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HomeMy WebLinkAbout2015-1251 et al.Fitzpatrick.18-07-19 DecisionCrown 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# 2015-1251; 2015-1340; 2015-2769; 2015-2772; 2016-0219; 2016-0220; 2016-0341; 2016-0342; 2016-0426; 2016-0427; 2016-0429; 2016-0469; 2016-0792; 2016-0793; 2016-1116; 2016-1802 UNION# 2015-0368-0285; 2015-0368-0286; 2015-0368-0373; 2015-0368-0376; 2016-0368-0046; 2016-0368-0047; 2016-0368-0055; 2016-0368-0056; 2016-0368-0061; 2016-0368-0062; 2016-0368- 0064; 2016-0368-0069; 2016-0368-0102; 2016-0368-0103; 2016-0368-0119; 2016-0368-0174 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fitzpatrick) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Diane Gee Arbitrator FOR THE UNION Rebecca Glass Dewart Gleason LLP Counsel FOR THE EMPLOYER Henry Huang Treasury Board Secretariat Legal Services Branch Counsel HEARING July 3, 2018 -2- DECISION [1] This decision deals with two preliminary issues. The first issue concerns the Union’s request for an Order requiring the Employer to produce “all documents, notes, memos, and information regarding the workplace restoration report conducted for the grievor’s workplace”. The report referenced in the Union’s production request is a report prepared by Rick Russell of Agree Incorporated dated December 11, 2015 that was provided to the Ministry of Community Safety & Correctional Services CECC: Programs Division. The report is entitled Re: Workplace Assessment: Social Work, Addictions & Rehabilitations (the “Report”). The second issue is the Union’s request that the grievor, Carrie Fitzpatrick, be permitted to adduce her evidence in chief by way of a “will-say” statement. The Employer opposes both requests. Issue #1 [2] The 20 grievances before me include, amongst other things, an allegation the employer assigned Carrie Fitzpatrick to an unreasonably large volume of work, frequently changed her assignments, gave her inconsistent and constantly changing directions, and lied or condoned lying leading to Ms. Fitzpatrick taking a medical leave from June to December 2015. [3] The Report originates out of Minutes of Settlement (“MOS”), entered into by the Employer and the Union on June 15, 2015 in respect of 60 other grievances filed by seven employees, including Ms. Fitzpatrick. The grievances concerned many of the issues, set out in the previous paragraph, that are raised by Ms. Fitzpatrick in the instant grievance. Paragraph 1 of the MOS reads: The Employer agrees to commence a Workplace Restoration/Mediation within the Programs Department at CECC. For clarity the parties agree to utilize the services of Rick Russell – Agree Dispute Resolution Services. [4] Rick Russell was subsequently retained and, ultimately, prepared the Report. The Report itself is clearly watermarked on every page “confidential” and it states: At the outset of the contract, it was agreed that the conflict management consultant, Rick Russell, would: • Complete confidential interviews • Prepare a short Confidential Report that would: o Be, wherever possible, “non-attributable” The Employer states that all individuals spoken to were told that their comments would be kept confidential. [5] The Union submits that the subject matter of the Report concerns Ms. Fitzpatrick’s work area and overlaps with the subject matter of the allegations in the present matters. -3- In addition, the time period under consideration by Mr. Russell in the Report overlaps with the time period during with the alleged events occurred in the present matters. The Union submits that the Report considers the same subject matter during the same period as is issue in the instant grievances and is thus arguably relevant. [6] Relying on Toronto District School Board and Canadian Union of Employees, Local 4400, (2002) 109 LAC 4th 20 at page 13, and Peel District School Board v. O.S.S.T.F., District 19, 2012 CarswellOnt 3304, the Union argues, the law in Ontario supports very broad production such that “even a semblance of relevance is enough.” [7] In anticipation of the Employer’s argument that the Report is confidential, the Union states there is nothing in the terms of the MOS that provides the Report is confidential or that the settlement itself is confidential. The Union thus submits, the Report is not covered by any ground of privilege, is arguably relevant, and must be produced. [8] The Employer notes that the request made by the Union that includes the Report is not limited to the Report itself. Rather, it includes “all documents, notes, memos, and information regarding the workplace restoration report conducted for the grievor’s workplace.” [9] The Employer argues the Report is not arguably relevant, is a fishing expedition and is highly prejudicial given all who participated were assured they were speaking in confidence. [10] The Employer states that the report is not the results of an investigation. The Report specifically states it is not an investigation and further states that it makes no findings of fact. [11] The Employer further relies on the fact that the Report was produced as part of a process intended to repair a fractured workplace. Disclosure of the report now would be seen as a betrayal to the staff that trusted in the confidential nature of the process and would serve to undo all the work of the restoration process in a workplace that has only now begun to heal. In response to the Union’s statement that there is nothing in the MOS that states the Report is to be kept confidential, the Employer states there is equally nothing that says it is to be provided to anyone outside of management. [12] On the law, the Employer does not agree with the Union‘s characterization that the test for pre-hearing production is a semblance of relevance. The Employer submits that the appropriate test is as set out in OPSEU and The Crown in Right of Ontario (Ministry of Environment) (Madan) Decision of M. Watters dated November 21, 2012 and Ontario Liquor Boards Employees’ Union and Liquor Control Board of Ontario (Koonings) decision of O. Gray dated February 17, 2006, both of which are decisions of the GSB. Based on these decisions, the Employer argues the following five factors are to be considered: i) the information requested must be arguably relevant; ii) the requested information must be particularized so there is no dispute as to what is desired; -4- iii) the decision-maker should be satisfied that the information is not being requested as a “fishing expedition”; iv) there must be a clear nexus between the information being requested and the positions in dispute at the hearing; and v) the decision-maker should be satisfied that the disclosure will not cause undue prejudice. [13] Addressing factors 1 and 4, the Employer notes that the particulars provided by the Union do not make reference to the workplace restoration process. The Report is not an investigative report covering the same subject matter Ms. Fitzpatrick is complaining about. Ms. Fitzpatrick’s complaint is specific to her manager and does not complain of a poisoned workplace. [14] With respect to the second factor, the Employer states that the request has not been properly particularized and is thus overly broad. The Employer relies on Ontario Public Service Employees Union and Ontario (Children and Youth Services), 2007 CanLII 6888 (Patterson) (ON GSB) in support of its position. The Union’s request for production would include documents such as the procurement report that has no relationship to the issues in dispute. The Employer submits that the grievance is not with the Report and does not allege that the Report has not been implemented or in any way challenge the Report itself. [15] Turning to the third factor, the Employer argues that this must not be an endeavor to discover whether the Union has a case or to obtain evidence to support a case. Relying on Ontario Public Service Employees Union and Ontario (Ministry of Children and Youth Services) (Patterson), 2007 CanLII 6888 and London (City) and CUPE, Local 101 (Idzkowski) 2017 CarswellOnt 7569 the Employer argues that the Union is not entitled to seek disclosure of the Report in order to look for support for the grievance. [16] With respect to the final factor, relying on AMAPCEO and Ontario (Ministry of Attorney General), (Horne) Decision of N. Dissanayake dated October 12, 2012, the Employer submits that the probative value of the document must be balanced with the harm production would cause. The Employer relies on the following paragraph: 16. The parties are agreed that the Board has a discretion with regard to the nature and the extent of disclosure to be required. In exercising that discretion the considerations are practical rather than legal. (See, Re Thermal Ceramics. (1993), 32 L.A.C. (4th) 375 (Gray)). Moreover, the arbitrator must balance the desirability and value of disclosure with any countervailing interests such as prejudice to one party, confidentiality concerns or unduly onerous burden in terms of time, effort or expense. (See, Re Stelco Inc. (Hilton Works), (1994) 42 L.A.C. (4th) 270 Dissanayake). [17] The Employer’s primary position, as set out above, is that no order requiring production be made. The Employer submits, in the alternative, if disclosure it to be ordered, limits be put on the disclosure as follows: vi) Disclosure be limited only to the production of the Report itself and not to include other unparticularized items. The Employer states that any notes -5- taken in the course of preparing the report would not be in the Employer’s control. vii) Secondly, the Employer seeks to be permitted to redact aspects of the Report that are not relevant. viii) The Employer asks that Ms. Fitzpatrick and the Union only review the Report in presence of Union counsel without receiving a copy for themselves and any copies of the Report be destroyed at the conclusion of the proceedings. ix) The Employer asks that Ms. Fitzpatrick and any Union representative who views the Report be reminded of the implied undertaking to only use the Report for the purpose of this proceeding and no other purpose. This includes a restriction on discussing the Report with anyone including co- workers and family. [18] In reply, the Union argues that the fact that individuals who were spoken to in the course of the preparation of the Report were told their comments would be kept confidential should have no bearing on the decision. Whether they have been assured of confidentiality or not, the Report can be subject to disclosure. Concerns about confidentiality can be dealt with by placing limits on the scope of distribution or discussion of the Report. The Union has no objections to such restrictions being imposed. Analysis and Decision [19] For the purposes of this decision, I have applied the test as set out in the decisions relied upon by the Employer. As such, the factors to be considered are: i. Are the documents requested arguably relevant to the issues in dispute? ii. Is the request for production sufficiently particularized so there is no dispute as to what documents are being sought? iii. Are the documents being requested as a “fishing expedition”? iv. Will disclosure of the documents cause undue prejudice? [20] In the vast majority of cases where there is an issue concerning the production of a “report” it is in connection with an investigative report that was relied upon by the employer in order to decide whether or not to impose the discipline that is at issue in the arbitration. In such a case, arbitrators routinely order the production of the report on the basis it is arguably relevant to the employer’s reasons for imposing discipline. As the Employer has pointed out, the Report in issue in this case is not an investigative report relied upon by the Employer to impose discipline or make any decision that is being contested in this arbitration. Thus, the Report is not arguably relevant to any decision being challenged in this proceeding and the usual basis upon which reports are found to be arguably relevant does not apply. [21] The Report looks into some of the problems Ms. Fitzpatrick alleges existed in her workplace at the very time period covered by Ms. Fitzpatrick’s grievance. The Report contains numerous quotes from what was said by personnel during interviews held by Mr. Russell. In fact, the only information Mr. Russell had at his disposal is what he obtained through personnel interviews. The Report, in so far as it consists of a recitation of what -6- personnel said during interviews, is, of course, hearsay. To the extent the Report expresses views or conclusions as to the existence or cause of problems in the workplace, it cannot be determinative as such are issues that I must determine based on the evidence before me. [22] In addition to the Report itself, it is evident, from a statement contained in the Report, Mr. Russell took notes during the interviews he conducted. Mr. Russell’s notes are, again, hearsay and thus would not be admissible for the truth of their contents. At best, the notes would be admissible as a record of what Mr. Russell was told by the personnel he interviewed. [23] The fact that the Report and the notes taken by Mr. Russell are hearsay is not, however, determinative of whether or not they ought to be produced. The Report and the notes are arguably relevant in that they may be used to challenge, assist a witness to recall, or corroborate, evidence. If a witness testifies that matters were X and Mr. Russell recorded a note of his interview with that same person that said Y, Mr. Russell’s note could be put to the witness to challenge their evidence as to X. Equally, where a witness is unable to recall what happened, Mr. Russell’s note could be put to them in an attempt to refresh their memory. Further, where a witness testifies as to X and Mr. Russell’s notes are consistent with X, the notes may serve to strengthen the probability of the witness’ testimony. Accordingly, I find the Report and any notes taken by Mr. Russell in the course of his interviews to be arguably relevant. [24] The request is for “all documents, notes, memos, and information regarding the workplace restoration report conducted for the grievor’s workplace.” It is clear, and not disputed, that the Report is the “workplace restoration report” sought by the Union. At the hearing, in response to concerns expressed by the Employer, the Union indicated it did not require production of the procurement documents. As argued by the Employer, it is necessary for a request for the production of documents to be particularized with sufficient clarity that the party being asked to produce the documents knows what the other side is seeking. In this case, there is no confusion as to the report that the Union is referring to in its request. It is that Report, and all documents relating to it, that are being sought. I find the request to be sufficiently particularized. [25] I am not persuaded that the Union’s request amounts to fishing. The Union has provided quite detailed particulars of its allegations. I am satisfied it is not using this production request to find a case. [26] The Employer is strongly opposed to producing the documents in question due to the fact that the personnel interviewed by Mr. Russell were told the interviews were confidential. It is argued that breaching that confidence would cause undue prejudice. This issue has been canvassed in a number of decisions and it has been consistently held that such an assurance of confidentiality will not protect the document from production. The following quote from Board of Governors of Laurentian University v. Laurentian University Faculty Association, 2011 CanLII 20778 (ON LA) is instructive: 25. There are few documents that are confidential for all purposes or in all circumstances. All manner of documents, communications or other information that -7- are confidential outside of the litigation process; including business or corporate information, or personal medical information, may have to be disclosed in a grievance arbitration proceeding if the documents, communications or information are arguably relevant to the matters in issue. The only documents or communications that are exempt from production are those to which a legal privilege applies. All arguably relevant documents, “confidential” or not, must be produced unless a legal privilege applies. A party cannot object to producing arguably relevant documents, whether or not they are “confidential” and regardless of the effect that it may have on its case. As stated in the foregoing quote, the fact that notes were taken in the course of a confidential interview that was conducted for the purposes of a workplace review, does not shield them from production in the context of a labour arbitration. [27] In the alternative to its position the documents ought not to be produced, the Employer requests limitations be placed on the use and disclosure of the documents. The Union does not object. Accordingly, I hereby order the Employer to produce to Union counsel, no later than one month in advance of the next hearing date, a copy of all documents, notes, memos, and information within its possession and control regarding and including the Report. I further order the following restrictions on the use and disclosure of the documents provided: i. The documents and all copies thereof are to be maintained in Union Counsel’s possession. ii. The documents are to be reviewed by Ms. Fitzpatrick and one union representative of her choosing only in the presence of Union Counsel. iii. Ms. Fitzpatrick and her chosen union representative are not to discuss the contents of the documents with anyone else except Union counsel nor are they to discuss the documents between themselves in the presence of others. iv. Soft copies of the documents are not to be made. v. The documents are for the purposes of this litigation and for no other purpose. vi. The documents are to be destroyed at the conclusion of the litigation except to the extent Union Counsel may be required to maintain a copy in her file pursuant to her professional obligations. Issue #2 [28] The Union is seeking to adduce the evidence in chief of Ms. Fitzpatrick by way of a will-say statement. The Union argues that the Collective Agreement evidences an intention for the arbitrator to control the proceedings to the extent possible to have the litigation completed with economy and efficiency. In this regard, the Union refers to Article 22.16.2 of the Collective Agreement wherein it states: When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. -8- The Union further relies on the following articles of the Grievance Settlement Board Rules of Procedure: Appendix A: g. The hearing shall be conducted in the most informal and expeditious way that is possible according to the nature of the grievances and all the circumstances. … m. Where any dispute arises concerning this procedure, a party may refer such dispute to the mediator/arbitrator for resolution or determination [29] The Union submits, receiving Ms. Fitzpatrick’s evidence in chief by way of a will- say statement, is the most efficient and economical way to proceed. The Union notes that the issues in these 20 grievances stretch over a long period of time and it would take a number of days for Ms. Fitzpatrick’s evidence to be adduced orally. The Employer would be given full right of cross-examination providing me the opportunity to assess her credibility. In addition, the Union states that Ms. Fitzpatrick’s evidence is supported by contemporaneous documents. As such, the options are allowing the evidence to be adduced by way of a will-say or having her testify orally referring and relying on the documents. [30] The Employer acknowledges I have the jurisdiction to permit evidence be adduced by way of a will-say but argues that I ought not to do so in this case. The Employer submits that adducing evidence by way of oral testimony is the standard practice. The party that asks to depart from that practice bears the onus of establishing a good reason for doing so. [31] The Employer points to the large number of grievances that have been filed by Ms. Fitzpatrick that advance very serious allegations. The Employer argues that I will be called upon to assess Ms. Fitzpatrick’s credibility and thus need to see her give her evidence in chief. Further, Ms. Fitzpatrick may be the only Union witness. The Employer submits that allowing Ms. Fitzpatrick to file her evidence as a will-say will significantly prejudice the Employer’s ability to defend itself. [32] I agree with the Union that the article 22.16 of the Collective Agreement evidences an intention on the part of the parties that arbitrations be conducted in a manner that is respectful of the need for the matter to be resolved in a timely and efficient way. W ill-say statements are commonly used to adduce evidence in chief primarily where there are few factual issues in dispute or where the credibility of the witness is not going to put in issue. [33] At the hearing of this matter I voiced the view that I was not inclined to grant the Union’s request, however, having now reviewed the Report, at least with respect to the allegations falling within its scope, I suspect there may not be as much dispute about the facts as I first thought. There may certainly be dispute about whether the facts amount to harassment or any violation of the collective agreement or whether Ms. Fitzpatrick contributed to the problems in the workplace but the basic facts as to the state of the workload may not be in dispute. As the Union suggests, it will take days for Ms. Fitzpatrick to orally adduce her evidence. If it is adduced by a will-say statement the Employer will have it in advance and be able to focus its cross-examination on the areas of contention. The time saved will likely be considerable. -9- [34] Thus, I grant the Union’s request to adduce Ms. Fitzpatrick’s evidence by way of a will-say statement, however, I grant the same option to the Employer with respect to any witnesses it may call. All will-say statements are to be in chronological order accompanied by a bound and tabbed book of documents. The documents will be subject to review by the other side and objections as to admissibility of the documents can be made. [35] The Union is directed to provide Ms. Fitzpatrick’s will-say and book of documents to the Employer no later than two weeks in advance of the next hearing date. At the commencement of the hearing, I will hear brief opening statements following which Ms. Fitzpatrick will give her testimony. The Union is to ask Ms. Fitzpatrick basic questions including having her testify that the contents of the will-say are true and accurate. The Employer will then begin cross-examination. Dated at Toronto, Ontario this 19th day of July, 2018. “Diane Gee” ______________________ Diane Gee, Arbitrator