Loading...
HomeMy WebLinkAbout2003-3101.Koonings.06-02-17 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# 2003-3101 2003-3914 2004-2011 2004-2012,2004-2013 2004-2016 2005-0085 UNION# OLB531/03 OLB016/04 OLB504/04 OLB505/04 OLB506/04 OLB509/04 OLB083/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Koomngs) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Ernest A SchIrru KoskIe Minsky LLP Barnsters and SOlICItorS FOR THE EMPLOYER Richard J Charney OgIlvy Renault LLP Barnsters and SOlICItorS HEARING January 12 and 13 2006 2 DeCISIon [1] At the hearmgs of January 12 and 13, 2006 m thIS matter I gave certam oral dIrectIOns wIth respect to the productIOn of documents Those dIrectIOns were confirmed and elaborated m an order Issued m wntmg on January 27, 2006, wIth reasons to follow These are the reasons Background The Gnevances [2] At the tIme of the events m questIOn m these proceedmgs, the gnevor, Tma Koomngs, was a Customer ServIce RepresentatIve m the LCBO's Pnvate Ordermg Department, whIch IS part of the LCBO's LOgIStICS FacIlIty That department handles requests made by agents of manufacturers and supplIers of alcoholIc beverages that the LCBO purchase and warehouse theIr prmcIpals' products, m antIcIpatIOn of resale by the LCBO to lIcensed vendors to whom the agents promote those products Such agents must be lIcensed under the Liquor License Act, R.S 0 1990, c. L 19 [3] In August 2003 one of those agents, LIfford Wme AgencIes LImIted ("LIfford"), caused summonses to be served on the gnevor and several other employees m the Pnvate Ordermg Department, reqUIrmg that they attend to testIfy at a hearmg that scheduled by the Alcohol and Gammg CommIssIOn of Ontano ("the AGCO") to consIder proposals to revoke LIfford's lIcense The gnevor alleges that after she receIved such summons Mr DavId French, the manager of the Pnvate Ordermg Department, threatened her that "If you tell the truth and If the LCBO m any way perceIves that you are mdmg the agent m theIr case, your career at the LCBO wIll be hIstory And [your] tIme m the Pnvate Ordermg Department would be made extremely dIfficult" and told her that "I would make a very, very strong recommendatIOn for you I advIse you that your Idea of the truth should be the followmg sentences 'I don't remember' and 'I don't recall'" The gnevor testIfied to that effect before the AGCO m September 2003 The course those hearmgs took thereafter IS described m Ontano (Liquor Control Board) v Lifford Wine Agencies (2005) 76 0 R. (3d) 401 (Ont C.A) In October 2003 the 3 gnevor filed the first of the mne gnevances now before me, whIch IS focused on thIS alleged mIsconduct by Mr French. [4] The second gnevance concerns an allegatIOn that m December 2003 the employer filled a posItIOn for whIch the gnevor had prevIOusly competed unsuccessfully, wIthout conductmg a fresh competItIOn. [5] The next SIX gnevances were filed m July 2004 In them, the gnevor complamed that she had been harassed and dIscnmmated agamst over a perIOd of months by some members of management m the Pnvate Ordermg Department, and by bargammg umt employees whose behavIOur management encouraged, approved or at least faIled to restram, and that the employer had not responded appropnately to her complamts about thIS harassment and dIscnmmatIOn. On her behalf the umon alleges, among other thmgs, that these acts and omISSIOns by management were m reactIOn to the gnevor's havmg testIfied as she dId m the proceedmgs before the AGCO, and was m furtherance of the threats she alleges were made to her m August 2003 by Mr French, who had m the meantIme had been moved to a hIgher management level m the LOgIStICS facIlIty [6] The last of the gnevances before me challenges management's decIsIOn m January 2005 to suspend the gnevor for a month and transfer (or, as the umon would say, demote) her out of the Pnvate Ordermg Department mto a posItIOn m a retaIl store The stated reasons for Imposmg the suspenSIOn and effectmg the transfer were that she had "mItIated complamts agamst managenal and bargammg umt employees whIch have no basIs at all," had pursued complamts "wIth malIce and for an Improper purpose" and had "chosen to abuse the gnevance process m order to harass and mtImIdate LCBO employees", and that these actIOns, and her other allegatIOns agamst and conflIcts WIth management over the years, had made her contmued employment m the Pnvate Ordermg Department or elsewhere m the LCBO's head office enVIronment untenable These Proceedmgs [7] On the first day of hearmg the partIes were m dIspute about the order of proceedmg, and there were Issues about the productIOn of documents Although there had already been some exchange of mformatIOn and documents between counsel, I 4 ordered that each party delIver to the other wntten partIculars of the allegatIOns of fact on whIch It relIed and copIes of any documents m Its possessIOn, custody or power on whIch It mIght wIsh to rely m the hearmg Any questIOn of compellmg productIOn by a party of documents other than those on whIch It mIght wIsh to rely was expressly postponed ThIs was because, as I told counsel orally at the tIme, determmatIOns of the arguable relevance of any such documents could not be made wIthout first knowmg wIth partIculanty what facts were m dIspute, and because the mItIal exchange of all documents on whIch each party wIshed to have the opportumty to rely would better mform the partIes' decIsIOns about whether and what to what extent further productIOn of documents mIght be needed [8] DelIvery of partIculars and relIed upon documents occurred on an agreed upon tImetable that concluded about a week before hearmgs resumed on December 5 and 7, 2005 Durmg those hearmgs umon counsel saId he thought employer counsel had represented to hIm that the documents already produced on behalf of the employer were all documents m ItS possessIOn, custody or power that mIght be relevant to any of the Issues In dIspute Employer counsel smd that he had not made such a representatIOn and was not m a posItIOn to make a representatIOn to that effect The U mon' s Request for ProductIOn [9] On December 12, 2005, umon counsel requested of employer counsel that the employer dIsclose to the umon all emmls and/or other forms of commumcatIOn and/or correspondence between LCBO managers and/or supervIsors that m any way relate to Ms Koonmgs Employer counsel responded that the LCBO dId not agree to do so. You are askmg the LCBO to Jom wIth you m an unreasonable fishmg expechtIOn whIch It IS not prepared to do Nor as you suggest can such documentatIOn be arguably relevant when the request IS so broad, m terms of subject matter and chronology as to be of no ObVIOUS relevance After some further telephone conversatIOns, umon counsel requested chsclosure of all arguab~v relevant emmls and/or other forms of commumcatIOn and/or correspondence between LCBO managers and/or supervIsors that m any way relate to Ms Koonmgs from August 200:3 to date For further clanty thIs request does not mclude correspondence that IS subject to SOhcItor-chent pnvIlege (emphasIs added) 5 [10] Counsel could not reach agreement, and umon counsel asked that I order the employer to produce all arguably relevant emaIls and/or other forms of commumcatIOn and/or correspondence to or frol11 (rather than Just "between") LCBO managers and/or superVIsors that m any way relate to Ms Koonmgs from August 2003 to date Argument [11] Umon counsel explamed that he sought correspondence arguably relevant to the umon's allegatIOns of harassment by management and/or the employer's allegatIOn that the gnevor's contmued employment as a CSR m the Pnvate Ordermg Department was untenable HIS posItIOn was sImply that productIOn of arguably relevant documents should be ordered m the CIrcumstances [12] Employer counsel submItted that there IS no eqUIvalent m labour arbItratIOn of the oblIgatIOn of partIes m CIVIl lItIgatIOn to produce all relevant documentatIOn. WhIle acknowledgmg that an arbItrator has the power to reqUIre a party to produce more than Just the documents on whIch that party may wIsh to rely, he argued that an order of the sort sought by the umon would unfaIrly put the employer m a posItIOn of havmg to assess relevancy, an assessment that he descnbed as "subJectIve" and "potentIally arduous" He submItted that the umon's request was so broad as to constItute a "fishmg expedItIon," that the party seekmg productIOn was oblIged to partIculanze ItS request more than the umon had, and that there must be a nexus between the matenals sought and the Issues In dIspute He submItted that reqUIrmg broad productIOn IS contramdIcated m labour relatIOns matters, as It dIsrupts the workplace and creates a sense of unfaIrness ThIs IS partIcularly so, he argued, because by contrast wIth CIVIl lItIgatIOn there IS no proVIsIOn m labour arbItratIOn for an award of costs, so one party can put the other to the expense of broad productIOn wIth Impumty He noted that m some cases gnevors and trade umons make broad allegatIOns of "bad faIth" m whIch arguable relevance could cast a wIde net, and that arbItral unwIllmgness to facIlItate "fishmg expedItIons" should take thIS mto account Reference was made to McQueen, GSB #0383/97, (October 5, 1998, Bnggs), Tone, GSB #2693/96 (September 22, 2000, DIssanayake) , Re Laurentian Hospital and Ontano Nurses' AssociatiOn (1997), 67 L.AC (4th) 289 (Pmeau), and Re Canada Post COIp and Canadian Ulllon of Postal 6 Workers (Best) (1986), 24 L.A.C (3d) 157 (Weathenll) for varIOUS statements of prmcIple contamed therem. Analysis [13] By vIrtue of sectIOn 2 of the Crown El11ployees Collective Bargallllllg Act (1993, SO 1993, c 38), varIOUS prOVISIOns of the Labour RelatiOns Act, 1995 (S 0 1995, c 1, Schedule A, as amended - "the LRA") apply to the proceedmgs of the Gnevance Settlement Board, mcludmg subsectIOn 12 of sectIOn 48 That subsectIOn provIdes that (12) An arbItrator or the chaIr of an arbItratIOn board, as the case may be has power (b) to reqUIre any party to produce documents or thmgs that may be relevant to the matter and to do so before or durmg the hearmg The addItIon of that prOVISIOn to the then Labour RelatiOns Act m 1993 put an end to debate about whether labour arbItrators m thIS provmce have the power to compel pre hearmg productIOn of documents by partIes otherwIse than pursuant to theIr power to Issue and enforce a summons [14] SubsectIOn 48(12) of the LRA does not oblIge partIes to make pre hearmg dIsclosure of documents m the absence of an order, as partIes to cIvIl lItIgatIOn are oblIged to do as a matter of course under the rules of CIVIl procedure In that respect employer counsel IS correct that there IS no eqUIvalent of that oblIgatIOn m labour arbItratIOn proceedmgs I do not agree, however, that an arbItrator's Imposmg such an oblIgatIOn, at an appropnate stage and m an appropnate manner, IS somehow mImIcal to the purposes of labour arbItratIOn or to the mterests of good labour relatIOns generally [15] Good labour relatIOns reqUIre that the process for resolvmg nghts dIsputes at arbItratIOn be both expedItIOus and fair Full pre hearmg dIsclosure of all arguably relevant documents advances that mterest In that regard I adopt the observatIOns of arbItrator Germame m Bntish Colul11bia v Bntish Colul11bia Governl11ent and Service El11ployees' Ulllon, [2003] B C C.A.A.A. No 150 at paragraph 48 ~48 Pre hearmg productIon of relevant documents IS consIstent WIth the nght of partIes to a faIr hearmg and the process values of expechtIOn and cost savmg Pac1fic Pre,,,,,,, Lwnted and The New"paper GUild. Vancouver-New WeHtnnnHter GUild. Local 115 (198:3) 2 CLRBR (NS) 277 (BCLRB DeclSlon No 109/8:3) FaIrness IS advanced by assIstmg the partIes to know and prepare for the case they must meet and by 7 aVOlchng unfaIr surpnse at the hearmg, ExpechtIOn and economy are served by mmImIzmg the adJournments necessItated by unantIcIpated eVIdence at the hearmg, These consIderatIOns combmed wIth the absence of any structured procedure m labour arbItratIOn, recently persuaded a promment arbItrator to take a hberal VIew WIth respect to the productIOn of documents Toronto Dls'tnct School Board and CUPE Local 4400 (2002) 109 L,A, C (4th) 20 (ShIm e) at page '31 The same consIderatIOns have been recogmzed specIfically m relatIOn to pre hearmg productIOn of mechcal documents contammg personal and pnvate mformatIOn JlVe,,",.t Park Hospltal and ONA (199:3) '37 L,A,C (4th) 160 (Knopf) at page 167 Stelco and US JlVA, Local1005(1994) 42 L,A,C (4th) 270 (DIssanayake) at page 274, That fairness favours full productIOn IS underscored by the decIsIOn of the Court of Appeal m Ontano (Liquor Control Board) v Lifford Wine Agencies, supra, whIch held that the AGCO's faIlure to compel productIOn of documents at the request of a party to the proceedmgs (m that case by refusmg to Issue or enforce a summons duces teCUl11 to a thIrd party) amounted to a demal of natural JustIce [16] ExpedItIon and faIrness are not the only mterests worthy of attentIOn m matter of productIOn of documents ArbItrator Germame's award dealt wIth another common consIderatIOn concerns about the pnvacy of personal medIcal mformatIOn. As that award and others Illustrate, such pnvacy concerns warrant care m assessmg what mIght be arguably relevant, and cautIOn m fashIOnmg a pre hearmg productIOn process that provIdes for dIsclosure only to those whose partIcIpatIOn IS needed m order to assess eIther arguable or actual relevance as those Issues anse The same may be saId about other sorts of mformatIOn that, whIle not pnvIleged as a matter of law or polIcy, IS so clearly confidentIal or pnvate m the ordmary sense of those words that those to whom the mformatIOn belongs have a legItImate mterest m special protectIOn from any more dIsclosure than IS necessary, partIcularly before the documents have been found admIssible and admItted mto eVIdence m a publIc hearmg In that regard I remam of the VIew that any party who seeks an order for pre hearmg productIOn ImplIedly undertakes not to make use of the mformatIOn thus obtamed except for the purposes of the proceedmg m whIch the order was made Re Therl11al Ceral1llCs, DivisiOn Of Morgalllte Canada COIp and Ulllted Steelworkers (1993), 32 L.A.C (4th) 375 (Gray) at p 383 If m any case there IS any doubt that such an undertakmg IS ImplIed, then that lImItatIOn should be made express m the order for productIOn. I dId not understand there to be any such doubt here Counsel seemed satIsfied that they could resolve between themselves any concerns about havmg a pre hearmg productIOn process that 8 adequately protects commercial and personal mterests m the pnvacy or confidentIalIty ofnon-pnvIleged, arguably relevant documents [17] I consIdered the then recently enacted predecessor of subsectIOn 48(12) of the LRA m Re Therl11al Ceral1llcs, supra. I concluded there that If a party has arguably relevant documents that It could be compelled by summons to brmg to the hearmg, It bears the burden of showmg why It should not be ordered to produce those documents m advance If the OpposIte party requests That award dId not stand for the proposItIOn that productIOn should be compelled only for arguably relevant documents on whIch the producmg party mtends to rely, as was argued before arbItrator Bnggs m Re Children's Aid SOciety of the City of Belleville and City of Trenton and Canadian Ulllon of Public El11ployees, Local 2197 (1994), 42 L.A.C (4th) 259 She qUIte properly reJected that argument My VIew was and IS that arguable relevance IS the test for determmmg the scope of pre hearmg productIOn, subJect only to claims of pnvIlege and sUItable constramts on who IS to have access to the produced documents and on the use to whIch they may put the mformatIOn m the documents [18] In Re West Park Hospital and Ontano Nurses' AssociatiOn (1993), 37 L.A.C (4th) 160 (referred to m McQueen, supra) arbItrator Knopf wrote (at page 167) where the chsclosure IS contested, the followmg factors should be taken mto consIderatIOn, FIrst the mformatIOn requested must be arguably relevant. Second, the requested mformatIOn must be partIculanzed so there IS no dIspute as to what IS desIred, ThIrd, the board of arbItratIOn should be satIsfied that the mformatIOn IS not bemg requested as a fishmg expechtIOn Fourth, there must be a clear nexus between the mformatIOn bemg requested and the posItIons m dIspute at the hearmg, Further the board should be satIsfied that chsclosure wIll not cause undue preJuchce In thIs regard, the cntena set out m the DesmaraIs v Mornssette case are apphcable m terms of weIghmg whether or not pnvIleged mformatIOn should be protected, [19] It IS not apparent to me, eIther from the West Park Hospital award or otherwIse, what the "clear nexus" test adds to the "arguable relevance" test. EVIdence must have a probatIve nexus wIth an allegatIOn of fact that has been put m Issue by one party and dIsputed by the other before It can be saId to be arguably relevant. EVIdence that IS arguably relevant must of necessIty have such a nexus wIth a dIsputed allegatIOn of fact Of course, It must first be apparent what factual Issues are m dIspute before one could apply eIther test. The arguable relevance enqUIry, and hence an order for productIOn, may be premature If the Issues m dIspute have not been clearly defined. That appears to have been the case m Re Laurentian Hospital, supra, where the 9 arbItrator observed at page 299 that "ThIs extensIve request of documents represents a dIlemma m the sense that the umon has not yet put forward ItS 'theory' of the case whIch would allow me to Judge the relevancy of the requested documents" [20] A "fishmg expedItIon" IS saId to be an endeavour "not to obtam eVIdence to support [a] case, but to dIscover whether [one] has a case at all" Canada Post, supra, at 57 L.A.C (3d) 159 If one can have productIOn only of documents arguably relevant to allegatIOns of fact already put m Issue m the case at hand, It follows that there cannot be productIOn m aId of dIscovermg a case not already asserted VIewed m that way, the "no fishmg expedItIon" test IS really nothmg more than a corollary of the arguable relevancy test The dIfficulty wIth the "fishmg expedItIon" metaphor, however, IS that It may evoke Irrelevant consIderatIOns, such as whether the party seekmg productIOn already has some eVIdence to support the allegatIOns of fact It has put m Issue Although made m the context of a dIspute about the propnety of questIOns asked on exammatIOn for dIscovery, the observatIOns of Seaton, J.A. In Conllnco Ltd. v Westlllghouse Canada Lll11lted et aI., (1979) 11 B C L R 142 (B C C.A.) at p 149 bear equal applIcatIOn m thIS context. Counsel saId that one cannot embark on a fishmg expechtIOn, I find httle help m that statement. I take It that a fishmg expechtIOn descnbes an exammatIOn of chscovery that has gone beyond reasonable lImIts mto areas that are not and cannot be relevant. In those waters one may not fish, In other waters one may That one fishes IS not deCIsIve It IS where the fishmg takes place that matters [21] The law relatmg to summonses duces tecul11 IS that such a summons should IdentIfy the documents sought wIth sufficIent partIculanty to enable the summonsed wItness to know what It IS that s/he must brmg to the hearmg "Brmg all arguably relevant documents" IS generally not enough, because summonses are addressed to mdIvIduals who are almost never themselves partIes to the dIspute, and who generally cannot be expected to know what Issues are m dIspute m the proceedmg A party, on the other hand, IS entItled to partIculars of the Issues are m dIspute, and once It has those partIculars It IS m a posItIOn to know what documents would be arguably relevant. The assessment reqUIred IS not "subJectIve," as employer counsel argued It IS not unfaIr to expect a party to perform that assessment, wIth the assIstance of those who advIse It WIth respect to ItS legal nghts and oblIgatIOns 10 [22] The arbItral Junsprudence about productIOn of documents IS nch WIth debates about whether one party wIll be ordered to produce to the other all documents of a partIcular kmd or class defined wIthout express use of the qualIfymg words "arguably relevant" When the Issue IS framed m that way It IS necessary to determme whether a document's bemg of the defined kmd or class would be sufficIent, wIthout more, to make It arguably relevant The defimtIOn used may fall that test If It IS msufficIently partIcular Accordmgly, when one party seeks productIOn from the other of all documents of a partIcular kmd or class defined wIthout express use of the qualIfymg words "arguably relevant," the observatIOn that the request must be partIculanzed may be nothmg more than IdentIficatIOn of one of the logIcal consequences of the arguably relevant test. When more IS mtended by such a reqUIrement, however, If It IS mtended as a restnctIOn on access to documents that are otherwIse arguably relevant (as those sought here must necessanly be, smce the request before me IS expressly lImIted to "arguably relevant" documents), then such a lImItatIOn IS obJectIOnable for the reasons gIven by arbItrator ShIme m Re Toronto Distnct School Board and Canadian Ulllon of Public El11ployees, Local 4400 (2002), 109 L.A.C (4th) 20 at pp 32 33 Some of the arbItratIOn decIsIOns reqUIre a requestmg party to partIculanze the documents It wIshes to have produced wIth some precIsIOn, However whIle I acknowledge that partIes to the arbItratIOn process hve together m a contmumg relatIOnshIp and know somethmg about each other s affaIrs they cannot be expected to be fully aware of each other s mternal affaIrs GIVen the general purpose for producmg documents where the knowledge of those documents hes coupled wIth the mImmal pre-hearmg procedures m the arbItratIOn process and after consIdermg where the onus to produce documents hes It IS my VIew that whIle a request for partIcular documents may be helpful, the request for partIculars should not be scrutImzed too carefully for preCISIOn, ~There a party IS served wIth a general request to produce documents as mchcated above It must produce every document relatmg to any matter m Issue whIch IS seemmgly or arguably relevant. Needless to say I find that the CIVIl rules make greater sense than the estabhshed arbItral rules by reqUIrmg the party who has posseSSIOn, power or control over the documents to produce them, To reqUIre a party who has not had posseSSIOn power or control over the documents or who may not be completely aware of the documents or theIr contents to IdentIfy them wIth any precIsIOn or partIculanty seems contrary to common sense [23] In that award arbItrator ShIme, a former Chair of thIS Board, compared the CIVIl lItIgatIOn and labour arbItratIOn processes He concluded that despIte the dIfferences between It and CIVIl lItIgatIOn, should be the same broad pre hearmg dIsclosure of "every document relatmg to any matter m Issue that IS or has been m the posseSSIOn, 11 control or power of a party" when eIther party to a labour arbItratIOn proceedmg requests It. I agree [24] I am not dIssuaded from adoptmg arbItrator ShIme's VIew by the fact that partIes to collectIve agreements almost mvanably choose not to confer on arbItrators the power to award costs, nor by hypothetIcal concerns about the effect of trade umon allegatIOns of bad faith and the lIke on the scope of productIOn. [25] UnlIke the vast maJonty of partIes to CIVIl lItIgatIOn, the employer and trade umon partIes to labour arbItratIOns proceedmgs almost always have a contmumg relatIOnshIp It mIght be argued that the eXIstence of that relatIOnshIp IS, generally, at least as effectIve a constramt on lItIgIOuS excesses as the threat of an award of legal costs IS m CIVIl lItIgatIOn. In any event, I do not accept that when the partIes choose not to confer on arbItrators a JunsdIctIOn to award costs thIS carnes wIth It some ImplIcatIOn about the extent to whIch they can expect or be expected to make dIsclosure to one another of mformatIOn pertment to the resolutIOn of dIsputes between them. [26] An allegatIOn of "bad faIth" or the lIke by a umon would be made m relatIOn to management's havmg taken or failed to take some partIcular actIOn for legally Improper motIves Before productIOn of documents could be sensibly addressed m such a case, eIther by the employer or by an arbItrator, partIculars of the acts or omISSIOns complamed of would be needed, from whIch It would become apparent whIch mdIvIdual's (or mdIvIduals') motIvatIOn was m Issue and durmg what tIme frame It IS not at all ObVIOUS that allegatIOns of bad faIth and the lIke of necessIty make an oblIgatIOn to produce arguably relevant documents lImItless In addItIon, It IS hardly an obJectIOn to the domg of JustIce that ItS reqUIrements may be burdensome [27] Although less onerous that the test for admIssIOn mto eVIdence, the arguable relevance test does have lImIts It does not reqUIre productIOn of documents whIch could have no probatIve value wIth respect to a dIsputed fact, eIther alone or m combmatIOn wIth any other testImomal or documentary eVIdence the party seekmg them mtends to add uce EVIdence wIth no possible probatIve value can have no relevance It may be consIstent WIth fairness and natural JustIce to delay or reJect an applIcatIOn for productIOn of documents for whIch an extensIve and expenSIve search would be reqUIred If It appears that the documents sought are of such margmal probatIve value 12 that to compel a search for them would be oppreSSIve I leave that questIOn to another occaSIOn. It dId not appear to anse here [28] Although I do not accept that partIculanzatIOn by the requestmg party IS a prereqUIsIte to productIOn mdependent of the ImplIcatIOns of the "arguably relevant" test, I do agree that when frammg an oblIgatIOn to produce documents other than those relIed upon by the producmg party It IS desIrable that the scope of the oblIgatIOn be made as clear as possible In thIS regard I reIterate some of the observatIOns I made m Re Therl11al Ceral11iCS, supra, at pp 379 380 The subsectIOn confers or confirms powers but does not dIctate how those powers are to be exercIsed, TheIr exerCIse should be gUIded by the eVIdent mtent of the Act that the arbItratIOn of chsputes under collectIve agreements be as expedItIOus a means of resolvmg those chsputes as It can be wIthout bemg an unfaIr one The partIes to proceedmgs m CIVIl courts have the nght to partIculanzed pleadmgs productIOn of documents and pre-tnal chscovery of OpposIte partIes Much attentIOn IS focused on the scope of the partIes correspondmg obhgatIOns m that regard, Much argument IS had over whether those obhgatIOns have been met. And a hearmg on the ments of the partIes dIspute does not proceed m that forum untIl those obhgatIOns and any chsputes 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 generally IS achIeved m the arbItratIOn of collectIve agreement chsputes No doubt that has somethmg to do wIth why the legIslature chose not to burden the gnevance arbItratIOn process wIth mandatory pre hearmg proceedmgs of the sort aVaIlable by nght m CIVIl htIgatIOn, The legIslature has left It to the arbItrator charged wIth decIdmg a collectIve 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 possIbIhty that an order mtended to expedIte the hearmg and ChsposItIon of the matter may have the OpposIte effect. Once there IS an order compellmg a party to do somethmg It has not agreed to do there IS then the possIbIlIty of chsputes about what the order means how It apphes to unantIcIpated cIrcumstances whether It has been complIed wIth and what the consequences of non comphance should be The resolutIOn of such chsputes may consume the very hearmg tIme 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 nsk whIch must be weIghed agamst the possIble benefits of a more structured and onerous pre hearmg chsclosure process ThIs IS not to say that enablmg one party's access to arguably relevant documents m the posseSSIOn of the other IS m some the sense optIOnal. The challenge m exercIsmg JunsdIctIOn under subsectIOn 48(12) of the LRA IS to enable access whIle mmImIzmg the possibIlIty of subsequent dIstractmg and unproductIve dIsputes about the scope of the oblIgatIOn mItIally Imposed. When the mItIal request IS baldly framed as "all arguably relevant documents," It IS desIrable that further partIculanzatIOn be attempted by the requestmg party, by the respondmg party and, If necessary, by the arbItrator 13 PartIculanzatIOn "so there IS no dIspute as to what IS desIred" may not always be possible, however, and the mere possibIlIty of dIspute about what an order reqUIres IS not an obJectIOn to makmg It. Decision [29] My mI tIal to the , applIcatIOn that the managenal response unIOn s was commumcatIOns concermng the gnevor that were lIkely to be relevant m thIS matter were commumcatIOns to or from mdIvIduals expressly IdentIfied m the partIes' partIculars as havmg engaged m acts or omISSIOns complamed of by the gnevor, mcludmg those mvolved m makmg the decIsIOns complamed of. I ruled first that wntten and emaII com mum catIOns to or from each such person concermng the gnevor should be produced for a perIOd that was m each case sensible havmg regard to that person's alleged mvolvement I mVIted further submIssIOns as to who those persons were and what tIme perIOd was sensible m each case I also mVIted submIssIOns as to whether there were any members of management other than those mentIOned whose commumcatIOns mIght be arguably relevant [30] The ensumg dIscussIOn started wIth a lIst of the names of all mdIvIduals whose conduct had been put m Issue m the partIculars, mcludmg some bargammg umt employees The names of all but one of those bargammg umt employees were removed m recogmtIOn that It was only com mum catIOns between them and a lIsted manager that were lIkely to be relevant, and that the partIcIpatIOn of the lIsted manager would make all such commumcatIOns producible Umon counsel proposed addmg two semor members of management to the lIst and offered a tenable basIs for arguably relevance of any commumcatIOns that may have passed between them concermng the gnevor I resolved the mostly mmor dIfferences between them as to the relevant perIOds, and ordered as follows [1] The employer IS dIrected to produce to the umon all arguably relevant emaII messages and other forms of wntten commumcatIOn and correspondence relatmg to Tma Koonmgs that were sent by on behalf of or to any of the followmg mchvIduals durmg the penod August 1 200:3 to March '31 2005 mclusIVe (or as otherwIse noted) of whIch an ongmal or copy IS m ItS possessIOn, custody or power DavId French Geoff AllaIre Mark Upton Ron BartuccI 14 MaggIe Plant Ian Martm Peter CahIll Chns Martm (sent or receIVed durmg the penod May 11 2004 to December 31 2004, mclusIVe) The employer IS also dIrected to produce to the umon all arguably relevant emaII messages and other forms of wntten commumcatIOn and correspondence relatmg to Tma Koonmgs that passed between Bob Peter and Murray Kane durmg the penod August 1 200:3 to March 31 2005 mclusIVe of whIch an ongmal or copy are m ItS possessIOn, custody or power [31] Employer counsel sought an order for productIOn by the umon and the gnevor of relevant documents Once the terms of the order for productIOn by the employer had been determmed, counsel were able to agree m general terms on the scope of the order concermng commumcatIOns to and from the umon and the gnevor, mcludmg prOVISIOns authonzmg the employer to search emaII and other computer data and archIves m ItS own possessIOn, custody or control for commumcatIOns to and from the gnevor I note partIcularly that I was not called upon to decIde whether com mum catIOns between the gnevor and anyone at "LIfford AgencIes or MInam Rogers AgencIes" would be arguably relevant I prepared a draft fleshmg out the mechamcs of productIOn and mVIted the submIssIOns of counsel on the aspects of the draft that had not been expressly determmed by me or agreed by the partIes at the hearmg Takmg mto account theIr submIssIOns, the balance of the formal order for productIOn provIded as follows [2] The umon IS dIrected to produce to the employer all arguably relevant emaII messages and other forms of wntten commumcatIOn and correspondence of whIch an ongmal or copy IS m the posseSSIOn custody or power of the umon or gnevor Tina Koonmgs that were sent by on behalf of or to Tma Koonmgs durmg the penod August 1 200:3 to March 31 2005 mclusIVe I note that the umon and gnevor have agreed, wIthout admIttmg relevance that the emaII messages and other wntten commumcatIOns to be produced pursuant to thIs paragraph mclude emaII messages and other wntten commumcatIOns between Tma Koonmgs and any prmcIpal, employee or representatIve of eIther LIfford AgencIes or Minam Rogers AgencIes [3] The partIes and the gnevor are dIrected to promptly conduct appropnate paper and computer searches m order to comply wIth thIs order Each arguably relevant document for whIch no claIm of pnvIlege IS asserted IS to be cOIned to counsel OpposIte or made aVaIlable for mspectIOn by counsel OpposIte and/or a representatIve of the OpposIte party Documents for whIch any claIm of pnvIlege IS asserted may be wIthheld from productIOn to the OpposIte party pendmg resolutIOn of any dIspute m that regard, but the party makmg the claIm shall provIde counsel OpposIte WIth a hst of all such documents mcluchng (for documents other than commumcatIOns between the gnevor or a representatIve of one of the partIes and a member of the Law SocIety of Upper Canada actmg on her or the party s behalf) a descnptIOn of each such document sufficIent to umquely IdentIfy It together wIth partIculars of the 15 surroundmg CIrcumstances on whIch the claIm of pnvIlege m respect of that document IS based, Documents for whIch no claIm of pnvIlege IS made are to be cOIned to or made aVaIlable for mspectIOn by the OpposIte party and hsts of documents for whIch such a claIm IS made are to be provIded to the OpposIte party on or before February 9 2006 or such other date as the partIes may agree [4] The gnevor IS obhged to promptly put the umon m a posItIon to comply wIth ItS obhgatIOns under the two prevIOUS paragraphs m so far as they relate to documents m her posseSSIOn custody or power [5] I am told that the employer s IT staff are reluctant to facIhtate a search of an employee s workplace computer or hIs/her server-based LCBO emaII account data or any stored data relatmg to such an account wIthout some form of authonzatIOn or JustIficatIOn, For clanty therefore I note that thIs order authonzes and reqUIres that the employer search any computer or machme readable data m ItS possessIOn, custody or power m whIch there IS reason to beheve that cOInes of messages or commumcatIOns referred to m paragraph [1] may eXISt. [6] Further the employer IS entItled and authonzed to search any computer or machme readable data m ItS own posseSSIOn custody or power m whIch there IS reason to beheve there may be copIes of arguably relevant messages sent to or from the gnevor at or from an LCBO emaII address (an address m the lcbo com domam or any other domam used by the LCBO m ItS busmess) m the penod August 1 2008 to March '31 2005 mclusIVe mcludmg any commumcatIOn of the sort descnbed m the second sentence of paragraph [2] above Smce m that penod emaII messages could have passed between the gnevor at a non LCBO emaII address and someone at an LCBO emaII address the employer IS also authonzed to search any present or former workplace computer and any LCBO emaII account data of any employee named m the partIculars exchanged by the partIes m these proceedmgs m order to locate arguably relevant emaII messages sent m that penod pertammg to Tma Koonmgs Each arguably relevant document located as a result of a search descnbed m thIs paragraph IS to be cOIned to or made aVaIlable for mspectIOn by the umon whether the employer mtends to rely on It or not. Dated at Toronto thIS 17th day of February, 2006 ~V