HomeMy WebLinkAbout2013-1169.Ranger.22-04-20 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB#2013-1169; 2013-1170; 2016-0302; 2016-2388; 2018-0102; 2018-0615
UNION#2013-0424-0002; 2013-0424-0003; 2016-0424-0001;
2017-0424-0001; 2018-0424-0008; 2018-0424-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ranger) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Daniel Harris Arbitrator
FOR THE UNION Craig Flood
Koskie Minsky LLP
Barristers & Solicitors
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 5 and 8, 2022
- 2 -
Decision
[1] This decision is further to my decision dated March 15, 2022 in which the
Employer was directed to call viva voce evidence as to whether it had made its
best efforts to comply with my production order, given orally at the hearing on
November 4, 2021. That production order related to staff emails, exchanged
amongst each other, made using the Employer's internal email servers. On the
evidence before me, those emails relate directly to events witnessed by the staff
that led to the grievor being disciplined by way of a five-day suspension without
pay. The existence of such emails was evident from the direct-examination of Alex
Champagne. In the course of his direct-examination he reviewed an email, dated
Wednesday, January 24, 2018, to Audrey Takasaki. That email includes the
following:
Hey,
Just writing as you requested about the events of this morning.
. . .
April, Janine and I have had a few email exchanges of support, since talking in
the office right now is uncomfortable to say the least.
[2] At the time, Ms. Takasaki was the Assistant-Manager of the Ottawa Centre
Probation and Parole Office where the events took place, and Mr. Champagne
was an Administrative Support Clerk in that office. Accordingly, Ms. Takasaki
knew of the circulation of these staff emails prior to the grievor being disciplined.
Before commencing the cross-examination of Mr. Champagne, the Union asked
for the production order, which was issued.
[3] The continuation to hear the viva voce evidence of whether the Employer had
made its best efforts to find the said emails took place on April 5, 2022.
- 3 -
[4] On April 5, 2022 the Employer called two witnesses. The first witness was Mr.
André Laperriere, the Team-Lead for Enterprise Email Service, Information
Technology Services, MGCS. He testified about his efforts to restore the data
tapes for the time period in question relating to the employees in question to allow
the re-creation of the resultant mailboxes. The second witness was Mr. Jamie
Pearson, Quality Assurance Manager, Eastern Region, SOLGEN. He was given
the task of taking that data and searching the mailboxes for any relevant emails. I
am satisfied that they applied themselves with the diligence required; that is, they
made their best efforts, within their respective spheres of endeavour.
[5] It should be borne in mind that the Order given was for the Employer to find what it
could within the parameters above; that is, amongst the data that had in fact been
preserved, not the data that could have been preserved. On the way through the
viva voce testimony, I heard some evidence about a category of email
preservation known as a "litigation hold". Seemingly, the employer can require
that some emails have an infinite retention. Indeed, some of what was recovered
was apparently as a result of such a hold being exercised, by others, for reasons
unrelated to the matters before me. It was because of that hold that some of the
emails produced were accessible. Mr. Laperriere learned of this from a Mr.
Petitclerc. Mr. Petitclerc did not testify; however, Mr. Laperriere testified about an
email sent to him from Mr. Petitclerc on December 2, 2021. That email reads as
follows:
Subject: RE: Litigation Request - Data Availability Check
From what I can see the policy that backs up those databases did a Daily Full and
had a retention of 3 years.
- 4 -
So based on that I would think the furthest we could go back is Dec. 3, 2018.
That is the furthest I can see with the 3 year retentions.
I do see a bunch of images from Sept. 28, 2018 to Oct 5, 2018 that have the
infinite retention. This must have been from litigation.
[6] Accordingly, Mr. Petitclerc expressed the opinion that the unexpected availability
of this data, ". . . must have been from litigation." Mr. Laperriere had no
knowledge himself of the reason why this evidence had been infinitely preserved,
as he made clear in his re-direct examination. More's the pity that the instant
litigation did not benefit from the employer imposing, at the time, infinite retention
of the emails now at issue in the production order.
[7] Accordingly, I am of the view that best efforts were made in compliance with my
Order to uncover what existed.
[8] Mr. Champagne's cross-examination will commence on the next scheduled day
of the hearing.
Dated at Toronto, Ontario this 20th day of April, 2022.
“Daniel Harris”
________________
Daniel Harris, Arbitrator