Strofolino v Helmstadter 2001 CanLII 27985 (ON ... - Arbitration Place

Ontario Supreme CourtStrofolino v. Helmstadter,Date: 2001-07-09Strofolino et al.andHelmstadter et al.University of Toronto Faculty Association et al.andStrofolino et al.2001 CanLII 27985 (ON SC)Superior Court of Justice, Nordheimer J. July 9, 2001Christopher D. Bredt and Ronald Foerster, for applicants/ respondents.K. Swan, for respondent, Richard Helmstadter.C. Michael Mitchell and V. Payne, for respondents/applicants, University of Toronto FacultyAssociation, Dr. Nancy Olivieri, Dr. Helen Chan, Dr. John Dick, Dr. Brenda Gallie andDr. Peter Durie.J. Murray, for respondent, University of Toronto.[1] NORDHEIMER J.:—There are two applications before me arising out of a grievanceproceeding being undertaken between the University of Toronto Faculty Association andcertain individual grievors on the one hand and the University of Toronto on the other. Inconjunction with that grievance proceeding, the Grievance Review Panel has issuedsummonses under s. 29 of the Arbitration Act, 1991, S.O. 1991, c. 17 directed to MichaelStrofolino and Dr. Alan Goldbloom to compel them to attend and give evidence and also toproduce various documents. The first application is brought by Mr. Strofolino and Dr.Goldbloom for a declaration that the Grievance Review Panel lacked jurisdiction to issue thesummonses and, consequently, for an order quashing the summonses. In the alternative, adeclaration is sought that s. 29(1) of the Arbitration Act, 1991 is of no force or effect becauseit is inconsistent with ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. Thesecond application is brought by the Faculty Association and the individual grievors to enforcethe summonses issued by the Grievance Review Panel.

[6] Since 1977, the Faculty Association and the University have been parties to aMemorandum of Agreement which governs certain terms and conditions of employment offaculty members and librarians. The Memorandum of Agreement provides, in Article 7, amutually acceptable means of settling differences without resorting to strikes, lockouts andother procedures which might otherwise be available to the parties under what is now theLabour Relations Act, 1995, S.O. 1995, c. 1, Schedule A.[7] Article 7 defines “grievance” as any complaint by a faculty member arising from theinterpretation, application or alleged violation of an established or recognized policy, practiceor procedure of the University. However, disputes over appointments, tenure and dismissalfor cause of a tenured faculty member are excluded from this procedure. Article 7 sets up afour-step process for handling grievances which, briefly stated, is as follows:2001 CanLII 27985 (ON SC)Step No. 1Step No. 2Step No. 3Step No. 4The faculty member or librarian discusses his or her grievance orally andinformally with the first administrative level having authority to dispose of it.If there is no resolution, then the faculty member or librarian may present awritten grievance to the Dean, Principal, Chief Librarian or equivalent. Adecision is then made by that person and the grievor is notified in writing ofthe decision.If there is no resolution, then the faculty member or librarian may presentthe grievance to the Vice-President and Provost. A decision is then made bythat person and the grievor is notified in writing of the decision.If there is no resolution, then the faculty member or librarian may refer thegrievance to the Grievance Review Panel with a copy to the President of theUniversity.The Grievance Review Panel is composed of seven members of the faculty and one librarian,who are appointed by the President of the University after consultation with the FacultyAssociation.[8] Once the grievance is referred to the Grievance Review Panel, the panel establishes agrievance review committee comprised of a chair and two other members from the panel. Incertain circumstances, the chair of the committee may be an individual from outside of the

participated. It is also alleged that the University, in the course of these events, failed toenforce the Affiliation Agreement and its own policies and practices thereby violating variousarticles of the Memorandum of Agreement including Article 5 which protects academicfreedom. The other grievors allege that they were also subjected to intimidation, harassmentand discrimination when they publicly supported Dr. Olivieri.[12] The grievances were referred to the Grievance Review Panel. The Panel established agrievance review committee consisting of Richard Helmstadter, as chair, and two others. Ahearing was then scheduled to commence on February 26, 2001. On February 9, 2001, theFaculty Association had the Grievance Review Panel issue summonses to Mr. Strofolino andDr. Goldbloom. Initially, there was some confusion within the Grievance Review Panel inissuing the summonses as apparently this was the first time that such a request had everbeen made of the Grievance Review Panel. The result was that different summonses wereissued under different statutory authorities but eventually the summonses were corrected torefer to the governing authority as being the Arbitration Act, 1991. The summonses directedMr. Strofolino and Dr. Goldbloom to attend to give evidence at the hearing on February 26,2001 and to bring with them a substantial volume of documents from the files of the Hospital.2001 CanLII 27985 (ON SC)[13] Mr. Strofolino and Dr. Goldbloom took the position that they would not comply with thesummonses. While they were invited to appear before the committee at the hearing onFebruary 26, 2001 to make any arguments regarding why they should not comply with thesummonses, they declined to do so. Instead, on February 22, 2001, this application to quashthe summonses was launched.[14] Notwithstanding the non-participation of Mr. Strofolino and Dr. Goldbloom, the grievancecommittee convened the hearing on February 26, 2001 and considered the issue regardingthe summonses. The grievance committee heard submissions from counsel for the FacultyAssociation and the grievors. The grievance committee also had before it the Notice ofApplication issued on behalf of Mr. Strofolino and Dr. Goldbloom and was therefore aware ofthe grounds being relied upon in support of the application. On February 28, 2001, thegrievance committee issued a written report in which it concluded that the grievanceprocedure was an arbitration and that there was, therefore, jurisdiction to issue thesummonses. The grievance committee did not consider the Charter issues because no onepresent at the hearing was prepared to make those arguments, although the grievance

committee did conclude that it had jurisdiction to consider Charter issues. Indeed, thegrievance committee noted that the jurisprudence suggested that there was a preference tohave such matters dealt with in the first instance by the tribunal so that the court would havethe benefit of the tribunal’s analysis. The grievance committee noted that the University didnot take issue with the grievance committee’s jurisdiction to issue the summonses althoughthe University did reserve its rights to argue as to the relevance of the documents sought bythe summonses.[15] In the end result, the grievance committee confirmed the summonses. The grievancecommittee expressly made no determination on the compellability of any of the documentssought pursuant to the summonses and also expressly reserved the right of the witnesses tomake submissions on those issues. Finally, the grievance committee noted that theassistance of the court would be necessary to enforce its decision but left it to the parties toundertake any such enforcement. On March 12, 2001, the Faculty Association and thegrievors brought their application to enforce the summonses.2001 CanLII 27985 (ON SC)Issues[16] There are two principal issues raised by the application to quash the summonses. First,the applicants contend that the process established by Article 7 of the Memorandum ofAgreement is not an arbitration and therefore the Arbitration Act, 1991 has no application. Ifthat is so, the Grievance Review Panel would not have recourse to the power accorded bys. 29 to issue summonses. In the alternative, if the process established by Article 7 of theMemorandum of Agreement is an arbitration, the applicants contend that s. 29 of theArbitration Act, 1991 is unconstitutional as offending, ss. 7 and 8 of the Canadian Charter ofRights and Freedoms. The applicants assert that the summonses represent both aninterference with a person’s liberty contrary to the principles of fundamental justice under s. 7,insofar as the witnesses are compelled to attend to give evidence, and also constitute anunreasonable seizure under s. 8, insofar as the witnesses are required to turn overdocuments. I now turn to the first issue.Is this proceeding an arbitration?

[17] The applicants submit that the language of the Memorandum of Agreement, the nature ofthe proceedings contemplated thereunder and the status of the decision maker all must leadto the conclusion that the grievance process is not, and was not intended to be, an arbitration.[18] In terms of the language of the Memorandum of Agreement, the applicants point to thefact that unlike Article 7, Article 6 expressly states that the procedure under that article “issubject to the Arbitration Act”. In response, the Faculty Association has filed affidavits fromtwo former presidents of the Faculty Association which set out the history behind Article 6.They point out that the University was very resistant to having the matters covered byArticle 6 (namely salaries and benefits) dealt with by way of arbitration. In particular,Professor Dyson says, in para. 6 of his affidavit:2001 CanLII 27985 (ON SC)In an early meeting, the parties’ negotiating teams briefly discussed whether Article 7 ofthe Memorandum of Agreement could provide a model for a dispute resolutionprocedure under Article 6. The University in rejecting the appropriateness of arbitrationalso rejected this idea, noting that, unlike grievance arbitration, interest arbitration wasnot, or was not necessarily, a dispute resolution process. Mr. Justice Frank Iacobucci,then Provost and head of the University’s negotiating team, pointed out that a grievanceis by definition justiciable and grievance procedures are always concerned withjusticiability, whereas a dispute over salaries and benefits was not [necessarily]justiciable. The University’s team said that they did not want to build elements of disputeinto article 6 but wanted to develop a process which encouraged settlement and avoideddecision making by outside parties.[19] Eventually, after much negotiation, an agreement was reached between the FacultyAssociation and the University which involved a rather complicated process to determineissues regarding salaries and benefits. Included in that agreement was the expressacknowledgement that the process was an arbitration subject to the Act.[20] I do not find the reference in Article 6 to arbitration to be conclusive evidence thatArticle 7 is not, and was not intended to be, an arbitration process. The background to thedevelopment of Article 6 establishes that it was dealt with as very much a separate anddiscrete issue. In fact, I view the uncontradicted evidence as to its history, as well as thecontemporaneous notes that have been produced regarding the negotiations that took place,as strongly suggesting that there was a recognition that Article 7 was an arbitration process

and that is precisely why it was not being embraced by the University as an acceptable modelfor Article 6.[21] On this point, the applicants also rely on a 1983 decision of this court which determined aquestion put to it by the University and the Faculty Association. Specifically, this court wasasked to determine whether it was within the powers of the University to agree to bindingarbitration of salaries and benefits given the language of the University of Toronto Act, 1971.Mr. Justice Sirois concluded that it was. Given the nature of the issue before the court, theapplicants point to the fact that there is no mention of Article 7 in the reasons of the court. Theapplicants contend that one would have expected to see some reference to Article 7 if it wasaccepted as setting up an arbitration procedure since one would, in turn, have expected theFaculty Association to have argued that the University must have the power to agree toarbitrate issues as it had already agreed to arbitration in this other context.2001 CanLII 27985 (ON SC)[22] I do not view the decision of Mr. Justice Sirois as being of any assistance on the pointthat I must decide. First, there is no evidence as to whether the effect of the procedure underArticle 7 was argued before him. Not every argument made by counsel necessarily gains areference in the court’s reasons for decision so the absence of any mention of it in thereasons of Mr. Justice Sirois is not conclusive of the issue. Further, since the issue before thecourt then was whether the University was precluded by statute from agreeing to bindingarbitration, any assertion that the University had so agreed in another context might well havebeen considered of no moment. If the University did not have the authority under its governingstatute to so agree, then the fact that it purported to do so on an earlier occasion could notgive it that authority.[23] In terms of the nature of the proceedings, the applicants submit that under Article 7 thereis no right to an adversarial hearing, there is no independent arbitrator and there is noallowance for dissenting reasons. The applicants contend that these failings argue stronglyagainst a finding that the process is intended to be an arbitration. In terms of the first point,while Article 7 does not guarantee an adversarial hearing, the fact of the matter is that, if noother agreement can be achieved, then an adversarial hearing necessarily results. Further, asearlier noted, the rules of procedure adopted since at least 1985 assure the parties of anadversarial hearing. The actualities of the process do not, therefore, support the applicants’position. In terms of the third point, I do not find the requirement that there cannot be any

dissenting reasons provides much assistance on the issue. If the parties determine that it is inthe best interests of all concerned that only the reasons for the “bottom line” will be revealedto the parties, that does not appear to me to be inconsistent with the decision being the resultof an arbitration. It simply would appear to reflect a view that the parties will benefit more fromknowing the reasons for the result than in knowing that there might have been somedifference of opinion as to the result. What is of importance, in my view, is whether thedecision of the committee is final and binding and Article 7 expressly provides that thedecision of the committee is final and binding on both the grievor and the University.[24] I address the second point separately because that is where the thrust of the applicants’argument was directed. The applicants contend that the members of the Grievance ReviewPanel are not independent and impartial because they are all members of the faculty of theUniversity and indeed are all members of the Faculty Association itself. I note on this issuethat s. 11 of the Arbitration Act, 1991 requires that an arbitrator “shall be independent of theparties and shall act impartially”. I also note, however, that s. 3 of the Act permits parties tocontract out of that requirement. Consequently, even if the decision maker is not independentand impartial, that does not by definition mean that the process is not properly characterizedas an arbitration.2001 CanLII 27985 (ON SC)[25] In any event, I do not accept the central contention of the applicants that, because themembers of the Grievance Review Panel are all members of the faculty, or even of theFaculty Association, they are therefore partial and not independent. As counsel for the FacultyAssociation pointed out, faculty members enjoy the protection of academic freedom and arefree, indeed are encouraged, to be critical of the University and its members along with all oftheir practices and procedures. I assume that this freedom includes the freedom to alsocriticize their Faculty Association. The University is a large institution and it has a largefaculty. I have no reason to believe that those faculty members, who become members of theGrievance Review Panel, appointed by the President of the University after consultation withthe Faculty Association, would not consider themselves free to decide whatever matter mightcome before them without fear or favour of either side. Further, there seems to me to be verygood reason why the parties would want to have such grievances dealt with [by] members oftheir own institution as opposed to outside parties, both for reasons of confidentiality and ofsensitivity to the issues that will be raised and decided. I do not accept, therefore, the

courts should lean towards honouring that option, given the recent developments in thelaw in this regard to which I have earlier referred: see also, Gulf Canada Resources Ltd./ Ressources Gulf Canada Lteé v. Arochem International Ltd. (1992), 66 B.C.L.R. (2d)113, 43 C.P.R. (3d) 390 (C.A.), at pp. 120-21.[28] I conclude therefore that the process for the review of grievances under Article 7 of theMemorandum of Agreement constitutes an arbitration to which the Arbitration Act, 1991applies and consequently the Grievance Review Panel has the authority under s. 29 of theAct to issue summonses, subject to the issue as to the constitutional validity of that section towhich I now turn.Does s. 29 offend the Charter?2001 CanLII 27985 (ON SC)[29] At the outset, I should record the fact that I was advised that the necessary notices of aconstitutional question under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 wereserved on the Attorney General of Canada and on the Attorney General of Ontario but thatboth Attorneys General declined to participate in this hearing.[30] I begin by setting out the relevant sections of the Arbitration Act, 1991. Section 29 states:29(1) A party may serve a person with a notice, issued by the arbitral tribunal, requiringthe person to attend and give evidence at the arbitration at the time and place named inthe notice.(2) The notice has the same effect as a notice in a court proceeding requiring a witnessto attend at a hearing or produce documents, and shall be served in the same way.(3) An arbitral tribunal has power to administer an oath or affirmation and power torequire a witness to testify under oath or affirmation.(4) On the application of a party or of the arbitral tribunal, the court may make ordersand give directions with respect to the taking of evidence for an arbitration as if it were acourt proceeding.Section 30 states:30. No person shall be compelled to produce information, property or documents or togive evidence in an arbitration that the person could not be compelled to produce or givein a court proceeding.

[31] As I mentioned earlier, the applicants contend that the summonses issued by theGrievance Review Panel offend ss. 7 and 8 of the Canadian Charter of Rights and Freedoms.The applicants assert that insofar as the summonses require the witnesses to producedocuments, the summonses constitute an unreasonable seizure contrary to s. 8. Theapplicants also assert that insofar as the summonses require the witnesses to appear andgive evidence, the summonses constitute a deprivation of liberty of their persons not inaccordance with the principles of fundamental justice contrary to s. 7.Section 8[32] I begin with the consideration of s. 8 because it appeared to be the more centralchallenge made [by] the applicants, and because counsel for the Faculty Association and thegrievors said during the course of the argument that the summonses were really obtained forthe purpose of compelling the production of the documents sought and not for the purpose ofcompelling Mr. Strofolino and Dr. Goldbloom to actually give evidence.2001 CanLII 27985 (ON SC)[33] The issue of what constitutes an unreasonable seizure has been the subject of variousdecisions of the Supreme Court of Canada although not in the context of this type ofproceeding. From a review of those cases, I conclude that it is established that service of asummons duces tecum on a person constitutes a seizure since it compels that person todeliver up documents to another person. In Thomson Newspapers Inc. v. Canada (Director ofInvestigation & Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425,47 C.R.R. 1, Madam Justice Wilson said, at p. 494 S.C.R.:Indeed, the consequences may be harsher when the individual is compelled to producethe documentary evidence since he may well produce evidence beyond that which thegovernmental authorities had reasonable grounds to believe existed. I believe, therefore,that on a purposive interpretation of the word “seizure”, compulsory productionconstitutes a seizure within the meaning of s. 8.[34] Similarly, Mr. Justice La Forest in the same case said, at p. 505 S.C.R.:I see little difference between taking a thing and forcing a person to give it up. I thus alsoagree with Wilson J. that an order to produce documents under s. 17 of the Actconstitutes a seizure within the meaning of s. 8 of the Charter. The real question under

s. 8, therefore, is whether a seizure made under s. 17 can be considered a reasonableseizure.[35] There was some question as to whether the conclusion in Thomson applied only in thecontext of criminal or quasi-criminal proceedings. Any such restriction was disavowed,however, by Madam Justice Wilson in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627,47 C.R.R. 151, where she said, at p. 642 S.C.R.:Thus, compelled production reaches beyond the strict filing and maintenancerequirements of the Act and may well extend to information and documents in which thetaxpayer has a privacy interest in need of protection under s. 8 of the Charter although itmay not be as vital an interest as that obtaining in a criminal or quasi-criminal context. Iwould therefore conclude that the application of s. 231(3) of the Income Tax Act to theappellants constitutes a “seizure” since it infringes on their expectations of privacy. Itremains to be determined, however, whether the state’s intrusion on that privacy interestis unreasonable or, to put it another way, whether it violates the taxpayers’ reasonableexpectation of privacy.2001 CanLII 27985 (ON SC)[36] The real issue to be determined is whether the seizure is an unreasonable seizure. Thispoint is made both by Wilson J., above in McKinlay, and by La Forest J., above in Thomson.The test for reasonableness will, however, vary depending on the nature of the proceeding inwhich the demand for the documents is made. This distinction is made by the Supreme Courtof Canada, again in Thomson, where Mr. Justice La Forest said, at p. 506 S.C.R.:Since the adoption of the Charter, Canadian courts have on numerous occasions takenthe view that the standard of reasonableness which prevails in the case of a search orseizure made in the course of enforcement of the criminal law will not usually beappropriate to a determination of reasonableness in the administrative or regulatorycontext;(Citations omitted)[37] The lessening of the standard of reasonableness in the administrative or regulatorycontext appears to be based on two factors. One is the potential for harm to the person beingcompelled to deliver up the documents (the potential for harm being greater in the criminal orquasi-criminal context), and the other is the expectation of privacy of the individual with

espect to the documents. It is considered that in the administrative or regulatory context,individuals will have a lesser expectation of privacy because they know they are subject toregulatory supervision of varying types and that, consequent on that supervision, will be thepotential for a demand to review documents, particularly business records, by the regulators.[38] Where then does a summons issued by a court in the civil context, by an administrativetribunal or by an arbitrator fall on the spectrum of the test for reasonableness? In my view, itmust fall much closer to the administrative and regulatory end than to the criminal orquasi-criminal end. If one considers the two factors I have mentioned, it is clear that thepotential for harm to the person producing the documents in such proceedings is low. Iconsider that the expectation of privacy is also low although I do not agree with thesubmission of the Faculty Association and the grievors that there is no privacy expectationsimply because the documents sought are principally business records. As Cory J. said in143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339 at p. 379,21 C.R.R. (2d) 245:2001 CanLII 27985 (ON SC)With all of that stated and accepted, there still remains some measure of privacy incommercial documents.[39] The expectation of privacy is low because it cannot, in this day and age, be outside therealm of reasonable possibility that any organization will find itself the subject of a summonsrequiring it to produce information in a proceeding, whether conducted before a court, atribunal or an arbitrator, involving parties to which it has some connection. I say someconnection since if the witness had absolutely no connection to any of the parties, it is difficultto see how that witness would have relevant evidence in the first place and, in such a case,the summons would presumably never be enforced.[40] That situation, however, does not arise in this case. Here there is a very clear connectionbetween the Hospital and the parties to both sides of this arbitration. As a consequence, Iconsider it reasonable to conclude that the Hospital would have realized that they mightbecome involved in just such a hearing as is underway here, given that it agreed with theUniversity to have joint appointments of their staffs. By agreeing to such joint appointments,the Hospital must have been alert to the possibility that it might become involved in somefashion in personnel-related proceedings to which their staff members would become entitledunder the University’s structure. Correspondingly, I assume that the University must have

een attuned to the possibility that it could become involved in any personnel proceedingsthat might occur within the Hospital’s structure. It would seem to be a natural and entirelypredictable consequence of adopting the arrangement which the University and Hospital didthat there would be such an overlap.[41] This conclusion is not, however, the end of the inquiry regarding reasonableness. Theprocedure by which the documents are compelled must still be evaluated to determine if it isreasonable, recognizing, however, that the question of reasonableness does not allow of anyfixed standard. As Wilson J. said in R. v. McKinlay Transport Ltd., supra, at p. 645 S.C.R.:Since individuals have different expectations of privacy in different contexts and withregard to different kinds of information and documents, it follows that the standard ofreview of what is “reasonable” in a given context must be flexible if it is to be realisticand meaningful.2001 CanLII 27985 (ON SC)[42] The applicants say that the procedure here is flawed for three reasons. First, there is nopre-screening of the documents being sought to establish, even on a prima facie basis, thatthey are relevant and necessary. Second, the summonses have been issued before there hasbeen production of documents by the parties and before the scope of the grievances hasbeen settled. Third, the body issuing the summonses is not independent or impartial.[43] In terms of the first point, practical realities have dictated that in the civil context (if I mayuse that as an umbrella term to describe the power of courts, administrative tribunals andarbitrators to issue summonses), a summons is issued in a clerical fashion in the first instanceand then any issues as to its proper scope or validity are dealt with after the summons isserved on the witness. To require pre-screening of all summonses by a judicial officer beforethey are issued by the court, for example, would place an unworkable burden on the judicialsystem and one that would involve a large expenditure of time and effort with very littlecorresponding benefit since the vast majority of summonses are validly obtained.[44] While one can respond to that concern by saying that such a burden does not arise in thecontext of an arbitration, there is still the issue as to how the pre-screening would take place.If it is done ex parte, there arises the very serious issue about communicating with thearbitrator in the absence of the party being affected with all of the consequences that flowfrom that. If the pre-screening is done by way of notice to the witness, then one winds up with

essentially the same process that will occur if the witness seeks to challenge the summonsonce it is served. As well, this latter process does not address what happens if the witnessrefuses to participate in such a hearing which, of course, is precisely what occurred in thiscase.[45] In these circumstances, I cannot conclude that the failure to have a pre-screeningprocess in place in and of itself renders the process unreasonable.[46] The second point is fairly made. Normally one would expect that summonses would notbe issued to witnesses before the scope of the hearing has been determined or before theparties themselves have exchanged documents. At the risk of stating the obvious, it would beextremely difficult to determine whether a summons was proper without these matters havingbeen settled. Counsel for the University made it clear that the University certainly takes issuewith the scope of the matters to be considered by the grievance committee. From its decision,it is clear that the grievance committee also considers this an open issue. It appears to me,therefore, that it would have been preferable for the Grievance Review Panel to have withheldthe issuance of any summonses until these various matters were resolved. I will say,however, that the Grievance Review Panel can be forgiven for this small transgression giventhat this was the first time that it had been called upon to engage in the process of issuingsummonses. In addition, the impact of having issued the summonses in circumstances whichcould be said to have been premature appears negligible. There was nothing preventing theapplicants from approaching the Grievance Review Panel and suggesting that thedetermination of any issues they had regarding compliance with the summonses should awaitboth the settlement of the issues to be arbitrated and the production of documents betweenthe parties. Indeed, I was left with the distinct impression based on the submissions ofcounsel for the respondent, Helmstadter, that, had such a suggestion been made by theapplicants, it would likely have found favour with the grievance committee.2001 CanLII 27985 (ON SC)[47] In terms of the third point, the applicants submit that this is an even more importantconsideration in the analysis of the Charter issues than it is with respect to whether theprocess is itself an arbitration. However, as I have already said in relation to the question ofwhether the Arbitration Act, 1991 applies to the grievance procedure, I do not accept that theGrievance Review Panel or the grievance committee is not an impartial and independentarbiter. Adding the sections of the Charter as another layer of issues to be considered does

not change my conclusion in this regard. In my view, the grievance process here is very muchlike the disciplinary processes which various professional organizations employ. In Pearlmanv. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, 6 C.R.R. (2d) 259, theSupreme Court of Canada rejected the suggestion that the discipline process of the LawSociety of Manitoba was biased because the members of the discipline committee were alsomembers of the Law Society. In that case, Mr. Justice Iacobucci, at p. 890 S.C.R., quotedwith approval from the decision of Chief Justice Monnin in Law Society of Manitoba v. Savino(1983), 1 D.L.R. (4th) 285, 6 C.R.R. 336 (Man. C.A.) where he said at pp. 292-93 D.L.R.:No one is better qualified to say what constitutes professional misconduct than a groupof practicing barristers who are themselves subject to the rules established by theirgoverning body.2001 CanLII 27985 (ON SC)[48] Similarly, here it can be said that no one is better qualified to determine what constitutesacademic freedom, and any infringement thereof, than members of the University who areconcerned with the same principles.[49] The decision in Pearlman v. Manitoba Law Society Judicial Committee, supra, alsoanswers the submission of the applicants that there is a reasonable apprehension of bias bythe applicants regarding the grievance committee. Mr. Justice Iacobucci said, at p. 883S.C.R.:Impartiality of the decision-making body is a critical feature of natural justice which iscaptured by the Latin maxim, nemo judex in causa sua debet esse—no one should bethe judge in his own cause. There are many different factual settings which could placethe impartiality of a decision-making body in question. Among such contexts aresituations where the decision-makers have or are perceived to have a pecuniaryinterest, either direct or indirect, in the outcome of the hearing before them. Anothersuch context is where the relationship of the decision-maker to one of the parties orcounsel is sufficiently close to give rise to a reasonable apprehension of bias.[50] There is no pecuniary interest suggested here. In terms of whether there is a sufficientlyclose relationship between the members of the grievance committee and the grievors, there isno factual foundation to establish such a relationship. Indeed, the suggestion appears to bethat the mere fact that the grievors and the members of the grievance committee are allfaculty members is sufficient to give rise to a reasonable apprehension of bias. I do not accept

that is a fair or reasonable conclusion to draw. If that were sufficient, it seems to me that thedisciplinary structures of virtually every self-regulating profession could be subject to thesame challenge. Further, the applicants were at pains to point out that the grievors onlyrecently became members of the Faculty Association as apparently suggesting that theirrecent membership was undertaken solely for the purpose of invoking the grievance process.Putting aside that issue, the fact that their membership was only recently obtained wouldseem to suggest that it is less likely than more that there would be any close relationshipbetween the grievors and the rest of the faculty members.[51] It seems to me that the fundamental failing in the applicants’ position is that they seek tochallenge the propriety of the summonses on the basis that they are an unreasonable seizurein a fashion that bypasses the very safeguards which make the issuance of the summonsesreasonable. The applicants have the opportunity to take their concerns to the grievancecommittee and have them determined. It may well be that the grievance committee will agreewith some or all of the concerns which the applicants have but the applicants have so farrefused to allow the committee the opportunity to make that determination. Further, even if thecommittee does not agree with the applicants’ concerns, the applicants have further remediesavailable to them. They can apply to the court to review the decision of the committee or theycan simply refuse to comply with the committee’s decision. In the latter case, the committeecannot enforce the summonses without invoking the aid of this court. If that happens, ofcourse, the applicants will then perforce have their opportunity to implore the court to take adifferent view of the validity of the summonses. The fact that the witness has the right tochallenge the summons is a factor to be used in determining whether the seizure effected bythe summons is a reasonable one—see Thomson Newspapers Inc. v. Canada (Director ofInvestigation & Research, Restrictive Trade Practices Commission), supra, per Wilson J. atp. 495 S.C.R.2001 CanLII 27985 (ON SC)[52] Further, s. 30 of the Arbitration Act, 1991 provides an additional level of protection to thewitness while at the same time providing some direction to the arbitrator or arbitration panel.As I read s. 30, it essentially imposes a requirement on the arbitrator to utilize the same rulesand to provide the same protections as any witness would have who was required to giveevidence in a proceeding before this court. I take that to mean that a person who issummonsed to give evidence (including the production of documents) is entitled to advanceclaims for solicitor and client privilege, to ask for measures to be taken to protect confidential

proprietary information or to protect information involving matters of personal privacy, toaddress issues as to the costs of complying with the summons and to have issues ofrelevancy, reasonableness and compellability determined. I would also take s. 30 as meaningthat a witness has the same right to the protections afforded by the Evidence Act, R.S.O.1990, c. E.23 and the Canada Evidence Act, R.S.C. 1985, c. C-5 insofar as the sections ofthose statutes have not been overtaken by the provisions of the Charter itself.[53] This point about prematurity in the challenge was made by Mr. Justice Strayer who, whilein dissent in Del Zotto v. M.N.R., [1997] 3 F.C. 40, 147 D.L.R. (4th) 457 (Fed. C.A.),subsequently had his reasons adopted by the Supreme Court of Canada when an appeal wasallowed at [1999] 1 S.C.R. 3, 169 D.L.R. (4th) 130. Mr. Justice Strayer said, at p. 484 D.L.R.:2001 CanLII 27985 (ON SC)Further, a subpoena duces tecum can be attacked generally or in respect of a particulardocument either before the hearing officer or if necessary on judicial review, if it can bedemonstrated that in the particular circumstances someone’s constitutional right is aboutto be violated. (See e.g. Thomson, supra, at 532, 534-5, 613.) Objections could also beraised then as to the relevance of a particular document to the legitimate purposes of theinquiry.[54] I conclude therefore that the mere issuance of the summonses by the Grievance ReviewPanel at this stage of the proceeding does not constitute an unreasonable seizure such aswould offend s. 8 of the Charter.Section 7[55] The issue with respect to s. 7 of the Charter can be dealt with more briefly. It is clear fromthe decisions of the Supreme Court of Canada that a summons does involve a deprivation ofliberty such as to invoke the protection of s. 7. Again, however, the issue becomes whetherthat deprivation of liberty has been undertaken in accordance with the principles offundamental justice. Mr. Justice La Forest made this clear in Thomson Newspapers Inc. v.Canada (Director of Investigation & Research, Restrictive Trade Practices Commission),supra, where he said, at p. 536 S.C.R.:I agree with my colleagues that the power conferred by s. 17 to compel any person togive oral testimony constitutes a deprivation of liberty within the meaning of s. 7. The

eal question for determination is whether this deprivation is in accordance with theprinciples of fundamental justice.[56] Mr. Justice La Forest also made two points regarding the principles of fundamentaljustice which are worthy of repetition here. He said, at p. 540 S.C.R.:The first is that these principles vary with the context. It was thus put in R. v. Lyons,supra, at p. 361:It is also clear that the requirements of fundamental justice are not immutable:rather, they vary according to the context in which they are invoked. Thus, certainprocedural protections might be constitutionally mandated in one context but not inanother.2001 CanLII 27985 (ON SC)The second point, also mentioned in R. v. Lyons, at p. 362, is “that s. 7 of the Charterentitles the appellant to a fair hearing; it does not entitle him to the most favourableprocedures that could possibly be imagined”; see also R. v. Beare, supra, at p. 412.[57] There are two main grounds advanced by the applicants as establishing that theprinciples of fundamental justice have not been applied here. The first is again the issue ofthe alleged lack of independence of the arbiter. I have already disposed of that argumentabove and I will not repeat it here. The second ground is that the summons does not advisethe witness that he or she has the right to challenge its issuance either before the tribunal orbefore the court.[58] While it might be preferable for the summons to have a notice in it advising the target ofthe summons that he or she has the right to challenge the summons before the arbitrationpanel, I note that no such notice is contained in the form of summons under the Rules of CivilProcedure, R.R.O. 1990, Reg. 194, or for the form of summons under the Statutory PowersProcedure Act. However, accepting that it might be preferable for such a notice to be includedin the form of summons, I do not see that its absence can be elevated to a breach of theprinciples of fundamental justice. I was not referred to any authority which suggests that theabsence of such a notice constitutes a breach of fundamental justice. The absence of a noticeis to be contrasted to the absence of the right to challenge itself, which clearly wouldconstitute such a breach. Rather, it seems that the issue of whether such a notice appears inthe summons would fall under the reference, from R. v. Lyons, [1987] 2 S.C.R. 309,

44 D.L.R. (4th) 193 quoted by La Forest J. above, to the “most favourable procedures thatcould possibly be imagined”.[59] I conclude therefore that the summonses issued by the Grievance Review Panel, insofaras they constitute a deprivation of liberty, do so in accordance with the principles offundamental justice. As such, they do not offend s. 7 of the Charter.[60] In the end result, therefore, the application by Mr. Strofolino and Dr. Goldbloom for adeclaration that the grievance committee lacked jurisdiction to issue the summonses and foran order quashing the summonses or, in the alternative, for a declaration that s. 29(1) of theArbitration Act, 1991 is of no force or effect because it is inconsistent with ss. 7 and 8 of theCanadian Charter of Rights and Freedoms, is dismissed.2001 CanLII 27985 (ON SC)The application to enforce the summons[61] I now turn to the application brought by the Faculty Association and the individualgrievors to enforce the summons. The Chair of the Grievance Review Panel takes theposition that this application is premature. I agree. I have already noted above that the scopeof the grievance is not yet settled. I have also noted that there has yet to be production ofdocuments between the parties. Finally, the grievance committee itself has not as yet ruled onthe matters covered by the summonses. Until all of those events have taken place, I do notconsider that it is proper for the court to be asked to consider any relief consequent on anyfailure to obey the summonses. It may be that, once these various matters are determined,there will be a different decision by the witnesses regarding whether they will honour thesummonses.[62] The application brought by the Faculty Association and the individual grievors to enforcethe summonses is therefore dismissed but without prejudice to any fresh application beingbrought should that prove necessary after the grievance committee has dealt with the mattersI have mentioned.Summary[63] Both applications are therefore dismissed. The parties may make written submissions onthe appropriate disposition of the costs of the applications assuming that they cannot agreeon that disposition. I am also prepared to fix the costs of the applications upon receipt of

proper material in that regard. The submissions of the Faculty Association and the grievorsand of the University of Toronto and of Richard Helmstadter shall be filed within 15 days ofthe release of these reasons and the response of Michael Strofolino and Dr. Alan Goldbloomshall be filed within ten days thereafter. No reply submissions are to be filed without leave. Asalways, I would appreciate it if counsel could keep their submissions brief.Applications dismissed.2001 CanLII 27985 (ON SC)