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HomeMy WebLinkAbout2016-1319.Egesi.17-12-04 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2016-1319; 2016-1320 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi) Association - and – The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Ian Anderson Arbitrator FOR THE ASSOCIATION Mark Wright Goldblatt Partners LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING Written submissions - 2- Decision [1] The Association seeks an order that the Employer prove, through independent third party evidence, the authenticity and completeness of what it describes as the “e-mail record” which has been filed. In the alternative, the Association seeks such an order in relation to part of that record and to a specific email which the Complainant claims to have received and the Employer denies having sent. [2] The Association argues there are reasonable grounds to doubt the authenticity of the copies of the emails filed by the Employer and that it is therefore incumbent on the Employer to prove the authenticity of those emails. Further, the Association argues there are reasonable grounds to doubt the completeness of the email record provided. On this basis, The Association relies upon s. 34.1 of the Evidence Act, R.S.O. 1990, C. E.23, as amended, which establishes rules relating to authentication and best evidence with respect to electronic records. [3] The Association’s argument derives from emails and attachments to those emails relating to two incidents. One was a meeting which took place on January 27, 2015 involving Ms. Egesi (the complainant), Ms. Lindsay Stidwell (an AMAPCEO representative), and two managers, Ms. Lydia Lim and Ms. Linda Zhu, with respect to compressed work week (“CWW ”) procedures. The other incident took place on January 29, 2015 between Ms. Zhu and Ms. Egesi. I find it useful to commence by summarizing the evidence thus far with respect to these incidents. [4] The evidence in chief in this case has principally taken the form of detailed declarations, the contents of which are adopted by the declarant. The declarants are subject to cross-examination and re-examination on that evidence. [5] Ms. Egesi was the only witness called on behalf of the Association. [6] The Employer’s case is not complete. Thus far, it has called Ms. Zhu. Ms. Zhu’s declaration makes reference to a number of emails. What purport to be copies of all of those emails have been filed as exhibits (Exhibits 8 and 9). Ms. Zhu has given her evidence in chief and is still subject to cross examination. The Association indicated that it was seeking an order directing independent verification of all of the emails contained in Exhibits 8 and 9 and production to it of original “electronic copies” of those emails, prior to completion of its cross examination. The parties agreed to proceed by means of written submissions. The January 27, 2015 Meeting [7] Ms. Egesi’s evidence in her declaration with respect to this meeting is as follows: 11. On January 27, 2015, I attended a meeting which management had called to discuss the need to strictly keep to the CWW procedures. There had been, I think, two occasions when I called in, due to personal circumstances which had developed, to say that I would be arriving late to work, but would work back the - 3- time. This type of flexibility was previously allowed, but was not to be accommodated under the CWW in the future. After the meeting, I sent an email to thank management for its clarification of the CWW policy. Up to this time, considerable flexibility in working back time, in my case, had been provided by management. Also, Richard King had previously mentioned to me that the members of the capital markets audit team worked from home regularly. 12. Date: Tue, 27 Jan 2015 Hi Linda: I am grateful for the clarification of the CWW rules provided by yourself and Lydia this morning. I will re-read the rules and together with the clarifications provided, endeavour to practise them effectively. I request accommodation to have my half hour lunch whenever I am hungry as this will help me to control my blood sugar. It is my intention to be a hard-working compliant employee who practises the OPS VALUES. 13. In response, management acknowledged my email in an email from Linda of January 27, 2015 which implied that my summary of the meeting was consistent with theirs and that the parties were now moving on. [8] Ms. Egesi was cross-examined on this evidence. In cross examination she agreed that the email which she sent to Ms. Lim was not actually worded as set out in paragraph 12 of her declaration. In particular, the email she sent to Ms. Lim did not include the sentence “I request accommodation to have my half hour lunch whenever I am hungry as this will help me to control my blood sugar.” It was put to Ms. Egesi that the Employer had conducted a search of its emails and there was no response to her from Ms. Lim, contrary to what Ms. Egesi had said in paragraph 13 of her declaration. Ms. Egesi maintained that there had been such a response. It was also put to Ms. Egesi that the Employer’s evidence would be that she had become quite heated during the meeting of January 27, 2015. Ms. Egesi denied that this was the case. [9] Ms. Zhu’s declaration contains the following paragraphs with respect to the January 27, 2015: 52. In my respectful view, Karen’s evidence at paragraph #13 is false. I have scanned all of the relevant emails and have also asked Linda Lim and no email of Karen’s version of events summary was sent to Linda Lim. 53. I have also confirmed that no acknowledgment of her version of events summary was made, no consensus was reached. …. - 4- 54. Karen’s conduct was inappropriate at the meeting by yelling and shouting at Linda Lim. The AMAPCEO Representative, Ms. Lindsay Stidwell was also at the meeting at Karen’s request. Linda was upset and documented what happened at the meeting and sent it to HR, to seek advice and direction for next steps. I was copied on that email. The attachment is included as Exhibit 9 [sic: Exhibit 8, Tab 3]. From: Lim, Linda (TBS) Sent: January 27, 2015 11:37 AM To: Cheung, Helen (MGCS) Cc: Zhu, Lydia (TBS); Leopold, Adrienne (MGCS) Subject: Today's Meeting Hi Plse see attached. I need directions about next steps. Thank you for your support. Regards Linda 55. Accordingly this bolsters my view that Karen’s testimony at paragraph #13 was false. Karen states that: “ Management acknowledged my email in an email from Linda of January 27, 2015 which implied that my summery [sic] of the meeting was consistent with theirs and that the parties were now moving on”. 56. There was no agreement between the management and Karen regarding her non-compliance with the CWW rules, at the January 27th, 2014 [sic: 2015] meeting. [10] The document identified by Ms. Zhu as the attachment to Ms. Lim’s email of January 27, 2015 is lengthy. It indicates the meeting was convened to discuss CWW procedures, as stated in Ms. Egesi’s email and declaration. However, it also indicates that Ms. Egesi raised a number of unrelated issues and ultimately said to Ms. Lim in a “loud and angry voice” that she was the source of discrimination, was a liar and a racist, and that Ms. Lim should be investigated as Ms. Egesi had no trust in her integrity and truthfulness and Ms. Lim had a “double standard”. The January 29, 2015 Meeting [11] Ms. Egesi’s declaration states as follows: 15. The manner in which, Lydia Zhu, the manager communicated the ad hoc, retroactive change in my timekeeping requirements, Thursday, January 29, 2015, - 5- involved busting open the door of the office where I was located, I was having my lunch and seated, with my back to the door, at my desk. Only a few minutes before I was actually behind the door, retrieving my medications. If I had been behind the door when Lydia abruptly bust open the door, I could have been injured. Lydia Zhu then continued to shout in a loud, aggressive manner which reduced my workplace environment to an irredeemable stage of epic toxicity, shame and fear in which I was unable to perform my work. I am required to be in an objective frame of mind in performing my job function. This event completely destroyed that frame of mind and replaced it with fear and anxiety. The fact that Lydia Zhu made a comment that she was told to do this, and that Linda Lim had come into a meeting where I was making a presentation and asked Lydia Zhu to come and see her after the meeting makes me believe that the infusion of toxicity into my work environment had been planned and intended to destabilize me. I was able to document the incident in an email to Lydia, and copy to Linda Lim, prior to leaving for the day: 16. WW Meeting Egesi, Karen (TBS) Sent: January 29, 2015 3:03 PM To: Zhu, Lydia (TBS) Cc: Lim, Linda (TBS) Hi Lydia: You visited my office approx. 11am -12 pm this morning and said that you needed to speak to me about my CWW. You asked me whether I intended to take tomorrow off as CWW and I replied yes. (We were previously in an audit meeting from about 9:45 to about 10:45 am for an audit which I am to lead relating to the FSCO accounts payable system. Linda had approached you at the end of the meeting and requested to meet with you. ) You said that you wanted to talk with me about a CWW report which you had asked me to supply yesterday before end of day. (No member of management has ever asked me to provide anything by end of day before, not even audit reports with deadlines. I mentioned to you at that time that, unfortunately, the document had become damaged/lost and you requested me to reconstruct it from memory, which I did and forwarded.) You mentioned that for the days on which I had worked time back, to compensate for time taken off, the extra time was not valid and that on each occasion no extra time would accrue after my last email was sent out as I would not have performed any business-related work after that. You raised your voice and were shouting. I mentioned that I had never heard you shouting before or look angry as you were then and that you were treating me in an unprofessional manner which would cause others to disrespect me. You mentioned that you were only doing what you were told to do. I asked questioningly: “Told to do?” and you seemed to catch yourself saying something that you did not intend to say and then said that you were not approving the time because there was no - 6- business need for the time worked back. Please note that at no time did you provide a criterion for approving time worked back in terms of the time at which the last email was sent out. Up to January 21, I emailed you and mentioned that I would be in around 10:00am, and then when I arrived I emailed you again and mentioned: “Arrived 10:30, will account for time.” If I had known there to be such a criterion, I would certainly have sent out emails just prior to leaving as a timestamp. I will certainly do this in future, if you say this is required. Also, what you discussed with me today relates to the same occurrence which was clarified by yourself and Linda earlier this week. I am somewhat surprised that you did not wait for a different occurrence but revisited the same issue by using previously uncommunicated criterion to create the issue and shouted at me to upset my frame of mind and concentration. Unfortunately, I am unable to work under such conditions. However, I would also like to mention that prior to my discrimination related grievance, I had no time or work issues with management, except to communicate that the assignments which you were giving me were keeping me less than 70% occupied. I hope my grievance and request for a related WDHP investigation does not mean that I am to become a pursued target in my work environment, with management wanting to quickly destroy my reputation, as these are the proper channels for my legitimate issues I enjoyed our meeting this morning with Pat Wong, where you both mentioned that you were able to learn from me, so when you burst into my office angry and shouting, after less than half an hour it totally destabilized me. When you mentioned that you were told to do this I was surprised that it was intentional. I should mention that based upon my nervous position, I am not able to do my work under these conditions, so accommodation in terms of not working with you or Linda might also be necessary as Linda also shouted at me during the CWW meeting earlier this week. Have a Pleasant Weekend. Regards, Karen Egesi Risk and Assurance Consultant Finance Audit Service Team Treasury Board Secretariat, Ministry of Finance [Address and phone number omitted] Email Classification: As the creator of this email, I have classified it as a transitory record containing unclassified information for all concerned and it should be deleted as soon as acted upon. - 7- [12] In cross examination, it was put to Ms. Egesi that the Employer’s evidence would be that there had been no screaming or shouting at the meeting on January 29, 2016. Ms. Egesi maintained that there had been. [13] Ms. Zhu’s declaration states as follows: 65. Karen’s evidence at paragraphs #15 & #16 are absolutely false. On January 29th, 2015, around noon time, I went to Karen’s office and knocked on her door, she said “come in” and I opened the door. She was on the phone at that time, and I asked her if she was available for a quick discussion regarding her working hours for CWW, or if there was a better time for her. She told me she was available, and we began our discussion. This is corroborated in her email dated January 29th, 2015 at 3:03pm stating “Lydia you visited my office today….”, which demonstrates a normal interaction between colleagues and none of the dramatic scenario provided in her will-say at paragarph [sic] #15. 66. At no point during our interaction, from the moment I knocked on her door to the moment we ended our discussion, was my voice raised. Further, I did NOT make a comment that I was told to do so. 67. I documented what happened at the CWW meeting and sent it to HR on January 29, 2014 at 5:06pm (See Exhibit 10 (sic: Exhibit 8, Tab 4). Karen sent her version of CWW meeting to me on January 29th, 2014 at 3:03pm, I did not respond as I was waiting for HR advice and direction. [14] Ms. Zhu’s description of the meeting in the document at Exhibit 8, Tab 4 is very much at odds with Ms. Egesi’s description. For present purposes it suffices to say that Ms. Zhu describes herself as calm and Ms. Egesi as very angry. Analysis and Decision [15] The Association’s argument relies heavily on section 34.1 of the Evidence Act with respect to electronic records. I accept that the documents in question are electronic records. However, I have a number of difficulties with the Association’s argument. [16] I begin by noting that the issues of authenticity and the application of the best evidence rule are separate. [17] With respect to authentication, the Association argues the records are neither signed nor dated. It also points to the fact that the purported January 27, 2015 email and its attachment were filed in separate exhibit books. [18] I am aware of no requirement at common law that a document be either signed or dated before it can be considered authentic. Be that as it may, section 34.1(4) - 8- of the Evidence Act establishes a specific rule with respect to the authentication of electronic records. It provides: The person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. [19] The test under section 34.1(4) is satisfied if there is some evidence which, if believed, establishes the electronic record is what it purports to be. The legal standard of proof is balance of probabilities. The burden of proof lies upon the party seeking to prove the document is authentic. That party must determine whether it believes sufficient evidence has been adduced to allow the adjudicator to make the determination it seeks. Put differently, it is for that party to determine what evidence to adduce. The evidence need not take any particular form. There is no requirement for independent third party evidence. In this case, each of the electronic records in Exhibits 8 and 9 is referenced in Ms. Zhu’s declaration. For example, she indicates she was copied on Ms. Lim’s email of January 27, 2015 found at Tab 59 of Exhibit 9 and the attached document found at Tab 3 of Exhibit 8. As argued by the Employer, this constitutes the type of evidence capable of supporting a finding that those electronic records are what the Employer claims them to be. [20] The Association argues there is an issue of “completeness” of the email record. This is said to arise from two facts. First, the Employer has failed to produce the email which Ms. Egesi testified she received in response to her email of January 27, 2015. Second, the Association has filed with its submissions a further email which is not included in Exhibits 8 and 9. [21] The second of these points may be briefly addressed. Exhibits 8 and 9 do not purport to be a complete record of all emails sent and received. They are simply the emails, and other electronic records, referenced in Ms. Zhu’s evidence. [22] With respect to the failure of the Employer to produce the response to the January 27, 2015 email which Ms. Egesi claims to have received, Ms. Zhu’s evidence was that she had scanned all relevant emails and there was no such response. There is a conflict in their evidence. The email, if it exists, is relevant primarily, if not exclusively, to an issue of credibility. The question is whether the Association has provided a basis for the highly invasive and extraordinary remedy which it seeks in these circumstances. I am not satisfied that it has for the following reasons. [23] The Association’s argument with respect to “completeness” appears to flow from references in s. 34.1 of the Evidence Act to the “integrity” of an electronic record. Section 34.1(7) refers to independent third party evidence of the sort referenced in the Association's submissions as a means of proving the integrity of an electronic record. The integrity of an electronic record, however, is an issue under section 34.1 where a party is seeking to introduce the record as evidence of its contents under the best evidence rule . Section 34.1(5) provides: - 9- Subject to subsection (6), where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record. [Emphasis supplied.] [24] The “best evidence rule” provides that where a document was referred to in evidence by a party, the party was obliged to produce the original of the document if available in its hands. The rule provides that if a party failed to do so, then secondary evidence, in the form of a copy of the document, was not admissible. The concept of an “original” document is difficult to reconcile with electronic records. The provisions of section 34.1 of the Evidence Act, in part, address this by substituting provisions for proving the integrity of an electronic record when the best evidence rule applies. [25] This begs the question of when does the best evidence rule apply. The best evidence rule is no longer a strict rule of admissibility. Rather, an adjudicator has discretion to accept secondary evidence, subject to issues of weight, rather than the original depending on the circumstances of the case: see Sopinka, Lederman & Braynt, The Law of Evidence in Canada, 4th Edition, at 18.32. Where there is a dispute about the precise contents of a document, for example the terms of a contract or a will, then it may be appropriate to strictly apply the best evidence rule: see The Law of Evidence in Canada, 4th Edition, at 18.39. However, in other circumstances secondary evidence may be admissible. [26] In this case, the electronic records have been filed as part of the narrative of Ms. Zhu. She was a sender or recipient of each of the documents in question. The precise contents of the documents are not in issue. What is in issue is what happened during the meetings to which they relate. Ms. Zhu was a participant in the meeting of January 27, 2015 described in Ms. Lim’s document attached to Ms. Lim’s email of January 27, 2015. And of course she was a participant in the meeting with Ms. Egesi on January 29, 2015 which Ms. Lim purports to describe in another document in issue. Ms. Zhu is able and has given evidence with respect to the events described in these documents based on her first hand knowledge. Even the precise contents of the email which Ms. Egesi alleges was sent in response to her email of January 27, 2015 is not in issue. Rather, Ms. Egesi’s evidence was that “management acknowledged my email in an email from Linda of January 27, 2015 which implied that my summary of the meeting was consistent with theirs and that the parties were now moving on.” [27] In my view, in these circumstances, the best evidence rule does not apply so as to trigger section 34.1(5) of the Evidence Act. If I am wrong, I would nonetheless exercise my discretion pursuant to section 48(12)(f) of the Labour Relations Act to admit the secondary documents (i.e. the copies of the emails filed) without proof of the originals for the reasons stated. The weight to be assigned to the documents (including the allegedly missing responding email), as distinct from oral evidence about the circumstances to which they relate, may be addressed in final argument. - 10- [28] Finally, even if the integrity of one or more of the electronic records was in issue, application of s. 34.1 of the Evidence Act would not give rise to the order sought by the Association. The conclusion that an electronic record lacked integrity would simply mean that it could not be admitted into evidence pursuant to the best evidence rule. It would not give rise to an order that “the accuracy and completeness of the records should be verified by an independent forensic IT expert, selected by agreement of AMAPCEO and the Employer” as sought by the Association. [29] For all of the foregoing reasons, the Association’s request is dismissed. Dated at Toronto, Ontario this 4th day of December 2017. Ian Anderson, Arbitrator