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HomeMy WebLinkAbout2003-3923.Goncalves.05-08-25 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# 2003-3923 UNION# OLB048/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Goncalves) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Joseph D. Carrier Vice-Chair FOR THE UNION Jackie Crawford Koskie Minskie LLP Barristers and Solicitors FOR THE EMPLOYER Gordon Fitzgerald Counsel Liquor Control Board of Ontario HEARING August 3, 2005. 2 Decision INTERIM ORDER UPON MOTION FOR DISMISSAL BY THE EMPLOYER This matter came on for continuation on August 3, 2005. At that time the Employer moved to dismiss proceedings on the basis that the Union had failed to comply with an order of the Board requiring production of documents. The Production Order “was agreed upon by Counsel for the Employer and the Union in the presence of the Grievor at a hearing conducted on June 8, 2005”. The documents ordered were relevant to the Grievor’s explanation for the actions which had resulted in his dismissal. More precisely, the Grievor had been terminated for the alleged improper use of the “Air Miles” Program subscribed to by the Employer. During the period from May, 2001 to December, 2003 there were approximately 140 transactions processed on Air Miles cards or Air Miles numbers belonging to the Grievor’s spouse. It was the Grievor’s explanation that those transactions were all made on behalf of his wife and/or one of her two businesses, Liquor Bi Phone or II Entertainment. In order to test the veracity of the Grievor’s explanation, the Employer sought and the Parties agreed that the Union would produce amongst other things business records to identify the Employees of those businesses during the relevant timeframes who might have attended at the LCBO stores to carry out the transactions. Additionally, the Employer sought business records to confirm the LCBO purchases which had been made during the relevant timeframe as well as the identities of the customers of the businesses for whom the purchases had been made. Finally, the Employer sought business records to confirm the existence and registration of the two businesses. The documents were to be made available at or before June 30, 2005, failing which the Grievance alleging unjust discharge would be dismissed. 3 The Grievor did produce by June 30, 2005, some of the documents ordered, and further documents were tendered at or immediately prior to the August 3, 2005 hearing day. However, the quantity and quality of the production was woefully inadequate with respect to the order as issued. In support of his motion, Mr. Gordon Fitzgerald, Counsel for the Employer argued that the documents were central to the presentation of the Union’s case and the Employer’s ability to test the veracity of the Grievor’s explanation for his conduct. For the Union, Ms. Jackie Crawford speaking for the Grievor explained that: 1. She had tendered all the documents which the Grievor had been able to provide; 2. Although the documents did not strictly fulfill the requirements of the order, those documents which were produced constituted all the documents which the Grievor had been able to obtain from his wife to date; 3. Although some of the documents were provided after the June 30th deadline, he was unable to produce them earlier because of his reliance upon his wife who is in control of the businesses; 4. Not only is his wife in control of the businesses, there was a change of residence or locale of the business in December, 2003. At that time, some of the business records (ostensibly three cartons) went missing. With respect to those explanations, I note that many of the documents produced do fall within the relevant timeframe in spite of the suggested loss of three (3) cartons of documents. Furthermore, the documents relating to the registration of the two businesses indicate that at least one of them is a partnership comprised of 2 persons, the Grievor’s wife and a “John Goncalves”. 4 Furthermore, one of the parties involved in the second business is identified as a “Joaquin (Jack)” Goncalves. There was no clarification that the two individuals, “John” and “Jack” Goncalves named in the registrations, were not one and the same as the Grievor. Additionally, while the Grievor indicates that he and his spouse are having marital difficulties, he acknowledged that they still share the same home. In the circumstances, there exists a cloud on the explanation provided by the Grievor for his inability to produce the required documents in a timely fashion. THE DECISION Notwithstanding my misgivings about the Grievor’s inability to provide more complete documentation in a timely fashion, this is not a case in which the Grievance should be dismissed for a failure to comply with the Production Order. The premise for the success of such a motion is that the failure to comply with the Order constitutes an abuse of the arbitration process. In those few cases cited wherein a Grievance has been dismissed, the failure to comply was much more deliberate than the Grievor’s conduct here. See, for instance, National – Standard Co. of Canada Ltd. and C.A.W. Loc. 1917 (1994) 39 LAC (4th) 228 where Arbitrator Palmer at page 235, having recognized that an Arbitrator does have the power and authority “to make such orders and to give such directions in proceedings as he, she or it considers appropriate to expedite the proceedings or to prevent the abuse of the arbitration process”, did dismiss the Grievance before him. However, he did so only after having found the Grievor intentionally failed to comply with production orders he had given earlier during the proceedings. Further, the Grievor in that case had altered evidence which he had been directed to produce. The case at hand is more similar to that which came for decision before Arbitration R.H. Abramsky, Vice Chair of the Ontario Grievance Settlement Board, in a matter between the 5 Ontario Public Service Employees Union v. Ontario (Ministry of Attorney General) (Hunt Grievance), [2005] OGSBA No. 41. Arbitrator Abramsky made the following comments at paragraphs 11, 12 and 13 of her award: “11. It is my view that the order of November 4, 2004 was clear. The grievor was to provide her tax returns and related documents, with the specific numbers blacked out. How far back she had to go, however, was not decided. 12. It is also my view that additional efforts should have been made to obtain the requested documents. I would have expected some follow-up with Revenue Canada, and I agree with the suggestion of counsel for the Employer, that contact with an accrediting body for accountants regarding what happens to records after an accountant’s death and how they can be obtained should have been done. 13, Although more should have been done, I do not find this to be an appropriate case to dismiss the grievance for failure to comply with the Board’s order.” At paragraph 20 of her Decision Arbitrator Abramsky expresses her view with respect to the question of dismissal as follows: “20. In my view, the dismissal (or granting) of a grievance for non-production of documents is an extraordinary remedy. It should be granted only in the clearest of cases where there is an abuse of the arbitration process or the parties’ ability to have a full and fair hearing is irrevocably compromised. This case does not meet that standard..” I am of the opinion that those views were correct and that the conclusion here should be similar to that reached by Arbitrator Abramsky. To recap, I am of the view that I do have power to dismiss for abuse of process by reason of my authority to control the arbitration process as well as a specific provision in the Collective Agreement between these Parties requiring disclosure. However, before the power to dismiss a Grievance is exercised the alleged abuse of process should be clear. In the circumstances here, having reviewed the documents submitted and heard the representations of Counsel I am of the view that: 6 1. The Grievor likely has better access to the documents required than he acknowledged to his Counsel. 2. That he could have and should have made better efforts to produce the documents in a more timely fashion. 3. That the documents are incomplete, inaccurate and inadequate with respect to the order as written. 4. That, however incomplete, inaccurate or inadequate with respect to the requirements of the Order and validation of the Grievor’s explanation, there is no reason to believe, at this stage of proceedings, that the Grievor has deliberately withheld information or documents that are within his control. The inadequacy of the production has more to do with the quality of the record- keeping of the businesses than with the co-operation of the Grievor. In all the circumstances, I am not satisfied that this is one of those cases in which it can be said that an abuse of the arbitration process has been clearly demonstrated. Furthermore, while the documentation may not suffice to corroborate the Grievor’s explanation, the inadequacy of the material has not in my view irrevocably compromised either Party’s ability to conduct its case. Accordingly, this is not a situation in which the Grievance should be dismissed for an abuse of the arbitration process. Notwithstanding my determination that the matter will not be dismissed at this stage, I should outline some of the inadequacies in the material which are particularly troubling. For instance: 7 1. There is apparently no documentation whatsoever available with respect to transactions undertaken by one of the two businesses, II Entertainment, within the relative timeframe. 2. Although the Grievor did identify three persons who were Employees of one or both of the businesses during the relevant timeframe, the information provided with respect to telephone numbers and addresses for those persons was incomplete or inaccurate such that none of them could be located or contacted. This is particularly troubling since they are ostensibly the very persons who attended at the LCBO stores and completed purchases on behalf of one of the two businesses in the presence of and with the assistance of the Grievor. 3. Information which was provided for an extensive list of customers who did business with “Liquor Bi Phone” was deficient such that few, if any, clients could be contacted and/or identified with the addresses or telephone numbers given for them. On the other hand, the nature of the business of “Liquor Bi Phone” does not lend itself to easy identification of customers. Therefore, it is more than possible that, however inadequate, the information which has been provided for that business is the only information available. 4. On the other hand, one would expect the situation to be different for the other business, II Entertainment, which was engaged in event planning. For that business, one would expect a stable and identifiable client list with accompanying phone numbers and addresses. However, no documentation whatsoever respecting customers of that business was forthcoming in the group of documents produced by the Grievor for the end of June. The explanation for that deficiency was unclear. 8 5. Of the approximately 140 transactions recorded to the relevant Air Miles card number, receipts from the LCBO produced by the Grievor could be cross referenced to only 10 or so transactions. If the material received as at June 30 constituted the totality of the productions, the Grievor and the Union would have great difficulty in corroborating his explanation. However, there were further documents produced shortly before the July hearing date but after the June deadline. These the Employer seeks to have me exclude from the production since they were tendered after that deadline. I do not propose to disallow the additional documentation simply because it was provided after the date ordered. In the situation at hand, I understand that Counsel for the Employer had intended to proceed with this motion to dismiss before the challenged documents were tendered on the eve of the last hearing. Accordingly, the production at that late date did not in itself interfere with or delay proceedings. Since the Employer was advancing the motion to dismiss, an adjournment to consider the new documentation was unnecessary. In the circumstances, it is difficult to understand what prejudice would befall either the Employer or the Union, for that matter, by allowing the material to be introduced. On the contrary, the admission of these additional documents may serve to assist the parties in preparation for continuing proceedings here. Accordingly, while I do not consider it appropriate to have an open door policy with respect to productions after the expiry of an agreed upon deadline, neither do I view the production of this material at the current stage of proceedings as prejudicial to either party. Accordingly, it is my view that, in these particular circumstances, the line at which further productions would be refused had not been reached at the time these documents were tendered. 9 It is, therefore, my decision that the Employer’s motions: 1. to dismiss the grievance and, 2. to refuse the tender of the additional documentation are both denied. The hearing will continue on dates to be set up by the Registrar in consultation with Counsel and this Arbitrator. Dated at Toronto this 25th day of August, 2005. JOSEPH D. CARRIER Vice-Chair, Grievance Settlement Board