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HomeMy WebLinkAbout2019-0169.Policy.22-10-14 Decision GSB# 2019-0169; 2019-0622; 2019-1920; 2019-2978; 2020-1096 UNION# G-012-19 COR; G-039-19 BOW; G-140-20-BFF; G-014-20-BOE; G-039-20-BOW IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Policy) Union - and - The Crown in Right of Ontario (Metrolinx) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Simon Blackstone and Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Co-Counsel FOR THE EMPLOYER Bonnea Channe and Mark Van Ginkel Filion Wakely Thorup Angeletti LLP Co-Counsel HEARING October 7, 2022 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 - 2 - Interim Decision [1] There are four individual grievances and one policy grievance before me, all challenging a portion of the Metrolinx Fitness for Duty Policy (the “Policy”), which was amended in early 2019 to address cannabis use following its legalization. This interim decision deals with procedural issues involving particulars and the exchange of documentary materials. [2] The Policy grievance asserts that Metrolinx (the “Employer”) engaged in an unreasonable exercise of management rights and violated the collective agreement, the Ontario Human Rights Code (the “Code”), and the Charter of Rights and Freedoms (the “Charter”) by imposing an absolute prohibition on the off-duty use of cannabis for workers employed in safety sensitive positions. That grievance also asserts that the Policy fails to provide for the accommodation of those using medical cannabis, contrary to the collective agreement, the Code, and the Charter. [3] The four individual grievances concern the application of this portion of the Policy to three grievors. The ATU (the “Union”) essentially alleges that the Employer improperly removed the grievors from their safety sensitive positions when it deemed the grievors unfit to work in those positions, doing so it alleges, by improperly applying an absolute prohibition on the off-duty use of cannabis, including medical cannabis. [4] The parties convened on August 11, 2022 to deal with various preliminary and/or procedural issues. Following discussions that day, the Employer was to provide any further particulars or relevant production by September 15, 2022. It was also to identify any issue concerning the withholding of production of arguably relevant material based on a claim of privilege, which claim was to be addressed on the following hearing date. [5] The parties have agreed to proceed through the use of will-say statements for their evidence in chief. Both parties have indicated that they also intend to adduce expert evidence, initially through reports, with cross-examination and appropriate re- examination to be available. Further to the disclosure directed on August 11, 2022, counsel were to confer and consider whether they could agree to a timetable for the filing of will-say statements, including expert reports. The following hearing date, October 7, 2022, was to be used to confirm/review/establish a schedule for the exchange of will-say statements, including expert reports, keeping in mind the scheduled date of December 7, 2022. Particulars and Procedure [6] On October 7, 2022, the Union took the position that the Employer continued in its failure to provide full particulars and production. The Union argued that the Employer had therefore confirmed that it had no evidence with respect to various issues and it sought an order that the Employer was limited from adducing any evidence relating to any matter not now fully particularized. The Union reviewed the correspondence - 3 - between the parties and the Union’s specific requests for particulars that it asserted were left unaddressed by the Employer. Specifically, the Union asserted that the Employer had failed to provide any particulars regarding any of the safety concerns purportedly directing this portion of the Policy including, for example, the considered safety gains, safety issues, alternate measures considered, or the nature and workplace effects of specific prescription uses. [7] The Union argued that, absent these particulars, its expert would initially have to make various assumptions without knowing whether those factors were part of, or relevant to the Employer’s considerations in developing its Policy. The Union argued that it would be placed in the position of providing an expert report that would not address issues raised and/or considered by the Employer and that it would likely be left in the position of having to provide significant reply evidence. Such a process would be both unfair and inefficient, argued the Union, asserting that the Employer has the onus of establishing the reasonableness of the Policy, including any issues or concerns that an absolute ban on cannabis use was intended to address if working in a safety sensitive position. [8] It was the position of the Employer, referring to its most recent correspondence of September 29, 2022, that it had “provided the particulars that we have”. Counsel confirmed that the Employer was not intentionally withholding particulars or arguably relevant documents. Considerable production had been provided. At the same time, the Employer reserved its right to provide further particulars and/or documents. The Employer argued that the Union’s specific requests went beyond particulars and sought a pre-hearing summary of the Employer’s evidence and/or an agreement as to the Union’s characterization of the Employer’s particulars. Neither were appropriate nor required from the Employer, it argued, and it remained open to the Union to object to any evidence adduced relating to a material fact not particularized. [9] In its particulars the Employer has asserted that the provisions in the Policy regarding cannabis use and disclosure of the use of impairing medication, including medical cannabis, were implemented due to safety concerns. It has also asserted that the Policy does not prohibit medically authorized use of medical cannabis and that any issue of fitness for work pursuant to the legitimate use of impairing medications is a matter dealt with by the third-party medical assessor. Its particulars do not provide an indication of the considered effects of any cannabis use giving rise to the prohibition, that is, the “why” underlying these provisions in the Policy. Those are matters likely to be addressed by the expert evidence. [10] At the conclusion of the October 7, 2022 proceedings, and prior to considering the issues raised above, I directed that the Union’s will-say statements for its ‘fact’ witnesses be provided and filed by no later than November 2, 2022. The Employer’s will-say statements for its ‘fact’ witnesses are to be provided and filed by no later than November 21, 2022. Following that exchange, the parties are to identify, by no later than November 30, 2022 whether cross-examination of any ‘fact’ witness is required. (The use of the term ‘fact’ witnesses refers to witnesses - 4 - having knowledge of the circumstances giving rise to the issues in dispute as distinct from expert opinion evidence.) [11] Regarding the provision of particulars, I am not prepared to make an order at this stage as to the scope or characterization of the particulars provided or any limitation on either party’s ability to call relevant evidence. The purpose of particulars is to ensure that the opposing party is aware of the case it has to meet. The Employer has set out, in a general way, what it did in developing the impugned provisions of its Policy. Should an issue arise as to the admissibility of evidence, any objection by the Union can be dealt with at that time. The Employer is on notice that the Union is likely to object should the Employer seek to adduce evidence that has not been properly particularized. [12] The parties had earlier agreed that their expert reports would be exchanged in the same order as the will-say statements for the ‘fact’ witnesses. The gist of the Union’s current argument speaks less to the provision of particulars (the “who, what, when, and how”) and more to the Employer’s decision not to disclose anything regarding the nature of the opinion evidence it intends to rely on. [13] I raised with the Employer on October 7, 2022 whether it would agree to provide its expert report prior to receiving the Union’s expert report. It declined. Having now considered the issue regarding particulars, further directing the exchange of will- says statements of the ‘fact’ witnesses, and having regard to the mixed onus in this case, I hereby direct the Employer to provide its submissions in writing as to why I should not now order the Employer to file its expert report(s) prior to the filing of the Union’s expert report(s). Those submissions are to be filed by the Employer by no later than Friday, October 28, 2022. Production – Privilege [14] The only documentary material identified and not yet produced are copies of drafts of the Policy. The parties disagree as to whether those drafts are arguably relevant to the issues in this proceeding. The Employer also reserved its right to assert solicitor-client privilege with respect to that material. [15] It is the case that significant portions of the Policy are not in issue before me. The Policy has also been in effect for some time, well prior to the introduction of the impugned provisions, which occurred after the legalization of cannabis use in late 2018. However, I am satisfied that any draft of those specific provisions relating to cannabis use and disclosure of medical cannabis use (as an impairing medication) that were introduced into the larger Policy in early 2019 are arguably relevant to this proceeding, in that they may speak to the factors considered by the Employer in developing this aspect of its Policy, which in turn may speak to the reasonableness of the Policy in accordance with the factors set out in the decision in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73. To the extent that the Employer argued that the relative value of the material was to be weighed against other considerations, including cost and effort, I am not persuaded - 5 - that it would be either costly or difficult to find and/or produce this material and that those other considerations do not outweigh the appropriateness of producing material that is arguably relevant to the issues in dispute. [16] Being arguably relevant to the issues in dispute, those more limited drafts, or excerpts from more broadly considered drafts are to be produced subject to any claim of solicitor-client privilege. The Employer is to advise by no later than Monday, October 24, 2022 as to whether it is claiming solicitor-client privilege with respect to this material. If so, at the same time, the Employer is to advise the Union why the claim of solicitor-client privilege is being asserted. Should there be any remaining dispute as to whether the documents are privileged, the parties are to be prepared to argue that issue on November 2, 2022. [17] The parties are directed to review and comply with the various directions herein. Dated at Toronto, Ontario this 14th day of October, 2022. “Marilyn A. Nairn” _______________________ Marilyn A. Nairn, Arbitrator