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HomeMy WebLinkAbout2001-0534.Hunt et al.10-09-01 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2001-0534, 2003-2944, 2008-3397 UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Hunt et al) - and - The Crown in Right of Ontario Employer (Ministry of Attorney General) BEFORERandi H. Abramsky Vice-Chair FOR THE UNIONTim Hannigan Ryder Wright Blair & Holmes, LLP Barristers and Solicitors FOR THE EMPLOYERLen Hatzis Ministry of Government Services Counsel HEARING August 26, 2010. . - 2 - DECISION [1]A disclosure dispute has arisen between the parties concerning the Employer?s request for tax documents belonging to the Union?s first witness, Ms. Judith Haggith. The Union opposes the Employer?s request, asserting that the documents are not ?arguably relevant? to the remedial issues in this case. The Employer seeks an order compelling the production of these documents. This Decision addresses the Employer?s motion. Facts [2]We are now at the remedial stage of these proceedings, following the determination of this Board in July 2006 that ?the preparation and certification of transcripts is bargaining unit work of the Court Reporters? to which the collective agreement applies. [3]On May 17, 2010, the Union outlined the retrospective relief it is seeking. It includes making the individual court reporters (approximately 500 individuals) ?whole? for any and all losses flowing from the Employer?s failure to apply the terms and conditions of the collective agreement to the work of preparing and certifying transcripts. This includes lost wages, including overtime, all employment-related rights, including WSIB coverage, vacation and pension credits, travel expenses, benefits, and premium payments among other rights. It also seeks conversion to full-time status for those who would have qualified if transcript hours were included in the calculation. [4]In regard to Ms. Haggith, the Union is requesting conversion and compensation in excess of $200,000.00 for the period 2003 to 2009. It further asserts that any monies she earned - 3 - pursuant to the statutory tariff for court reporting should not be set-off, nor should the Board take into account any favourable tax treatment from which she may have benefited. [5]On July 19, 2010, the Employer sent a document request to counsel for the Union concerning Ms. Haggith, which included the three items in dispute. They are as follows: 1.Ms. Haggith?s income tax returns, and all supporting documents, for 2003 to 2009. 2.Any and all documents that show what monies, including income, were earned from 2003 to 2009, and when it was earned, and what for.This request is not limited to transcript and related work, but is with regard to all income generating activities Ms. Haggith may have engaged in. This request includes all receipts, invoices, bills or other documents that relate to transcript work. 3.Any and all receipts, charges, expense claims, invoices and other documents related to any tax deductions that Ms. Haggith claimed from 2003 to 2009. This request is not limited to transcript and related work but is with regard to all income generating activities Ms. Haggith may have engaged in. [6] On July 21, 2010, the Union responded, asserting that the documents requested in paragraphs 1, 2, and 3 above, are not ?arguably relevant with respect to the remedial issue[s].? In regard to paragraphs 2 and 3, the Union was willing to provide ?receipts, invoices, bills or other documents which relate to transcript work? but not documents unrelated to those earnings. The July 21 letter also noted that there had been a flood in Ms. Haggith?s basement which destroyed some of the tax documents sought by the Employer. At the hearing, counsel for the Union disclosed that no documents for the years 2006 through 2009 were available. [7] Ms. Haggith commenced examination-in-chief on July 22, 2010, without the disclosure issue being resolved. Arguments on the Employer?s motion to compel took place on August 26, 2010. - 4 - Reasons for Decision [8] Having carefully considered the remedial issues in dispute, the arguments of the parties and the case law cited, I conclude that the requested documents are ?arguably relevant? to the remedial issues in dispute and that an order compelling production is appropriate, with certain safeguards as outlined below. A.The income tax returns, and all supporting documents, for 2003 to 2009. [9] The parties both subscribe to the proposition that the Court Reporters, including Ms. Haggith, should be ?made whole? in terms of the Board?s earlier determination that the preparation and certification of transcripts is bargaining unit work to which the collective agreement applies. They differ markedly, however, as to how that is to be determined and applied. [10] It is the Employer? position that to determine a ?make whole? remedy, amounts earned by the Court Reporters for the preparation and certification of transcripts must be off-set from any lost wages and other entitlements claimed. It asserts that it is entitled, at this point, to know the actual income generated by Ms. Haggith for such work as evidenced by her tax returns. It argues that it need not rely on the invoices and receipts that she has been able to find, or her recollection, which may or may not show the complete picture. [11] The Employer contends that the situation here is similar to an employee claiming lost wages and benefits following a successful challenge to a claim of unjust discharge, and that the same principles of mitigation apply. It submits that in this type of situation, boards of arbitration - 5 - and the GSB have routinely ordered a party to provide their tax returns to verify income earned through mitigation, citing Re CUPE, Local 1750 and Ontario (WSIB)(Garrison Grievance), [2000] O.G.S.B.A. No. 106 (Mikus); Re OPSEU (MacMillan) and Ontario (Ministry of Health- Thames Valley Ambulance Ltd.), GSB No. 967/93 (Dissanayake); Re Confederation College and OPSEU (Gosselin Grievance) [1999] O.L.A.A. No. 751 (H. Brown); Re Shaw Baking Co. and Bakery, Confectionery and Tobacco Workers? International Union, Local 284(Cortolezzis Grievance) [2002] O.L.A.A. No. 27 (Bendel). [12] The Employer also relies on an earlier decision of this Board in this case, Re OPSEU (Hunt) and Ontario (Ministry of the Attorney General), GSB No. 2001-0534 (Nov. 4, 2004). That decision dealt with the Employer?s request for the tax returns of Court Reporters called as witnesses in the merits phase of the case. The Union acknowledged that how the grievors portrayed their transcript income and related documents to Revenue Canada might be ?arguably relevant? to the issues in dispute and was willing to provide copies of the tax records which showed the categories completed from transcript income and related deductions, but not the specific amounts. The Employer sought to compel the amounts to be disclosed. I concluded, at p. 10, that the specific numbers were not, at that point, ?arguably relevant? to the issue in dispute, specifically whether the preparation of transcripts was bargaining unit work. In so ruling, I determined that it was ?significant that the issues of liability and remedy were bifurcated?.? At p. 13, I stated: In my view, the specific numbers listed on the Court Reporters tax returns may well be relevant to the issue of liability if the Union prevails, since it is arguable that the income earned should be offset against a claim for overtime pay in order to preclude a double payment. But it only becomes relevant then ? if the Union prevails. The specific numbers have no relevance, or arguable relevance, to whether preparation of transcripts is bargaining unit work. Whether a Court - 6 - Reporter makes $500, $5,000 or $25,000 from preparing transcripts does not prove, or tend to prove, anything on that issue. [13] We are now at the remedial stage. The Union did prevail on the merits, and the ?specific numbers listed on the Court Reporters? tax returns may well be relevant to the issue of liability?since it is arguable that the income earned should be offset against a claim for overtime pay in order to preclude a double payment.? That is exactly what the Employer is arguing here. [14] The standard for disclosure at the GSB is ?arguable relevance.? Re Ontario (Ministry of th Correctional Services) and OPSEU (Knight) (1994), 39 L.A.C. (4) 205 (Kirkwood); Re Ontario (Ministry of Solicitor General and Correctional Services and OPSEU (Tefoglou) (1998), GSB No. 1378/97 (Abramsky). The same standard, generally, is applied by boards of arbitration.Re th Toronto District School Board and CUPE, Local 4400 (2002), 109 L.A.C. (4) 20 (Shime); Re th ONA and Municipality of Chatham-Kent (O?Brien Grievance) (2008), 178 L.A.C. (4) 210 (Etherington). [15] As noted in the earlier Hunt decision, supra at pp. 13-15, and the cases cited by the Employer in this case, boards of arbitration, including the GSB, have ordered income tax returns be produced in order to verify income earned when there is dispute about mitigation. [16] The Union argues, however, that there is a substantial privacy interest in the content of a tax return. It cites to Section 241 of the Income Tax Act, and case law under that provision for the proposition that there is a privacy interest in one?s tax returns.Re F.K. Clayton Group Ltd. - 7 - and M.N.R. [1988] 2 F.C. 467 (F.C.A); Re Slattery (Trustee of) and Slattery [1993] 3 S.C.R. 430 (S.C.C.);Re Budget Propane Corp. and Canada (Minister of National Revenue) [2000] T.C.J. No. 699 (T.C.C.). [17] The Union submits that the privacy interest in tax information is akin to the privacy interest in medical information, and should not be ordered when the information is available through other means. In support it cites to Re Molson Breweries and Canadian Union of th Brewery and General Workers (Nairn Grievance) (2005), 142 L.A.C. (4) 84 (Rayner); Ontario th (Ministry of Transportation) and OPSEU (Atkins Grievance) (1996), 54 L.A.C. (4) 1 (Kaufman); OPSEU (Hyland) and Ontario (Ministry of Children and Youth Services) (2006) 150 th L.A.C. (4) 149 (Petryshen). [18] In response, the Employer asserts that Section 241 of the Income Tax Act is inapplicable because it applies to government officials who may not disclose tax information to others, subject to numerous exceptions, not individual taxpayers. It also submits that tax returns have routinely been ordered to be produced in labour arbitrations. Further, citing Re R. v. McKinlay Transport Ltd. [1990]1 S.C.R. 627 (S.C.C.), it asserts that only a ?low expectation of privacy? applies to the information contained in a tax return. It submits that such a low expectation of privacy is not similar to the expectation of privacy often given to medical information, and notes that even confidential medical information, when the issue is raised, may be ordered to be produced, citing OPSEU (Richard) and Ontario (Ontario Clean Water Agency), GSB No. 2000- 1220 (Abramsky). - 8 - [19] In the prior Hunt decision, supra at p. 16, the same privacy argument was raised concerning Section 241 of the Income Tax Act, but I concluded, based on my ruling there, that it was unnecessary for me to consider this contention. It needs to be addressed here. I accept that individuals may have an expectation of privacy in regard to their tax returns and supporting documents, but that interest may need to give way to the right of all parties to a full and fair hearing. In this case, the Union is seeking to have Ms. Haggith converted to full-time status and is seeking over $200,000 in alleged losses on her behalf. The Employer is entitled to argue that her ?losses? should be offset by her transcript income. That makes her transcript earnings and expenses ?arguably relevant? to the issues in dispute in this remedial hearing. At this point in the hearing, the specific numbers are important and are clearly ?arguably relevant?. The Employer need not rely on the invoices and receipts that she may have in her possession, or her recollection. The best record and, in some cases where there are no other documents, the only complete record of her transcript income will be her tax returns. Although providing tax records may make some employees uncomfortable and feel that it is intrusive, the right to a full and fair hearing requires that the Employer be provided with the means to be able to challenge the individual?s claim of loss. This right, under the facts of this case, trumps the employee?s privacy interest. [20] The Union further argues that it is hours, not income, that matters ? that it is the hours worked preparing transcripts that will determine the employees? rights and entitlements under the collective agreement. That is true ? entitlements flow from the number of hours worked and when they were worked. But that does not alter the Employer?s contention that all monies earned preparing transcripts should be offset. The testimony of Ms. Haggith was that she used - 9 - her transcript invoices to determine the number of pages of transcript she produced and then calculated her hours based on a formula of 1.5 pages of transcript per hour. She did not include monies earned from providing copies of the transcript. Yet it is the total compensation she earned that the Employer believes should be offset, and it is entitled to make that argument. [21] The Union also points to the earlier Hunt decision, supra at p. 11, for the proposition that ?[t]here is no direct ? or even indirect ? correlation between the income reported for transcript preparation and the number of hours worked?.? That conclusion was based on the variety of types of court reporting and the variety of practices used in the courts throughout the province. But with the testimony of Ms. Haggith, there is evidence that directly ties the pages of transcript she produced to a number of hours, and hence her claim for compensation. Consequently, the Employer is entitled to challenge not only the basis upon which her calculations are based but know the amounts of compensation earned as well. [22] The parties both recognize, however, that there is personal information contained in tax returns that has no bearing on this hearing and therefore may be blacked out. This includes, but is not limited to information regarding marital status, dependents, charitable and political contributions, medical expenses and there may be many more. All such personal information and information unrelated to income and income-generating expenses may be blacked out. I leave it to the parties to discuss this further, and to return to the Board if necessary. B.Items 2 and 3 ? Any and all documents that show what monies were earned from 2003 to 2009 and deductions claimed. - 10 - [23] For me, this is a more difficult issue as the ?arguable relevancy? of unrelated income and deductions is less clear. The Employer asserts that this information is necessary for it to be able to challenge a claim for conversion. It argues that if an employee had another part-time job or substantial income from another activity, it may argue that conversion should not be awarded. It also asserts that all income, regardless of its source, must be offset against claimed losses, citing Re City of Toronto and Toronto Civic Employees? Union, Local 416 (Braithwaite) (2004), 135 th L.A.C. (4) 140 (Tacon); Re Dover Corporation (Canada) Ltd. and Turnbull Elevator Division and International Association of Machinists, Elevator Lodge 1257 (1980), 26 L.A.C. (2d) 7 (Brunner) and Re Health Employers Association of British Columbia and Hospital Employees? Union (Evans Grievance) [2000] B.C.C.A.A.A.No. 358 (Jackson). The Employer argues that, at this point, it need not persuade the Board of that argument. All it must establish, it contends, is that the information is arguably relevant to the issues in dispute. [24] The Union asserts that other income and expenses, apart from transcript production, is not relevant or arguably relevant. It acknowledges that if an individual spends many hours working elsewhere it may be relevant to the issue of conversion, but asserts that such information may be obtain through questioning, not their income tax documents. [25] In reply, the Employer asserts that that the Union?s approach would be unwieldy and cumbersome ? asking the question and then, if the answer is ?yes?, having to adjourn to obtain the tax records and supporting documents. It further submits that its ability to cross-examine effectively would be hampered without the requested information. - 11 - [26] I am persuaded that the Employer is entitled to the information requested concerning other sources of income and expenses. There is case law which suggests that all income should be offset from any claimed losses, and consequently, income from other sources is arguably relevant. Further, the information is arguably relevant to the issue of conversion. Conclusion: 1.The Employer?s motion to compel is allowed, subject to personal information being blacked out. This includes, but is not limited to information regarding marital status, dependents, charitable and political contributions, medical expenses and there may be many others. All such personal information and information unrelated to income and expenses should be blacked out. The parties should endeavour to agree and return to the Board should a dispute remain. Further, only counsel for the Employer and one advisor may review the documents. No copies may be made (except for the hearing itself). The documents may only be used in connection with the Employer?s defense in this case and for no other purpose. If there are other safeguards required, or if the ones issued are unworkable, the parties may discuss this and return to the Board if necessary. st Dated at Toronto this 1 day of September 2010. Randi H. Abramsky, Vice-Chair