Loading...
HomeMy WebLinkAbout2001-0534.Hunt et al.04-11-04 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0534 2003-2944 UNION# 2001-0551-0001 2003-0999-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Hunt et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb Barnster and SOlICItor FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING September 29 and October 27 2004 2 Award ThIS Award addresses the Employer's request for the complete Income tax records of gnevor Florence Clarke, who has testIfied In these proceedIngs, and the complete Income tax records of any other Court Reporter that the Umon Intends to call as a wItness In thIS case The Umon opposes that request. Background On May 4 2001 a group gnevance was filed by three full-tIme classIfied Court Reporters, allegIng that they "have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to the collectIve agreement." Thereafter on August 20 2003 the Umon filed a polIcy gnevance allegIng that "[t]he work assOCIated wIth the preparatIOn and productIOn of transcnpts and certIfYIng them as accurate IS bargaInIng umt work to whIch the collectIve agreement applIes" In both cases, the central legal Issue IS whether or not the preparatIOn of transcnpts IS bargaInIng umt work. At the heanng on August 25 2004 Ms Clarke, one of the gnevors, was asked on cross- eXamInatIOn how she reported to Revenue Canada her transcnpt Income from pnvate lawyers and she responded that she declared It as "other Income" At that pOInt, counsel for the Employer Kelly Burke, asked counsel for the Umon, GavIn Leeb for the gnevor's tax returns, from 1979 tIll present. Ms Burke followed up that request In wntIng on September 1 2004 The wntten request seeks, among other thIngs, the folloWIng 3 1 All Income Tax Reports/Statements filed by Ms Clarke for the penod between 1979 untIl today 2 3 All Income Tax Reports/Statements filed by all classIfied and unclassIfied Court Reporters that you Intend to call as wItnesses In these proceedIngs for the penod between January 1990 and today 4 5 It also reserved "the nght to request addItIOnal dIsclosure as the need anses dunng the proceedIngs IncludIng dIsclosure of the above InformatIOn for any other classIfied or unclassIfied Court Reporter" At the next day of heanng, on September 28 2004 Mr Leeb stated that the Umon obJ ected to produCIng the Income tax records of Ms Clarke and the other Court Reporters The Umon was wIllIng to provIde copIes of the tax records whIch showed the categones completed by Ms Clarke for her transcnpt Income and related deductIOns, but not the specIfic amounts It was dIscloSIng the specIfic amounts to whIch the Umon obJected. The matter was then argued on September 29 2004 and October 27 2004 Positions of the Parties Union The Umon acknowledges that how the gnevor portrayed her transcnpt Income and related deductIOns to Revenue Canada may be arguably relevant to the Issues In thIS case, but It asserts that the specIfic amounts lIsted In each category are neIther relevant, nor arguably relevant, to the Issues In dIspute The Umon asserts that there IS a pnvacy Interest In the content of an IndIVIdual's tax return, based on SectIOn 241 of the Income Tax Act R. S C 1985 Chapter 1 (5th Supp) as 4 amended. It contends that thIS expectatIOn of pnvacy In the content of an IndIVIdual's tax return has been recogmzed by the courts, CItIng to R. v Minardi [1996] 0 J No 5411 Tyler v Canada (MinistlY of National Revenue) [1991] 2 F C 68 [1990] F C.J No 1035 (C.A), and Gernhart v Canada (1991), 81 D.L.R. (4th) 506 (C.A) The Umon also asserts that tax returns should be recogmzed as confidentIal In lIght of the strong publIc polIcy favounng pnvacy as set out In the federal and provIncIal pnvacy statutes AccordIngly the Umon argues that when thIS Employer the government of Ontano seeks to obtaIn the tax records of the gnevor and ItS other wItnesses through an order of the Gnevance Settlement Board, a statutory gnevance adJudIcatIOn body the Charter applIes, or at the least, that the Board's decIsIOn must be consIstent WIth Charter values In support It cItes to Slaight Communications Inc (Operating as Q107 FM Radio) and Davidson (1989), 59 D.L.R. (4th) 416 (S C C) and Re Doman Forest Products Ltd Nelt Westminster Division and International Woocfu,orkers, Local 1-357 (1990) 13 L.AC (4th) 275 (Vickers) The Umon submIts that the proper standard, because of the pnvacy Interests at stake, should be more than the usual "arguably relevant" standard for productIOn of documents It asserts that the standard should be "relevant" or "clearly relevant" so as to balance the competIng Interests of the gnevor and the Employer SInce the Employer In ItS VIew has not demonstrated any compellIng need for the specIfic numbers contaIned In the gnevor's or wItnesses' tax returns, It argues that such records should not be ordered to be produced. In fact, It argues that the InformatIOn IS not even "arguably relevant." In ItS VIew the specIfic numbers on the tax returns have absolutely no relevance or arguable relevance to whether or not transcnpt preparatIOn IS bargaInIng umt work. It asserts that to order dIsclosure In these CIrcumstances IS 5 akIn to an unreasonable search and seIzure, CItIng Plant v Her Majesty the Queen [1993] 3 R. C S 281 (S C C ) and Hunter v Southam Inc (1984) 11 D .LR. (4th) 641 (S C C ) In the Umon's VIew the Employer does not need thIS InfOrmatIOn. Instead, It asserts that ItS real motIvatIOn IS to IntImIdate the Umon's wItnesses and Impede ItS abIlIty to present ItS case The Umon asserts that It wIll have sIgmficant dIfficulty obtaInIng wItnesses to testIfy In thIS matter If they must dIsclose theIr tax records Although It recogmzes that It could subpoena them, It IS reluctant to do so If It means that they wIll have to dIsclose theIr tax returns In ItS VIew the Employer has no busIness knowIng the specIfics of the gnevor's or other wItnesses' tax returns whIch IS a matter solely between the IndIVIdual and Revenue Canada. In so far as the Employer seeks to use the tax returns to test the wItnesses' credIbIlIty the Umon argues that such a purpose IS In vIOlatIOn of the collateral eVIdence rule AccordIngly It submIts that dIsclosure of the documents for that purpose would be Improper FInally In the alternatIve, the Umon argues that should the Income tax statements be ordered dIsclosed, sIgmficant lImItatIOns on the dIsclosure should be ordered. In support, It cItes to Goodman and Rossi (1995) 24 O.R. (3rd) 359 (Ont. C.A) Kinsmen Club of Kingston, cob as the Summerhill Apartment et al. and Walker (2004) 69 O.R. (3rd) 453 (Ont. Sup Ct.) For the Employer The Employer contends that the Board has the power and JunsdIctIOn to order productIOn of the wItness's tax returns under ArtIcle 22 14 and 22 15 of the collectIve agreement as well as SectIOn 48(12) of the Ontano Labour Relations Act It submIts that the reqUIrement IS for "full dIsclosure" and that the legal standard IS "arguably relevant" not "relevant" or "clearly 6 relevant" In support It cItes to OPSEU (Larman) and Ministry of Community Family and Children s Services (2003), GSB No 1617/01 et al (Abramsky) and Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU (Knight) (1994) 39 LAC (4th) 205 (KIrkwood) It specIfically notes that In the Knight decIsIOn, the Board stated at p 210 that "[t]he board has moved towards broad dIsclosure so that the partIes may best be able to assess the ments of theIr respectIve posItIOns and assess possIbIlItIes for settlement." It also cItes to Re Toronto District School Board and Canadian Union of Public Employees Local 4400 (2002), 109 L.AC (4th) 20 at p 32 (ShIme), statIng that "[a]ll documents whIch are arguably or seemIngly relevant or have a semblance of relevance must be produced." The Employer submIts that the gnevor' s and wItnesses' tax returns clearly meet the standard of "arguably relevant." In partIcular the Employer asserts that the tax returns, IncludIng the specIfic amounts lIsted, are "arguably relevant" for four reasons FIrst, It asserts that the specIfic numbers wIll permIt the Employer to assess ItS potentIal lIabIlIty In thIS case Second, It asserts that the specIfic numbers wIll permIt the Employer to better assess the ments of ItS posItIOn as well as potentIal opportumtIes for settlement. ThIrd, It wIll assIst In determInIng credIbIlIty Fourth, It wIll reveal how the IndIVIduals' VIew theIr Income from transcnpt preparatIOn. The Employer submIts that wIthout the specIfic numbers on the tax returns, It has no way of knowIng the amounts claimed for overtIme In regard to transcnpt preparatIOn and no way of knowIng ItS potentIal lIabIlIty In thIS case or what It may have to submIt, for source deductIOns, to Revenue Canada. It argues that It IS subJect to fines and penaltIes If proper source deductIOns were not taken, and therefore It IS cntIcal for the Employer to be aware of the specIfic amounts It contends that by knowIng the amount claimed as Income, combIned wIth the InVOICeS for that 7 work, It can calculate the number of hours worked and therefore Its potentIal overtIme lIabIlIty By knowIng that amount, It wIll better be able to assess potentIal settlement. The Employer further submIts that the tax return wIll reveal how the employees' VIew theIr transcnpt preparatIOn work - whether as work related to theIr employment wIth the Mimstry or as self-employed "other Income" It states that tax credIts claimed, deductIOns taken and Independent busIness numbers for transcnpt preparatIOn Income wIll tend to support ItS contentIOn that such work IS not bargaInIng umt work. It also submIts that the tax returns are relevant to test the wItnesses' credIbIlIty CItIng as an example a wItness who testIfies that she does not use her home telephone to conduct transcnpt busIness yet claims a deductIOn for such an expense In the Employer's VIew It should be able to test the wItness's testImony CItIng Re Greater Essex County District School Board and Ontario Secondary School Teachers Federation (2002) 109 L AC (4th) 379 (Knopf) In the Employer's submIssIOn, the Board should order productIOn of the wItnesses' tax returns It asserts that they are arguably relevant to the Issues In dIspute and that the Employer has properly partIculanzed ItS request. It asserts that the request IS not a fishIng expedItIOn and there IS a clear nexus between the documents and the partIes' posItIOns In thIS case It also asserts that productIOn would cause no undue preJudIce to the gnevors or wItnesses Indeed, the Employer contends that there IS no pnvacy Interest or reasonable expectatIOn of pnvacy In relatIOn to IndIVIdual tax returns It asserts that SectIOn 241 applIes to government officIals who may not dIsclose tax InformatIOn to others, subJect to numerous exceptIOns, and It does not apply to the IndIVIdual taxpayers It further submIts that tax returns have been routInely 8 ordered to be produced by the GSB pnvate arbItrators and the Ontano Labour RelatIOns Board. In support, It cItes to Confederation College v OPSEU (Gosselin Grievance) [1999] O.L AA No 751 (H. Brown) Shalt Baking Company v BakelY Confectionery and Tobacco Workers International Union, Local 284 (Cortolezzi Grievance) [2002] O.L AA No 27 (Bendel) Cruz Construction and Renovation Inc [1998] o .L.R.D No 221 (Gee, Vice-Chair) OPSEU (MacMillan) and Ministry of Health (Thames Valley Ambulance Limited) (1995), GSB No 967/93 (DIssanyake, Vice-Chair) Johnson Carey Ogilvie and MinistlY of Solicitor General and Correctional Services PSGB No P/0009/97 et al (LeIghton, Vice-Chair) Canadian Union of Public Employees Local 1750 v Ontario Workplace Safety & Insurance Board (Garrison Grievance) (2000) GSB No 1438/98 (Mikus, Vice-Chair) In terms of any confidentIal InfOrmatIOn contaIned In a tax return whIch IS not relevant to the dIspute such as IndIVIdual's mantal status, the Employer contends that such InfOrmatIOn may be blocked out, as ordered In the Garrison case In that regard, It also cItes to Re Greater Essex County District School Board and Ontario Secondmy School Teachers Federation, District 9 supra The Employer further asserts that If any pnvacy Interest eXIsted, It was waived wIth the filIng of the gnevances In thIS matter It also argues that ItS request IS not an attempt at IntImIdatIOn or coercIOn, but IS, Instead, a bona fide request for documents whIch are arguably relevant to the Issues In dIspute as raised In the group and polIcy gnevances Although the Employer agrees wIth the Umon that thIS Board's decIsIOn must be consIstent WIth Charter values, It fundamentally dIsagrees wIth the Umon's VIew that ordenng dIsclosure would be InCOnsIstent WIth the Charter To the contrary It argues that an order for 9 dIsclosure IS necessary to ensure the Employer a full and fair heanng, values whIch are fully consIstent WIth the Charter FInally the Employer dIsagrees wIth the Umon's assertIOn, In the alternatIve, regardIng stnct condItIOns on dIsclosure It asserts that the restnctIOns requested by the Umon are far too restnctIve It asserts that If tax fraud IS revealed, the Employer cannot be compelled to overlook that SInce It faces lIabIlIty If the matter IS not reported. The Employer urges the Board to exerCIse ItS power to order productIOn of the requested documents Union Reply The Umon submIts that the Employer's final pOInt - that It has a duty to report Improper tax filIngs - goes to the heart of ItS concern regardIng the Employer's request for productIOn. It submIts that thIS IS, In fact, IntImIdatIOn. In terms of the Employer's assertIOn that It needs the specIfic tax numbers to determIne potentIal lIabIlIty It argues that such an assertIOn must be taken wIth a "graIn of salt" and should not be gIven credence It pOInts out that thIS ratIOnale was not made untIl these submIssIOns, mId-way through the heanng. It further notes that the Employer has made no requests to the Umon for InformatIOn regardIng potentIal lIabIlIty The Umon further contends that most of the Court Reporters Income from prepanng transcnpts IS known by the Employer because the Employer Issues T -4A forms based on transcnpt InVOICeS bIlled to both the Crown and the JudICIary It submIts that the Mimstry has all 10 those T-4As and InVOICeS and may make a reasonable approxImatIOn of ItS potentIal lIabIlIty - enough to "ball-park" the figure for settlement purposes The Umon further contends that It IS a leap to assert that the amount of potentIal overtIme lIabIlIty may be determIned by the Income figure Further It was counsel's understandIng that the Issue of remedy would be dealt wIth after a determInatIOn of the ments Nor In the Umon's VIew could the Income tax figures be of assIstance In determInIng potentIal lIabIlIty when the Issue of retroactIVIty IS stIll undecIded. The Umon asserted that the preCIse numbers were not relevant and that the Employer could make ItS arguments based on the categones revealed In the tax returns, as well as test credIbIlIty on that basIs It agaIn asserted that provIdIng the specIfics In order to attack credIbIlIty was In vIOlatIOn of the collateral eVIdence rule The Umon dIstIngUIshes the cases cIted by the Employer on the basIs that they Involved mItIgatIOn In whIch an IndIVIdual's tax return was clearly relevant, and that a number appeared to be agreed orders In the Umon's VIew there was no argument made In those cases that tax returns enJoyed a reasonable expectatIOn of pnvacy and that decIsIOns ordenng theIr productIOn must be consIstent WIth Charter values Decision The Issue to be decIded IS whether the specIfic numbers contaIned In the gnevor's and wItnesses' tax returns should be ordered produced. The Umon, as noted, IS wIllIng to reveal the categones of Income lIsted for transcnpt preparatIOn and deductIOns taken, but IS not wIllIng to provIde the specIfic numbers For the reasons set forth below I conclude that the specIfic numbers are not "arguably relevant" to the Issues In thIS case Consequently I declIne to order that the specIfic numbers be produced. 11 The legal Issue In thIS case IS whether the preparatIOn of transcnpts IS bargaInIng umt work. In that regard, the fact that a Court Reporter lIsts theIr Income from transcnpt productIOn as self-employment Income or busIness Income, and the type of deductIOns taken IS arguably relevant. But the preCIse numbers - how much they reported to Revenue Canada, or deducted - IS not relevant. The amounts do not prove - or tend to prove - a fact In Issue The specIfic numbers have no beanng on whether or not transcnpt preparatIOn IS bargaInIng umt work. Nor In my VIew IS that InfOrmatIOn arguably relevant. The Employer's strongest argument for productIOn IS that the specIfic numbers would assIst It In determInIng the Mimstry's potentIal lIabIlIty and thus explore settlement optIOns As stated In Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Knight) supra at p 210 "[t]he Board has moved towards broad dIsclosure so that the partIes my best be able to assess the ments of theIr respectIve posItIOns and assess possIbIlItIes for settlement." Upon careful reflectIOn, however I find that productIOn of the specIfic numbers cannot be JustIfied on thIS basIs There IS no dIrect - or even IndIrect - correlatIOn between the Income reported for transcnpt preparatIOn and the number of hours worked, and hence the Mimstry's potentIal overtIme lIabIlIty The reason for thIS IS that there are several dIfferent types of Court Reporters, requlflng vanous amounts of typIng outsIde of work hours to produce transcnpts The eVIdence shows that CAT reporters, who use a computer to record the record, reqUIre very lIttle tYpIng tIme outsIde of work to produce a transcn pt. In contrast, a mask reporter such as Ms Clarke must type her transcnpts on her own tIme at home Consequently the same Income figure for transcnpt preparatIOn may reflect vastly dIfferent amounts of hours worked outsIde of work. The Income IS 12 based on the number of pages of transcnpt produced, as outlIned In the tanff, regardless of the tIme spent outsIde of work hours needed to prepare It. ThIS Issue IS further complIcated by the fact that there IS no consIstent practIce WIthIn the Mimstry of the Attorney General regardIng tYpIng transcnpts on work tIme Some courts allow It. Some do not. Further sometImes a Court Reporter who IS not generally allowed to type on work tIme may be permItted to do so such as when the request for a transcnpt comes from a Judge As a result, any gIven Income figure on a Court Reporter's tax return wIll not reveal the Mimstry's potentIal overtIme lIabIlIty In cases where the Court Reporter IS allowed to type on work tIme, all or most of that Income wIll have been earned for transcnpts typed done dunng the regular day and would not be elIgIble for overtIme, should the Umon prevaIl In other cases, where the employee IS not allowed to type dunng the work day the sItuatIOn would be dIfferent. AgaIn, the Income earned for transcnpt preparatIOn would not necessanly correlate to hours worked outsIde of the regular work day and hence help the Employer to determIne ItS potentIal lIabIlIty assess the ments of ItS case or effectIvely explore settlement optIOns Further for settlement purposes, the Employer IS fully aware of a substantIal portIOn of the Court Reporters' Income from the productIOn of transcnpts The eVIdence showed that the Court Reporters' Income from transcnpts comes from three maIn sources - transcnpts ordered by the JudIcIary transcnpts ordered by the Crown and transcnpts ordered by the pnvate bar or pnvate partIes The Mimstry provIdes for InVOICeS for transcnpts ordered by the JudIcIary and the Crown, and then provIdes Court Reporters wIth a T -4A whIch sets forth the amount paid for such transcnpts Based on thIS InformatIOn, the Mimstry could, as the Umon asserts, "ball park" theIr potentIal lIabIlIty- assumIng that transcnpt Income may be correlated Into hours worked for 13 the calculatIOn of overtIme In thIS regard, I would note that there IS no transcnpt page per hour standard In the record. In determInIng the relevance and arguable relevance of the specIfic numbers contaIned In the wItness's tax returns, It IS sIgmficant that the Issues of lIabIlIty and remedy were bIfurcated In thI s case My notes from the first day of heanng In thIS case reveal counsel for the Umon statIng that If "thIS heanng proceeds, the partIes agree that the Issue of remedy wIll be dealt wIth separately from the ments" Counsel for the Employer dId not refute thIS, and later agreed that the Issue of remedy IncludIng retroactIvIty was separate In my VIew the specIfic numbers lIsted on the Court Reporters tax returns may well be relevant to the Issue of lIabIlIty If the Umon prevaIls, SInce It IS arguable that the Income earned should be offset agaInst any claim for overtIme pay In order to preclude a double payment. But It only becomes relevant then - If the Umon prevaIls The specIfic numbers have no relevance or arguable relevance to whether preparatIOn of transcnpts IS bargaInIng umt work. Whether a Court Reporter makes $500 $5 000 or $25 000 from prepanng transcnpts does not prove or tend to prove, anythIng on that Issue A number of the cases cIted by the Employer In whIch Income tax statements were ordered produced dealt wIth the Issue of mItIgatIOn, after the board of arbItratIOn had determIned that the gnevor had been dIscharged wIthout Just cause As stated In Confederation College and OPSEU (Gosselin Grievance) supra at par 11 "It IS not unreasonable and IS Indeed generally accepted that to confirm the amount of an employee's earmngs to establIsh the correct amount of compensatIOn, that Income tax returns covenng the penod In reVIew may be requested and consIdered to determIne and venfy the actual amount reqUIred to be paid to the employee" See also Shalt Baking Co and Bekery ConfectionelY and Tobacco Workers International Union, 14 Local 284 (Cortolezzis Grievance) at par 28 "At the employer's request, we ordered the gnevor to produce hIS Income tax returns for 1995 to 2000 so that the employer could satIsfy Itself about any earmngs the gnevor mIght have had dunng that penod." The case of OPSEU (MacMillan) and MinistlY of Health (Thames Valley Ambulance Limited) supra, IS sImIlarly related to the Issue of mItIgatIOn. That A ward sImply states, at pp 5- 6 that the employer sought certaIn InformatIOn, IncludIng the gnevor's tax return and all T-4 slIps for the tax year 1994 "In order to consIder whether the gnevor had complIed wIth her duty to mItIgate loses" and that the Umon "undertook to provIde the same" The Board dIrected the partIes to cooperate and dIsclose all matenal related to mItIgatIOn In order to see whether the Issue could be resolved. In Cruz Construction and Renovation Inc supra, whIch Involved a related-employer applIcatIOn before the Ontano Labour RelatIOns Board, the Vice-Chair determIned that the personal Income tax record of Joe Cruz, the pnnCI pal of two constructIOn firms and the brother of the pnncIpal In another such firm was "arguably relevant to the Issues In dIspute and thus ought to be produced." The productIOn was ordered solely for the purpose of determInIng whether Mr Cruz claimed expenses Incurred by the Cruz compames In Canadian Union of Public Employees, Local 1750 and Ontario Workplace Safety & Insurance Board (Garrison Grievance) supra, the gnevor was dIscharged, In part, based on the Employer's belIef that the gnevor had been workIng at CasIno Caterers, a chantable caSInO operated by the gnevor and her spouse, whIle she was allegedly Incapable of returmng to her posItIOn WIth the employer The Employer sought, among other thIngs, Income tax returns for CasIno Caterers and the personal Income tax returns of the gnevor Vice-Chair Mikus 15 determIned, at par 5 that all of the documents requested should be produced SInce "[t]here IS no questIOn about theIr relevance" She contInued "They all relate to the gnevor's partIcIpatIOn In CaSIno Caterers, whIch IS central to the Employer's allegatIOn concermng the gnevor's abIlIty to return to work." These cases demonstrate, as counsel for the Employer contends, that arbItrators, IncludIng the GSB have ordered partIes to produce Income tax records where that InformatIOn IS eIther relevant or arguably relevant to the Issues In dIspute In thIS case however the specIfic numbers - as opposed to the categones - of Income and deductIOns contaIned on the Court Reporters' personal tax returns are not relevant or arguably relevant to the Issues In dIspute In regard to the Employer's submIssIOn that the specIfic numbers are needed to test the credIbIlIty of the wItnesses, I find that an Improper basIs to order productIOn of the wItnesses' Income tax records In lIght of the collateral eVIdence rule Under that rule, a wItness's answer to a questIOn that does not relate to the facts In Issue (i e somethIng that IS collateral to the Issues In dIspute) IS final and a party on cross-eXamInatIOn, may not call eVIdence to contradIct It. In my VIew the level of Income reported IS not relevant to the Issues In dIspute (whether or not transcnpt preparatIOn IS bargaInIng umt work) and IS therefore IS a collateral fact. The Employer may not seek eVIdence, such as the wItness's tax returns, to refute It. In terms of the example cIted by the Employer dunng argument - a wItness who claims that she does not use her home telephone but then claims a deductIOn for phone usage of her tax return - the Umon's agreement to produce the categones of the deductIOns claimed would be sufficIent to cross-examIne the wItness on thIS pOInt. 16 The decIsIOn of ArbItrator Knopf In Re Greater Essex County District School Board and Ontario Secondary School Teachers Federation, District 9 supra, does not contradIct the collateral eVIdence rule when the arbItrator states at p 384 that "natural JustIce demands that each party should be able to challenge the basIs of any wItness's testImony No matter how honest or well meamng a wItness may be, s/he must stIll be subJect to challenge by the other sIde In lItIgatIOn." In that case, the gnevor an EducatIOnal AssIstant who worked predomInantly wIth one specIal needs chIld, M, was dIscharged after her request for a leave of absence was demed and she left anyway She was warned that faIlure to return to work would lead to termInatIOn, and when she dId not return, she was dIscharged. Gnevances were filed regardIng the employer's demal of the leave of absence and the gnevor's dIscharge The employer In decIdIng to deny the leave of absence request, relIed on matenal In M's file and the umon sought productIOn of the file The Employer obJected but the arbItrator ordered productIOn because the documents formed the foundatIOn of the Employer's decIsIOn to deny the leave of absence request and productIOn was necessary for the Umon to challenge the basIs of that decIsIOn. In that case, therefore, the documents sought were clearly necessary for the Umon to challenge the wItness's decIsIOn makIng on one of the central Issue In dIspute - the propnety of the demal of the leave of absence It was not a collateral fact. Based on my conclusIOns as set forth above I find It unnecessary to consIder the Umon's other contentIOns that there IS a reasonable expectatIOn of pnvacy surroundIng personal Income tax returns, or that the appropnate standard In thIS case IS hIgher than "arguably relevant." Conclusion For all of the reasons set forth above, I conclude that the specIfic numbers are not "arguably relevant" to the Issues In dIspute Instead, the Umon IS ordered to produce the tax 17 returns of Ms Clarke wIth the numbers blacked out, but shoWIng the categones (lIne Items) recorded. Other related tax documents, such as a Statement of BusIness ActIVIty and the Schedule 8 documents, If any sImIlarly edIted, should also be produced. Further any personal InformatIOn on the tax return IS to be blacked out. The same rulIng applIes to any other Court Reporter wItness In terms of the years for whIch the gnevor and other wItnesses must produce the above tax InfOrmatIOn, no argument was made on that Issue by eIther sIde I wIll entertaIn arguments on thIS Issue, eIther by oral submIssIOns or In wntIng, If the partIes cannot come to some agreement. Issued at Toronto thIS 4th day of November 2004 Vice-Chair