Ontario Ministry of Labour Squeezed Between McNeil Duty and Inspector Privacy Rights

The Grievance Settlement Board’s March 28th privacy award made for some sensational headlines that decried the Ontario Ministry of Labour’s disregard for occupational health and safety inspector privacy by undertaking CPIC checks without consent. The headlines do not do justice to the difficult and significant issue dealt with in the award that relates to the MOL’s obligation to disclose information about inspectors pursuant to the Supreme Court of Canada decision in R. v. McNeil.

The Supreme Court issued McNeil in January 2009. The Court held that the Crown is not a single entity for the purposes of its prosecutorial “Stinchcombe” obligation to disclose information in its possession and control. It did, however, stress that the “investigating Crown” has a positive duty to build-out the Crown brief by making “reasonable inquiries” of other Crown agencies and departments. This duty, said the Court, includes a duty to collect and disclose records of police or investigator misconduct, at least where an officer is likely to be a witness at trial has record with some arguably relevant blemishes. The broadening of the Stincombe duty relieves accused persons of a burden of seeking records of police or investigator misconduct or other similar information by bringing third-party (O’Connor) motions.

The MOL responded to McNeil by implementing a process by which it routinely initiated CPIC checks on its inspectors once occupational health and safety matters were set down for trial (and earlier based on a defence request). Likewise, the MOL routinely collected information about internal disciplinary history. The Ministry re-assessed the merits of proceeding with prosecutions based on any positive results and, for those prosecutions which proceeded, disclosed records in accordance with McNeil.

This practice came before GSB member Susan Stewart, who declared the MOL’s process for conducting CPIC checks to be a violation of the inspectors’ collective agreement. She held that the MOL practice was broader than required to meet the duty in McNeil because it featured checks that were conducted as a matter of routine. In reaching this conclusion, Arbitrator Stewart stressed that inspectors act in furtherance of regulatory prosecutions (as opposed to criminal prosecutions) and that CPIC data is not directly accessible to the investigating agency (as it is with police).

Arbitrator Stewart did not make an order nor did she make a finding on the collection of disciplinary history information, encouraging the parties to come to an agreement on how to proceed for the sake of their important prosecutorial work. Their response will be of interest to defence counsel, who may cause this issue to be re-litigated under the Provincial Offences Act on a Charter application.

OPSEU and The Crown in Right of Ontario (Re) (28 March 2010, GSB).