HomeMy WebLinkAbout1990-1895.Cheong.91-05-30 QNTARIO EMPLOYES DE LA COURONNE
CROWN EMPL OYEE,~ DE L'ONTAR~O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1895/90
IN THE MATTER OF AN ARBITRATION
Under
THE cRowN EMPLOYE.ES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Cheong)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFORE: M. Gorsky Vice-Chairperson
E. Seymour Member
· F. Collict Member
FOR THE A. Hudgins
GRIEVOR Counsel
Cornish Roland
Barrister & Solicitors
FOR THE M. Silverman
EMPLOYER Counsel
Stringer, Brisbin, HumPhrey
Barristers & Solicitors
HEARING March 5, 1991
INTERIM DECISION
The Grievor, Lin Cheong, filed two grievances, both arising
out of her having been denied the position of Property
Administrator - Real Estate Officer II~ in the Ministry of
Government Services. The first grievance, filed September 14,
1990, was with respect to a position in the Toronto office (GS213-
90). The second grievance, dated September 17, 1990, was with
respect to a posting for the same position in the Employer's Green
River office (GS214-90).
The parties appear before us in order that we might deal with
difficulties that they have experience relating to the production
of certain d6cuments sought by counsel for the Union.
The parties brought to our attention an award in another case
involving the Grievor in the case before us, OPSEU ¢Cheon~) and The
Crown in Right of Ontario (Ministrv of Government Services~ 525/90
(Samuels). In that case, the Grievor also claimed that she ought
to have been the successful candidate in a job competition and that
the Employer had. violated Art. 4.3 of the collective agreement.
Counsel for the Union, in preparation for the hearing in that case,
caused the Board to issue a summons to the Employer, requiring that
certain documents be produced. Counsel for the Employer sent a
letter to counsel for the union, dated December 7.,. 1990 which read:
I am in receipt of ~the subpoena issued on behalf of your
clients in the above matter. ~'-In order to clarify your
understanding of the Employer's position with respect to the
production of documents, please be advised that the Employer
has no objection to producing those documents from the
competition file which are directly related to the Grievor, or
which are relevant to the case. The Employer, however, could
not produce for your entire competition file without a
detailed description of the documents requested. The only
documents which the Employer will not produce to you without
an Order of the Board are those which, in its view, are not
relevant to the case, or those which cannot be released under
the provisions of the ~reedom of Information and Protection of
Privacy Act ....
At pages 4 - 6 of the decision referred to, the Board stated:
The parties then showed up at the hearing expecting this
panel to rule simply on what documents ought to be.
produced, and then it was taken that we. would adjourn,
having essentially wasted an entire day of the panel's
time. It was the understanding of both counsel that, in
job competition cases, this Board no longer begins right
in to hear the evidence in a case, but rather the summons
is not answered properly and the Ministry waits for the
Board to order production of documents. The first day of
hearing is taken up entirely with this matter of
production.
We informed counsel at the hearing that, although such a
procedure may have occurred in rare cases before at this
Board, the policy and practice of this Board have not
degraded to the point where such a colossal waste of time
is made on every job competition case. This Board is not
the creature of the parties. It is created by statute
and is funded out of the public purse. The parties must
do whatever is necessary to facilitate the hea~ing, to
cooperate in a reasonable fashion with one another, so
that this Board's. time and energy are used effectively.
It may be that the list of documents in the summons is
somewhat too extensive--it is not immediately apparent
that one needs "the entire contents of the competition
file", or "all resumes or applications for employment for
the said position by all of the applicants" (there may
have been thirty applicants, twenty-seven of whom were
not even qualified enough to reach the interview stage;
it would suffice if the documents were provided for the
- successful applicant and perhaps for three or four of the
closest rivals)--but in large measure it was reasonable.
The Ministry is not. new to this game. The Ministry said
in its letter of December 7' that it was willing to
produce any document relevant to this case. But the list
of documents which it did release were obviously not all
the relevant documents. The Ministry did not turn over
any documents relating to the successful applicant, nor
any other applicant. Now how could theMinistry not have
known that these documents were relevant? How could the
Union have possibly prepared its case if it didn't even
have the documents relating to the successful applicant?
The Ministry.'s response in its letter of December 7 was
absolutely inadequate. The Ministry was ordered by the
Board by summons to turn over the relevant documents.
The Ministry failed to do so. Section Il(a) of the Crown
Employees Collective Bargaining Act gives this Board the
power "to summon and enforce the attendance of witnesses
and to compel them to give ...... written evidence". The
summons itself is enforceable and ultimately any person
who fails to answer the summons properly can be ~ited for
contempt of court.
There was no need for any further order for production of
documents. The Board had made its order-in the summons,
and the Ministry improperly failed to respond to the
summons..
Nonetheless, at our hearing, we ordered the Ministry to
turn over the resumes and applications of the six
candidates, the scoring sheets for all candidates, any
notes in the competition file relating to the scoring of
these candidates,' and any other clearly relevant
documents.
And then we were forced to adjourn because-the parties
were not ready to proceed with the hearing. This was a
gross waste of time.
(Emphasis in th~ original)
On January 10, 1991, the chair of the Ontario Crown Employees
Grievance Settlement Board wrote the following letter to the
representatives of the parties:
Mr. Brent Gibbs Mr. Kevin Park
Director Grievance Coordinator
Employee Relations Branch Ontario Public Service
Human Resources Secret.ariat Employees Union
Management Board of Cabinet 1901 Yonge Street
Frost Building South, 3rd Floor Toronto, Ontario
7 Queen's Park, Room 340 M4S 2Z5
Toronto, Ontario
M7A 1Z5
4
Dear Mr. Gibbs and Mr. Park:
Where the employer requires an Order of the Board in order to
produce documents in job competition cases, a request in
writing shall be filed with the Registrar by either party
prior to the date of hearing.
It would be appreciated if you would please advise all counsel
appearing on behalf of the parties of this practice.
We were informed that the letter of January 10, 1991
intended to respond to some of the Employer's concerns arising out
of the provisions of T~e-Freedom of Information and Protection of
Privacy Act.
In apparent compliance ~ith the above directions of the chair
in his letter of January 10} 1991, counsel for the Grievor in this
case wrote to Ms. Joan Shirlow, the Registrar of the Board, on
February 4, 1991, as follows:
RE: OPSEU, L.520 V. MGS
CHEONG, Lin - Competition
OPSEU ~90D937-90D938
GSB #1895/90
Our File ~15-3559-02~
Please be advised that we are the solicitors for the Union in
the above-noted-matter. We will require an Order of the Board
so that the employer may produce the job competition documents
as noted in Schedule "A" which is attached hereto, before the
hearing scheduled for March 5, 1991.
I 'trust this is satisfactory. If~you have any questions,
please do not hesitate to contact me.
SCHEDULE "A"
1. Ail documentation or memoranda setting out the selection
criteria employed by the competition selection committee
with respect to.the competition.
2. All resumes or applications for employment for the said
position by all of the applicants.
-3. Any documentation relied upon by the competition
committee concerning the evaluation of the applicants
including documentation found i~ their personnel files
and performance appraisals.
4. Any evaluation forms, documents or memoranda concerning
the evaluation of the applicants, including any
documentation, memoranda or candidate rating forms
utilized by the. competition committee to rate tha
candidates in the above-noted competition and any notes
of the competition committee members concerning the test,
conducted interviews or evaluations of the candidates.
5. A list of the applicants who were selected for
interviews.
6. Any documentation or notes setting out the reasons for
the decision to select the applicants for interviews or
rank the candidates and including any documentation
setting out why the grievors ware unsuccessful.
7. The entire contents of.the competition file.
8. The personnel file of the grievor and the successful
candidate including position description forms for all'
positions held by the successful candidate.
The Registrar forwarded Ms. Hudgins' letter of February 4,
1991 to. Ms. Jane Corbet, Co-ordinator af the Staff Relations, Human
Resources Branch of the Employer requesting her immediate comments.
Ms. Corbet responded to Ms. Shirlow's letter of February 7,
199t on February 14, 1991 as follows:
Re: 1895/90 OPSEU (Cheong) and the Crown in
Right of Ontario (Ministry of Government
Services)
I refer to your letter dated February 7, 1991 regarding~
Allison Hudgins request for an Order of the Board for the
employer to produce job competition documents for the above
noted competition.
Our comments regarding this request as outlined in the
Schedule A attachment are as follows:
1. We agree to providing all documentation or memoranda
setting out the selection criteria employed by the competition
selection committee with respect to the competition.
2. With respect to the request for all resumes or
applications, we question the need for this, given the time
and expense required on our part to copy these, when there
were in excess of 350 applicants for the two competitions. We
do agree to provide copies of all the resumes or applications
for all the applicants interviewed.
3. We agree to providing any documentation relied upon by the
competition committee concerning the evaluation of the
applicants including documentation found in their personnel
files and performance appraisals.
4. We agree to provide the evaluation documents as specified
in #4 for Ms Cheong and the successful candidates only.
5. We agree to provide a. list of the applicants who were
selected for interviews.
6. We agree to provide any documents or notes setting out the
reasons for the decision to select the applicants for
interviews or rank the candidates and including any
documentation setting out why the grievor was unsuccessful.
7. With the exceptions noted in ~2 (all resumes/applications)
and #4 (evaluation documents for all candidates other than Ms
Cheong and the successful candidates) we agree to provide the
remaining contents of the competition file.
8. We agree to provide a copy of the personnel file of Ms
Cheong; However, we-.¢annot agree to provide copies of the
successful candidates' personnel files beyond that indicated
in #3. We do agree to provide position descriptions forms for
positions within the Ministry of Governmen~ Servicas held by
the successful candidates.
Should you wish any clarification or should Ms Hudgins wish to
discuss any of the above I would be happy t6 do So.
Ms. Shirlow forwarded ME. Corbet's letter of'February 14, 1991
7
to Ms. Hudgins on Februa.ry 18, i991 requesting her immediate.
comments.
Ms. Hudgins' response to Ms. Shirlow's letter of February
18,1991 is as follows:
RE: OPSEU v. MGS
CHEONG, Lin - Competition
OPSEU #90D937 & ~90D938
GSB ~1895/90
Our File #15-3559-025
This is with reference to your letter of February 18, 1991
received in this office on February 22, i991 requesting our
comments in response to Ms. Corbet's letter dated February 14,
With reference to the numbered paragraphs in Schedule "A"
attached to our original raquest for production of documents,
our submissions ~'re as follows:.
ITEM ~2 - Resumes and aPPlications of all applicants
Among other issues, it is the position of the grievor and
the Union that the competitions in question were not
conducted fairly or in accordance with accepted
standards. Evidence that a well-qualified applicant was
not selected for interview would be relevant to that
issue, and documents relating to such applicants are
therefore relevant.
Without prejudice to the position that the resumes and
applications of all applicants are relevant and may
properly be the subject of an order for production in the
future during this case, for now we would be prepared to
accept the Ministry producing the resumes and
applications of all applicants who Were interviewed.
Item f4 - Evaluation documents used byL and notes made by
the.competition committee
Such documents and notes relating to all applicants are
relevant to the issue of whether the competition was
conducted fairly and in accordance with accepted
standards and we request that the Board order that those
documents be produced for all applicants and at the very
least with respect to those interviewed. The Ministry
has not put forward any hardship reason for not producing
same and the documents are clearly relevant.
Item ~8 - Personnel files 6f the qrievor and the
successful candidates
The personnel files of candidates would contain
information relating to the qualifications of the
candidates. They would have or should have been used by
the competition committee in the assessment process
(Marek, 414/83) and are relevant to the issue of whether
the competition was conducted fairly and in accorda~nce
with the accepted standards.
Our request in Item #3 pertains only to those items in
the personnel file used by the competition committee.
There may be items in the personnel files of the
successful candidate that were relevant to their
qualifications which were not used by the competition
committee and the failure to consider such documents
would constitute a grievable flaw in the procedure
followed by the competition committee. It is our
position that we are entitled to examine the personnel
files of the successful candidates to determine whether~
· any relevant documentation was not considered by the
competition committee and we respectfully request that
the Board order production of same.
If the Ministry does not wish to photocopy a large
quantit~ of irrelevant payroll documentation, etc., we
are willing to attend forthwith at their premises to
review the file and to request reproduction of only those
items we will require to proceed with the grievance.
In sur~mary, the documents requested by the grievor are
relevant to the issue of whether the competition was conducted
fairly,' and without arbitrary, discriminatory or bad faith
actions on the part of the employer (Remark, 149/77). There
is an obligation on the employer to produce documents which
are relevant to the case so that the Union can properly
prepare its case (Cheonq, 525/90).
We request an order of the Board for the production of the
documents detailed more fully in Schedule "A" attached to our
letter of February 4, 1991, save those exceptions noted in our
comments above.
I would hope that this matter can be dealt with expeditiously
in light of the hearing in this matter scheduled for March 5,
1991, a mere week away. I have faxed a copy of this letter to.
Ms. Corbet in an effort to expedite matters. Thank you ~or
your consideration and co-operation.
Following a conversation between Ms. Hudgins and Ms. Shirlow
on February 27, 1991, Ms. Hudgins sent the following letter, dated
February 28, 1991, to Ms. Shirlow:
RE: OPSEU v. MGS - CHEONG, Lin ~ Competition - OPSEU #90D937
& #90D938; GSB ~1895/90; Our File #15-3559-025
This is to confirm our telephone conversation on February 27,
1991.
I had raised with you our concern about the approaching
hearing and the fact that documents had not yet been released
by the Ministry. You stated the Board would not be in a
position to issue an order for production of documents prior
to the hearing while there remained matters in dispute. I
asked whether it would be possible for the Board to. issue an
order with respect to production of those documents' that were
agreed upon. You stated that the Board would not be prepared
to issue a Partial order for production of documents unless
they received an order already worded for the"~°ard to sign
and which .had the consent of both parties. Such an order
could be issued quickly once received.
I am in the process of contacting the Ministry and hope to
have a consent order for partial production faxed to you by
Friday at 10:00 a.m. at the latest. Please confirm whether
the order can be ready on Friday before close of business so
that the Ministry can produce the documents on Friday in light
of the hearing being scheduled on Tuesday.
Thank you very much for your co-operation in this matter to
help avoid an unnecessary adjournment.
Following a telephone conversation between Ms. Hudgins and Ms.
Silverman, Ms. Hudgins sent Ms. Silverman the following letter
dated February 28, 1991:
Re= 1895/90 OPSEU (Cheong) and The Crown in Right of~
Ontario (Ministry of Government Services)
Further to our telephone conversation on the evening of
February 26, 1991, I have contacted Joan Shirlow and been
informed that the Board will not be able to issue a partial
order unless we provide them with a consent order they can
issue. I have enclosed a consent order which I believe
accurately reflects Jane Corbet's letter of February 14, 1991
and which preserves the right for me to pursue production of
the disputed documents on the first hearing and the right to
take a two hour adjournment to review those documents I am
successful in getting produced before proceeding with the case
on Tuesday.
With respect to the adjournment in light of the secondment
grievance, I am not in'a position to consent to an adjournment
for the Tuesday hearing. Although it is ~elevant to the
grievance we will be commencing, we will be. proceedinq~ with
the grievance set for Tuesday even if the second.ment grievance
is unsuccessful. No doubt we both will wish to address the
result in the secondment grievance and I will not be closing
my evidence in the 1895/90 grievance until the result of the
secondment grievance is known. But I don't see any particular
advantage to adjourning the Tuesday hearing since it will o~!y
delay a matter we will be proceeding with regardless of the
outcome of the secondment grievance.
If you are in agreement with the terms of the consent order,
please execute it and forward it to my office before 9:00 a.m.
Friday, March 1, 1991 so that I may forward it to the Board by
10:00 a.m. I have faxed a copy of this letter and my letter
to the Board directly to. Ms. Corbet in an effort to expedite
matters.
Thank you for your co-operation in this matter.
The draft consent order attached to.the said letter is as
follows:
File No. 1895/90
IN TH~ MATTER OF AN ARBITRATION
BEFORE THE ONTARIO PUBLIC SERVICE GRIEVANCE
SETTLEMENT BOARD
B E T W E E N~
TEE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
- and
THE CROWN IN TEE RIGHT OF ONTARIO
(MINISTRY OF GOVERNMENT SERVICES)
(the "Employer")
REGARDING THE JOB COMPETITION GRIEVANCE OF LIN CHEONG
CONSENT ORDER
The parties in an effort to avoid needless delay in the
processing of this grievance are .~greed that the following
partial list of documents be ordered produced by the Ontario
public Service Grievance Settlement Board (the "Board")
without prejudice to the parties requesting that the Board
make a further ruling on the first day of hearing regarding
those documents listed in Schedule "A" of the relevant
subpoena which are not listed below and subject to the right
of the Union to have a two hour adjournment to review any
documents produced for the first time on the first day of the
hearing:
1. Ail documentation or memoranda setting out the ~election
criteria employed by the competition selection committee
with respect to the competition.
2. Ail resumes or applications for employment for the said
position by all of those applicants interviewed.
3. Any documentation relied upon by the competition
committee concerning the evaluation of the applicants
including documentation found in their personnel files
and performance appraisals.
4. Any evaluation forms, documents or memoranda concerning
the evaluation of the grievor and the successful
candidates, including any documentation, memoranda or
candidate rating forms utilized by the competition
committee to rate the candidates in the above-noted
competition and any notes of the competition committee ]
members concerning the test, conducted interviews or ,
evaluations of the candidates.
5. A list of the applicants who were selected for
interviews.
6. Any documentation or notes setting out the reasons for.
the decision to select the applicants for interviews or
rank the candidates and including any documentation
setting out why the grievor was unsuccessful.
7. The entire contents of the competition files save those
resumes or applications for the said position submitted
by applicants who were not interviewed and save any
evaluation forms, documents or memoranda concerning the
evaluation of those applicants other than the grievor and
the successful candidates, including any documentation,
memoranda or candidate rating forms utilized by the
competition committee to rate the applicants in the
above-noted competition and any notes of the competition
committee members concerning the test, conducted
-interviews or evaluations of the applicants.
8. The entire .personnel file of the grievor. All the
position description forms for all positions held by the
successful candidates.
Dated at Toronto this 28th day of February, 1991.
For the employer For the union
On February 28,-1991, Ms. Silverman responded to Ms.'Hudgins'
letter of February 28, 1991 with respect to the draft order:
.Re: 1895/90 OPSEU (Cheong) and The Crown in Right of
Ontario (Ministry of Government Services).
Further to your letter of February 28, 1991, we advise
that we do not have sufficient time to review and obtain
instructions from our client on your draft consent order to
have it to your office before 9:00 a.m. on Friday.
Unfortunately, Ms. Corbet was not available this afternoon
and, accordingly, we are unable to contact her with regard to
your letter and the draft consent.
I have, however; arranged to speak with her first thing
in the morning and hopefully will forward our response to you
as soon as I have been able to obtain instructions.
On March 1, 1991, Ms. Silverman sent the
following letter to Ms. Hudgins:
Re: 1895/90 OPSEU (Cheong) and The Crown in Right of
Ontario (Ministry of Government Services)
Further to our recent conversations and correspondence in
regard to the above-noted matter, please find enclosed a copy
of the questions and answers relating to Lin Cheong's
interviews for job competitions 213 and 214. Also enclosed is
a copy of Ms. Cheong's resume and cover letter and a copy of
the competition summary with the names of the other
interviewees whited out to protect their privacy in accordance
with the Freedom of Information and Protection of Privacy Act,
1987.
· After further consultation with our client, the above
documents are the only ones that we are.prepared to release a~'
this time. As we have indicated, we have a concern about
releasing documents that contain the names of .individuals
other than the grievor, even if they are arguably relevant to-
the hearing of these grievances, without the protection of a
Board order. As you are aware, Chairman'Owen Shime, as
indicated in a directive dated January 10, 1991, set out the
procedure for obtaining the release of documents in job
competition grievances. Our position in relation to this
directive is that,, in order to protect our client's
obligations under the Freedom of Information and Protection of
Privacy Act, .1987, the Ministry cannot release documents
containing the names of other individuals unless consent is
granted from those individuals or an order is obtained as
stipulated in Chairman Shime's directive.
In consequence of this, we will be taking the position at
the hearing scheduled for March 5, 1991, that a Board issued
order is required before the Ministry can release these
documents. In addition, we will be requesting that the Board
order a non-publicity order so as to avoid public exposure of
information related to other candidates and, in addition, that
the Union and the grievor undertake not to release information
on other candidates.
In view of the fact that this process is relatively new
to the parties, and in addition, we do want to co-operate with
the Union in expediting to whatever extent possible this
matter by producing relevant documents, we are of course
willing to agree to an adjournment of the hearing for a
reasonable period of time (if possible on the day of the
hearing) so that you can review the documents that we may be
ordered by the Board to provide.
Finally, with respect to your letter of February 28, 1991
and the suggestion regarding your not closing your evidence in
this grievance until the secondment grievance has gone through
the process, we advise that this is not an acceptable
procedure to us and that both grievances must proceed in due
course through the arbitration process. We have already
suggested that this grievance should be postponed pending the
outcome of the secondment grievance and, seeing that you do
not agree with this approach, it is our view that both
grievances must then be pursued and moved through the process
separately.
Please d° not hesitate to contact me should you wish to
discuss any of the above.
The principal issue which was put before us was with respect
to how the directive of the chairman, dated January 10 of 1991 was
to be implemented in the light of the Employer's Obligations under
the Freedom of Information and Protection of Privacy Act, 1987.
Before dealing with certain other ma~ters relating to the
production of documents whidh were raised at the hearing, we Will
first deal with the principal issue as identified above.
Although i~ appears, from Ms. Silverman's letter of March 1,
1991 that doquments containing the names of other individuals would
be produced if a Board order to that effect were issued, we were
left with the fUrther issue of whether~such an order would conflict
with the protection provisions of the Freedom of Information and
Protection of Privacy Act, 1987.
There appear to be no cases that have questioned the
jurisdiction of the Board to issue and enforce production of
documents pursuant to a subpoena duces tecum or to issue an order
for the production of documents in the absence of a subpoena duces
tecum being issued first.
Section 19(2) of the Crown Employees Collective Bargainin~ Act
R.S.O., 1980 cap.108 provides that: "the Grievance Settlement Board
has the same powers as a Board of Arbitration under subsections
(11) and (12)." The relevant portions of section 11(11) of the
latter Act are as follows: "(e) to summon and enforce the
attendance of witnesses and to compel them to give oral or written
evidence on oath or affirmation .... " There has~been an assumption
made in some cases that the Board has the jurisdictiontion to order
the production of documents relying on the provisions of section
11(11) (a) of the latter Ac___~t.
If the Board has the jurisdiction to issue an order Dursuant
to a subpoena duces tecum or without the issuance of such a
subpona,then the provisions of section 51(2) of the Freedom of
Information and Protection of Privacy Act. 1987 would permit it to
compel the production of documents as it could do prior to the
enactment of the latter Ac_~t:
The Act does not affect the power, of ... a tribunal to compel
a witness to testify or compel the production of a document.
In Re Toronto Star and Southern Ontario NewsDaper Guild(1983),
11 L.A.C.(3rd) 249 (Swan), which was decided .under the Labour
Relations Act, R.S.O.1980,c~228, there was an issue (at p.250)
concerning: "the extent to which the union can compel production of
documents from the employer in order to permit it to make its case
at arbitration." At the hearing the only matter argued was the
extent to which the arbitrator had jurisdiction to compel the
production of documents.
The argument focused on a subpoena duces tecum prepared by
counsel for the uni6n and issued by the arbitrator on May 18, 1983.
The arbitrator noted, at p.251-2':
The employer's argument in this case takes it out. of the
category of recent decisions relating'to the authority of an
arbitrator to order production of documents. Most of those
cases have turned upon the question of whether an arbitrator
has the authority to order, in effect, discovery of documents
prior to the arbitration hearing. While the s'ituation may be
somewhat different in British Columbia, where the Labour Code,
R.S.B.S. 1979,. c. 212, s. 102(1), gives a board of arbitration
jurisdiction to compel witnesses "to produce the documents and
things it considers'requisite to a full consideration...in the
same manner as a court of record in civil cases" (see Re
Pacific Press Ltd. and Vancouver-New Westminster Newspaper
Guild, Local 115 (1982), 7 L.A.C. (3d) 316 (McColl),
arbitrators in Ontario have in general concluded that the
jurisdiction conferred upon them by the Labour Relations Act,
R.S.O. 1980, c.228, does not include a jurisdiction to order
pre-hearing discovery of documents. The cases are collected in
Re City of Guelph and Guelph Professional Firefight~rs Assoc.,
Local 467 (1982), 5 L.A.C. (3d) 43 (Beatty), where the
arbitrator concludes that only one case, Re City of
Peterborough and Peterborough Professional Fire Fighters
Assoc.,.Local 519 (1978), 19 L.A.C. (2d) 264 (Brown), asserts
that there is such an authority. In the Guelph Fire£ighters
case, as in a number of Other cases previously, the arbitrator
indicated that the difficulties which the absence ~of any
express statutory authority to compel discovery of documents
might create could be alleviated by the issue of a subpoena
duces tecum to r~quire the documents to be brought to the
hearing, following which, in a appropriate case, an
adjournment might be applied for and granted to permit the
documents to be examined and the case to be prepared based
upon them: see Re Fabricated Steel Products (Windsor) Ltd. and
U.A.W., Local 195 (1977), 16 L.A.C. (2d) 148 (O'Shea); Re
Canadian Broadcasting Corp. and C.U.P.E., Broadcast Division
(1978), 18 L.A.C. (2d) 357 (Adams).
Mr. Swan further stated at p.252:
In the case before me, Mr. Rogers indicated that if I had an
authority to issue a subpoena duces tecum to require officials
of the employer to bring documents relevant to this matter to
the hearing, he would have no objection to~ pre-hearing
production of those documents to the union; as he very
reasonably pointed out, if I have an authority to issue a
subpoena duces tecum, the exercise of waiting until the
hearing to produce the documentation, and then putting all the
participants through the inconvenience of an adjournment,
would simply be a waste of time. Mr. Rogers' position was,
however, a much more f~ndamental attack on the jurisdiction of
an arbitrator than appears to have arisen in any previous
case: it was his contention that arbitrators under the Laboum
Relations Act have no jurisdiction to issue a subpoena duces
tecum at ail.
Mr. R~gers submitted, correctly in my view, that an arbitrator
can draw jurisdiction in a particular matter from three
sources only: the submission to arbitration, including the
grievance referred; the collective agreement, and any
statutory grant of jurisdiction. In the present case, neither
the~grievance nor the collective agreement makes any reference
to production on which I might rely, and any jurisdiction
which I 'might have purported to exercise in issuing the
subpoena in this matter must come from the Labour Relations
Act itself. In so far as the collective agreement is
concerned, he observed that art. 3 and cl. 1409 do deal to a
limited extent with the production of documents between the
paries, but neither one of them confers any jurisdiction on
me.
If this Board has the authority to issue a subpoena duces
tecum, it would also have the power to compel the production of
documents which a party failed to produce as required by the
subpoena. However, unlike a case unaffected by the Freedom of
Information and Protection of Privacy Act. 1987, the case before us
is subject to the provisions of section 51(2) of the latter Ac_~t
which limits its application where the tribunal compels the
product£on of~'the documents.
18
In the Toronto Star case, the powers of an arbitrator under.
section 44(8) the Labour Relations Act were set out as follows:
An arbitrator or the chairman of an arbitration board, as the
case may be, has power,
(a) to summon and enforce the attendance of witnesses
and to compel them to give oral or written evidence
on oath in the same manner as a court of record in
civil cases; and
(b) to administer oaths,
and an arbitrator or an arbitration board, as the case my be,
has power,
(c) to accept such oral or written evidence as the
arbitrator or the arbitration board, as the case
may be, in its discretion considers proper, wkether
admissible in a court of law'or not;
In the Toronto Star case the position of the employer was that
the expression "written evidence on oath" in section 44(8) (a) of
the Labour Relations Act "cannot refer to the production of pre-
existing documents at the hearing by a witness." The arbitrator
asked: "if the quoted words do not confer an authority to .issue a
subpoena duces tecum, what do they in fact authorize?"
At p.257-8 of the Toronto Star case, the arbitrator stated:
... another way of looking at this matter is to return to the
provisions of s. 44(8) and to observe that the power given to
an arbitrator is "(a) to summon and enforce the attendance of
witnesses and to compel them to give oral or written evidence
on oath in the same manner as a court of record in civil
cases" [emphasis added in original]. Reference again to the
Ontario Rules of Practice to see exactly how ~it is that a
court of record in civil cases summons' and enforces the
attendance of witnesses leads only to Rule 272, which in its
entirety provides:
272, A subpoena may be issued from any office of the
court at'any time in blank amd may be completed by the
solicitor or party, and any number of names may be
inserted ~in one subpoena (form 57).
Form 57, the only form of subpoena provided under the rules
which is relevant to this discussion, is a form of subpoena on
which the duces tecum clause has already been inserted. It
would be possible, therefore, by simply crossing out that
clause to turn the form into a subpoena ad testificandum, or
by leaving the clause and filling in the documents to be
produced to make it a subpoena duces tecum. It is okviously
intended, therefore that a court of record in civil cases may
summon and enforce the attendance of witnesses to testify, or
to produce documents, or both. Holmested and Gale, Ontario
Judicature Act and Rules of Practice (1982) vol. 2, at pp.
1507-8, make it clear that the jurisdiction to summon and
enforce attendance of witnesses inherently includes a
jurisdiction to compel attendance not only to testify but also
to produce documents at the hearing.
I am therefore of the view that s. 44(8) clearly includes the
authority to issue a subpoena duces tecum, and that the
additional words used in s. 103(2), what I have called the
"produce such ~ocuments" clause, must be interpreted to confer
the power to require the production of documents prior to the
hearing, by way of a form of discovery ....
The arbitrator concluded at p. 259:
The better view, and the "fair, wide and liberal
interpretation", which I am required to give to the statutory
provision, .is that the power to issue a subpoena duces tecum
is subsumed-within s. 44(8). In this regard, I adopt Mr.
Mitchell's submission that if the present provision did not
give such a. power to an arbitrator, an immediate statutory
amendment would be required to ensure that justice could be
done in by far the large majority of arbitration cases. If no
other grounds were available to decide between the two
contended interpretations, that submission alone would be
sufficient to weigh in favour, as a "fair, wide and liberal
interpretation", of the interpretation which best .conduces to
doing justice between the parties.
Section 44(8) (a) of the Labour Relations Act differs from
sect-ion 11(11) (a) of the Crown Employees Collective Bargainin~ Act
in that the latter statute does not contain the words: "in the-same
manner as a court of record in civil cases .... "Mr.~Swan, in the
Toronto Star case, noted that section 103(2) of the Labour
2O
Relations Act, gives the Ontario Labour Relations Board the power
to compel witnesses "to produce such documents and things as the
Board considers requisite to the full investigation and
consideration of matters within its jurisdiction in the same manner
as a court of record in civil cases .... " Also, the Statutory
Powers Procedure Act, R..S.O. 1980, c.484, which does not apply to
arbitrators under the Labour Relations Ack, provides, in section
12(1), that:
A tribunal may require any person, including a party, by
. . s~i~/Rons,
(a) to give evidence on oath' or affirmation at a
hearing; and
(b) to produce in evidence at a hearing documents and
things specified by the tribunal,
relevant to the subject-matter of the proceedings and
admissible at a hearing.
Section 12(4) 'of the Crown EmD-lovees Collective Bargaining Act
provides that the Statutory Powers Procedure Act does not apply to
arbitrations'under that Ac~.
Mr. Swan also noted section 118 of the Canada Labour Code,
R.S.C. 1970, which provides:
The [Canada Labour Relations] Board has, in relation to
any proceeding before it, power
(a) to summon and enforce the attendance of witnesses
and compel'them to give oral or'written evidence on
oath and to produce such documents and things as
the Board deems requisite to the full investigation
and consideration of any matter within its
jurisdiction that is before the Board in the
proceeding;
(b) to administer oaths and affirmations;
(c) to receive and accept such evidence and information~
on. oath, affidavit or otherwise as in its
discretion the Soard sees fit, whether admissible
in a court of law or not; [rep. & sub. 1972, c. 18,
Also noted by Mr. Swan, and to the same effect, were the
Labour Code of.British Columbia, R.S.B.C. 1979, c.212, s. 102(1)
and the Alberta Labour Relations Act, R.S.A. 1980, c. L-i.1 as
amended, which latter Act provides in
If, in the opinion of an arbitrator or .the chairman of an
arbitration board or other body,
(a) the attendance of a person is required, or
(b) the attendance of a person to'produce a document or
other thing is.necessary,
he may cause to be served on the person concerned a notice to
attend or a notice to attend and produce a document or other
thing, as the case may~ be? signed by the arbitrator or
chairman.
Mr. Swan, in the Toronto Star case, concluded, at p.256, that
a "produce such documents" clause was unnecessary to grant that
power specifically, a general power to issue a summons being
regarded as traditionally including the power to issue a subpoena
duces tecum. See reference to Re Int'l Union of Operatin~ Enqineers
Local 95'5 and Henuset Bros. Ltd. (1974~, 49 D.L.R ~3rd~ 285,
6 W.W.R. '765 (Alta. S.C.T.D.). The arbitrator also relied on the
case of Canada Cement LaFarqe Ltd. and United Cementx Lime & Gypsum
Workers Int'l Union. Local 368, [1982~ 1 Can. L.R~B.Ro 300, where
the Board at p.308 stated:
At the request of the Board and by letter dated April 21, 1981
~ounsel to CCL provided counsel to the unions with~copies of
the invoicing CCL intended to rely upon to establish its
claim. In a number of recent cases involving claims for.
substantial damages the Board has entertained pre-hearing
motions requesting production of documents in great
particularity. In granting these requests, in whole or in
part, the Board has relied upon section 103(2) (a)...
We agree with the rationale of Mr. Swan in the Toronto Star
case dealing with the "produce such documents" clauses referred to,
and his conclusions are applicable in the case before us. The
additional language found in section 44(8) of the Ontario Labour
Relations Act would not cause us to conclude that we must interpret
section 11(11) (a) of the Crown Employees Collective Bargaining Act
in a manner ~that would be least likely to do justice between the
parties and~. which would fly in the face of the previous
jurisprudence of this Board~ In particular, we note Mr. Swan's
refernce, at pp. 257-8 of'the Toronto Star case, to the inherent
power to order production of documents at a hearing where there is
jurisdiction to summons and enforce attendance of witnesses. Any
other interpretation would require an immediate statutory amendment
in order that justice could be done in the majority of arbitration
cases before this Board where production of documents are necessary
in order for a party to be able to properly prepare and present a
case.
We would add that if no other grounds were available to decide
between two contended interpretations, we would also be'influenced
by the provisions of sections 19(1) and 20(8) of the Crown
EmDloyees Collective Bargaining Act which provide:
19.--(1) Every collective aqreement shall be deemed to provide
that in the event the parties are unable to effect a
settlement of any differences between them arising from the
interpretation, application, administration or alleged
contravention of the agreement, including any question as to
whether a matter is arbitrable, such matter may be'referred
for arbitration to the Grievance Settlement Board and the
Board after giving full opportunity to the parties to present
their evidence and to make their ~ubmissions, shall decide the
matter and its decision is final and binding upon the parties
and the employees covered by the agreement.
20(8) The Grievance Settlement Board shall determine its
own practice and procedure but shall give full
opportunity to the parties to any proceedings to present
their evidence and to make their submissions ....
In the absence of the power to issue a subpoena duces tecum and
order production of documents pursuant thereto, it would, in many
cases, be impossible for a party to have the full opportunity to
present its evidence and make its submissions so that the Board
could~make a fair decision in doing justice between the parties.
We would also note that section 32(e) of the Freedom ~f
Information and Protection of Privacy Act,1987, permits an
institution to disclose "personal information in its custody or
under its control" where it is "for the purpose of complying with
an Act of the Legislature or an Act or Parliament, an agreement or
arrangement under such an Act or a treaty .... " The collective
agreement between the parties is, in our view "an agreement...
under such an Act." Section 7 of the Crown EmDlovees Collective
Barqaining Act gives an employee organization authorization to
bargain with an emDloyer with a view to concluding the collective
agreement. The procedure for realizing the collective agreement is
24
provided for in the latter Ac~ and section 19(1) m~ndates
arbitration provisions for effecting a final and binding decision
where the parties are unable to effect "a settlement of any
differences between them arising from the interpretation,
apDlication, administration or alleged contravention of the
agreement .... " In the absence of the power in a Board to order
production of documents pursuant to a subpoena duces tecum, the
purposes of section 19(1) would, in many cases, remain unrealized.
We find that a collective agreement under the Crown Employees
Collective Bargaining Act represents such "an agreement.., under
such an Act" as is referred to in section 32(e) of the Freedom of
Information and Protection of Privacy Act. 1987, and that the
disclosure of what would otherwise be impermissible personal
information under the latter Act would be permitted as being for
the purpose of complying with the provisions of the collective
agreement.
In a decision of Sidney B. Linden, the Information and Privacy
Commissioner, dated October 7,1988 being, Appeal #880075-Re:
Ministry of the Attorney. General, one of the issues was': ~'Whether
the ratings and test results are 'personal information' as defined
in subsection 2(1) of the Act." The case before the Commissioner
involved a request by an unsuccessful applicant in a job
competition. The Ministry of the Attorney General, as an
institution under the Act, received a request from the appellant
for access to:
1. On February 4, 1988, the Ministry of the Attorney General
(the "institution") received a request form the appellant
for access to:
"1. Rating of the successful candidate for the job
competition #AG-1076B.
2. Results of Data Entry for myself and the otker
successful candidate held in reference to job
competition #AG-1076B,
3. Any other'relevant information which was considered
in determination of the successful candidate in job
competition #AG-1076B.
Rating (for myself and successful candidate) by A.
Lomangino who was present at the interview for job
competition #AG-1076B. If not rating, a copy of
her comments should be~provided''.
She Commissioner found, at p.7, that: "there is no question
that both the ratings and the test results are 'recorded
information about an identifiable individual' and as a result fall
within the definition of personal information contained in the
Act".
In the face of the denial of the appeal in the above case, the
Employer, in the case before us, was concerned about releasing any
information which would appear to fall under the definition of
personal information: "recorded information about an identifiable
individual."
For the reasons above stated, we have concluded that for the
purposes of the Freedom of Information and Protection of Privacy
Act,!987, the Employer would not be in violation of that Act in
releasing documents to the Union for the purpose of complying with
26
the collective agreement, being an agreement under the Crown
Employees Collective Bargainin~ Act and representing one of the
exceptions found in section 32(1) of the Freedom of Information and
Protection of Privacy Act.
We could not, of course, compel voluntary disclosure by
the Employer. However, as we have concluded that the Board has the
authority to issue a subpoena duces tecum and to .order the
production of documents pursuant thereto, should the Employer not
wish to follow the indication of counsel in the Toronto Star case,
set out at p.252, quoted above, by permitting "pre-hearing
production of [relevant] documents to the union" then the Union
could issue a subpoena duces tecum and, in accordance with th~
Order of Mr. Shime, dated January 10, 1991, above referred to,
either pa~ty could file a request in writing with the. Registrar
prior to the date of the hearing 'containing its request for an
order of production. In such case, the only remaining objections
that the Board could consider would be limited to such matters as
as-relevancy, including that aspect of relevancy referred to by Mr.
Swan in the Toronto Star case, at p.259, involving ',issues of
relevancy in relation to the breadth of a subpoena duces tecum."
If the objection to production of the documents pursuant
to the subpoena relates solely to the necessity of there being an
order pursuant to section 51(2) of the Freedom of Information and
Protection of Privacy Act, then the order should issue as a matter
27
of course. In such a case, there being no need for a final
determination as to the relevancy (in both of the senses referred
to) of some of the documents requested, there would be no need to
have a formal hearing before such order could be issued.
Having heard representations from the parties with respect to
relevancy, we make the following Order. The numbering in our Order
follows that of the requests for production set out in. Schedule "A"
of Ms. Hudgins' letter of February 4, 1991:
Items 1, 3, 5,and 6. The documents referred to in these items are
to be produced. At the hearing we.were informed that the
parties were in agreement concerning these matters.
Item 2. We were advised that the parties were in agreement that
this item was no longer an issue between them.
Originally the union had sought production of resumes or
applications for employment of all' applicants rather than
those being interviewed.
Item 4. There appeared to be some difference between the parties
as to whether this item included the answer sheets for
those candidates who were interviewed. It is usual in
competition cases for such documents to be produced and
we can see no reason why this should ndt be so in the
case b~fore us. We order production of the documents
referred to in Item 4 of the draft consent order.
Item 7. The Employer was concerned about the relevancy of much of
what would be included in the '~entire contents of the
competition file." The Employer should produce the
documents referred to in Item 7 of the draft consent
order.
Item 8. The Employer objected to the relevance of the request for
the production of the entire personnel file. The Union
recognized that there would be much irrelevant matter in
the personnel file and we feel that further discussions
between the parties would lead to the resolution of their
difference as to the particular kind of information
sought from the personnel file. In fact, much of the
information sought will likely be produced under one of
the other heads above discussed. We did not conclude
that the Employer vas objecting to the production of the
position description forms for all positions held by the
successful candidates.
In fashioning the above Order,'r we have considered the
statements of Mr. Swan in the Toronto Star case at p. 259,
referring to Re Bell Canada'and Communications Workers of Canada
(1980), 25 L.A.C. (2d) 200 (Picher) at p.205 :
Arbitrators have taken the view, in dealing with issues
of relevancy in relation to the breadth of a subpoena
duces tecum, that a subpoena ought to be allowed to be
broad enough to include some measure of "discovery" ,
while being concerned to ensure that it does not go too
far beyond the test of relevancy ....
We have also considered the practicality of compliance.in relation
to the likely probative value of the documents sought.
In relation to the power of the Board to order pre-hearing
production of documents, Mr. Swan, in the Toronto Star case, stated
at p. 258:
... Finally, I should advert to a recent unreported
decision, Re Globe & Mail and Southern Ontario Newspaper
Guild ... [dated] January 7, 1983 (Teplitsky), in which
the board of arbitration dealt with pre-hearing
production of documents in the context of a grievance
not unlike the present. At p. 5, the award states:
Finally, the guild sought pre-hearing
production 'of financial documents.' This
board's jurisdiction to. make an order for
production was raised. This issue has been
canvassed in a number of recent cases. A
useful review of the conflicting authorities
may be found in Re Canadian Broadcast corp.
and C.U.P.E.. Broadcast Division (1978), IS
L.A.C. (2d) 357 (Adams). I think it-fair to
state that the weight of recent arbitral
jurisprudence supports the employer's
position, namely, that a board of arbitration
lacks jurisdiction to make an order for
production. This is a view which I do not
share. It seens to me that boards of
arbitration make many orders without express
statutory warrant which are necessary to
ensure a fair hearing to the parties. An order
for production, in my respectful opinion, is
within our jurisdiction whenever the board is
satisfied that it is necessary for purposes of
a fair hearing.
The comments made, above, at pp.24-25, with respect to sections
19(1) and 20(8) of the. Crown Emplovees Collective Bargaining Act
and their influence on the power of the Board to issue a subpoena
30
duces tecum and to order production of documents pursuant thereto
apply, as well~ to its power to order pre-hearing production of
documents. Where the making~of the order was not on consent, as has
been indicated above, the parties would have full opportunity to
present argument on the issues relevant to production. In the
absence'of the power to order pre-hearing production of documents
the result would frequently be similair to the one which, so upset
the panel of the Board chaired by Mr. Samuels in the earlier Checng
case.
Mr. Swan, in the Toronto Star case, also referred (ibid.) to the
case of in .Re Abel et al, and Director, Penetanguishine Mental
.Health Centre; Re abel et al. and Advisory Review Board et al.
(1979), 97 D.L.R. (3'd) (Ont. Div. Ct.); aff'd 119 D.L.R. (3d) 101
(Ont. C.A.) as giving "some oblique support, to the existence of
such jurisdiction. Mr. Swan also noted (ibid.) that the. board, in
the Globe & Mail case, did not rely on its jurisdiction to order
pre-hearing production but used the authority to issue a subpcena
duces tecum.
As we have noted above, there would have been no need for us
to examine the jurisdictional basis for the production of documents
under-the Crown Emplovees Colective Bargainin~ Act if the
Employer was merely requesting an order based on the consent of the
parties to have such an order issued. The request made to us is a
much different one. First, the Employer took issue with the
relevancy of some of the Union's requests for production of
documents. Second, the Employer took the position that some of the
documents requested could not be produced except after compliance
with the provisions of the Freedom of Information and Protection of
Privacy Act. 1987. Third, the Employer did not take a position, one
way or the other, as to whether the Board had jurisdiction to issue
an order for pre-hearing production of documents or to issue a
subpoena duces tecum and to issue an order for the production of
documents pursuant to the subpoena so as to satisfy the
requirements of section 51(2) of the Freedom of Information and
Protection of Privacy Act. 1987:
The act does not affect the power of ... a tribunal to
compel a witness to testify or compel the production of
docuents.
Throughout the hearing, the Employer indicated its concern that it
might, unwittingly, violate the provisions of the latter Act and it
wished to obtain some assurance that any order for production
issued by this Board was in compliance with'that Act. Of necessity,
this required us to consider the jurisdiction of the Board to issue
such an order as is referred to in section 51(2). Given its
position, the Employer evidently concluded that it could not merely
accept the jurisdiction of the Board to issue such orders. If there'
was no such jurisdiction, the provisions of section 51(2) of the
latter act would not prevent its~application in this case.
Although Mr. Shime's directive of January 10, 1991, appears to
have been in response to the Employer's above stated concern, it
32
now appears to us that the concern went beyond the mere requirement
.of an order being issued by the Board. The Employer also seeks
assurance that the making of such an order is within the
jurisdiction of the Board.
Mr. Shime's directive, on its face, could refer to an order
for pre-hearing production of documents, or for the production of
documents pursuant to the issuance of a subpoena duces tecum. In
the latter case, the Employer might request an order to produce
documents pursuant to a subpoena, should the documents not to
produced at the~hearing. So as to avoid the delay referred to by
Mr. Samuels in the earlier Cheong case, an order could be issued,
on consent, prior to the hearing upon the subpoena being issued. In
the case before us, the request for an order does not not appear to
follow upon the issuance of a subpoena. In the absence of any
dispute, where the Employer's only concern is to insure that there
is no violation of the Freedom of Information and Protection of
Privacy Act, 1987, the parties may agree upon the documents to be
produced prior to the hearing in accordance with Mr. Shime's
'directive, without there being any need for a subpoena being
issued.
For the reasons stated above, we are of the view that the
Board can issue an order for the pre-hearing production of
documents and can issue a subDoena duces tecum and order the
production of documents pursuant, thereto. Such orders for
production of documents are those envisaged within the meaning of
section 5I(2) of the Freedom of Information and Protection of
Privac'~, Act, 1987.
We would only add that Margaret Faraci, one o'f the incumbents
received notice of the hearing and of her right to attend and
participate,did attend at the hearing. Richard Schatz the other
incumbent, who also received notice did not attend.
Dated at Toronto this 30th day of May , 1991.
M. R. Gorsky
Vice-Chairperson
E. SeYmour
Member
Member