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HomeMy WebLinkAbout2003-3953.Goncalves.05-08-25 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# 2003-3923 UNION# OLB048/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Goncal ves ) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Joseph D Carner Vice-Chair FOR THE UNION Jackie Crawford Koskie MinskIe LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING August 3 2005 2 DeCISIon INTERIM ORDER UPON MOTION FOR DISMISSAL BY THE EMPLOYER ThIS matter came on for contInUatIOn on August 3 2005 At that tIme the Employer moved to dIsmIss proceedIngs on the basIs that the Umon had faIled to comply wIth an order of the Board requmng productIOn of documents The ProductIOn Order "was agreed upon by Counsel for the Employer and the Umon In the presence of the Gnevor at a heanng conducted on June 8 2005" The documents ordered were relevant to the Gnevor's explanatIOn for the actIOns whIch had resulted In hIS dIsmIssal More precIsely the Gnevor had been termInated for the alleged Improper use of the "AIr Miles" Program subscnbed to by the Employer Dunng the penod from May 2001 to December 2003 there were approxImately 140 transactIOns processed on AIr Miles cards or AIr Miles numbers belongIng to the Gnevor's spouse It was the Gnevor's explanatIOn that those transactIOns were all made on behalf of hIS wIfe and/or one of her two busInesses, LIqUor BI Phone or II EntertaInment. In order to test the veracIty of the Gnevor's explanatIOn, the Employer sought and the PartIes agreed that the Umon would produce amongst other thIngs busIness records to IdentIfy the Employees of those busInesses dunng the relevant tImeframes who mIght have attended at the LCBO stores to carry out the transactIOns AddItIOnally the Employer sought busIness records to confirm the LCBO purchases whIch had been made dunng the relevant tImeframe as well as the IdentItIes of the customers of the busInesses for whom the purchases had been made FInally the Employer sought busIness records to confirm the eXIstence and regIstratIOn of the two busInesses The documents were to be made avaIlable at or before June 30 2005 faIlIng whIch the Gnevance allegIng unjust dIscharge would be dIsmIssed. 3 The Gnevor dId produce by June 30 2005 some of the documents ordered, and further documents were tendered at or ImmedIately pnor to the August 3 2005 heanng day However the quantIty and qualIty of the productIOn was woefully Inadequate wIth respect to the order as Issued. In support of hIS motIOn, Mr Gordon FItzgerald, Counsel for the Employer argued that the documents were central to the presentatIOn of the Umon' s case and the Employer's abIlIty to test the veracIty of the Gnevor's explanatIOn for hIS conduct. For the Umon, Ms Jackie Crawford speakIng for the Gnevor explaIned that 1 She had tendered all the documents whIch the Gnevor had been able to provIde 2 Although the documents dId not stnctly fulfill the reqUIrements of the order those documents whIch were produced constItuted all the documents whIch the Gnevor had been able to obtaIn from hIS wIfe to date 3 Although some of the documents were provIded after the June 30th deadlIne, he was unable to produce them earlIer because of hIS relIance upon hIS wIfe who IS In control of the busInesses, 4 Not only IS hIS wIfe In control of the busInesses, there was a change of resIdence or locale of the busIness In December 2003 At that tIme, some of the busIness records (ostensIbly three cartons) went mISSIng. With respect to those explanatIOns, I note that many of the documents produced do fall wIthIn the relevant tImeframe In spIte of the suggested loss of three (3) cartons of documents Furthermore, the documents relatIng to the regIstratIOn of the two busInesses IndIcate that at least one of them IS a partnershIp compnsed of 2 persons, the Gnevor's wIfe and a "John Goncalves" 4 Furthermore one of the partIes Involved In the second busIness IS IdentIfied as a "JoaquIn (Jack)" Goncalves There was no clanficatIOn that the two IndIVIduals, "John" and "Jack" Goncalves named In the regIstratIOns, were not one and the same as the Gnevor AddItIOnally whIle the Gnevor IndIcates that he and hIS spouse are havIng mantal dIfficultIes, he acknowledged that they stIll share the same home In the cIrcumstances, there eXIsts a cloud on the explanatIOn provIded by the Gnevor for hIS InabIlIty to produce the reqUIred documents In a tImely fashIOn. THE DECISION NotwIthstandIng my mIsgIVIngs about the Gnevor's InabIlIty to provIde more complete documentatIOn In a tImely fashIOn, thIS IS not a case In whIch the Gnevance should be dIsmIssed for a faIlure to comply wIth the ProductIOn Order The premIse for the success of such a motIOn IS that the faIlure to comply wIth the Order constItutes an abuse of the arbItratIOn process In those few cases cIted whereIn a Gnevance has been dIsmIssed, the faIlure to comply was much more delIberate than the Gnevor's conduct here See, for Instance, NatIOnal - Standard Co. of Canada Ltd. and C.AW. Loc. 1917 (1994) 39 LAC (4th) 228 where ArbItrator Palmer at page 235 havIng recogmzed that an ArbItrator does have the power and authonty "to make such orders and to gIve such dIrectIOns In proceedIngs as he, she or It consIders appropnate to expedIte the proceedIngs or to prevent the abuse of the arbItratIOn process" dId dIsmIss the Gnevance before hIm However he dId so only after havIng found the Gnevor IntentIOnally faIled to comply wIth productIOn orders he had gIven earlIer dunng the proceedIngs Further the Gnevor In that case had altered eVIdence whIch he had been dIrected to produce The case at hand IS more sImIlar to that whIch came for decIsIOn before ArbItratIOn R.H. Abramsky Vice Chair of the Ontano Gnevance Settlement Board, In a matter between the 5 Ontano PublIc ServIce Employees Umon v Ontano (Mimstry of Attorney General) (Hunt Gnevance) [2005] OGSBA No 41 ArbItrator Abramsky made the folloWIng comments at paragraphs 11 12 and 13 of her award 11 It is nn view that the order of "vovember 4 2004 was clear The grievor was to provide her tax returns and related documents, with the specific numbers blacked out. How far hack she had to go however was not decided. 12 It is also nn view that additional efforts should have heen made to ohtain the requested documents. 1 would have expected some follow-up with Revenue Canada, and 1 agree with the suggestion of counsel for the Emplover that contact with an accrediting hoch for accountants regarding what happens to records after an accountant s death and how thn can he ohtained should have heen done. 13 4lthough more should have heen done, 1 do not find this to he an appropriate case to dismiss the grievance for failure to comph with the Board s order At paragraph 20 of her DeCISIOn ArbItrator Abramsky expresses her VIew WIth respect to the questIOn of dIsmIssal as follows 20 1nnn view the dismissal (or granting) of a grievance for non-production of documents is an extraordinan remech It should he granted onh in the clearest of cases where there is an abuse of the arbitration process or the parties abilin to have a fit/I and fair hearing is irrevocabh compromised. This case does not meet that standard. I am of the OpInIOn that those VIews were correct and that the conclusIOn here should be sImIlar to that reached by ArbItrator Abramsky To recap I am of the VIew that I do have power to dIsmIss for abuse of process by reason of my authonty to control the arbItratIOn process as well as a specIfic provIsIOn In the CollectIve Agreement between these PartIes requmng dIsclosure However before the power to dIsmIss a Gnevance IS exercIsed the alleged abuse of process should be clear In the CIrcumstances here havIng revIewed the documents submItted and heard the representatIOns of Counsel I am of the VIew that 6 1 The Gnevor lIkely has better access to the documents reqUIred than he acknowledged to hIS Counsel 2 That he could have and should have made better efforts to produce the documents In a more tImely fashIOn. 3 That the documents are Incomplete, Inaccurate and Inadequate wIth respect to the order as wntten. 4 That, however Incomplete, Inaccurate or Inadequate wIth respect to the reqUIrements of the Order and valIdatIOn of the Gnevor's explanatIOn, there IS no reason to belIeve, at thIS stage of proceedIngs, that the Gnevor has delIberately wIthheld InformatIOn or documents that are wIthIn hIS control The Inadequacy of the productIOn has more to do wIth the qualIty of the record- keepIng of the busInesses than wIth the co-operatIOn of the Gnevor In all the cIrcumstances, I am not satIsfied that thIS IS one of those cases In whIch It can be said that an abuse of the arbItratIOn process has been clearly demonstrated. Furthermore, whIle the documentatIOn may not suffice to corroborate the Gnevor's explanatIOn, the Inadequacy of the matenal has not In my VIew Irrevocably compromIsed eIther Party's abIlIty to conduct ItS case AccordIngly thIS IS not a sItuatIOn In whIch the Gnevance should be dIsmIssed for an abuse of the arbItratIOn process NotwIthstandIng my determInatIOn that the matter wIll not be dIsmIssed at thIS stage, I should outlIne some of the InadequacIes In the matenal whIch are partIcularly troublIng. For Instance 7 1 There IS apparently no documentatIOn whatsoever avaIlable wIth respect to transactIOns undertaken by one of the two busInesses, II EntertaInment, wIthIn the relatIve tImeframe 2 Although the Gnevor dId IdentIfy three persons who were Employees of one or both of the busInesses dunng the relevant tImeframe, the InformatIOn provIded wIth respect to telephone numbers and addresses for those persons was Incomplete or Inaccurate such that none of them could be located or contacted. ThIS IS partIcularly troublIng SInce they are ostensIbly the very persons who attended at the LCBO stores and completed purchases on behalf of one of the two busInesses In the presence of and wIth the assIstance of the Gnevor 3 InformatIOn whIch was provIded for an extensIve lIst of customers who dId busIness wIth "LIqUor BI Phone" was deficIent such that few If any clIents could be contacted and/or IdentIfied wIth the addresses or telephone numbers gIven for them. On the other hand, the nature of the busIness of "LIqUor BI Phone" does not lend Itself to easy IdentIficatIOn of customers Therefore, It IS more than possIble that, however Inadequate, the InfOrmatIOn whIch has been provIded for that busIness IS the only InfOrmatIOn avaIlable 4 On the other hand, one would expect the sItuatIOn to be dIfferent for the other busIness, II EntertaInment, whIch was engaged In event planmng. For that busIness, one would expect a stable and IdentIfiable clIent lIst wIth accompanYIng phone numbers and addresses However no documentatIOn whatsoever respectIng customers of that busIness was forthcomIng In the group of documents produced by the Gnevor for the end of June The explanatIOn for that deficIency was unclear 8 5 Of the approxImately 140 transactIOns recorded to the relevant AIr Miles card number receIpts from the LCBO produced by the Gnevor could be cross referenced to only 10 or so transactIOns If the matenal receIved as at June 30 constItuted the totalIty of the productIOns, the Gnevor and the Umon would have great dIfficulty In corroboratIng hIS explanatIOn. However there were further documents produced shortly before the July heanng date but after the June deadlIne These the Employer seeks to have me exclude from the productIOn SInce they were tendered after that deadlIne I do not propose to dIsallow the addItIOnal documentatIOn sImply because It was provIded after the date ordered. In the sItuatIOn at hand, I understand that Counsel for the Employer had Intended to proceed wIth thIS motIOn to dIsmIss before the challenged documents were tendered on the eve of the last heanng. AccordIngly the productIOn at that late date dId not In Itself Interfere wIth or delay proceedIngs SInce the Employer was advancIng the motIOn to dIsmIss, an adjournment to consIder the new documentatIOn was unnecessary In the cIrcumstances, It IS dIfficult to understand what prejUdICe would befall eIther the Employer or the Umon, for that matter by allowIng the matenal to be Introduced. On the contrary the admIssIOn of these addItIOnal documents may serve to assIst the partIes In preparatIOn for contInuIng proceedIngs here AccordIngly whIle I do not consIder It appropnate to have an open door polIcy wIth respect to productIOns after the expIry of an agreed upon deadlIne, neIther do I VIew the productIOn of thIS matenal at the current stage of proceedIngs as prejUdICIal to eIther party AccordIngly It IS my VIew that, In these partIcular cIrcumstances, the lIne at whIch further productIOns would be refused had not been reached at the tIme these documents were tendered. 9 It IS, therefore, my decIsIOn that the Employer's motIOns 1 to dIsmIss the gnevance and, 2 to refuse the tender of the addItIOnal documentatIOn are both demed. The heanng wIll contInue on dates to be set up by the RegIstrar In consultatIOn wIth Counsel and thIS ArbItrator Dated at Toronto thIS 25th day of August, 2005 '~ARRIER t Gnevance Settlement Board