HomeMy WebLinkAbout2020-1124.Gomes.21-10-26 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2020-1124
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Gomes) Association
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The Crown in Right of Ontario
(Ministry of Seniors and Accessibility) Employer
BEFORE Diane L. Gee Arbitrator
FOR THE
ASSOCIATION
Nadine Blum
Goldblatt Partners LLP
Counsel
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
CONFERENCE CALL October 18, 2021
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Decision
[1] This decision decides a motion brought by the Association to recall a witness.
[2] Nathan Gomes applied for the position of permanent Team Lead, Policy and
Partnerships, Seniors Policy but was screened out of the interview process. A formal
Dispute was filed on behalf of Mr. Gomes on April 22, 2020, in which it is alleged that
the competition was unfair. Within the body of the Dispute, the Association sought
disclosure of all documents related to the case including “the rating methods used for
screening and the relative weight accorded to each element.”
[3] Included in the documents produced by the Employer were two spreadsheets; one
showed a single set of scores with the top eight scores ranked 1 – 8; and the other
showed two sets of scores for only 13 of the candidates, with average scores
supplied in the last column. The Association understood these spreadsheets to be
created as part of the resume screening process but otherwise had no information as
to how, when or by whom they came to be created.
[4] The Employer adduced its evidence first and called Harriett Grant as a witness. Ms.
Grant’s evidence was given over two days: May 25 and June 7. Ms. Grant testified
that she scored the candidates and came up with 13 candidates who scored over
85%; the threshold a candidate had to meet to be interviewed. The documents
provided led the Association to contend that the second individual who scored the 13
candidates, Mr. Embuldeniya, had fudged his scores to ensure that only those eight
candidates he and Ms. Grant had agreed should be considered, achieved an
average score over 85%.
[5] After the close of Ms. Grant’s testimony, the Employer provided the following
additional documents to the Association:
1. A calendar invitation for 2:00 – 2:30 on February 27, 2020, from Ms. Grant
to Mr. Embuldeniya.
2. Emails sent out to the top eight candidates from Ms. Grant sent between
4:00 and 5:00 p.m. on February 28. 2020.
3. An email from Ms. Grant to Sharyn Haniff in Human Resources dated April
23, 2020.
4. The spreadsheet bearing only Ms. Grant’s scores in unredacted form with
associated metadata showing the document was last modified February
28, 2020, at 4:55 p.m.
5. An email dated May 12, 2020, from Ms. Grant to Ms. Haniff (HR) attaching
the spreadsheet bearing both Ms. Grant and Mr. Embuldeniya’s scores in
unredacted form and bearing the associated metadata showing it was last
modified on May 12, 2020, at 12:12 p.m.
[6] As a result of obtaining the above-noted documents, the Association formed an
alternative theory that Mr. Embuldeniya did not score the candidates at all, rather, he
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and Ms. Grant simply agreed on the top eight candidates during discussions and no
actual scoring was done until May 2020 when Mr. Embuldeniya was asked for his
scores.
[7] Days after the documents listed above were produced the following additional
documents were produced to the Association:
6. Emails between Ms. Haniff and Ms. Grant written during the period that
Ms. Haniff was preparing the competition documents for disclosure to the
Association.
7. Notes entitled “Harriett – Skype Call 10”54 – May 6, 2020.”
[8] The Association seeks to recall Ms. Grant for the purposes of questioning her about
the information found in the new documents and to put its alternative theory to her.
The Association relies on OPSEU (Pacheco) and The Crown in Right of Ontario
(Ministry of Community and Safety and Correctional Services) 2018 CanLII 55858
(ON GSB) and Amalgamated Transit Union – Local 1587 (Union) and The Crown in
Right of Ontario (Metrolinx) 2018 CanLII 109245 (ON GSB) in support of its position
the Board has the jurisdiction to allow the recall of a witness and the test to be
applied as stated at paragraph 22 of the Metrolinx case. The Association relies on
excerpts from Brown & Beatty at 3:3223 in respect of the rule in Brown & Dunn and
its obligation to put its theory of a case to the witness to provide them with an
opportunity to respond. In reply to the Employer’s reliance on litigation and labour
relations privilege, the Association relies on The Catalyst Capital Group Inc. v. West
Face Capital Inc., 2021 ONSC 125 (CanLII) in which the court applied an exception
to the application of litigation privilege where disclosure would afford evidence of
misconduct or abuse of process of the party claiming the privilege. Catalyst Capital
Group is also relied upon by the Association in support of its position that privilege
has been waived. In respect of labour relations privilege, the Association relies on the
section in Brown & Beatty at 3:4341 on Labour relations communications and 3:1400
on Pre-hearing disclosure to argue that it is determined on a case-by-case basis and
is not a categorical class of documents.
[9] The Employer opposes the Association’s request to recall Ms. Grant on the basis that
such would be an extraordinary departure from the norm and ought to be permitted in
only extreme circumstances that are not present. In this regard, the Employer relies
on Metrolinx, supra, at paragraph 21. The Employer submits the screening process
in respect of those individuals Ms. Grant had scored above 85%, in respect of which
the documents in issue relate to, is not relevant to the issue in dispute; namely why
the Grievor was not screened in for an interview. With respect to the February 27
meeting invitation, it is argued that the Association has already extensively
questioned Ms. Grant about the timing of the meeting between her and Mr.
Embuldeniya and it was known at the time of her testimony that they had met on
February 27. This document does not raise any new line of questioning.
[10] The Employer argues the documents in issue are covered by either or both of
litigation and labour relations privilege and are, for that reason, inadmissible. The
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April 23, 2020, email was sent the day after the grievance was filed. The Dispute
requested the production of documents. Ms. Grant was communicating with an HR
representative and providing her with information necessary to respond to the
Dispute. The Employer submits the information was sought and provided to assess
the strengths and weaknesses of the case. Discussions in preparation for a meeting
and assessing the case are subject to litigation privilege. In support, the Employer
relies on Ontario Public Service Employees Union (McCormick) and The Crown in
Right of Ontario (Ministry of Transportation), November 29, 2006, Barry Stephens,
where, at page 5, the Vice-Chair noted that documents created as part of the
grievance/mediation/arbitration process fall within the category of litigation privilege
and are excluded from production. The Employer notes that, in McCormick, “notes re
mediation” and “notes from grievance meeting” as well as a document containing
“discussion regarding strategy for pending arbitration” were all found to be covered
by litigation privilege. The Employer submits the April 23, 2020, email between Ms.
Grant and Ms. Haniff of Human Resources, as well as emails that flow from it, are
subject to litigation privilege as they discuss the strengths and weaknesses of the
case. the Employer denies that it has waived privilege and relies on The Catalyst
Capital Group Inc., supra, at paragraph 232 in support of its position that waiver
applies when a party seeks to rely on a document to its benefit but then attempts to
rely on privilege to prevent the party opposite from testing the evidence.
[11] The Employer also relies on the Wigmore criteria, widely quoted in court and tribunal
decisions from the original in Wigmore on Evidence, read as follows (emphasis in
original):
…four fundamental conditions are recognized as necessary to the establishment
of a privilege against the disclosure of communications:
1. The communications must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be
sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of the
litigation.
Only if these four conditions are present should a privilege be recognized.
[12] The Employer also argues that documents created after the Dispute was filed are not
relevant to what transpired during the selection process, all of which transpired prior
to the filing of the Dispute. The Documents sought could not provide any insight into
what occurred and, for that reason, are not admissible. In support, the Employer
relies on Ontario Public Service Employees Union (Sin) and The Crown in Right of
Ontario (Liquor Control Board of Ontario), June 2, 2008, Dissanayake, in which, at
page 4, the Board expressed the test to be applied in deciding whether or not to
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admit subsequent event evidence was “if subsequent event evidence helps to shed
light on the issue before the arbitrator, the evidence is admissible.” The Employer
submits the events in dispute had already occurred by the time the documents in
issue were created and could not shed light on the issue in dispute.
Decision
[13] The Association made requests of the Employer to produce arguably relevant
documents within the body of the Dispute. All arguably relevant documents should
have been produced by the Employer prior to the commencement of the hearing.
During the hearing, Association counsel, on several occasions, questioned the
Employer as to whether everything had been produced. The Employer produced the
documents identified above after Ms. Grant testified. I find it feasible that the
documents produced by the Employer after Ms. Grant testified led the Association to
develop the alternative theory that Mr. Embuldeniya scored the candidates after the
interviews were set up. I will refer to this theory as the “new theory.”
[14] If the Association pursues the new theory in closing argument, it will necessarily
argue that Ms. Grant gave false testimony and essentially participated in a fraud.
That is a very serious allegation. The rule in Browne v. Dunn provides that, where a
party seeks to contradict a witness on a point, the contradiction must be put to the
witness in cross-examination in order that they may offer an explanation. Ms. Grant
is entitled to be afforded the opportunity to answer to the Association’s new theory
and thus, subject to dealing with the Employer’s additional objections, I would permit
her to be recalled.
[15] The Employer challenges the Association’s request to recall Ms. Grant by arguing the
documents in issue are subject to litigation privilege, labour relations privilege and the
Wigmore principle. The Association disputes the documents are subject to any type
of privilege but, in the alternative, submits the Employer has waived any privilege that
might apply. The Employer produced the documents with no claim that they were
subject to any type of privilege. Waiver is a legal doctrine which says that where a
person who is in possession of a privilege consciously decides to give it up, the law
will hold them to that decision.
[16] In the present case, the documents were produced by the Employer to the
Association with no caveat that the documents were confidential or subject to any
form of privilege. Privilege was not raised until the Association sought to recall Ms.
Grant. In the absence of the Employer having stated at any time prior to the motion
that the documents were privileged, it is my determination that any privilege that may
have applied, was waived.
[17] The Employer argues the documents are irrelevant for two reasons. First, it is
argued they were created after the events that underly the grievance and thus are
not relevant to the actual events. I find the documents in dispute shed light on the
process that was undertaken in carrying out the competition and are therefore
relevant even though created after the events in question. The Employer further
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argues the documents are not relevant as they speak to the process of who would be
granted an interview and the issue before me is the screening in process. While the
Grievor was not screened in for an interview, and thus potentially not affected by later
events, the Association submits that the entire process was so badly flawed the
entire competition must be set aside. As such, the documents are relevant to a
position the Association takes in this matter.
[18] For the foregoing reasons, I grant the Association’s motion to have Ms. Grant
recalled.
Dated at Toronto, Ontario this 26th day of October 2021.
“Diane Gee”
________________________
Diane Gee, Arbitrator