HomeMy WebLinkAbout2003-3101.Koonings.06-02-17 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2003-3101, 2003-3914, 2004-2011, 2004-2012, 2004-2013, 2004-2016, 2005-0085
UNION# OLB531/03, OLB016/04, OLB504/04, OLB505/04, OLB506/04, OLB509/04, OLB083/05
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Koonings) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION Ernest A. Schirru
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Richard J. Charney
Ogilvy Renault LLP
Barristers and Solicitors
HEARING January 12 and 13, 2006.
2
Decision
[1] At the hearings of January 12 and 13, 2006 in this matter I gave certain oral
directions with respect to the production of documents. Those directions were
confirmed and elaborated in an order issued in writing on January 27, 2006, with
reasons to follow. These are the reasons.
Background
The Grievances
[2] At the time of the events in question in these proceedings, the grievor, Tina
Koonings, was a Customer Service Representative in the LCBO’s Private Ordering
Department, which is part of the LCBO’s Logistics Facility. That department handles
requests made by agents of manufacturers and suppliers of alcoholic beverages that the
LCBO purchase and warehouse their principals’ products, in anticipation of resale by
the LCBO to licensed vendors to whom the agents promote those products. Such agents
must be licensed under the Liquor License Act, R.S.O. 1990, c. L.19.
[3] In August 2003 one of those agents, Lifford Wine Agencies Limited (“Lifford”),
caused summonses to be served on the grievor and several other employees in the
Private Ordering Department, requiring that they attend to testify at a hearing that
scheduled by the Alcohol and Gaming Commission of Ontario (“the AGCO”) to consider
proposals to revoke Lifford’s license. The grievor alleges that after she received such
summons Mr. David French, the manager of the Private Ordering Department,
threatened her that “If you tell the truth and if the LCBO in any way perceives that you
are aiding the agent in their case, … your career at the LCBO will be history ... And
[your] time in the Private Ordering Department would be made extremely difficult” and
told her that “I would make a very, very strong recommendation for you ... I advise you
that your idea of the truth should be the following sentences: ‘I don’t remember’ and ‘I
don’t recall’.” The grievor testified to that effect before the AGCO in September 2003.
The course those hearings took thereafter is described in Ontario (Liquor Control
Board) v. Lifford Wine Agencies (2005) 76 O.R. (3d) 401 (Ont. C.A). In October 2003 the
3
grievor filed the first of the nine grievances now before me, which is focused on this
alleged misconduct by Mr. French.
[4] The second grievance concerns an allegation that in December 2003 the
employer filled a position for which the grievor had previously competed unsuccessfully,
without conducting a fresh competition.
[5] The next six grievances were filed in July 2004. In them, the grievor complained
that she had been harassed and discriminated against over a period of months by some
members of management in the Private Ordering Department, and by bargaining unit
employees whose behaviour management encouraged, approved or at least failed to
restrain, and that the employer had not responded appropriately to her complaints
about this harassment and discrimination. On her behalf the union alleges, among
other things, that these acts and omissions by management were in reaction to the
grievor’s having testified as she did in the proceedings before the AGCO, and was in
furtherance of the threats she alleges were made to her in August 2003 by Mr. French,
who had in the meantime had been moved to a higher management level in the
Logistics facility.
[6] The last of the grievances before me challenges management’s decision in
January 2005 to suspend the grievor for a month and transfer (or, as the union would
say, demote) her out of the Private Ordering Department into a position in a retail
store. The stated reasons for imposing the suspension and effecting the transfer were
that she had “initiated complaints against managerial and bargaining unit employees
which have no basis at all,” had pursued complaints “with malice and for an improper
purpose” and had “chosen to abuse the grievance process in order to harass and
intimidate LCBO employees”, and that these actions, and her other allegations against
and conflicts with management over the years, had made her continued employment in
the Private Ordering Department or elsewhere in the LCBO’s head office environment
untenable.
These Proceedings
[7] On the first day of hearing the parties were in dispute about the order of
proceeding, and there were issues about the production of documents. Although there
had already been some exchange of information and documents between counsel, I
4
ordered that each party deliver to the other written particulars of the allegations of fact
on which it relied and copies of any documents in its possession, custody or power on
which it might wish to rely in the hearing. Any question of compelling production by a
party of documents other than those on which it might wish to rely was expressly
postponed. This was because, as I told counsel orally at the time, determinations of the
arguable relevance of any such documents could not be made without first knowing
with particularity what facts were in dispute, and because the initial exchange of all
documents on which each party wished to have the opportunity to rely would better
inform the parties’ decisions about whether and what to what extent further production
of documents might be needed.
[8] Delivery of particulars and relied-upon documents occurred on an agreed-upon
timetable that concluded about a week before hearings resumed on December 5 and 7,
2005. During those hearings union counsel said he thought employer counsel had
represented to him that the documents already produced on behalf of the employer
were all documents in its possession, custody or power that might be relevant to any of
the issues in dispute. Employer counsel said that he had not made such a
representation and was not in a position to make a representation to that effect.
The Union’s Request for Production
[9] On December 12, 2005, union counsel requested of employer counsel that the
employer disclose to the union
all emails and/or other forms of communication and/or correspondence between
LCBO managers and/or supervisors that in any way relate to Ms. Koonings.
Employer counsel responded that the LCBO did not agree to do so:
You are asking the LCBO to join with you in an unreasonable fishing expedition
which it is not prepared to do. Nor, as you suggest, can such documentation be
arguably relevant when the request is so broad, in terms of subject matter and
chronology, as to be of no obvious relevance.
After some further telephone conversations, union counsel requested
disclosure of all arguably relevant emails and/or other forms of communication
and/or correspondence between LCBO managers and/or supervisors that in any way
relate to Ms. Koonings from August 2003 to date. For further clarity, this request
does not include correspondence that is subject to solicitor-client privilege.
(emphasis added)
5
[10] Counsel could not reach agreement, and union counsel asked that I order the
employer to produce all arguably relevant emails and/or other forms of communication
and/or correspondence to or from (rather than just “between”) LCBO managers and/or
supervisors that in any way relate to Ms. Koonings from August 2003 to date.
Argument
[11] Union counsel explained that he sought correspondence arguably relevant to the
union’s allegations of harassment by management and/or the employer’s allegation that
the grievor’s continued employment as a CSR in the Private Ordering Department was
untenable. His position was simply that production of arguably relevant documents
should be ordered in the circumstances.
[12] Employer counsel submitted that there is no equivalent in labour arbitration of
the obligation of parties in civil litigation to produce all relevant documentation. While
acknowledging that an arbitrator has the power to require a party to produce more
than just the documents on which that party may wish to rely, he argued that an order
of the sort sought by the union would unfairly put the employer in a position of having
to assess relevancy, an assessment that he described as “subjective” and “potentially
arduous.” He submitted that the union’s request was so broad as to constitute a “fishing
expedition,” that the party seeking production was obliged to particularize its request
more than the union had, and that there must be a nexus between the materials sought
and the issues in dispute. He submitted that requiring broad production is
contraindicated in labour relations matters, as it disrupts the workplace and creates a
sense of unfairness. This is particularly so, he argued, because by contrast with civil
litigation there is no provision in labour arbitration for an award of costs, so one party
can put the other to the expense of broad production with impunity. He noted that in
some cases grievors and trade unions make broad allegations of “bad faith” in which
arguable relevance could cast a wide net, and that arbitral unwillingness to facilitate
“fishing expeditions” should take this into account. Reference was made to McQueen,
GSB #0383/97, (October 5, 1998, Briggs), Tone, GSB #2693/96 (September 22, 2000,
Dissanayake), Re Laurentian Hospital and Ontario Nurses’ Association (1997), 67
L.A.C. (4th) 289 (Pineau), and Re Canada Post Corp. and Canadian Union of Postal
6
Workers (Best) (1986), 24 L.A.C. (3d) 157 (Weatherill) for various statements of
principle contained therein.
Analysis
[13] By virtue of section 2 of the Crown Employees Collective Bargaining Act (1993,
S.O. 1993, c. 38), various provisions of the Labour Relations Act, 1995 (S.O. 1995, c.1,
Schedule A, as amended – “the LRA”) apply to the proceedings of the Grievance
Settlement Board, including subsection 12 of section 48. That subsection provides that
(12) An arbitrator or the chair of an arbitration board, as the case may be, has
power, …
(b) to require any party to produce documents or things that may be relevant
to the matter and to do so before or during the hearing;
The addition of that provision to the then Labour Relations Act in 1993 put an end to
debate about whether labour arbitrators in this province have the power to compel pre-
hearing production of documents by parties otherwise than pursuant to their power to
issue and enforce a summons.
[14] Subsection 48(12) of the LRA does not oblige parties to make pre-hearing
disclosure of documents in the absence of an order, as parties to civil litigation are
obliged to do as a matter of course under the rules of civil procedure. In that respect
employer counsel is correct that there is no equivalent of that obligation in labour
arbitration proceedings. I do not agree, however, that an arbitrator’s imposing such an
obligation, at an appropriate stage and in an appropriate manner, is somehow inimical
to the purposes of labour arbitration or to the interests of good labour relations
generally.
[15] Good labour relations require that the process for resolving rights disputes at
arbitration be both expeditious and fair. Full pre-hearing disclosure of all arguably
relevant documents advances that interest. In that regard I adopt the observations of
arbitrator Germaine in British Columbia v. British Columbia Government and Service
Employees’ Union, [2003] B.C.C.A.A.A. No. 150 at paragraph 48:
¶48 Pre-hearing production of relevant documents is consistent with the right of
parties to a fair hearing and the process values of expedition and cost saving: Pacific
Press Limited and The Newspaper Guild, Vancouver-New Westminster Guild, Local
115, (1983), 2 CLRBR (NS) 277 (BCLRB Decision No. 109/83). Fairness is advanced
by assisting the parties to know and prepare for the case they must meet, and by
7
avoiding unfair surprise at the hearing. Expedition and economy are served by
minimizing the adjournments necessitated by unanticipated evidence at the hearing.
These considerations, combined with the absence of any structured procedure in
labour arbitration, recently persuaded a prominent arbitrator to take “a liberal view
... with respect to the production of documents”: Toronto District School Board and
CUPE, Local 4400 (2002), 109 L.A.C. (4th) 20 (Shime), at page 31. The same
considerations have been recognized specifically in relation to pre-hearing production
of medical documents containing personal and private information: West Park
Hospital and ONA (1993), 37 L.A.C. (4th) 160 (Knopf), at page 167; Stelco and
U.S.W.A., Local 1005 (1994), 42 L.A.C. (4th) 270 (Dissanayake), at page 274.
That fairness favours full production is underscored by the decision of the Court of
Appeal in Ontario (Liquor Control Board) v. Lifford Wine Agencies, supra, which held
that the AGCO’s failure to compel production of documents at the request of a party to
the proceedings (in that case by refusing to issue or enforce a summons duces tecum to
a third party) amounted to a denial of natural justice.
[16] Expedition and fairness are not the only interests worthy of attention in matter
of production of documents. Arbitrator Germaine’s award dealt with another common
consideration: concerns about the privacy of personal medical information. As that
award and others illustrate, such privacy concerns warrant care in assessing what
might be arguably relevant, and caution in fashioning a pre-hearing production process
that provides for disclosure only to those whose participation is needed in order to
assess either arguable or actual relevance as those issues arise. The same may be said
about other sorts of information that, while not privileged as a matter of law or policy,
is so clearly confidential or private in the ordinary sense of those words that those to
whom the information belongs have a legitimate interest in special protection from any
more disclosure than is necessary, particularly before the documents have been found
admissible and admitted into evidence in a public hearing. In that regard I remain of
the view that any party who seeks an order for pre-hearing production impliedly
undertakes not to make use of the information thus obtained except for the purposes of
the proceeding in which the order was made: Re Thermal Ceramics, Division Of
Morganite Canada Corp. and United Steelworkers (1993), 32 L.A.C. (4th) 375 (Gray) at
p. 383. If in any case there is any doubt that such an undertaking is implied, then that
limitation should be made express in the order for production. I did not understand
there to be any such doubt here. Counsel seemed satisfied that they could resolve
between themselves any concerns about having a pre-hearing production process that
8
adequately protects commercial and personal interests in the privacy or confidentiality
of non-privileged, arguably relevant documents.
[17] I considered the then recently enacted predecessor of subsection 48(12) of the
LRA in Re Thermal Ceramics, supra. I concluded there that if a party has arguably
relevant documents that it could be compelled by summons to bring to the hearing, it
bears the burden of showing why it should not be ordered to produce those documents
in advance if the opposite party requests. That award did not stand for the proposition
that production should be compelled only for arguably relevant documents on which the
producing party intends to rely, as was argued before arbitrator Briggs in Re Children’s
Aid Society of the City of Belleville and City of Trenton and Canadian Union of Public
Employees, Local 2197 (1994), 42 L.A.C. (4th) 259. She quite properly rejected that
argument. My view was and is that arguable relevance is the test for determining the
scope of pre-hearing production, subject only to claims of privilege and suitable
constraints on who is to have access to the produced documents and on the use to which
they may put the information in the documents.
[18] In Re West Park Hospital and Ontario Nurses’ Association (1993), 37 L.A.C.
(4th) 160 (referred to in McQueen, supra) arbitrator Knopf wrote (at page 167)
… where the disclosure is contested, the following factors should be taken into
consideration. First, the information requested must be arguably relevant. Second,
the requested information must be particularized so there is no dispute as to what is
desired. Third, the board of arbitration should be satisfied that the information is not
being requested as a “fishing expedition”. Fourth, there must be a clear nexus
between the information being requested and the positions in dispute at the hearing.
Further, the board should be satisfied that disclosure will not cause undue prejudice.
In this regard, the criteria set out in the Desmarais v. Morrissette case are applicable
in terms of weighing whether or not privileged information should be protected.
[19] It is not apparent to me, either from the West Park Hospital award or otherwise,
what the “clear nexus” test adds to the “arguable relevance” test. Evidence must have a
probative nexus with an allegation of fact that has been put in issue by one party and
disputed by the other before it can be said to be arguably relevant. Evidence that is
arguably relevant must of necessity have such a nexus with a disputed allegation of
fact. Of course, it must first be apparent what factual issues are in dispute before one
could apply either test. The arguable relevance enquiry, and hence an order for
production, may be premature if the issues in dispute have not been clearly defined.
That appears to have been the case in Re Laurentian Hospital, supra, where the
9
arbitrator observed at page 299 that “This extensive request of documents represents a
dilemma in the sense that the union has not yet put forward its ‘theory’ of the case
which would allow me to judge the relevancy of the requested documents.”
[20] A “fishing expedition” is said to be an endeavour “not to obtain evidence to
support [a] case, but to discover whether [one] has a case at all”: Canada Post, supra, at
57 L.A.C. (3d) 159. If one can have production only of documents arguably relevant to
allegations of fact already put in issue in the case at hand, it follows that there cannot
be production in aid of discovering a case not already asserted. Viewed in that way, the
“no fishing expedition” test is really nothing more than a corollary of the arguable
relevancy test. The difficulty with the “fishing expedition” metaphor, however, is that it
may evoke irrelevant considerations, such as whether the party seeking production
already has some evidence to support the allegations of fact it has put in issue.
Although made in the context of a dispute about the propriety of questions asked on
examination for discovery, the observations of Seaton, J.A. in Cominco Ltd. v.
Westinghouse Canada Limited et al., (1979) 11 B.C.L.R. 142 (B.C.C.A.) at p. 149 bear
equal application in this context:
Counsel said that one cannot embark on a fishing expedition. I find little help in that
statement. I take it that a fishing expedition describes an examination of discovery
that has gone beyond reasonable limits into areas that are not and cannot be
relevant. In those waters one may not fish. In other waters one may. That one fishes
is not decisive, it is where the fishing takes place that matters.
[21] The law relating to summonses duces tecum is that such a summons should
identify the documents sought with sufficient particularity to enable the summonsed
witness to know what it is that s/he must bring to the hearing. “Bring all arguably
relevant documents” is generally not enough, because summonses are addressed to
individuals who are almost never themselves parties to the dispute, and who generally
cannot be expected to know what issues are in dispute in the proceeding. A party, on
the other hand, is entitled to particulars of the issues are in dispute, and once it has
those particulars it is in a position to know what documents would be arguably
relevant. The assessment required is not “subjective,” as employer counsel argued. It is
not unfair to expect a party to perform that assessment, with the assistance of those
who advise it with respect to its legal rights and obligations.
10
[22] The arbitral jurisprudence about production of documents is rich with debates
about whether one party will be ordered to produce to the other all documents of a
particular kind or class defined without express use of the qualifying words “arguably
relevant.” When the issue is framed in that way it is necessary to determine whether a
document’s being of the defined kind or class would be sufficient, without more, to make
it arguably relevant. The definition used may fail that test if it is insufficiently
particular. Accordingly, when one party seeks production from the other of all
documents of a particular kind or class defined without express use of the qualifying
words “arguably relevant,” the observation that the request must be particularized may
be nothing more than identification of one of the logical consequences of the arguably
relevant test. When more is intended by such a requirement, however, if it is intended
as a restriction on access to documents that are otherwise arguably relevant (as those
sought here must necessarily be, since the request before me is expressly limited to
“arguably relevant” documents), then such a limitation is objectionable for the reasons
given by arbitrator Shime in Re Toronto District School Board and Canadian Union of
Public Employees, Local 4400 (2002), 109 L.A.C. (4th) 20 at pp. 32-33:
Some of the arbitration decisions require a requesting party to particularize the
documents it wishes to have produced with some precision. However, while I
acknowledge that parties to the arbitration process live together in a continuing
relationship and know something about each other’s affairs, they cannot be expected
to be fully aware of each other’s internal affairs. Given the general purpose for
producing documents, where the knowledge of those documents lies, coupled with the
minimal pre-hearing procedures in the arbitration process, and after considering
where the onus to produce documents lies, it is my view, that while a request for
particular documents may be helpful, the request for particulars should not be
scrutinized too carefully for precision. Where a party is served with a general request
to produce documents as indicated above, it must produce every document relating to
any matter in issue which is seemingly or arguably relevant. Needless to say, I find
that the civil rules make greater sense than the established arbitral rules, by
requiring the party who has possession, power or control over the documents to
produce them. To require a party who has not had possession, power or control over
the documents, or who may not be completely aware of the documents or their
contents to identify them with any precision or particularity seems contrary to
common sense.
[23] In that award arbitrator Shime, a former Chair of this Board, compared the civil
litigation and labour arbitration processes. He concluded that despite the differences
between it and civil litigation, should be the same broad pre-hearing disclosure of
“every document relating to any matter in issue that is or has been in the possession,
11
control or power of a party” when either party to a labour arbitration proceeding
requests it. I agree.
[24] I am not dissuaded from adopting arbitrator Shime’s view by the fact that
parties to collective agreements almost invariably choose not to confer on arbitrators
the power to award costs, nor by hypothetical concerns about the effect of trade union
allegations of bad faith and the like on the scope of production.
[25] Unlike the vast majority of parties to civil litigation, the employer and trade
union parties to labour arbitrations proceedings almost always have a continuing
relationship. It might be argued that the existence of that relationship is, generally, at
least as effective a constraint on litigious excesses as the threat of an award of legal
costs is in civil litigation. In any event, I do not accept that when the parties choose not
to confer on arbitrators a jurisdiction to award costs this carries with it some
implication about the extent to which they can expect or be expected to make disclosure
to one another of information pertinent to the resolution of disputes between them.
[26] An allegation of “bad faith” or the like by a union would be made in relation to
management’s having taken or failed to take some particular action for legally
improper motives. Before production of documents could be sensibly addressed in such
a case, either by the employer or by an arbitrator, particulars of the acts or omissions
complained of would be needed, from which it would become apparent which
individual’s (or individuals’) motivation was in issue and during what time frame. It is
not at all obvious that allegations of bad faith and the like of necessity make an
obligation to produce arguably relevant documents limitless. In addition, it is hardly an
objection to the doing of justice that its requirements may be burdensome.
[27] Although less onerous that the test for admission into evidence, the arguable
relevance test does have limits. It does not require production of documents which could
have no probative value with respect to a disputed fact, either alone or in combination
with any other testimonial or documentary evidence the party seeking them intends to
adduce. Evidence with no possible probative value can have no relevance. It may be
consistent with fairness and natural justice to delay or reject an application for
production of documents for which an extensive and expensive search would be
required if it appears that the documents sought are of such marginal probative value
12
that to compel a search for them would be oppressive. I leave that question to another
occasion. It did not appear to arise here.
[28] Although I do not accept that particularization by the requesting party is a
prerequisite to production independent of the implications of the “arguably relevant”
test, I do agree that when framing an obligation to produce documents other than those
relied upon by the producing party it is desirable that the scope of the obligation be
made as clear as possible. In this regard I reiterate some of the observations I made in
Re Thermal Ceramics, supra, at pp. 379-380:
The subsection confers or confirms powers, but does not dictate how those powers are
to be exercised. Their exercise should be guided by the evident intent of the Act that
the arbitration of disputes under collective agreements be as expeditious a means of
resolving those disputes as it can be without being an unfair one. The parties to
proceedings in civil courts have the right to particularized pleadings, production of
documents and pre-trial discovery of opposite parties. Much attention is focused on
the scope of the parties’ corresponding obligations in that regard. Much argument is
had over whether those obligations have been met. And a hearing on the merits of
the parties’ dispute does not proceed in that forum until those obligations and any
disputes about them have been met and resolved. In the result, the average piece of
civil litigation proceeds at a rather slower pace than can be and generally is achieved
in the arbitration of collective agreement disputes. No doubt that has something to do
with why the legislature chose not to burden the grievance arbitration process with
mandatory pre-hearing proceedings of the sort available by right in civil litigation.
The legislature has left it to the arbitrator charged with deciding a collective
agreement dispute to judge whether and to what extent there should be any
compelled pre-hearing exchange of information. In my view, one of the considerations
to be taken into account in making that judgment is the possibility that an order
intended to expedite the hearing and disposition of the matter may have the opposite
effect. Once there is an order compelling a party to do something it has not agreed to
do, there is then the possibility of disputes about what the order means, how it
applies to unanticipated circumstances, whether it has been complied with and what
the consequences of non-compliance should be. The resolution of such disputes may
consume the very hearing time and expense which the order was intended to save,
and more, without advancing the resolution of the underlying dispute even as much
as it would have been had no order been made. That will not always be so, but it is a
risk which must be weighed against the possible benefits of a more structured and
onerous pre-hearing disclosure process.
This is not to say that enabling one party’s access to arguably relevant documents in
the possession of the other is in some the sense optional. The challenge in exercising
jurisdiction under subsection 48(12) of the LRA is to enable access while minimizing the
possibility of subsequent distracting and unproductive disputes about the scope of the
obligation initially imposed. When the initial request is baldly framed as “all arguably
relevant documents,” it is desirable that further particularization be attempted by the
requesting party, by the responding party and, if necessary, by the arbitrator.
13
Particularization “so there is no dispute as to what is desired” may not always be
possible, however, and the mere possibility of dispute about what an order requires is
not an objection to making it.
Decision
[29] My initial response to the union’s application was that the managerial
communications concerning the grievor that were likely to be relevant in this matter
were communications to or from individuals expressly identified in the parties’
particulars as having engaged in acts or omissions complained of by the grievor,
including those involved in making the decisions complained of. I ruled first that
written and email communications to or from each such person concerning the grievor
should be produced for a period that was in each case sensible having regard to that
person’s alleged involvement. I invited further submissions as to who those persons
were and what time period was sensible in each case. I also invited submissions as to
whether there were any members of management other than those mentioned whose
communications might be arguably relevant.
[30] The ensuing discussion started with a list of the names of all individuals whose
conduct had been put in issue in the particulars, including some bargaining unit
employees. The names of all but one of those bargaining unit employees were removed
in recognition that it was only communications between them and a listed manager
that were likely to be relevant, and that the participation of the listed manager would
make all such communications producible. Union counsel proposed adding two senior
members of management to the list and offered a tenable basis for arguably relevance
of any communications that may have passed between them concerning the grievor. I
resolved the mostly minor differences between them as to the relevant periods, and
ordered as follows:
[1] The employer is directed to produce to the union all arguably relevant email
messages and other forms of written communication and correspondence relating to
Tina Koonings that were sent by, on behalf of or to any of the following individuals
during the period August 1, 2003 to March 31, 2005, inclusive (or as otherwise noted)
of which an original or copy is in its possession, custody or power:
David French Geoff Allaire
Mark Upton Ron Bartucci
14
Maggie Plant Ian Martin
Peter Cahill
Chris Martin (sent or received during the period May 11
2004 to December 31, 2004, inclusive)
The employer is also directed to produce to the union all arguably relevant email
messages and other forms of written communication and correspondence relating to
Tina Koonings that passed between Bob Peter and Murray Kane during the period
August 1, 2003 to March 31, 2005, inclusive, of which an original or copy are in its
possession, custody or power.
[31] Employer counsel sought an order for production by the union and the grievor of
relevant documents. Once the terms of the order for production by the employer had
been determined, counsel were able to agree in general terms on the scope of the order
concerning communications to and from the union and the grievor, including provisions
authorizing the employer to search email and other computer data and archives in its
own possession, custody or control for communications to and from the grievor. I note
particularly that I was not called upon to decide whether communications between the
grievor and anyone at “Lifford Agencies or Miriam Rogers Agencies” would be arguably
relevant. I prepared a draft fleshing out the mechanics of production and invited the
submissions of counsel on the aspects of the draft that had not been expressly
determined by me or agreed by the parties at the hearing. Taking into account their
submissions, the balance of the formal order for production provided as follows:
[2] The union is directed to produce to the employer all arguably relevant email
messages and other forms of written communication and correspondence of which an
original or copy is in the possession, custody or power of the union or grievor, Tina
Koonings, that were sent by, on behalf of or to Tina Koonings during the period
August 1, 2003 to March 31, 2005, inclusive. I note that the union and grievor have
agreed, without admitting relevance, that the email messages and other written
communications to be produced pursuant to this paragraph include email messages
and other written communications between Tina Koonings and any principal,
employee or representative of either Lifford Agencies or Miriam Rogers Agencies.
[3] The parties and the grievor are directed to promptly conduct appropriate paper
and computer searches in order to comply with this order. Each arguably relevant
document for which no claim of privilege is asserted is to be copied to counsel
opposite or made available for inspection by counsel opposite and/or a representative
of the opposite party. Documents for which any claim of privilege is asserted may be
withheld from production to the opposite party pending resolution of any dispute in
that regard, but the party making the claim shall provide counsel opposite with a list
of all such documents including (for documents other than communications between
the grievor or a representative of one of the parties and a member of the Law Society
of Upper Canada acting on her or the party’s behalf) a description of each such
document sufficient to uniquely identify it together with particulars of the
15
surrounding circumstances on which the claim of privilege in respect of that
document is based. Documents for which no claim of privilege is made are to be
copied to or made available for inspection by the opposite party, and lists of
documents for which such a claim is made are to be provided to the opposite party, on
or before February 9, 2006 or such other date as the parties may agree.
[4] The grievor is obliged to promptly put the union in a position to comply with its
obligations under the two previous paragraphs in so far as they relate to documents
in her possession, custody or power.
[5] I am told that the employer’s IT staff are reluctant to facilitate a search of an
employee’s workplace computer or his/her server-based LCBO email account data or
any stored data relating to such an account, without some form of authorization or
justification. For clarity, therefore, I note that this order authorizes and requires that
the employer search any computer or machine readable data in its possession,
custody or power in which there is reason to believe that copies of messages or
communications referred to in paragraph [1] may exist.
[6] Further, the employer is entitled and authorized to search any computer or
machine readable data in its own possession, custody or power in which there is
reason to believe there may be copies of arguably relevant messages sent to or from
the grievor at or from an LCBO email address (an address in the lcbo.com domain or
any other domain used by the LCBO in its business) in the period August 1, 2003 to
March 31, 2005, inclusive, including any communication of the sort described in the
second sentence of paragraph [2] above. Since in that period email messages could
have passed between the grievor at a non-LCBO email address and someone at an
LCBO email address, the employer is also authorized to search any present or former
workplace computer and any LCBO email account data of any employee named in
the particulars exchanged by the parties in these proceedings, in order to locate
arguably relevant email messages sent in that period pertaining to Tina Koonings.
Each arguably relevant document located as a result of a search described in this
paragraph is to be copied to or made available for inspection by the union, whether
the employer intends to rely on it or not.
Dated at Toronto this 17th
day of February, 2006
Owen V. Gray, Vice-Chair