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HomeMy WebLinkAbout2016-0135.Cody et al.20-03-02 Decision Crown 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# 2016-0135; 2016-0265; 2016-0690; 2016-1216; 2016-1356; 2016-1357; 2016-1358; 2016-1359; 2016-1364; 2016- 1365; 2016-1366; 2016-1367; 2016-1368; 2016-1440; 2016-1509; 2016-1510; 2016-1531; 2016-1532; 2016-1720; 2016-1911 UNION# 2016-0229-0002; 2016-0229-0004; 2016-0229-0008; 2016-0229-0012; 2016-0229-0022; 2016-0229-0023; 2016-0229-0024; 2016-0229-0025; 2016-0229-0017; 2016-0229-0018; 2016-0229-0019; 2016-0229-0020; 2016-0229- 0021; 2016-0229-0027; 2016-0229-0029; 2016-0229-0030; 2016-0229-0031; 2016-0229-0032; 2016-0229-0037; 2016-0229-0039 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cody et al) Union - and - The Crown in Right of Ontario (The Ministry of the Solicitor General) Employer BEFORE Jasbir Parmar Arbitrator FOR THE UNION Christopher Bryden (Counsel) Ryder Wright Blair & Holmes LLP David Ragni (Counsel) Koskie Minsky LLP FOR THE EMPLOYER George Parris (Counsel) Treasury Board Secretariat Legal Services Branch HEARING February 27, 2020 - 2 - Interim Decision INTRODUCTION [1] There are two distinct Union parties in the present case, represented by two separate counsel. Mr. Cody, Mr. Durocher, and Mr. Wong are, together, one party, and Mr. MacDonald is the other. When I am referring to the first group of individuals as a group, I will use the term “the Cody Group”. This will apply to all of the decisions that will be issued in this matter. [2] This decision addresses a motion for production by the Cody Group. To provide some context for this decision, it is useful to set out briefly the nature of the current proceedings. The Cody Group has filed a number of grievances alleging, inter alia, that Mr. MacDonald has assaulted and harassed them. Mr. MacDonald, whose employment was terminated following the Employer’s investigation into these allegations, has filed a number of grievances alleging, inter alia, that his discharge is without just cause. He denies he engaged in any assault or harassment. [3] Pursuant to earlier decisions of the Board, these grievances are being heard together, and the first stage of this proceeding will focus solely on determining whether Mr. MacDonald assaulted or harassed the Cody Group grievors. In the opening statements for this stage of the proceeding, counsel for Mr. MacDonald indicated that he expected to call Mr. Ted Montgomery as a witness. Mr. Montgomery was Mr. MacDonald’s manager and was present for some of the alleged incidents that took place in 2011. Counsel for Mr. MacDonald indicated Mr. Montgomery is also Mr. MacDonald’s friend. - 3 - MOTION FOR PRODUCTION [4] The Cody Group’s motion for production seeks the following orders: i) a) An order that the Employer produce a copy of Mr. Ted Montgomery’s complete personnel file. b) An order that the Employer provide documents relating to any communications between the Employer and Mr. Montgomery arising out the CSOI report, dated June 28, 2017, as well as particulars of any non-written communications relating to the CSOI report [note: this is the order requested during the hearing, but is a revision of the Cody Group’s request for production made to the Employer prior to the hearing] c) An order that the Employer produce copies of any policies, standing orders, or directives regarding the use of the 911 knife at OCI during the time periods relevant to this matter. d) An order that the Employer provide us with particulars regarding the number of times that Mr. MacDonald was directly involved in cutting down an inmate who had hung himself. ii) An order that Mr. MacDonald produce any and all communications between Mr. MacDonald and Mr. Montgomery from 2011 up to the present date, including but not limited to emails, text messages, social media messages or posts (e.g. Facebook, WhatsApp, or any other social media or messaging platform), letters, correspondence or any other documents of any kind whatsoever exchanged between these two individuals. - 4 - ANALYSIS [5] There is no dispute as to the appropriate factors to consider in ordering production: see OPSEU (Fitzpatrick) – and – Ontario (MCSCS) (2018) 141 C.L.A.S. 224. The factors are: whether the documents are arguably relevant to the issues in dispute; whether the request is sufficiently particularized; whether the request is a ‘fishing expedition”; and whether the disclosure would cause undue prejudice. [6] During the course of the hearing, it became apparent that production/particulars as requested in items (i)(c) and (i)(d) was already provided or required further discussion between the parties to clarify. As such, no order in respect of those items is required at this time. [7] The key dispute centered around items i(b) and (ii), both of which relate to documents and particulars about Mr. Montgomery. In support of its submissions that these documents and particulars are arguably relevant, the Cody Group notes the following: Mr. Montgomery and Mr. MacDonald have a close personal friendship of over 30 years; there are allegations by the Cody Group that Mr. Montgomery would “cover” for Mr. MacDonald’s inappropriate workplace behavior because of their friendship; that Mr. MacDonald is a witness to one of the alleged incidents at issue in this case (in September 2011); and that during the CSOI investigation both Mr. Montgomery and Mr. MacDonald reported observing Mr. Durocher with a knife inside the institution and the CSOI report dismissed this allegation against Mr. Durocher noting it was not substantiated by any other witness. The Cody Group also referenced the fact that the CSOI Report made two findings against Mr. Montgomery: that he failed to address Mr. MacDonald having a knife in the institution and that he acted unprofessionally when responding to FB postings on Mr. MacDonald’s Facebook profile. - 5 - [8] The Cody Group submitted that the communications between the Employer and Mr. Montgomery following the CSOI report are relevant because they will indicate whether the Employer was considering disciplining Mr. Montgomery in relation to these events, and whether the possibility of discipline was a factor in Mr. Montgomery’s retirement around this same time. It is asserted this information is related to Mr. Montgomery’s credibility. [9] In my view, the Cody Group has not established a sufficient nexus between these documents and the issues in dispute in this case to warrant an order for production. The focus of this stage of the proceeding is whether Mr. MacDonald engaged in an assault and/or harassment of the Cody Group. Any potential discipline of Mr. Montgomery is irrelevant to the issue before me. Counsel for the Cody Group suggested that the potential discipline is connected to Mr. Montgomery’s credibility as a witness. It is anticipated in this case that there will be differences in the witnesses’ evidence about what happened, and therefore the credibility of all the witnesses may have to be considered in weighing the evidence. That does not, however, mean there is a basis for carte blanche access to all documents in existence that relate in any way to any witness. The fact that the credibility of a witness may have to be considered does not mean evidence unrelated to the issues to be determined automatically becomes relevant. To the contrary, there are strict limits on the evidence that is admissible when tendered only for the purpose of challenging credibility (i.e. the collateral fact rule). When asked to explain how the requested documents could be connected to the issues in dispute in this case, the only explanation counsel for the Cody Group provided was that Mr. Montgomery may have retired from his employment with the Employer in an effort to avoid discipline, and for that reason the documents/particulars are arguably relevant to the credibility of - 6 - his evidence. Mr. Montgomery’s reasons for retirement are not related to the issue I must determine, which is whether Mr. MacDonald engaged in the alleged misconduct. As such, there is no basis to conclude that these documents are arguably relevant. [10] With respect to the production request for all communications between Mr. Montgomery and Mr. MacDonald, the Cody Group argued that the CSOI report suggests Mr. Montgomery and Mr. MacDonald colluded in making the report about Mr. Durocher during the CSOI investigation. It is submitted that whether they colluded for the CSOI investigation or are colluding in relation to their expected testimony in these proceedings is arguably relevant. Again, it was asserted, this was related to their credibility as witnesses. [11] I observe the CSOI report did not make a finding of collusion. It only dismissed the allegation against Mr. Durocher, noting that while this information was brought forward by Mr. Montgomery and Mr. MacDonald during the CSOI investigation, it was not substantiated by other witnesses, it was not reported at the time, and Mr. Montgomery would have been obligated to take action and report it by virtue of his role. It is incumbent on a party seeking production to establish a foundation to support an order against another party. It not sufficient to simply assert a theory of wrongdoing. The latter, which is all that is present in this case, is an indication of a fishing expedition. Furthermore, the Board’s discretion to order production includes a consideration of the probative value of the documents as well as the prejudicial impact of disclosure. A simple allegation of collusion is no basis to warrant production of almost ten years of personal and private communications. [12] As for Mr. Montgomery’s personnel file, that is a document that is in the possession of the Employer. I did not receive submissions in respect of this document as the - 7 - Employer indicated that it was prepared to produce the file if I were to order such production. However, given my reasoning above, it is not apparent to me at this time that an order for production of the file is warranted. Dated at Toronto, Ontario this 2nd day of March, 2020. “Jasbir Parmar” Jasbir Parmar, Arbitrator