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HomeMy WebLinkAboutCarbone 05-04-22 ~ . .. IN THE MATTER OF AN ARBITRATION BETWEEN: COMPLEX SERVICES INC. c.o.b. CASINO NIAGARA AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATTER OF THE GRIEVANCE OF J. CARBONE 0.8. SHIME, a.c. C. APPLETON CHAIRPERSON E. SEYMOUR NOMINEE FOR THE EMPLOYER NOMINEE FOR THE UNION APPEARANCES SIMON E. MORTIMER COUNSEL, and others for the Employer MITCH BEVAN REPRESENTATIVE, and others for the Union A hearing was held in this matter at Niagara Falls on December 10, 2004 . AWARD In this matter, it is alleged that the grievor on two occasions improperly admitted underage employees to the casino operated by the Employer. The Employer's operations are heavily regulated and the admission of a minor to the casino is a matter with very serious consequences for the Employer. At the outset ofthe hearing, this Board of Arbitration ordered that the Employer produce all documents that were arguably relevant. The Employer had produced some documents indicating the serious nature of admitting minors to the casino and more particularly documents which revealed the Employer was heavily fined on three separate occasions for admitting minors to the casino. It also appears that the Alcohol and Gaming Commission of Ontario was the regulating agency involved in the proceedings at the Ontario Court of Justice. As a result of those filings, the Union submitted since the Employer was relying on incidents not involving the grievor, but which had been reported to the Alcohol and Gaming Commission to demonstrate the seriousness of the grievor's conduct, it should produce all the documentation between the Employer and the Alcohol and Gaming Commission related to the grievor. The Union claimed that such documents are clearly relevant to demonstrate how the Employer viewed the matter when it reported to the Commission. The Union also asserted the Employer cannot produce certain documents in an attempt to bolster its case and then refuse to produce other documents which may reflect negatively on its case. While initially there had been a claim of privilege concerning internal documents, the parties have agreed that privilege with respect to those matters is no longer in issue. The only remaining -2- issue concerns the existence of any documents between the Commission and the Employer orthe Employer and the Commission related to the grievor and whether those documents are arguably relevant. Re: Toronto District School Board and Canadian Union of Public Employees. Local 4400 (2003) 109 LA.C.(4th) 20 (O.B. Shime, O.C.), is a case where the Employer requested the Union produce certain documents and when the Union objected the arbitrator determined that a "liberal view should be taken with respect to the production of documents", and the following factors should be considered: "i) (ii) (iii) (iv) (v) anything which can assist in the preparation and presentation of a party's case, the refining of issues, the facilitation of settlement and a fair process should be encouraged, Re Children's Aid Society of City of Belleville, County of Hastinas and City of Trenton and Canadian Union of Public Employees Local 2197, infra. Arbitration byambush should not be condoned. Once a general request for production is made evety document relating to any matter in issue that is or has been in the possession, control or power of a party must be disclosed and that includes documents for which privilege is claimed. The party in possession, control or power of a document should provide a list of documents, relating to any matter in issue, to the requesting party and make those documents available for examination prior to the hearing. All documents which are arguably or seemingly relevant or have a semblance of relevance must be produced. The test for relevance for the purposes of pre-hearing is a much broaderand looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as to what may be relevant during the course of the hearing. The primary onus to produce documents rests with the party who has or has had possession, control or power of the documents. In the ordinary civil process a party must serve and file an affidavit of production with respect to documents, and while I do not suggest complicating the arbitration process by requiring affidavits on production, I see no reason why a party who has or had possession, control or power over documents should not have the onus of producing such documents. The burden lies on the party who resists disclosure to justify the refusal to disclose." Having regard to the foregoing factors, we determine that all documents, reports and correspondence between the Employer and the Commission or between the Commission and the , . ". . ,. r -3- Employer, which are arguably relevant, including all documents pertaining to the grievor, be produced by the Employer and forwarded to the Union. DATED AT TORONTO THIS 22nd DAY OF APRIL, 2005. CJß C(LRL O.B. SHIME, a.c. CHAIRPERSON "I CONCUR" C. APPLETON -'NOMINEE FOR THE EMPLOYER II ./ bY'-~{.¿"í ~~ / NONi!LNlRYIW1RJlR UNION