedings and negotiations relating to the "employment of a person by theinstitution", and in section 65(6)3, to "labour relations oremployment-related matters in which the institution has an interest". Inmy view, an institution such as the Board, acting as an impartial adjudicatorcould not "have an interest" in a labour relations oremployment-related matter before it, in the sense intended by section 65(6)3. Such an interest would be inconsistent with impartial adjudication. Therefore, in my view, the records maintained by the Board were notcollected, prepared, maintained or used by or on behalf of the Board in relationto the proceedings before itself in the sense intended by section 65(6)1 and Ifind that the application of this section, on the basis of the Board's role inthe proceedings before it, has not been established. I also note that, becausethe Board does not "have an interest" in the proceedings in the senseintended by section 65(6)3, this section also does not apply. The same cannot, however, be said about the records contained in the Board'sfiles which originated with or were sent by the Board to MBC. These include anypleadings filed by MBC and any correspondence or records of other communicationsbetween MBC and the Board. In my view, these records were collected, prepared,maintained or used by MBC, an institution under the Act , in rel
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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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