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HomeMy WebLinkAbout1992-0491.Samaroo.99-06-16 ~ EMPLOYES DE LA COURONNE OffTARIO CROWN EMPLOYEES DE L'OffTARIO .. 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACS/MILE/TELECOPIE (416) 326-1396 -, GSB # 0491/94 OPSEU # 98B842 IN THE MATTER OF AN ARBITRATION Undler THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO Pubhc ServIce Employees Umon (Samaroo) Grievor - and - The Crown in Right of OntarIO (Mimstry of the SohcItor General and CorrectIOnal ServIces) Employer BEFORE Owen V Gray Vice ChaIr --- FOR THE CraIg Flood GRlEVOR Counsel KoskIe Minsky BarrIsters & SolIcItors FOR THE DaVId Strang EMPLOYER Counsel, Legal Services Branch Management Board SecretarIat HEARING June 3, 1999 - ~ -, DECISION [1] The umon asks that I order the employer to provIde certam documenta hon and mformatIOn and provIde for an mspectIOn, all as described m a letter dated June 1, 1999, from umon counsel to employer counsel. The documentatIOn and mformatIon requested are as follows. 1 the staff log and any other documentatIon whIch would confirm the iden tity of the officer who allegedly escorted Ms. Mame to "Seg" on October 5, 1993 and/or the IdentIty of the escorting officer who came to escort Ms. Mame back from "Seg" to the meetmg wIth a member of management; 2. any and all documents confrrmmg the identIty of the attendmg classuica- tion officer on the mornmg of October 6, 1993, together wIth any other person present m the classuicatlOn office on October 6, 1993, and any and all statements taken from or provIded by any such persons wIth respect to therr knowledge of the crrcumstances relatmg to the accusatIon by Ms. Mame agamst the Gnevor; 3. any and all statements taken from Ms. Tracy Armstrong, together wIth any mformatlOn regardIng the trammg and mstructIon m report takmg of persons takmg thIS report, 4. any and all documents mdIcatmg the IdentIty and locatIOn of the Gnevor and Ms. Armstrong at 9'30 a.m.;1.0'30-11'00 a.m., and 3.00 p.m. on Octo- ber 17, 1993, any and all documentatIOn regardIng the whereabouts of thIs documentatIOn and any chscussions between any representatIve of the mstItutIOn and Ms. Armstrong at any pomt subsequent to October 17, 1993, 5 any and all documents mchcatmg the IdentIty of the vIsItor(s) wIth whom Ms. Armstrong met wIth on October 17. 1993, 6. any and all documentatIOn mchcatmg the IdentIty of VIsItors to the mstI tutlOn on October 22, 1993 and the time of their vIsitmg the inmates and the umt includIng but not llimted to Ms. Christme Noble, Ms. Annette Quibbell and Ms. PatrIcia MItchell mcludmg log books, any and all docu ments regardIng mmate requests and any and all documents concernmg mmate DaVId Robmson, - ---- - - 2 - 7 the Job competitIOn fIle m whIch the Gnevor obtamed a permanent staff posItion at the WhItby Jail, 8. the last known addresses and telephone numbers of all of the ongmal complamants m thIS matter, together wIth DavId Robmson, Mary Lou Casey and Chnstme Noble. The-umon also asks that I make an order provIdmg for an mspectIOn described as follows. The Umon and the Grievor also request an opportumty to attend at the mstI tutIOn and mspect the female umt, segregatIon umt, adjoming doorways and the hallway leadmg to and from the classIficatIOn office together wIth produc tIon of any and all photographs, floor plans and schematIc chagrams of those locations, together wIth the area between the female umt and the pencil sharpener referred to by Ms. LIsa Watson together wIth coloured photo- graphs, scale chagrams and/or schematIc chagrams of thIS area. As chscussed, It would be our request that the Grievor be allowed to be m at tendance durmg the course of thIS inspection m order to properly provIde m structIOns to counsel. As well, we request the opportumty to prepare both vIdeotape and photo- graphs of the areas, and to make such measurements as may be reqUITed. We of course are willmg to agree to reasonable conchtlOns regardmg the date and trme of such mspectIOn and the preseIVatIOn of confidentIahty of any and all informatIOn obtamed as a result of the mspectIOn. ~ [2] Employer counsel obJects generally, on the ground that these requests are made too late in these proceedmgs Umon counsel observes that most of the re- quests m hIS letter of June 1, 1999 were set out m the partIculars he dehvered October 23, 1998, that they all relate to the union's rebuttal on the ments of the eVIdentiary effect of the gnevor's crimmal conVICtIOns, and that until the release of my deCISIOn of May 25, 1999 It was m Issue whether the umon would be per- mItted to present eVIdence m rebuttaLof the propOSItIOn that the gnevor was m fact gUIlty of the crimes of whIch he was convicted. [3] The nature and hIStOry of these proceedmgs IS described m prevIOUS deCI- SIOns From the outset, the employer caused the proceedmgs to focus on whether the umon would be permItted to assert and attempt to prove that the gnevor was Innocent of the alleged mIsconduct for whIch he was dismIssed Between the first and second hearmg days (December 18, 1996 and February 18, 1998), the umon retained counsel and requested certam productions. On the second hearmg date, - 3 - the employer's then counsel noted that some of the Issues to whIch the umon's productlOn requests were directed would be academlC If I concluded, as she was then assertmg, that the gnevor's convIctIOns m 1995 were conclusIve, Irrebutable eVIdence of the mIsconduct for whIch he had been dIsmIssed m 1994 She asked thaf consIderatlOn of productIOn requests of that sort be deferred untIl after the employer's prelImmary Issues had been addressed. The hearmg proceeded m that way both before and after the delIvery of umon counsel's letter of October 23, 1998, whIch set out most of the requests now bemg addressed. I do not sug- gest that the umon's productlOn requests m 1997 covered the same ground as those now before me. Nevertheless, the conduct of the employer's prlOr counsel m these proceedmgs created a context m whlCh the delay m gettmg to these Issues IS not somethmg to whICh I am prepared to assIgn any slgruficance Production of Documents [4] Both counsel made reference to varlOUS authoritIes on the scope ofproduc tIon and dIsclosure m various legal ~contexts I do not propose to reVlew those here. The Board IS the master of ItS procedure, and It has the same powers as an arbItrator under the Labour Relatwns Act, 1995, ("the LRA") to reqUIre that par- tIes produce arguably relevant documents at hearmg or to the OpposIte party pnor to hearmg In Re Thermal Ceram~cs, Dw~swn Of Morgamte Canada Corp and Umted Steelworkers (1993), 32 L.A.C (4th) 375 I made the followmg obser- vatIOns (at pages 379-380 and 382-383) about the exerCIse of the powers now con- ferred by clauses (a) and (b) of subsect!,Qn 48(12) of the LRA. The subsection confers or confIrms powers, but does not dIctate how those powers are to be exerCIsed. Therr exerCIse should be guIded by the eVIdent in tent of the Act that the arbItratIOn of msputes under collectIve agreements be as expedItIOUS a means of resolvillg those dIsputes as It can be without being an unfarr one. The partIes to proceedIngs in CIvil courts have the nght to par tIculanzed plead.mgs, productIon of documents and pre-tnal dIscovery of op- pOSIte partIes. Much attentIOn IS focused on the scope of the partIes' corre- spondmg obhgatIons ill that regard. Much argument IS had over whether those obhgatIOns have been met. And a hearing on the ments of the partIes' dIspute does not proceed ill that forum until those obhgatIOns and any dis- putes about them have been met and resolved. In the result, the average piece of CIvil htigatIOn proceeds at a rather slower pace than can be and gen erally IS achIeved ill the arbItratIOn of collectIve agreement dIsputes. No - - 4 - doubt that has somethmg to do wIth why the legIslature chose not to burden the grIevance arbItratIOn process with mandatory pre-hearmg proceedIngs of the sort available by rIght m CIvil htIgation. The legIslature has left It to the arbItrator charged WIth decIdIng a collec tIve agreement dIspute to Judge whether and to what extent there should be any compelled pre-hearmg exchange of mformatIOn. In my VIew, one of the -, consIderatIOns to be taken mto account m makmg that Judgment IS the pOSSI bllity that an order intended to expedIte the hearmg and dIspOSItion of the matter may have the OpposIte effect. Once there IS an order compelling a party to do somethmg It has not agreed to do, there IS then the possibility of dIsputes about what the order means, how It apphes to unantIcIpated CITcum stances, whether It has been comphed WIth and what the consequences of non-comphance should be. The resolutIOn of such dIsputes may consume the very hearmg tune and expense whIch the order was mtended to save, and more, WIthout advancmg the resolutIOn of the underlymg dIspute even as much as It would have been had no order been made. That will not always be so, but It IS a rIsk whIch must be weIghed agamst the possible benefits of a more structured and onerous pre-hearmg dIsclosure process. My reluctance to unpose a form of dIscovery whIch requITes the creatIOn of documents summanzmg antIcIpated testunony does not extend to compel lmg pre-hearmg dIsclosure of eXIstmg documents whICh are arguably rele- vant and, thus, hable to be produced at hearmg ill any event. There IS much to be gamed and httle to be lost by requirmg parties to exchange m advance the documents which they mtend to mtroduce at the hearmg. The request here goes beyond documents on wl!Ich the umon and grIevor may rely to all documents in their possession relatmg to the grievor's Job search, whether they mtend to rely on them or not. I am satIsfied that such documents are ar guably relevant. They could be the subject of a summons duces tecum. If a party has arguably relevant documents m Its posseSSIOn whIch It could be compelled by a summons to brmg to the hearmg, It seems to me that the bur den should be on that party to show why It should not produce those docu ments m advance if the OpposIte party so requests. The umon has not satIs- fied that burden here. Smce reSIstance to productIOn of documents m advance of a hearing may sometunes stem from concern about the use to whIch documents produced mIght be put once produced, I should say that m my VIew a party to whom documents are produced m connection WIth the arbItratIOn of a grIevance IS subject to an unphed undertakmg not to use the documents for any purpose other than the conduct of the proceeding in whIch the documents were pro- duced. Harman v Secretary of State for Home Department, [1983J 1 A.C 280 (H.L.), US. WA. v Shaw,Almex lndustnes Ltd., [1984J O.L.R.B Rep Apr 659; P S.A.G. v Fonntek Canada Corp, [1985J O.L.RE. Rep July 1050; Lac Minerals Ltd. v New Cinch Urantum Ltd. (1985), 17 D L.R (4th) 745, 50 OR (2d) 260,48 C P C 199 (ant. H.C J) [leave to appeal granted 2 C PC. (2d) 76J [5] It was apparently argued before another arbItrator in Be Chl,ldren's Al,d and C U.P.E 2197 (1994), 42 L.A.C (4th) 259 (BrIggs) that my deCISIon m Re Thermal Ceraml,cs, supra, stands for the propOSItIOn that an order for productIOn - ~-~.~.~---~.. .~_._---~.._._---------_.- - ---- -.-- 5 - should be lImIted to documents on WhICh the producmg party mtends to rely at hearmg It does not. Indeed, the result m Be Thermal Ceraml,cs, supra, was an order for productIOn that was not lImIted m that way It seemed to me to go wIthout saymg that a party could ordmarily have no sensible ObjectIOn to pro- ducIng m advance those documents on whIch It may wIsh to rely at hearing The party could hardly object on the basIs of relevance, the possibIlIty that docu- ments not produced wIll not later be admItted encourages complIance, and the extent of complIance IS easily assessed as the hearmg proceeds. Because the same cannot be saId for other documents m the party's posseSSIOn, custody or power, the arbItrator has those and other consIderatIOns to weIgh m assessmg whether to reqUIre theIr productIOn. If the documents are arguably relevant to an Issue m the proceedmg, however, then the onus should be on the party capa- ble ofproducmg It to demonstrate why It should not be reqUIred to do so. [6] Except as mdICated m the balance of thIs award, I have accept the uruon's submIsSIOn that the documents sought are arguably relevant to Issues m thIs proceedmg, and have not been persuaded that there IS any valId reason why the employer should not be reqUIred to produce them. Where I have dIrected that the employer produce documents, the employer may do so eIther by producmg the orIgmals for mspectIOn by umon counsel at a reasonable time and place, or by provldmg photocopIes of the orIgmals, or by some combmatIOn of the two If It produces orIgmals for mspectIOn, the employer shall provIde the umon WIth pho- tocopIes of any pages requested by umon counsel, and umon counsel shall pay any reasonable photocopymg charges demanded. Nothmg m these general dIrec- tions precludes the partIes from dealmg WIth productIOn m any other manner on whIch they can agree. Witness Statements [7] The umon WIshes to be sure It has had productIOn of all wItness state- ments concermng matters relevant to the Issues remammg m dIspute. The em- ployer does not claIm that any such documents would be prIvIleged from dISclo- sure. Employer counsel says that no-one In the Institution where the alleged - ------ 6 mIsconduct took place has a file of wItness statements He assumes that the statements taken by the 1.1 U mvestIgator are all m hIS report, whIch has been produced. He states that the grIevor's crImmal counsel would have had produc- tion m the crImmal proceedmg of statements obtained by the pohce or Crown counsel. It is apparent that the ablhty of the grIevor to defend hImself at the cnmmal tnal WIll be part of the employer's argument m support of the eVlden tIary value of the convIctIOns m those proceedings, and m answer to any rebuttal the umon may now present on the grlevor's behalf. Umon counsel advIses that the gnevor's crImmal counsel feels constramed from dlscussmg these matters by an undertakmg, express or Imphed, that he not make use of or reveal anything disclosed to mm by the Crown m those proceedmgs except for purposes of those proceedmgs [8] Employer counsel was not m a posItIOn to say that the employer does not have in its posseSSIOn, custody or power any relevant WItness statements not al. ready produced to umon counsel. 1 dIrect that it take approprIate steps to deter- mme whether it does have any such statements m ItS posseSSIOn, custody or power, and produce any such statements to umon counseL [9] The employer here IS the Crown m RIght of OntarIO AE. I noted m my de- CISIOn of September 15, 1998, the employer's preVIOUS counsel took mconslstent pOSItIOns about whether or not the employer IS the same legal entity as the prosecuting party in the gnevor's crImmal trIaL Whatever the employer's POSI- tion on that questIOn may now be, I dIrect that it do what It can to have the grievor's prIor crImmal counsel releas-ed from any express or Imphed undertak- ing to the prosecutIOn that may prevent hIm from dlsclosmg to umon counsel anythmg dIsclosed to hIm by the prosecutIOn m the course of or m respect of the grIevor's crImmal trIaL Records of Discussions [10] In paragraph numbered 4 of ItS request the unIOn asks for productIOn of "any and all documentatIOn regardmg any dISCUSSIOns between any represen tatIve of the mstItutIOn and Ms. Armstrong at any pomt subsequent to October - - 7 17, 1993 " Such documents would Include notes of what was saId to the Inmate as well as what was saId by her, and mIght for that reason not be thought to be "wItness statements" If lImIted to documents regardmg commumcatIOns WIth the Inmate concermng or ansIng out of her allegatIOn that the gnevor assaulted her~.then tlus IS a legItImate request. With that lImItatIOn, the employer IS dI- rected to produce any such documents In ItS posseSSIOn, custody or power Records of Training of Statement Takers [11] At thIS pOInt thIS request IS too vague I am told that WItness statements thus far produced show on them who took the statement. Once It is clear that all statements have been produced, the umon can determme whose report-takmg IS m Issue, If any, and partlculanze ItS request. I would expect It to attempt to In- temew each such report taker about lus or her trammg before renewmg a re- quest for records concernmg that tralmng The Competition File [12] In lus letter of October 23, 1998, umon counsel saId that the umon relIed on the competItIOn file in respect of the competItIOn m wluch he was awarded a permanent pOSItIOn at the Wlutby JaIl. In hIS letter of June 1, 1999 he asked that the employer produce the file. At the hearmg, employer counsel saId he thought the file mIght have been produced to the umon In connectIOn grIevances that challenged the outcome of that competitIOn. Umon counsel saId he belIeved that the umon may have copIes of the file but could not produce It to rum because they were subJect to an express or ImplIed undertakmg not to make use of them for any purpose unconnected WIth the competitIOn grIevances. Although the ar- guable relevance may be tenuous, It would be no burden on the employer to re- qUIre that It release the umon from any such undertakmg to the extent neces- sary to permIt umon counsel to make use of the competitIOn file for purposes of thIS proceedmg I dIrect that It do so - 1 8 - Logs and other records of events and attendance [13] Employer counsel says the employer stIll has the staff logs for the seg and women's UnIts of the InstltutIOn for the relevant perIod He states that they are the only documents lIkely to provIde the mformatIOn sought m paragraph num- bered 1 of the unIon's request. The logs may also address the Issues IdentIfied m paragraphs numbered 2 and 3 QuestIOns about staff m attendance m the mstI- tutIOn at particular times mIght be addressed by attendance records, If they stIll eXIst. QuestIOns about who vIsIted the mmates m questIOn after the alleged as saults mIght be addressed by VIsItor logs, If they stIll eXIst. WIth respect to para- graph 4 of the unIon's request, counsel for the employer mdICates that no records are kept wIth respect to access to records The employer IS dIrected to produce the staff logs, and any VIsItor logs and attendance records stIll m eXIstence, for the relevant tImes and areas Documents Regarding Inmate Requests Documents Concerning Inmate David Robinson [14] These requests relate to the gnevor's allegatIOn that mmate Watson had a motIve to harm him because he had refused her request to delIver a letter to her boyfrIend, DavId Robmson, who was mcarcerated elsewhere m the mstltutIOn, and because he had placed Robmson on mIsconduct. The sort of mmate request wIth whIch the UnIon IS concerned IS a request by Watson that she be allowed to see Robinson or that a letter be dehvered to him. The employer's positIOn IS that mmates may commurucate wIth one another by ordmary mail, but letters from one mmate to another are not delivered: by correctIOnal officers If such a request were documented, It IS not clear where the document would be If not m the m- mate's file or, perhaps, one of the logs I have already ordered produced. The em- ployer IS dIrected to review LIsa Watson's mmate file for the relevant perIOd of mcarceratIOn, If It stIll eXIsts, and produce any document relatmg to a request by her to see, or to have a letter dehvered to, mmate Robmson, durmg the perIOd prIor to Ms. Watson's allegation that the grIevor assaulted her ,- . - 9 - [15] The request wIth respect to mmate DavId Robmson IS too broad The em- ployer IS dIrected to reVIew DavId Robmson's mmate file for the relevant period of mcarceratIOn, If It still eXIsts, and produce any document relatmg to the grIevor's havmg placed rum on mIsconduct durmg the period prIOr to Ms. Wat sons allegatIOn that the grIevor assaulted her Last Known Addresses of Complainants and Other Witnesses [16] The request m paragraph numbered 8 of umon counsel's letter of June 1, 1999 IS not one of the requests made m the letter of October 23, 1998 The ad- dresses and telephone numbers of the complamants and the WItnesses named are not facts relevant to any Issue between the partIes m these proceedmgs I am not persuaded that the employer should be dIrected to produce any informa- tion It may have about theIr current whereabouts That IS not to say that the employer's refusal to volunteer the mformatIOn when asked IS mconsequentIal. If the umon cannot find one of these people without mformatIOn the employer wIthholds, for example, then the employer may not be m a posItIOn to argue that an adverse mference should be drawn from the umon's faIlure to call them. The Inspection [17] Umon counsel's letter of October 23, 1998 asked for the opportumty to VIew relevant portIOns of the premIses and productIOn of drawmgs. It dId not ask, as the letter of June 1, 1999 does, that the grIevor be allowed to be present for the inspectIOn. Apart from the complamt about delay wIth whICh I have al- --- ready dealt, employer counsel does not serIOusly object to an mspectIOn of rele- vant portIOns of the premIses by umon counsel. He does not object to the takmg of photographs or VIdeotapes durmg the mspectIOn, provIded that the privacy of mmates and others present IS respected. Counsel takes strong ObjectIOn to al- lowmg the grIevor to return, however bnefly, to the workplace from whIch he was dIsmIssed and the scene of Crimes agamst inmates of whIch he was con- vIcted. Counsel also mdlcates that there eXIst scale constructIOn drawings - . . - 10 - showmg the structure as of 1988, whIch for the most part correctly reflect the layout of the relevant areas at the tIme of the events m questlOn. [18] I clearly have the power to permIt what the umon asks If It IS part of the takmg of a VieW under clause (g) of subsectlOn 48(12) of the LRA. That would m- volve my bemg m attendance It could be debated whether an mspectlOn of thIS sort m the absence of the arbItrator falls wIthm clause (h) of that subsectlOn. Employer counsel sensibly dId not InsISt on my bemg present as a condItIon of the mspectlOn, or otherwIse argue that I was wIthout JUrIsdICtlOn to make an or- der provldmg for what umon counsel asked. In all the cIrcumstances, I consld~ ered and consIder that an order provldmg for mspectlOn by umon counsel and perhaps another representatIve of the umon (other than the grIevor) would be appropriate. I so mformed the partIes at the hearmg I observed that the neces- SIty of the grievor's attendance had not been made out, and lIkely could not be made out untIl counsel had done the mspectlOn, taken photographs, revIewed the plans and could explam wIth reference to those thmgs why It was that the grIevor would have to be present m order for counsel to properly prepare for fur- ther hearmgs I understand that after the hearmg concluded, the parties ar- ranged for an mspectlOn that wIll have taken place by the tIme thIs decislOn IS released to them. [19] Rather than gIve detaIled dlrectlOns that may conflIct WIth what the par- tIes have worked out, I sImply dIrect that the employer produce the constructlOn drawmgs to umon counsel, and permIt him and any assistant (other than the grIevor) that he may reasonably requIre to attend at the mstItution at a mutu- ally convement tIme to VIew any portlOns of the premIses m whIch events m IS- sue took place and take such stIll and VIdeo pIctures of those premIses as he may reasonable reqUIre, so long as theIr so domg does not result m recogmzable Im- ages of any mmate or any other person who objects to bemg photographed. - . . 11 . Conclusion [20] I will not repeat or summarIze here the dIrectIOns set out In the body of thIS decIsIOn. Some of the dIrectIOns are necessarIly vague The parties are free to refine them In any manner on which they can agree If any dIfficultIes arIse -- durIng or as a result of ImplementIng these duectIOns, these Issues may be re- vIsIted at a future hearIng Dated at Toronto thIS 16th day of June, 1999 /~ I ..- ~V , --- l - -- - -