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HomeMy WebLinkAbout2003-3766.Union.06-05-31 Decision Crown Employees Commission de Nj 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# 2003-3766 UNION# 2003-0999-0034 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Mimstry of Government ServIces HEARING Apnl 7 and May 8 2006 2 DeCISIon On December 19,2003, the Umon filed a gnevance that stated. The Employer has vIOlated specIfically, but not exclusIvely, ArtIcles 2, 3, 9 and 21 of the CollectIve Agreement, wIth respect to the conduct, behavIOur and actIOns of MmIstry mspectors and mvestIgators m the course of theIr mvestIgatIOns under SectIOn 22 of the MmIstry of CorrectIOnal ServIces Act By way of remedy the Umon asked "that the Employer be dIrected to ensure that Inspect ors/In vestIgators perfonn theIr respectIve dutIes wIthm accepted professIOnal gUIdehnes and standards, willie respectmg mdIvIdual RIghts" Pnor to the first hearmg date m thIS matter, the Employer had requested partIculars m correspondence on three occaSIOns The Umon had asked the Employer for certam documents to be dIsclosed approxImately a week before the heanng NeIther of these pre-heanng requests was met At our first day of heanng on November 3, 2004, after very bnef openmg statements, Ms Gersht, for the Employer, and Mr Leeb, for the Umon, agreed that a further hearmg day would be scheduled and m the meantIme the Umon would provIde partIculars to the Employer by December 31, 2004 The Employer would respond to the Umon as to ItS vIew of the sufficIency of those partIculars and then It would IdentIfy any further outstandmg matters On January 6, 2005, the Umon wrote to the Employer the followmg Further to the heanng on November 3, 2004, I am wntmg to provIde partIculars m the above matter As you know thIS gnevance relates to the Umon' s posItIOn that the MmIstry causes mvestIgatIOns to be conducted m a manner that IS Improper, unfair 3 and not m comphance wIth the reqUIrements of natural JustIce, procedural fairness or generally accepted standards governmg the conduct of mvestIgatIOns In general terms, I can advIse that It IS the UnIon's expenence that mvestIgators appear to reach theIr conclusIOn(s) well before completIOn of an mvestIgatIOn and then use extremely heavy-handed and unfair technIques to obtam eVIdence that corroborates the conclusIOn( s) they have reached. Furthermore, there IS an overwhehnmg propensIty to find fault wIth the conduct of bargammg UnIt members whIle the conduct of non-bargammg UnIt persons IS rarely cntIcIzed. It IS the UnIon's posItIOn that examples of the MmIstry's failure to comply wIth the reqUIrements of natural JustIce, procedural fairness and/or generally accepted standards governmg the conduct of mvestIgatIOns mclude the followmg 1 IntervIewees may be threatened wIth dIscIphne up to dIsmIssal If they do not alter theIr verSIOn of events 2 IntervIews may last exceSSIve penods oftnne, e g 9 - 12 hours 3 The MmIstry does not use appropnate staff and/or resources to ensure that mtervIews can be conducted expedItIously thereby prolongmg mtervIews 4 RepresentatIves of mtervIewees are threatened wIth dIscIphne If (s)he attempts to speak dunng an mtervIew 5 IntervIewers may use obscene, provocatIve, threatenmg and abusIve language dunng the course of the mtervIew 6 IntervIewers purposely mIsrepresent the statements of other persons to mfluence and/or obtam a statement from the mtervIewee that may not otherwIse be provIded by the mtervIewee 7 IntervIewers tamt the mtervIew process by advIsmg mtervIewees that, for example, "clear and compellmg eVIdence eXIsts" as to estabhshmg a certam fact or facts before the mtervIewer has completed the mvestIgatIOn and/or IS m a posItIOn to make findmgs about the event( s) m questIOn 8 IntervIewers make premature conclusIOns - and so advIse mtervIewees - and further state that they are sImply m the process of gathenng eVIdence to confirm theIr conclusIOn(s) 9 IntervIewers employ an unreasonably expanSIve definItIOn of what constItutes obstnlctIOn of an mvestIgatIOn for the purpose of controlhng mtervIewees and/or theIr representatIves 4 10 IntervIewers routmely badger mtervIewees by repeatedly posmg the same questIOn mdependent of the number of tunes an mtervIewee provIdes an answer to the questIOn 11 Non-bargammg UnIt employees are treated dIfferently by mvestIgators both m the course of an mtervIew and m respect to findmgs made m InvestIgatIOn Reports For example, reports relatmg to bargammg UnIt personnel may contam biased and/or mflammatory language when describmg the event( s) and/or conduct m questIOn 12 In addItIon, reports relatmg to bargammg UnIt personnel may not be complete m that exculpatory and/or other favourable mformatIOn IS deliberately not mcluded. For example, when an mmate IS mtervIewed and hIs/her statement IS rehed upon, httle or no attempt may be made to assess the mmate's credibIhty, nor IS mfonnatIOn provIded as the mmate's cnmmal record. In other cIrcumstances, mvestIgators fall and/or refuse to mtervIew potentIal key wItnesses 13 IntervIewees who "co-operate" wIth mvestIgators are promIsed a favourable assessment of any mIsconduct they are found to have commItted m exchange for makmg potentIally damagmg statements regardmg others To be clear, the gnevance pertams to Level 1 mvestIgatIOns conducted pursuant to s 22 of the Mlnzstry of Correctzonal Servlces Act ("Act'') It IS the UnIon's understandmg that IIU mvestIgatIOns are also conducted pursuant to the Act and therefore are mcluded m the purvIew of tlllS proceedmg In the event that It IS the MmIstry's posItIOn that IIU mvestIgatIOns are not conducted pursuant to the Act please do so m wntmg Please be advIsed that whIle every effort has been made to ensure that partIculars are complete to the extent of the UnIon's and gnevor's knowledge at thIS tIme, the UnIon reserves the nght to amend and/or supplement ItS partIculars Fmally, please be advIsed that I wIll be forwardmg an addItIonal dIsclosure request m the near future Thank you for your attentIOn to the foregomg If you have any questIOns please do not hesItate to contact me On Febnmry 25, 2005, Mr Sean Kearney, for the Employer, wrote to the UnIon makmg clear that the above correspondence fell far short of the UnIon's obhgatIOn to provIde partIculars In part the Employer wrote 5 FIrst, wIth respect to the Issue of partIculars, your letter of January 6, 2005, merely serves to Illustrate that the UnIon wIll contmue m Its blanket refusal to provIde any such detailed partIculars despIte VIce-Chair Bnggs' clear dIrectIves m tlllS regard. In addItIon to the dIrectIves, It IS tnte law that the UnIon IS obhged to provIde detailed and specIfic partIculars m advance of arbItratIOn proceedmgs The Employer certamly has a nght to receIve the detailed mfonnatIOn necessary to both adequately respond to the gnevance Itself and any dIsclosure requests by the UnIon To re-Iterate what the Employer requested m wntmg on October 28,2004 In response to your letter, the Employer reqUIres detailed partIculars of the gnevance mcludmg the specIfics of how, when, where and by whom, the MmIstry mvestIgators/mspectors (mcludmg wIthout hmItatIOn, the dates names and specIfics of the allegatIOns) are alleged to have breached the collectIve agreement, mcludmg artIcles 2, 3, 9 and 21 The Employer reqUIres partIculars of who, when, where, by what means, the mspectors and/or mvestIgators are alleged to have vIOlated the collectIve agreement artIcles 2, 3, 9 and 1, m theIr conduct, behavIOr, and actIOns (mcludmg wIthout hmItatIOn, the dates names and specIfics of the allegatIOns) The employer reqUIres partIculars mcludmg who, when, where and by what means, dates and specIfics of how the mvestIgatIOns are alleged to be conducted m an unfair, Improper manner and who, when, where and by what means, mcludmg names and dates, the conduct of the mvestIgatIOns IS alleged to have not been m comphance wIth natural JustIce, procedural fairness or generally accepted standards governmg the conduct of mvestIgatIOns The Employer also reqUIres partIculars of what generally accepted standards the UnIon rehes upon Your January 6 letter has sImply provIded more vague and unsubstantIated allegatIOns contammg httle or no specIficIty Indeed, there IS not one reference to a specIfic mCIdent or event, only speculatIOn and self-servmg mnuendo Furthermore, the UnIon even seeks to reserve ItS nght to amend or add "partIculars" later on m the proceedmgs So, It IS abundantly clear that the UnIon wIshes to proceed m a manner that IS wholly mconsIstent wIth relevant arbItral junspnldence and fair process Consequently, It remams the Employer's posItIOns that the "partIculars" provIded on January 6 are woefully deficIent and are m no way assIstIve to thIS process The Employer reqUIres proper detailed partIculars and full dIsclosure of any and all documents that are arguably relevant to the allegatIOns bemg made by the UnIon, mcludmg wItness statements, wIll says, occurrence reports, notes, etc 6 On March 16, 2005, the UnIon wrote to Mr Jodhan, for the Employer, wIth a lengthy request for dIsclosure EIghteen specIfic mvestIgatIOns were IdentIfied by name and mstItutIOn For each of those mvestIgatIOns the UnIon asked for vanous documents such as wItness statements, notes taken, any documents obtamed or created by the mvestIgators, copIes of correspondence between "any mmIstry or agency of the Crown and the mvestIgator", dIrectIves, gUIdehnes and mstructIOnal matenal used to tram mvestIgators Other matenal was also requested. The second day of heanng was held on Apnl 1, 2005 At that tune the UnIon provIded a somewhat more fulsome openmg statement However, from the Employer's pomt of VIew those comments dId not assIst m ItS need for partIculars It was apparent that the partIes were of dIsparate VIews as to the order of proceedmgs The UnIon was of the VIew that ItS dIsclosure request should be provIded whIle the Employer asserted that It needed specIfic partIculars before It could provIde any dIsclosure m tlllS matter After heanng from the partIes I met wIth the partIes to attempt to resolve tlllS matter The UnIon mdIcated to me that It felt It could not provIde some of the details requested by the Employer because some of the facts It mtended to rely upon came to ItS attentIOn dunng the htIgatIOn of other files and, m the past, the Employer had objected to the UnIon mtroducmg facts m one matter that were obtamed m another I spoke wIth the Employer about thIS concern and ultImately It was agreed that the Employer would not raise such an ObjectIOn m tlllS matter At the conclusIOn of the mediatIOn I recalled the partIes mto the heanng room and read to them my understandmg of theIr agreement Both partIes agreed that we would proceed as follows 1 The UnIon wIll wnte to the Employer confinnmg that It was agreed that the UnIon can rely on documents that It obtamed mother proceedmgs for partIculars 2 Accordmgly, further partIculars wIll be provIded. 3 The Employer wIll then assess sufficIency of partIculars and notIfy the UnIon and the VIce-Chair of that VIew 7 4 The Employer wIll also specIfy any outstandmg dIsclosure Issues and/or concerns 5 The partIes wIll attempt to resolve further partIcular and/or dIsclosure Issues and If needed the VIce-Chair wIll be asked to get mvolved 6 The VIce-Chair IS to be copIed on all correspondence 7 The UnIon IS to suggest alternatIves to tradItIonal htIgatIOn for the Employer's consIderatIOn I was next contacted for a conference call whIch took place on August 4, 2005 Unfortunately the partIes had not sent to the Board theIr correspondence as agreed and the Issue of partIculars and dIsclosure remamed outstandmg In the meantIme the UnIon had agam wntten to the Employer on June 20, 2005, regardmg further partIculars In that letter the UnIon IdentIfied nmeteen mvestIgatIOns along wIth a hst as to whIch of ItS earher stated concerns (as set out m ItS January 6, 2005 letter) apphed to each mvestIgatIOn along wIth a comment as to whether dIsclosure was reqUIred. For example, the UnIon said that for a specIfic mvestIgatIOn that took place at the Wmdsor JaIl, the "Nature of Concerns" for the UnIon was numbers 1, 2,3,4, 5, 6, 7, 8, 9, 10, 12, and 13 Of the nmeteen hsted mvestIgatIOns, dIsclosure was needed for nIne of the nmeteen Shortly thereafter the Employer wrote to the UnIon mdIcatmg that the UnIon's letter of June 20, 2005 dId not provIde the "partIculars as dIscussed on our last day of heanng before VIce-Chair Bnggs " In ItS letter of July 7, 2005, the Employer wrote, m part Weare agam requestmg the partIculars reqUIred for us to adequately prepare our case I have attached two decIsIOns that outhne the mmImum amount of mfonnatIOn that must be provIded m order for a party to be m a posItIOn to properly prepare ItS case The followmg IS an excerpt of the Ross decIsIOn These wntten partIculars are to mclude not merely legal conclusIOns but, m addItIon, facts upon whIch the UnIon and gnevor assert support such conclusIOns and demonstrate the dIscnmmatIOn or breach of the collectIve agreement alleged. WIth respect to each act or omISSIOn alleged, the partIculars shall mdIcate what was done or not done, 8 when where, by what means and by whom and, to the extent motIvatIOn may be a relevant factor, wIth what motIvatIOn Dunng the August 4, 2005 conference call, a proposal for proceedmg was dIscussed and both counsel agreed to seek mstructIOn from theIr chents It became apparent when a further heanng date was requested that thIS proposal was not agreeable to the partIes Two days of heanng were devoted to the matters of necessary partIculars and dIsclosure There may be other prelunmary matters such as a consohdatIOn request and an ObjectIOn regardmg arbItrabIhty to be addressed at a later date UNION SUBMISSIONS It was conceded by the UnIon that the gnevance IS broadly worded However, It clearly puts at Issue the method m whIch the Employer acts regardmg ItS obhgatIOns under SectIOn 22 of the Mlnzstry of Correctzonal Servlces Act (heremafter referred to as "the Act") Smce the first heanng date mto thIS matter the UnIon has met ItS obhgatIOns to provIde partIculars to the Employer Indeed, the UnIon has done everytlllng possible to accommodate the Employer's concerns It IS now appropnate that the Employer provIde the properly requested dIsclosure Mr Leeb asserted that the Employer IS attemptmg to put "the cart before the horse" It IS acceptable that an Employer can seek clanficatIOn regardmg IdentIficatIOn of the Issues m the face of a broadly worded gnevance However, once the UnIon has IdentIfied the Issue then It IS up to the Employer to provIde the requested dIsclosure After the UnIon receIves the requested documents It can then fully partIculanze ItS case 9 It was contended by the UnIon that If the Employer were correct m thIS matter both UnIons and gnevors would potentIally be barred from bnngmg matters before a Board of ArbItratIOn The UnIon ought not to be prevented from carrymg a matter forward because It faIled to partIcularIze an Issue when It IS the Employer who possesses all of the necessary mfonnatIOn The UnIon suggested that m the present CollectIve Agreement between these partIes It IS clear that there IS a posItIve obhgatIOn upon the Employer to provIde dIsclosure of mfonnatIOn at the earhest stages ArtIcle 22 14 5 states The partIes agree that at the earhest stage of the gnevance procedure eIther party upon request IS entItled to receIve from the other, full dIsclosure The test for detennmmg whether to order dIsclosure IS whether the Employer IS m a posItIOn to respond to the UnIon's request The UnIon rejects the Employer's VIew that It IS entItled to a preCIse factual foundatIOn of the matter at hand. The UnIon IS obhgated to provIde "bItS of detail" The UnIon rehed upon Re The Crown III Right of Ontario (Ministry of Community & SOCIal Services and Ontario Public Service Employees UnIOn (Watts) (Stewart) GSB#1340/90, Re The Crown III Right of Ontario (Ministry of CorrectIOnal Services and OPSEU (Arnold) (DIssanayake) GSB#255/91, Re The Crown III Right of Ontario (Ministry of CommunIty Safety & CorrectIOnal Services) and OPSEU (Lariviere) (DIssanayake) GSB#2202-2124 and 2202-3017, The Crown In Right of Ontario (Toronto Area TransIt Operatlllg Authority) and Amalgamated TransIt UnIOn (Blake et all (ShIme) GSB#1276/87, Re Toronto Electric CommissIOners and CUPE, Local I (1994), 45 L.A.C (4th) 248 (Solomatenko), Re Toronto TransIt CommissIOn and Amalgamated TransIt UnIOn, Local 113 (1985), 21 L.A.C (3rd) 346 (Saltman), Re The Crown III Right of Ontario (Ministry of CommunIty Safety and 10 CorrectIOnal Services & OPSEU (Lake) (Brown) GSB#2003-2874, Re The Crown In Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Simon et all (MIkus) GSB#1390/00, Re Minister of Health for Ontario v Wilston et al (1976), 11 O.R. (2d) 631, Re Fanshawe College and OPSEU (KovarI) (January 25, 2006) unreported (H D Brown), Re Toronto District School Board and CUPE, Local 4400 (2002), 109 L.A.C (4th) 20 (Shune), Re Children's Aid Society of City of Belleville, County of Hastlllgs and City of Trenton and CanadIan UnIOn of Public Employees, Local 2197 (1994), 42 L.A.C (4th) 259 (Bnggs), Re Winchester District Memorial HospItal and Ontario Nurses' ASSOCiatIOn (1989), 8 L.A.C (4th) 343 (Bendel), and Re Obonsawlll v Canada [2001] 0 J No 369 (Ontano Supenor Court of JustIce) Epstem J The UnIon urged the Board to look at the junsprudence outsIde the Gnevance Settlement Board. The courts have found that there IS a two-fold test for partIculars The respondent must be able to prove to the court that It does not have the mformatIOn Itself and It must be able to show that the mformatIOn IS needed m order to estabhsh a defense That two fold test has been met by the UnIon m tlllS matter Mr Leeb antIcIpated that the Employer would argue that thIS matter IS well estabhshed law at the Gnevance Settlement Board. In Re The Crown III Right of Ontario (Ministry of Community Safety and CorrectIOnal Services) and OPSEU (UnIOn Grievance) (MIkus) GSB#2002-2260, the UnIon was gnevmg that the Employer had vIOlated the CollectIve Agreement "m regards to the occupancy loads wIthm the HamIlton-Wentworth DetentIOn Centre" It appears from the decIsIOn that the UnIon made no effort to partIculanze the matter at Issue to the extent that they dId not IdentIfy the tune frame of the allegatIOns The UnIon 11 stated that largely agrees wIth the decIsIOn of VIce Chair Mikus The dIfference between the facts before VIce Chair Mikus and the matter at hand IS that here the UnIon has provIded sufficIent partIculars In other words, the UnIon has met the standard set out by VIce Chair Mikus m her decIsIOn and therefore It IS now appropnate for the Employer to dIsclose the documents The UnIon set out ItS allegatIOns m ItS January 6, 2005 letter to the Employer The Employer cannot assert that It does not know what the allegatIOns are It was gIven a hst of thIrteen allegatIOns and It IS not mcumbent upon the UnIon to provIde mtncate detail of each allegatIOn The purpose of partIculars IS to allow the Employer to know the case It has to meet There IS sufficIent mformatIOn been provIded by the UnIon for the Employer to defend Itself agamst the allegatIOns and to know what It should provIde by way of dIsclosure It was submItted by the UnIon that the Employer IS askmg for far more detail than It IS entItled to at tlllS pomt m the proceedmgs In Re Simon et al (supra) VIce Chair Mikus artIculated a concern that requests for partIculars can bnng about dIsputes whIch detract from the ments of the case That IS precIsely what IS at play m tlllS matter The UnIon asserted that It IS for these reasons, It IS appropnate for thIS Board to order the dIsclosure of the arguably relevant documents set out m the UnIon's earher correspondence EMPLOYER SUBMISSIONS Mr Sahm, for the Employer, remmded the Board that the UnIon conceded that the gnevance was a broad statement of allegatIOn Indeed, the Employer could not possibly know the case that It has to meet by readmg the gnevance ThIS mabIhty 12 has not been alleviated by the hmIted mformatIOn that has been provIded by the UnIon smce the fihng of the gnevance The Employer noted that there have been approXImately ten dIstmct requests for partIculars made to the UnIon and yet there IS stIll msufficIent mfonnatIOn for the Employer to ably defend Itself m any future htIgatIOn It was suggested that gIven thIS hIStOry there has been an abuse of process as a result of the UnIon's contmual refusal to provIde the partIculars as requested. Mr Sahm stated that the Employer needs partIculars so that It IS aware of the case It must meet, to ascertam the arguable relevance of the documents requests, to ascertam whether tlllS Board has the necessary jUnSdIctIOn to deal wIth the Issue, and to determme whether there are other prehmmary Issues for thIS Board to address The Employer urged tlllS Board ought not to look further than the well estabhshed law of the Gnevance Settlement Board regardmg the matter of partIculars It was suggested that the UnIon, m ItS submIssIOns, vIrtually asked tlllS Board to Ignore the Board's earher case law on tlllS matter and adopt a broader mterpretatIOn that IS more to the UnIon's VIew To do so would be counter-productIve to labour relatIOns and wrong Mr Sahm submItted that, gIven the UnIon's VIew that thIS Board should make an order that IS contrary to the Board's junspnldence, It IS appropnate to reVIew the junsprudence on Issue estoppel The three condItIons for Issue estoppel are same partIes, same Issue and the presence of a final and bmdmg decIsIOn on the outstandmg Issue There IS no questIOn that each of those condItIons has been met m tlllS case and therefore tlllS Board should apply the now tnte law to the facts at 13 hand. There can be no doubt that the Gnevance Settlement Board has decIded the dutIes and obhgatIOns concernmg the need to partIcularIze ThIS Board must order the UnIon to provIde partIculars The Employer rehed upon Re The Crown III Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Simon et all (MIkus) GSB#1390/00, Re The Crown III Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Plckett/McCormlck/Holden) (HarrIs) GSB#100l/99, Re The Crown III Right of Ontario (Ministry of EducatIOn) and OPSEU (Esmad) (Gray) GSB#2002-2533, Re The Crown In Right of Ontario (Ministry of Public Safety and Security) and OPSEU (UnIOn Grievance) (DIssanayake) GSB#2113/02, Re The Crown III Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Ross) (Herhch) GSB#2690/96, Re UnIted AssocIatIOn of Journeymen and Apprentices of the Plumblllg Industry of the UnIted States and Canada, Local 46 V Vitullo Bros. Plumbing Co Ltd. [1995] O.L.R.D 3153, and Re Toronto (City) v CanadIan UnIOn of Public Employees - Local 79 [2003] 3 S C.R. 77 The Employer contended that the UnIon faIled to provIde any ratIOnale or "exceptIOnal cIrcumstances" for departmg from the Board's junspnldence regardmg the Issue of partIclllanzatIOn The Employer also revIewed the Board junsprudence regardmg the extent of partIculars needed at thIS pomt m the proceedmgs Agam, m thIS regard the UnIon has fallen short of ItS obhgatIOn It was urged by Mr Sahm that It would be premature for the Board to order dIsclosure at tlllS pomt gIven the lack of partIculars It may be that there IS httle 14 Issue regardmg the matter of appropnate dIsclosure once the Employer has receIved and revIewed the UnIon's partIculars It IS dIfficult for the Employer to make even that detennmatIOn gIven the lack of mfonnatIOn before It at the present tIme UNION REPLY The UnIon submItted that the Employer has only one decIsIOn m ItS favour and that IS Re Ministry of Community Safety and CorrectIOnal Services (UnIOn Grievance) decIded by VIce Chair MIkus ThIS Board can reVIsIt and should re- VISIt the broad mterpretatIOn of that decIsIOn There are artIculated cntena allowmg such a reVIew as set out m Re Blake AddItIonally, the Board has the authonty to do so as set out m SectIOn 48 of the OntarlO Labour RelatlOns Act As a general statement of law the UnIon questIOns whether m every fact sItuatIOn there must be partIculanzatIOn before dIsclosure The decIsIOns of VIce Chair Brown would seem to suggest otherwIse In any event, the UnIon has met the obhgatIOns set out by VIce Chair Mikus EMPLOYER REPLY SUBMISSIONS In ItS final reply the Employer asserted that the case as Issue IS not a sImple one that mvolves one or two mdIvIduals The UnIon's allegatIOns mvolve many mstItutIOns and mvestIgatIOns that mvolved many people over a consIderable penod of tIme It IS very clear that the UnIon has not met ItS obhgatIOns as set out by VIce Chair Mikus 15 DECISION The UnIon suggested that the only decIsIOn from the Gnevance Settlement Board upon whIch the Employer can rely IS the Ministry of CommunIty Safety and CorrectIOnal Services (UnIOn Grievance) decIsIOn Issued by VIce Chair MIkus I must dIsagree The Gnevance Settlement Board has Issued a number of decIsIOns and orders regardmg the matter of partIculars and dIsclosure Indeed, I understand why the Employer took the VIew that thIS IS a matter of settled law at the Gnevance Settlement Board. Havmg said that, I am also of the VIew that the law contmues to evolve as new and prevIOusly unIdentIfied Issues anse but that does not detract from the now estabhshed Board junsprudence It IS useful to reVIew the Board junspnldence provIded by counsel m thIS regard. The Employer contended that such an analysIs wIll reveal that the Board now has an expectatIOn that sufficIent partIculars must be provIded m the first mstance In Re Simon et al (supra), VIce Chair Mikus had before her an mdIvIdual gnevance that was once part of a group gnevance that alleged "prolonged systemIc dIscnmmatIOn, harassment, antI-UnIon anImus and pOIsoned work envIromnent" One of the Issues addressed m her decIsIOn was the matter of partIculars She referred to an earher decIsIOn of the Board by VIce Chair Gray (Re The Ministry of Health & OPSEU (Damanl) GSB#1581/95 that ordered the UnIon to "provIde employer counsel wIth the wntten partIculars of the facts that It and the gnevor say demonstrate the dIscnmmatIOn alleged WIth respect to each act or omISSIOn alleged, the UnIon partIculars shall mdIcate what was done or not done, when, where, by what means and by whom The UnIon shall also provIde partIculars wIth respect to the gnevor's 3 month sIck leave m 1995 and the connectIOn between It and the alleged dIscnmmatIOn" She also took mto account another decIsIOn of 16 ArbItrator Gray (Re Thermal Ceramics, DIvIsIOn of MorganIte Canada Corp. and UnIted Steelworkers (1993), 32 L.A.C (4th) 375 regardmg a more general concern that once specIfic orders are wntten by Boards of ArbItratIOn, there IS then "the possIbIhty of dIsputes about what the order means, how It apphes to unantIcIpated cIrcumstances, whether It has been comphed wIth and what the consequences of non-comphance should be " It was worned that such orders mIght well prolong the htIgatIOn rather than benefit the process In Re Simon et ai, there had already been one order Issued regardmg the matter of the need to provIde partIculars Further, It IS apparent from the decIsIOn that there had been much dIscussIOn between the partIes about the facts dunng the course of medIatIOn seSSIOns Indeed there had already been "a volummous exchange of documents whIch has mcluded enough mfonnatIOn about the alleged mCIdents and the partIes mvolved m those mCIdents for both partIes to proceed to heanng" She noted that the UnIon had provIded to the Employer "details regardmg specIfic mCIdents concernmg named mdIvIduals " In Re Ross, VIce Chair Herhch had 26 gnevances filed by one mdIvIdual before hun As a prelunmary matter he was asked to hear and detennme "some outstandmg Issues relatmg to partIculars and productIOn of documents" He ordered the UnIon to "provIde partIculars of the facts on whIch It and the gnevor rely, specIfically wIth respect to gnevances allegmg dIscnmmatIOn, unfair treatment or other generahzed allegatIOns These wntten partIculars are to mclude not merely legal conclusIOns but, m addItIon, the facts whIch the UnIon and the gnevor assert support any such conclusIOn and demonstrate the dIscnmmatIOn or breach of the collectIve agreement alleged. WIth respect to each act or omISSIOn alleged, the partIculars shall mdIcate what was done or not done, when, where, by what means and by whom and, to the extent motIvatIOn may be a relevant fact, 17 wIth what motIvatIOn" The UnIon was also ordered to produce any documents on whIch It and the gnevor mtended to rely In the March 13th 2003 decIsIOn of VIce Chair DIssanayake, the UnIon had gneved that the Employer had vIOlated vanous prOVISIOns of the CollectIve Agreement "wIth regards to the vacatIOn protocol" The UnIon was askmg the Board for mtenm rehef regardmg the vacatIOn protocol and the Employer argued that there were msufficIent partIculars to allow It to defend Itself m the apphcatIOn for mtenm rehef It was ordered at page 2 Havmg regard to the fact that the partIculars sought are m relatIOn to an apphcatIOn for mtenm rehef, and havmg consIdered the submIssIOns of the respectIve counsel, as well as the legal authontIes cIted It IS ordered as follows 1 The UnIon shall provIde the employer wIth wntten partIculars as to each and every vIOlatIOn of the collectIve agreement and/or statute It rehes on to estabhsh an arguable case m support of ItS apphcatIOn for mtenm rehef As part of these partIculars, the UnIon shall set out each prOVISIOn alleged to be vIOlated, whIch acts and/or omISSIOns resulted m each alleged vIOlatIOn, and when, where, and by whom (If the allegatIOn IS dIrected to an mdIvIdual (s)) the alleged vIOlatIOn was commItted. 2 The UnIon shall provIde to the employer partIculars of each CIrcumstance It mtends to rely on to estabhsh the adverse Impact It says wIll result, If the mterun rehef sought IS not granted. 3 The UnIon shall provIde to the employer partIculars as to the facts It rehes on to support ItS estoppel argument ThIS shall mclude partIculars as to what representatIOns (conduct or statements) were made, by whom, to whom, and when, what detnment It suffered as a result of rehance on such representatIOn Those specIfic partIculars are ordered as of a certam date and VIce Chair DIssanayake then ordered the Employer to provIde ItS partIculars two weeks later In Re Pickett et al VIce Chair Harns was asked by the Employer to dIsmIss portIOns of the gnevance before hIm, or, m the alternatIve, to dIsallow the UnIon 18 from presentmg certam eVIdence regardmg allegatIOns because of Its failure to sufficIently partIculanze the facts of the case In IllS mtenm order, the VIce Chair notes that the matter before hnn IS snnIlar to Ross and Simon et al. because It mcluded allegatIons of dIscnmmatIOn, harassment and a pOIsoned work enVIromnent He noted that such allegatIOns need a broad scope of eVIdence but commented that m Re The Crown III Right of Ontario (Ministry of Finance) & OPSEU (Klonowski et all It was found that claims of dIscnmmatIOn should not be developed as a case proceeds but should be partIculanzed m a cnsp and clear faslllon VIce Chair HarrIS ordered the UnIon to provIde "partIculars of the facts upon whIch It mtends to rely m form set out m Ross above" In the March 31, 2004 decIsIOn of VIce Chair Mikus, rehed upon heavIly by the Employer m the mstant matter, the Board was consIdenng a gnevance that alleged only that two specIfied artIcles of the CollectIve Agreement were vIOlated "m regards to occupancy loads wItllln the HamIlton-Wentworth DetentIOn Centre" Full redress was requested. VIce Chair Mikus had before her a request for dIsclosure as well as a request for the matter to be further partIculanzed. In her decIsIOn It was Said at page 4 ThIS prelnnmary Issue has been the subject of much htIgatIOn The questIOns of what a party must provIde to the other party before a case can proceed IS of cntIcal Importance to a party m detennmmg how the case IS to be presented or, whether It ought to proceed at all The collectIve agreement recognIzes the Importance of each party knowmg m advance the case It must meet and has addressed that mutual need m ArtIcle 22 14 5 of the collectIve agreement There IS a recIprocal duty to provIde that mformatIOn The collectIve agreement does not, however, define what must be dIsclosed to the other, for ObVIOUS reasons It depends entIrely on the pleadmgs If specIfic facts are provIded m the gnevance, the collectIve agreement reqUIres the Employer to respond to those facts There IS no dIspute between the partIes on that Issue The dIspute hes m each party's mterpretatIOn of the meanmg of the word "partIculars" 19 The test for dIsclosure of mformatIOn dunng the gnevance procedure has been set out m prevIOUS decIsIOns and approved and apphed consIstently That test IS set out m Chzldren '8 Ald SOclety (~,'upra) at page 262 as follows Those cntena are that the requested mformatIOn must be arguably relevant, must be partIculanzed clearly to aVOId later dIsputes, cannot be a "fislllng expedItIon", and must be clearly connected to the dIspute at hand. Fmally, the productIOn of the mformatIOn requested should not cause undue prejUdICe The Issue m the mstant case IS whether the allegatIOns have been partIculanzed sufficIently to put the Employer on notIce of the facts gIvmg nse to the gnevance The UnIon has made a sweepmg allegatIOn that overcrowdmg at the HamIlton-Wentworth DetentIOn Centre IS a vIOlatIOn of the Management RIghts and Health and Safety and V Ideo DIsplay T ennmals provIsIOn of the collectIve agreement It now asks the Employer to provIde mfonnatIOn concernmg the decIsIOn makmg process that estabhshed the capacIty of the facIhty and the steps It took to alleviate the overcrowdmg It seems to me that before the UnIon can expect that mfonnatIOn, It must provIde the Employer wIth more partIculars concernmg ItS allegatIOns The Employer IS entItled to know when the alleged overcrowdmg took place, where It took place, who was mvolved and how It relates to ArtIcles 2 and 9 of the collectIve agreement Once the Employer knows those elements of the UnIons case, It can determme what mformatIOn It should provIde the UnIon For these reasons the UnIon's request for dIsclosure IS denIed at thIS tIme The Employer's request for partIculars IS allowed. The Employer conceded ItS duty to provIde dIsclosure and had agreed to do so after It receIves the partIculars from the UnIon If the partIes have further dIfficulty m determmmg what partIculars or dIsclosure IS appropnate, I rem am seIzed. VIce Chair Gray Issued an order regardmg partIculars m Re Esmad He ordered both partIes to do so SpecIfically he ordered the UnIon to provIde "wntten partIculars of all of the allegatIOns of fact on whIch It rehes m tlllS matter, together wIth copIes of all documents m the posseSSIOn, custody or power of the UnIon or the gnevor on whIch the UnIon may wIsh to rely m support of ItS allegatIOns He then ordered the Employer to do the same a month after receIvmg these partIculars 20 and, to the extent that there are matters not addressed by the UnIon, to provIde any addItIonal partIculars He also stated at paragraph 4 WIth respect to each of the acts and omISSIOns alleged therem, each party's wntten partIculars shall mdIcate what was done or not done, when, where, by what means and by whom, IdentIfymg by name any mdIvIdual whose actIOns are bemg attributed to an organIZatIOn It IS not necessary for a party to mclude m ItS partIculars a descnptIOn of the eVIdence by whIch It wIll seek to prove the facts alleged The allegatIOns of fact m a party's partIculars should be sufficIently comprehensIve that It would be unnecessary for that party to call any eVIdence If the OpposIte party were to admIt the truth of all of the allegatIOns of fact therem VIce Chair Gray further said at paragraph SIX that "a party who falls to produce a document or provIde partIculars of an allegatIOn of fact m accordance wIth thIS order may not mtroduce that document or testImony about that allegatIOn mto eVIdence m these proceedmgs wIthout leave" As m Re Gareau, It has happened at the Gnevance Settlement Board that a request for further partIculars wIll be denIed VIce Chair Abramsky found that "the gnevance, the December 2, 2004 letter and the documents reveal the "who, what, where, when and how of the allegatIOns" were sufficIent for deahng wIth the mtenm motIon before her In my VIew, I am bound by the decIsIOn m Re Blake et al to follow the Board junsprudence WhIle I accept that there may be "exceptIOnal CIrcumstances where an earher decIsIOn of thIS Board mIght be revIewed", there IS nothmg m the present CIrcumstances that would cause me to do so It IS apparent that all of the above cIted Gnevance Settlement Board decIsIOns consIstently stand for the proposItIOn that there IS an onus on the UnIon to provIde sufficIent partIculars pnor to the tnggenng of the Employer's obhgatIOn to dIsclose mformatIOn In some mstances It mIght be that tlllS onus IS easIly satIsfied. The questIOn of sufficIency of 21 partIculars wIll vary from case to case as wIll the Issue of what constItutes appropnate dIsclosure In the mstant matter, I am of the VIew that the UnIon has provIded the employer wIth a general overVIew as to the theory of Its case However, It has fallen short of meetmg Its obhgatIOn to provIde sufficIent partIculars The gnevance IS very broadly stated and the UnIon's two letters settmg out some partIculars were not enough The only mformatIOn that the UnIon has gIven the Employer IS the name of the mstItutIOn, a name that should IdentIfy the mvestIgatIOn that IS at Issue and the general allegatIOns that wIll be addressed m the htIgatIOn Unlike the facts m Re Gareau, the partIculars provIded to date do not reveal the "who, what, where, when and how of the allegatIOns" ThIS Board has found m the past, and I am compelled to reIterate m thIS matter, that the Employer IS entItled to that mformatIon Like other VIce Chairs before me I have no mtentIOn of Issumg a detailed order of what, m my VIew would constItute sufficIent partIculars As noted by VIce Chair Mikus, the partIes are m a much better posItIOn to make that detennmatIOn However, I have no hesItatIOn m declanng that the UnIon has not yet provIded sufficIent partIculars to the Employer at thIS pomt m the proceedmgs The UnIon has set out ItS broad allegatIOns For example, the UnIon told the Employer m ItS letter followmg our second day of heanng that some "mtervIewers purposely mIsrepresent the statements of other persons to mfluence and/or obtam a statement from the mtervIewee that may not otherwIse be provIded by the mtervIewee" That mfonnatIOn IS not sufficIent The UnIon IS now to provIde the "who, what, where, when and how" of the allegatIOns on whIch It mtends to rely As was noted by the Employer, there has been not one clearly specIfied mCIdent or event that has been IdentIfied by the UnIon to date The Employer IS entItled to be put on notIce of the 22 specIfic facts that gave nse to the fihng of the gnevance Certamly, general assertIOns that some vIOlatIOns may have taken place, such as "mtervIews may last exceSSIve penods of tnne, e g 9 - 12 hours" are msufficIent It IS dIfficult to see how the Employer could prepare ItS defense If that was the extent of the form and substance of the mfonnatIOn provIded by the UnIon The partIes were agreed that thIS IS an Important matter and that It wIll probably be somewhat comphcated htIgatIOn For thIS reason It IS all the more Important that the partIes are fully aware of the scope of the matters at Issue from the outset That bemg said, I recognIze that matters mIght anse dunng the course of thIS htIgatIOn whIch could not have been reasonably foreseen Once the partIculars have been produced there wIll rem am the Issue of dIsclosure The Employer dId not suggest It has no obhgatIOns m thIS regard. Indeed, I expect the Employer wIll comply wIth ItS obhgatIOns In the event that there remams an Issue regardmg partIculars or a questIOn as to whether the Employer has met ItS obhgatIOn to dIsclose mformatIOn, I ask counsel for the partIes to contact me for a conference call pnor to our next day of heanng It would be my expectatIOn that we can now turn to the other prelnnmary matters m tlllS case, If any, as well as the ments at our next day of heanng I remam seIzed. ay,2006 VIce-Chair