March 22, 2012

Production of Inspectors Notes etc…

An interesting case came out of the Ontario Labour Relations Board last week.  The case, Dollarama LP v Marcelo, concerned a request for pre-hearing production in the context of a appeal of an order of an inspector under the Occupational Health and Safety Act.  The Company asked the Ministry of Labour to produce the following:

(a)  notes made by the inspectors during their visits on the dates the Orders were issued or any subsequent attendances related to the Orders under appeal;

(b)  photographs taken [by the inspectors] during such visits; and

(c)  documents provided by Dollarama to the inspector(s) at the latter’s request or demand.

The Ministry refused to produce the documents on the basis that to do so would be contrary to subsection 63(3) of the Act:

(3)     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 Board rejected this argument noting that subsection 63(3) of the Act only limited the compelability of the inspector as a witness and “did  not go so far as to prevent documents that have been prepared or collected by the inspector from being disclosed or subject to a production order.”

The Board further found that the Act specifically recognized that “documents prepared or obtained by an inspector can be disclosed”.  The Board directed the Ministry to produce the requested documents.

This case is significant and goes some way in ensuring that the employer is able to prepare its case while ensuring that the government’s objective of ensuring that inspectors are not compellable is maintained.