HomeMy WebLinkAbout1988-1562.Dowhey et al.89-10-27* ./, =".
,; ~ , : ' ONTARIO EMPLOY£$ DE LA COURONNE
, ' ' , ~ · CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/TL~L~PHONE
180, RUE DUNDA,~ Ou£ST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (41~) 598-0688
' 1.562/88, 1567/88
iN THE MATTER OF AN. ARBITRATION
Under
~ THE CROWN EMPLOYEES· COLLECTIVE BARGAINING ACT
Before - ~ -.
THE GRIEVANCE S~TTLEMENT BOARD
Between:
OPSEU (Dowhey et al)
Grievor
' ' - 'and - '-
The Crown in Right o~ Ontario '
(Ministry of ·Correctional'-Services) -'
· Employer
Before: .. '- · ,, : .
B.A. Ki rkwood - 'vi'~e-Chai'rpe r son'~
' J. M~Manus · -: ~- 'Member
.. R.::,Trakalo Member .~.
For'the` Grievor: : C. Wilkey .. ,
,_ ~ -Counsel
Cornish & Associates ' ;' :
Barristers & Solicitors
For the Employer: P. Jarvis ',;'.. .
' · _ Counsel
Hicks Morley Hamilton'
Stewart Storie ' :.
Barristers & Solicitors
Hearing: July 5, 1989
Page
INTERIM DECISION
This arbitration is to resolve a ~roup of grie%ances
which are brought' under the name of Dowhey et all The
parties had agreed~ that the grievances of Ed. Dowhey and
Tony Simon were representative of the grievances and that
the other grievo~s would be bound by this hearing and the'
decision of the board. The union's counsel represented that
although not all the grievers had consented in writing to
the consolidation of their grievances, that.'she would be
obtaining a written consent from each of them to complete
the consolidation.
Each of the grievances claimed that the griever was
ordered to work in unsafe conditions and in an unsafe
environment and that each griever had to comply with the
work order under duress and with no regard to each griever's
.respective health; safety and well-being.
The claim sought in each of the grievances was. for
management to cease and desist from creat~ing conditions
which jeopardize the health, safety, and security of staff
forthwith. The union was also seeking an order to force
management to address the problem of understaffing in a
tangible manner., . to require management to obtain the
jurisdiction to procure the removal of the institution as a
lock-up and to procure the removal, of this designation, and
an order requiring n~anagement .to grant each gri. ev?r two 'days
off with pay to alleviate the stress created by' the
extraordinary circumstances.
Page 3
In .response to the management's request for particulars
of the allegations made by the union, ~the union presented a
draft of the particulars upon which it would be relying. The
employer's counsel agreed to proceed using.· the draft
particulars,
Prior to the hearing, the union, obtained a summons for
the production of the 'following documents:
1. Any documents indicating the daily counts 'of the
total inmate population of the Toronto Jail· for the one
and a half years priOr~ to the date of the grievances
including the "log books" for each floor and the
Admission and Discharge area for that year.
2, Copies of scheduling records including the daily
roster of projected· and reali'zed~ staff levels and
overtime records for the two years prior to the date of
" the grievance. ~
~ 3. An'y documents or ~tatistics indicat~ing the-~ amount of
sick time Claimed by Correctional officers· for the tw, o
Years prior the (sic) the date of the griev, ances,
4. Copies of all Occurrence R~po'rts for~ incidents
involving altercations between inmates or between
inmates and correctional officers of the Jail f, or the
two years prior to the date of the grievances.·
5, Ali Accident and Injury Reports for the Toronto ,Jail
· : during the two years prior to' the date of the
:' ~ grievances
:-'7 6. Copies of all payroll records or any availa~ble
':'~ summaries .of payroll records indicating the level of
... turnover ·.of. correctional officers 'at the. Toronto Jail,
during the two year p'etiod prio~ to ~the date of the
- g.rievances,, including the number · of ~.new' hires, the
number of people leaving the Jail, the average and. mean
length of service of correctional officers 'at the
.Toronto Jail and any other records tending to show the
average length of incumbency of correctional-officers
'emp'loyed by the Jail at the date of the griev.ances.
Page
7. Any documents indicating the staffing level or
correctional officer to inmate ratio, for the TorOnto
Jail, for the .two year period prior to the date of the
grievances. (AS amended a~ the hearing)
8. Health & safety records for the Toronto Jail for the
past six year's, including'minutes of all meetings of the
Health and Safety committee, notes, memoranda, or reports
from any meetings between members of the bargaining unit
· , or Health and Safety committee and management with
respect to 6vercrowding at the Jail, and any other
documents considered by the Health and Safety committ,ee
during this period which pertain to overcrowding at the
Jail.
9.' The "Manual of Standards and Procedures" for the
Jail . ii.
10. The annual "reports for the Ministry of Correctional
Services for the past six years.
11. A copy of "The Toronto Jail Standing ~Orders"
12. Copies of any~ Operational audits' of the Toronto Jail
as well as any memoranda, .notes, reports, statistics or
other documents: relating to the issue of overcrowding at
the Toronto Jail, during the 2 year period prior to. the
date of the grievances.
13. A copy .of the "post analysis" study of staffing
levels that was produced in approximately April to' May
of 1989. , '..
14. Any documents relating.to the initial construction
of the current Toronto Jail facility including any
~ documents .indicating the intended capacity of 'the
--_ building at the time that it was proposed '-and
constructed.
15. Any documents, le.tters or memoranda recording any
agreement between the'Ministry of Correctiofiat Services
and the Municipality .of Metropolitan Toronto or its
Board of Commissioners of Police respecting the ~type and
number of the. i.nma%es %0 be housed in the Toronto Jail,
This interim decision does not. r'etate to the merits of
the grievances, but to the employer's preliminary objection
to the summons executed by the board.
' Page 5
The employer"s counsel objected to the shmmons on the
following bases: 1) the relevance of the de~6dS made in
terms of .:their timeliness and relevance to the ' iasc'es
raised; 2) :the oppressiveness of the ~de~ands made; and '3)'
that .the demands made were in the- nat'ur~ of a fish'ing
expedition. · ·"
With respect to the first issue, the employer's counsel
submitted that the gr. ievance~ were f'iled in janUary,' 1989
and,' on their face., sp. eak to the condition's w~ich ekisted in
January 1989'. The[ e.mployer' s counsel submitted that as
article 27 of the collective ag.ree.ment specifi'cally 'requires
issues to be discussed within twenty days of an ~mployee
first becoming, aware of the compi'aint, and' provides-for a
further, seven d~ay. ..... perigd~, in which._, the parties..~ to 'try tO
resolve matters ,before the grievances must be filed,' th'e
complaints can only relat'e to ~ose CO~plaints exis{ing
during that time period. Therefore, he submitted ~ that 'it' is
" the twenty-seven..flay period pr'io.r to the grievances being
'"., filed which, is..the, relevant p?.r'i0~ ~6'~ deter~in~~ what
documents are to be produ, ced ~ ·
The emploYer's~ counsel submitted ithat t~e -principles
-un e_r · =p.xoyees -
Bargaining Act, R.S.O. 1980, c. 108 fis'-hmended', whi'ch' are
to be applied to summonses which a~e' ' "~
" frequentl~ refer~ed to
as subpoenas duces ~ecum are similar to the principles
applied under the Statutory Powers Procedure Act R.S..O.
1980., c. 48-4, in that-the production of documents ~re"~'o be
gov_erned..by, their.,irelevance and their' admi§sib'ili~y fo~
production in evidence, and they ar~'~fiot' to.be u~'d' a's a."
form of discovery. In supp6rt of its position the employer
relied upon the cases of Guru and M~master UniverSity,
Canadian Human Rights Reporter vol. 2, ~Deci§ion 50,
paragraphs 2172 to 2193, Joseph and North York General
Hospital and' College of Nurses of Ontario Canadian
Human Rights Reporter vol. 3, Decision 175, 'paragraphs 7557
to 7596, Re Ca,ada Post Corp. and Canadian Union of
Postal Workers (Best) 24 L.A.C. (3d) "157
(J.W.Weatherill), and Re Bell Canada and Communication
Worker8 o£ Ca'ada 25 L..A.~. (2d) 200 (P..~C.Picher) .
The union's counsel submitted that the grievances relate~
to a continuing Co~plaint of overcrowding and'understaffing,
Which may have been triggered by conditions" on one weekend;
however, she advis'ed the board that she was' not aware that
the grievances reiated to a specific incident. The union's
counsel submitted that the grievanoes' arise from ast. eady
increase in the i. nmate population, which is n6t acc'ommodated
by an increase in~ staff levels. She submitted {hat her ',case
can only be pro~ed by documents in the p6ssession of the
... Ministry..
The union's counsel submitted on the basis of the 'Bell
case (supra) that there is some scope f~r discovery in the
-' arbitral process. She submitted that on the basis of OPSEU
.~ (Neil O'Connell) an,d The Crown in Right of Ontario
· ~" (Ministry of Industry and Trade) G S B % 07'72/85 (M.K
'!.~-,'i~I Saltman) that it.ils not necessary to es~'ablish admissibility '
-~---'. of the documents in order to examine the'documents.
The union's Counsel submitted that the aPprOpriate test
to determine the production of documents is whether the .'
documents are. relevant to the issues t'O' 'be heard,, and
'"relevancy" is to .be liberally Construed ' She' submitted'~that
the time limits d,emand that the condition'S' exist at ~that
" time, but they do not limit the scope of the evidence that
.,.~ might be relevant to the issue. Similarly, neither the
Page 7
number nor voluminosity of the d~cuments prevents t'.heir'
production., if the documents are relevant.
She submitted that the union is not 'on a fishing
expedition, but .that the~ employees are unable to
particularize the documents as they are unaware of. thei.r
form. She submitted .that the na~ur'e of the' summons i-s'-
similar to a summons obtained in a competition grievance fn
which all documents are sough~ to determine th& flaw in the''
procedure. In any event, she was prepared-to consider 'any
counter proposal which .the. Ministry may wish to make which
would particularize the documents ,in its possession'.'
There was no dispute as to whether the' board had
jurisdiction to order prQducti~fi of the documents, the issue
was on-ly .whet.her the. documents referred to in the summonS'
ought, to be produced.,. ~ .'~.
Before considering each document Which is. ~s'ou~ht to' b~
produced, it is necessary to ·consider the princiPi~s thaf-
are.to be applied to determine whether the dbcuments are to
be produced. . ....
Althoug.h. section., 11 (11) of the Crown Employees -~"
Collective Bargaining Act empowers the boar'd wi~h~-the
jurisdiction to compel, the prod~ct'ion' '~f w~itten
documentation, ther.e.:is no discovery pro6ess provided in'-the
statute. However, during the grievance procedure, a form
of disc'over~ usually takes place by the ~xch~nge o-f
documehts and information which each party belie~e~'ha~s' a
bearing on its case.
If each party knows in the 'cours6'~of th~' grievance
procedure, the case that each has to meet, and its
re'spective strengths and weaknesses, it can help to reduce
Page
the number of matters that. reach arbitration. If either or
both of the parties has failed or refused to disclose all
relevant documents, the opposing party may be surprised'or
prejudiced at the time of the arbitration hearing.
Therefore, in determining what documents are to be
produced, the boar~ must apply a broad 'test of relevancy to
each document and ...consider whether each document is likely
to be relevant to the issues to be arbitrated. As in the
case of OPSEU (Neil O'Connell) and The' C=own in Right
of Ontario (Ministry of Industry and Trade) G.S'.B.
0772/85 (M.K. Saltman), this' board finds that the test of
relevancy must be construed liberally.
However, the ultimate decision on the. relevance of
documents, can only be determined afte~ the~documents h'ave
been tendered in'evidence. ,The board can only determine the
weight that is to be attributed to the documen~rs;'-~uring the
hearing, or upon hearing all the evidence and the
submissions of the parties.
On the other ~hand, although "~ liberal interp'retation
must be applied to the determination of relevance] the
summons is. not to be used' as a "fishing expedition" to seek
all documents thati~ight possibly. bear on'the case nor is.it
to be used to determine whether or not a party has a case.-'
The purpose is to Obtain evidehce to'support the party's
case. AS stated, by K. P. Swan 'in Re-Toronto Star~. and
Southern Newspaper Guild 11 L.A."C. (3d} 249 ( K.P. Swan}
at page 259:
a subpoena 'Should be broad enough .to inglude ..some
measure of "discovery", while being concerned that it
does not go too far beyond the test of relevancy.
P~g¢ 9
As stated by. Ms. Picher in .the Re Bell Canada and
Communication Workers of Canada 25 'L.A.C. {2d) 200
(P.C.Piche~r) award, at page 205:
The subpoena duces tecum is nei'ther a search warrant nor
a licence to engage in a fishing expedition, it is not
.% intended to enable a Complainant to determine for the
~ first tim~ at the hearing whether it has.-any-c~se' at ·
'.. all. The subpoena power must at all ti~mes be used
judiciously and it. is the responsibility of any 'tribun'al
entrusted with that"~owe~ to' see that it is no% abused.-
The summons 'als0 must "b~ as precise as possible in
specifying th~' documehts desired. The demand cannot be so
general that it again ~pproaches a fishing expedition.' As
it was quoted in joseph and North York General Hospital
and Coliege of Nurses of Ont-ario: Canadian Human Rights-
Reporter vol 3~'~Decision 175, paragraphs 7557 .to 759.6,
particularly para~.raph 75'92:' · ~ '~
.. The fundamental pri.nciple that applies in determining
· . whether the description of the' documents in a subpoena
is too broad and indefinite is stated by Wigmore at, p.
'126, in these words: 'It must specifY, with ~as ~uch
precision as i§ fair' and feasible, .th.e. particular
docum_ents desired. ' Lord Dennin.g, N.R, in soul and
Inland Revenue Commissioners (1963) 1 W.-L.R. 112 at p.
114, uses the wo~ds 'with' ~easonable disti_~_ct.iveness' .to
· described ~'he desired standard.
The test which each document must meet is whether th~
document is likely to be r. elevan~t.. The number of document
that may be required is not a limit.ing factor if the test ~f
relevance is met a~n_d .provided ..that ,its reievanc~~ is
outweighed by the.oppressiveness~of the demand.
The employer's counsel urged us 'to apply the same t~ ~ts
which are~ applicable under the statutory 'Pow-~rs
'" Procedure Act 'in the Human Rights Cases, but we can
Page 10 , ,
Section 12 (4) of the Crown Employees Collective
Bargaining Act specifical'ly precludes the Statutory
Powers Pro=edure Act from applying and .therefore it would
be incorrect to apply the criteria established in that' act.
Furthermore, we cannot apply the principles flowing from the
statute, by analogy, as the Statutory Powers Procedure
Act is quite different in wording and it specifically
restricts the poWer to summons documents to ·those which are
admissible in evidence. The Crown Employees Collective
Bargaining Act does .not' have this restriction, and
therefore this board is not limited to ordering only those
documents which are admissible in evidence. As in the case
of OPS~U (Neil O'C°nnell) and The Crown in Righ~ of
Ontario (Ministry of Industry and Trade) G. S. B.
0772/85 (M.K.Saltman) at page 4':
"Admissibility .can only be determined during the course
of the hearing on the merits and in the' event that the
documents· are actually tendered in evidence."
The issues that are set out in the grievance forms,
are: 1) whether the grievors were forCed to work and 'were
working -in unsafe' conditions; 2) can the management be
required to obtain the jurisdiction to change the
designation of the jail; and 3) if so, what is ..necessary to
procure a change ?the designation of the jail from a lock-up
The grievance forms do not suggest 'that {he grievances
are a continuing grievance, nor~ are there any earlier
grievances relating to (~he same issue consolidated with' the
grievances before the 'board. Although the 'particulars refer
to an earli'er time frame, the particulars cannot serve to
expand the grievances, but rather to make the grounds
alleged in the gri&vance form more prec,ise or .clear.
Page 11
After.consideration of the principles and cases referred
to above, we find that documents which are sought to
substantiate the conditions in January 1989 are prima fa'cie
relevant. However, the time period set out in 'article 27'
does not limit the production .of documents to those created
in January', 1989. Documents may be relevant to'.the issues
arising in January, 1989 and those to be de'termined, even
· . though they may be created either prior to or later than
January.
At the same time, we. find. the seakch f6r any documents
over the one and one half. years to two years before t~e'
grievances were filed, is in the nature of a fishing
expedition. The union's counsel submitted to the board that
"she chose a one and one half year period as she was hopeful
that it' was long .enough to establish a trend." A party
cannot use a summons, which is broadly based to hope td find
the evidence to support a case. On the information before
this board, it appears~ that the documents..sought over such
an extensive period .of time are not to substantiate a case.,
but rather .to dete.r~ine whether or not there~is a case.
~ Therefore, we find that the document s ~ought 'in
paragraphs' '1 to 5, .7, 12 of the summons, if they relate to
the period of January .1989, whether created before~ during
... or after January 1989'..may be rel.evant and are to be
produced, with the limitation, as submitted by the union,
that the documents referred to in paragraph 2 relate to
correctional officers and not Lto all staff. We als'o order
the production of the documents referred to in pfiragr~phs 13
and 14 of the summons.
Although paragraph 15 refers to ".any"' documents Etc. we
. ~ do not find.that the Ministry"s 'counsel has been able to
Page 12 , o. , ,~
persuade us that the information sought is so broad, or
'oppressive or is not relevant that it should not' be
produced, and therefore we order ~hat the documents referred
to in paragraph 15 be produced. '
At the hearing, the Ministry agreed to Produce.the
documents referred to in paragraph 9, a~d the counsel
resolved how to deal with the standing orders referred to in
paragraph 11..
As we are advised by the. counsel for the Ministry that
the annual reports for the Ministry of ~orrectional Serv'ices
referred to in paragraph 10 are of public record, the
Ministry will not be compelled to produce them.
?
We find that the informatio~ sought in paragraphs 6 is
too broad and therefore, the Ministry is not compelled to
produce these documents.
.The Ministry is not compelled to produce the documents
sought in paragra'ph 8' of the summons as.the· union had
representation on the Health and Safety Committee and. has
recourse to their own informatipn.
The summons as originally issued-may be reissued', _if
necessary upon request, with an appropriate return date
inserted in place 6f the date of the original hearing. %
There was noiobJection made by t~e Ministry's counsel to
the production ·o~ any documents that the.board compelled·
the parties to produce, prior to the hearing. We therefore
exercise our authority under sub-section 11(8) of the~ Crown
Employees ColleCtive Bargaining Act to require the
Ministry to make the documents ordered in this interim
Page 13
decision available, prior to the next day of hearing; and
with sufficient time for the union's counsel to review them.
To otherwise do so, could~'lengthen the proceedings· and
create adjournments, unnecessarily.
In the event that there is any difficulty with thee
implementation of.this interim decision, the board will hear
~any matters arising therefore.
The office of the Grievance Settlement Board is hereby
directed to set a date for'the continuation of this hearing
with the parties in the normal course of their business.
Dated at Toronto, this 27th day of October, 1989.
B. A. Kirkwood, Vicechairperson
~J. McManus, Member
R. Trakalo, Member