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HomeMy WebLinkAbout2019-1825.Decarlo.24-04-16 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# 2019-1825; 2020-2831 UNION# 2019-0368-0278; 2021-0368-0042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Decarlo) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING April 2, 2024 - 2 - Decision [1] This decision deals with a motion by the Union to grant the Grievance challenging the Grievor’s termination due to the Employer’s failure to produce Parts D & E of the Local Investigative Report (“LIR”). BACKGROUND: Steve Clancy [2] The Board has heard the evidence in-chief, and partial cross-examination of Mr. Steve Clancy, who at the time at issue was the Deputy Superintendent, Administration, at the Central East Correctional Centre. He oversaw the investigation and issued the letter of dismissal, for inter alia, Use of Force. Mr. Clancy is now retired. [3] Mr. Clancy described the multistep investigative process, which resulted in the Local Investigation Report (“LIR”). The process for completing the LIR is set out in the Institutional Services Policy and Procedures Manual (“ISPPM”) for Use of Force. The investigative process involves gathering, reviewing, assessing and commenting on the evidence. [4] In keeping with the ISPPM, the investigation was initiated by the “Relieving Sergeant” who then filled out Part A of the LIR. [5] Part B was then completed by the “Investigating Manager”, who provided a preliminary analysis, created a “Use of Force” file and provided all the materials collected to the Risk Management Team (“RMT”). [6] Parts A & B, and the accompanying materials were then reviewed by the RMT. Once the file was deemed complete, the RMT filled out Part C of the LIR. - 3 - [7] Parts A, B & C, with the accompanying materials, were then forwarded to Mr. Clancy (while the box indicating this had occurred was not check on the form, this does not appear to be in dispute). [8] Mr. Clancy testified that he then went through “each and every part” of the investigating tools, and worked and consulted with his counterparts in the region, and Regional Office, the senior management team, as well as the Employee Relations Advisor and Human Resources Advisor. He indicated he never acted alone, and decisions were made as a group. [9] Mr. Clancy testified that he also constructed the termination letter with the assistance of others at a “high level management meeting”. [10] When asked if he would have reviewed Part D when he wrote and signed the letter of discharge, Mr. Clancy indicated Part D would not be completed prior to the Letter of Discipline being sent and the Grievor terminated. [11] Mr. Clancy indicated that Part D is completed at the conclusion of the “entire process, at the end of the disciplinary process”. He described it as a “wrap-up form of document” regarding what was done up to the Superintendent level. It would state what the discipline was and how it was implemented i.e. dates etc. While he indicated Part D could include the rational and result, he has also seen Part Ds with just the result. [12] When asked if he had seen Part D before the termination letter was issued in this instance, Mr. Clancy responded he did not know, and he would need to see it, to see if he signed Part D in this instance, or whether Mr. Merriam, the Superintendent signed it. [13] When asked if he might have signed it, Mr. Clancy indicated it was possible that he had done so, as the Superintendent’s delegate. [14] Mr. Clancy testified that once Part D is signed by the Superintendent or the Superintendent’s delegate, the entire file goes to Regional Office and Part E of - 4 - the LIR is filled out by the Regional Director, who can close the file or recommend further investigations by an external entity or the Investigations Unit. [15] When Mr. Clancy was advised the Union had not received production of Parts D and E, he responded that Parts D and E should be on the file. Holly Wallace [16] Holly Wallace, Deputy of Administration, testified regarding the ultimately unsuccessful efforts she undertook to locate Part D of the LIR (and presumably Part E). Without setting out the details, suffice it to say I am persuaded Ms. Wallace made reasonable efforts to locate the outstanding parts of the LIR. [17] Ms. Wallace testified that despite the direction in the ISPPM to complete all parts of the LIR, to the best of her knowledge, there is no Part D or Part E of the LIR regarding the incident leading to the Grievor’s termination. [18] Ms. Wallace also conceded that prior to discipline being imposed, it must be approved by the Regional Director, but indicated that occurs during the consultation process following the investigation. SUBMISSIONS: Union [19] Counsel for the Union submitted it was undisputed that pursuant to Article 22.14.4.& 22.14.5 of the Collective Agreement, the Employer has an obligation to make full disclosure prior to the hearing of a grievance. [20] Those provisions state: 22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes. - 5 - 22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure. [21] The Union indicated it made a prehearing request for all relevant documents regarding this Grievance, to which the Employer did object. However, the Employer failed to produce parts D & E of the LIR, despite Mr. Clancy’s confirmation that Parts D & E ought to have been completed for the LIR. [22] The Union further pointed out its Motion does not arise from a single failure to produce a document, but rather relies on a pattern of conduct. In that regard, the Union referred to two prior instances in this case, where the Employer failed to provide timely disclosure of documents in its possession. [23] The first instance was the Employer’s production of the ISPPM portion of the policy dealing with Handcuffs, after, Counsel for the Union had completed his cross-examination of Sergeant Campbell, a key witness regarding the issue of handcuff use in this instance. [24] While Counsel initially raised an objection to the late admission of the document, Counsel agreed to its admission into evidence on the condition its use was restricted to the use of handcuffs in the “bullpen”. [25] The second incident was the late production a written directive regarding the “Use of Force to Secure Hatches”. While the Employer initially indicated no such directive existed, it “surfaced” following the testimony of an Employer witness who testified such a directive existed, and that given the opportunity he could produce it. [26] Counsel for the Union pointed out that accordingly, the failure to produce Parts D & E of the LIR now constitutes a third instance of the Employer’s failure to produce a document in a timely fashion, if at all. [27] The Union submitted Mr. Clancy testified he would have set out his rationale for terminating the Grievor’s employment, and it was entitled to know whether that - 6 - rationale is consistent with the letter of termination. It maintained this goes to the heart of the Union’s ability to make full answer and defence. [28] Counsel for the Union submitted the Employer’s conduct in this instance can have only one of two explanations: - Either the Employer is so inept, it can’t even explain why it doesn’t have a document that is a key part of its policies and procedures and the decision- making process as described by its key witness, or - The Employer is simply contemptuous of the process and has acted in bad faith. [29] The Union submitted the pattern of conduct indicates it is the latter, as it demonstrates a “passive/aggressive position”, tantamount to the Employer saying it will deny the existence of a document until it chooses to rely on it, or until it becomes an issue in arbitration. [30] The Union submitted these repeated failures by the Employer amount to an abuse of process which cannot be remedied by simply allowing the hearing to continue, and to hear argument regarding the adverse inferences that ought to be drawn from the Employer's conduct. [31] Rather, the Union submitted the Employer's attempt to avoid, or at least failure to engage in the litigation process in good faith, requires a more direct and effective remedy. [32] Accordingly, the Union sought a decision granting the Grievance and reinstating the Grievor with full compensation. It reserved its right to make submissions regarding costs. [33] In support of its request the Union relied on the following excerpt from Canadian Labour Arbitration, 5th Edition § 3:10: - 7 - § 3:10. Production of Documents—Jurisdiction to Order Production of Documents" … [W]here a timely request is made and there is no response to it or to an order for production, it is open to the arbitrator to refuse to admit the document into evidence or to grant an adjournment. And if the party's refusal continues thereafter, the arbitrator may make an award of costs payable by the recalcitrant party where he has the authority to do so, or may convene the hearing and either allow or dismiss the grievance. [34] In that regard, the Union relied on the Arbitral decision in Serco DES Inc. and USW, Local 9511 (Bartley), Re 2014 CarswellOnt 1151, [2014] O.L.A.A. No. 27, 117 C.L.A.S. 252, 241 L.A.C. (4th) 194. In that instance, Arbitrator Luborsky dismissed two grievances due to the refusal of the Grievor to comply with his order that he consent to the production of correspondence in the possession of a third party. The correspondence was allegedly written by the Grievor about the Employer, and Arbitrator Luborsky had determined it may be relevant to the matters raised in his grievances of unjust suspension and "harassment and wrongful damaging accusations". [35] In dismissing the grievances, Arbitrator Luborsky referred to and relied on his earlier decision in Inco Ltd. and USWA, Local 6500 (Bujold), Re (2003), 75 C.L.A.S. 163 (Ont. Arb.) in which he had also dismissed a grievance involving a grievor who refused to give his consent for the release of medical documents the parties had agreed were relevant, and which Arbitrator Luborsky had ordered released. [36] He also considered a decision by Arbitrator Davies in Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175 (2000), 87 L.A.C. (4th) 154 (Ont. Arb.), dismissing a grievance, under the “abuse of process” rubric, again after that grievor’s failure to comply with her order to produce certain documents. (see paragraph 43) [37] However, I note that, in addition to dismissing the grievance, Arbitrator Davies stated: - 8 - In my view, an arbitrator should not lightly dismiss a grievance by reason of any "abuse of process", and outright dismissal of a grievance by reason of an alleged abuse of process should only occur in the clearest cases.... [38] Finally, Arbitrator Luborsky referred, at paragraph 44 – 47 to Ontario (Minister of Community, Family & Children's Services) v. Crown Employees Grievance Settlement Board (2005), 135 L.A.C. (4th) 385 (Ont. Div. Ct.), rev’d at (2006), 268 D.L.R. (4th) 594 (Ont. C.A.), as follows: 44 In Ontario (Minister of Community, Family & Children's Services), supra, the Ontario Divisional Court upheld a decision of the Grievance Settlement Board ("GSB") to allow the union's grievance without a hearing on the merits where the employer was unable to comply with a production order because the relevant documents had been inadvertently destroyed by the employer's agent (a consultant), without finding there was any deliberate attempt to suppress those documents or an abuse of process by the employer. In considering the general power of an arbitrator under s. 48(12)(b) of the LRA to order the production of documents and the authority to dismiss or allow a grievance for failure to comply with such an order, Lane J. said the following on behalf of the Divisional Court at paras. 29 — 30 after reviewing the applicable jurisprudence, which is relevant to the question now before me: … ¶ 30. All legislation is deemed remedial, but even without that statutory instruction, the Labour Relations Act, 1995 is such legislation. It is intended to bring peace to the relations between employer and employee by providing a forum for the expeditious, inexpensive, independent and largely final resolution of employee grievances without the high personal, social and economic costs of work stoppages. To perform this function, the arbitrator must have the power to control the process leading up to the actual hearing, and the Act contains sections designed to grant such powers to arbitrators. Such remedial legislation is to be given a wide and liberal construction to enable it to effectively serve this remedial purpose. In line with this principle, the Legislature cannot be thought to have intended that the arbitrator would have the authority to make an order but not the authority to enforce it by a suitable penalty. [Footnotes omitted] 45 However, the Divisional Court's conclusion that the GSB was justified in allowing the grievance in the circumstances of that case was overturned by the Court of Appeal. Writing for the majority of the Court of Appeal, Sharpe J.A. held at para. 24 that the arbitrator's decision to allow the grievance on the basis of "lost evidence", without a hearing on the merits of the grievance amounted to a denial of the employer's right to natural justice. He also observed at para. 27 that the inadvertent destruction of evidence could have been remedied by a variety of less extraordinary - 9 - measures, including the drawing of an adverse inference “against the party who bears the obligation to produce the document or evidence in question. 46 Nevertheless, it is also clear from the Court of Appeal's reasons at para. 28 that the result would have been different if the failure to comply with the arbitrator's production order had occurred in circumstances amounting to "a deliberate or male fides attempt to thwart the arbitration process". In such circumstances the Court of Appeal accepted as a correct statement of the law the following summary of the arbitral jurisprudence found in Brown, David J.M. and David M. Beatty, Canadian Labour Arbitration, loose-leaf (Aurora: Canada Law Book, 2005) at para. 3:1421, indicating that an arbitrator's authority to summarily allow or dismiss a grievance without a hearing on the merits for failure to produce documents, "is restricted to situations of deliberate disregard of orders for production": When a timely request is made [for production of documents] and there is no response to it or to an order for production, it is open to the arbitrator to refuse to admit the document into evidence or to grant an adjournment. And if the party's refusal continues thereafter, the arbitrator may make an award of costs payable by the recalcitrant party where he has authority to do so, or may convene the hearing and either allow or dismiss the grievance [footnotes omitted]. 47 These cases support the principles that: (a) an arbitrator has authority to allow or dismiss a grievance without a hearing on the merits in response to a party's non-compliance with a clear production or other valid procedural or evidentiary order; (b) provided such non-compliance is shown to arise out of a deliberate disregard for the arbitrator's order; (c) which is an extraordinary sanction that should only issue in the clearest of cases where other less extreme measures could not fairly remedy the offending party's refusal to comply, such as (but not limited to) drawing adverse inferences, prohibiting the admission of a document that has not been produced supporting the offending party's side, granting an adjournment or possibly awarding costs, etc., subject to the provisions of a collective agreement on these matters. [Emphasis added] [39] Counsel for the Union pointed out that in this instance, as the duty to produce all relevant documents flows from the Collective Agreement, simply allowing for an adverse inference to be drawn is tantamount to failure to give effect to the Collective Agreement. In that regard, the Union referred to Article 22.14.6 which limits arbitrators’ authority to vary the terms of the Collective Agreement. [40] The Union also urged that I not pursue the alternative remedy of issuing a subpoena duces tecum, but if I chose to do so, requested that I require the - 10 - Employer to provide Part D of the LIR and all arguably relevant documents not produced to date. [41] As a further alternative, Counsel for the Union requested that I direct that the Employer cannot rely on any part of the LIR for any purpose, including any argument that it complied with its own policies and procedures when it decided to dismiss the Grievor, and that the Union can make any other arguments regarding the failure to produce Part D, and the Employer’s failure to produce documents in a timely way. [42] Also in the alternative, Counsel for the Union submitted that if I were to find that the issue arises due to its first suggested reason, i.e. the Employer’s ineptitude, the Union requested I state that finding so the parties can address the problem. Employer [43] Counsel for the Employer indicated it does not dispute that Parts D & E of the LIR are relevant, and ought to be disclosed. [44] However, Counsel for the Employer submitted the evidence does not indicate whether Parts D and E ever existed and were lost, or whether they were never filled out in first instance. [45] In any event, Counsel emphasized this is not a case where the documents have been purposely held back, and on that basis, the facts can be readily distinguished from Serco, supra. [46] The Employer pointed out the Grievance Settlement Board has only once resolved a grievance on the basis of unavailable documentary evidence, and that is the decision in OPSEU (Larman) v. Ontario (MCFCS), 2003 CanLII 52907 (ON GSB)(Abramsky), referred to extensively by Arbitrator Luborsky in Serco, supra, as set out in paragraph 38 above. - 11 - [47] In overturning the Divisional Court's conclusion that the GSB was justified in allowing the grievance in the circumstances of that case the Court of Appeal stated at paragraphs 26 & 27: [26] A stay of proceedings is "an extraordinary remedy" for lost evidence to be "granted only in the clearest of cases" for lost evidence in criminal cases involving the breach of Charter rights: Carosella at para. 52. When one turns from the criminal law to the regime of civil or private law, and from staying a criminal proceeding to granting a civil claim on the basis of the inadvertent loss of evidence, the remedy is even more exceptional. I agree with the appellant that the generally accepted principle in the civil law context is that destruction of documents is a procedural matter that calls for procedural remedies: see St. Louis v. Canada (1896), 25 S.C.R. 649; Endean v. Canadian Red Cross Society, [1998] B.C.J. No. 724, 157 D.L.R. (4th) 465 (C.A.), at para. 9; Coriale (Litigation Guardian of) v. Sisters of St. Joseph of Sault Ste. Marie (1998), 41 O.R. (3d) 347, [1998] O.J. No. 3735 (Gen. Div.), at p. 357 O.R.; Werner v. Warner Auto- Marine Inc., [1996] O.J. No. 3368, 3 C.P.C. (4th) 110 (C.A.), at paras. 23-24. [27] Inadvertent destruction of evidence can be remedied in a variety of ways. An adverse inference can be drawn against the party who bears the obligation to produce the document or evidence in question: Coriale, supra. Similarly, the party failing to produce relevant material may be precluded from relying on that or related documents or evidence: Werner, supra. No case was cited to us for the proposition that a claim or grievance can be allowed, without hearing all the evidence that is available, on the ground that the responding party inadvertently failed to produce relevant documents or evidence. [48] Employer Counsel also pointed out that the Grievance Settlement Board has opined with regard to the Union’s alternative remedial requests. [49] In Ontario Public Service Employees Union (Phagau) v Ontario (Liquor Control Board of Ontario), 2016 CanLII 7445 (ON GSB), the grievor had been discharged for improper operation of a forklift. At issue was whether two managers who had viewed a video of the grievor, and which had informed the decision to discharge him, could testify regarding what they had seen on the video – because the video itself had been inadvertently destroyed. - 12 - [50] The Union submitted the managers’ evidence relating to the content of the video is rendered inadmissible and should be excluded. [51] However, Vice-Chair Harris opined this would bring the proceedings to a halt and result in the grievance being allowed. [52] Vice-Chair Harris relied on the Court of Appeal’s comments in Larman, supra regarding a stay of proceedings being "an extraordinary remedy" for lost evidence, which ought to be "granted only in the clearest of cases". [53] At paragraphs 26 & 27, Vice-Chair Harris stated: [26] The union has characterized the evidence of the managers as not being the best or direct evidence, based upon which it should be ruled inadmissible. However, if the video is considered in the context of it being the best evidence, the authorities are clear that the best evidence rule is not an exclusionary rule. In the absence of the best evidence it is open to a party to rely upon secondary evidence. In R. v. Swartz, Papalia, Cotroni and Violi, supra, the Ontario Court of Appeal noted the following distinction as set out in Halsbury 4th ed., Vol 17, p.8: The rule itself, in its relatively modern form did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R. in Lucas v. Williams & Sons, (1892) 2 Q.B. at 116: ‘Primary’ and ‘secondary’ evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence. [27] In R. v. Newfoundland and Labrador Association of Public and Private Employees the court cited with approval the following excerpt from Evidence and Procedure in Canadian Labor Arbitration, (Gorsky, Usprich and Brandt, Carswell,1994 at pages 11 – 54 to 11 – 55: At times, one sees references to a best evidence rule in other than a documentary context. What is then generally meant is a common-sense principle that one ought to present the strongest evidence one can. For example, eye-witness testimony is obviously preferable to proving the fact by some piece of hearsay admitted under an exception. That is good practical advice, but it is not an exclusionary rule. Even the courts, let alone an arbitrator, will not exclude relevant evidence simply because better evidence could have been called on the point. That a party does not use - 13 - the seemingly better evidence may arouse suspicion, which may then affect the arbitrator's assessment of the party’s evidence, but that is the only risk. [54] At paragraph 28, Vice-Chair Harris concluded, therefore, that there is no general bar to leading secondary evidence instead of the best evidence. Rather, it all goes to the weight to be attached to the evidence at the close of the case. [55] In Ontario Public Service Employees Union (Pacheco) v Ontario (Solicitor General), 2020 CanLII 38999 (ON GSB) Arbitrator Petryshen dealt with the failure to preserve evidence on Bailiffs’ computers when they were “refreshed” and the prior data on the hard drives was irretrievably lost. [56] In that case, as in this, the Union claimed the Employer’s conduct relating to the loss of the data was intentional or at least very negligent and constitutes an egregious abuse of the arbitration process that prevented the grievor from obtaining a fair hearing on his four discipline grievances. As a remedy, the Union requested that the four discipline grievances be allowed. [57] Arbitrator Petryshen found, at paragraph 18, that the evidence did not support the claim that there was a deliberate effort by the Employer to destroy data so that it would be unavailable for the arbitration proceeding. [58] At paragraph 19, Arbitrator Petryshen set out the factual context for the motion, which in many respects parallels the one in this instance: [19] Does the data lost from the three bailiff computers prevent Mr. Pacheco from obtaining a fair hearing on his discipline grievances? The Union’s claim at its highest is that an opportunity has been lost to discover whether there was any information in the lost data that was arguably relevant to the issues in this proceeding. Given the loss of the data, the Union is not in a position to assert that specific information relevant to this proceeding was lost. But since this motion was heard after the Employer closed its case, there is some basis for assessing the significance of the lost opportunity relied upon by the Union. The loss of the data from the three bailiff computers occurred in September of 2017, well after the Employer began calling its evidence and after the disclosure process resulted in the production of a considerable number of documents relevant to all of the issues in dispute. As I noted previously, the extensive oral and documentary evidence called thus far has presented a thorough examination of the relevant issues. When one balances - 14 - the extent of the documentary material that has been entered thus far, along with the cross-examination of that material, with any lost opportunity that arose from the wiping of the hard drive on the three bailiff computers, it is difficult to conclude that Mr. Pacheco’s right to a fair hearing has been compromised. [59] At paragraph 20, Arbitrator Petryshen indicated that the jurisprudence to which he was referred clearly indicated that the granting of grievances due to a loss of potentially relevant documents is an “extraordinary remedy”, and in the absence of an abuse of the arbitration process, and his determination that the loss of data from the computers did not prevent the grievor from obtaining a fair hearing, he found there was no “clear case” for granting the extraordinary remedy sought. [60] Employer Counsel submitted that similar to the facts in Pacheco, there is no evidence in this instance of a willful effort to withhold or destroy Parts D & E of the LIR, the existence of which is not clear. [61] Regarding the Union’s request that Parts A - C be excluded, the Employer submitted that consideration must be given to whether the absence of Parts D and E compromises the Union’s ability to make it case. In that regard, Employer Counsel submitted they are essentially “internal tracking documents” as everything came to a head once the letter of discipline was issue. [62] The Employer pointed out the Union had the letter of discipline, which sets out the rational for the termination. In addition, the Union has Parts A – C of the LIR; the Occurrence Reports; as well as the decision-maker on the stand, undergoing cross-examination. [63] The Employer maintained that in the circumstances, the Grievor was not denied a fair hearing, and asked that the Union’s motion be dismissed in its entirety. Union Reply [64] Counsel for the Union submitted the decision in Larman is distinguishable as it involved only one refusal, rather than a pattern of behaviour such as occurred here. - 15 - [65] Also, Union Counsel submitted the issue in Larman was a temporary transfer, not a discharge of an employee of many years, with the Employer bearing the onus, as in this instance. [66] Counsel for the Union also argued the Grievance Settlement Board cases were distinguishable, as none of them involved a finding of bad faith, which is the issue in this instance. [67] Finally, Counsel pointed out that while the Employer maintains the Letter of Dismissal is all that matters, and not what is in Part D of the LIR, without seeing it, there is no way of knowing that is the case. Rather, the failure to produce Part D represents a lost opportunity to cross-examine the witnesses on this important point, and it is not enough to say I can find an adverse inference at the end of the day. ANALYSIS: [68] As indicated above, Mr. Clancy had no independent recollection regarding whether he or Mr. Merriam, the Superintendent signed Part D. While he testified it ought to have been filled out and comprise part of the LIR, I do not find his evidence supports the finding that it was, indeed, ever filled out. [69] Further, there was no suggest that Ms. Wallace’s efforts to locate the missing Parts D & E were not genuine. I accept that if those Parts existed at all, they simply cannot be found. However, I am more inclined to find that it is more likely than not that they were never completed. [70] That may be because those parts or at least Part D, was seen as a “wrap-up form of document” after the decisions were made and acted upon. Counsel for the Employer described them as “internal tracking documents”. In other words, rightly or wrongly, it appears they were seen as having less significance that Part A – C. - 16 - [71] In any event, I am not persuaded the Employer has deliberately withheld Parts D and E of the LIR, or had done so out of bad faith or to thwart the arbitration process. [72] Accordingly, the authorities cited above are clear that, in the absence of a finding of bad faith, it is not open to me to determine this arbitration on the basis of the missing document(s). [73] Further, while I do not find that Parts D & E of the LIR would have been probative, because we simply do not know, I am not persuaded that their unavailability ought to preclude the Employer from leading the evidence it does have. In that regard I adopt the reasoning of Vice-Chair Harris in Phagau, supra, that the absence of better, or in this instance some evidence, does not preclude hearing the evidence that is available. [74] Finally, I am not persuaded, for reasons similar to those articulated by Arbitrator Petryshen in Pacheco that the absence of Parts D & E “goes to the heart of the Union’s ability to make full answer and defence” as argued by Union Counsel. [75] In the first instance, the Union’s claim at its highest, is that an opportunity has been lost to discover whether there was any new information in the missing documents that would alter, in a significant way, its answer and defense in this proceeding. [76] I note this motion was heard well after the hearing had begun, and well after the disclosure process had been completed, and resulted in the production of a number of documents, including Parts A-C of the LIR, with the accompanying materials which included Occurrence Reports and video recordings, all of significant relevance to the issues in dispute. [77] In addition, the Notice of Allegation Meeting, the notes from the Allegation Meeting and the Letter of Discharge are detailed and substantive. [78] Further, the Union has access to and is in the process of cross-examining Mr. Clancy, the decision-maker in terminating the Grievor’s employment. - 17 - [79] Accordingly, the absence of Parts D & E of the LIR, when balanced against the extensive investigative and documentary material that has been entered thus far, along with the opportunity to cross-exam of Mr. Clancy, it is difficult to conclude that the Grievor’s right to a fair hearing has been compromised. OBSERVATION: [80] While I have not found, as urged to do so by Counsel for the Union, that the Employer is contemptuous of the process and has acted in bad faith. I share the Union’s concern regarding what can at best be described as the Employer’s casual approach to its duty under the Collective Agreement, and to the arbitration process, to provide timely and full disclosure of all relevant documents prior to the hearing. [81] The Employer’s failure to produce both the ISPPM portion of the policy dealing with Handcuffs, and the written directive regarding the “Use of Force to Secure Hatches”, both critical documents, in a timely manner, resulted in unnecessary delay, and tarnished the proceeding so as to lead, at the very least, to the appearance of bad faith. [82] It arguably resulted in this motion, albeit unsuccessful, being brought. DETERMINATION: [83] For the foregoing reasons, the Union’s motion is hereby dismissed. Dated at Toronto, Ontario this 16th day of April 2024. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator