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HomeMy WebLinkAbout2022-9850.Sharma.24-05-29 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# 2022-9851; 2022-9975’ 2022-9976; 2023-02520 UNION# 2022-0230-0016; 2022-0230-0017; 2022-0230-0018; 2023-0230-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sharma) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Adam Beatty Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING May 10, 2024 - 2 - Decision A. Introduction [1] The Grievor was hired as Corrections Officer in May 2004. She was assigned to the Ontario Correctional Institute (“OCI”). [2] The Grievor suffers from a medical condition that causes insomnia and other symptoms. In or around 2019 the Employer started accommodating the Grievor for that condition by assigning her to the night shift. In or around February 2020, the Employer told the Grievor she would no longer be accommodated. In or around July 2020, the Grievor went on sick leave due to her medical condition. Despite attempts to return to work throughout the remainder of 2020, the Grievor was unable to do and resumed sick leave. [3] On January 8, 2021 the Grievor resigned her employment with the OPS by way of email to her Superintendent. [4] In or around February 2021, the Grievor contacted the Employer seeking to be re-employed as a Corrections Officer. By way of email dated June 14, 2021, the Grievor asked her Superintendent whether she could retract her resignation. Her request was denied. [5] On or around June 17, 2021 the Grievor filed a grievance in response to the Employer’s denial of her request to retract her resignation. The Employer took the position that the grievance was untimely. The Grievor then filed a second grievance on or around July 24, 2021 challenging the Employer’s position that the June 17, 2021 grievance was untimely. [6] In or around September 21, 2021, the Grievor withdrew the June 17 and July 24, 2021 grievances. The Grievor had filed an application with the Human Rights Tribunal of Ontario and believed that the HRTO application would proceed more quickly. [7] Between October 27, 2022 and November 1, 2022 the Grievor filed grievances 2022-0230-0016; 2022-0230-0017; and 2022-0230-0018. On or around October 26, 2023, the Grievor filed grievance 2023-0230-0026 (the “four grievances”). The four grievances have been consolidated and are the grievances that are being heard in this proceeding. [8] At a very high level, the four grievances challenge the Employer’s response to the Grievor’s resignation, and her request to retract that resignation. The Union submits that the Employer was aware, or ought to have been aware, that the Grievor suffered from medical disabilities. As such, the Union argues that the Employer was required to take additional steps and to inquire further before accepting her resignation (or before declining her request to retract her resignation). The Employer’s failure to do so, according to the Union, amounts to - 3 - a violation of the Collective Agreement and various pieces of legislation and workplace policies. [9] The grievances also raise allegations of harassment and bullying. [10] The Union has requested that the Employer produce the following documents: a. An Occurrence Report filed by the Grievor on or about March 4, 2015; b. Any emails from Sgt. T. Tidd to the Grievor regarding her work at the Ontario Correction Institute; c. A Fitness to Work Accommodation Plan sent by the Grievor’s doctor and confirmed received by the Employer as per emailed confirmation on November 14, 2016; d. An email from Mr. Hasted sent to the Grievor in or about 2020 in response to an email from the Grievor asking a question about her expenses; e. Any reports or other communications from the disability specialist who advised the employer in or about 2020 that the Grievor’s accommodation to night shifts was no longer required; f. All medical reports submitted to the employer by any doctor, including but not limited to Dr. Veenema, and including but not limited to a note from Dr. Veenema indicating that the Grievor has a disability which necessitates that she receive extra time for completing written tests prior to becoming a Corrections Officer; and g. All other notes, emails and other documents to, from or about the Grievor in respect of her disability in 2015 and until the date of the instant grievances. B. Position of the Parties (i) Position of the Union [11] The parties did not disagree on the legal principles applicable to requests for production, although they emphasized different aspects of those principles. The Union argued that the request for production satisfied the factors set out in the seminal decision of West Park Hospital and O.N.A., (1993) 37 L.A.C. (4th) 160. The Union argued that: i. the documents it has requested are arguably relevant; ii. the request for production is sufficiently particularized; iii. the request does not constitute a fishing expedition; iv. there is clear nexus between the information in the documents requested and the issues in dispute at the hearing; and v. the request will not cause the Employer undue prejudice. - 4 - Accordingly, the Union argued that its request for production should be granted. [12] The Union also argued that the key starting point when assessing a request for production is defining the issue before the arbitrator. Once that issue has been determined, those documents that are arguably relevant to that issue should be produced. The Union relied on Hotel Dieu Grace Hospital and O.N.A. (2008), 178 L.A.C. (4th) 319 in support of this position. [13] The Union argued that the key issue to be determined in these grievances is whether the Employer took appropriate steps to inquire into the mental health of the Grievor at the time it accepted her resignation, and when it subsequently refused to rescind the resignation or accept these grievances. Applying the West Park factors to this issue, the Union argued that all of the documents are arguably relevant to the Employer’s knowledge of the Grievor’s disability and are sufficiently particularized. The Union also noted that because the Union has clearly identified the documents it is seeking to have produced, the request for production does not constitute a fishing expedition. [14] The Union also argued that there is a clear nexus between the documents requested and the issues in dispute. Here the Union relied on Hotel Dieu Grace Hospital. The grievance in that case alleged the Employer had failed to take appropriate steps to maintain a violence and harassment free workplace. In response to the grievance, the Employer conducted a formal investigation. The grievor then challenged the results of that investigation. In that context, Arbitrator Brandt held as follows: … If, for example, the Hospital had conducted a pro forma investigation only and did not in any real sense address the substance of the grievor’s statement of concern, it would surely be “arguably relevant” to seek production of documents that may tend to substantiate that claim. There is a clear and direct nexus between the issue raised and the process by which her complaint was investigated and the request is sufficiently particularized to permit the Hospital to know what is asked of it and sufficiently specific to avoid characterization as a “fishing expedition”. [15] The Union argued that this analysis is directly applicable to the grievances before me. The Union argued that the documents sought in its production request go to the Employer’s knowledge of the Grievor’s disability. There is therefore a nexus between the information sought and the central issues in dispute in the four grievances. Finally, the Union argued there were no grounds to find that complying with this request would cause the Employer any prejudice. (ii) Position of the Employer [16] The Employer argued that the Union’s request for production should not be granted. The Employer noted that the Union is seeking documents that date back to 2015, approximately 5 or 6 years prior to the resignation at issue in these - 5 - grievances. The Employer submits that these documents are simply too old to be arguably relevant. In OPSEU (Grievor) and Ontario, 2023 CanLII 37581 (ON GSB) the Board declined to order documents that went back approximately ten years, in part because “they were too old”. [17] According to the Employer, the relevant period of time for the matters in dispute is between 2019 and 2021. The Union’s particulars only raise issues going back to 2019. In 2015 and 2016, part of the period of time for which the Union is seeking documents, the Grievor worked at a different institution. There is no nexus, according to the Employer, from that period of time to the issues raised by the grievances before me. [18] According to the Employer, the Union is effectively seeking documents first and will then particularize how those documents may be relevant once it has received and reviewed those documents. The Employer argued that is not the appropriate way to proceed. Rather, the Employer is entitled to receive particulars first and then provide documents that are arguably relevant to the issues raised in those particulars. Given that the Union has not provided any particulars for the period before 2019, any documents sought from that period cannot be relevant. The Employer relies on the decision in Ontario Liquor Board Employees’ Union and Ontario (Liquor Control Board of Ontario), 2006 CanLII 17540 (ON GSB) in support of this position. [19] The Employer also notes that on January 6, 2017, the Grievor signed a Memorandum of Settlement that settled a number of earlier grievances from 2015 and 2016. The Union argued that any documents requested that precede the MOS are covered by settlement privilege and need not be produced. The Employer noted that the Board reached the same conclusion in OPSEU (Grievor) and Ontario (supra). [20] The Employer argued that requests for documents from 2018 and earlier constitute a fishing expedition. According to the Employer, the Union has not particularized how these documents relate to the four grievances. In light of the amount of time that has passed, and the lack of particulars, the Employer argued that these requests are a classic fishing expedition. [21] Finally, the Employer argued that it would be prejudiced if it was required to produce documents going back almost ten years. [22] Turning to the specific documents requested, the Employer argued that the document listed at paragraph 9(a) above is not arguably relevant. The document is from 2015 and there are no particulars that relate to that period. The Employer also argued that, depending on the content of the document, it may be covered by settlement privilege. [23] The Employer argued that the documents requested at paragraph 9(b) are overly broad and not particularized. The Employer noted that there is no reference to - 6 - Sgt. T. Tidd in the particulars. The Employer argued that the documents requested under this heading amount to a fishing expedition. There is no suggestion as to what, if any, role Sgt. Tidd might have had in the Grievor’s resignation or in the Grievor’s accommodation or how these documents might be relevant to either of those issues. [24] The document requested at paragraph 9(c) is a Fitness to Work Accommodation Plan from 2015. The Employer noted that this document predates the MOS. It also involved a return to work at a different location from where the Grievor is currently working, it predates the Grievor’s resignation by approximately 4 years, and there is no reference to this document (or this period of time) in the particulars. Accordingly there is no nexus to the grievances. [25] The document at paragraph 9(d) is an email sent to the Grievor by her superintendent in or around 2020 in response to a question from the Grievor regarding certain expenses. The Employer argued that there was no reference to this email in the Union’s particulars and on its face there is no arguable relevance or nexus to the issue in dispute. The Employer noted that the Union indicated that the email contained some information about the Grievor’s disability, and her accommodation. However, the Employer also indicated that it did not dispute that the Grievor had a disability and that because medical notes tend to not provide a diagnosis, it was not clear how this email would be useful. [26] The document at paragraph 9(e) refers to reports from the disability specialist from 2020. The Employer noted that it did not dispute that these documents should be produced. However, the Employer thought that those documents had already been produced. [27] The Employer agreed that some of the documents requested in paragraph 9(f) were arguably relevant but that the temporal scope of the request was far too broad. Specifically, the Employer stated that they had already produced all medical reports provided to the Employer going back to 2019. The Employer argued that the documents that predated 2019 had no nexus to the issue of the Grievor’s disability and accommodation from 2019 onwards. The Employer noted that the documents requested at paragraph 9(f) went back to 2014, before the Grievor was hired as a Corrections Officer. Finally, the Employer also noted that many of these documents should already be in the possession of the Union. [28] Finally, the Employer argued that the temporal scope of the documents requested at paragraph 9(g) was also too broad. The Employer agreed that the documents going back to 2019 were arguably relevant and indicated that it has already produced those documents. However, the Employer submitted that none of the particulars justified going back to 2014 when the Grievor was at a different institution and was working (notwithstanding any disability she may have been experiencing at that time). Nor, according to the Employer, do the Union’s particulars justify producing documents up to the date of the instant grievances, as requested by the Union. The grievances were filed approximately two years - 7 - after the Grievor resigned from OCI. The Employer argued that those documents were also not arguably relevant. (iii) Union Reply [29] The Union argued that its request for production needed to be understood in the context of the Employer’s response to the Grievor’s resignation. In that context, the Union noted that the Employer took the position, in its particulars, that it had no knowledge that the Grievor was suffering from any “mental health disability” and that it would have taken appropriate steps to support the Grievor if had been made aware of any disability. The documents requested respond, in large part, to that position and will show, according to the Union, that the Employer did in fact have knowledge of the Grievor’s disability. As such, according to the Union, the requested documents flow directly from the Employer’s particulars. [30] The Union argued that documents requested will also speak to the issue of whether, based on the information it had at the time, the Employer was required to inquire further into the Grievor’s mental health before accepting her resignation. [31] The Union argued that it didn’t matter what institution the Grievor was working at when certain events took place. In the words of Union counsel, “there is only one Employer” and what the Employer knew, regardless of where the Grievor was working, is relevant. [32] With respect to the medical notes that post-date the Grievor’s resignation, the Union argued that they are arguably relevant to the decision to withdraw the earlier grievances. That is an issue that is before me as part of these grievances. [33] Finally, the Union argued that the Grievor’s entire work history was relevant to the issues on the merits. According to the Union, that history will show that the Grievor has a long history of disability, accommodation, and of being bullied and harassed. The documents it is requesting go to those issues. C. Decision [34] There is no dispute that the West Park factors govern contested requests for production. In order to apply those factors, arbitrators first determine what the key issue (or issues), is before deciding whether the documents requested are arguably relevant to that issue. As set out above, at a high level, the issue on the merits of the Grievances is whether the Employer’s response to the Grievor’s resignation in January 2021 was reasonable. That issue depends, in turn, on what the Employer knew, or ought to have known, at that time the Grievor resigned. - 8 - [35] The central issue in this request for production is the appropriate temporal scope of the documents to be produced. Should the Union be entitled to have the Employer produce documents going back almost ten years, or is a more limited period of time appropriate. In that regard, I agree with the decision in OPSEU (Grievor) and Ontario, supra, where the Board noted that relying on documents that go back approximately ten years may create a number of prejudicial effects including (but not limited to) extending the litigation into historical periods that are beyond the scope of the grievances. It may also raise issues regarding the unavailability of witnesses or participants or the inability to locate some of the requested documents. [36] In reviewing the request for production I agree with the Employer that 2019 is a an appropriate cut off. There is no dispute that the Grievor was accommodated starting in 2019. Prior to that, based on the particulars provided, it appears that the Grievor was working but was not accommodated. In this context, I agree with the Employer that the lack of reference to the period preceding 2019 in the Union’s particulars is significant. It is also worth noting that the Employer does not refer to the period prior to 2019 in its particulars. In the circumstances, I am satisfied that the period from 2019 onwards is clearly the period at issue between the parties. Finally, 2019 is also not so remote as to raise some of the prejudicial effects that attach to older documents. [37] Applying the factors discussed above to the Union’s request, the first document in the list of documents requested is an Occurrence Report filed by the Grievor on or about March 4, 2015. I am not prepared to order the Employer to produce this document. This document predates the Grievor’s resignation by approximately six years and was created over nine years ago. It is simply too remote to be of any probative value, or to be arguably relevant. Requiring it to be produced raises a number of the prejudicial issues referenced in the Board’s decision in OPSEU (Grievor) and Ontario (supra). [38] The next set of documents requested by the Union are “any emails from Sgt. T. Tidd to the Grievor regarding her work at the Ontario Correction Institute”. In so far as this request could include documents that have nothing to do with the issues in dispute, this request is overly broad and may constitute a fishing expedition. As such, I am not prepared to order that all of these documents be produced. That being said, it may also be that there are emails between Sgt. Tidd and the Grievor that refer to the Grievor’s disability and the Employer’s attempts to accommodate her. Any such emails from 2019 onwards would be arguably relevant to the Employer’s knowledge of the Grievor’s medical conditions. Accordingly, I order that the Employer produce any emails from Sgt. Tidd to the Grievor, from 2019 onwards, that refer to the Grievor’s disability and any accommodation of that disability. [39] The next document requested is the “Fitness to Work Accommodation Plan sent by the Grievor’s doctor and confirmed received by the Employer as per emailed confirmation on November 14, 2016”. This document predates the Grievor’s - 9 - resignation by over four years. I decline to order the Employer to produce this document for the same reasons that I declined to order the Employer to produce the Occurrence Report from 2015. [40] The next document the Union has requested produced is an “email from Mr. Hasted sent to the Grievor in or about 2020 in response to an email from the Grievor asking a question about her expenses.” In its submissions, the Union indicated that the email included information about the Grievor’s disability and her accommodation. On that ground, and to the extent that the Union is correct with respect to the content of the email, I am satisfied that the email requested is arguably relevant to the central issue in dispute and therefore must be produced. If however, the email is only about the Grievor’s expenses and does not include reference to her disability or accommodation, I fail to see how the email could be arguably relevant. In that case, the Employer need not produce the email. If that is the case, the Employer should advise the Union why it is not producing the email in question. [41] The next set of documents requested are “any reports or other communications from the disability specialist who advised the employer in or about 2020 that the Grievor’s accommodation to night shifts was no longer required.” The parties agreed these documents are arguably relevant. The only issue is whether they have been produced. The Employer is ordered to ensure that it has produced all of the documents from the disability specialist who, in 2020, determined that the Grievor’s accommodation to night shifts was no longer required, and to advise the Union once it has done so. [42] The Union also requested “all medical reports submitted to the employer by any doctor, including but not limited to Dr. Veenema, and including but not limited to a note from Dr. Veenema indicating that the Grievor has a disability which necessitates that she receive extra time for completing written tests prior to becoming a Corrections Officer”. I agree with the Employer where it argues that many of these documents would likely be in the possession of the Grievor. For reasons already discussed, I am also satisfied that these documents are only relevant from 2019 onwards. [43] The last set of documents requested by the Union are “all other notes, emails and other documents to, from or about the Grievor in respect of her disability in 2015 and until the date of the instant grievances.” To the extent that this request seeks documents going all the way back to 2015, it appears to be fishing expedition and is overly broad. Here too, for reasons already explored, I will not order the Employer to produce any documents from the period before 2019. However, I am satisfied that the Grievor’s decision to withdraw prior grievances may be relevant to the issues in dispute. As such I am prepared to order the Employer to produce documents up to the date the last of the four grievances was filed. - 10 - [44] The next hearing date is scheduled for June 3, 2024. Accordingly, the documents ordered produced must be produced by no later than May 30, 2024. Dated at Toronto, Ontario this 29th day of May 2024. “Adam Beatty” _________________________ Adam Beatty, Arbitrator