HomeMy WebLinkAbout2009-1803.Farrell.10-10-21 Decision
Commission de
Crown Employees
Grievance
UqJOHPHQWGHVJULHIV
Settlement Board
GHVHPSOR\pVGHOD
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 7pO
Fax (416) 326-1396 7pOpF
GSB#2009-1803
Union#G-4609-BO
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Farrell)
Union
- and -
The Crown in Right of Ontario
(Metrolinx - GO Transit)
Employer
BEFOREVice-Chair
Loretta Mikus
FOR THE UNION
Ian Fellows
Green & Chercover
Counsel
FOR THE EMPLOYER
Glenn Christie
Hicks Morley Hamilton Stewart Storie LLP
Barristers and Solicitors
HEARING
September 22, 2010.
- 2 -
Decision
[1]7KLVDZDUGGHDOVZLWKWKH8QLRQ¶VREMHFWion to certain evidence obtained under a GSB
subpoena which was presented to the grievor during her cross-examination. The Union asserts
these documents should not be admitted for reasons that will be addressed below.
[2]The grievor, Kim Farrell, had been employed as a bus driver with Metrolinx Go Transit
since 2005. She was terminated from her employment in April of 2009 for allegedly using her
cell phone while driving her bus from Toronto to Hamilton. The allegations arose from a
customer complaint about her rude conduct on that route and the fact she was texting a message
on her cell phone while driving. Attached to that written complaint was a photograph taken by
the customer on her cell phone. That photograph shows the grievor with her right hand on the
steering wheel while she was looking down at a cell phone in her left hand.
[3]The Employer called the grievor to a meeting to discuss this complaint and the grievor
denied using her phone on the day in question.When she was confronted with the photograph,
she stated that she had used her phone to check the time but maintained that she had not used it
for any other purpose. She specifically denied texting messages on her phone while driving the
bus. The Employer determined that termination was appropriate and the grievor filed a
grievance challenging that termination. These evidentiary matters arose after several days of
hearing and, as stated previously, during her cross-examination.
[4]There are some background facts that must beLQFOXGHGEHIRUHFRQVLGHULQJWKH8QLRQ¶V
position in order to place them in the proper context.
[5]After her termination the grievor applied for Employment Insurance benefits and her
application was refused. She appealed and, in preparing for that appeal, she answered several
TXHVWLRQVUHODWHGWRWKH(PSOR\HU¶VVWDWHPHQWRQthe Record of Employment that she had been
terminated for misconduct. She answered in the negative when asked whether she had
committed a safety infraction, whether there had been any witnesses to the alleged infraction and
ZKHWKHUWKHUHKDGEHHQWKHSRVVLELOLW\RILQMXU\WRDQ\SHUVRQRUDQ\GDPDJHWRWKH(PSOR\HU¶V
property. When asked why she had been terminated she stated that she had signed a Conditions
of Continued Employment in which she had agreed to operate her vehicle in a safe manner for a
period of 21 months or face additional discipline. She told the referee that she had completed 14
of those 21 months and that the Employer had used this alleged conduct to invoke the terms of
that earlier agreement to discharge her. It should be noted at this time that the grievor had also
provided the Referee with her cell phone records but advised him that she had been told that
Rogers would only supply her text message records under subpoena.
[6]These events occurred over the period of time from her termination in August to the
denial of her appeal in November. In December the grievor wrote a letter to the Employer in
which she acknowledged that she had used her cell phone to send text messages and had acted in
a rude manner to a customer. She acknowledged this conduct was unacceptable and expressed
regret for having conducted herself in that manner. She also extended an apology to the
customer who had filed the complaint.
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[7]In the meantime, in preparation for the arbitration hearing scheduled for January of 2010,
Mr. Christie, counsel for the Employer, wrote to Mr. Fellows, counsel for the Union, that he
ZRXOGUHTXLUH³DOOFHOOSKRQH records, including records of the dates and timing of all texts, from
Rogers in order to adequately prepare for the hearLQJ´,QWKDWOHWWHU0UChristie noted that the
Employer had received her phone records but no information related to text messages received or
sent. He also noted that it was his understanding that Rogers would only produce them under
subpoena or an Order of the Board. Mr. Christie suggested the parties jointly request an Order
from the Board directing Rogers to provide any documentation relating to text messages from
her cell phone number for the period August 11 to August 12, 2009.Mr. Christie also suggested
that the order include stipulations that the records remain confidential by counsel and that their
use be limited to the purposes of the hearing.
[8]By letter dated December 10, 2009, Mr. Fellows advised Mr. Christie that since Ms.
)DUUHOOGLGQRWGLVSXWHWKDWVKHHQJDJHGLQWKHPLVFRQGXFWDOOHJHG³LWZDVQRWQHFHVVDU\WRGHDO
ZLWKWKLVLVVXH´0U&KULVWLH then requested a subpoena from the Board and had it served on
Rogers in accordance with established practice. He received a telephone call from Rogers
concerning the scope of the subject matter and requesting that they provide the documents
without the requirement to attend. Mr. Christie agreed and the documents at issue were duly
delivered to Mr. Christie in preparation for the hearing.
[9]At the hearing on March 23, 2010, Mr. Christie asked the grievor how many times she
had texted during the Toronto-Hamilton route. She could not remember. When pressed for an
estimate, she was unable to respond. It was at this point that he attempted to produce the records
he had received from Rogers and Mr. Fellows objected. It was the position of the Union that
these documents were inadmissible on the following grounds:
1.The Union had requested disclosure of all documents in the possession, power or
control of Metrolinx which were arguably relevant to the matters before the Board,
including any notes, letters, e-mails, memoranda and any other documents, as soon as
possible and well before the next day of hearing. It also requested a list of the
witnesses it intended to call. The documents concerning the text messages were not
LQFOXGHGLQWKH(PSOR\HU¶VUHVSRQVH7KH8QLRQFKDUDFWHUL]HGWKH(PSOR\HU¶VDFWLRQV
as litigation by ambush, a practice that should not be encouraged by this Board.
2.7KH(PSOR\HU¶VDFWLRQVDUHDYLRODWLRQRIWKHPersonal Information Protection and
Electronic Documents Act S.C. 2000, c.5.
3.7KH(PSOR\HU¶VDFWLRQVFRQVWLWXWHDQDEXVHRISURFHVV7KH(PSOR\HU¶VPHWKRGRI
obtaining these documents deprived the grievor of her right to privacy. He was in
possession of the documents before she had an opportunity to take steps to preserve
her rights. Additionally, it was argued that the Employer improperly used the
subpoena to obtain an Order from this Board. The procedure that has been adopted
and applied by the GSB involves a motion for a Board order having regard to the
submissions of the parties. This subpoena was used to circumvent this process.
Finally, in the same vein, the Employer utilized the subpoena improperly. The
subpoena asked Rogers to send a representative to the hearing and to bring with
him/her the information requested. Mr. Christie should not have excused the
DWWHQGDQFHRID5RJHUV¶VUHpresentative. Had the subpoena been processed in the
appropriate manner, the grievor and the Union could have objected to its nature and
scope before the Employer had an opportunity to view its content.
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[10] I will deal with the objections raised in the order presented by the Union, beginning with
the allegation that the Employer failed to comply with the UniRQ¶VUHTXHVWIRUSURGXFWLRQRIDOO
documents relevant to the issues and the consequences that ought to flow from that failure.
[11] The Union referred to the case of Re Toronto District School Board and CUPE, Local
th
4400 (2001-B-01) 109 L.A.C. (4) 20 (Shime). In that case, the Employer had filed a grievance
against the Union objecting to thH8QLRQ¶VGLVWULEXWLRQRIDSROLWLFDOPHVVDJHWRLWVPHPEHUV
WKURXJKWKH%RDUG¶VFRPSXWHUHPDLOV\VWHPTwo preliminary matters arose concerning the
production of documents and the consolidation of numerous grievances. In considering the issue
of production, the Board compared the civil requirements for discovery and production with the
more relaxed and less formal process in grievance arbitration. It noted that there are extensive
rules in civil procedure to assist the parties and the court to define the issues and to allow each
SDUW\WRNQRZDVPXFKDVSRVVLEOHDERXWHDFKRWKHU¶VFDVH7KHVHUXOHVLQFOXGHH[WHQVLYH
discovery requirements involving examinations for discovery, inspection of property, medical
examinations, pretrial conferences and exchange of export reports. To ensure that all relevant
documents have been provided, the parties must disclose by way of an affidavit that they have
disclosed to the full extent of their knowledge, information and belief as well as all documents in
their possession and control.
[12] In contrast Arbitrator Shime noted that the grievance arbitration process is skeletal in
nature. The proceedings are initiated by the filing of a written complaint which is returned by
way of a written response. Neither is as precise or as carefully constructed as pleadings. They
are drafted by employers and grievors or their unions instead of lawyers and rarely contain all of
the facts or admissions. The parties generally engage in settlement discussions and any
statements or admissions during those discussions are made without prejudice and are
inadmissible at the hearing.
[13] Arbitrator Shime confirmed the trend these days for arbitrators to adopt a more expansive
approach to consistent with that of the civil courts to ensure a fair process. He concluded that
anything that will assist the parties in the preparation and presentation of a case should be
encouraged and that arbitration by ambush should not be condoned. Pursuant to a request for
production a party must produce any and all documents that are arguably or seemingly relevant.
The primary responsibility to produce the documents lies with the party who has or had
possession, power and/or control of them.
[14] He stated that where a request for production has not been filly met, that consideration
should be given to not admitting the document but that ultimately it is up to the arbitrator to
exercise his/her discretion to admit the evidence.
[15] The general purpose of the rules in civil and criminal cases is to define the issues, provide
the parties with as much information as possible about each others case including any documents
and admissions for use at trial to avoid trial by ambush. Those purposes apply equally to a
grievance under the arbitration process in a collective agreement. Applying those principles to
the facts of the case before me, I do not view WKH(PSOR\HU¶VDFWLRQVDV³WULDOE\DPEXVK´
>@7KHJURXQGVIRUWKHJULHYRU¶VWHUPLQDWLRQKDve always been clear to both parties. She
was accused of using her cell phone to text messages while driving a bus. The request for the
records of her phone use was made early enough in the process to put the Union on notice that
- 5 -
the Employer intended to pursue the details of that usage. The UnLRQ¶VUHVSRQVHWRWKH
(PSOR\HU¶VUHTXHVWWRREWDLQD%RDUG2UGHUZDVWKat she admitted to the use pf the phone for text
messaging and that the records were unnecessary. The Employer clearly disagreed and took
steps to obtain the information it felt was necessary to meet its onus.
[17] Additionally, the Union relies on her admission and remorse as mitigating factors for the
Board to consider in determining the appropriate penalty, if any. Given the history of this case, it
should not have been a surprise to the Union that the Employer would challenge her evidence on
those points.
[18] Based on the above, I do not believe the EmSOR\HUIDLOHGWRFRPSO\ZLWK8QLRQ¶VUHTXHVW
for documents nor was its conduct intended to take the Union be surprise.
[19] The second ground raised by the Union involves an allegation of a violation of the
Personal Information Protection and Electronic Documents Act S.C. 2000, c.5. Under that Act,
Part 1 deals with the PROTECTION OF PERSONAL INFORMATION IN THE PRIVATE
SECTOR and its purpose is set as follows:
The purpose of this part is to establish, in an era in which technology increasingly
facilitates the circulation and exchange of information, rules to govern the collection, use
and disclosure of personal information in a manner that recognizes the right of privacy of
individuals with respect to their personal information and the need of organizations to
collect, use and disclose personal information for purposes that a reasonable person
would consider appropriate in the circumstances.
Section 7.3 states as follows:
For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that
clause, an organization may disclose personal information without the knowledge or
consent of the individual only if the disclosure is:
(c) required to comply with a subpoena or warrant issued or an order made by
a court, person or body with jurisdiction to compel the production of
information, or to comply with the rules of court relating to the production of
records.
[20] The Union took the position that the production of these documents was an invasion of
WKHJULHYRU¶VSULYDF\LQWHUHVWVDQGWKDW contrary to the provisions of the PIPEDA.
[21] The Act is clear; a party subject to its provisions cannot release information about an
individual that is covered under the Act. The Employer took the position that the Act does not
apply to these proceedings but rather to Rogers. If there is a complaint about activities under the
Act, it is Rogers who must answer. It referred to the decision of the Ontario Superior Court of
Justice (Re Ferenczy and MCI Medical Clinics and Dr. Gary Weinstein (April 14, 2004), Court
File #C22438/00). In that case the issue was the use of video surveillance by a private
investigator. For purposes of this decision the relevant passage is found in paragraph 15 which
reads as follows:
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At the outset I wish to point out that the Act neither does nor contain a provision which
prohibits the admission into evidence of personal information collected or recorded in
contravention of the Act. Rather the Act provides that an individual or the Privacy
Commissioner may bring a complaint which results in an investigation and report under
theAct. Thereafter, certain steps described in the legislation may be taken in the Federal
Court. Consequently, if the collection of surveillance evidence in this case is said to be a
violation of the Act, a complaint in which may be filed pursuant to the Act to commence
that process. However, that has no direct impact on the issue of the admissibility of
evidence in this trial.
[22] The information at issue in this motion was provided to the Employer counsel under a
Summons to Witness prepared by a body with the jurisdiction to compel the production of
information. That is the complete answer to WKH8QLRQ¶VPRWLRQ7KH8Qion relied on the ruling
of the Assistant Commissioner (case # 2009-005) which involved a complaint about the improper
use of a Summons to Witness in a divorce proceeding. In that case the summons required the
attendance of a company representative to give evidence at the hearing. He was instructed and
specifically requested that it bring the complainDQW¶VILQDQFLDOUHFRUGVDQGLQFRPHWD[UHWXUQV
dating back to 2000. Two days before the hearing the accounting organization forwarded the
information to the other side and the complainant filed this complaint. The Assistant
Commissioner found that while the summons would be considered a subpoena in certain
circumstances but that in the case before him it did not require the production of any information
to the other side. It required simply an appearance in court to give evidence, bringing certain
documents.
[23] However, I note that the ruling concluded that the complaint had been well founded and
resolved. I do not have the benefit of the actual summons or, more importantly, the resolution. I
do not know what effect, if any, that ruling had on the evidence at the hearing.
[24] As I read and apply the Act,information about an individual may be disclosedwithout the
summons was an abuse of process, the consent of the subject if it is produced pursuant to a
summons or subpoena issued by a duly authorized body with the requisite jurisdiction. In this
case the summons under which the documents were delivered to Employer counsel was properly
issued and served.The evidence is arguably relevant, flows from events that occurred at the last
day of hearing and are therefore admissible.
[25] Finally, the Union took the position that the use of the summons was and abuse of
SURFHVVIRUVHYHUDOUHDVRQV7KH(PSOR\HU¶VPHthod of obtaining these documents deprived the
grievor of her right to privacy. He was in possession of the documents before she had an
opportunity to take steps to preserve her rights. Additionally, it was argued that the Employer
improperly used the subpoena to obtain an Order from this Board. The procedure that has been
adopted and applied by the GSB involves a motion for a Board order having regard to the
submissions of the parties. This subpoena was used to circumvent this process. Finally, in the
same vein, the Employer utilized the subpoena improperly. The subpoena asked Rogers to send
a representative to the hearing and to bring with him/her the information requested. Mr. Christie
should not have excused the attendance of a RogeUV¶VUHSUHVHQWDWLYH+DGWKHVXESRHQDEHHQ
processed in the proper manner, the grievor and the Union could have objected to its nature and
scope before the Employer had an opportunity to view its content.
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[26] Dealing with these issues in the order presented by the Union, The Employer submitted
that there is not right to privacy in the abstract. In the case of Re Canadian Timken and USWA,
th
Local 4906 (Hutchin) (2001), 98 L,A.C. (4) 129 (Welling) the Board was considering the
admissibility of video surveillance and in doing so, compared many previous decisions that
LQFOXGHGDFRPSDULVRQRIWKHWHUPV³SULYDF\ULJKWV´³SULYDF\H[SHFWDWLRQV´DQG³SULYDF\
LQWHUHVWV´+HFRQFOXGHGWKDWthe video tape might have violatHGWKHJULHYRU¶VH[SHFWDWLRQRI
privacy and interfered with his liberty of privacy but, under Ontario law, did not violate his right
to privacy.
[27] Irrespective of the issue of privacy rights, in the case before me, the grievor cannot claim
a right to privacy concerning the very issue raised in her termination. It was alleged she used her
cell phone to send text messages while she was driving her bus. The fact she filed the grievances
implies her consent to an examination into the events giving rise to her grievance, namely her
conduct on the day in question. She voluntarily provided the Employer with her cell phone
account information related to calls. She must have appreciated that her text message records
would be part of the proceedings.
[28] Secondly, the Union has alleged that the Employer used the summons as way of
circumventing the process of obtaining an Order IURPWKH%RDUG,WSRLQWVWRWKH(PSOR\HU¶V
request that the parties jointly ask the Board for an order for production of the records as an
acknowledgment of the proper process. While it is true that the parties at the GSB have
LQFUHDVLQJO\PDGHXVHRIWKH%RDUG¶VSRZHUVWRcompel production to prepare for litigation and,
more commonly, to assist in settlement discussions, that practice is not a replacement for the
traditional methods of obtaining information but reasons for me to reject the documents on other
groundwater is an alternativH,UHMHFWWKH8QLRQ¶Vassertion that it is an abuse of process to seek
production through a subpoena.
[29] The Union also contended that the evidence should be ruled inadmissible because the
summons that called for the information was not complied with in a manner consistent with its
terms. The summons asked Rogers to send a representative to the hearing who was to bring with
him/her the documents related to text messages for a certain period of time. Mr. Christie did not
have the authority to give Rogers permission to simply provide the document without an
accompanying representative. Had a representative attended the Union could have made a
timely objection to the evidence before the Employer had an opportunity to see them.
[30] If the Union has a concern about the manner in which the summons was processed, that is
an issue between Rogers, and counsel for the parties. The only question for me to determine is
whether the documents placed before me should be admitted into evidence. I am of the view that
they should be admitted for several reasons. The documents contain information that is relevant
to the issues before me. They contain information about the very issue that the Employer
believed was grounds for dismissal. There has been no suggestion that the information does not
meet the test of relevancy.
[31] Having determined that threshold question, I am not persuaded that there are compelling
reasons to reject the evidence. It was obtained under a summons duly prepared by a body with
the jurisdiction to compel production. The fact that the (PSOR\HU¶VFRXQVHODFFHSWHGWKH
documents without the viva voce HYLGHQFHRIWKH5RJHU¶VUHSUHVHQtative does not invalidate that
summons. If the Union was concerned about its ability to challenge the release of the
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documents, this interim award to proof that it was not unfairly prejudiced. It asked for an
adjournment to consider its position and subsequently placed this motion before me for
determination. As stated in the case of Re CB Commercial Real Estate Group Canada Inc. et al
v. Coles (2000), 51 O.R. (3d) 481 (Ontario Court of Appeal), at paragraph 55:
The doctrine of abuse of process engages the inherent power of the court to prevent the
misuse of its procedure, in a way that would be manifestly unfair to a party to the
litigation before it or would in some other way bring the administration of justice into
disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts
VXFKDVLVVXHHVWRSSHO«
[32] In the instant case, I have not found an abuse of process as defined above and therefore
have no basis upon which to disallow the evidence. It is undisputed that under the Labour
Relations Act I have the statutoryauthority to accept or reject evidence that would be rejected or
accepted by the Courts.
[33] For the reasons set out aERYHWKH8QLRQ¶VPRWLRQWRUHMHFW the information obtained by
WKH%RDUG¶VVXPPRQVLVGHQLHG7KHKHDULQJZLOO resume on the dates agreed to by the parties.
st
Dated at Toronto this 21 day of October 2010.
Loretta Mikus, Vice-Chair