HomeMy WebLinkAbout2010-2654.Pacheco.18-11-05 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#2010-2654
UNION#2010-0234-0283
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pacheco) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Suneel Bahal
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING
February 5, 27; March 27; May 6, 31;
June 20, 25, 26; September 4, 5, 25, 26;
October 3, 9 and 10, 2019
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DECISION
[1] The proceeding before me commenced in March of 2016. It involves four
discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. There is a grievance
dated February 12, 2015, which challenged a 10-day suspension issued on February 6,
2015. A second grievance, dated May 29, 2015, challenged a 15-day suspension
issued on May 25, 2015. The third grievance is dated December 7, 2015, and it
challenged a 20-day suspension issued on December 7, 2015. And finally, the fourth
grievance is dated March 3, 2016, and it challenged the March 2, 2016 termination of
Mr. Pacheco’s employment. Following a mediation session in June of 2017, the
Employer elected to return Mr. Pacheco to employment as a Bailiff in the Offender
Transfer Operations unit (“OTO”) located at the Maplehurst Correctional Complex
(“Maplehurst”). It took this step without prejudice to its position on the termination
grievance since it maintained that a suspension should be substituted for the discharge
and that Mr. Pacheco was not entitled to be compensated for his losses.
[2] We are now at the stage in this proceeding where the Employer has
essentially completed calling its evidence on the merits of the four discipline grievances.
The Employer’s evidence on the merits required at least 55 hearing days. There were
other days of hearing that were devoted to other matters, including the resolution of
disputes over the production of documents. The issue now before me can be
characterized as another dispute relating to production in that it relates to a request for
access to some of the Employer’s electronically stored information (“ESI”).
[3] This decision deals with the Union’s request for an order directing the
Employer to provide Computer Forensics Inc. (“CFI”) access to the Employer’s ESI for
the purpose of conducting a forensic study on behalf of the Union on data which the
Union claims is relevant to this proceeding. In particular, the Union seeks such access
for the purpose of conducting an analysis of 65 documents that have been introduced in
this proceeding which the Union has listed on a Schedule A and for the purpose of
studying the wiping out of potentially relevant data in three computers in the Bailiff’s
office at Maplehurst in September of 2017. The Employer strongly opposes the Union’s
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motion. In addition to claiming that there is no basis for issuing such an order in the
circumstances, the Employer also asserts that an arbitrator of the Grievance Settlement
Board (“GSB”) does not have the jurisdiction to issue the order requested by the Union.
[4] The parties agreed at the outset that the motion would only address the
general threshold issue of whether the Union was entitled to the order it requested. At
this stage the parties did not address the questions of what process would be used to
give CFI access to the ESI or what restrictions to that access were appropriate. Union
counsel indicated that these matters would be set aside for now and subsequently dealt
with by the parties if I decided the threshold issue in the Union’s favour.
[5] The Union’s motion consumed 15 hearing days. The evidence of the five
witnesses took 13 days and the submissions of counsel took 2 days. The Union called
Mr. M. Musters to testify. Mr. Musters is the Director of Forensics for CFI and someone
who has considerable experience in forensic investigations. The Employer called four
witnesses. Ms. A. Cameron is a Forensic Specialist, Ontario Internal Audit Division,
Treasury Board Secretariat. Ms. Cameron is also an experienced forensic investigator.
It was agreed by the parties that Mr. Musters and Ms. Cameron were expert witnesses.
The Employer also called Mr. A. Garbacz, Mr. G. Brown and Mr. D. Fowler to testify.
Mr. Garbacz is a Security Manager and IT site contact at Maplehurst. Mr. Brown has
had various positions in Archives Ontario, including Manager, Record Keeping Strategy
Unit. Mr. Fowler is a Senior Systems Administrator, Email Enterprise Service
Operation.
[6] During his submissions on the motion, Union counsel argued that I did have
the jurisdiction to grant the order requested by the Union and he referred me to article
22 of the Collective Agreement and parts of s. 48 (12) of the Ontario Labour Relations
Act (“LRA”). On the merits of the motion, counsel submitted that the ESI the Union
wanted to access was arguably relevant to issues in dispute in this proceeding. He also
submitted that I would be required, in effect, to consider the relevant factors and engage
in a cost benefit analysis to determine whether it was appropriate to grant the Union
access to the arguably relevant ESI. Counsel argued that the probative value of the
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data that the Union is seeking through a forensic investigation outweighs other relevant
factors in the circumstances of this case. Counsel submitted that I should grant the
requested order to ensure a fair hearing for Mr. Pacheco. Union counsel provided me
with the following decisions: Re Toronto District School Board and C.U.P.E., Local 4400
(2002), 109 L.A.C. (4th) 20 (Shime); Re Ottawa (City) and C.I.P.P. (2010), 191 L.A.C.
(4th) 62 (R. Brown); Toronto Transit Commission and ATU, Local 113 (Candela), 2016
CarswellOnt 19288 (Stout); and, West Park Hospital and O.N.A., 1993 CarswellOnt
1283 (Knopf).
[7] As noted previously, the Employer took the position that an arbitrator at the
GSB does not have the jurisdiction to grant the order sought by the Union. Employer
counsel argued that the GSB has the power by statute to require a party to produce
relevant documents, but it does not have the power to direct the Employer to permit the
Union, the party opposite, to have access to the Employer’s ESI for the purpose of
searching for documents. Counsel noted that the Union’s request is akin to a request
for a search warrant to gain access to the computer system of the party opposite. On
the merits of the motion, the Employer asserted that there is no reasonable basis for
granting the order requested by the Union. Employer counsel submitted that the data
the Union seeks to access has no or little probative value. He argued that the reasons
advanced by the Union for accessing the Employer’s ESI is based on pure speculation
and that the Union’s request simply amounts to a fishing expedition. Counsel submitted
that it is appropriate for me to apply the principle of proportionality and to reasonably
balance the likelihood of obtaining probative information relative to the central issues in
dispute against the burden, cost and delay of securing the production. Counsel
submitted that a reasonable assessment of the circumstances of this case supports the
conclusion that any probative value of the ESI sought by the Union is far outweighed by
the factors of cost and delay. Employer counsel referred me to the following decisions:
Zenex Enterprises Ltd. v. Pioneer Canada Ltd., 2012 ONSC 7243; Direct Energy
Marketing Ltd. v. National Energy Corp., 2013 ONSC 4048; AMAPCEO (Egesi) and
Treasury Board Secretariat (2017), GSB File #2016-1319 et al. (Anderson); Roger
White v. Winfair Management Limited et al., OCJ ONT, Court File No. 03-CV-
246818CM2, released April 21, 2005; Northern Youth Services and OPSEU, Local 601
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(Francella), unreported decision dated October 15, 2011 (Carrier); Re Kohler Ltd. and
Hytec Employees Assn. (2008), 168 L.A.C. (4th) 161 (Coleman); Warman v. National
Post Company, 2010 OMSC 3670; OPSEU (Pacheco) and Ministry of Community
Safety and Correctional Services (2018), GSB #2010-2654 et al. (Petryshen); Siemens
Canada Limited v. Sapient Canada Inc., 2014 ONSC 2314; Abrams v. Abrams, 2010
ONSC 2703; Murphy et al. v. Bank of Nova Scotia et al., 2013 NBQB 316; Ontario v.
Rothmans Inc., 2011 ONSC 2504; Gould v. Edmonds Landscape & Construction
Services Limited, 1998 CanLII 5136 (NS SC); and, Stilwell v. World Kitchen Inc. et al.,
2013 ONSC 3354.
[8] In reaching my conclusions on the merits of the motion, I have considered the
evidence called on the motion, the evidence in the main proceeding and the
submissions of counsel. In addition to the decisions relied on by counsel, I have
reviewed the additional material provided to me, such as the Sedona Canada Principles
Addressing Electronic Discovery, certain rules contained in the Rules of Civil Procedure
(Ontario), particularly Rule 29.2 Proportionality In Discovery, and articles 22.14.4 and
22.14.5 of the Collective Agreement. I have decided not to make a finding on the
question of whether an arbitrator at the GSB has the power to grant the order requested
by the Union, since it is unnecessary to do so having regard to my decision on the
merits of the motion. Whether I have the jurisdiction to make the order as framed by the
Union appears to be an issue of first impression. In my view, the Employer has raised a
significant issue that is best left for a case where it is necessary to decide the question.
Assuming that I do have the power to make the kind of order requested by the Union, I
find that it would not be appropriate to exercise my discretion to make the order in the
circumstances of this case. My reasons for reaching this conclusion are as follows.
[9] As I noted at the outset, the Union wants to review the Employer’s ESI for
essentially two reasons. The first reason is to conduct a forensic analysis in relation to
the 65 documents listed on Schedule A. The 65 documents consist of many
Occurrence Reports (“ORs”), emails, reports, etc. The Union wants to review the life
cycle of these documents, particularly the electronic history of the ORs. It claims that a
forensic study will disclose information about the documents that is not evident on the
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face of them, such as whether a particular document was altered, when it was altered,
who altered it and who received the document. The Union suggests that there is reason
to believe that there is more to these documents that meets the eye and that a forensic
study is necessary to disclose the integrity, veracity and authenticity of the documents.
[10] The other reason the Union wants to review the Employer’s ESI is for the
purpose of forensically studying the wiping out of potentially relevant data in three
computers in the Bailiff’s office that occurred in September of 2017. The three
computers in question belong to Maplehurst and were scheduled for a refresh in 2017.
The refresh resulted in the complete wiping out of data on the hard drive. When it
considers the circumstances of this refresh, the Union believes that the Employer
deliberately wiped the data from the three Bailiff computers or that the Employer was
negligent in wiping the data from their hard drives. Union counsel argued that there was
“enough smoke” relating to the refresh of the three Bailiff computers to justify a forensic
analysis of the relevant ESI. He submitted that a forensic study might shed some light
on why there was the destruction of relevant evidence.
[11] The submissions on the motion were made in light of the extensive oral and
documentary evidence called on the merits of the grievances. The many witnesses
called by the Employer included managers and bargaining unit employees. A number
of these witnesses were cross-examined for many days. Indeed, it is fair to say that the
cross- examination of the Employer witnesses by Union counsel was thorough and
rigorous, leaving no stone unturned, including with respect to the documentary evidence
that was properly identified and introduced as exhibits. It was through cross-
examination that the Union had the opportunity to test the integrity, veracity and the
authenticity of the documentary evidence. The Union will have the opportunity in final
argument to make submissions on what weight if any should be given to any document
that is an exhibit in this proceeding. It is within this context that the Union wants to
conduct a forensic study to further test the integrity, veracity and authenticity of 65
documents. There is nothing in the evidence which suggests that there is more to these
documents than meets the eye. The Union does not point to anything it expects to find
with a forensic examination that might cast doubt on the integrity, veracity and
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authenticity of the 65 documents. In my view, the Union’s contention that the 65
documents require a forensic examination is based only on speculation. Without some
concrete evidence to suggest that the 65 documents cannot be accepted at face value,
there is no justification to warrant the extraordinary request for a forensic study of these
documents. It is also my view that the Union’s request for a forensic examination of the
65 documents amounts to nothing more than a request to engage in a fishing
expedition.
[12] Similar comments apply to the Union’s request as it relates the wiping out of
the data on the three Bailiff computers. I appreciate that the Union considers the wiping
out of the data on these computers to be a significant event. Union counsel has
indicated that the Union will likely take the position that the destruction of the data
should result in certain consequences for the Employer in the litigation of Mr. Pacheco’s
grievances. Extensive evidence was called about the circumstances relating to the
deletion of data from the Bailiff computers. The Employer volunteered documents
relating to this event and at the Union’s request I directed the Employer to produce
documents so as to obtain a complete a picture as possible of what occurred relating to
the refresh of the relevant computers and other computers at Maplehurst. The
witnesses called by the Employer on this issue and the relevant documents were again
subject to a thorough and extensive cross-examination. It is in this context that the
Union wants to conduct a forensic study to see if there is any information in the
Employer’s ESI that might shed some further light on why the data was destroyed. The
Union does not suggest that there is any such information in the Employer’s ESI or that
the Employer has failed to provide any of the relevant documents relating to this issue.
Again, the suggestion that there might be some new information about the Employer’s
reasons for the wiping out of the data on the Bailiff computers within the Employer’s ESI
is based only on speculation. It appears that the Union’s request is based on the hope
that it will discover the proverbial “smoking gun”. In my view, the Union’s request for a
forensic examination relating to the loss of data from the Bailiff computers also amounts
to a request to engage in a fishing expedition.
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[13] Both counsel recognized in their submissions that there has been a
movement away from the liberal or expansive approach to the production of documents
in the labour arbitration process as espoused by arbitrator Shime in Re Toronto District
School Board and C.U.P.E., Local 4400. It is more common now for arbitrators to apply
the principle of proportionality or, in other words, a cost benefit approach when
determining whether to direct a party to produce documents. This is particularity the
case when a production request is in relation to ESI. Applying this approach in the
instant case involves balancing such factors as cost and delay against whether the
information the Union is seeking in the Employer’s ESI will likely have probative value in
determining Mr. Pacheco’s discipline grievances. In addition to the concerns I have
expressed earlier about the Union’s request, I am satisfied that the appropriate
balancing of the relative considerations in this case favours the denial of the Union’s
request for access to the Employer’s ESI.
[14] As I indicated previously, the Union’s request for wanting a forensic study of
the Employer’s ESI is essentially based on speculation. In my view, it is quite likely that
a forensic examination of the Employer’s ESI will yield information of little or no
probative value for purposes of determining the central issues in dispute. On the other
hand, the cost of the forensic study is not insignificant and, more importantly, the delay
that such a study will create for the hearing of Mr. Pacheco’s grievances would be
considerable. The parties have different estimates on the cost of conducting the
forensic study contemplated by the Union. I suspect the Employer’s estimate of the
cost is too high and that the Union’s estimate is too low. Even with the Union’s
agreement to an email cap of 50, the cost of restoring backup tapes to retrieve emails
alone would cost $50,000.00. Given the other costs of the forensic study, it is quite
likely that the cost could run to at least $70,000.00. Even if the costs are shared
between the parties, there will still be a significant cost for the Employer. It is also
difficult to estimate the length of the delay that will be created if the motion were
granted. At this time the motion is only dealing with the threshold issue. I agree with
Employer counsel that the parties are unlikely to agree on the methodology for
conducting the forensic study and on what restrictions to apply in relation to privilege
and privacy issues. The failure to agree on these issues would lead to further litigation.
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Once the disputed issues were resolved, the conduct of the forensic study itself would
take time to complete. Given these considerations, I would estimate that it would be at
least four or five months after the motion was granted before the forensic examination
would be completed. This would amount to a significant delay in a proceeding that has
already taken a very long time. It is with these considerations in mind that I determined
that the cost and the burden of delay are disproportionate to the probative value of the
information that is likely to be discovered from a forensic study of the Employer’s ESI.
In other words, the benefits likely to be derived from the Employer’s ESI are outweighed
by the cost and delay that would be incurred as a result of a forensic investigation.
[15] For the foregoing reasons, the Union’s motion to obtain documentary
information from the Employer’s ESI is hereby dismissed.
Dated at Toronto, Ontario this 5th day of November 2019.
“Ken Petryshen”
Ken Petryshen, Arbitrator
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Appendix A
GSB Number OPSEU File Number
2012-0727 2012-0234-0066
2013-3214 2013-0234-0359
2014-0350 2014-0234-0061
2014-3305 2014-0234-0458
2014-3846 2014-0234-0508
2014-4854 2015-0234-0030
2015-0390 2015-0234-0058
2015-0494 2015-0234-0069
2015-0495 2015-0234-0070
2015-0496 2015-0234-0071
2015-0913 2015-0234-0085
2015-0914 2015-0234-0086
2015-0915 2015-0234-0087
2015-0916 2015-0234-0088
2015-1310 2015-0234-0108
2015-1311 2015-0234-0109
2015-1312 2015-0234-0110
2015-1313 2015-0234-0111
2015-1314 2015-0234-0112
2015-1315 2015-0234-0113
2015-1316 2015-0234-0114
2015-1317 2015-0234-0115
2015-1318 2015-0234-0116
2015-1319 2015-0234-0117
2015-1320 2015-0234-0118
2015-1321 2015-0234-0119