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Home My WebLink About2015-1330.Dubuc.16-11-03 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-1330 UNION#2015-0453-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dubuc) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION Jesse Gutman Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER FOR THE ONTARIO PROVINCIAL POLICE Kevin Dorgan Treasury Board Secretariat Legal Services Branch Counsel Claudia Brabazon HEARING October 24, 2016 Decision [1] The union seeks production of certain documents in the employer’s possession. The employer acknowledges that these documents are (at least arguably) relevant to the matters in issue and does not object, per se, to their production. However, as the documents in question currently form part of a police file related to two ongoing criminal investigations, the employer advised the appropriate officials of the union’s request. As a consequence of that notice, counsel representing the Crown in Right of Ontario (Ontario Provincial Police (“OPP)”)) appeared before me to oppose the production of the documents in question. [2] There is a curiosity, perhaps, in having two separate representatives of the Crown (in manifestations that even fall under the very same Ministry) appearing independently in the same proceeding. However, apart from one near miss, there was no apparent conflict in the positions articulated by counsel representing these different manifestations of the Crown (for ease of reference, I will refer to one as the employer and the other as the OPP). Indeed, given the potential complexity of the issues, it is remarkable how little was actually in dispute in respect of the issue before me. [3] I have already catalogued the fact that no issue was raised regarding the relevance of the documents sought to be produced. Similarly, no issue was taken with notice having been provided to the OPP or with permitting OPP counsel to make submissions before me. It was acknowledged this was precisely the type of procedure envisioned by the Court of Appeal in D.P. v Wagg (2004), 71 O.R. (3d) 229 and that this type of procedure was (at least mutatis mutandis) applicable in the instant case. Neither was there any dispute that within the Wagg process (or its equivalent) to be followed in this case, I have the authority to determine whether to direct production of the documents in question. Further, neither the OPP nor the Union (who were the prime participants in this part of the case) seriously disputed important aspects of the - 2 - submissions made by the party opposite with respect to the importance of ordering or declining to order production. [4] The OPP relied on the affidavit (the contents of which were not disputed by the union) of the Detective Inspector who is the Case Manager for the ongoing OPP investigation. It argued that the integrity of the ongoing investigation, which may result in charges of arson and/or criminal negligence causing death, each carrying potential life sentences upon conviction, might, for the reasons set out in the affidavit, be compromised by the disclosure of the documents in question. [5] For its part, the union argued that stakes in this case (discharge has often been referred to as the “capital punishment” of labour relations) are high and that, given the allegations made by the employer and some of the reasons it has expressed for its decision to terminate the grievor’s employment, access to the documents in question (some of which may have actually been authored by the grievor himself) may well be critical to the union’s defence in the face of the employer allegations. [6] And finally, in this brief taxonomy of the general lack of dispute in this case, there was agreement that the appropriate test to be applied in determining the question before me is that set out in Wagg where the Court of Appeal (at para 17) offered the following (incorporating some of the comments of the Court below): The judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information”. - 3 - [7] I also note that, in support of its position, the OPP pointed out that there has already been a case recently decided by a Master of the Superior Court in which a request to produce documents forming part of the very same investigation as in the present case was denied (Lachaine et al v Putnam Hall o/a Place Mont Roc et al, Court File No. CV-14-504662, January 25, 2016). (That case was adjourned sine die – the plaintiffs in the civil action had been seeking production in order to identify (other) possible defendants.) [8] Counsel for the OPP also advised that the process has now entered into a new phase in that the police file has recently been transferred to the Regional Crown Attorney who will, in turn, advise police of the appropriate next steps (which might include, among others, the laying of charges or the termination of the investigation). [9] Having considered the submissions of the parties, I am persuaded that, in the circumstances of this case, it would not be appropriate to direct production of the materials sought at this time, and I therefore decline to do so. [10] However, none of the participants before me should assume that this constitutes a permanent barrier to the production of the documents in question. As is evident from the cases referred to by the parties, the nature of the public interest to be protected by declining production can vary from case to case and indeed, from time to time within the same case. In the present case, matters are at an early stage (some of the cases, for example, involved requests for documents in a Crown brief even after there had been a disposition of the charges in question). The police file comprises some 90 video interviews and numerous expert reports. The file is voluminous, but no decision has yet been made as to whether or not any charges will be laid. It may well be that the OPP’s interest in opposing the production of parts of its file will change once that decision is taken. I am mindful of the fact that the investigation in question has now been ongoing - 4 - for some four years. And neither was OPP counsel able to advise as to when precisely any decision regarding possible changes will be taken. The grievor and the union should not have to wait indefinitely for access to materials which the collective bargaining parties have (at least effectively) agreed are arguably relevant to the case. [11] In the circumstances of the case, however, and in the interests of protecting the integrity of an ongoing and complicated investigation that may result in some of the most serious possible criminal charges being laid, I am satisfied that, in the absence of any material change in circumstances, it is appropriate to deny production of the documents in the question for a period of six months. The union may renew its request in six months or earlier if there is a material change in circumstances. Should the union renew its request, the matter will be listed for hearing with the same parties to appear before me. In that event, the parties should be prepared to address the question of what conditions, if any, ought to be attached to any production order that may issue. [12] Should the OPP, at any time, withdraw its opposition to production, the documents should be produced to the union without need of a further hearing on the matter. I also direct the OPP, through counsel, to keep the employer and the union apprised of any significant developments in the matter. Dated at Toronto, Ontario this 3rd day of November 2016. Bram Herlich, Vice Chair