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HomeMy WebLinkAbout2019-2537.Complainant.20-12-10 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#2019-2537 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 (Complainant) Association - and – The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Owen V. Gray Arbitrator FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER FOR CANADA LIFE Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel Dan Shields Shields, O’Donnell MacKillop HEARING Counsel November 25, 2020 - 2 - Decision [1] This decision deals with a dispute between the parties concerning pre-hearing production of documents by the Employer. In part, the dispute concerns an Underwriting Agreement between the Employer and Great-West Life (now Canada Life) dated November 13, 1997, of which the Employer has produced a copy with some portions redacted. The Association’s concern about the redactions led to the scheduling of a hearing. Canada Life says that the redacted portions of the document should remain redacted because they contain proprietary information and should be kept confidential. The employer supports that position. There is a dispute about whether Canada Life should be permitted to formally intervene on this issue. However, the Association did not oppose the informal participation of counsel for Canada Life in the hearing. Discussions in that hearing narrowed the production issues as I record here. Context [2] The proceeding in which the production issues arise is the arbitration of a dispute filed by the Association concerning the Employer’s dismissal of the complainant on or about October 2, 2019. In its letter dismissing the complainant, the employer said that the complainant had submitted false claims “through Great West Life (GWL)” in relation to his coverage under what the letter described as “the OPS benefit plan administered by GWL.” In making its decision to dismiss the complainant, the Employer relied in part on admissions allegedly made during a meeting the complainant had with a GWL representative on or about March 8, 2018. [3] One basis of the Association’s challenge to the dismissal is that the complainant was not notified of his alleged right to representation by an Association representative at the meeting with the GWL representative. It says that that right arose under Article 7.1 of the parties’ collective agreement, which provides: 7.1 Where a supervisor or other Employer representative intends to meet with an employee: (a) for disciplinary purposes; or (b) to investigate matters which may result in disciplinary action; or - 3 - … the employee shall have the right to be accompanied by and represented by an Association representative. The Employer shall notify the employee of this right and set the time and place for the meeting. The Association says that the GWL representative was an “Employer representative” within the meaning of Article 7.1, by virtue of the nature of the relationship between GWL and the Employer. It characterizes that relationship as an “Administrative Services Only” arrangement in which GWL administers a plan under which risk and liability for payment of the benefits rests entirely with the Employer. The Employer denies that the GWL representative was an “Employer representative” under Article 7.1 on the occasion in question. It also disputes that its relationship with GWL concerning the benefits in question was an “Administrative Services Only” arrangement. [4] The Association is troubled by the Employer’s denial of its characterization of the arrangement, because the relationship was characterized that way in Union Grievance, 2005 CanLII 54840, and Union, 2009 CanLII 15416. At this point, however, I am not called upon to determine whether either of those decisions precludes the Employer’s denial here. Nor am I called upon to determine at this point whether proof that the arrangement is as the Association says would be proof, without more, that the complainant’s meeting with the GWL representative was one to which Article 7.1 applied. The issue at hand is the scope of the Employer’s obligation to produce documents arguably relevant to the issues in dispute in these proceedings, including the nature of the relationship between the Employer and GWL at the relevant time. [5] In correspondence with Employer counsel prior to the hearing, AMAPCEO counsel said AMAPCEO seeks production of the current policy, all documentation delineating the responsibilities of the insurance company and the employer, all documentation showing who bears the risk and liability for payment of benefits and all documentation showing payments made to the insurance company by the employer and the reason for those payments. [6] As a result of discussions in the hearing, there seems to be no dispute that the Association is entitled to production from the Employer, prior to a hearing on the merits - 4 - in this proceeding, of all documents in the Employer’s possession, custody or control that are arguably relevant to any matters in issue. [7] It seems common ground that the benefits in respect of which the complainant is alleged to have submitted false claims are benefits under what the collective agreement describes as “Supplementary Health and Hospital” coverage. There seems to be no dispute that the Association is entitled to production of the “current policy” with respect to that coverage. Employer counsel believed she had produced the “current policy” to AMAPCEO counsel. The Association believed that she had not, because documents produced contained benefit descriptions that did not appear to it to be “current.” The parties agreed that “current policy” in this context would not necessarily refer just to a single document labeled “policy” but, rather, to the collection of documents (however labelled) that, when read together, set out the policy terms in effect at whatever time is regarded as “current” time. For purposes of these proceedings the current time would be any time in the period or periods in respect of which the Employer alleges that the complainant submitted false claims. [8] There seems to be no dispute that a document would be arguably relevant and producible if and to the extent that it delineates the responsibilities of the insurance company and the employer in respect of Supplementary Health and Hospital coverage as of the time of the impugned meeting between the GWL representative and the complainant, including any document that shows who, as between GWL and the Employer, bore the risk and liability for payment of benefits in respect of that coverage as of that time. The Association acknowledges that anything that specifies only how the insurance company is compensated for its services in administering that coverage would not be relevant, and that “documentation showing payments made to the insurance company by the employer and the reason for those payments” would only be relevant if and to the extent that they fall within the description of relevant documents in the preceding sentence. It also appears the Association is content that portions of otherwise relevant documents be redacted if the redacted contents are not are not themselves either arguably relevant as aforesaid or needed to understand the arguably relevant portions. - 5 - [9] Part of the Association’s concern about the redactions arose from its inability to find in the document the “no-risk provision” to which the following unredacted portion of the Underwriting Agreement seems to refer: Risk Charges The Company will waive the risk charge due to the no-risk provision. Neither the Employer nor Canada Life could identify anything in the unredacted text that could be the “no-risk provision” to which this refers. They had a similar difficulty when I asked about the “Hold Harmless” provision to which the following passage refers: The obligation of the Group Policyholder is to pay premiums as due under the policy numbers referred to above, and to comply with the terms of the “Hold Harmless” provision as outlined by the underwriting basis in this agreement. Although there is a provision under which GWL agrees to indemnify and save the Crown harmless with respect to certain claims that might arise from GWL’s conduct, neither the Employer nor Canada Life could identify in the unredacted text any provision that is either entitled “Hold Harmless” or could be said to impose on the Group Policyholder (that is, the Employer) an obligation to hold GWL (or anyone) harmless. [10] In any event, the Employer and Canada Life say that nothing in the redacted portions of the Underwriting Agreement produced by the Employer could be characterized as being the, or a, “no-risk provision,” or as creating or defining the, or a, “hold harmless” obligation of the Employer. [11] It appears that if the redacted portions of the Underwriting Agreement are as they were described to her before and during the hearing, AMAPCEO counsel is content that they remain redacted, but may wish there to be a process to verify that the redacted portions are as they have been described. It may be that the Employer wishes to redact portions of other producible documents that it has not yet produced, to similarly protect commercially sensitive information, or information about benefits recipients, that is not itself relevant. It seems premature to devise and enter into a process to review the propriety of redactions until the Employer has produced all the documents it intends to redact. - 6 - [12] As I understand it, Employer counsel is of the view that there are categories of document in its possession that are repetitive with respect to arguably relevant matters – that is, that the evidentiary value of any one document in the category would be the same as any of the others, which would differ only in irrelevant details – and she would like to have the option of procuring example documents in those cases. Order [13] In these circumstances, I order and direct that, with respect to “Supplementary Health and Hospital” coverage referred to in the collective agreement, the Employer is to produce to Association counsel a) the document or documents in its possession, custody or control that constitute the insurance policy or policies current during the period in issue, as described in paragraph 7 above, and b) all documents in its possession, custody or control delineating the responsibilities of GWL and the Employer with respect to that coverage as of March 2018, including all documentation showing who bore the risk and liability for payment of benefits under coverage at that time. [14] In the event that the Employer wishes to redact document contents that it considers either a) legally privileged from production, or b) irrelevant and sensitive, it may do so provided that it also provides a written description of each redacted portion sufficient to show which of these two bases for redaction is relied upon and the facts that it says support redaction on that basis. Such a description shall also be provided with respect to each of the redactions in the Underwriting Agreement already produced, or in any less redacted copy of that document that it may choose to substitute. In the event that the Association challenges any redaction, there will be a further hearing to deal with such challenges. [15] In the event that the Employer considers the relevant content of a producible document or documents to be the same, in substance, as that of another document that it has produced or intends to produce, it need not produce such duplicative document(s) for the time being, provided that it produces a written description of each such - 7 - unproduced duplicative document sufficient to identify the differences between the duplicative document(s) and the produced document said to exemplify them sufficient to show why the Employer says those differences are irrelevant. In the event the Association thereafter nevertheless demands production of any allegedly duplicative document and the Employer resists production, there will be a further hearing to deal with such disputes. [16] The production of documents pursuant to this order shall be treated as subject to an undertaking by the Association on its own behalf and on behalf of the complainant that they will be used only for the purpose of these proceedings and for no other purpose. Dated at Toronto, Ontario this 10th day of December, 2020. “Owen V. Gray” Owen V. Gray, Arbitrator