HomeMy WebLinkAbout2014-3302.Lupiani.18-10-23 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# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219;
2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845;
2017-1846
UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012;
2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542-
0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Lupiani) Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation) Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Henry Huang
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 9, 2018
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DECISION
[1] The Board initially convened on July 18 and 19 of 2017 to deal with a number of
variously dated grievances filed by Ms. Nancy Lupiani (“Grievor”). Subsequently,
on the agreement of the parties three more grievances filed by her in 2017 (“the
2017 grievances”) were consolidated with those grievances and the union provided
particulars to the employer relating to the 2017 grievances bearing GSB file
numbers 2017-1845, 2017-1846 and 2017-1808.
[2] When the Board convened on June 21 2018, union counsel advised that there
were a number of disagreements relating to production requests made by the
union. After hearing the nature of the disputes and the parties’ respective
positions, the Board provided instructions and directed that the parties attempt to
resolve, or at least narrow the production issues. The parties engaged in
discussions and advised that many of the disputed issues had been resolved. The
union had clarified and/or amended its production requests in some cases to
enable resolution. The parties described the resolutions reached, and requested
that they be set out in a decision. They made submissions on the issues that
remained in dispute, and requested that the Board rule on them.
[3] By decision dated June 21, 2018, the Board made rulings on the production
disputes that remained unresolved. Following disclosure by the employer
voluminous documentation was filed on consent as exhibits. No witnesses have
been called to date. In the meantime, the Board was required to issue two
additional decisions on evidentiary and process disputes.
[4] When the Board convened on October 9, 2018, the union made a further request
for an order for production of sixteen additional documents, all of which had been
opposed by the employer. The union took the position that this latest request is
based on information disclosed in the production made by the employer pursuant
to the Board order. Counsel submitted that the documents now sought are
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arguably relevant and that the union discovered their possible existence only upon
a review of the documents produced following the Board order.
[5] The employer took the position that the documents sought are not arguably
relevant to the issues in the grievances, and that the union is engaged in a fishing
expedition. Counsel argued that even if some documents have some relevance,
they are of very limited probative value, which is far outweighed by the prejudice
to the employer if it is ordered to make further production. The employer has
already made extensive production, on agreement and in compliance with Board
orders. In doing so it has spent significant time and incurred substantial financial
costs, searching for documents going back many years. This could, and would
have been avoided if the union had made all of its production requests at the same
time. The Board was asked to find the present request to be untimely.
[6] In reply, union counsel submitted that there is no arbitral rule capping the amount
of production. Regardless of the volume already produced, if further documents
arguably relevant exist, the union is entitled to their production. Counsel also
pointed out that the union could not have made these requests any earlier because
their existence was discovered only after the employer’s previous disclosure.
[7] While both counsel made submissions on each of the sixteen items of production
requested, I will not review those details. Nor will I reproduce the content of each
document sought. I will determine the disputes based on the respective positions
of the parties and the applicable law.
[8] I note that at the conclusion of submissions, employer counsel advised that the
employer would agree to produce item 12 in the union’s request, on condition that
the names of the three employees referred to therein are not disclosed in any
reference to the document in the Board decision. The union agreed, and thereby
that item was resolved.
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[9] The arbitral law is on the factors that govern a request for disclosure is settled, and
is summarized in the often quoted decision in Re West Park Hospital, (1993) 37
L.A.C. (4th) 160 (Knopf). At p. 167, the Board wrote:
Where the disclosure is contested, the following factors should be taken into
consideration. First, the information requested must be arguably relevant.
Second, the requested information must be particularized so there is no dispute as
to what is desired. Third, the Board of Arbitration should be satisfied that the
information is not being requested as a “fishing expedition” Fourth, there must be
a clear nexus between the information being requested and the positions in dispute
at the hearing. Further, the Board should be satisfied that disclosure will not cause
undue prejudice. In this regard, the criteria set out in the Desmarais and
Morrissette case are applicable in terms of weighting whether or not privileged
information should be protected. (Page. 167)
[10] Whether to order production is a matter of arbitral discretion. The arbitrator must
balance the interests of the party opposing production, including any undue
prejudice in complying with an order for production against the interests of the
requesting party in having a fair hearing and its need of the documents sought to
be able to adequately present its case. Also, the arbitrator must consider whether
the potential probative value of the document is limited and outweighed by the
effort and costs that would be imposed on the other party in gathering the
documents.
[11] With those principles in mind, I have considered the remaining fifteen items of
requested production. In doing so, it must be made clear that the mere reference
in a document to the grievor does not meet the “arguably relevant” test. The test
is arguably relevant to the issues to be determined in the case. Those issues
broadly described, are about alleged harassment, discrimination, and reprisals
against the grievor on the part of the employer. Therefore the Board must be
satisfied that the documents in question are arguably relevant to those issues,
and further that their potential probative value justifies the burden to be placed on
the employer by the issuance of an order for production in all of the circumstances.
[12] Employer counsel’s assertion that the union ought to have made the present
request earlier at the time it made its first production request is without merit.
Union counsel clearly established how each of the documents surfaced for the
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first time upon review of the employer’s last production. In fact the employer did
not dispute that assertion. Similarly I agree with union counsel that if additional
documents that meet the test for production exist, they are subject to production
regardless of the amount of production already made. I am satisfied that the
documents sought are not requests that duplicate prior requests by the union.
Therefore the issue is whether the documents meet the test.
[13] Arbitrators have generally endorsed a “liberal” approach to production as
described in Re Toronto District School Board (2002), 109 L.A.C. (4th) 20 (Shime).
However even a liberal approach does not entitle the union to production of any
and every document that relates to the grievor. It seems that the union here has
sought production relating to every discussion, meeting and email that had
anything to do with the grievor, mentioned in the prior production. It was not
demonstrated how most of the documents relate to any of the allegations set out
in the unions particulars, which are “the issues in dispute”. That in my view crosses
the boundary of a liberal approach, into the arena of a fishing expedition. It has
been stated that “the wider the net is cast with regard to the production request,
the greater the likelihood that the party seeking the request is simply engaging in
a fishing expedition. Re City of London, (2017) O.L.A.A. No.150 (Johnston). With
few exceptions, the union’s request meets that description.
[14] I have applied the applicable arbitral principles to the union’s request for
production. As a result I order that the following items listed in the union’s letter of
request for production dated October 2 2018, marked as exhibit 1, be produced
by the employer to the union: Item 1, Item 5, Item 6, Item 11, and Item 14. The
request for an order is denied with respect to all of the other items requested.
[15] As jointly requested, I refer the matter to the parties to agree upon a timetable for
compliance with the Board order for production.
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[16] The hearing will proceed on the dates scheduled, and the Board remains seized.
Dated at Toronto, Ontario this 23rd day of October, 2018.
“Nimal Dissanayake”
______________________
Nimal Dissanayake, Arbitrator