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Home My WebLink About2001-0534.Hunt et al.05-03-10 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 2004-3263 UNION# 2001-0551-0001 2003-0999-0023 2004-0271-0007 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 March 8 2005 2 DeCISIon The Employer has moved to dIsmIss thIS proceedIng, In ItS entIrety on the basIs that the Umon has faIled to comply wIth an order of the Board regardIng the productIOn of documents After consIdenng the eVIdence and arguments of the partIes, I have decIded to deny the Employer's motIOn. Bnefly my reasons are as follows 1 On August 25 2004 dunng the cross-eXamInatIOn of Ms Florence Clarke one of the gnevors, counsel for the Employer Ms Burke, asked the Umon to produce the gnevor's tax returns from 1979 to present. ThIS penod of tIme corresponds to the eVIdence presented by the Umon. 2 On September 1 2004 Ms Burke followed-up that request In a letter to counsel for the Umon, Mr GavIn Leeb In the letter Ms Burke asked for among other Items, "[a]ll Income Tax Reports/Statements filed by Ms Clark for the penod between 1979 untIl today " 3 Counsel for the Umon obJected to produCIng the gnevor's tax records The Umon was wIllIng to produce 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 The Employer sought the complete tax returns 4 ThIS matter was argued on September 29 and October 27 2004 5 On November 4 2004 I Issued an Award on thIS Issue At pp 16-17 I concluded 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 returns of Ms Clarke wIth the numbers blacked out, but shoWIng the categones (lIne Items) records Other related tax documents, such as the 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 Report 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. 3 6 The Umon supplIed to the Employer Ms Clarke's Income tax returns for 2001 2002 and 2003 The schedules were not attached. The 2003 schedule had a summary of the deductIOns attached. Ms Clarke testIfied that her husband maIled the completed forms to Revenue Canada and dId not retaIn a copy of them, Just the summary As to earlIer years, Ms Clarke explaIned that she learned, In late September 2004 that the IndIVIdual who prepared her tax returns, Hans Rosenthal, had dIed In a car accIdent on September 2,2004 7 On December 15 2004 Ms Burke wrote to Mr Leeb that the documents provIded were Incomplete, and that she would raise the Issue at the next heanng date 8 At the heanng on December 17 2004 the completeness of the tax documents provIded was raised by the Employer At that heanng, I requested the Umon to make a request for the documents from Revenue Canada and further InqUIre about the records from Ms Rosenthal's firm. Counsel for the Employer advIsed that unless further documents were provIded, she would be bnngIng a motIOn to dIsmIss 9 At the heanng on March 8 2004 the Employer moved to dIsmIss the gnevances because of the Umon's faIlure to comply wIth the Board's order of November 4 2004 It asserts that the Umon's faIlure to comply breaches the dIsclosure reqUIrements In the collectIve agreement, the Board's order of November 4 2004 and precludes the Employer from defendIng Itself, sImIlar to the sItuatIOn In Re OPSEU (Larman) and Ministry of Community Family and Children s Services, GSB No 1617/01 et al (Abram sky) endorsed by the DIvIsIOnal Court, leave to appeal filed. 10 Ms Clarke's eVIdence was that In September 2004 she called Mr Rosenthal's office and learned, from hIS wIdow that he had been kIlled In a car accIdent on September 2, 2004 along wIth hIS daughter His wIdow was unable to provIde any InformatIOn regardIng the gnevor's tax returns at that tIme, and suggested she try agaIn later The gnevor dId so callIng some SIX or seven tImes subsequently although she could not recall the specIfic dates Each tIme the VOIce mall box was full She also went to the Rosenthal's home, tWIce, but had no success In response to my request that further efforts be made, she wrote a letter to Mr Rosenthal, In care of hIS wIfe, whIch she maIled In early January by regIstered mall That letter was returned, unopened, by Canada Post In early February 2005 In late December 2004 she also wrote a letter to Revenue Canada whIch she sent by regIstered mall, and also faxed them a letter requestIng "all of my Income tax returns from 1979 to the present IncludIng any schedules relIed upon." She advIsed that she needed these documents In connectIOn wIth an arbItratIOn heanng and that she had been unable to obtaIn the documents from her accountant. To date she has had no response from Revenue Canada. She has made no follow-up telephone calls, nor sent any further faxes or letters 11 It IS my VIew that the order of November 4 2004 was clear The gnevor was to provIde her tax returns and related documents, wIth the specIfic numbers blacked out. How far back she had to go however was not decIded. 4 12 It IS also my VIew that addItIOnal efforts should have been made to obtaIn the requested documents I would have expected some follow-up wIth Revenue Canada, and I agree wIth the suggestIOn of counsel for the Employer that contact wIth an accredItIng body for accountants regardIng what happens to records after an accountant's death and how they can be obtaIned should have been done 13 Although more should have been done I do not find thIS to be an appropnate case to dIsmIss the gnevance for faIlure to comply wIth the Board's order or for the reasons set forth In Larman, supra 14 The gnevor dId make sIgmficant efforts to obtaIn the requested documents She explored and produced the documents In her posseSSIOn. She tned to obtaIn the documents from her accountant, but ran Into substantIal dIfficulty because of hIS unexpected and tragIc death. Nevertheless, she dId try to obtaIn the documents from hIS wIdow wIthout success She dId request the documents from Revenue Canada. 15 The cases cIted by the Employer are, In my VIew dIstIngUIshable on theIr facts 16 Further there was no IntentIOnal dIsregard of the Board's order by Ms Clarke, nor floutIng of the arbItratIOn process 17 I also find the Larman case to be dIstIngUIshable In Larman the documents that were destroyed by the consultant were central to the Umon's abIlIty to present ItS case, the Employer's abIlIty to defend the gnevance and the Board's abIlIty to assess the ments of the case In thIS case, the gnevor's tax returns are not central to the case With the documents submItted to date, the Umon can stIll present ItS eVIdence that the tYpIng of transcnpts IS bargaInIng umt work, and the Employer can stIll defend ItS posItIOn that such work IS Independent of the Employer and treated as Independent by the court reporters The Board wIll stIll be able to assess the ments of the case 18 Further Ms Clarke IS only one of three IndIVIdual gnevors There IS no eVIdence regardIng what tax documents the other gnevors possess, nor any of the other court reporter wItnesses The type of InfOrmatIOn that the Employer seeks may be obtaIned through tax returns other than Ms Clarke's 19 In terms of potentIal lIabIlIty any relevance of the mISSIng documents may be assessed at that tIme If necessary 20 In my VIew the dIsmIssal (or grantIng) of a gnevance for non-productIOn of documents IS an extraordInary remedy It should be granted only In the clearest of cases where there IS an abuse of the arbItratIOn process or the partIes' abIlIty to have a full and fair heanng IS Irrevocably compromIsed. ThIS case does not meet that standard. 5 AccordIngly although I order that further efforts to obtaIn the tax returns be undertaken, the Employer's motIOn to dIsmIss IS demed. The heanng wIll contInue as scheduled, on March 11 2005 Issued at Toronto thIS 10th day of March 2005 hruJ161w -' RamdI H. Abramsky Vice-Chair