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HomeMy WebLinkAbout2004-3890.Mustari et al.07-10-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2004-3890 UNION# 2005-0517-0003 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Mustari et al.) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Janice Johnston Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Felix Lau Counsel Ministry of Government Services October 1 & 4, 2007. Union Employer Vice-Chair 2 Decision The grievors in this case are claiming that the Ministry has violated the Human Rights Code and the collective agreement in the manner in which it dealt with and responded to a lawsuit initiated by an inmate, Marc Mugenzi. The grievors allege that the Ministry inappropriately disclosed their names and addresses to the inmate. In addition, they assert that the Ministry failed to provide them with legal representation in a claim arising out of the workplace when they were performing their duties, in accordance with the collective agreement and the policy pertaining to the reimbursement of legal expenses. At the hearing scheduled to deal with this matter, some issues arose with regard to disclosure. There were disclosure requests made by both parties. I will start with the information requested by the Ministry. Counsel for the Ministry requested that the union produce the following: i) Any receipts or documentation substantiating a claim by the grievors for the reimbursement of various expenditures relevant to the case before me; ii) In the event that a grievor is going to raise medical issues in this case, i.e. claim for the reimbursement of sick time, any medical information or documentation that substantiates this or any other medically related claim. Counsel for the union did not object to producing this information. Accordingly, it is to be produced as soon as possible. The requests for production made by the union fall into two broad categories. Counsel for the Ministry agreed that the first group of documents were relevant and did not object to the production of them. Therefore, the Ministry is hereby directed to produce the following as soon as possible: i) All of the backup documentation pertaining to IIU Report No. 738-02-01 that has not yet been provided. This includes any notes, incident reports, witness statements etc. 3 ii) All of the backup documentation pertaining to IIU Report No. 822-07-02. This includes any notes, incident reports, witness statements etc. iii) A copy of the insurance policy and carrier contracts dealing with legal coverage or representation for employees of the Ministry and/or government employees generally. Any documentation pertaining to the application of this policy to the individual grievors in the case before me including correspondence, e-mails, or notes of any conversations. iv) Clearer or more legible copies of handwritten notes that have already been given to counsel for the union by the Ministry. In addition, counsel for the Ministry is directed to obtain the complete file pertaining to the civil litigation that took place based on the circumstances that led to the filing of the grievances before me. It is my understanding that this file is in the possession of Russell Hatch, who is located at the law firm of Blaney, McMurtry. When counsel obtains the file, he is to review it and either produce the contents to union counselor provide a list of the documents for which privilege is claimed. Counsel for the union has requested some documents that the counsel for the Ministry has objected to producing. Union counsel has requested that the employer produce records for employees who have been provided with legal representation or reimbursed for legal representation and associated expenses, in cases in which employees have been named in civil lawsuits involving allegations of intentional torts, similar to the case before me. Counsel for the Ministry alleges that this request is too broad and amounts to a fishing expedition on the part of union counsel. Counsel asserts that such a blanket demand is inappropriate and that specific examples must be particularized and provided to the Ministry. He suggests that it is not up to the Ministry to search through files pertaining to fifty -four institutions over an unspecified period of time. In support of this argument, he relies upon OPSEU (Tone) and Ministry of the Attorney-General and Correctional Services (2000) GSB No. 1996-2693 (Dissanyake, Vice-Chair) and OPSEU (Patterson) and Ministry of Children and Youth Services (2007) GSB No. 2003-1588 (Abramsky, Vice-Chair). 4 Union counsel points out that the test for disclosure is arguable relevance. In this case, it is the position of the union that the Ministry refused to provide the grievors with legal representation in a situation in which legal representation has been afforded to other employees of the Ministry in the past. He asserts that the grievance, to some extent, is about this differential treatment. The disclosure request seeks information on these earlier claims. Counsel suggests that a record of theses claims must exist. At a minimum, in his view, the Ministry is required by law to maintain records pertaining to civil litigation that has occurred. Counsel for the union provided three examples of situations that have occurred in the past for which disclosure is sought. Two are identified by the name of the inmate involved. The first involves an inmate named "Camila Wilson" and the second, which occurred in April, 2005, pertains to an inmate named "Caneiro". The third example involves two corrections officers named Trevor Dunscombe and Savtir Tak. In response, counsel for the Ministry took the position that it is not sufficient for the union to merely identify a case. In addition, he asserted that the request must be particularized and the union must place the case for which information is sought into the context of the case before me. The test for disclosure is arguable relevance. While I agree with Ministry counsel that there is some onus on the union to identify the examples it asserts support the claim that the grievors have been treated differently than others in similar circumstances, once the Ministry has been provided with names that may identify other examples, that is enough. It is not appropriate to require the union to attempt to provide particulars that it may not have. It is sufficient for the union to identify examples that the Ministry must then review. After reviewing the files, if the Ministry chooses to assert that they are not arguably relevant, then that is an argument for another day. Accordingly, I direct counsel for the Ministry to obtain, review and if appropriate, provide counsel for the union with information pertaining to the three examples set out above, namely the Wilson and Caneiro cases and the case in which officers Dunscombe and Tak were involved. In addition, if the Ministry is currently aware of any other relevant cases or the union identifies other arguably relevant cases, counsel for the Ministry shall engage in the same 5 process set out above. Any information and/or documents disclosed pursuant to this order are to be utilized only for the purposes of this case. This case shall continue on October 29,2007. Dated at Toronto this lih day of October 2007