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HomeMy WebLinkAbout1990-0130.Jackson et al.91-06-19 ·1 /' i I . . '<- '-J"'" ~ ...,., I -'~l-'-t:·:--:>: - I 'I .. ... ONTARIO EMPLOYES DE LA COURONNE ""' CROWN EMPLOYEES DéL 'ONTARiO - ., 1111 GRIEVANCE COMMISSION DE . .- --- SETTLEMENT REGLEMENT BOARD DES GRIEFS - 180 OUNDAS STREET WEST, SUITE 2TOO, TORONTO, ONTARIO. M5G rZ8 TELEPHONEITÈLËPHONE: (416) 32S-IJBB 180, RUE DUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G IZé/ FACSJMILEITÈLËCOPIE: (4161 326-1396 130/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN I caPE (Jackson et al) I Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE: M. Gorsky Vice-Chairperson J. carruthers Member A. Stapleton Member FOR THE R. Carnovale GRIEVeR National Representative Canadian Union of Public Employees Local 767 FOR THE C. Osborne EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors ~ HEARING October 5, 1990 March 8, 21, 1991 - _.~_.- - -- - .~'. -- · . '3 .J~ oW. - " ~ 2 proceed to the next stage of the competition being in .the form·of an interview. At the opening of the hearing, we were informed by counsel for the Employer of the memorandum to the representatives of the parties, dated July 10, 1990, from O.B. Shime, Q . c·. , the Chairperson of the Board, relating to the notice to be sent to interested persons. We were also informed that in compliance with the directive notice had been sent to the 20 remaining incumbents. Initially, there were 22 incumbents, one of whom died, one of whom left the position. Another applicant had been offered the position but refused it. ,.. Notification of the hearing was not given to the BO unsuccessful applicants who did not grieve. Counsel for the Employer brought to our attention the case of Peake 78\77 (Adams); where the Board, at page two, adjourned the hearing until proper and timely notice could be sent to the five incumbents. Th¿ ~card did··~ot requlre that notice be sent to t.he unsuccessful applicants who did not grieve. In the circumstancës we find that timely notice has been sent to those persons who were entitled to notice of the arbitratio~ proceedings because the proceedings would test their right to continued enjo~ment of the benefits of the pG~3iti\)n l The same cannot be said of th\:; L¡nsuccr~ssful applicants who did not grieve and they are not entitled to notice of the he3ring. -- --. · . '1 ;. 'I D E C .1 S ION By a posting in the form of a memorandum, dated August 30, 1989, addressed to "M.T.H.A. i"Iaintenance Staff, C.O.P.E. Local 767, " from E. How, l'-lanager, Human Resources (Acting) , the Employer advertised for applicants from the bargaining unit to fill 50 positions in the Superintendent classification ln Districts 1, 2, 3, 4, and 5. At the foot of the memorandum, the following appears: ALL QUALIFIED MEMBERS OF THE BARGAINING UNIT ARE INVITED TO APPLY BY COMPLETING APPLICATION NO. 406 WHICH IS AVAILABLE IN THE PROJECT OFFICE, AND SENDING TO: Metro Toronto Housing Authority Human Resources Section 1320 Yonge Street Toronto, Ontario M4T 2W4 ALL APPLICATIONS MUST SHOW QUALIFICATIONS AS WELL AS POSTING BEING APPLIED FOR AND MUST BE RECEIVED NO LATER THAN September 14, 1989. It was acknowledged that the Employer subsequently amend2d ..... the date by which completed applications must be received to _T '..:..:':- September 20, 1989, and that the Employer allowed a grace period of one further day for applications to be received. There ~vere approximately 120 employees from the approximately 700 members of the bargaining unit who applied for the position. After the Employer, through its Human Resources Department, had pre- screened the applications there were approximately 90 applicants ~ho proceeded to the next stage of the competition which was In ~ the form of a written test. A threshold score of 6 0 So \..,0 a s established by the Employer in order to permit an applicant to · ; ~!; ~ã:' " 3 In a letter of September 28, 1990 (Exhibit 6) J counsel for the Employer wrote to counsel for the Union statin'] that sh;~ h.Ôl.d been informed that notice of the hearing had been served cn aLl of the applicants for the competition including the incumbents In the positions and that it was "on the strength of [this] assurance, " that no further notices would be served ,j on the same individuals." We now understand that notice was only served on· the incumbents, as noted above. As above noted, these were the only persons entitled to notice and to participate in the hearing because they were the only ones with an interest to protect. After counsel had made representation with respect to the above matter they indicated that they wished the Board to deal next with the cases of two of the Grievors, Larry Blackstock and Joe Martins. Mr. Blackstock's application was considered to have been out of time because it was not receiv-ed by the Human Resources Department of the Employer at its Head Office located at 1320 Yonge Street in Toronto before September 21, 1989. Ylr. Martins' application was not considered further when he was I., treated as being unavailable for the interview portion of the , competition after having passed the initial screenlng as well as the written test. In the cases of the latter employees, the Union asked that they be permitted t.o be properly assessed by t.he EmploY2r along with the other Grievors who claimed to b(l entitlr::-d to b.~ appointed to the posted position. -. . . ~ ;~~ . 4 Grievance of Joe Martins i1r. Martins was at all material times classified as a Labourer. After filing an applica~ion for thp- posted position h~ was invited to and did write and successfully complete the written test referred to. Mr. Martins testified that after he completed the written test he did not receive any further information concerning his applicat~on and did not· receive any notice concerning the interview stage of the competition. Mr. Martins was away from his home on vacation and on his honeymoon in Hawaii from October 16, 1989 until October 31, 1989. He returned to his home on October 31, 1989, and he returned to work on Monday November 6, 1989. He testified that when he returned home on October 31, 1989, he received a message from his mother in the form of a telephone number from a person located at the Head Office of the Employer, whose name he could not remember~ The message was said to be about the interview portion of the competition. _d Mr. Martins stated that in response to the noted message he placed a telephone call to Head Office on October 31, 1989, but he could not remember the name of the person he spoke to. He did remember, however, ihat the person with whom he spoke told him that it ~,as then too late to be in tervie'..¡ed £0 r the position and the! t his application c6uld not be considered further. - ---~--~ . . ' ,¡" .~ I I I 5 Mr. Martins testified that: prior to leaving on his honeymoon he had filled in a request for vacation time and had then call¿:d f-Ie3.d. Offic~~ a \,,;eek before his hone:1-moon ~'W·as scrll=:duled to commence. He recalled that this telephone call had taken place some time between October 9 ·and 16, 1989, but he could not remember the name of the person he spoke to except that it was the same person .that he later spoke to upon returning from his honeymoon, who had informed him that it was then too late for his interview to take place. Mr. Martins further testified that he first heard that the applicants who had successfully completed the written test were granted interviews after he returned to work fõllowing his honeymoon. In cross-examination, Mr. Martins stated that the person" to whom he spoke at the time he indicat-ed that he was going to be av.¡ay on his honeymoon told him that the interviews were not likely going to take place until after the expiry his vacation. when asked how he had obtained a telephone number and-the name of . . '~ a person to call to inform the Employer that he was going to be away on his honeymoon, ~Ir . Martins stated that he believed that he obtained them from the posting. An examination of the posting (Exhibit IS) clc':=s net show any teleFhone number, and the ¡?erson - whose n~me appears lS tbat of E. How the Acting Manager, H'J.man Resources with whom the Grievor had not spoken. ,.. . .f· ':i.' .,. 6 Mr. Martine also stated ~n, cross-examination, that after speaking to the representative of the Employer upon his return from his honeymoon, he communicated with a mor2 sen~::;r representative of the Employer, whose name he also could not remember, and had indicated to her that he had requested an interview from an employee in the Human Resources Department and had been informed that the interviews had been completed prior to his return from his vacation. It was Mr. Martins' position that if he had been made aware that the interviews would be held during his absence, he would not have left the country on his honeymoon. . Margereth Lobo, a Human Resources Advisor for the Employer, testified on its behalf. Ms. Lobo stated that she was the Co- . -- ~ ordinator of Process \\d"Jose responsibilities included the setting of timetab1es for the oral inte rvie\'Ýs to be conducted 1n connection with the competitlon with which we are concerned. In this case the oral intervie'fIIs '."ere scheduled to take place on November 1 , ') and 3, 1989, with the interviews to be conducted .. by three separate panels. Ms. Lobo stated that the interviews were held on consecutive days because of the need to maintain the integrity .~ f' the process by . . that the na tur.'~ of th:= , .~ .L ~nsur~ng intelLview qlJ2Sri~ns \\I:) l~ 1 d be less likely t,~ b{~c()m(? kno·.vn . c; 1-, .:> L' "- !. ~ '- ,-..1- ~..;... a.';'l th,::.t where a number of c~ays intervened betl~een i n ~ (-3 r \'r i e f.\: S .':Þ L.~ 1-....... ,~.... there was ? greater possibility of interview questions being -~----- ----- - I'- .~ t·J~ ,~ '. 7 passed from those candidates who had already been interview'ed to those who ~vere a'.va i t i ng an intervie~..¡. She stated that the Grievor had been scheduled to be interviewed :Jovember ~ 198'), on .5, and that she was one of the members of the panel who would have interviewed him. Ms. Lobo testified that it was the responsibility of the Human Resources Department Support Clerks to communicate with all applicants who had· passed the written test to advise them that . they were scheduled for an oral interview and they were, at that time, informed· of the time and place of the interview. Ms. Lobò further testified that she had received a telephone call from Mr. Martins on November .7 , 1989, at which time he told her that when he returned from his honeymoon he'discovered that the interviews had already been held and he \oJÍ 5 hed to know ~w)ìcther an interview could now be scheduled for him. She .. info rmeL~ Mr. :VIa rt ins that ~.¡ hi I e she was sympathetic to h'is di 1 emma she was not In a position to accommodate his situation for a number of reasons including the fact that with the' completion of the interviews there was nc certainty that the information concernlng the questions asked could be protected. She also informed him tha.t with the large number of persons being interview'eel there W21-e 1 i ;Tli~s as t,~ the acccmmc:da t ion \-w' hie 11 th,~ .~ Emr...lG~.-er c::Jtl1d make In individual" cases. · .[ fj~ . .. 8 Ms. Lebo testified that she had no recollection of h.3.'Jing, l spoken to the Grievor prier t,~ his leaving on his honeymoon. ncr 'J cn October 31, 1989. She stated that she keeps notes cn all matters of importance with respect to telephone calls in which she 15 involved. She had no notes covering any phone calls between herself and the Grievor on the latter two occaSlons. Vincent Raso, a Shop Steward for the Union in District 4 , testified that he spokè to Mr. Martins on November 7 , 1989, 1n during a telephone conversation and then met personally with him on November 8, 1989. The Grievor informed Mr. Rasa that the person he had spoken to concerning his difficulties was Ms. Lobo. After Mr. Raso had spoken to the Grievor, he then spoke to Ms. Lobo on November 9, 1989 and reviewed the Grievor's situation with her. She informed him that she had spoken to the Grievor and had told him that it was nct possible for his case to be accommodated because there were too many individuals involved In the competition to make this feasible. Ms. Lobo stated that she had spoken to Mr. Raso a day or two after she had spoken to the Grievor on November 7, 1989. ?-Is. Lobe stated that she sat on one of the panels along with ~'!. !V1ct'-]ut. f a Senior Maintenance Supervisor and \vi t h Guy Thcrne a D2~Uty ~aintenance Manager. Their Fanel ,vas scheduled to ::1..=:3. 1 with the case of the Grievor and would have interviewEd. him in .. , - -----~-,- -_. · ."ï': .J .~ 9 the normal course of events. , The decision as +-..., which of the ca.ndidates \.,¡ou 1 d be the c..'~ successful ones was made at a wrap-up meeting made-up of the nlne members of the three panels, being the hiring committee. Scoring- was collated and presented formally at the wrap-up meeting which took place around November 17, 1989. Each panel had interviewed S1-X or seven applicants per day and over the course of the three days set aside for the interviews between 15 and 18 candidates would be interviewed by a panel. At the time when the interviews were conductedr rough scorlng was made but the final scorlng was only known at the \vrap-up meeting \.,¡hen all of the scores were collated. t'ls . Lobo was of the Vlew that it would have been unfair to the other candida te~s to use the same interview questions on a make-up interview that might be granted to a candidate such as the Grievor. In additionr she testified that there- we·re problems of availability of panel members. Her experlence was that it could take between two and three weeks to set-up another panel to i 11 t e l~V' i·~~.'\rv :VIr. :VL::l1'tins. c:, \, '-, was ,-,¡: the further V 18\,,' that the ... :.1 c. ~"I J... ur:.i£c::::·m i n t e r Y;.l i 2 ~v~ situa.tion created for the candidates durin'j t~, .;> ii'...... three ¡J,)ys set aside for the interviews could not be replicat2d. . ;Ji~ ic? 'I' 10 She considered that it would be unfair to those candidates who had already been intervie',.¡ed if the accomodation requestf~(l h,. th-~ J.)~ ". . .~~ Grievor was granted. ~1s . Lobo was a15;) of the -r:"i~le\.v that u..slng new questions which were different from those asked during the three days of interviews would create difficulties and would result 10 a different interview process as well a's a different interview. Ms. Lobo was also concerned about the difficulties that would be:encountered 10 co-ordinating the time schedules of the panelists because of the fact that there were insufficient staff available In Human Resources and In Districts 1 and ') to ensure adequate co-ordination of time schedules. Ms. Lobo testified that a decision was made to reduce the number of a vai.1..able positions from 50 to 23 and 23 offers were sent to the successful candidates during the second and third weeks of December 1989. The committee decided on a 60t pass threshold for the interview and this resulted In the decision to reduce the number of available positions. Ms. Lobo was not certain whether the hiring committee had been made aware of the Grievor's request. She stated that she spoke to M.s. How about the possibility of granting the Grievor an inte rv ie\.¡ and a decision WilS made to maintain ~s. Lobo's earlier (l/?~ision, ~!5 . Lebe stated thctt In c '.:~ :l. s i ;::t~ r i n (J <-¡..". (:;rir~-,,-ol'" 1 s" I_l~'~ rCClt~.t=:s t I S l~ .', a:ì.:l ~ls. HOh ::-.:anc 1 Llí~,?d that the (::;::: i. ~~~ \,. C r has 2 \..... a r~ e ~,+- . ~ .:...:. ..~ L th.=: fact that he ""·as to t)i~ i n te~ rT..I i ~=~ved cn 2'JGvember ') 1ge9, ,:ìOcl . -' F -- ~-- ,-~ - --- . i-· i? '. . 11 "vas also aware of the time and l?laes of the interview. This in£ürmat ion \v,~s obtðined from the Human R2SQurc:es SupPOt-t Cler1<., Ms. ehan Vereen. M~' Lobo stated that when a candidate ¡vas .-..,-.,;- :. ~. ~ l~.... "_ available when called about t'he scheduling of an interview, a message would be left confirming the fact of the interview as well as the time and place where it would be conducted along with a telephone number for the applicant to ca 11. Ms. Lobo st?ted that it was the practice of Support Clerks to keep a written record of the number of calls that they made and the information conveyed. Exhibit 138 1S a memorandum, dated November 7, 1989, prepared by M.s. Lobo after receiving the telephone call, above referred to, from the Grievor. It states that the Grievor: called saYlng he ..·¡as on his honeymoon last week. Did not :;e-t message till return Nov. r: 89. ,.> . M.issed his in~~rview· Nov. ") 89. Ç\lanted a.nother. Told him ..,e -' , couldn't schedule. There t3.re certain notes at the bottom of the pa.ge which ..vere made after Ms. Lobo had spoken to the Grievor which were based on a conversation she had with the Support Clerk, Chan Veeren. :--15. Lobo informed the Griever of the reasons why an inte nriew could n:;t t-,a re-schec1uled which 'were In conformitv with tho's2 j;l b c \- e· "-"~ s ~~ t, - -:; ~..: t. . . . . :-1:; . Ch3.n Veeren, has been emr::doy,:d by the Employer .¡: ~.- f01Je .l. '...' L . · ¿:¡-. .., ., 12 years as a Fluman Resources Support Clerk. In her capacity as an· assistant to Human Resources Advisors, she lS respcnsibl,~ -t:..-. ... ..L ~_. ..L communicating with app 1 i::a nts . - ~, schedule times, plz;¡ces ..Jnd dates L..-'_.l for tests and interviews. Ms. Veeren testified that she spoke with the Grievo"r approximately one and one-half weeks before he left on his honeymoon. At that time she spoke to him about setting up a time for his interview. The Grievor informed her that he would be gOlng on his honeymoon when the interviews were to be scheduled and she asked him to reconsider if he wished to be interviewed for the position. She stated that the date for his interview was given to the Grievor at that time and he agreed to get back to her to confirm whether he would be able to make it. tolJhen he did not, she called him at his home and informed him thàt she i"equired an answer from him as to his intentions. She stated that she went over the following information with Mr. :--la it ins: the date, time and location of the interview. Ms. Veeren, incorrectly, believed that the Grievor was go 109 to his cottage in Ontario for his honeymoon and asked him whether he could come ~n for the interview. He lS supposed to have replied that he wished to have his name left on the list and he would endeavour >-,.., attend the interview. ,'\ccordingly, Ms. Veeren left the '-- ~.... (.; r ie\.:"~-: r ~ s na.me :>n the list ~) f t.hose ts be irl t e r"t.] i,~r....¡ed on :: ~)l:..~ :~[nb ~ r ) 1989. Hs. Veeren denied that she had left sub s eCII.l'~;' t -' , Cl message for the Grievor with his mother or anyone e152 ~ ,f'" the u~ \ I -. --~~ -- ----- ~J;' i.: " 13 Griever had testified. ::1ike Suhooos, who was a District :1¿ti ntena nee 1"1anage .r fc r t hi? Employerat all material times and one of the n~ne persons comprising the selection ·committee, testified that the members of the committee met prior to the posting of the competition and, lD the course of their discussions, considered what would be done in the event that a candidate was unable to attend an interview. He testified that the committee established a policy not to make other arrangements for interviews pµtside of the designated times established on November 1, '? and 3, 1989. The reasons for the - , policy, as testified to by Mr. Suhonos, were the same as those given by Ms. Lobo. He also indicated that he had been present when previous interviews were discussed by bargaining unit employees and noted a number of examples where employees in the field had discussed interview questions following the holding of interviews. In cross-examination, Mr. Suhonos indicated his ê:oncern about perceptions of unfairness should one employee be 'J i ven the opportunity to be interviewed after the other candidates had completed their interviews. In considering the evidence, although there was some l~n::":r=rtainty r,~ the part of Mr. ~lartins, Ms. Lobo and Ms. Veeren, .......LL ~~~ .~ .r t '::t i ~l F -..-.,...... row ,~i r:~ C1231' t" ~ -, r, \c. the Gri;~v'-::r r s t,~st ,,;a s ....... r'..... ..l.. a'~ '_-.=l '.-, l.A,~ . .- " I L'.' l_ :::-; ~: b (~ ;} u 1 ~-,:"\ ~~l ',Jnt i 1 \'o\"emJ:-~2 L" 1989/ it lS unlikely that be ' ~ .~ , ...L...:') correct hlhl~n h<= said. that he spoke to someone representing the ; , ,. -'" ., I 14 Human Resources Department on returning home from his honeymoon on October 31,1989, This ' ~, because he said that clur ing thz-i t ~~ conversation he was told that his interview date had already passed. . It ~s more likely thåt the Grievor did not speak to Ms. Veeren u..n:til November 7 r 1989, after he had returned to work from his honeymoon. . The Grievor says that he had a number to call and that he was aware of the fact that a message was left for him in his absence. From his evidence, he could have called on October 31, 1989if h~ had chosen to do so, and if he had dcne so, would ......"., have been reminded, or at least apprised, of the fact thãthis interview was scheduled for November 3, 1989 and, accordingly, he could have attended it. On all of the evidence we are satisfied that Ms. Veeren had spoken to the Griever prior to his leaving on his honeymoon and that he was aware, at the, very least, that he should communicate with the Human Resources Department as soon as 11e returned home ori October 31, 1989. vol e find that his failure to atte~d the interview scheduled for him was not a ·result of a. ny' fault of the Employer's representatives and that the difficulty faced by Mr. Martins could have been avoided if he had taken reasonable steps to call the Human Resources Department upon his return from his honevmoon on October ')1 1989. -'...- f What2~er 22commodaticn might be required of ar, t:mp 1 ';yer in ,. the case of an employee who, throùgh no fault of his own, missed --- ------ - -~ . .'.i, ~, 'I 15 an interview appointment, no consideration need be given by the Employer to an employee on the fa:::ts ~)f this case. The situatior.. that thc::' Grie~/or found !Ümse 1 f 1n was larg21~{ ~ res1..l1 t cf 11 i ~; .:) ~'I¡ n ,:J. failure to do that which was rè-asonable In the circumstances; call the Human Resources Department immediately upon, his return from his honeymoon. In the case of E'ernandes 212/87 (Wilson), the Board concluded at p.12: . . . The grievor's inability to attend. an interview was the result of his own circumstances which [the representati ',;;= of the employer 1 had made an honest effert to meet. Applying an objective test, I do not find that the Ministry was required to do more. A judgment had to be made about gOlng ahead. It was not an unreasonable decision . . . . A balance between the needs of the competition itself and the situations of the individua.l candidates has to be struck. On these facts the decision taken not to postpone was justifiable. - On the facts of the case before us, employing an otjE.'ctive test, ....ve find that the decision of the Employer not to glve the Griever a make-up i nte c,-ie',,¡ was justifiable and his grle':-a.nc~ must therefore fail. - Grievance of Larry Blackstock , ~lr . Blackstock, who 1.s a Serviceman General ,vith the EmploY2~, , an a¡::lJ? llC,::"t ion for the pt)sted I?OSl.tl~)n to \..... ':":\ ~ ,31,~lS e CL 3.-.' ,._ d ;.?; I 1. '".- ~,~ t" ~.:\ d 1-.,.- l.....:. r-. hif:" l~ t ¿'FF~-C:': im':i t':è 1 y ~:2[) r·~ ~ l'n .. C)rì. S:-~F:t .'--:mt;c" ~ ')') ,- , .., .L.':l _'0.' t 19_;~: 9 , ... - .... 'k <::. p:-oject ~+=f;~~ ,~'h'ë:re h·e tv'::~ t- 1(2::1 at 1 r: i 1- T~/~~ 11 2}: l- ._~ '--1 L'_ '-...-' L __ ..:.. ~~ _ Ccurt, S ~:: c'l r bc~ rClug h , Ontario, after finit obtalning a job . .,. I., . 16 application from that office. Mr. Blackstock testified that '.",hen· the application was de 1 i \'''ered t:-.J th2 project office by his 'v i £ e , he remained . 1· automobile outside that officê~ H"" also ~ n ,) l S stated that he had previously applied for other positions by delivering applications to the same project office and had relied on the inter-office mail system to effect delivery to Head Office. On October 4, 1989, Mr. Blackstock became aware that a number of employees who had also applied for the po~ted position had received notice to attend and write the test which had to be . passed in order to move to the interview phase of the competition. He then·placed a telephone call to an employee at Head Office, who he knew only as "Lena" and asked her why he was not on the list of applicants who could write the test. ~"hen he could not obtain a satisfactory answer, he called Ms. Clare :-lo:vl i 11 an, the District Housing Manager, District '1 and advised - , her that he had be~n prevented from writing the test. Ms. :1cMillan IS said to have advised him to attend at the s· i t e hi her e the test was to be written and that she would arrange for him to be able to write it. Mr. Blackstock attended at the,test site on October 5, 1989 at 8:30 a.m. and spoke to Mr. Suhonos and to Fr.3.nk Jelley, .:;. no t he r Senior Mainten.3.nce Supervisor who was also ~::' n th~ C(~rllpetitic)n committce, ~3_ n (] informed tl1f::~m of what Ms. "!c~'li 1 bn had told him. :VI r . Suho nos t DId ~'l r . Blackstc~:'k th2it l.....2 ,,¡ould not be permitted to write the test because thc~ ~~(= \v"a S a. . -~-----...- - - ~-, ¡: ,. ~, 'I 17 "strict orde r " nct to permit a person whose name was not on the list t ~~ '." l' it 2 it. ~lr . Blackstock then placed a telephcoe c:i.ll L. '.' Ms. Mc~i 1 L::tn who then spoke ',vi th Mr. Suhonos. In the reslll t. r \,.r\·· .:..ll. . Blackstock was permitted to write the test, his answer sheet was placed in a sealed envelope, and he was told by Mr. Suhonos that its being marked depended on a further decision being made. , After he wrote the test, Mr. Blackstock attempted, ever a period of several days, to communicate with Ms. How in order to find out his status as a candidate. His initial attempts to reach her were unsuccessful. When he " reached her on October 11, 1989, he was informed that as no application had ever been . received from him by the closing date of the competition, and that, in fact, no application had been received from him to that date, his test could not be marked and that that was the end of the matter as far as she was concerned. t-'lr. Blackstock stated his position to Ms. How, which he ma.intained throughout the hearing, that his application was, l-' I' fact, filed on September 20, 1989, which was within the' time . limit, and that he was, accordingly, entitled to write the tes~ and to have it marked. I t \~a.s ·:l~ L B l,}.:::kst:JC k r s irrq~:c(~SS ion that ~ts . H~)'~",¡ 2 nd\~a \+c u r i~cl tc -:~ (;. r1 f i. r!n his r,,',: i dence about the d81iver~ of the a f);::;! icat i:?n (;n Sept :?rnber :;0, 1989, by communicating with clerks tv·ho tv·e; rked In ,--- - , . .~ &., ·1 18 the Human Resources Department at Head Office. Tt- ~VI)S the evidence .-..F .'\.-1_ Blackstock and his wife that h(~ -'-~ ~-' J... ~ .I.L. . had been released from hospital on September 20, 1989 and that his wife was present when he completed the application which both of them reviewed before it was placed in an envelope. It wa.s Mr. Blackstock's further evidence, based on his previous experience, that the filing of an application at a project office by the closing date of a competition was accepted by the Employer as if the filing had been made at the Head Office with the Human Resources Department. His reasoning was that if -; the application form could be obtained at the project office, then the completed application could be filed there as well provided that this was done prior to the closing date of the competition. As noted above, it was ':-!r. Blackstock's evidenc2 that his application was delivered by his wife to the ploject office at approximately 2:30 p.m. on September 20, 1989. He acknowledged that the inter-office mail was picked up from the project office cnly once a day for delivery to the District Office, ancl", after sc~rtingr was delivered from the~c tu Head Offic0, and. he stat~lcl I-l......... -I- h:~ did nc~ t ~, n ;.) \....' \\f h 3. t t-> t h;"! ma i I pick-up £r:Jffi the E¡r-¡Jject ,_" 1 ~ -:.;L I~ ,-lme cffice llst¡,J,ll \- ::)ccured ~ He also stated U".,:¡,t there ~'rier(~ scm,2 c.lays t.,:hen there ',.' a s no inter-office mail delivery and that the n ~. . . . 'I 19 .. detivery time fer mail frem the project office to Head Office wa~ u~certain and could take anywhere from two davs to/in rare c~ses! :3èveral months. In cross-examination, Mr. Blackstock testified that the application was completed by him ·while he was 1n the hospital on September 17, 1989. It was then placed in an unsealed envelope and glven to his wife along with another envelope containing a letter from the hospital to the Property Manager. When he gave the envelopes to his wife he told her to deliver them to "Dorothy" a clerk at the project office. Dorothy Mason, a Support Clerk employed at District 2 at the project office at 1 Fir Valley· Ct., testified under subpoena. She described her duties as a Support Clerk as being a front-line position and said that she handled incòming phone calls, m~t ,~ith clients, tenants and others, served as a receptionist and received and distributed mail. It was her responsibility co sort the mail for delivery to the different offices such as the District Offices and the Head Office and to place the mail in the appropriate bag f6r fDrwarding. .As soon as she rece1ves mail she makes certain that it is [!r:~?2rly j~lddress2:i~ The hags cf Œ13il are f~lcked up f8r :i:~li~-!~r~· ~::~ th2 Distri~:t ()E£i[~2. At th2 Oistri::t Office th2 mail lS ¡·outed to its final destinQti.8ns iJ1cluding Head Office. A Scnicr · I ~, ... '" 20 Groundsman picks up the mail fer delivery to the District O£fice~ Yls . :Vla SC:1 t.::~st if ied the then? ' ~ cne pick-up a day and it lS ~'" usually occurs between 10:30 f3.,..m. and 12:30 F·m. Ms. Mason stated that she knew the Grievor's wife as a result of a previous introduction and on the basis of her having picked up the GrievorTs pay cheque on three occasions while he was in the hospital. She recalled receiving two envelopes, at about 12:30 p. m. , from the Grievor's wife both of which were, regular sized wh~te envelopes. One was addressed to the Senior I Property Manager at 1 Fir Valley Court and the other to the M .·T . H . A . Human Resources Personnel Section at Head Office. Ms. Mason stated that she put the first .envelope in the ·mail box for the Senior Property Manager at 1 Fir Valley Court and placed the second envelope in the mail bag for ultimate delivery to Head' Office. I .. I Ms. Mason further testified that the mail was picked. up I before lunch time on September 20, 1989 and she \~as quite certain I about this. We are satisfied that the Grievor's recollection of the time when the envelopes were delivered to Ms. Mason is mere I likely correct, and that the envelope addressed to Head Offic2 w()Uld not have been picked-up on September 20th as the mail har] .:1 1 t" c_~ .3. :-1""'-l left by th(·~ time the Gri2\l~)r ~ s \áf:~ had ::1::= 1 i v ;" l- ¡~ ::1 lC r'" ."'-- \ls. ::>1ascn. - ~--------------~-- I : . ." "f 21 M.s. .:"1,] son also testified that on rare occasions certain mail (time:::ards and. lists) ¡vas treated as h a '..- i n 9 3- E:Jri8.t:ity E ,-. " r 1, '" ,~ ... purp:)se 0 f del i'v·ery. She a 1 s:~ stated that r' r. 1- ::òC e 1. f't s i.'iere -j l \~ \:; n 'v for mail and that she never stamped envelopes presented to her. We are satisfied that the mail which was given priority for delivery would not include applications in response to job postings. ~-, ';" Mrs. Wendy Blackstock, the wife of the Grievor, testified that she. delivered the application for the posted position . ~·.r· . completed by her husband to Ms. Mason along with the other letter I referred to "after lunch" on September 20, 1989. She testified that she advised Ms. Mason that it was essential that the I application be received at the Human Resources Department at Head I Office by September 20, 1989, and that the application was addressed, and that the envelope containing the ð l? l? 1 i cat ion ¡..¡ a s stamped by :VIs. Mason al thowjh no receipt ¡.¡as issued. Although there was some difference betwen tbe evidence of ~rs. Blùcksto~::k and Hs. Mason in this regard, it does not affect cur finding th~t the application was delivered to Ms. Mason on September 20,1989, at about 2:30 p.m. Mrs. Blackstock did not see what was done with the envelope but Ms. Mason told her that she would look after it t >lrs. Blackstock stat.~d that :-Is . i'lason did not tell ,-"",.Q r LL-_ L t.hdt thr:, mail l-:.ad ;",1 ready 1 ;~ft before thE:' 2i. L='F ì 1. cat 1. 0) n ',"¡ .:¡ s dt~liv2r2d t~} her. . - . ,. , 22 Ms. Lobo also testified on behalf of the Employer in the C2..se of ~Ir. Blackstock. She stated that it h',3,S the p0Ii;~y ê":£ tb(? EmploY2t to place applications received late in the competition file but not to treat them as part of the competition. In order for an application to be considered by the Human Resources Department, it had to be received at Head Office by the deadline stated in the posting, in this case the amended deadline being September 20, 1989, with a day of grace being a 11 owed. ' I Ms. Lobo stated that after receipt of information that the Griever had filed an application, she arranged for a search to,. be made in an endeavour to locate his application but it could not be found and it had not been found to the date of the hearing. Ms. Lobe acknowledged that the Griever and one other employee wer~ allowed to write the test in circumstan~es where the other applicant's application did not arrive at Head O.f f ice in time. In the case of that applicant, however, the circumstances were said to be different lti that his applica.tic:1 had been delivered to Head Office in time but was not forwarded to the Human Resources Section by the receptionist whc received it. :l r .. Su.hcnc~~ ,.:; 1 so test if i\~d F,~ ,- '- t-. '"""'- ~ """',..-.. 1 r-""'- ':-:-. ...~ t r-.~?: {'; ,:J.. S :~~ ,_, c --'-- ~"'" .L 1... Ll~_ _ .l.~'...... ".'''::: \".:.. 1. .......L "_'1.. 'ft". ßl¿i.~·k:~tcck . (¡'J S t,)c::d tha.t hf.::: had ins t :r~c-r: iC;!1s nct: t~) l?~·~:·rnit :'.1... . , «" any applicant to write the test if his ,-,'\,4 r1-l~r nam(~ ,,'a~:; 7"',0t ,-,..-, +- 1.-. Ó '..'J.. '-" 1 ... \.- L l \_ --"---- : # .. . 1 " 23 3ppraved.·list. Because he could nc:t obta.in information that the Griev:Jrts appli::ation had been submitted ' n time, be mZl~:1~~ r,·¡h,j,::: 1:1 :=: .L. . r c~ f c\ i· t~ C~ d t c as a IT j udg(::'m~~ n t calltf and permitted th.:: C r' i :=c " .~' r t·~ write the test and placed the completed test in a sealed envelope and took it to the Human Resources Department with the intention of having someone there decide whether it should be mar.ked. Mr. Suhonos stated that the difference between the case of the Grievor and the other applicant who was also permitted to write the test, . subject to a decision being made as to whether the test .. . would be marked, ·was that the latter applicant was fcund to ha \7e filed his application in time. . It was argued on behalf of the Grievor that as he had filed applications In the same way previously without complaint his application should be deemed to have been filed In time: that lS, GD S'eptember 20, 1989. Then~ was no evidence to shc\'I/' that t ~i2 Emplo:{er had in the past accepted applications whi¿h arrived at H~~¿ Office after the grace date. The fact that the Gri:-~"C.7C:::'- h,,,,d filed applications in the same way In the past does not establish that the Employer had treated applications as having been filed in time when they were filed at the project office before the clcsingdate for the receipt of applications. ~ve did not hea;>: .~ ~\7 1 d. ,~= nee ,3.- S t:) \v h:,? r1 the GrieFo]:' ha.d f i L?d his 2Fplicatians ,], !:" the ~, ... "., -, ,-~".-.'- ':.:f f i ::;,-=- 1n the.' l?.J.st. Th2V CCti I ~~ h ci \' e br-:.IC~ £ i l::?d -; ~... ;,.,. ..,. )".'- '" .l....1 ~uf.E)_::i2L1t '[ line b;~ £ 0 C ,~ t~e ::: L) sin '=J (1.:1, :: ~2' so ,~lS t~i . , f c'. t- t h ;-'~ i r- r~L.1. 1:,) ,~..¡ }:; ,"'~\ i. n 9 rJ (": 1 i \/ ,,~._. r ,::_. d tn Head Of f ic rõ: thrcuc;h the int[~r-nal mail S \T S t f~ m . ~ .' . " 24 before the expiry of the o;¡race day referred to. C~.)unsel fGr the Union ~~nde3.voured t::. make something of the fact that the current practice in posting notices of job vacanCies is to state that the applicants must ~ensure delivery to Metropol·itan Toronto Housing Authority, 365 Bloor streett East, Toronto, M4W 3L4~ and to further provide that "all applications must be received by Human Resources no late:c than í a stated date) (Exhibit 16) . This was contrasted with the provisions found in Exhibit 15. It was argued that the ·job posting information in Exhibit 15 did not require that the ...+ application be received by Human Resources at Head Office by the c.losing date. while the current practice is more specific and represents a clear direction to applicants, the directions found in Exhibit 15 are sufficiently specific so as to require that the application be received at Head Office by the closing date, sllbject to the Employer's allowing a grace day. It was the further position taken on behalf of the Grievor that the Employer had to make reasonable accommodations to' permit an applicant to write the test. The Employer was said to have acted unreasonably because it did not mark the Grievor's paper; because it refused to do so withcut seeking guidance from the ~-_.: ::~ fr:_m i t t ~~ c~ 2 S t: (~i b 1 i 5 [t ¡'""~ d to ch8,:::s2 the :;;Llc2essful (:~ ¿~ n r:l i d .} t e '5 ; ,~in::1 ~~; C:-:.,; j].:':::; C no p~ejl1di2C W~Jl11d be suffered by 3r:.1;"" otru~r a r?l) 1 i C à n t s Co' r bv it Employ!~r ·F it permitted the Grievor's paper to be m,J.rl;Ç2d. l-<- ._~~--- . .. .. . 'I 25 Counsel for the Employer argued that the Griev-or was \.,¡~ll .:ì. ~yVa re Q f the -t:'--",-.1- ;.. t., - ' th;~ mail often tock s e '...:"" era 1 cia -,/ S t 0 a r r i ;,,~ 2 .L <.,;.1 ,_ L- L.uct"C a.t H0ad office £ rCJrn "the fir Valley C8urt pt'cj·.=~:::t r)ffice-. In t. ~""'¡C circumstances he was said to have accepted the risk that the application would not be delivered before the grace day. On the evidence, we find that that the Grievor took unwarranted chances when he chose to h,ave his wife deliver the applicatìon to the fir ." Valley Court project office on September 20, 1989 at 2:30 p.m. when he knew that there was a good chance that it would not be received at Head Office by September 21, 1991. The wording· of Exhibit 15 indicates that the application must be received by the Human Resources Department by the closing date and not that it would be deemed to be received if delivered to some other office by the closing date. It is not only a question of whether other applicants would be prejudiced or whether Borne detriment would be suffered by the Employer in permitting the Grievor's exam to De marked because hi::' wrote the test. It is also a question of the integrity of tbe precess and of the right of the Employer to establish a reasonable deadline for filing applications. The fact that it voluntarily afforded a grace period does not mean tha't it was ;-::bllS-?d to enlarge that ¡Jcriod. The f a:.::t that the applic3ticn :'\-",.1 :~ 1:) s: (~~ a n n~) t at-fact th;:; £ .3 ~:. t that c~ \T e n if t his ,-" e r 2 !lC; t t h.£-=~ C,1S(___~ It ¡,,¡ou 1 d ncthava arrived at Head Office u nt i 1 SCHne time aft e- r"' t 11 ;~ expi 1'y ;:;f the 9~ace period. ç^Je are alsCl affected by - " I ; ~ .. . -t 26 tlìe fact that Mrs. Blacksock's recollection was that the the er.velope contCiining the a¡;:plicatlon. ,vas delivered t-,.., Ms; ~·1.3. S c r~ <-,~ uns"::a.led. ::1s~ Mason believed that t: 1~ ~~ e n ~\<_r ,= l~:.:: pe had ben s,;~aledf .c ~ L{_ but she did not seal it herself. In the circumstances it lS quite possible that the application somehow became seperated from the unsealed envelope, and this lS a not unreasonable explanation for its not having been found. The Employer cannot be faulted ·,fQr the manner in which the Grievor chose to transmit the application. In the result, Mr. Blackstock's grievance must fail. At the commencement of the hearing on March 8 , 1991, a question arose as. to the obligation of the Employer to produce certain documents requested by the Union. In a letter from counsel for the Employer to the representative of the Union, Ja.ted October 26, 1990 (Exhibit 9) , the following statements f~..¡e.r~ made: . ,-- ~ A request has been mad.e by Wally Devoe for documents ~yf the successful candidates In the above matter. The request ,.¡ a s forwarded to me as the hearing is underway and I am retained 3.'" counsel fo~ Metrcpolitan Toronto Housing Authcrìt:y. As '- .:> you are acting for the unlon 1n this matter, I am directing my·correspondence to you. In the event that.you wish my correspondence to be directed to anyone else, please indicate this to me. .'\s you may be a1.vare, the Freedom of Information Act [.1rohibits theaisclosure of Fe rsona,l employment information, , -, r~ ,::in emr: 1 ~)~'~~(~ t S dcct:men-:'3 relating ¡"'" a jc:b-' r-' 1 ~ .-. "') .:;, o..A. ~_ l ~ 0':> L..\_' :. ~) rnE~;~ t ~ t i G u ~~¡ i. t h.:~~t~ t 4- 1.-, --.. ... ~=:m;~IG~l".22 t 3 ¡, r i t t (} ;; ~:-~) ~~ s::::·n t . i.._ ~ L....1 ,_ .- Thr~refc 1'e ~/.¡ ~:2 ca n n~)t dis::: los:~ the m,:t t í~ r i 31 r ;:"(1112~':; t ~~;-1 :; t t:hi~; t irne . H(~~~e',,"':::::r ~ ..; ç ~{O ~~ 0 eta. in ~...~ri ttC"D r'::Jr~s¡?nts frem ;:: h.2 -'- "- S 1)2 -:"".: ~:~ S~: f u 1 ~~a ndid.a t¿'s 'i....~ 11 i c b \v 0 U L: <-illcw U'" "'r, r~:: 1 f...: Ù :3 e t~-;2:'~: '- L-'..' ;':'.Jmp,~t it ion dc~cuments to ,----,.. ., w'.:? 'Nill be ha.ppy to relr-=,3S;= .::: ~~ Vl , the dCC'L:rnr-~nts . I --~~.~--~- I õ' . , '. 27 The Employer was concerned that 1 ' certain of the re.Leaslng ~~l () ::> 1_tm~~ n t ::; r,-=>qu,,-, s t 2::1 \,;OU 1 d result lO it cGmmittin'j a b r !e>3. é~ h ~ - t r~::.~ F¡'('edcm c£ I r, f r; nna tic 0 and Prctec:tion of Pri'çac-',t ~ ,-.... 19::9 S.C. .""";;. '0- !_ I 1989, cap25. We are aware of the fact that compliance with the latter Act, because it requlres the granting of an order by a tribunal such as the Board could have a negative impact on the amount of voluntary production that has been made In the past. ::-.levertheless, the concerns of the Employer are real and must be examined. An earlier panel of the Board In Cheong 1895/90 (Gorsky) , considered the same problem and some q£ the comments that are pertinent to this case are reproduced: The parties appear before us In orcl.er .that we might deal with difficulties that they have experlence relating +-~ the <--v production of certain documents sought by counsel for the Union. The parties brought to our attention an award lD another c,::tse involT.;ing the Grievor in t rle case before us, OrSEl' (C;¡eí) Ïìl:t ì and The Crí)wn In RìG~t of Ontario (Minist pc " 1= "_. ~.i- Gevernmànt S~rvices) 325/90 (Samuels) . In thd.t ca s~~ f th¡~ Grievor also 21aimed that she ought ...~ naT...7e been tb:~ '.... ~....- su.cc e 53 £~--11 candidate In a jeb :::ompetition and that the Employer had violated Art. 4.3 ,~ .¡: the ccllective a'Jreement. '_'-J-.. CQuns(~l for the Onion, in preparation for the hearing lO that ,.--.,¡-..,.....~ caused the Board tc: issue a summons t,:) the \_a.,::¡c f Employer, requiring that certain documents be produced. Counsel for the Employer sent a letter to counsel for the union, dated December 7, 1990 which read: I am In receipt of the subpoena issued 00 behalf '-. +' ,-.J.. your clí~nts l!1 the above matte r. In 0rder to clarif~~ Y:Jur Goderstanding :'J£ the Em¡,:;loye.r's ¡?osition ~li i t 11 rcs~'ec t +- ~, the ~J t· (J d Ll C t i:-:; n cf dc~.~umcn t s , E-' 1 -2 ~3 S e 8,"::' '- '..~ ':1;:1 \C" i s ~~:] that the Empl:::,y,~~· h -. r·· f};) 8 b j i~~:' t i ~J n r ~, ;:. t" .:: Ö t~~' ~ n.'~t ll~';<' .j ,-.... - - t:"'.;:"·s e uCJcumcnts £r:::::m the con)L)~~~t i tc lGD fiL~ hhìch .:{ !- (-~ di..t~2~:'tly l:elat<:::d t:) th,~ C: t- i:= \.,.~~ ,r r ~) !"" ~v11i(:,~ .3. 1-- ;.2; r .~ 1 e 'I ,::t n r: .. t .~ t Lc; 2JS:~ . rrl-.o'--) Em!? 1 ~:; y ''::::.: ! h () \;' E' V ;" r , c ~J 1.11 d I' ,', ¡.- ,.... ...... ,-~ ,.::¡ , , .-.. ,-:' .~ ...I" -J. ~._ 1....... ,~ L-.c.. ~./ ..... '-.-.,~-.- f8r YCl.l r 2ii.tire ::;ompc~t ì t ion file without a d:~t ':" i 1 ~~::1 d('~scri.l:;t.ion of tb,~ documents requ~stcd-. :'he only , " . ~ 28 ~ documents which the Employer will net produce to yeu ;...¡ i the; tt t ~Y' o rJe l' :)f t.he.Boarc1 a.ree thos,~ \v' !ì i c ;:]. I .;. - .-. LI. ~. ""'"- ~ i. L ~ 'J \·let~ , ar.:: net rel(~\.cant to the C,~Sí::' t ocr th:::se ',·,h.i:::h ~: a r~n~:t "l-..c. rel,~ased llnd(~r the p rO'"r 1 S 18 ns ,~ ~ tl1C:' Fr,~ed(~rn ~"" .~ J.. of Information and Protection of Pri'.'Clc,y ,=let. . . . At pages 4 - 6 of the decision referred to, the Board stated: The parties then showed up at the hearing expecting this panel to rule simply on what documents ought to be produced, and then it was taken that we would adjourn, having ess~ntially wasted an entire day of the panel's time. It was the understanding of both counsel that, ln job competition cases, this Board no longer begins right in to hear the evidence 1n a case, but rather the summons 1S not answered properly and the Ministry waits for the Board to order production of documents. The first day of hearing is taken up entirely with this matter of production. We informed counsel at the hearing that, although such a procedure may have occurred 1n rare cas,~s before at this Board, the policy and practice òf this Board have not degraded to the point where such a colossal waste of time is made on every job competition case. This Board 1S not the creature of the parties. It is created by statute and is funded out of the public purse. The parties must do whatever lS necessary to facilitate the hearing, to coc[1er.J.te ln a reasonable fashion with one another, so that this Board's time and enet·9Y are used effectively. . It may be that the list of dccuments lO the summons 15 somewhat too extensive--it 18 not immediately apparent that one needs "the entire contents of the competition file", or "all resumes or applications fer employment for the said position by all of the applicants" (there ma.y have been thirty applicants, twenty-seven of whom were n~1t even qua 1 ifÜ~d enc-=ugh to t"8ach the in t e ]:"'\/ i ,'?h' S' t .3. 'J,:-:: ; it \'llOU 1 d S L1 £ f i ;::' f'2 ;.¡: th;~~ cl~)c1..1m~?n t s r.'l;"2 r¡:..~ J..J.. r ~ r c:~ \~ i d c.~ d F..-, -.- thG S UJ~ ::~ 1:! s s f u 1 ..JL:~.pl iCdnt ;::ï n~l eCL'hap::., J.........,_ £'J!' t hr:~G ~-... "'... ~"-'I' """" sf L-~~ closest r: i "1"'/":'11 ::) ) - -1Ju. t ' ~ 'j .l. ~~.J \.\.. '''''¡'- ...L ~ I 1 a :r ::JC'~ [11(~JSUl-e it ,\'as .r-¡?a. s(~ na. b 1 ~~ .. Th~ :VI i n i s try ~s net ne~v tc this g<3.me 41 Th,= 2>1inistry said in its letter of December 7 d-ì",t it --- -~ . - . , 'I 29 was ~vi 11 ing to produce any document relevant to this ,.--..~t:Cl; But. +...1--'::-:':'0 l,ìst· cf docc.ments '."hich .~ ,~ . ,..:¡ "- '_4"J '_ . t. L ~ ~__ l,- ......~ l,_..l release ~-Jere Ob'lious 1 y nct all the :' e 1 e \C ant dccumerL-ts. ~ 'The Ministry did net turn :::\~er a.~y cl,') cume n t. s relati!ì') to the s l1 c' c e S S £ l..ll applica.nt, ncr any other applièant. Now how could the Ministry not have known that these documents Were relevant? How could the Union have possibly prepared its case if it didnTt even have the documents relating to the successful applicant? The Ministry1.s r-esponse ~n its letter of December- 7 \.,¡as absolutely inadequate. The Ministry was ordered by the Board by summons, to turn ever the relevant documents. The Ministry failed to do so. section 11(a) of the Crown Employees Collective Bargaining Act glves this Board the power "to summon and enforce the attendance of witne,sses and to compel them to give......written evidence". The summons itself lS enforceable and ultimately any person who fails to answer the summons properly can be cited for contem['t of court. There was no need tor any further order ~or production of documents. The Board had made its ~ -,:,'" . order In the summons, and the ,"Ii ni stry improperly failed to respond tc the summons. Nonetheless, at our hearing, we ordered the c.,_).-L.. Ministry to turn over the resumés and applications of the SlX candidates, the scorlng sheets for all c:andidates, any notes In the competition fi12 relating to the scoring of these candidates, ani any other clearly rel~vant documents. And then we were forced to adjourn because the. parties were not ready to proceed \vith the hearing. This was a gross waste of time. (Emphasis In the original) On January 10, 1991, the Chair of the Ontario C r O'i..' n Employees Grievance Settlement Board wrote the following letter to the representatives of the parties: Mr. Brent Gibbs Mr. Kevin Park Director Grievance CDO rd i ria t~~~.. Empl~Jie¿~ R21~ti()11s Branch (ìnt2ri~; Publi~:: s::,,' ,. i ::·2.· ELlmdrl R2SCUrC'(~S SeC' .r·,~t.3. r ia t SmFloy;~{~:.:; T - ¡.-, -~ ,., .... ...... I . ..... '....' . ~ M2 iìa.0 cm(~ f¡ t. Boar.d of Cabinet 1901 ':::::~'rl9;2 St:.re~~t fc:,sf: Building S :) 1) t h , 3rd f 1,.:::;; r T;::roilt;~ I 't: ' (J n .- t,-; r .1. :) ~ Queen's Pa rJ<, R ~') c. rn 240 M4~, ~Z5 ,. TCl'onto, Or..ta.ril) ~T7.~ 1z5 ". > ,j, . .. 30 . D;.~~r Ylr. Gibbs and ::-Jr. P",rk: ~'Jhe re' the emplcyer requlres 3..:1 Order Df the Board lrt order tG pr:')-duce documents In j,~h ::-cmpet it ic',n C' ..?~ S e s ~ .3- ~-' request in writing shall be filed with the Registt"ar by either party prior to the date of hearing. It would be appreciated if you would please advise all .counsel appean.ng on behalf of the parties of thi.s practice. We were informed that the letter of January 10, 1991 was intended to respond to some of the Employer's concerns arlslng out of the prOV1Slons of The Freedom of Information and Protection of Privac'~ Act. . . . The I?rincipal issue which was put b,~fore us t....:¿L S with respect to how the directive of the Chairman, dated January 10 of 1991 was to be implemented In the light of the Employer's obligations under the Freedom of Information and Protection of Privacy Act, 1987. Before dealing with certain other matters relating to -I-l-"ð L L ~~_ production of documents which were raised at the hearing, W·.::J. L will first deal with the principal issue as identified above. pd though it appears f l::)m :vis. Sil ,/erman I s lett:~1:' of ~laf'ch 1 L, 1991 that documents containing the names of other individuals would be produced if a Beard order to that effect were issued, \'!I~e were left ...á t h the further ':'SS1..12 of ~vhether such an order ,.ou} d conflict '..,¡ith the FrÇ:t.,~c-c ic r~ prCV1Slons of the Freedom of Info nnat ion and Protection of Privacy Act, 1987. There appear to be no cases that have questioned the jurisdicti,on of the Board to lssue and enforce production of documents pursuant to a subpoena duces tecum or to lssue an order for the production of documents lrl the absence of a subpoena duces tecum being issued first. S~c:tion 19(:2) of the ç t'c<,,'n Emploi'ees C:-J 11 e =:: t i \7 f=," E<L¡- 'J .;.-; i!1 ~ n J .'\::"::: s.. S-'" 0 . , 1930 cap.108 F C~) ',..- i c1 ::: s th.3.t: " t 11(~ (~:~ i.=:; ~/ r3. n:--'~~? Settlement Boal'd has the same powers as .3 Boarct ~) f Ad:;it ration und,:,=r subsc<:.:t i c-n s (i 1) and ( 1:2 ) . " Tbi:; [ e 1 e '.~.3- n t P()!·t i.C1!')s of see t i ~~, ;--1 11 ( 11) c' £~:·t h e 13.t:t2Z" ~~C't .:1..::.+:= .:\~ £ c: 11 O'I'¡ S : "( e) to summen and enfcr'_"e the at_tendance of \r\l.itnesses a r~~~ to c ~)mrJe 1 them to sive oral ::Jr ",Ii l' it ten ev iclenc e (;C:. :,,:tth C1' . - -----. - - , - . , ,. * ., 31 affirmation. . . I, There has been an assum~tiGn made' in som'e tha,t th2 Bc,rJ..rcl t' j u r i s C.1 i c t i ~) n t i ~) n +-~ :::r::12l" the ..... -. r--,.....~..-- h~~ n""3 ...... (.:.:t~I_~ "'-ð '-'-' P r ~~~~d.l¡~ t i 8 n ':~ f J:Jcuments r,~lying on the p:rovlslcns r:;·f sectlcn 11(11) (a) ~) f t :r~ .:~ latter Act. If the Board has the jurisdiction to issue an order pursuð.nt to a sub¡Joena duces tecum or without the issuance of such a subpona,then the provisions of section Sl( 2) of the Freedom of Informqtion and Protection of Pri v.acy Act, 1987 would permit it to compel the production of documents as it could do prior to the enactment of the latter Act: The Act does n~+- affect the pct,¡e r of a tribunal to '-'c- . . . compel a witness to testify or compel the product i::;n . cf a document. In Re Toronto Star and Southern Ontario Newspaper ·Guild(l983}, 11 L.A..C.(3rd) 249 (Swan), ';"¡hich was ::l,~c i12d under the Labour Relations ,3.ct, R.S.O.1980,c.228, ther2 was an lssue (at £1.250) ccncernlng: "the extent to \..; hie; h th2 union can compel production of documents from the employer in order to permit it to make its case at arbitration." .'\t the hearing the only matter argued was the extent .to which '. the arbitrator had jurisdiction to compel the production of documents. The argument focused on a subpoena duces tecum prepared by counsel for the union and issued by the arbitrator on May 18, 1983. The arbitrator noted, at p,251-2: The employer's argument lD this case takes it cut cf the :::-3. t ego ry ~f rec:ent decis18ns r21atin9 to t rl¡~ '-'~ aut her i t lor of 3.D arbitrator- to 'crder productiGo " f '~ - documents. ~Iost of those cases have turned upon the question ~.- whether an arbitrator has the,authoritv t8 ~L order~ In effect, d i SCC1v72 r'i ~¡: documents prlor to t: hr::: '-'-'- arbitration hearing. ~vh i 1 e the situation may be somewhat different ln British Columbia, where the Labour Code, R ,,5 . B . S . 1979, c '. 212, ~ 102(1), glves a "'. board of arbitration jurisdiction to compel witnesses ntc 9 rc~~juc e the documents and things it considers requisit'2 full . d . . the t~) a CQnSl~eratlon..9ln S·3.ffie m,ê,nn('2r '- ~ ~ L' C ~:~ L1 r t ~., re~::8rd ' ~ :::- i ',- i 1 :':'~.3 S ~~ S ,. ( 3;::e F: .=, Pacific c"t ."". .-,...... P ~-:? ;=: ·S' LI~(l. ,~nd v--.-).:.."1 C~()!) t -/;: r - ~\] f~~-1Ì f~'estmins t 8[ ~Vi:¡.¡spa:_;(·:,- (:J) ~: 1 ;] r ]-;,)ca 1 115 (lS?~:ì ~ L ..~. c. ( ~ ,1 ) " 1 h i \'1,-.,-.".1 1 ... , ............{ ¡ , . , -....._ '_ ...... i-. L . I ,êtl' bit r ':" t c .c s -,-" C)n t 13. r ic h <3. ~.; <::; In ~e~era.l C'cnc-luded th3.t t}-¡:::; j u. L~ i S ~-.ll ~~. tic· n '.::Qn f;;:: c t'cd 1.1 f.'C) n. "them bi.- th;~ L..?J, b~),.'c: r R e 1._~ t ion s /;, '2 t , R,S.O. 1r¡qn ::.~28, ::h>:: s :181: iricluJe ..L -" (...."... , -" jurisdictic;n to c r d e t- l?re-hea,ring d i s c ~:: T'¡ ~~ r y ;j f documents. The Cd ~;es are collected in Re CLty c;f C;'ue lph I I ; ~ '. . 32 :wd Guelph Profi2ss onal Firefighters Assoc.. Local 467 (193::2) . ~ T "'\ ... ( d) " ') (Beatty) , !"Vhí~r~ the .3. r· ç j t. r ¿i ::: c r ~ J...J. . ,-'-o~ . '__ ... -<.; C c~ n c 1 Ll des th2it e;nly cne C-3. 3("2 r Re Ci h' i:.>f PE't e L br) _r~) :.1';.... 11 and peterborouqh Profession<Jl Fire Fi9h ters Assc'c.. Loc·.-ll 519 (1978), 19 L.A.C. L2d) 264 (Bl~~=-~<it...~n) , ;:-:ssc:rts that there ~s such an authority. In the Guelph Firefighters case, as 1n a number of other cases previously, the arbitrator indicated that the difficulties which the absence of any express statutory authority to compel discove.t'y of documents might create could þe alleviated by the issue of a subpoena duces tecum to reqUlre the documents to be brought,to the hearing, following which, in a appropriJ:te CJ:se, an adjournment might be applied for and granted to permit the documents to be examined and the case to be prepared based upon them: see Re Fabricated Steel Pl'oducts (Windsor) Ltd. and U..4.W.. Local 195 (1977), 16 L.A.C. (2d) 148 " ( 0 r Shea) ; Fe Canadian Broadcasting Corp. and C.U.P.E., Broadcast Division (1978), 18 L.A.C,' (2d) 357 (Adams) . Mr. Swan further stated at p.252: In the case before me, Mr.. Rogers indicated that if I had an authority to lSSU2 a subpoena duces tecum to requlre officials of the employer to bring documents relevant to this matter to the hearìng. he would have no obje6tion to pre-hea.t'ing production of those documents to the unlon; as he very reasonably pointed out, if I ha\le an autnority to l S S'l1.e a subpoena elL/ce.s tecum, the exercise of waiting until the he2..ring +-~ '- '-' produce the documentation, and then rutting all thf-~ participants through the ' . of an lnconvenlence adjournment, would simply be a ~v a 5 t e of time. Mr. Rogers' position was, however, a much more funda,menLd attZick on the jurisdiction of an arbit:rator than appears to have arl8en 1.n any pt'eVlOUS case: it h'as ]¡is· contention that arbitrators under the Labour Relations .'1ct have jurisdiction to -- subpoena duces no issue a tecum at all. Mr. Rogers submitted, correctly l.n my view. that ;n Q., . arbì tra-tor can draw jurisdiction In a particular matter from thre2 - only: t.he submission to arbitration, sources including the gt'lcvance referred; the ccll¡Ò'c::tivé! .3.0r:~~r~ment r ,). ["";,(..1 any st,3.tutcry gr.3..nt. of ju.risdi:-:tl8n. In the 1.:; r :~~ S e i:. t Î" ':) r'_'"':.-, r:~~ìt-h(.::y t- h ,-, ~:J r i e-".~a. rl2 e n,~r :-.he ~_ '-" ."":J' ., t..- -'-.. ,_ C8 11 ,?;; t i '078 aij :-eement mak2S .?1, t'iY r\~ f e.r e nc I~ t~, F r CH::l i.1 :-:.~ t i~:: n on tvh.ich I might reI}"" f and any jurisdiction \iJ~ i::; l~ì I might h.:l rv~:~ purported tG e x ~= r c 1. s ~::: In lssulrrg t1-, .:' \ ..'-" subt:;oena. In this milt ter must C8me from the Labour F..:::la t ion-s Act itself. In s~ far as the C":J.llectiv~ -~~--~-~ . . ~~' ~ -t 33 agreement, is concerned, he observed that art. ? and ,.., 1 . -' ~- ..... . 1.+09 ctC deal t-, a limited ext:?:ît ',vith the prcduct i:; ['; .-~ "'!"'" ,~ d·:.JCllnlèots between the· pa.ries, but neither one cf t. h e n~ confers a.ny jl~r i sd ict ion ;)0 me. If this Board has the authority to lssue. a subpoena duces tecum, it would also,have the power to compel the production of docuI1\ents which a party failed to produce as required by the subpoena. However, unlike a case unaffected bì:' the Freedom of Information andProtectiol) of Privacy Act, 198'(, the case before us 1S subject to the prOV1Sl.OnS of section 51(2) of the latter àQt which limits its application where the tribunal compels the production of the documents. In the Toronto Star case, the powers of an arbitrator under section 44(8) the Labour Relations Act were set out as follows: An arbitrator or the "chairman of an arbitration board, as the case may be, has power, (a) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath 1n the same manner as a court of record in civil cases; and (b) to administer oaths, and an arbitrator or an arbitration board, as the case my be, has power/ (c) to accept such oral or writt~n evidence -,~ ",co> the ad::itrator or the arbitration board, ¡JS the case may be, ~n its discretion considc~rs prope 1· I wheth2r admissible ~n a court of 1.3. ~\' or not; In the Toronto Star case the position of the em!?l aye t' \~',3 s that the expreS~310n ''\H i t ten evidence on ooJ.th" 10 sectio;-) 44(8)(a) of the Labour Relations Act "cannot refer to the production of pre-existing documents at the hearing by a ~.¡i tness. " The arbitrator asked: "if the quoted words do not cenfer an authority to lssue a subpoena duces tecum, what dr' ...'" they lr1 fact authorize?" At p.2.57-8 of the Toronto Star case, the arbitrat8r stl3.t:~d : . . . ..'1 n~:~ t [12 r ,va y ~) f 1 oc.~ ~ci n9 .3t this m.J. t t := r is t o· -"i<~t It;.~ r1 t;:: the i? rc: \"'!" J. S 1 C E S c£ ~ . 44(8) and to observe that the !:::;) \oJ 2 t~ Jiven t¡) ·':'.L¡ .:; r bit }:' d tor ' ~ .. (é:\) to summon ~:l.n-::1 .L'" 2nforce th8 at tcndùnc,~ ~) f \v~ i t Ii ~~ sse s and t·-· c c. mr":' 1 t h ~:'nl ~-; tog i ",' e 01'.).1 o r \.¡ r i t t e. n evidence on oath ~n the same . manner as a court of record ~n c i \~ i 1 cases" [ emph':Jsis ~ ~ ~,,,-,;' '. 't. 34 added In original] . Reference agaln t:) the Ontario Pules c:f P t'Cict i~:;e to see exactly ho..,; it l ~. thd.t ..:-.. ,.. .--' ~ ... -~- +- .J "_ ,-," l.-l ~ I.~ of record lit civil cases summons and enfor:ces tli.c' attendance ~.c witnesses leads only to 8~l.lle ~7.2, h'b.i:::h u.L 1n ~ +- -, ent ir::.'t~l prQ",¡'"id.es: ",,-=> 272, A subpoena may be issued from any office of the court at any time in blank and may be completed by the solicitot" or party, and anv number of names may be inserted In one subpoena (form 57) . Form 57, the only form of subpoena l?t"ovided under the rules which lS relevant to this discussion, is a fo:cm of subpoena cn which the duces tecum clause has already been inserted. It would be possible, theH~fore t by simply crossing out that clause to turn the form into a subpoena ad testificandum, or by leavinq the clause a.nd filling In the documents to be produced +-~ make it. a L.U subpoena duces tecum. It lS obviously intended, therefore that a court of record In civil cases may summon and enforce the attendance of witnesses to testify, or to produce documents, or both. Holmested and Gale, Ontario Judicature Act and Rules of Practice 11982 ) vol. ') at pp. 1507-8, make it clear that the ... f jurisdiction to summon and enforce attendance of witnesses inherently includes a jurisdiction to compel attendance not only to testify but also to produce documents at the hearing. I am therefore of the -y- l2 W that s . 44(8) ::1e3.r1y ìnclud.2s the authority to issue a subpoena duces tecL~rn f and that t 112 additional words used In s. 1 0 3 ( :2 ) r _~.¡ hat r ..~~ have c3.l1ed the .. Frcduce r." .......1, de::uments" ~ldL1S2, """1'"1 C +- .::. ......1.- .\.. ... ~ l ...... . oJ '- be interpreted to confer th(-= power- to reqlllre the production of dc:::uments p .':" i ::;'l:: tc the hearing, b~- ~.¡a~/ ~:£ a fo rm fJf disc:;very. . . . The arbitrater concluded at p. 259: The better Vl2\'\' , and the "fair, wide and liberal interpretation", which I aml:"equired to glve to the statutory prOVlSlon, lS that the power to issue a subpoer;a duces tecum 1S subsu:ned within s. 44 (8) , In tr.is r:~J,3.rd I I .3.dap !:. \C ~ !1 i. t c he 11 '.5 submlS3l(JO t h.J. t ; .c ..1..1. f l...L th :~: ~;-l.. e s (J. r; t r r .::: \:" 1 ~'3. J_ C n ~·hd ~.~~ ')iv;~ S~.1:-:' h a. F~)\.vc t' ~ , ·=t :1 . " I L....... ~... '- '-' a r r.-.. i t r ~3 t ::-; J.. T a.n. i :T::7L:) J i ,~ t :~ s t.::¡ t n t C t' Y am2~·jm2nt \'li-:Jl11·j ~.:.' !:"'2::j1¡ 1. J:(::d t~J '::~~~lStlre that j L1st i.,-:;,:;: cC~11d' bt:~ ...:1 ,.... ......, .~, l:-l ~ L1. t~ v~.... ~ "_- - +- t.-. --\ la.~g:-::: m.::-!.j~")t-itl:"- .~ to ,J. l~ t: i t rat i ~J n C2.S;~S . T~ ~ ,~ ·.:;th2r ·__..l'_ '_'-J-.-- .L.L 1 ~ ,~. f:.1 ~ C ~l:-td s \\o'C' r(~ a Ÿ-...1. i 1.-3. b 1 ~:~ ... ~, dc~:: ide bet ~~.. 2; é n the t' '... ,"'~ ~1;,. '.... cent end~~(1 int2Lpretati:-Jw:; r that sLlbmi s s ion ,:1. 10 n:2 '.;joulJ be su..: f ic~ i:::nt t~, ,-~..: e .1. <J" b In f 3- ......-:.:; u:r f as a " F _~~ -; .,..- \\iid2 a.nd ,~ ..ì..-._..........L. 1 .----~ - ~ '.. '. " 35 liberal interpretation", of the interpretation \~h ic h b;,;st ~ ~-.. '-'""\.-11",,-,,, ~ r· t .:) dOlng just iCf= bet~"Te(=n the ~.3.rti~s~ ~_. ,_.. J.l. ....~....... I.- ,_ ,,:) Sccticn ~4 (8) (",) l)f the Labour Relati:.;ns .'\ct differs, f~'crn sectlcn 11(11)(3.) of the CrC:l.\rn Em!? I ;::::--e e s C c I .1 i:~ (' t i \.. '? Bargainin9 Act ln that>the latter statute dees not cor.tain the words: "in the same manner as a court of record 1n civil cases... " Mr. Swan, 1n the Toronto star case, noted that . section 103(2) of the Labqur Relations Act, glves the ontario Labour Relations Board the power to compel witnesses "to produce such documents and thÚlgs as the Board considers requisite to the full investigation and considet'ation of matters within its jurisdiction 1n the same manner as 3. court of record 1n civil cases... " Also, the Statuto!:"v . Powers proceÇ!ure Act, R.S.O. 1980, c.484, which· does not apply to arbitrators under the Labour Relations Act, provides, 10 section 12(1}, that: A tribunal may require any person, including a party, bv surnmcns, ( a } to give evidence on oath or affirmation at a hearing; and (b) to produce 1n evidence at a hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceedings and admissible at a hearing. Section 12 (4-) ~f the Cro~.¡n Eml?loyees Collectiv2 Sa r~J.a..i n illS .v_ .:;ct prc'.rides tha.t the Statutory P P , Ac:~ c:lc~:: s ow:? rs, roc :~au:re nc:;t .:::.pply t,) ,3.rb i t ra t ions under that .'\ct. Mr. Swan also noted secticn 118 cf the Canada La!:Jour C~jdp I R.S.C. 1970, which provides: The [Canada Labour Relations] Beard has ,. l.n relation to any proceeding before it, power (a) to summon and enforce the attendance of witnesses and compel them to gl\o'e ora.l ~,... '.' ~ written evidence on oath and to produce S tl C r1 documents and things as the Boat..a deems recIllisitc- ,...~ +-ì.-.~ fè.1l1 i n'i-72 3t i~0r3. t i:-) n -. ...... ,-.I ~ '/ .... i. 1 ~:.. '~ì. ll"·c\ :-.~ ;. n :-j i ~:t r.~ rat i c n :;f a..n\~ rn:3. t ~ :-:! t- ..\: i t. h i. ~-j i !""'. ~~ j i.l t- i. :~ d·i;~ t: i~) í'.. +- ,-.. -, :¡... J....,-='O c;~ f ~:; r~-= th2 p ~.. -\ '." ~1 _._ . L t r.:~ ...- ~ ~ ....:~ '- _I.~, ,:.. - ... Froc'ec~c1inJ ; (;:: ) .. .- ,:;. d írì'; 0 i s.t e r ~>?. t h S ,~l n~:l Ct f f i 1.":n ,} t i ~~: :--.. s ; L '-~' (::- ) t,~ rec(".=11-.:re ~ _.,c¡ Ci c ~:~ c= pt. su:::;h evidence a~d ,~ (.:.JJ..... .- . . r,. '.. . 36 information cn oath, affidavit or otherWlsc -, ~ lt1 its disC'n~ti:)r: thE~ S.<')3.rd s ,~~= s flt, t..:L..':) whether admissible in a c::;urt of 1 a\..; c;." ,.....,.-,+-- . ~ 1. '-' '-- r [rep. ,s, sub.. 197:::, ~ 1.3, s . 1 1 '- . Also not2d by Mr. Swan, and to the same effect, were the Labour Code of British Columbia, R.S.B.C. 1979, c.212, 5. 102(1) and the Alberta Labou~ Relations Act, R.S.A. 1geO, c . L-1.1 as amended, which latter Act provides In 5.127(1); If, in the opinion of an arbitrator or the chairman of an arbitration board or other body, (a) the attendance of a person ~s required, or (bl the attendance of a person to produce a document or other thing U3 necessary,. he may cause to be served on the person concerned a notice to attend or a notice to attend and pròduce a document or other thing, as the case may be, signed by the arbitrator or chairman. Mr. Swan, in the Toronto Stat. case, concluded, at p.256, that a "produce such documents"·clause was unnecessary to grant that power specifically, a general power to issue a summons being regarded as traditionally including the power to ~ssue a subpoena duces tecum. See reference to Re Int'l Onion of Operating Engineers Local 955 and Henuset Bros. ~ (1974), 49 D.L.R (3rd) 288, [1974J 6 W.W.R. 765 (,"ell ta. S.C.T.D.) . The arbitrator also relied on the case of C a na. d ,3. Cement LaFarge Ltd. and Qnited Cement, ·Lime & GY8sum t<Jç rkers Int'l Uni~)n , Local 368, [19821 1 Can. L.R.B.R. 300, \\'here the Board. at p.308 stated: At the request of the Board and by letter dated April 2L 1981 counsel to eeL provided counsel t:) the' unions with copies of the ' " eeL interìd(~d rely upon lnvolclng t~, 'J to establish its claim. In a number of recent cases involving claims for substantial damages the Board has entertained pre-hearing motions requesting production I of documents in great particularity. In granting these requests, in whole Or in part, the Beard has nd ied upon section 103 ( 2 ) (a ).. . . ç'Ìt~ a'Jr¡.~(~ with the} r .J.. tic ~ ¡). 1 e :) f :1 r " Swan i nth e T:~ r:.'"J n t_ c St.::, 1" 2~S:~ (l(~~lling t~i·th the " p¡-()duc::e sl,lch d.ocum(;~~tsn c 1.3.uses r~=f:=cred .to ,r Clnd hlS conclusions are afJI?licable in the case b!·:f~)re u.s. The a.(lditi~)nal l03.ngu<Jq2 found In sc~:;tion 4.:/ ( 8 \ ~) f tlv= Ontar io L;¡bcur R:~ 1 at iGrls .'\ct would not callse LlS t ..~ ,~ ,"::onc 1 ude t ha t we must interpr(:'t s(=ction ll(ll)(aì af th~-~ Crn'Nn Emplcy(::+es Col12ctive Bargaining Act In a manner trL;¡t -~~~~-~-" : .' l' r. .,. 37 would be least likely to do justice between the p.:lrties and ',vhich would f 1 ,. 10 trl;? ç-,-~ ,-, ~ -+-l......-, r:- r:2"i...~ 1. ~)ll S j u. r i S f' ~ \1 J .-~ n (~~ e ~:: f -.1.,1 .L U ,-._ ~_. ..l- l___lj·._ this B~:ïa.rd 01 In I.:: ,."11- tiC" Ct 1 a.t· ( (..·./~-3 notc~ :1 t' . Swan's refeL~n~=::~-~' r at pp. 257-8 of tb.~~ T:::ronto Star case, to tne inherent Fcr.~rf-:: .r to :):"der procluc.t ion ~:~ £ ::locumen t s at a hearing \v he r e -t-- t....'::l, ')-._~ ' r· ..... .J..J.\~..., \_ -'.. .J jurisdiction to Summons and enforce attendance of witnesses. Any other interpretation would require an immediate statutory amendment in order that justice could be done in the majority of arbitration cases before this· Board where production of documents are necessary in order for a party to be able to properly prepare and present a case. ~"Je wou Ld add that 'J:: no other grounds were available to l.L decide between twö contended interpretations, ~vewould ¿dso be influenced by the provlslons of sections 19(1) and ~O (8) of the Crown Employees Collective Bargaining Act which provide: 19.--(1) Every collecti,ve agreement shall be deemed to provide that In the event the parties are urla.b 1 e to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including .¡-. as to whether a any ques....lon matter lS arbitrable, such matter may be referr-edfor arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision lS final and binding upon the parties and t.he employees cc\re"red by ., the agreement. 20(8) The Griev.J.nce Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions . . . . In the absence of·the power to lssue a subpoena duces t (~cum and order production of documents pursuant thereto, it would, in many cases, be impossible for a party to have the ful~ opportunity to present its evidence and make its submiss ions so that' the Board could make a fair decisj,::>r:;. In doing justice between the parties. ~'I;Je v;'.:".ll d ¢.ls'_~ nate. tr-u3-t s,:::~-~t i:)n 3'2(2.) ()f th~ r 1· :-~ 2 ~~l C: í':\ _ .,:-', f In.f () rn1,1. t, j :.:.: n t~{ nd P-r~~~t ~~~c t j_~~ n ,~;f rJ r i \.. ~~{ ~:- '\~ i\ct,,1987, r:c t~ nì.~ t: s ...... Lr:~~t ituticJ:( t,; r1 iscl,;:~s2 "F':~ LS::l nal information .Ul ì . ... r- :::üst:):J',· ..._ t..::"', ~: C L~:-~ :j ::: 1: .:, -i--n C :) n t r~:: 1 tt \'ih,~ rt:.) ~ I- ~S If f:-; r th:;::: E; U .t:p',) S ~~ .--'" += :r' ! l.__J ~ '- -> ~ .~!.. C':~::r:~l~: 1 y in '] ~...¡ i t ~¡ ¡:-.1n ., ,'. +- of the .Lc~gl.slature cr an Ac t. or ,:-\..... '-" P,J.r 1 i3.m·:~nt ~ .3. n ,3- '] r 2 e ffi.:::: n t ...... ... derangement. unde t" such ;:I.Li. ""et: ::'·1· -> c ¿¡ treaty... " 'T b ~~ c :.) 1 1 e c t i "..¡- e a.gre<,~ment cct1w,¡een th(::: ¡::;èl 1:.- t i;~ s . . .. fl ..... -' ., .- 38 is, In our VIew " agreement. . . .unè.(~r such an A::t. " an secfi·8n 7 cf th;-,: Ct...~J~·¡rL EInQl~J)~2~s CeIl r: ~ t i~r e E.J. ~ ~~~ ("1 i n i n -=i. '\~ I- , '- , em!? 1 cyc:~ c;:-sanizatiGn aut her i 2 a t i:J n r -- carSCiln . t' gIves 3.n '-'~ ~,,,' l .n an employer with a. \71ê1".\i to concluding the C'~) 11 e(; t i ,;p t~ agreement. 'The procedure fer realIZIng thp C 0 11 ~~.:.:: ~ L \7 ::: agreement 15 provided for 1n the latter Act and section 19 (1) mandates arbitration prov1s1ons for ,effecting a final and binding decision where the parties are unable to effect "a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement. .. " In the absence of the . power 1n a Board to order production of documents pursuant to a subpoena duces tecum, the purposes of section 19 ( 1 ) would, 1n many cases, rema1n unrealized. \'/e find that a collective agreement under the Crown Employees Collective Bargaining .Act represents such "an agreement. . . under sue [1 an Act" as IS referred to 1n section 32(e) of the Freedom of Info:::-mation and Protec::tion of Privacy Act, 1987, and that the disclosure of what would otherwise be impermissible personal information uncle:::- the latter Act would be ~ermitted as being for the purpose of complying with the previsions of the collective agreement. In a decision of Sidney B. Linden, the Information and Privacy Commissioner, dated October 7,1988 being, Appea r #880075-Re: Ministrv of the Atto~ney General, one of the issues was: "Whether .the ratings and test results are 'personal information' as defined 1n subsection 2(1) of the Act. It The case before· the Commissioner involved a request by an unsuccessful applicant 1n a job competition. The Ministrv of the Attorney General, as an institution u.nàe r the .::"'ct, rece i Vet} a request from the appellant Ior acc;--=:::::s to: 1.. On Februar~"'" 4, 1988, the Ylinist:rv' of the ..\t t.:"Jr~'~l" General (the ., ins tit uti en" ) :::-ec<?ived a r-equ:-:st f:):::-m the aprellant fer 3.2CeSS +- ~- . '-'- . "1. Rating of the succEssful candidate f'~ - the '-'.I. jeb competition #AG-1076B. '1 Results of Data Entry for myself and the - . other successful candidate held In ::"2£er(~n.ce +- ,-, job competition ;;:A.G-1076B, '-'-' -... ~ c t h :-? t· :r.?l~:\.-a_nt iG£crmati8n ~~~j.:~h - ~ò"nv ~.\:;"3. s ,-~ .-., ..... ..... ~ rl ,-, ...... ,""- ,0·1 , " :-2 c t c ì.~ r:'¡ i 1.... a t 1_ G i'.. ~:~ f -J.,,-, r~ 1 ~ C ~-: ~~' :; S .:: ~ ~ 1 ~ ~ ,__ i. 1 .:J ...:.... . J .:':'.J... \:'-, '_l ......1.. t_. ~ ~ . .' c~n.dicL.te 1 '" jeb C=8ml,::~'tl t l8il =.\G-10768. - .. ,1 hatin9 ( f .-d' m'{s21 f an(.l ,StIC C;.2 S s f:ll c'and i-::1,3 t.,~. ) -t . ..... '-' L by A. Lomanginc ~"ho íl~Ci3 !?r;"2;s¡:::r'Lt at +-J.,,, ,_ ~:. r~ int~~r"'liew for .; r,]...... competiticn #".G-107Eß. If J ~'>.J ----~- --~- - I . :;- ., . . . 39 ""d- rating, a copy of her comments s h:) u 1 d t-.~ ~ ~...... ...... J.-_"_ FrC~\·icL~::1" + . 'T'J...ù CCITc;ni s s i:-; nf= r found, -;- ~p. 7 I t ha t : "there lS ~~ Cllt2Sti~)rì .J.. ..!. ~~_ ,-"'- 1 !.~.... tha.t h,~ t- h +- I"" ~ rat. i n lj S - ~ ,.:} the test results arc· 1 recorded ~-" ~.. '-.-- .. . '-- 111_ a'oJ information about an identifiable individual' and as a result fall within the definition of personal information contained ~n the Act". In the face of the denial of the appeal ~n the above case, the Employer, ~n the case before us, was concerned about releasing any information which would appear to fall under the definition of personal information; "recorded information about an identifiable i ndi vidua 1 ,n For the reasons abov~ stated, we have concluded that for the purposes of the Freedom of Information and Protection of Privacy Act,1987, the Employer would not be in violation "ç ~.L that Act lD releasing documents to the Union for the purpOSf,? of complyin'] '....ith the collective agreement, being an a.greement under the Crown Emploì'ees Collective Bargaining Act·· and representing one of the exceptions f ourid ~n section 32 (1) of the Freedom of Information and Protection of Privacy Act. ~ve could not, of ccurset compel voluntary disc 1::: S1..1 re by th,:::: Employer. However, as we bave concluded that the Beard has I the authority to ~ssue a. subpoena duces tecum and to order the production of documents pursuant thereto, should the -Employer not wish to' fellow the indication of cOllnsel In the Tc~r::)nto Star casel set out at p.252, 'lueted ¡}b::)~~e , h" }.-'!. p2rmlttl:1g "!?re-hearing l? r-~duc t ion ('+ [relevant] d~) ~~.: U~"12 r:. tr S ;- ~, the un ion t; then the Union could lssue a snt!?(::e!""'~3 ::h¡::;C:r\S '-'-' t:~:-.:.urn an.d I lO ace ~J r" d a. n ;::; ~~ with the Or-der cf :\1 ¡"L Sb.l.~ìe , J a t~' ~;: :1 LJ...... . January 10, 1991t above ref :=r reel t~~ , either pa,rty C 0 II 1 d fil:~ a request in writing with the Registrar prlcr tc th2 dat:~ c:t the hean,ng containing its r.2(]Uest F,--......... an o rd(~ r of ~~'- productìon. In such ca Sí= F th(:! 8nly remalnlng ob j I=ct. i,~)~s that the Board could consider would be limited to such ,. . . matters relevancy, including that aspect of relevancy as as referred to by Mr. Swan ~n the Toronto Star case, at [1.259, involving ". of·relevancy relation to the br:~3.dth of lssues lO a subpoena duces t,?cum, '1 Tf' the :::bjectiGo ;-~ !? roc1"Ll '2 t i <:) n ~f' the d::.~cuments [.:llr S"LLJ. n t 1""" ,-, ~.L ._....,.J '_I...L.. l~ .... ::.,};r; :; .\~.:..-~ f~C.; e n 3. .t~ e 1 d t e :; ~:-;cJ::}.l\~ t. (.J th;::: ììC:~(~'2S sit 1'- .~ ¡:: t: he l'~;:' J..,...,; ~n ~_n.:: ,;. I i ':J- .-, ._ .-1 -, _, t:-'l:.r s ~.l,} r.... t t ~:. S::'I~_'t i:::;. ..... ~ ......, ~, ~ th.:=, F r ~~ ',~ ~:1 :::.~ IT: C f ~_, t -' .:.. '.~ ~ :. ..:.. : l.., ...:. ) '_'.1.. I nf()rrn.J,t iC}!1 and Pr:'";tect ìc~ of P i." i y. a. c-.: ì~ Act, then th:::- c rrl.:·? t~ ~~J h .~' :.11, J l.S SU.? .~i ~ï. ;3 rr:.a. t t. i~ r ;")£ :. ~J. U. t- S {~ . Th sue r¡ .J. ~:.3.3,~~, t ~-l ;~~ 1::-::.:~ ....tl bí~in~'.J r!.:'::: 0i~~'::::l -r-..-... ..... .:\ £ i n.;i.l ,-L-:: to rmi n.3. t i~: n ,~:c; 1: ~) th·:-:; t~ ~:: .l ~:' ;:/ IJ. :.... :~' '/ -=..... ..~) '- ( i:1 h::th of tb8 sen.sc~; .r ~::) f í-:; r- 1" P d tcì ::;f s Ci rrÌí~ r-f' th:-:: ;] ~) ~~_. urn (:' n t ~~ ,-'~ reques t ,~d, t h '0: r f-::; . ',,' 0 U 1 d b.'? no n,?ed to have a E ~:: rm'~i.l he,-;r ing . . ,~, p - ., . 40 before such order could be issued. . . In ::-cda t ion to th,,? F-:~~\\¡~~~ r ~, .ç: the Board to o r..-} e r l:J r e - h ~~ ~3. r 1. n J \........L. production of d~)cuments , Mr. Swan, ~n the Toronto Star Ci3,Se, stated at p. 258: . . . Finally, I should .advert to a recent unreported decision, Re Globe & Mail and Southern Ontario NewspapeJ::' Guild . . . [dated] January 7, 1983 ( T e pI its ky) , in which the board of arbitration dealt with pre-hearing production of documents In the context of a grievance n::;t unlike the present. At p. 5 , the award states: "Finally, the guild sought ere-hearing production of financial documents. This board's· jurisdiction to make an order for· production ¡vas raised. This lSSUE~ has been canvassed in a number of recent .cases. A useful review of the conflicting authorities may be found In Re Canadian Broadcast Corp. and C.U.P.E.., B'roadcast Division (1978), 18 L.A.C. (2d) 357 (Adams) . I think it fair to state that the weight of recent arbitral jurisprudence supports the employer's position, namely, that a board of arbitration lacks jurisdiction to make an order for production. This lS a Vlew which T do not shal:e. It seens to .L me that beards of arbitration make many orders without ex!?ress statutory \-Jarrar¡t which a.re necessary .tc ensure a fair hearing to the parties. An order fat" production, In my respectful opinio:l, IS ivi thi n our jurisdiction whenever the board lS satisfied that it is necessary for purposes of a fair hearing. " The comments made, above, at pp.24-25, with r,~spect to sections 19(1) and 20(8) of the Crown Employees CG1I.~ctive B.3. r 9 a i n ì n 'J Act and their influence en the power of th,,,:: B02.rd I-~ lSsue .:; sub9-QßCla duces tecum f3.nd to order F!·oductio~ of '- ,~ .~1::~~:~ UITl2n t: s [::U _r-;~ Ll-3.. n t thc:r:=::t::.: apt? 1 ~l f as w;~ll ! j-~ its r~ ~:~"i..v (-:: t- ~..--,. ~'. Ir",./ :.' ¡::Ie r F: ~ . (::' - h 2.J. L" i n '0 L.;rG~l~lct icn of :~ ::;c urnent s . \'\~he rr!: tI,c' ma v J, n '~¡ ~,£ the c rd.~r t'¡3-S n~)t on consent, as h.3.s been in ::1 i C .:1 t (.\ d .3- ;) ~:.: '<·T ,~: ~ tì~le IJa r t i r~ s r,¡I,¡~GU 1 d naT..7e full c f~I?C: l"t. Llrl i t '-:.;" 1- ~, pl·'Ó.'S{~nt .- ~-' Clr!~:'lm8nt on th2 J_ S I.:; ll.= S r~ fcv2n t t:J prcdu.cti8n. T~ th;~ ..L. iL ,J.t;senc(~ of the pewer to.; crder pre-he3t'ing prc,duct. icn of dccuments the result i'V'ould frequently be similair j-,~ the c;n~~ L.-~..; --,_._~-... - ~-- - . : '" ;~... '6-; ... 41 which so UFset the panel cf the Beard chaired 1:;1' M~ Samuels ~ .L .. .1-rl th2 e,} t~ 1 ii?~ ~~l~=8ng ..-.. -.. ~,......:. ~__ L1 .~ '... . Mr. S~.¡an , In th,=> 'T (.1 r ;:1 n t. :') Sta t· ~'-.) S (.' 1 .:.'1.1 :3C '\.-- ::~ l= -.;:. i""" r- ;::,¡, ....1 ( i b i ::~~ ) t-,-, L .--.'"..t... \-r..... .. '_' ,...I., ~ M" '..1 th;= case 8f ' '" p~~ .-\ h,~ 1 et ,::,1.1 . a.nd Dir¡~2t,::r , F:-=:n2ta n1}U i s: h_i ni-:: ~L Ylental Health Centre; Re abel et al. and Advisorv Review Board et a1- (1979) , 97 D.L.R. (3d) (Ont. Div. Ct. ) ; aff'd 119 D.L.R. (3d) 101 (ant. C.A. ) as glvlng "some oblique support, to the existance of such jurisdiction. Mr. Swan also noted ( ibid. ) that the board, in the Globe & Mail case, did not rely on its jurisdiction to order pre-hearing production but used the authority to lssue a subpoena duces tecum. As we have noted above, there would have been no need for us to examlne the jurisdictional basis for the production of documents under the Crown Employees Colec·tive Bargaininq Act if the Employer was merely requesting an ordp-r based on the consent of the parties to have such an order issued. The request made to us lS a much different o n~~ . first, the Employer took issue with the relevancy of some of the Union's requests for production of documents. Second, the Employer took the position that some of the documents requested could not be produced except after r.ompliance with the provisions of the Freedom of Information and Protection of Privacy Act,1987. Third, the Employer did not take a position, one way or the other, as to whether the Board had jurisdiction to lssue an order for pre-hearing production of documents or to i s.sue a subpoena duces tecum and to lssue an order for the production of documents pursuant to the subpoena so as to satisfy the requirements of section c::¡ I ') , .' .L , .. i of ..\-...,. Freedom of Information and P rctecti:)n ~ç P .r i v· a ::" ::- ~-:\ c t: I L- LL'_ 01.. 1987: The act dces not affect the power of . . . ð tribunal to compel a witness to test i£:::r ,~ - C omf:c I ~.L the production of docu.ments. Throughout the hearin9, the Employer indicated its concern that it might, unwittingly, violate the prOVlSlons of the : 0" " ~.. latter Act and it wished to obtain some assurance that any order for production issued by this Board was In complia.nce with that Act. of necessity, this req'Jired us to consider the jurisdiction of the Board to lSSU2 such an order ..3.S lS r::,'fcrred to in SI~C't io n 51 ( ~ ) . Given its ri~J'Sl t lon, the E ~n~:! 1::: \~.~ 1" 2\' ident 1 y concluded that it 2~)lll c1 û.(lt mer21y ,~t~: ~:~ 2 [jt t ~": :~' j u .r i s;î i c ~ i.J :-~ ':;f tbf~ Doa.l-·d t.", .LSSU(" S :)("11 c:rders~ Tt: t h,:, r<,_' , "- S LlC h . .:l. . I- ¡., "" cf s:~c t i~~r~ ::1 .. ,) \ '. <= hr,). S 0"-' .J Ll r l S:. _l C t l ~~: r: 1 FrC\.~lSl·:)nS oJ I...,.. ~ ~ .__ ----,"-'-' t h (~, 1 .~ t. t. ~~I r ,J.ct \\:cutd i:"ì. ~~: t. r~ r-;~ ~/ f~ n t its .) P P 1 ì ;~ a ~. i G ;, ). r~ t. ~ : i ~~~ ::-.:t s;~ ~ i'llthGugh .'1r. Sh iP.ì2 S di r,=:ct i ve of J.3. n tla l-:l 10, l[)c)l, .3.ppe,:'\ r3 .,. . ~. ~ I'-~'; " " 42 to have been 1.0 response to the Employer's abc"'=,¡e st.ated C(JlìC21-n 1 it n.)w apF~~/:;¡r s t::: U3 that the concern ",¡ent }) .-~ y ~~) r'~ ~1 the rne r \~ requirement sf an order be in,;] issued ¡.." - the Pea¡:::!, .1'-' " The Employer also seeks a.ssurance tha.t the maJi~ìng ~, <= , ,} !1 ".":,,, ~;1..lC n cr~:l(:~r 1.5 ,vi t h i n the jurisdic:ticr:. cf the Board. Mr. Shime's directive, on its face,· could refer to an order for pre-hearing production of documents,· or for the production of documents pursuant to the 1.ssuance of a subpoena duces tecum. In the latter case, the Employer might request an order to produce documents pursuant to a subpoena, should the documents not to produced at the hearing. So as to avoid the delay referred to by Mr. Sa.muels in the earlier CheoncJ case, an order could be issued, on consent, prl.or to the hearing upon the subpoena being issued. In the case before us, the request for an order does nct not appear to follow upon the issuance of a subpoena. In the absence of any dispute, where the Employer's only concern lS to lnSure that ther,e ~s no violation of the F;-eeC:c.m of Informaticr. and P r::::tect i~ìr1 cf D~iv~~v· ~~+ 1Q07 1: . I "-.- ~..... l~c' L] ~_I } , the parties may agree upon the documents to be produced prior to the hear ing ·in accordance with Mr. Shime's directive, without there being any need for a subpoena being issued. For the reasons stated . above, we are of the V1.2W that the Board can lssue an order for the pre-"hearing production of documents and can l.ssue a subpoena duces tecum and order the production of documents pursuant thereto. Such orders for production of documents are those envisaged within the meanlD'3 ~~ section 51 ( :2) of the freedom of In!cr-matic.n 3.~d ,~ -'- Qëotectiori of Privacv ,~ct <- 1987. \";e are ~ç !-ho. ~,,:-l2~"'i that the abc",,-.-e c c~mme n t s are .3.pplic3.b12 r .~ ,-'~ ....LJ,........ .... '-, the case before us. There was also an issue raised by counsel for the Employer request particulars which was respcnded to , ~:Cl1Cernlr~g (Ot f~'" oy ~~ rh." r 2 L~ c e s e n t ,:i :: i "¥,- ::; ;~·f t,lie C:licn. ~'Je feel that t h~~ ~m~~l~)y;~r :IJ' i 11 I~ L--.- :1 ,-: t 1.'..-" ~.:.' t- e· j 1 ] d i :: (~ :.~ if :'--.: c~ L~: ;- (; \.~' ;~ :":~ ~j -I-- ._~ .¡. L, __. h ¿: c- ~- i ;),] :·T~ .f ~~ I.~, "-,' .~~ r ~. ...~: ~_~ ': ~: ~:. :~: ~:. u'_:... '._ or' L_lil_ r,)r1 !: ~f=ir rn:3rit::5 tv i t 1-;.~::; u t th2 n ~'-= c 2 ~~ sit ~-:" :) £ ma.1(i r~IJ r~l ':'n'jS ~::- n -!-:-,-::. .... ~.1. ,_ ~l UC~ 3 t i Cl n cf I?d.rt leu l...-;;s at this t im:=~ ~ Should it t ransr:J.i ~-e at th~~ ~~-------_.- - ;:. - - 't 1 . ~... ........ ,. .-1 , 43 hearing that the Employer has been taken by surprlse because of its inability to deal with matters because of a lack of c{~rLi.in Farticulars, the matter can be .:1:=03. 1 t váth at that time a r1~~ .3- necessary adjournment allowed. It will be in the interest of the Union to see that this does not happen, as this will only further delay the resolution of the grievances. We hope that the parties will arrive at a reasonable accomodation with respect to the Employer's request. Dated at Toronto this 19th day of June. , 1991. ~..p;.-b · /.. -~ .'/ M. R. Gorsky - Vice ~hairperson ~Û~ ð· Carruthers - Member --/ / . , I' ' . v, / / \ "...., I (- {./..,.,. .''''' - /0// .-<'. /!1'7.... ,q . Stapletoñ - Member