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HomeMy WebLinkAbout2019-1477.Roy.21-12-13 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# 2019-1477; 2019-1478; 2019-1968; 2019-2737; 2020-1085; 2020-2344; 2020-2345; 2020- 2594; 2021-0132; 2021-0133; 2021-0171; 2021-0172; 2021-0308; 2021-0532; 2021-0666; 2021-0698; 2021-0699; 2021-0700 UNION#2019-0229-0027; 2019-0229-0028; 2019-0229-0048; 2020-0229-0003; 2020-0229-0038; 2020-0229-0297; 2020-0229-0298; 2020-0229-0299; 2021-0229-0008; 2021-0229-0009; 2021-0229-0018; 2021-0229-0019; 2021-0229-0028; 2021-0229-0029; 2021-0229-0037; 2021-0229-0040; 2021-0229-0041; 2021-0229-0042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Roy) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Maria Kristina Aszenci Treasury Board Secretariat Legal Services Branch Counsel HEARING November 22 and 29, 2021 - 2 - Decision [1] The Board is seized with a series of 19 grievances filed by Mr. Barry Roy, (“grievor”). The first of the grievances was dated July 18, 2019, and the last on September 16, 2021. The grievances were consolidated on agreement. [2] This decision determines certain preliminary motions by the employer. The employer takes the position that two of the grievances, GSB # 2019-1478 and # 2021-0133, ought to be dismissed on the grounds that the union’s particulars and production do not make out a prima facie case for the allegations made. Secondly, the employer submits that certain parts of the union’s particulars should be struck. [3] From 1993 the grievor has been employed as a Correctional Officer (“CO”) at the Ontario Correctional Institute (“OCI”) in Brampton, Ontario. The grievances resulted from two Facebook postings on June 2, 2019, by a fellow CO (anonymized and herein referred to as “ID”) to the effect that someone had been saying that she was lying when she claimed she had vertigo and had physio treatment. The postings also suggested that the same person had sexually harassed ID sometime earlier. [4] On June 11, 2019, the grievor submitted an Occurrence Report to OCI Superintendent, Ms. Felicia Hooper, alleging “Dangerous and Defaming allegations made against myself … Both within and over social media”. The grievor wrote in the OR that several co-workers at OCI who became aware of the postings had concluded that the “someone” referred to in ID’s postings was a reference to him. [5] The consistent theme behind all of the grievances is that the employer failed to act properly to investigate the grievor’s allegations that ID had accused him of “ratting” on her and of having sexually harassed her. The grievor claims that the employer’s conduct created a toxic and poisoned work environment for him. - 3 - [6] With that very brief factual background to put the grievances into context, I turn to the employer’s motions. NO PRIMA FACIE CASE Grievance # 2021-0308 dated April 16, 2021 [7] This grievance relates an email from Mr. John Hasted, Superintendent of OCI, to Local Union President, Mr. Adam Cygler to the effect “I would like to request that the union and employer agree to waive all stage 2 meetings for Mr. Roy’s grievances that have been filed over the last little while”. The next day Mr. Cygler wrote to Mr. Hasted: “I’ve spoken to Mr. Roy at length and for the rationale he has provided me in writing, he is not willing to surrender any rights, especially those found in the collective agreement, on any issue to the employer as an employee of the OPS”. [8] The union’s particulars are as follows: 138 On April 7, 2021, Mr. Hasted emailed Mr. Cygler requesting that “the union and employer agree to waive all stage 2 meetings for Mr. Roy’s grievances that have been filed over the last little while. Mr. Cygler responded that the Grievor was not willing to surrender any rights. 139 Mr. Hasted’s email correspondence did not provide a rationale for his request. 140 On April 16, 2021, the Grievor filed grievance # 2019-1478 alleging that the Employer attempted to curtail the Grievor’s access to the full grievance process under the Collective Agreement. [9] The grievance alleges breach of, but not limited to, articles “2.1 (Right to manage reasonably; 3.2 & 3.3 (No harassment – based on either union activity or in general); 9.1 (Health and Safety); 22 (Grievance Process; WDHP/Respectful Workplace Policy; Statement of Ethical Principles; Code of Conduct and Professionalism and; Good Faith/ Unfair Labour Practices”). - 4 - [10] Grievance #2021-0532 dated May 10, 2021 This grievance arose from an email dated May 9, 2021, sent by a fellow CO, Mr. Adrian Ceballos to Staff Relations Manager, Mr. David Ruttle, with copy to Mr. Hasted, as follows: “The last time we spoke (at the start of 2020) I mentioned that I have been meeting regularly with Barry Roy. I have continued to meet with him and support him with his on-going issues at OCI. I recently heard about this Human Rights Tribunal award I thought you may be interested in reading. I look forward to seeing you again when you are available. Take care for now”. Mr. Ceballos attached an article from the internet about a decision of the B.C. Human Rights Tribunal which ordered substantial monetary damages against the B.C. government for injury to dignity, feelings and self-respect of the complainant employee. [11] Mr. Ceballos was required to attend an allegation meeting on April 28, 2021. The allegation was, “On Sunday April 11, 2021, you sent Staff Services Manager David Ruttle an inappropriate and unprofessional email that was not related to your duties as a correctional officer or an employee of the OPS”. [12] Mr. Ceballos attended the allegation meeting with union representative Mr. Cygler. On May 27, 2021, a “Letter of Expectation” was issued to Mr. Ceballos by Deputy Superintendent, Ms. Seales. [13] The union’s particulars of this grievance are as follows: 141. Shortly after Mr. Hasted’s request for the union and the grievor to waive stage 2 meetings, the grievor became aware of a pattern of actions undertaken by the employer that normalized the grievor’s absence from the workplace. 142. On April 11, 2021, the grievor’s colleague, Adrian Ceballos, sent an email to Mr. Ruttle and Mr. Hasted regarding a recent British Columbia Human Rights Tribunal award for injury to dignity. In this email Mr. Ceballos mentioned that he had been meeting regularly with the grievor and that he would continue to “to meet with him and support him with his ongoing issues at OCI”. - 5 - 143. On April 19, 2021, Mr. Ceballos received a letter advising that he was required to attend a meeting with Deputy Superintendent of Operations, Ms. Iona Seales to discuss the inappropriate and unprofessional email that he sent to Mr. Ruttle on April 11, 2021. This meeting occurred on April 28, 2021. 144. On May 26, 2021, Mr. Ceballos received a letter informing him that he had violated the Respectful Workplace Policy, the Institutional Services Policy and Procedures Manual, the Statement of Ethical Principles, the Ontario Correctional Standing Orders and the Ontario Correctional Services Code of Conduct and Professionalism. The letter summarized Mr. Ceballos’ explanation of the April 11 email. Mr. Ceballos stated that he regularly has conversations with Mr. Ruttle about issues with OCI and Mr. Ruttle had on multiple occasions asked Mr. Ceballos how the Grievor was doing. The letter stated that he would not be disciplined but that the letter’s purpose was “simply meant to reinforce the Employer’s expectations” regarding the content and undertone of all communications. 145. By threatening discipline, the Grievor believed that the Employer was attempting to intimidate Mr. Ceballos for inquiring about or commenting on the Grievor’s absence from the workplace. As such, the Grievor filed grievance 2021-0532 on May 10. Submissions on no prima facie case motions Grievance # 2021-0308 Employer Submissions on grievance # 2021-0308 [14] Employer counsel reviewed the articles of the collective agreement alleged to have been breached and submitted that the union’s particulars, if accepted as true, are not capable of establishing a breach of any of the provisions of the collective agreement. She pointed out that Mr. Hasted had merely suggested to the local union president that the parties agree to waive stage 2 of the grievance procedure. It was only a request. The same day, the union wrote back that it would not agree to the request, and that was the end of it. Counsel submitted that these facts cannot lead to a finding that the employer violated any of the collective agreement or legislative rights relating to discrimination, harassment or health and safety. She submitted that parties often come to agreement on modifying the grievance procedure. Merely requesting the agreement to waive stage 2 cannot also constitute a violation of the grievor’s grievance procedure rights under article 22. - 6 - In the alternative, employer counsel submitted that the email exchange between the employer and the union was privileged as part of the grievance procedure. Union Submissions on grievance # 2021-0308 [15] Union counsel asserted that Mr. Hasted’s email was intended to frustrate the grievance procedure with respect to Mr. Roy’s grievances, and to deny his grievances by avoiding the exchange of information. Counsel pointed out that in his various grievances the grievor had repeatedly sought information from the employer on about steps taken to address his concerns. The email was an attempt to prevent the exchange of information required by article 22 the mandatory stage 2 grievance meeting, before a formal grievance can be filed through the union. [16] Union counsel submitted that the email should not be seen in isolation. It was part of the pattern of the employer’s attempt to hide information, and a continuation of the harassment, the toxic environment and of annoying, pestering and embarrassing the grievor. Counsel urged the Board to read the particulars together with the particulars provided with respect to all of the other grievances showing this pattern of conduct by the employer. Grievance # 2021-0532 [17] Employer submission on grievances # 2021-0532 Employer counsel pointed out that the legislative, collective agreement and policy provisions alleged to have been breached are the same as those in grievance #2021-0308. She noted that in this grievance statement the grievor himself has written that “This involves my colleague Mr. Adrian Ceballos was submitted(sic) to the formal, and intimidating process of “allegation” for asking and/or commenting on the known reasons behind my workplace absence”. In the particulars, it is alleged that by threatening discipline, the employer was attempting to intimidate Mr. Ceballos for inquiring on the grievor’s absence from the workplace. - 7 - [18] Employer counsel submitted that the particulars do not show that the way the employer responded to Mr. Ceballos’ email violated any right of the grievor. If anyone had a right to grieve it would be Mr. Ceballos, not the grievor. Union submissions on grievance #2021-0308 [19] Union counsel submitted that in this grievance the grievor is not alleging that Mr. Ceballos’ rights were violated. The union’s position is that the employer’s treatment of Mr. Ceballos had a direct impact on the grievor. By taking this action against Mr. Ceballos the employer attempted to cut-off the support he had from co-workers and socially handicapped him and isolated him. The message was sent out to the effect “if you associate with Roy bad things will happen to you”. DECISION ON THE NO PRIMA FACIE CASE MOTIONS [20] Each of the parties filed numerous authorities on the law relating to no prima facie case motions. In Re Martin, 2013-3579 (Anderson) the Board wrote: [3] There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion. …. [5] The Union notes that in Evangelista, 2011 CanLII 41847 (ON GSB) (Harris) the Board stated that it was not appropriate to weigh the quality of the proposed evidence in determining whether there was a prima facie case: see para. 11. The Union asserts that as a result, for example, I would be required to accept as true the assertion that the moon is made of blue cheese. With respect, I disagree. In Evangelista, the proposed evidence was capable of belief. That is not the case with the Union’s hypothetical example. As I noted in Bharti, 2015 CanLII 19330 (ON GSB) at para. 10: Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true. [6] The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie - 8 - case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. [21] In applying the above principles to determine whether particulars are capable of establishing the necessary elements to substantiate the violation alleged, the particulars must be read liberally. If the facts asserted (which are deemed to be true) lead at least to a reasonable inference that they are capable of substantiating the alleged violation the motion would fail. However, in making this assessment, opinions, claims and conclusions, not supported by facts asserted do not meet the test. Union counsel relied on Re Pinazza, 2020-0840 (Herlich) which was referred to in Re Greenbank et al, 2003-2771 (Mikus), in arguing that a no prima facie motion must be dismissed unless the Board concludes that it is “impossible” for the particulars to establish the alleged violation. In Re OPSEU & MOH, 2016- 2442 (Anderson), the Board disagreed that those cases stand for such a proposition, and re-affirmed the principles set out above as the law that continues to apply. Decision on Grievance # 2021-0308 [22] This is an individual grievance filed by the grievor. The facts relied upon to substantiate the violations alleged are very brief – the employer sent an email soliciting the union’s agreement to waive stage 2 meetings for grievances that had been filed by the grievor at the time, and the union in response emailed denying the employer’s request. The union submitted that these particulars should be considered together with the particulars filed with respect to all 19 grievances before the Board. Assuming that it is appropriate to do so given that all 19 are individual grievances, counsel did not specify what facts in the particulars in the other grievances substantiate or could possibly give rise to a reasonable inference that the email exchange met the elements of the alleged violations of the grievor’s - 9 - rights. With respect, that is not possible simply on the basis of the union’s opinion that the email was a part of the pattern of harassment, discrimination etc particularized in the other grievances. This is more so given that the employer accepted the union’s denial of its request. It did not threaten any sanctions or adverse consequences if the union disagreed. Nor did it continue to “push” the union to agree. Employer counsel conceded, and I agree, that the second step of the grievance procedure is a mandatory provision. However, the mere request by one party for agreement by the other to waive a mandatory provision by itself does not constitute a violation of the other party’s rights. There is nothing preventing the parties to the collective agreement from agreeing to waive a mandatory procedural requirement. [23] For all of the foregoing reasons I find that the particulars are not capable of substantiating any of the alleged violations. Therefore, the employer’s motion succeeds, and grievance # 2021-0308 is hereby dismissed. Grievance # 2021-0532 [24] This is also an individual grievance filed by the grievor. As the Board observed in Re Brown-Bryce, 2014-1158 (Dissanayake) at para 30, “… an individual grievance must be about a breach of the rights of the grieving employee”. The email and attachment in question was sent by Mr. Ceballos to the employer. The allegation meeting was about Mr. Ceballos’ conduct, and the letter of expectation was issued to him. The grievor was not involved in any of that. The statement of grievance itself states that the grievance “involves my colleague”. In the particulars it is alleged that by its conduct, the employer “was attempting to intimidate Mr. Ceballos for inquiring on the grievor’s absence”. [25] This grievance alleges that the employer, by its conduct towards Mr. Ceballos, violated the same collective agreement and statutory rights of the grievor as in grievance # 2021-0308. (See para.9 supra) - 10 - [26] This grievance is about alleged violations about the grievor’s rights. Union counsel asserted that the employer took that action against Mr. Ceballos “to get at” the grievor. He claimed that the employer’s action against Mr. Ceballos had a direct impact on the grievor in that it would cut off support from his co-workers, socially handicap him and isolate him. However, no facts were presented to support that assertion. It was an opinion or prediction. The Board in effect is being asked to draw an inference from a reading of the totality of the particulars filed in all grievances filed by the grievor that the grievor would be impacted that way. The letter of expectation does not communicate, even by inference, that Mr. Ceballos should not support or associate with the grievor. Rather the expectation communicated is that, since he is not a union officer, he should refrain from “sending unsolicited emails containing legal decisions to a member of management that may directly deal with an ongoing matter in which you are not involved in.” I find that it would be an unreasonably long leap to infer from this letter that the employer was sending a message to the grievor’s colleagues who support him to the effect “ if you associate with Roy bad things will happen to you”, as union counsel suggested. [27] Consequently, I conclude that the particulars filed with respect to grievance #2021-0532 do not substantiate a prima facie case of violation of any of the grievor’s collective agreement or statutory provisions relied upon by the union. This grievance is also dismissed. Motion to Strike Particulars [28] An often-cited authority in this regard is Re West Park Hospital (1993) 37 L.A.C. (4th) 160 (Knopf). There the arbitrator sets out the factors to be considered when a request for disclosure is contested. One of the factors is that “the information must be arguably relevant”. In Re Hotel Dieu Grace Hospital (2008) 178 L.A.C. (4th) 319 (Brant) in applying that factor, stated at p. 327: The key starting point in applying the test is the definition of the “issue” that has been put to the arbitrator for decision. Once that has been determined a production order may be issued in respect of documents that are “arguably relevant” to a determination of that issue”. - 11 - [29] In Re Koonings, 2003-3101 (Gray) the Board, after a review of West Park Hospital, wrote at para. 19: “It is not apparent to me, either from the West Park Hospital award or otherwise, what the clear nexus test adds to the “arguable relevance” test. Evidence must have a probative nexus with an allegation of fact that has been put in issue by one party. Evidence that is arguably relevant must of necessity have such a nexus with a disputed allegation of fact. Of course, it must first be apparent what factual issues are in dispute before one could apply either test”. [30] While the foregoing observations were made with respect arguable relevance in disputes about disclosure, the same approach is equally appropriate when determining whether or not particulars provided by a party are arguably relevant. With those principles in mind, I turn to the particulars in dispute. [31] The employer submitted that paragraphs 103, 127, 128 and 132 which refer to Ms. ID’s WDHP file should be struck. She submitted that those particulars reflect the union’s dissatisfaction of the way the employer dealt with ID’s WDHP complaint against the grievor. The grievor is grieving the way the employer handled another employee’s WDHP complaint. It was argued that the handling of ID’s complaint whether done properly or not, cannot impact any right of the grievor. [32] The paragraphs of the union’s particulars sought to be struck are as follows: 103. The Grievor felt betrayed that he had previously been given assurances by Ms. Hooper that an investigation into ID’s allegations against him would occur, yet it appeared as if this investigation had not been done. 127. The Grievor also became frustrated upon learning of these allegations of sexual harassment as he believed that these allegations were too serious to fall appropriately under the Employer’s WDHP process. He felt that they rose to the level of criminal behaviour, therefore the Employer should have referred the matter to the police for an investigation. 128. The Grievor believed that ID’s allegations were true, they were serious enough such that the Employer should have acted on them immediately by placing him on paid suspension and investigation the allegations. 132. As a result of what the Grievor felt to be a mismanagement of ID’s allegations against him, the Grievor filed grievance #2021-0229-0018 on March 31, 2021. 172. The Grievor was confused as to why the Employer had notified the police over his discussion of potential violence in the workplace during a WDHP videoconference but had - 12 - not notified the police regarding ID’s behaviour or her allegations against the Grievor. The Grievor felt targeted by the Employer and wondered if the Employer was using a police report as an attempt to find “just cause” to terminate him. [33] Employer counsel submitted that for the same reasons, the union’s request for an order for production of ID’s WDHP file should be denied. She submitted additionally that this file is being sought to confirm the validity of the union’s suspicion of employer wrongdoing. Relying on Re City of London, (2017) 131 C.L.A.S. 175 (Johnston), it was submitted that this constitutes a “fishing expedition”. The grievor has alleged that the employer’s handling of his WDHP was flawed. He wants to review ID’s WDHP file to see if the employer’s handling of that file was similarly flawed. [34] Counsel also submitted that the employer’s WDHP process is “meant to be” confidential. Disclosure of ID’s WDHP file to another employee will be to deny ID’s expectation of confidentiality. She also argued that the denial of that disclosure would not hinder the union’s ability to prepare its case. Reliance was placed on para.16 of the decision in Re Horne, 2012-0599 (Dissanayake) as follows: “The parties are agreed that the Board has a discretion with regard to the nature and extent of disclosure to be required. In exercising that discretion the considerations are practical rather than legal. (See Re Thermal Ceramics (1993), 32 LAC 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 LAC 14th 270 (Dissanayake). [35] Counsel submitted in the alternative that if the Board orders that ID’s WDHP file be disclosed, the following conditions should be imposed. (1) Only those aspects of the file that are arguably relevant to the grievances should be disclosed. (2) The grievor should be allowed to review the file only in the presence of union counsel. (3) The union should be allowed to use material in the WDHP file only for the purposes of this proceeding. (4) The union should be ordered to destroy all material in the file disclosed, and any copies thereof, upon the completion of this proceeding. - 13 - [36] Employer counsel submitted further that the Board should strike para.72. Those particulars are as follows: a. The Grievor heard from his colleagues, Robert Smith and Michael Robinson, that Mr. Hasted had a history of repeatedly disparaging the grievor in front of others in the workplace. b. Mr. Smith and Mr. Robinson, now retired, have both shared with the Grievor that Mr. Hasted has disparaged the Grievor in front of them during their time working at the OCI. For example, Mr. Robinson told the Grievor that Mr. Hasted warned him against using “that piece of shit Barry Roy” as his union representative. Mr. Smith told the Grievor that Mr. Hasted referred to the Grievor as a “piece of shit” in front of the Grievor’s Superintendent, Mr. Dwight Carroll, and Deputy Superintendent, Ms. Mary Capobianco. c. The Grievor believes that Mr. Hasted has targeted him for his work as a labour representative in the workplace. Around late summer to early autumn of 2007. Ms. Alison Dearlove, a college of the Grievor, sought the Grievor’s assistance in filing a grievance against the Employer regarding a situation with Mr. Hasted. Several days after a settlement was reached with respect to this grievance. Mr. Hasted approached the Grievor in the workplace and told him that this grievance was the most embarrassing moment of his professional career. Mr. Hasted ended this conversation by saying that he would “even the score” with the Grievor one day. [37] In support of the foregoing particulars the union relied on letters addressed to “whom it may concern” dated March 17, 2021, and February 14, 2021, and signed respectively by the two individuals, Mr. Smith and Mr. Robinson, referred to in the particulars in question. [38] Employer counsel pointed out that the union had not particularized when or where the two individuals allegedly witnessed or had the interactions. She submitted that when the particulars were provided following a Board order, the employer tried, but was unable to get any information about the allegations made. The employer therefore will be unable to address the allegations. She relied on Re Singh, 2001- 1070 (Abramsky) at para.16, where the Board wrote “The Board jurisprudence is clear that the failure to provide particulars, particularly after an order of the Board requiring them, may lead to dismissal of the grievance.” Counsel pointed out that in this case the employer does not seek dismissal of the grievance itself, but only that the particulars. Employer counsel cited Re Barillari, (2002-2390) (Dissanayake) to the effect, “It is not for the employer to guess the specifics of the - 14 - grievor’s allegations. The employer would have to do extensive research in order to respond to the vagueness of these particulars. Similar to the Singh decision, it is not up to the employer to guess or comb its records to determine when these individuals were working for an unspecified period”. [39] Finally, counsel pointed out that the only date provided in the particulars is in reference to an incident “in 2007”. Therefore, it would be outside the mandatory time-limits in article 22 for filing of grievances, and even the 3-year rule of thumb the Board usually applies in grievances alleging a pattern of conduct. Union submissions on motion to strike particulars [40] Union counsel submitted that particulars must only be arguably relevant. With respect to the request for disclosure of ID’s WDHP file, he emphasized that the grievor and ID had filed cross WDHP complaints against each other. The grievor has asserted not merely that there were flaws in the employer’s WDHP process. He has alleged differential treatment. Counsel relied in Re Plouffe, 2013-3791 (Harris) as a case where the Board ordered production of disclosure of material relating incidents of a similar nature involving another employee, on the grounds that there was a nexus between those events and the issues in the grievances before the Board. [41] The union also relied on Re Madan, 2010-2112 (Watters), where the grievor M challenged suspensions and dismissal imposed on him by her manager (“N”). During the hearing the union informed the Board that it had recently learned that previously another employee B had filed a WDHP complaint against N, making allegations similar to those made against N by the grievor – harassment, discrimination and poisoned work environment-, and sought production of material relating to B’s WDHP complaint against N and the employer’s investigation into it. The union argued that there was a nexus between B’s WDHP complaint and the grievor’s allegation in his grievances that the workplace was a poisoned work environment and that there were systemic problems in the workplace. The employer opposed the request on several grounds including lack of arguable - 15 - relevance, and that there was no nexus because that WDHP complaint related not to the grievor, but another employee. [42] Vice-Chair Watters observed that while he was not made aware of the specifics of B’s WDHP complaint, he “was left with the impression that he may have been concerned about similar treatment”, and found that there was a “firm nexus” between the two. The arbitrator also held that the material sought relating to B’s WDHP complaint was arguably relevant to the grievor’s allegation that the workplace was unsafe, was a poisoned work environment and that there was a pattern of systematic discrimination at the workplace. [43] In response to the employer’s argument that the material sought are confidential, union counsel relied on Re Hotel Dieu Grace Hospital (1997) 62 L.A.C. (4th) 164 (Picher). There the union sought production of documents relating to a WDHP investigation. The employer opposed the request, arguing that the employer’s WDHP program was an internal process, and that witnesses had provided information on the understanding of confidentiality. It was further argued that ordering disclosure of the material would have a chilling effect and deprive efficacy of its WDHP program. Arbitrator Picher cited with approval the decision in Re Children’s Aid Society of Belville (1994) 42 L.A.C. (4th) 259 (Briggs), and held that confidentiality of the documents sought by the union was not required by law, and ordered production of the material. Counsel pointed out that in Re Madan (supra), the GSB also adopted the reasoning in Re Hotel Dieu Grace Hospital, and came to the same conclusion in rejecting the employer’s confidentiality argument. Counsel urged the Board to do the same. [44] With respect to the particulars set out in para. 72, union counsel submitted that the last paragraph of para. 72 sets out certain facts about a direct interaction between Mr. Hasted and the grievor. Although an exact date and time is not set out, the year is provided. As for the particulars involving employees Smith and Robinson, “who said what to whom” is set out. The two employees will testify, and Mr. Hasted can agree or disagree with their testimony, and the Board can decide credibility. - 16 - He submitted that the Board should not deprive the union of arguably relevant information on the basis that it is untimely or contrary to the 3-year rule of thumb. The statements attributed to Mr. Hasted are short and remarkable. It is open to Mr. Hasted to agree, deny he made the statements, or say that he could not recall because it was a long time ago. The Board should hear the evidence and decide what weight, if any, ought to be given. DECISION ON MOTION TO STRIKE PARTICULARS [45] In determining this motion several fundamental considerations come into play, including the following. Particulars must be assertions of facts; not opinions, conclusions, or claims. Particulars must also be sufficiently comprehensive in terms of providing the “who, what, when, and where”. The absence of precise information on one or more of these “Ws” do not necessarily lead to denial of production. The Board must decide whether in all of the circumstances, the responding party would reasonably be able to identify the assertion of facts being made based in the particulars, and whether its ability to address the alleged facts would be compromised. Finally, there must be a nexus between the particulars and the issues to be decided in the proceeding. In other words, they must be arguably relevant to the issues in dispute. I have considered these principles and reviewed the many authorities put before me. [46] Further, the striking of a specific paragraph in the particulars would not necessarily prevent the union from leading any evidence at all on the subject. Conversely, the fact that the Board has refused to strike out particulars does not mean that the union is free to call any evidence on the topic. If objection is made to specific evidence, the Board will have to rule according to the usual principles of evidence. The motion to strike particulars relating to ID’s WDHP complaint and to deny the union’s request for its production [47] The Board has recognized that complaints of a similar nature as those before it, filed by another employee may arguably relevant. Re Plouffe, (supra), Re Madan, (supra). In the instant case both parties accepted that ID’s WDHP complaint and - 17 - the grievor’s WDHP complaint were in effect cross-complaints against each other. The grievor has alleged differential treatment in the manner the employer handled the two complaints. The union is not grieving that the employer violated any right of ID. It seeks to compare the employer’s handling of the two complaints to support its claim that the employer engaged in a pattern of harassing, and discriminating against the grievor. The union has alleged differential treatment, that ID’s witnesses were interviewed, but not the grievor’s witnesses. I am convinced that there is a strong link between the material sought here, given that the material relates to a cross-complaint against the grievor and ID. Therefore, the motion to strike the paragraphs in question is denied. The employer is ordered to produce to the union the complete file relating to ID’s WDHP complaint and its investigation/findings in relation to the complaint. [48] I agree with, and adopt the reasoning and conclusion by the arbitrators in the awards the union relied on to the effect that in the absence of a requirement by law to maintain confidentiality of any material,(for example information protected by privacy legislation), the fact that an employer considered its WDHP program to be a confidential internal process, or the assertion that the process was generally understood to be confidential, is not reason to deny production of otherwise arguably relevant documents. [49] The order to produce ID’s WDHP file must be complied with as soon as reasonably possible. The order is subject to two conditions. (1) The material and the information therein may only be shared and/or used only for the purposes of this proceeding. (2) The union shall destroy the material and any copies thereof after these proceedings are completed. Motion to strike paragraph 72 of the particulars. [50] Applying the legal principles in the case law, paragraph 72 of the particulars is struck, except the particulars in the last paragraph relating to a direct interaction between the grievor and Mr. Hasted. - 18 - [51] The Board remains seized. Dated at Toronto, Ontario this 13th day of December 13, 2021. “Nimal Dissanayake” ________________________ Nimal Dissanayake, Arbitrator