HomeMy WebLinkAbout2021-1734.Moreira.22-12-12 Decision
GSB# 2021-1734
UNION# G-095-21-RFA
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Moreira) Union
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The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE Marilyn A. Nairn Arbitrator
FOR THE UNION Max Halparin
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Diane Laranja
Filion Wakely Thorup Angeletti LLP
Counsel
HEARING December 9, 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
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Order
[1] This matter concerns an arbitration to determine whether the Employer had just
cause to discipline the above-noted Grievor.
[2] The Union has requested pre-hearing disclosure of certain documents and
materials. These documents and materials relate to the Employer’s allegations of
misconduct by the Grievor, which gave rise to the Grievance.
[3] The Employer takes the position that these documents are sensitive as they contain
personal and/or sensitive material about current and former employees of the
Employer (including non-bargaining unit members) and contain the identity of
individuals who hold an expectation of confidentiality and have not consented to
their identity or statements being disclosed to third parties.
[4] I hereby exercise my authority pursuant to section 48(12) of the Labour Relations
Act, 1995 to order disclosure of the following documents and materials, subject to
the conditions outlined in this Order.
1. The Investigation Report and all non-privileged materials that were before the
investigator in the Employer's possession in preparing the Investigation Report
shall be produced by the Employer to the Union. The Union reserves the right
to assess and if necessary contest the claims of privilege. The Union also
reserves the right to make further production requests.
2. The production of the documents pursuant to paragraph 1 above will be subject
to the following conditions:
a. Counsel for the Employer will send the documents to counsel for the
Union in electronic format. Counsel for the Union will be permitted to
make a physical copy of all documents for his use (and any additional
copies as necessary for use by any Union co-counsel). Electronic
documents will not be forwarded, save and except as per 2(b).
b. Counsel for the Union will be permitted to forward the documents in
electronic format to Union advisors on the condition that the Union
advisors (i) will not show the documents to anyone for any purpose other
than preparation for arbitration and, (ii) will not discuss the contents of
the documents with anyone other than Union counsel, the Grievor, Union
representatives or other persons for any purpose other than preparation
for arbitration, (iii) will not make any physical or electronic copies of such
documents, and (iv) will undertake to delete any and all electronic and
physical copies of the documents produced at the conclusion of the
hearing.
c. Union counsel will be permitted to share the contents of the documents
produced with the Grievor (either in-person or through the “share screen”
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function of a video conferencing app such as Zoom or Teams) but will not
provide copies of the documents to the Grievor. If the aforementioned
“share screen” function is used to share the contents of the documents
produced with the Grievor, there shall be no recording of the documents
shared in the video conferencing app. The Grievor must undertake not to
discuss the contents of the documents with anyone other than Union
counsel, Union representatives or other persons for any purpose other
than preparation for arbitration.
d. Any third party in receipt of information contained in these materials is to
keep such information strictly confidential and not otherwise share or
discuss such information.
e. At the conclusion of the hearing, all copies of the documents created by
Union counsel in compliance with this Order will be destroyed except for
a copy of the documents that Union counsel will retain in their files.
Dated at Toronto, Ontario this 12th day of December, 2022.
“Marilyn A. Nairn”
_______________________
Marilyn A. Nairn, Arbitrator