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HomeMy WebLinkAbout2002-0474.Vangou.05-03-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 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# 2002-0474 UNION# 2001-0506-0001 2001-0506-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (V angou) Union - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Hilary Cook Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat FOR SERCO DRIVER Irv KleIner EXAMINA TION TorkIn Manes Cohen Arbus SERVICES INC. BarrIsters & SOlICItorS HEARING February 28 2005 2 Intenm DeCISIon In this proceeding the Board is seized with a grievance filed by Ms Emma Vangou alleging that the employer had discriminated against her on the basis of her disability, and harassed her because of her trade union activity There are a number of allegations made by the union in support of the grlevance, including the manner in which the grlevor was treated by the employer during her attempts to be accommodated following an lnJury, and following her return to work, the manner in which the grievor's work performance was supervised and evaluated, and the employer's conduct with respect to the grievor's unsuccessful application for employment as a driver examiner with Serco Driver Examination Services, Inc ("Serco") Serco had, under a lO-year agreement with the Crown, obtained the right to operate driver examination centres throughout Ontario, following a decision by the government of Ontario to divest itself of that function It lS the union's position that the grlevor was subjected to harassment and discrimination throughout these events because of her disability and because she had been a union activist The instant dispute relates to that aspect of the grlevance relating to the grievor's unsuccessful bid to obtain employment with Serco following the divestment by the Crown The union served a subpoena duces tecum on an officer of Serco, requlrlng 3 him to produce the three employment references for the grlevor, provided to Serco by three members of management of the Ministry On the hearing date the subpoena was returnable, counsel for the Serco appeared, and objected to the production of the references The Ministry supported Servo's objection, except that it took no position with regard to one of the three references because its author had consented to its production A hearing was convened at which submissions on a motion to quash the subpoena were received from each of the parties The evidence indicates that Serco used three main tools In assessing applicants for driver examiner positions It reviewed the contents of the application itself, each applicant was interviewed, and references were obtained and checked The grievor had provided the names of three individuals from the Ministry as referees Each of them provided a reference for her The reference checks were done by either Serco staff or contract employees hired for that purpose They did the checks by telephone, asking the referees a set of questions and writing down notes on their responses These notes were used in the hiring decisions ultimately made by the Area Manager Serco was looking for "above average" employees who had the requisite qualifications, had demonstrated good customer serVlce and ability to work well with supervisors and co-workers The Director of Human Resources of Serco at the time testified that 4 when measured against these criteria the references provided for the grlevor were "bad" The union is seeking the production of the notes made by Serco reference checkers wherein the referees' comments over the telephone were recorded It lS conceded by all parties that pursuant to S 48 (12) (b) of the Labour Relations Act this Board has the power "to requlre any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing " The test of relevancy at the production stage is not high If the material sought lS "arguably" or "potentially" relevant, the test is met The Ministry nor Serco took the position that the references sought are not relevant in this sense Since it lS the union's position that the Ministry acted in bad faith towards the grlevor in relation to her application for employment with Serco, I find the references to be arguably or potentially relevant Therefore, in the normal course, the unlon was entitled to their production pursuant to a subpoena duces tecum See, Re Canada Post, (1994) , 43 LAC (4th) 285 (Burkett) at p 287 However, material which is relevant to the litigation may nevertheless be not subject to production if they are "privileged" In R v Gruenke, (1991 ) 3 S C R 263 (S C C ) , the court distinguished between two categories of privilege The first type recognized at common law creates a prlma facie 5 presumption of inadmissibility if it fits within a recognized class of privilege, such as a solicitor-client privilege, unless the party seeking production can show an exception to the general rule The second type of privilege lS referred to as "case-by- case privilege" In this type the prima facie presumption is that the material is not privileged The party resisting production must satisfy the court or tribunal that in the particular circumstances of the case privilege should be accorded to the material This lS done by satisfying what lS known as the Wigmore test This test, which was adopted by the Supreme Court of Canada in Slavutych V Baker (1976) 1 S C R 254 consists of four conditions (1 ) The communications must originate In a confidence that they will not be disclosed (2 ) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties (3) The relation must be one which in the opinion of the community ought to be sedulously fostered (4 ) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation 6 In steep v Scott (2002 ) 62 o R (3d) 173, at p 179 the Ontario Superior Court of Justice noted that in R V Gruenke (supra) the S C C made it clear that in applying the Wigmore test the particular circumstances of the case at bar must be examined In the Law of Evidence in Canada ( 2 nd Ed), by Sopinka, Lederman and Bryant at p 623, the authors observe as follows about the manner in which the Wigmore test has been applied in Canada The exclusionary rule of privilege, however, rests upon a different foundation It is based upon social values, external to the trial process Although such evidence lS relevant, probative and trustworthy, and would thus advance a just resolution of disputes, it lS excluded because of overriding social interests In any discussion about privilege, one must keep In mind a constant conflict between two countervailing policies On the one hand, there lS a policy which promotes the administration of justice requlrlng that all relevant probative evidence relating to the issues be before the Court so that it can properly decide the lssues on the merits On the other hand, there may be a social interest in preserving and encouraging particular relationships that exist In the community at large, the viability of which are based upon confidential communications Normally these communications are not disclosed to anyone outside that relationship Anglo-Canadian Law has, for the most part, glven priority to the administration of justice over external social values In fact, the trend in Canada lS to limit the recognition of privilege In favour of the search for truth in the judicial process 7 In the case at hand, the privilege asserted by Serco and the Ministry is of the second type Therefore the Wigmore test comes in to play Counsel for Serco referred me to the following authorities Slavutych v Baker (supra), Smith v Royal Columbia Hospital, (1981) , 123 D L R (3d) 723 (B C S C ) , Straka v Humber River Regional Hospital, (2000 ) 51 o R (3d) 1 (Ont C A ), MacKenzie v Kutcher (2003 ) N S J No 125 (N S S C ) , Steep v Scott (supra), and Hawley v Fearn-Stewart, (2003 ) o J No 3910 (Ont S C J ) I will not review each of the foregoing judgements, because as already noted, the application of the Wigmore test depends on the facts of each particular case In R v Gruenke, (supra) at p 290, the Supreme Court of Canada observed This is not to say that the Wigmore criteria are now "carved in stone", but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court (Emphasis added) Serco relied heavily on the Straka decision (supra), noting that unlike the other authorities cited, it dealt specifically with the application of the Wigmore test to 8 reference letters In that case the court held that the letters satisfied the four conditions of the test In Straka the appellant took the position that conditions (2 ) and (4 ) of the Wigmore test had not been met Following a review of the evidence, at para 70 the court concluded "that this evidence lS persuaSlve and that it should be accepted The second condition in Wigmore lS, therefore, satisfied " Having concluded that condition 3 had also been met, the court turned to the fourth condition at paras 75 to 84 [75J I turn now to the other element to be weighed in the application of the fourth Wigmore condition [76J It may be noted that this condition appears to assume that there lS litigation afoot that may not be correctly determined for lack of relevant evidence, l e it involves the assertion of the privilege in the course of a trial This is not quite our situation The basic question in the present case lS whether the appellant should be put In a position, as a result of a successful discovery proceeding, to commence a proceeding against the reference-givers and, then, to have a correct disposition of that proceeding [77 J I accept that access to the courts lS a fundamental right In our legal system I would not want to compare it in general terms with a litigant's right of access to evidence in existing proceedings, with a view to determining which is deserving of greater protection On the facts of 9 this case, I have already concluded that the appellant's claim has sufficient bona fides to escape being dismissed at the threshold level Through no fault of the appellant, of course, his case is not as strong as that of the applicant In Norwich Pharmacal, where it was reasonably clear that the applicant's patent rights had been infringed and that all that stood in the way of the applicant asserting its rights was lack of knowledge of the infringer's identity [78 J The present case has an additional complexity Even if it were assumed that the letters were defamatory, there would likely be defences of justification and qualified privilege to be met and overcome before the appellant could ultimately succeed [ 79J The appellant's main interest, in the correct disposal of the litigation he contemplates, lS the clearing of his name and to "become eligible to obtain an active staff appointment at the respondent hospital" I have earlier In these reasons set forth a part of the appellant's affidavit in which this quotation appears The affidavit was sworn five months after the sending of the appellant's lawyer's letter to Humber in which he said that the appellant's desire to have the reference letters produced "had absolutely nothing whatever to do with Dr Straka's locum tenens or medical staff privileges at the Humber River Regional Hospital" Accordingly, it may be taken that now the appellant has an interest in the active staff appointment at Humber 10 [80 ] I think that it lS at this point that the appellant's rights under the Public Hospitals Act, ss 37-39 and 41-43 are a relevant consideration Under the Act the appellant has the right to have his entitlement to appointment to Humber staff decided by Humber's board or, on appeal, by the Health Professions Appeal and Review Board or, on further appeal, by Divisional Court Appeals to the Divisional Court are wide open They may be based on questions of law or fact, or both, and the court has all the powers of the tribunal below [81 ] The statutory procedure affords the appellant a straightforward route to clearing his name with the very organization that lS in possession of the critical letters As I have indicated earlier in these reasons, it may be that in this proceeding the letters would not be produced before or at the hearings before the hospital board or the appeal board The appellant, however, would have reasonable disclosure of the case against him before the hearing and Humber's medical advisory committee would be obliged to submit its case against the appellant at the hearing This might necessarily involve the reference-givers being required to testify and subjected to cross-examination This would not involve any breach of confidence or privilege respecting the correspondence but, if it should, I would think that the claim of privilege would be answered by the policy of the Public Hospitals Act procedure 11 [82 ] The existence of the statutory procedure, which is open to the appellant, lS a relevant factor to take into account In considering what weight should be glven to the benefit of the correct disposal of the litigation that the appellant contemplates in the present proceeding This litigation is somewhat complex and necessarily involves the overriding of an asserted privilege Its benefit, when weighed in the scales against the lnJury to the public interest sought to be protected by the privilege, is weakened by the fact that the contemplated litigation is not the only way in which the appellant can achieve his basic purpose The only possible benefit which the appellant would not have by following the statutory route would be the recovery of damages [83 ] When the benefit of the correct disposal of the litigation is considered in this wider context, I have little difficulty in concluding that the injury to the relation, l e to the peer review process, would clearly exceed the benefit of the correct disposal of the litigation [84 ] Accordingly, . . the fourth In my Vlew, Wigmore condition has been satisfied and, in result, the claim for privilege with respect to the letters lS established Obviously, recognizing that the privilege resulting from the application of the Wigmore test lS a case-by-case privilege, Straka does not stand for a general proposition that reference letters are privileged Each case turns on its own particular 12 facts It lS also to be noted, as the union pointed out, that under S 48 (12) (f), this Board has the power to accept oral or written evidence that in its discretion considers proper, "whether admissible in a court of law or not" In the instant case, the union conceded that the first condition in Wigmore lS satisfied It lS significant to note that conditions 2, 3 and 4 all refer to the "relation" It lS this relation that lS to be protected and fostered by according a privilege What lS the "relation" that lS referred to in Wigmore In Straka, the court held that in that case it was " the relation between those replying to requests for reference letters and the requesting hospital" In the present case the privilege must be considered with a focus on the relation between Sarco and reference-givers from Ministry management I will not consider whether conditions two and three of the Wigmore test are met because on a thorough examination of the circumstances of the case before me, I have concluded that condition 4 has not been satisfied It is my conclusion that the circumstances in Straka are distinguishable from those before me First, I turn to the potential injury that may be caused to the relation between Ministry reference glvers and Serco by the disclosure of the references In this regard, the facts are 13 very different than those in Straka, where the relation to be protected was that of a peer review process Thus at para 83 the Court in Straka concluded "When the benefit of the correct disposal of the litigation is considered in this wider context, I have little difficulty in concluding that the injury to the relation, l e to the peer review process, would clearly exceed the benefit of the correct disposal of the litigation" (Emphasis added) In Straka the references in question were part of a peer review process, l e medical professionals commenting on the performance and abilities of colleagues It is not difficult to understand why that peer review process was considered critical The references were about a medical professional, a certified specialist in Anaesthesia It lS highly improbable that such a medical professional lS subjected to any kind of formal performance evaluations as lS customary with ordinary workers in a unionized environment The point lS that apart from peer evaluation there will be few, if any, alternative sources of information about the doctor's performance and abilities Also, it is not at all difficult to see that a medical professional who lS requested to evaluate the performance of a colleague, would find the task awkward In that situation, the assurance of confidentiality becomes that much more critical in providing the reference glver some level of comfort in giving an honest assessment of his or her colleague 14 In contrast, In the case before me, the references are not provided by peers The references are about employees who are In the normal course subjected to superVlSlon and evaluation by supervlsors It lS not at all unusual for supervlsors to comment, and if necessary document performance deficiencies of employees under their superVlSlon Where deemed necessary superVlsors would confront employees about work deficiencies or inappropriate conduct Sometimes superVlsors would initiate discipline employees In this context, . . the on In my Vlew, weight to be attached to the importance of confidentiality of references provided by these same supervlsors for a former employee is much less If supervlsors, as part of their management function, are expected to counsel, confront and even discipline employees during a continuing employment relationship, why would it be any more difficult for the same supervlsors to comment on the performance of an individual, who has already left the employ of the Ministry, merely because such comments may not be held In confidence? If anything, it should be less awkward for a superVlsor to criticize an ex-employee, than criticizing a current employee who the supervisor must continue to work with Besides, In the context of the present case, the Ministry was entitled to evaluate the employee performance and to document deficiencies and action taken thereupon (including discipline) This information lS typically 15 included in the employee's personnel file More often than not, any references provided by supervisors would reflect the contents of the particular employee's performance as recorded in the file Indeed, if the references are substantially at odds with the documented record of performance, it would warrant some explanation Besides, the evidence indicates that there . . lS no ongolng relations between Serco and the Ministry reference-givers In that the Ministry's divestment of driver examiner serVlces lS complete There lS no suggestion that Serco will in the future continue to request references from Ministry supervisors because the evidence lS that the hiring process involving ex-Ministry driver examiners lS complete Serco counsel alerted the Board about the possibility that if production is ordered, Serco will not be able to obtain honest references from anyone Similarly Ministry counsel expressed concern about the Ministry, and even the crown as a whole, losing the ability to obtain candid and reliable references However, those concerns are misplaced The Wigmore test nor this decision results in a pronouncement that reference letters in general are not subject to any privilege Where they meet the four fold Wigmore test, they will be held to be privileged This decision only finds that these particular references are not privileged because they do not satisfy the Wigmore test 16 This leads me to examlne the relative benefit gained for the correct disposal of this grievance by ordering production of the references In Straka, at stake was a possible litigation with the goal of the appellant (1 ) clearing his name and (2 ) becoming eligible to obtain an active staff appointment at the respondent hospital Those rights were strictly personal to him and of no general public interest In contrast, in the instant case the rights being pursued in the grlevance - the right not to penalized because of union activity and not to be discriminated on the grounds of disability - are rights accorded by the collective agreement that incorporate public policy enshrined in statute, namely the Ontario Labour Relations Act and the Human Rights Code The protection of these rights lS a matter of public policy The party to the instant arbitration is the trade union Quite apart from the grievor's personal interest in the outcome of the grlevance, the union has an institutional interest In ensuring that its bargaining unit members are not unlawfully subjected to retaliation, which is a major part of the allegations in this grlevance In these circumstances, the importance of the correct disposal of the grlevance takes greater significance, than in a case like Straka where the rights at stake are personal to the individual litigant 17 Serco and the Ministry pointed out that an unfair labour practice complaint filed by the grlevor (and several other individuals) was pending before the OLRB It was argued that as in Straka, that alternate forum available to the grlevor should tip the balance In favour of extending a privilege to the references There lS no question that in Straka, the court was greatly influenced by the availability to the appellant of a process under The Public Hospitals Act, to have his right to an appointment to the staff of Humber Regional Hospital determined through a number of appeals, including an appeal to the Divisional Court However, I note two important factors In the instant case, the union (the party to the arbitration) lS not a party to the OLRB proceeding The party is the grlevor In her personal capacity More importantly, a careful review of the court's reasoning in Straka indicates that what influenced the court was not the availability of the alternate process per se, but its conclusion that the appellant, in that process would likely have access to the very information it was seeking Thus at para 81 the court wrote [81 ] The statutory procedure affords the appellant a straightforward route to clearing his name with the very organization that lS in possession of the critical letters As I have indicated earlier in these reasons, it may be that in this proceeding the letters would not be produced before or at the hearings 18 before the hospital board or the appeal board The appellant, however, would have reasonable disclosure of the case against him before the hearing and Humber's medical advisory committee would be obliged to submit its case against the appellant at the hearing This might necessarily involve the reference-givers being required to testify and subjected to cross-examination This would not involve any breach of confidence or privilege respecting the correspondence but, if it should, I would think that the claim of privilege would be answered by the policy of the Public Hospitals Act procedure (Emphasis added) Thus it was the availability of access to the information, rather than the availability of the alternate process itself that influenced the court As I understand it, in the pending unfair labour practice complaint both Serco and the Ministry are named as respondents Yet neither party suggested that the grlevor lS likely to have any better access to the contents of the references before the OLRB On the contrary, Counsel for Serco, while pointing out that the respondents will have a reverse onus, candidly took the position that Serco would not be required to, and would not, give up the confidentiality of the references in the OLRB process, and that any summons for 19 production would be met with a similar motion as was brought before this Board Counsel for the Ministry submitted that the information sought l e the references, are relevant only to one allegation of many made by the grievor against the Ministry, and that the grievor and the union could prove all the other allegations without that information The suggestion, therefore, was that the information was not very important for the grievor and the unlon Counsel for Serco submitted that the "references are a collateral evidentiary issue in a much larger case" I disagree The grlevance involves an allegation of harassment due to union activity and discrimination on the basis of disability Harassment and discrimination always involve a course of conduct The many allegations made are not discreet and unrelated events They form part of the grievor's claim that she was the subject of a pattern or course of conduct of harassment and discrimination by the Ministry for unlawful reasons All of the allegations, if proven, will go to establish that course of conduct Unlike in the cases relied on by Serco, in the present case bad faith is front and centre In other words, the union lS seeking access to the references in an effort to prove that the Ministry acted in bad faith in providing the references and 20 that in so doing it was motivated by unlawful considerations If the references are cloaked in secrecy, the grievor and union, would have no means of ascertaining if its SUsplClons are well founded On the other hand, if references are accorded privilege in these particular circumstances, it would enable an employer to contravene the collective agreement and public policy statutes, without fear of being held accountable In concluding that the fourth condition in the Wigmore test favours the disclosure of the references, I have also considered the fact that safeguards can be put into place, In order to minimize any injury to the relations between Serco and its reference-givers On a consideration of all of the factors, I conclude that the motion to quash the subpoena should be denied It is hereby ordered as follows (1) Pursuant to the subpoena, issued Serco shall produce to the union's legal counsel, as soon as practicable before the next scheduled hearing date, all notes and records of the references provided for the grievor by the three reference glvers 21 (2) Union counsel may share the information produced only with the grlevor All documents produced may not be copied, reproduced, read, conveyed or communicated in any manner by the grievor or the union for any purpose other than the present arbitration The documents shall remain in the exclusive possession of union counsel I remain seized in the event the parties cannot agree on the proper implementation of this interim decision Dated this 11th day of March 2005 at Toronto, Ontario ~ . ..... ... . . .. 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