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HomeMy WebLinkAbout1991-1438.Chuan&Prommer.92-04-07 ONTARIO EMPLO ¥65 DE LA GOUF~ONNE C~OWN EMPLOYEE~ DE L'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS S'~EET wEST, SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TECE~HONE/TEL£PHONE: [4 ~) 3~- ~388 180, RUE DUNDAS OUEST, BUREAU 2 ~, TORONTO fONTARIO), MSG ~Z8 FACSIMI~/T~COPIE : ~4 ~6) 326-~3~ 1438/91, 1439/91 Befo~l BB~R~ ...... The Crown in Right.o~ Ontario' (Ministry of Community & social Services~ B~FOP~: J. Samuels vice-Chairperson S. Urbain Member D. Daugharty Member:. FOR THB K. Whitaker GRZEVOR Counsel (Chuan) Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR ~B M. McFadden GRI~VOB Counsel (Prommer). Koskie & Minsky Barristers & Solicitors PORTHB M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services g~]tRING December 17, 1991 The grievors claim that 'they ought .to have been the successful candidates in a job competition. In order to prepare its case, the union-~' requested the production of certain documents concerning the other .- candidates. A summons was issued by the Board to an employee of the Ministry in the Human Resources Head Office Unit to attend the hearing " and to produce documents. The Ministry refused to produce some of the documents without the Board convening and issuing an order to produce. At our brief hearing, the panel 'issued the requisite o~der, and requested counsel to submit written argument concerning the Ministry's - refusal to produce documents unless a panel of the Board was convened. The~ panel was concerned with what appeared to be an unnecessary waste of the Board's resources. As the Board said inCheong, 525/90 (Samuels), This Board is not the creature of the parties. It is created by ..statute and is funded out of the public purse. The parties must do whatever is 'necessary to facilitate the hearing,~ to cooperate in a reasonable fashion with one another, so that this Board's time 'and energy are used effectively. (at page4) The Ministry's reason for refusing to release the documents without a Board order is that the Ministry takes the view that it is prohibited from releasing the documents pursuant to the Freedom of Information and Protection of Privacy Act, RSO 1.990, C. F.31 ("FIPPA"). The Act defines "personal information" to include "employment history" (section 2(1)(b)), and prohibits the disclosure of such personal information as an unjustified. invasion of personal privacy (sections 21(1) and 61). ... The Ministry agrees that it must comply with a Board summons, but points out that the stunmons is simply an order to a witness to appear with" documents, and does not compel the pre-hearing disclosure of documents. We agree, with this point, and in doing So, must say that the panel in 3 Cheong, chaired by the same Vice-Chairperson as now writes this award, was incorrect when it said that the Ministry violated the summons by refUsing to turn over documents befor~ the hearing. _ The Ministrg also acknowledges that this Board can order the pre- hearing production of dOcuments, pursuant to section 11 (8) of the Crown Employees Collective Bargaining Act, and the Ministry is quite willing to comply with such an order. This order relieves the Ministry of responsibility under FIPPA for~the release of any 'documents called for in the order, because section 64(2) of FIPPA says "This Act does not ~affect the power of a .... tribunal to .... compel the production of a document".' Thus, we conclude that the Ministry is correct when it argues that it is not compelled to produce documents before a hearing unless this Board orders such production. However, in our view, given the very significant concern we hax~eL that the'parties must do whatever is possible to facilitate a hearing and to .__ ~to what can be-done t~ ensure that the' Board's time .and energy are used effectively and efficiently, it is necessary for the Ministry tO re-evaluate seriously its refUsal tO PrOduce documents before a hearing, where those documents are needed by the Union in the preparation of its case. The Union argues that the Ministry would not violate FIPPA by producing the documems before the hearing, even in the absence of a Board order. And we agree with this. Though we are mindful of the Ministry's care and concern not to violate FIPPA, and though we are not charged with 'interpreting that Act, we commend the following points to the Ministry's consideration. FIPPA's purpose, is to provide for free access 'to information, but with sufficient protection to ensure that an individual's privacy is not violated, except where necessary. Section 10(1) of the Act provides that "Every person has a right of access to a record...in the custody or under 4 the control of an institution unless the record falls within one of the exemptions under sections 12 to 22". Section 21(1) prohibits the disclosure of personal information (which includes employment history) unless the disclosure is not an unjustified invasion of personal privacy. In determining whether there would be an unjustified invasion of personal privacy, section 21(2). says that one must consider whether, inter alia, "(d)the personal information is relevant to a fair determination of rights affecting the person who made the request". This is precisely the circumstances of our case. The information which the Union requires is necessary to a fair determination of the grievors' rights, and thus,, we suggest that the Ministry. would not have violated FIPPA by producing the documents before the hearing. :.' As' well, we share the view expressed by this Board in Cheong, 1_895/90 (Gorsky), that FIPPA permits the disclosure of personal information when· it is for the Purpose of. complying 'with the provisions of the collective., agreement. At pages 23 and 24, tl,/e Board said: We would also note that section 32(e). of the Freedom of Information and Protection of ..:. Privacy Act, 1987, permits an Institution to ~ disclose "personal information in its custody or under its control" where it is "for the purpose of complying with an Act of the Legislature or an ALt of Parliament, an agreement or arrangement under such an Act or a treaty .... "The collective agreement between the parties is, in our view "an agreement...under such an Act." Section 7 of the Crown Employees. Collective Bargaining Act gives an employee organization authorization to bargain with an employer with a view to concluding, the collective agreement. The procedure for realizing the collective agreement is provided for in the latter Act and section 19(1) mandates arbitration provisions for effecting a f'mal 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 in a Board to order production of docUments pursuant to a ~l;bpoena duces tecum, the purposes of section 19(1) would, in many cases, remain unrealized. We find that a collective agreement under the Crown Employees Collective Bargaining Act represents such "an agreement.., under such an Act" as is referred to in section 32(e) of the Freedom of .Information and Protection of Privacy Act, 1987, gnd that the disclosure of what would otherwise be impermissible personal information under the latter Act would be permitted as being for the .purpose of complying with the provisions of the collective agreement. In line with Vice-Chairman GorskY's reasoning, we suggest that the Employer should obtain permission in advance from candidates for posted bargaining unit posiliions to l~roduce necessary documents to the Union the event of a grievance after the -~:ompetition is concluded. The''posting could include the following notice (and the notice could be repeated in a release form which every candidate submits along with the application for the posted position): By applying for the posted position, applicants acknowledge that they understand that the competition is subject to the provisions of the collective agreement between the Ministry and the Ontario Public Service Employees Union. An unsuccessful candidate may griev, e under the collective agreement. If such a grievance is filed, the Union may request the Ministry to produce, before or at an arbitration hearing at the Ontario Crown Employees Grievance Settlement Board, documents concerning the. employment records and applications of all the candidates in order to prepare its case. Applicants give permission to the Ministry to produce to the Union Or its 6 counsel documents concerning their employment records or their applications for the' posted position. ' We offer these comments in the hope that the Ministry will see its way clear to produce most, if not all, of the necessary documents to the Union before any hearing so that the Union can prepare its case adequately. It may also be helpful if we make some suggestions concerning the administration of the production of documents, so that the Board's resources can be Used most effectively in these cases. A number of these suggestions have been made. before by others, but we think they bear repeating. - ...... Firstly, the Union must make. its request for documents as far in advance of the scheduled hearing as is practicably, possible. The request should be: reasonably circumscribed, so that only necessary informati6n is: requested. . Secondly, the 'Mir~stry ought to re~pond/t~ quickly as possible to the Union's request.. In particular, if the Ministry feels that it is unable to'~ produce certain 'documents without_ a Board order, the Ministry ought_to identify these documents very early on, so that the Union can request the Board to order the production of the documents well in advance .of the scheduled heating day. it is very important that the Union have in its hands all the documents which the Board is prepared to order in plenty of time to prepare the grievors' cases. Thirdly, where there is a disput.e between the parties' concerning the pre-hearing production of documents, the Board will try to schedule a mini-hearing well in advance of the day scheduled for the full hearing, and the Board may issue its orders for production verbally so that the documents can be exchanged as' early as possible, again to give the Union plenty of time to prepare the case for the scheduled full hearing. 7 Fourthly, it may be possible in some cases for the parties to agree on a "Consent Order" which can be issued by the Chairman or a Vice ....... Chairman of the Board, without the neea to convene a panel. Fifthly, it may be 'possible in some cases for the parties to make bri_ef written argument concerning the few docttments over which they have a disagreement, and this argument can be considered by the Chairman 'or a Vice-Chairman of the Board and a decision 'can be given to the parties quickly. Done at London, Ontario, this ?ca day of lpril , 1992. anuels, Vice-Chairperson S. urbain, Member