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HomeMy WebLinkAbout2016-2838.Assenov.19-07-04 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# 2016-2838 UNION# 2016-0135-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Assenov) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING May 29, 2019 -2- DECISION [1] A hearing was held in connection with this matter on May 29, 2019. [2] The Union seeks production of note books kept by the grievor as part of his duties during the period of his employment with the Employer as a correctional officer. The Employer is willing to produce the note books provided restrictions, similar to those imposed on the production of “log books”, by way of paragraph 3 of the Board’s May 21, 2019 decision (“Paragraph 3”), are ordered. [3] Paragraph 3 reads as follows: i. The copy of the log books (hereinafter the “documents”) provided to the Union is to be maintained in the possession of Union counsel at all times and no copies, electronic or otherwise, are to be made. ii. The documents can be reviewed by the grievor and a union representative of the Union’s choice but only in the presence of Union counsel. iii. Union counsel, the grievor and the selected union representative are not to discuss the contents of the documents with anyone or to discuss the documents within the hearing of anyone with the exception that Union counsel may discuss the documents with a witness in which case the witness is to be advised of the restrictions set out herein and that they are required to comply with same. iv. The documents are for the purposes of this litigation and no other purpose. v. At the conclusion of the litigation the documents are to be destroyed except to the extent a copy needs to be kept to meet any professional obligations for counsel. [4] The Union is willing to agree to imposition of the Paragraph 3 restrictions as long as it is understood that the grievor will be able to continue to discuss his allegations of harassment and discrimination publicly. The parties made oral and written submissions in support of their respective positions. [5] The Employer takes the position that, if the grievor “continues to speak publicly about his allegations,” such could be a breach of the Paragraph 3 order made in connection with the production of the log books.” As such, the Employer suggests that the grievor can no longer speak publicly about his allegations because he cannot discuss the log books. The Employer states that it seeks the same order in respect of the note books in which case, if the grievor continues to speak publicly about his allegations such “could also amount to a breach of the order vis-à-vis the notebooks.” It is stated by the Employer that it is seeking “protection for both the security of the institution as well as for personal, confidential, and sensitive information relating to inmates and other staff who have not been named in the particulars or who may not be actively participating in this hearing.” -3- [6] As both parties alluded to in their submissions, a deemed undertaking applies where a party to a labour arbitration proceeding produces documents to the party opposite. The deemed undertaking provides that such documents cannot be used by the party to whom they are provided for any purpose other than the proper conduct of the litigation in which the documents were obtained. “Use” of a document includes discussion of the document, and/or information contained within the document that was obtained as a result of coming into possession of the document, within ear shot of others including the media. The purpose of the deemed undertaking is to protect the privacy interests of the party that is compelled to provide the documents. [7] I was not referred to any caselaw wherein the deemed undertaking was extended to documents and/or information that a party possessed before receiving productions from the party opposite. I am unaware of what purpose would be served by doing so. In this case, the grievor filed lengthy and detailed particulars of his allegations before the hearing began and certainly before any documents were produced by the Employer. Also, the grievor is the author of the contents of the note books. Thus, to the extent of the particulars already provided, the “information” set out therein, was not obtained from documents produced by the Employer. [8] The grievor will, as a result of obtaining production of the notebooks, obtain hard copies of the note books and, potentially, information that he previously wrote down but no longer recalls. The deemed undertaking prevents the grievor from making any use whatsoever of the copy of the note books and the information contained in the note books that he acquires by way of the production thereof, unless such use is in connection with the arbitration proceedings. To the extent the note books contain information the grievor already possessed as evidenced by his statement of particulars, in the absence of any stated purpose for doing so or case on point, I decline to extend the deemed undertaking to such information. [9] I hereby order the Employer, to produce to Union counsel, a copy of the note books subject to the following: i. The copy of the note books (hereinafter the “note books”) provided to the Union is to be maintained in the possession of Union counsel at all times and no copies, electronic or otherwise, are to be made. ii. The note books can be reviewed by the grievor and a union representative of the Union’s choice but only in the presence of Union counsel. iii. Union counsel, the grievor, and the selected union representative are not to discuss the note books or information obtained by way of the production of the note books with anyone or within the hearing of anyone with the exception that Union counsel may discuss the note books and the contents thereof with a witness in which case the witness is to be advised of the restrictions set out herein and that they are required to comply with same. iv. The copies of the notebooks are to be used for the purposes of this litigation and no other purpose. -4- v. At the conclusion of the litigation the notebooks are to be destroyed except to the extent a copy needs to be kept in order to meet any professional obligations of counsel. [10] This decision has no impact on any other avenues of relief available to the Employer to enforce obligations and/or responsibilities the grievor may owe the Crown as a result of his prior status as an employee of the OPS. Dated at Toronto, Ontario this 4th day of July, 2019. “Diane L. Gee” ______________________ Diane L. Gee, Arbitrator