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Home My WebLink About1992-3085.Ally.94-03-03 , , , ONTARIO EMPLOYES DE LA COURONNE , <::, CROWN EMPLOYEES DE L'ONTARIO ~ 11I11 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TpRONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE. (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 3085/92 IN T~E MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD - BETWEEN - ~ OPSEU (Ally) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Employer I BEFORE A. Barrett Vice-Chairperson I E Seymour Member M. Milich Member I FOR THE N. Roland GRIEVOR Barrister & Solicitor FOR THE A. Rae EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING January 19, 1994 , ( I i \ .. D,ECISION i!:Y .. This is a preliminary decision regarding the production of I documents pursuan't to a summons duces tecum " I ( The grievor was dismissed from employment with the Ministry on October 7, 1991, for the reasons set out in his disGharge letter, as follows "CERTIFIED LETTER AND DELIVERED BY PUROLATOR I October 7, 1991 Mr Kamar Ally c/o N Xynnis, Esq Heller & Rubel 111 Richmond Street West Toronto, Ontario M5H 2G4 Dear Mr. Al~y; J I have been advised that you have been sentenced to a jail term of twelve months as a result of your conviction on the indictable offence of arson You profited from your criminal conduct through the Short Term Sickness Plan and LTIP and with the Ministry as the Short Term Sick Plan carrier subsidizing all your other benefits In accordance with Section 22(3,) of the Public Service Act, R S 0 1980, Chapter 418, the Ministry hereby dismisses you from the Public Service effective immediately. At this time', I should make you aware that you have the right to grieve this action pursuant to Article 27 8 2 of the Collective Agreement with respect to working conditions and Employee Benefits l ) Pat Jacobsen Deputy Minis~er" ) ( 2 ( I ~ '" r, Confederation Life Insurance Company is the LTIP insurer which provides long-term income protection benefits pursuant to Section \ 42 of the collective agreement The employer summonsed a representative of the insurance company to our hearing requiring that the person bring with her and produce "Confederation's file with respect to Mr Ally's claim for benefits" The file contains confidential medical reports, and the insurance company resisted produci~g them without the consent of the grievor The grievor, through union counsel, 'declined to give his consent on the basis that the file is irrelevant in this proceeding and that any allegation of f:aud against the insurer must be dealt with as an issue between the insurer and Mr Ally, in which the employer has J no business intermeddling In essence, union counsel -asked us to rescind the summons duces tecum Employer counsel asked for an order that Confederation Life produce the requested documents, which we have the authority and jurisdiction to do It will be the employer's evidence that on August 24, 1988, the grievor committed arson at a meat store owned by himself and his wife, for which he was later convicted and jailed, and that he sustained severe burns to his hands during the commission of the offence The grievor told the employer the burns I were caused by the explosion of a car battery when he was giving someone a boost He remained off work, first of all on short-term sickness benefits, then for two years on long-term income protection through Confederation Life The employer discovered the truth in September, 1991, when someone read a newspaper report '\ ( i \ 3 .~ " After further investigation, the , abou t Mr Ally's arson conviction employer dismissed Mr Ally for profiting from his ,criminal conduct through the short-term sickness plan and LTIP Given the reason for dismissal asserted by the employer, we are forced to the conclusion that the requested docuTI}ents are "arguably relevant" The jurisprudence of this Board was accurately summarized in Hyland, GSB #1062/89 (Ratushny), at page 4, where it was said: "It has been established that in proceedings before the Grievance ~ettlement Board, the appropriate test for production of documents by way of subpoena duces tecum and, in turn, where counsel agree to voluntary production on the basis of that test, is whether the documents are 'arguably relevant' In OPSEU (Little) and Ministrv of Revenue G S B 522/88 (Slone) the Board ruled as follows We have heard argument from the Grievor's counsel that theories will be advanced that could render the findings in the previous competitioD' relevant We are not persuaded that some such theory could not succeed, and the Grievor should have every opportunity to prove her case (p 1) In OPSEU (Eadie) and Ministry of Correctional Services G S B 766/88 (Devlin), the Board stated In our view, the request for production ~ould not be characterized as a fishing expedition as the Union sought to obtain specific documents which were known to exist and which were required to support its case Moreover, for purposes of production, relevance should be broadly rather than narrowly construed (p 2) It also should be kept in mind that an order for 'production' does not preclude argument over the actual admissibility of a specific document into evidence at the time it is sought to be introduced " ( -~ , I f, ( 4 i! ;f As to the argument that the alleged fraud of Confederation Life is a matter only between Confederation Life and Mr Ally, we were directed to Article 27 9, 1 of the collective agreement1which employee to \ permits an grieve that he has been denied benefits pursuant to the long-term income prote<ftion plan We were also I referred to Article 42 1 which specifies that the employer pays 85% of the premium for LTIP Given these contract provisions, ther (-' employer has a substantial interest in epsuring that the long-term income protection plan is properly administered i ( We agree w~th employer counsel's submissions, and therefore order1production of the file of Confederation Life with respect to Mr Ally' s claim for benefits, with the exception of any legal i' doc'urnents that may be contained therein The. employer requires : these documents to prove part of its case, and they are arguably relevant We resetve any decision on tqe issue of admissibility of some ,or all of the documents until they are sought to be introduced in evidence Confederation Life will produce the documents to the empl,?yer i \ i ('O, ( 5 - ~ ~ upon receipt of a copy of this order, and the employer will provide copies of the documents to the unton Dated at Toronto this 3rd day of March~ 1994 ~~5/L A Barrett, Vice-Chairperson (" <' ^ ~~/ ~ ,/?<j;?'?- - ) Seymour, Member E - ~' {J ' '~ / ~v' rA . c. /c,A: ({/ / , - M Milich, Member . \