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HomeMy WebLinkAbout1989-1062.Hyland.90-04-26· ONTARIO EMPLOYES DE LA COURONNE : ~"'~'~ CROWN EMPt-OYEES DE I.'ON TARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1~0 DU/VDA$ STREET WEST, SUITE 2~00, TORONTO, ONTARtO. MSG tZ8 TELEPHONE/TEL~-PHONE: (,~ ~6~ 3£6'- r35~ 180, RUE DUNDAS OUEST. BUREAU 2'100, TORONTO ~ONTARIOJ. M5G tZ8 FACSIMILE/T~:LL-'COP~E : (4 ~6.~ 326-~396 1062/89 IN THE KATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - Before THE GR[EVANCE SETTLEMENT BOARD BETWEEN= OPSEU'(Hyland) Grievo[ - and - The Crown in' Right 'of Ontario (~inistry of Correctional Services) Employer - and - BEFORE= E. Ratushny Vice-Chairperson J. Laniel Member D. ~ontzose ~ember FOR THE D. Wright .GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE D. Daniels EMPLOYER: Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: April 20, 1990 April 27, 1990 DECISION At the outset of these proceedings, counsel for the Grievor requested the disclosure of certain documents by the Employer. Both 9arties recognize that there is no legal authority in the Board to order the production of documents, by way of discovery. The only way in which documents may be compelled to be produced is through witnesses at the hearing, i~self, following a demand by way of subpoenae duces tecu~.. There are two limitations upon this process. The first i~ that it does not provide opposing counsel with the opportunity to determine with certainty the relevance of documents in advance of the hearings. As a result, witnesses may have to be questioned at the hearing on a "trial and error" basis to determine whether the Witness might have access to documents which might be relevant to the hearing. If a potentially relevant document should come to light, steps may then have to be taken to have the witness in question obtain the document and introduce it at the hearing on some future occasion. The second difficulty ,is that when a document is revealed.to opposing counsel for the first time, an adjournment may be necessary to provide an opportunity for counsel to peruse the document and discuss it with his or her client before proceeding further. In the grievance before us, the parties agreed to try to reduce these difficulties by adopting, the following procedure. The application, for production is to be treated.by the panel as an application for a subDoena duces tecum. If the documents in question are found to be suitable for inclusion in such a subpoena, the Employer' will produce them immediately so that the adequate perusal, and preparation may be conducted by counsel for the Grievor. Ordinarily, the best approach would be for the Employer' simply to produce all documents to the Grievor and for the Grievor to make full production of any documents he might have as well. This would permit full preparation well in advance of the hearings, would assist in narrowing and clarifying the issues in the case and would encourage the consensual resolution of grievances in some circumstances. However, in the matter before us, the Employer advances a special reason for wishing to restrict the disclosure of documents. The panel was informed that this grievance arises out of an incident which occurred at the Toronto Jail. As a result, a work "slowdown" occurred a few days later. The Employer initiated an investigation into the incident itself which broadened to include the subsequent response to the incident as well. Occurrence reports and-statements were taken from individuals who witnessed the incident and from others. In .addition to the occurrence reports and statements taken from individuals, secondary reports were prepared consisting of ~summaries, analysis and re6ommendations. The Grievor seeks production of all of the occurrence reports and statements but not the secondary reports which were based on those statements. The resistance of the Employer to producing these documents is based on the nature of the anticipated .evidence. There are likely to be differing versions as to what actually transpired so that recollection and credibility will be important. For this reason, the parties agreed at the outset to an order for the exclusion of witnesses. Counsel for the Employer voiced the concern that if the witnesses' statements and occurrence reports are circulated for all to read, the recollection of some witnesses may be, consciously or unconsciously, modified to conform with that of other witnesses. In the event that the panel should decide in favour of disclosure, counsel-for the Employer requested that a condition be imposed restricting their use. This would require that each potential wi.tness be permitted to read but not retain his or her own statements but not be permitted to read the statements 'of other potential witnesses. Counsel for the Employer argued that the documents requested here would not pass the test of sufficient particularity required to support a subpoena duces tecum. In support of that contention, he cited the case of Re ~anada Post Corp. and Canadian Union of Postal Workers (Best) (1986) 24L.A.C.(3rd)157. There, the Arbitrator (J.F.W. Weatherill) stated: Simply to require the employer to produce "everything that might bear on'the case" - and the scope of the subpoena is about as broad as that - is in my view, a clear abuse of the procedure, and would tend to tr&nsform it from an adversarial one to an inquisitorial one. (p.159) The request for production in that case was extremely broad and distinguishable from the more specific documents requested here. The request in the present application is for specific documents which are known to be in existence. We find that they are specific enough to be compellable in evidence by way of a subpoena duces tecum. Counsel for the Employer next.argued that the documents should not be produced on the basis that they are not relevant. In support of this contention he cited the case of Re City of Kanata and C.U.P.E., Local 2753 (1987) 29L.A.C.(3rd)412. There, the Arbitrator (A.W.R. Carrothers) ordered: ...that the arbitration hearing should reconvene and that counsel for the union should proceed to establish the factual base for the production of documents in question as counsel sees fit, and that I should make such orders'or rulings as may be justified accordingly. (p.421). It appears from this order that the facts and issues in that case were not clearly enough established to permit a ruling on the relevance of the requested documents. It has been established that in proceedings before the Grievance Settlement Board, the appropriate test for production of documents by way of subpoena duces tecum and, in turn, where counsel agree to voluntary production on the basis of that test, is whether the documents are "~rguably relevant". In OPSEU (Little) and Ministry of Revenue G.S.B. 522/88 (Slone) the Board ruled as follows: We have heard argument from the Grievor's counsel that theories will be advanced that could render the findings in the previous competition relevant. We are not persuaded that some such theory could not succeed, and the Grievor shouldhave every opportunity to prove her case. In OPSEU (Eadie) and Ministry of Correctional Services G.S.B. 766/88 (Devlin), the Board stated: In our view, the request for production could not be characterized as a fishing expedition as the Union sought to obtain specific documents which were known to exist and which were required to support its case. Moreover, for purposes of production, relevance should be broadly rather than narrowly construed. (p.2). It also should be kept in mind that an order for "production" does not preclude argument over the actual admissibility of a specific document into evidence at the time it is sought to be introduced. In our view, the occurrence reports and statements of witnesses sought by the Grievor meet the test of being "arguably relevant". The central issue is the basis for dismissal of the Grievor which arose out of the incident in question and the events which foliowed. These documents represent the first statements of the facts perceived by those witnesses in relation to both the incident and the subsequent events. Counsel for the Employer argued that viva voce evidence would be presented on these matters so that the documents are not necessary. However, this approach neglects the importance of such documents in testing the accuracy and credibility of testimony, particularly where inconsistencies in testimony are anticipated and the accuracy of recollection may be cru'cial. As a result of the consensual basis of this application, we "order" that the Employer produce to the Grievor all of the occurrence reports and statements of witnesses in relation to both the incident in question and the work "slowdown" which ensued. However, this order for production is based on the condition that counsel for the Grievor undertake to reveal each of these documents only to its maker and not to other potential witnesses and that counsel for the Grievor retain these documents in his possession and not reproduce them. DATEd at Ottawa this 26th day of April 1990. E. R~a~ ;hn¥, Vice-Chairman '~el, ~ember D. Montrose, Member