As the pandemic lingered and the state of emergency closed the Ontario courts and administrative systems we were forced to change the way trials and hearings proceeded. This was a careful balancing act between the right to a hearing and the need to minimize the infection rate of COVID-19.
While first Courts and Tribunals closed within four months they adapted to the “new norm”. On-line cloud systems for document filing were put in place. Judges and Court Staff learned to work from home. We have continued to have trials and hearings by video conference using Zoom and Microsoft Meeting technology.
Despite these long-lasting changes necessitated by the pandemic the Ontario Labour Relations Board is one of the last remaining tribunals refusing to allow recordings. While its hearings are open, unless there is a good reason there will be no recording. What is particularly odd is Adjudicators of the Ontario Labour Relations Board are instructed to turn off the recording function (which is part of video conferencing) so that there is no formal record.
Amongst its arguments for not allowing recordings the Ontario Labour Relations Board claims its process is less formal than a trial in front of a judge therefore a recording is not necessary. This is not my experience. On the contrary, the Ontario Labour Relations Board is a fully regulated administrative tribunal responsible for adjudicating all disputes under both he Occupational Health and Safety Act and the Employment Standards Act.
It has Rules, followed closely by its Adjudicators, akin to the Rules of Civil Procedure followed by jurists. The Ontario Labour Relations Board Rules and Regulations dictate mandatory timelines, rules regarding presentation and exchange of evidence, rules about how to ask questions during the hearing, and the requirement to present legal arguments by way of formal closing statements.
Turning off the recording function inevitably leads to the question, “is something to hide””. It creates a sense of distrust amongst the parties towards each other and the Ontario Labour Relations Board. Recordings protect Adjudicators from this type of criticism. Recordings ensure the fair conduction of hearings. Furthermore, the inability to obtain a valuable record of proceeding may limit the right of Appeal or Judicial Review. Recordings can be utilized as a memory aid when a hearing is conducted over the course of several months.
The argument that the Ontario Labour Relations Board Hearings have never been recorded is old-fashioned and out-dated. Technology by its very nature has a recording and translating function. There is no additional cost or wasted resources.
We don’t carry the same cell phone we did 20 years ago; why aren’t we making use of the resources available?