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HomeMy WebLinkAbout2001-1617.Larman.03-05-15 Decision Crown Employees Commission de . Grievance Settlement reglement des griefs Board des employes de la Couronne Suite 600 Bureau 600 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326 1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1617/01, 1700/02, 1701/02 UNION# 02F006, 2002-0211-0041, 2002-0211-0042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Larman ) Grievor - and - The Crown III RIght of Ontano (Mimstry of CommunIty, FamIly and ChIldren s ServIces) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght Blair & Doyle Barnsters and SolICItors FOR THE EMPLOYER John SmIth, Semor Counsel Mary Pat Moore, Counsel Management Board Secretanat HEARING April 7 & 8, May 6 & 7, 2003 2 AWARD The Umon has move d to have the Board grant Its gnevance on the basIs that relevant eVIdence reqUIred for It to advance ItS case has been destroyed by an agent of the Mimstry ThIs A ward addresses that motIOn. Facts ThIs case has had a fairly long and pamful past. The gnevor, Don Larman, IS a long- servIce ProbatIOn Officer 2 With the Mimstry of FamIly and ChIldren s ServIces He first came to the Board on three gnevances related to certam letters placed m hIS personnel file Vice-Chalf Ken Petryshen mediated the matter and Minutes of Settlement were executed on Apnl 14, 1999 Paragraph 2 of the settlement provIdes as follows 2. The Mimstry shall not refer to or rely on any of the report (SIC), allegatIOns and/or mCIdents gIvmg nse to the Gnevances In any way or In any subsequent proceedmgs. The partIes were back before the Board, thIS tIme before me, m July 2001, relatmg to three new gnevances The gnevances were settled, and the settlement reqUIred a number of thIngs from both the gnevor and the MinIStry In part, the Mimstry was to destroy all documentatIOn related to the gnevances prepared up to Apnl 23, 2001 In addItIOn, "[t]he partIes agree [ d] not to rely on the content of these documents." In December 2001, the Mimstry alleged a breach of the July 2001 settlement by the gnevor, and dIscIplmed the gnevor based on findIngs m an mvestIgatIOn report dated November 15, 2001 It also transferred the gnevor from hIS home pOSItIOn m the St. Cathennes ProbatIOn Office to ItS SImcoe office The gnevor filed two gnevances agamst the Mimstry The partIes 3 resolved these matters on February 22, 2002. The Memorandum of Settlement, m part, states as follows 7 The Employer wIll not take dIscIplIne or take substantIve punItIve actIOn agamst the Gnevor for the findmgs that dIrectly relate to hIm m the Mimstry of CommunIty and SOCial ServIces mvestIgatIOn report dated November 15, 2001 The Employer Will not take dISCIplIne or substantIve pumtIve actIOn on the four allegatIOns upon whIch those findmgs were based. 8 The Employer Will not gIve the Mimstry of CommunIty and SOCial ServIces mvestIgatIOn report dated November 15, 2001 to the workplace reVIew consultant. The "workplace reVIew consultant" referred to In paragraph 8 had not yet been retaIned. At the mediatIOn, the Mimstry commItted to hIre an outSIde profeSSIOnal group to undertake a reVIew of the St. Cathennes ProbatIOn Office WhIle thIS reVIew was pendmg and undertaken, Mr Lannan would remam out of the St. Cathennes office on a leave of absence He would then be adVIsed, two weeks pnor to hIS return to work, of hIS "workplace locatIOn" and he retamed the nght to gneve thIS workplace locatIOn under the collectIve agreement. AccordIng to RIck Beauchamp, Program Manager, Commumty Programs for HamIlton/Niagara RegIOn, the purpose of the reVIew was to obtam an obJectIve, profeSSIOnal assessment of the work enVIronment at the office m relatIOn to ItS commItment to prOVIde a workplace free of harassment, dIscnmmatIon and VIOlence It should be noted that Mr Beauchamp testIfied only on exammatIOn-m-chIef before the Umon brought ItS current motIOn. The "terms of reference" of the reVIew stated, m part, as follows The reVIew Will conSIst of, but not be lImIted to . mtervIeWS With all staff In the ProbatIOn Office to determme If the Mimstry IS meetmg the above commItment . reVIew of complamts - both past and present and recommendatIOns on resolutIOn 4 . reVIew of documents, reports, mmutes and correspondence related to the workIng and mterpersonal relatIOnshI ps between staff to determme whether the enVIronment staff have created IS consIstent With the Mimstry s commItment and fosters a POSItIve atmosphere for growth and development. A number of firms tendered for the proJect, and Mr Beauchamp selected Mediated SolutIOns Incorporated. A formal consultmg servIce contract was entered mto between the Mimstry and Mediated SolutIOns. ThIS contract, It should be noted, was not produced untIl closmg arguments on the Umon s motIOn. The contract prOVIded as follows m regard to mformatIOn and matenal acqUIred by or prepared by or for Mediated SolutIOns, the "Consultant", pursuant to the contract: Ownership of Materials 7 The Consultant agrees that copynght m and all mformatIOn and matenal, excludmg company logos and trade marks whatsoever acqUIred or prepared by or for the Consultant pursuant to thIS contract, shall, both dunng and follOWing the term of the contract, be the sole property of Ontano Delivery of Material and Information 8 Upon receIpt of a wrItten request from Ontano, the Consultant agrees to delIver forthWith to Ontano all matenal and mformatIOn speCIfied m the request whIch IS the property of Ontano and m the posseSSIOn or under the control of the Consultant. The Consultant further agrees not to destroy any matenal or mformatIOn whIch IS the property of Ontano Without Ontano s pnor wrItten approval. ThIS clause survIves the eXpIratIOn or termInatIOn of the contract. Confidentiality 9 The Consultant agrees to ensure that the Consultant, ItS partners, dIrectors, officers, employees, agents and volunteers, shall both dunng and follOWing the terms of thIS contract, mamtam confidential and secure all matenal and mformatIOn whIch IS the property of Ontano and m the posseSSIOn or under the control of the Consultant pursuant to thIS contract. The workplace reVIew was undertaken m June and early July 2002 Mr Beauchamp testIfied that he dId not prOVIde any documents to the consultants. The manager of the St. Cathannes office, Dave Hopkms, dId that. Mr Beauchamp met With the consultants to dISCUSS 5 the terms of reference and hIS goal of obtaInmg a clear and objectIve assessment of the nature of the workmg relatIOnshIps m the office and the problems, If any He tesTIfied that he relayed hIS understandmg, through the manager and staff, that concerns had been expressed regardmg Issues of harassment and claims of dIscnmmatIOn, and that there was tenSIOn among mdIvIduals m the office Mr HopkInS also attended thIS meetmg. Mr Hopkms testIfied on exammatIOn-m-chIef that, "to the best of my recollectIOn", he proVIded the consultants With hIS supervIsor notes from September 19, 2001 to November 28, 2001, along With two e-maIls dated June 26, 2002 When asked whether he could recall provIdmg any other documents, he replIed "to the best of my recollectIOn, no" On cross- exammatIOn, he acknowledged that he was "not 100%" sure but he was "fairly confident" that was all that he prOVIded. He testIfied that pursuant to the earlIer settlements, he had destroyed a number of documents. In addItIOn, when he took a new Job m August 2002, he dId some "housecleanmg" and destroyed documents about staff "whIch were not of any IRrtIcular Import." On cross-exammatIOn, Mr Hopkms was not certam exactly when the documents that were to be destroyed pursuant to the settlements were destroyed. He acknowledged that he dId not send a covenng letter to Mediated SolutIOns when he sent them hIS supervIsor notes. Nor dId he keep a wntten record of what had been sent. Instead, he sent them electromcally to Mediated SolutIOns and unfortunately deleted the transmIttal message He could not recall exactly what It Said, but recalled that It was along the lmes of here IS "what I promIsed you or what you were lookmg for" MedIated SolutIOns Issued ItS Workplace ReVIew Report on July 23, 2002 The ExecutIve Summary of the report recommends that "the mdIVIdual on leave", Mr Lannan, "be 6 relocated laterally to another office mamtammg hIS posItIOn as ProbatIOn Officer and gIven an OppOrtunIty to start fresh." In concludes m part. Retummg the mdIvIdual who has been at the centre of past and present conflIct would unnecessanly dIsrupt the healmg process There IS too much water under the bndge to repair the workmg relatIOnshIp between the mdIvIdual on leave and hIS former colleagues In a footnote, the report states "If thIs IS not possible, then pnor to thIs employee returnIng to the workplace, there should be a facIlItated meetmg of all staff m whIch all of the partIes are told the expectatIOns around the workmg envIronment." Mr Beauchamp mVIted Mr Larman to reVIew the ExecutIve Summary on August 1, 2002, but he was mable to attend. AccordIngly, m order to comply With the 15-day nonce of Mr Larman s workplace locatIOn as reqUIred by the February 2001 Minutes of Settlement, Mr Beauchamp wrote to Mr Larman on August 1, advIsmg hIm that he would be temporanly asSIgned to the SImcoe ProbatIOn office, effectIve August 15, 2002 The letter states, m pertment part, as follows As you know, the Mimstry of CommunIty, FamIly and ChIldren s ServIces retamed Anne Grant and JudI Clarkson of Mediated SolutIOns Incorpor ated, a Toronto based DIspute ResolutIOn firm to conduct a workplace reVIew of the St. Cathannes ProbatIOn Office dunng the months of June and July 2002 The consultant s findmgs IndIcate that It would be benefiCial for all partIes In the St. Cathannes ProbatIOn Office to have a fresh start. Management has carefully reVIewed the consultant s findmgs and recommendatIOns to create a healthy workmg enVIronment for all staff members of the St. Cathannes ProbatIOn Office In order to prOVIde you With a fresh start, you Will be temporanly aSSIgned to the Mimstry of CommunIty, FamIly and ChIldren s ServIces SImcoe ProbatIOn Office, effectIve August 15, 2002, untIl the Young Offender s Program IS transferred from thIS mmIstry to the Mimstry of PublIc Safety and Secunty At the tIme of consolIdatIOn, MPSS Will confirm workplace locatIOns for all staff. Dunng your temporary aSSIgnment m SImcoe, your Job responsibIlItieS as a ProbatIOn Officer, claSSIficatIOn and salary Will remam the same You Will be reportmg to your new supervIsor, Jim Wilkmson. The HamIlton/Niagara RegIOn Will prOVIde reImbursement for transportatIOn costs from your home to the SImcoe Office 7 On August 1, 2002, Mr Larman gneved hIs relocatIOn to the SImcoe office On August 15, 2002, counsel for the Umon, Ed Holmes, advIsed the RegIstrar of the Gnevance Settlement Board, that the Umon and gnevor claim that the Employer breached the February 22, 2001 Memorandum of Settlement, and requested that a heanng date be scheduled before me as I had remamed seIzed. A copy of thIs letter was sent to counsel for the Mimstry On August 19, 2002, the local unIon presIdent, Judy DeVnes, sent a letter to Human Resources Consultant Mike Symons, requestIng dIsclosure m connectIOn With Mr Larman s gnevance, "pursuant to SectIOns 22 144 and 22 145 of the CollectIve Agreement and all other appropnate sectIOns of the CollectIve Agreement and the rules of natural JustIce" The request was qUIte extenSIve, and mcluded the follOWing, among other documents . all notes, reports, e- malls, bnefing notes, letters, names of persons mtervIewed, and any and all other documentatIOn m the posseSSIOn of both the HamIlton/Niagara RegIOnal Office and Mediated SolutIOns related to the Workplace ReVIew of the St. Cathannes ProbatIOn Office conducted by Mediated SolutIOns that the HamIlton/Niagara RegIOnal Office of the Mimstry engaged for thIS purpose . CopIes of all correspondence between the HamIlton/Niagara RegIOnal Office of the Mimstry and Mediated SolutIOns With respect to the Workplace ReVIew of the St. Cathannes ProbatIOn Office . CopIes of all documents relIed upon for the Workplace ReVIew by the HamIlton/Niagara RegIOnal Office and Mediated SolutIOns. On August 20, 2002, Human Resources Consultant Mike Symons responded to Ms. DeVnes request for dIsclosure The letter states, m pertment part: "Due to health and safety concerns that the employer has as a result of the CIrcumstances that gave nse to Mr Larman's 8 gnevance, the employer Will not be dIsclosmg any further InfOrmatIOn to the gnevor for the Stage 2 meeting." On August 30, 2002, counsel for the Umon, Ed Holmes, wrote to counsel for the Employer, Mary Pat Moore, requestmg "full and complete dIsclosure of any and all documentatIOn, notes, tape recordmgs, memoranda, letters, reports etc ansmg out of and establIshIng the Intemal reVIew performed on the St. Cathannes office" On September 30, 2002, Ms Moore wrote to Mr Holmes, as follows Please be adVIsed that the Employer IS not prepared to produce the report prepared by MediatIOn SolutIOns Incorporated dated July 23, 2002 at thIs tIme I have enclosed a copy of a letter dated September 18, 2000 (SIC) from Anne E Grant, DIrector, Mediated SolutIOns Incorporated. Ms. Grant IdentIfies that there are no other documents m her posseSSIOn related to the preparatIOn of thIs report for the HamIlton RegIOnal Office of the Mimstry of CommunIty, FamIly and ChIldren s ServIces Yours truly, Isl Mary Pat Moore Counsel The attached letter from MedIated SolutIOns, addressed to Richard Beauchamp and dated September 18, 2002 states as follows Dear Mr Beauchamp Re Request for Documents St. Cathannes ProbatIOn Office Workplace ReVIew MSI File # 01 41525-1,166 Further to our telephone conversatIOn regardmg the above -mentIOned request, I would lIke to confirm that the only documents retaIned m the Mediated SolutIOns Incorporated ("MSI") file, other than our contract for servIces, IS the final report dated July 23, 2002 I understand that thIS report IS already In your posseSSIOn. It 9 IS MSI's practIce (based on best practIces In thIS field) to shred all documents, notes, memoranda, etc used to generate the report and recommendatIOns once the final report has been accepted by the retaInIng clIent. As per best practIces, the notes were shredded In thIs case I would also lIke to confirm that It IS not my practIce to tape record confidential IntervIews, and to my knowledge no recordIng were made In thIS case I hope thIs assIsts you. Please let me know If I can be of further assIstance In thIS matter Yours Truly, Isl Anne E Grant, RN, LL.M (ADR, C Med Duector, MedIated SolutIOns Incorporated On November 19,2002, the first day ofheanng In thIS matter, Mr Holmes raised an Issue about the need for further dIsclosure, and counsel for the Mimstry agreed to respond by letter GIven that our next heanng date was not untIl Apnl 7, 2003, Mr Holmes adVIsed that there was no rush, and It could Wait until after the New Year On March 28, 2003, Mr Holmes agaIn wrote to Ms. Moore staTIng that "the matenals dIsclosed do not satISfy our request", and lIsted a number of speCIfic matters. One of the speCIfic matters was that "[ w]e have not been prOVIded With a lIst of the documents or copIes of same that were prOVIded to the InVestIgator In the course of the InVestIgatIOn. " On Apnl 4, 2003, Ms. Moore prOVIded some further InfOrmatIOn In response to the Umon s dIsclosure requests, then stated. In response to your paragraph 5, the Employer has reVIewed ItS files to determIne whIch documents were proVIded to the workplace InVestIgators I have receIved InstructIOns from the employer that the documents were shredded. At the heanng on Apnl 7, 2003, btsed on thIS representatIOn that the Employer s record of the documents prOVIded to the consultants had been destroyed, Mr Holmes moved to have the 10 gnevances granted. Counsel for the Employer requested an OpportunIty to speak agaIn With Mr HopkInS to clanfy the SItuatIOn of the documents that were prOVIded to the consultants The follOWing day, Ms Moore adVIsed that the InstructIOns she had receIved were In error and that the documents prOVIded by Mr HopkInS to the InVestIgator had not been destroye d and that Mr HopkInS would be aVailable to testIfy about that. Mr Holmes reserved hIS motIOn to conSIder these events. When the heanng resumed on May 6, 2002, Mr Holmes presented hIS monon. Positions of the Parties For the Union The Umon asserts that the Employer s actIOns In regard to dIsclosure In thIS case - ItS ImtIaI refusals to prOVIde dIsclosure, the shreddIng of relevant documents by ItS agent, Mediated SolutIOns Inc, ItS changIng pOSItIOns (the documents prOVIded by Mr HopkIn s were shredded and then "mIraculously" found agaIn) - all preclude the Umon from advanCIng ItS claims and that to proceed With the heanng would constItute both a demal of natural JustIce and an abuse of process. In support of ItS pOSItIOn, the Umon relIes on ArtIcle 22 14 4 and 22 14 5 of the collectIve agreement. ArtIcles 22 14 4 and 22 14 5 prOVIde 22 14 4 The partIes agree that pnncIples of full dIsclosure of Issues In dIspute as alleged by a gnevance advanced by the Umon of behalf of a member or members, IT the Umon Itself, and full dIsclosure of the facts relIed upon by management In a deCISIon that IS subject to a gnevance, are key elements In amIcable and expedItIOUS dIspute resolutIOn process. 22 14 5 The partIes agree that at the earlIest stage of the gnevance procedure, eIther party upon request IS entItled to receIve from the other, full dIsclosure 11 The Umon notes that these prOVISIons are fairly new to the collectIve agreement and demonstrate the partIes mutual commItment to "full dIsclosure" In Its submIssIon, under these prOVISIons, If a document IS "arguably relevant", the requestmg party IS entItled to get It. These prOVISIons, It submIts, create a substantIve entItlement to full dIsclosure Along With the duty to dIsclose, the Umon argues, there IS corollary duty to preserve relevant documents It submIts that Without the duty to preserve relevant eVIdence, the duty to dIsclose may be rendered meanmgless. It contends that the greater the relevance of the eVIdence, the greater the degree of care reqUIred to preserve that eVIdence In ItS VIew, gIven the hIstory of thIS case, the relevancy of the documents exchanged between the Mimstry and consultants, as well as the documents generated and gathered by the consultants would be at the hIghest level of relevancy DespIte the contractual oblIgatIOn to dIsclose and the corollary duty to preserve, the Umon submIts that dIsclosure was ImtIally, and repeatedly, demed and documents were shredded by Mediated SolutIOns On the eve of the hearmg, the Umon was adVIsed that documents had been shredded by the Employer, and then, after counsel for the Umon asserted that the gnevor could not obtam a full and fair heanng under these CIrcumstances, dId the documents that were prOVIded to the consultants "mIraculously" reappear It notes that although the Mimstry ImtIally asserted that a "mIstake" had been made, there was no eVIdence of that presented dunng the testImony of Mr Hopkms. Further, It submIts that Mr Hopkm s testImony about what he gave to Mediated SolutIOns IS unrelIable It asserts that Mr Hopkm s could not say With any certamty exactly what he prOVIded to them. There was no lIst made and no accompanymg letter or e-mail outlmmg what had been proVIded. On the contrary, the e-mail whIch transmItted the documents 12 to the consultants had been deleted, whIch the Umon claims was a deliberate destructIOn of relevant eVIdence The Umon further argues that the Mimstry cannot hIde behmd the fact that It was Mediated SolutIOns, a thIrd party, that destroyed the requested documents. It submIts that Mediated SolutIOns was the hIred agent of the Mimstry and subject to Its dIrectIOn regardmg the retentIOn of documents. It notes that the contract between the Mimstry and Mediated SolutIOns specIfIcally addresses thIS pomt and makes the documents prOVIded to MedIated SolutIOns as well as documents generated by Mediated SolutIOns the "property of Ontano " It also prohibIts then destructIOn. Yet the documents were mtentIOnally destroyed based on the company s "best practIces" approach. The Umon also questIOns the completeness of the Mimstry s productIOn of the documents It prOVIded to Mediated SolutIOns It notes that the contract between the Mimstry and Mediated SolutIOns was not produced untIl the argument portIOn of thIS motIOn. It suggests that other documents that reasonably would be expected, such as a letter selectmg Mediated SolutIOns, a letter accompanymg payment for theIr servIces, a letter acknowledgmg receIpt of then report, were not produced. ThIS leads the Umon to questIOn the extent of the Mimstry s productIOn, espeCIally when conSIdered m lIght of the Mimstry s ImtIaI refusal to dIsclose any documents. It submIts that, under these facts, neIther the Umon nor the Board can be sure that all of the documents exchanged between the Mimstry and MedIated SolutIOns have been dIsclosed, or that a full and fair heanng can take place ThIS uncertamty, the Umon asserts, IS further senously compounded by the deliberate destructIOn of relevant eVIdence by Mediated SolutIOns It submIts that With the destructIOn of 13 MedIated SolutIOns notes and documentatIOn, there IS no pOSSIble way to determIne what occurred dunng the reVIew and whether the Memorandum of Settlement was breached. It asserts that because the relevant mformatIOn and documentatIOn was destroyed, there IS no way for the Umon to challenge any of the mformatIOn that arose dunng the course of the reVIew It cannot, for example, put a smgle contradIctory statement to any of the partICIpants, mcludmg Mr Hopkms Nor can Mr Hopkm s testImony about the documents and mformatIOn he prOVIded to MedIated SolutIOns be challenged. In the Umon s submIssIon, thIS InabIlIty to determme what occurred dunng the reVIew and what mformatIOn the Employer prOVIded to the reVIewers precludes the gnevor from bemg able to have a full and fair heanng. The Umon argues that the documentatIOn prOVIded to Mediated SolutIOns and the reVIewer s IntervIew notes are cruCial to ItS case It also submIts that the dIsclosure of that mformatIOn IS essentIal to mamtaIn the Integnty of the arbItratIOn process and the gnevor s nght to a full and fair heanng. In ItS submIssIon, the mtent of the Mimstry or Mediated SolutIOns IS melevant. What matters IS the fact that the relevant documents were destroyed. It further submIts that m lIght of the destructIOn of the relevant documents, there IS no alternatIve remedy but to grant the gnevance The destructIOn cannot be corrected, It submIts, It cannot be undone AccordIngly, It asserts that the appropnate remedy IS to grant the gnevances In support of ItS contentIOn, the Umon CItes to R. v Carosella [1997] 1 S C.R. 80 (S C C) Re Dough Delight Ltd. and Bakel} Confectionel} and Tobacco Workers International Union, Local 181 (1998), 74 L AC (4h) 144 (E Newman) Re Budget Car Rentals Toronto Ltd. and United Food & Commercial Workers Local 175 (2000), 87 LAC (4h) (DaVIe) Re Thompson Products Employees Association and Thompson Products Ltd. (1970), 22 L.AC 85 14 (Roberts) Re National Standard Co of Canada Ltd. and CAW-Canada, Local 1917 (1994),29 L A.C (4h) 228 (Palmer), Brown and Beatty, Canadian Labour Arbitration, at Par 3 1420 The Employer The Mimstry asserts that the Umon s mterpretatIOn of ArtIcles 22 14 4 and 22 14 5 are overly broad, and do not prOVIde for a process whereby the Umon must sImply ask for somethmg and IS then entItled to receIve It. Instead, It submIts that what IS meant by the words "full dIsclosure" m ArtIcle 22 14 5 IS defined m ArtIcle 22 14 4 to mean "full dIsclosure of facts relIed upon by management In a deCISIon that IS subject to a gnevance " The Mimstry contends that It fully complIed With ArtIcles 22 14 4 and 22 14 5 when It prOVIded the Umon With the Workplace ReVIew report dated July 23, 2002 m November 2002, and accordmgly, there was no breach of thIS prOVISIon. At most, It submIts, the Mimstry may have been somewhat tardy m supplymg the report to the Umon, but It fully complIed With the reqUIrements of "full dIsclosure" under the collectIve agreement. The Mimstry further contends that It has produced all of the documents that It possesses, IncludIng all of the documents that It prOVIded to MedIated SolutIOns and all of the documents that It mtends to rely upon at the heanng. It argues that It cannot produce documents that MedIated SolutIOns destroyed. Consequently, the Mimstry asserts that the Impact of the destructIOn of documents by Mediated SolutIOns IS the same on It as on the Umon - both are lImIted to the range of documents produced. The Mimstry acknowledges that Mr Hopkm s testImony demonstrated some confUSIOn, but the bottom lme, from ItS perspectIve, IS that hIS testImony about what documents he gave to Mediated SolutIOns was conSIstent With the documents produced for the Umon - hIS supervIsor notes and the two e-mails. 15 The Mimstry also acknowledged that Mediated SolutIOns destructIOn of the documents was "of concern", but argued that the concem was lImIted because of the nature of the case In contrast to a case whIch Involves a Witness statement about a SIngle event whIch would be reqUIred to challenge effectIvely the Witness s credibIlIty, It submIts that the Employer s deCISIon to relocate Mr Larman was based on a pattern of behavIOurs over a ten year penod as outlmed m the Workplace ReVIew It contends that the mtervIewer s notes would be of lIttle use m cross- exammatIOn of the partICIpants. Instead, It was submItted that each partICIpant could be cross- examIned by askmg If he or she had conveyed such InfOrmatIOn to the reVIewer If en employees respond "no", the Employer s case falls. ConsequentIally, the Employer asserts that the Umon has the abIlIty to challenge the report, even m the absence of the reVIewer s mtervIeW notes In terms of the cases relIed upon by the Umon, the Employer submIts that R. v Carosella, supra, IS a cnmmal proceedmg and factually dIstmgUIshable from the Instant CIvIl matter It also notes that the deCISIon was a 5-4 rulmg, and that the dIssent held that a thud party cannot be held to the same standards of dIsclosure as the Crown. The arbItratIOn deCISIons, It contends are dIstmgUIshable because m each case the Board had Issued an order for productIOn whIch was Ignored by one of the partIes. In contrast, no productIOn order was ever made m thIS case In sum, the Employer argued that any prejudIce to the gnevor caused by the destructIOn of the documents by Mediated SolutIOns was mImmal and could be dealt With by a skIllful cross- eXamInatIOn. It submIts that there has been no abuse of process and that It has fully complIed With ItS duty to dIsclose 16 Union Reply In response, the Umon submIts that the fact that there was no Board order for productIOn of documents IS melevant because With the destructIOn of the documents by Mediated SolutIOns, there could be no order TheIr destructIOn, moreover, IS preCIsely why It IS seekmg to have the gnevances granted as a remedy The Umon also contends that the oblIgatIOn of "full dIsclosure" as set forth m the collectIve agreement IS not lImIted to the facts relIed upon by the Employer but Include all "arguably relevant" documents Nor IS It lImIted to those documents whIch the Employer mtends to rely upon. It also submIts that ItS motIOn IS not based on the fact that prodUCTIon was tardy It IS based on the fact that documents were destroyed. Finally, the Umon vIgorously dIsputes the Employer s contentIOn that skIllful cross- exammatIOn can aVOId any prejudIce to the gnevor caused by the destructIOn of the documents It submIts that whIle a Witness may say he or she Said somethmg to the reVIewer, Without the mtervIeW notes, there IS no way for the Umon to challenge that testImony Decision ThIS long and dIfficult case has become even more so At Issue IS whether a full and fair heanng, conSIstent With the reqUIrements of natural JustIce, can be held m lIght of the destructIOn of Mediated SolutIOns notes and documentatIOn. The nght to a full and fan heanng IS baSIC to the arbItratIOn process There are many aspects to a full and fan heanng, mcludmg the nght to advance one s case and the nght to respond. As set forth m Williams v Roblin (1858), 2 P.R. 234, at p 237 "NeIther SIde can be 17 allowed to use any means of mfluencmg the mmd of an arbItrator whIch are not known to and capable of bemg met and resIsted by the other" The case of R. v Carosella, supra, cIted by the Umon, IS mstructIve In that case, the complamant went to a sexual assault cnSIS centre m 1992 for advIce about laYIng charges agaInst the accused for sexual abuse that she alleged occurred In 1964 when she was a student. The complamant was mtervIewed by a sOCial worker for about an hour and forty-five mmutes. The socIal worker took notes dunng the mtervIeW and advIsed the complamant that the notes could be subpoenaed to court. Followmg the mtervIew, the complamant contacted the polIce and the accused was charged and later, after a prelImmary mqmry, was ordered to stand tnal In October 1994, counsel for the accused sought productIOn of the centre s file concernmg the complamant. When the file was produced, It dId not contaIn the notes of the complamant s mtervIew The notes had been destroyed m Apnl 1994 pursuant to the centre s polIcy of shreddmg files With polIce Involvement before beIng served a subpoena m relatIOn to cnmmal proceedmgs The Court maJonty, m a rulmg by JustIce Sopmka, determmed that there was ample eVIdence to conclude that the notes were "relevant and matenal." (Qmcklaw, pp 15-16, par 44) The Court stated that "It IS clear that the appellant could have made use of the InfOrmatIOn In the notes even though It IS dIfficult to speCIfy the preCIse manner m whIch the mformatIOn could have been used Without knOWing the content of the notes" (Id., p 16, par 45) As a result, "[t]he destructIOn of thIS matenal and ItS consequent non-dIsclosure resulted In a breach of the appellant s constItutIOnal nght to full answer and defence" (Id., p 16, par 47) In terms of the stay of proceedIngs, the Court CIted R. v 0 Connor [1995] 4 S C.R.41, at para. 82 that: 18 It must always be remembered that a stay of proceedIngs IS only appropnate "m the clearest of cases", where the prejudIce to the accused s nght to make full answer and defence cannot be remedIed or where meparable prejudIce would be caused to the mtegnty of the JudIcial system If the prosecutIOn were contInued. Smce credibIlIty was a major Issue m the case, the tnal judge had determmed that the destructIOn of the documents was very sIgmficant. Also sIgmficant was the absence of any alternatIve remedy that would cure the prejudIce to the abIlIty of the accused to make full answer and defence The other factor was meparable prejudIce to the mtegnty of the JudIcial system If the prosecutIOn were contmued. As the Court stated. The presence of the first factor cannot be deme d. With respect to the second, m my opmIOn, the complete absence of any remedy to redress or mItIgate the consequences of a deliberate destructIOn of matenal m order to depnve the court and the accused of relevant eVIdence would damage the Image of the admmIstratIOn of JustIce (Qwcklaw, p 18, par 56) Although R. v Carosella arose In a cnmInallaw context, With Charter Rights at stake, the pnncIples explored there do have some applIcabIhty m the mstant matter As noted, the nght to a fair heanng mcludes the nght to advance one s case and the nght to respond. 1 The Duty to Disclose The first Issue IS whether the Mimstry had a duty to dIsclose the notes and documents that were destroyed by Mediated SolutIOns m thIS case Under ArtIcle 22 145, " eIther party upon request IS entItled receIve from the other, full dIsclosure" Under SectIOn 48(12) of the Labour Relations Act, an arbItrator has the power "to reqwre any party to produce documents or thIngs that may be relevant to the matter and to do so before or dunng the heanng." These oblIgatIOns go beyond dIsclosmg the "facts relIed upon by management m a deCISIon that IS subj ect to a 19 gnevance " as set out m ArtIcle 22 14 4 The oblIgatIOn applIes to documents or thmgs that are "arguably relevant." In thIs case, the documents provIded to MedIated SolutIOns by the Mimstry and the documents, mcludmg mtervIeW notes generated by Mediated SolutIOns dunng the reVIew, are hIghly relevant to the Issues m dIspute As set out m the Umon s openmg statement at the heanng on November 19, 2002 and m correspondence to the counsel for the Mimstry, the Umon asserts that the Employer s relocatIOn of Mr Larman, based on the Workplace ReVIew, VIolates the Apnl 14, 1999 settlement, the July 2001 settlement and the February 2002 settlement. It submIts that m each of those agreements, the Mimstry agreed not to rely on certam allegatIOns and mformatIOn. Yet, m ItS VIew, the Workplace ReVieW IS "lIttered" With references to matters that were settled. The Umon asserts that msofar as the Workplace ReVIew refers to and relIes upon allegatIOns that were settled and could not be relIed upon by the Employer, the Employer has breached these settlements. It also contends that the Employer s relocatIOn of Mr Larman was a dIscIplmary response m VIOlatIOn of the February 2002 settlement and the collectIve agreement. Fmally, Without knowmg what documentatIOn was proVIded, the Umon could not ascertam whether paragraph 8 of the February settlement was complIed With. Paragraph 8 reads "The Mimstry Will not gIve the Mimstry of CommunIty and SOCIal SefVlces mvestIgatIOn report dated November 15,2001 to the workplace reVIew consultant." Although It was recogmzed at the February 2002 mediatIOn that employees partIcIpatmg In the reVIew could dISCUSS an} matter With the workplace reVIewers, mcludmg matters that had been settled, the Mimstry could not rely on those matters whIch had been resolved. As a result, what mformatIOn was prOVIded to the reVIewers IS Important to establIsh the baSIS of the reVIewer s recommendatIOns and IS central to the Umon s case The documentatIOn prOVIded to 20 the reVIewers by the Mimstry IS also cntIcal to a determmatIOn of whether paragraph 8 was breached. It IS not suffiCIent, as counsel for the Mimstry asserts, for Umon counsel to cross-examme Witnesses about the lIst of behavIOurs attributed to Mr Larman over the past ten years, as outlmed m the report, and ask them whether or not they Said that to the reVIewer Regardless of whether a Witness says "yes" or "no", the Umon cannot challenge the testImony m the absence of the mtervIeW notes In lIght of the speCIfic Issues raised m thIS matter, It IS cntIcal to go behmd the report to reVIew what was Said to the reVIewers, and what they relIed upon. Therefore, I conclude that the notes and documentatIOn destroyed by Mediated SolutIOns were hIghly relevant, and m fact, cruCial to the Umon s case 2. The Destruction of the Documents The eVIdence IS undIsputed that MedIated SolutIOns, based on ItS "best practIces" polIcy, destroyed all of ItS notes and documentatIOn related to the workplace reVIew The Mimstry bears the legal responsibIlIty for thIS. The Mimstry cannot aVOId responsibIhty for the destructIOn of the documents by MedIated SolutIOns on the baSIS that Mediated SolUTIons IS a thIrd party MedIated SolutIOns, for the purpose of the workplace reVIew, was an agent of the Mimstry It was sub] ect to the Mimstry s dIrectIOn and control In regard to the retentIOn of documents The Mimstry s contract With Mediated SolutIOns made It clear that "all mformatIOn and matenal whatsoever acqUIred or prepared by or for the Consultant pursuant to thIS contract shall, both dunng and follOWing the 21 term of the contract, be the sole property of Ontano The consultant agreed that upon wntten request It would delIver "all matenal and mformatIOn speCIfied m the request whIch IS the property of Ontano and m the posseSSIOn or under the control of the Consultant" and "further agree [ d] not to destroy any matenal or mformatIOn whIch IS the property of Ontano Without Ontano s pnor wntten approval." Yet the documents were destroyed, per the consultant s "best practIces" polIcy In thIS regard, It should be noted that the project MedIated SolUTIons had undertaken was an mvestIgatIOn mto the causes of a workplace conflIct - not a medIatIOn. The Mimstry, as the hmng agency, IS legally responsible for the destructIOn of the documents. Also problematIC IS the fact that no wntten record was made of the documents prOVIded by the Mimstry to Mediated SolutIOns Mr Hopkm s was "fairly confident" that all that he prOVIded were hIS supervIsor notes and two e-mmls, but that IS msufficIent when the settlement precluded certaIn documents from bemg prOVIded by the employer Clearly, sIgmficant care should have been taken to IdentIfy and lIst all of the documents proVIded to the reVIewer ThIS SItuatIOn IS then exacerbated by the destructIOn of Mediated SolutIOns documents Under these CIrcumstances, there IS SImply no way to be certam, With any degree of confidence, what documents were actually prOVIded. C. The Legal Impact of the Destruction of Relevant Evidence HaVIng determmed that the documents destroyed by MedIated SolutIOns were hIghly relevant to the Umon s case, the questIOn becomes what remedy should result. In thIS case, the Umon IS clearly askIng for an extraordmary remedy - the grantIng of ItS gnevances. In support, It CIted to an except from Brown and Beatty, Canadian Labour Arbitration, at par 3 1420, ProductIOn of Documents, whIch states 22 However, where a tImely request IS made and there IS no complIance, It would appear that the remedy IS to order productIOn and grant an adjournment, and If the party s refusal contInues thereafter, to convene the heanng and eIther allolt or dismiss the gnevance as may be appropnate m the CIrcumstances. (emphasIs added) Most of the arbItratIOn cases cIted by the Umon mvolve dIsmIssals of gnevances for failure to produce ordered documents, thereby resultIng m an abuse of process None mvolves the grantmg of a gnevance Counsel for the Umon acknowledged that he could find no such authontIes But as counsel for the Employer, John SmIth, candIdly acknowledged, If a gnevance can be dIsmIssed on thIS baSIS, It should follow that a gnevance can also be granted on thIS baSIS. In Re National-Standard Co of Canada Ltd. and CAW-Canada, Local 1917, supra, ArbItrator Palmer determIned that an arbItrator has the power to dIsmISS a gnevance to prevent abuse of the arbItratIOn process He further stated at p 235 that such power "IS also conSIstent With the old adage of the courts ibi jus ibi remedium where there IS a nght, there IS a remedy" In that case, the arbItrator determmed that the gnevor was mtentIOnally not complymg With productIOn orders, resultIng m an abuse of the system to both the company and the unIon. As the remedy, he dIsmIssed the gnevance A illmber of the other cases CIted by the Umon whIch dIsmIssed the gnevances also mvolve a determmatIOn that there had been an abuse of the arbItratIOn process In thIS case, on the facts presented, I cannot conclude that the Mimstry engaged m an abuse cf the arbItratIOn process. There was no order for productIOn that was mtentIOnally dIsregarded. Although I cannot condone the Mimstry s ImtIaI blanket refusals to produce the requested documents, qwte a number of documents and mformatIOn were prodoced, albeIt, as counsel acknowledged, 23 somewhat tardIly The Mimstry s actIOns, however, do not amount to an abuse of the arbItratIOn process. That conclUSIOn, however, does not end the mqUIry The fundamental concern here IS whether the nght to a faIT heanng has been meparably damaged as a result of the destructIOn of MedIated SolutIOns notes and documents In R. v Carosella, supra, the Court stated that a stay of proceedIngs was an "extraordmary remedy" and only appropnate m the "clearest of cases" In that case, the destructIOn of the mtervIeW notes was very sIgmficant because credibIlIty was an Important factor In the case Also sIgmficant to the Court was the absence of any alternatIve remedy that would cure the prejudIce to the abIlIty of the accused to make full answer and defence The other factor was meparable prejudIce to the mtegnty of the JudICial system If the prosecutIOn was contmued. In thIS case, the Mimstry suggested no alternatIve remedy that would repair the damage to the Umon s case caused by the destructIOn of Mediated SolutIOns notes and documents It argued, mstead, that there was no meparable damage F or the reasons set forth above, I do not agree With that conclUSIOn. The destroyed documents were cntIcal to the Umon s case For the reasons set forth below, I also conclude that the destroyed documents were cntIcal to the Employer s abIlIty to defend ItS actIOns and, ultImately, thIS Board s abIlIty to assess the ments of the case. In so concludmg, I have conSIdered whether the takmg of adverse mferences - l.e , mferrIng that the employee partICIpants and Mr Hopkms dIscussed matters that had been settled With the reVIewer - would repair the damage After much conSIderatIOn, I conclude that lIDder the speCIfic facts of thIS case, that would not repair the damage 24 As prevIously noted, at the mediatIOn that led to the February 2002 settlement, It was recogmzed that the employer could not control what employee partICIpants would tell the reVIewer It was recogmzed that the employee partICIpants mIght dIscuss matters that had been settled. What was agreed, however, was that the Employer would not rely on those mCIdents Hence paragraph 7 of the settlement: "The Employer wIll not take dIscIplIne or take substantIve punItIve actIOn agamst the Gnevor for the findmgs that duectly relate to hIm m the Mimstry of CommunIty and SOCial ServIces InVestIgatIOn report dated November 15, 2001 The Employer Will not take dIscIplme or substantIve punItIve actIOn on the four allegatIOns upon whIch those findmgs were based." Consequently, even If It IS mferred that the employees and Mr Hopkms dIscussed matters that had been settled, the Umon s abIlIty to advance ItS case - as well as the Employer s abIlIty to defend ItS actIOns - are meparably damaged by the destructIOn of Mediated SolutIOns notes and documents Without knowmg the full extent of what was relayed to the reVIewers, the baSIS upon whIch Mediated SolutIOns made ItS recommendatIOns cannot be determmed. Without knOWing the complete baSIS upon whIch Mediated SolutIOns made ItS recommendatIOns, It cannot be determmed whether the Employer based ItS deCISIon to relocate Mr Larman on prohibIted mformatIOn. The mtervIeW notes mIght show that the recommendatIOns were based exclUSIvely or pnmanly on matters that had been settled, or It mIght show that those matters played only a very small part of the whole Consequently, Without knOWing the full extent of what was relayed to the reVIewers, neIther the Umon nor the Employer can have a full and fair heanng on the central Issues In dIspute LIkeWise, thIS Board Will not be able to determme If there was a breach of the settlements and determme the ments of thIS case Consequently, I conclude that there IS no alternatIve remedy that would cure the prejudIce to the Umon s abIlIty to advance ItS case I also conclude that the destructIOn of the documents 25 and notes by Mediated SolutIOns meparably prejudIced the Employer s abIlIty to defend Its actIOn. Finally, It caused meparable prejudIce to thIs Board s abIlIty to determme the ments of the case A full and fair heanng, whIch the pnncIples of natural JustIce reqUIre, cannot be held m thIs matter Under the speCIfic facts and CIrcumstances of thIs case, mcludmg the fact that It was the Employer s agent that destroyed the relevant documents, the appropnate remedy IS to grant the gnevance As stated by ArbItrator Palmer m Re National-Standard of Canada Ltd. and CA W-Canada , Local 1917 supra, "where there IS a nght; there IS a remedy" In so rulmg, I Wish to emphaSIze a few pomts. ThIs rulmg IS based solely on the destructIOn of hIghly relevant eVIdence and documents whIch has precluded the pOSSIbIlIty of a full and fair heanng. It IS not a determmatIOn that the Mimstry breached the February 2002 Minutes of Settlement or any of the earlIer settlements There IS no findmg that the Mimstry or Mediated SolutIOns destroyed the documents m order to thwart the arbItratIOn process The problem lIes m the fact that the documents were destroyed, precludmg the possibIlIty of a full and fair heanng. Conclusion. For all of the reasons set forth above, I conclude as follows 1 The notes and documents sought by the Umon from Mediated SolutIOns, an agent of the Employer, were hIghly relevant to the advancement of ItS case 2. The destructIOn of those notes and documents by Mediated SolutIOns meparably prejudIced the Umon s abIlIty to advance ItS case I also find that It meparably prejudIced the Employer s abIlIty to defend ItS actIOns and thIS Board s abIlIty to determme the ments of the case 3 There IS no alternatIve remedy that would cure the prejudIce caused by the destructIOn of these documents 4 Based on the speCIfic facts and CIrcumstances of thIS case, I conclude that a full and fair heanng cannot take place 26 5 Based on the specIfic facts and Clfcumstances of thIs case, I conclude that the appropnate remedy IS to grant the gnevance 6 Mr Larman IS to 00 reInstated to hIS pOSItIOn at the St. Cathennes ProbatIOn Office as soon as It may be practIcally arranged. 7 He IS also to be made whole, If there IS a financIal loss. 8 I shall remam seIzed. Issued at Toronto thIS 15th day of May, 2003 H11.hrnnEl RandI:H. Abramsky, Vice-ChaIr