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Home My WebLink About2010-1600.Brosseau et al.11-11-09 DecisionCommission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 Fax (416) 326-1396 7pOpF GSB#2010-1600, 2010-2325, 2010-2365, 2010-2366, 2011-1022, 2011-1023, 2011-1024 UNION#2010-0340-0018,2010-0999-0035, 2010-0340-0025, 2010-0340-0026, 2011-0340-0043, 2011-0340-0044, 2011-0340-0045 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarioPublic Service Employees Union (Brosseau et al., Union) Union - and - The Crown in Right of Ontario (Ministry of Revenue and Ministry of Government Services) Employer BEFOREOwen V. Gray Vice-Chair Ed Holmes FOR THE UNION Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Roslyn Baichoo Ministryof Government Services Counsel HEARING November 8, 2011. DECISION [1]7KHXQLRQUHTXHVWVDUHPHG\IRUWKHHPSOR\HU·VIDLOXUHWRSURGXFHGRFXPHQWVLQ DFFRUGDQFHZLWKWRWKH%RDUG·VRUGHURI-XQH [2]After describing the circumstances in which it was made, the order of June 16 th directed as follows (emphasis added): [7] Accordingly, I hereby order and direct that the employer (that is, the Crown in Right of Ontario) produce to union counsel on or before September 15, 2011 (or such other date as the parties agree) all documents in its possession, custody or control a) relating to communications between anyone on behalf of the Ministry of Government Services and anyone at the Ministry of Revenue with respect to FRQVLGHUDWLRQRI´,PSDFWHG(PSOR\HHVµIRUWHPSRUDU\DVVLJQPHQWVRU b) relating in any way to consideration by management, at any level and at any time in the relevant period, of creating or filing any temporary assignment within the Ministry of Revenue, including any temporary assignment that management at any level may have considered creating or filing or sought approval for creating or filling but was not ultimately created or filled. ,QWKHIRUHJRLQJRUGHU´WHPSRUDU\DVVLJQPHQWµPHDQVDWHPSRUDU\DVVLJQPHQWWKDW WKHHPSOR\HUZDVQRWRUPLJKWQRWKDYHEHHQREOLJHGE\$UWLFOHWRSRVW´UHOHYDQW SHULRGµPHDQVWKHSHULRGEHWZHHQ-DQXDU\DQGWKHGDWHRIWKHODVWVXUSOXV QRWLFHUHFHLYHGE\DQ\RIWKHVL[LQGLYLGXDOJULHYRUVDQG´GRFXPHQWµPHDQVDUHFRUG of any sort, whether physical or electronic, formal or informal, and whether or not at the time it was created its author shared or intended to share it with others. [8] This order for production casts a broad net. Compliance may well be time consuming. These are necessary consequences of the nature of the issues raised and the fact that the union is put to the strict proof of a negative with respect to things WKDWDUHODUJHO\ZLWKLQWKHH[FOXVLYHNQRZOHGJHRIWKHHPSOR\HU·VPDQDJHPHQW7KH obligation to produce cannot be made less onerous by wishful thinking on the part of those tasked to search for relevant documents. It might be made less onerous as part of an agreement of the parties on some sensible substitute for full blown adversarial litigation in this matter, one in which the parties are more focused on problem solving and less on supposed procedural advantage. The parties are encouraged to continue their thus-far unsuccessful attempts to reach such an agreement, without in the meantime delaying efforts to comply with this order and prepare for the hearing now scheduled to continue on five days in November, December and January. [3]When the hearing resumed on November 8, 2011, union counsel stated that since the order was made the employer had produced nothing, despite repeated requests that it do so. Without denying this, employer counsel said her instructions were that the - 2 - employer had taken to heart the component of the order that encouraged further DWWHPSWVWRVHWWOHDQGKDGGHYRWHGLWV´OLPLWHGUHVRXUFHVµWRWKDWHQGHDYRXU$OWKRXJK she noted (as she had in the hearing that led to the order) that the employer had given the union some documents before the order was made, she confirmed that it was not the HPSOR\HU·VSRVLWLRQWKDWLWKDGQRIXUWKHUXQSURGXFHGGRFXPHQWVRIWKHVRUWLWKDGEHHQ ordered to produce. She did not suggest thDWWKHHPSOR\HU·VGHFLVLRQPDNHUVKDG thought that making efforts at settlement would excuse non-compliance with the order, nor could such a suggestion have been credibly PDGHLQOLJKWRIWKHRUGHU·VFOHDUWHUPV [4]There is no suggestion that the union had expressly or impliedly agreed to H[WHQGWKHRUGHU·VGHDGOLQHIRUSURGXFWLRQDVWKHRUGHUH[SUHVVO\FRQWHPSODWHGWKH\ could, nor that the employer had somehow mistakenly thought there had been such an agreement. There is no suggestion that efforts at compliance had met with some difficulty that was not or could not have been anticipated at the time the order was sought and made. There is no suggestion that there has been partial compliance, or WKDWWKHHPSOR\HUKDVPDGH´EHVWHIIRUWVµ²RULQGHHGDQ\VXEVWDQWLDOHIIRUW²WR comply. [5]The union initially asked that I allow the grievance as a remedy for the non- compliance. I expressed concern that although the default that the Board considered in was of a different sort, the decision of the Court of Appeal on judicial review Larman 2 1 RIWKH%RDUG·VGHFLVLRQJUDQWLQJWKHJULHYDQFe in that case might be taken as direction that the Board should consider the other remedies that might be available. [6]This led to discussion of contempt proceedings as a means of enforcement. I noted that a prior decision of the Board had found that the Statutory Powers Procedure 3 ActWKH´633$µ GLGQRWDSSO\WRLWVSURFHHGLQgs, from which it would follow that the procedure contemplated by section 13 of that Act would not be available. This would Ontario Public Service Employees Union v. Ontario (Ministry of Community, Family and 1 Children's Services), 2003 CanLII 52907 (ON GSB). Ontario (Ministry of Community, Family and Children Services) v. Crown Employees Grievance 2 Settlement Board, 2006 CanLII 21173 (ON CA), 81 OR (3d) 419; 268 DLR (4th) 594; 142 CRR (2d) 226; 51 Admin LR (4th) 114; 213 OAC 169. Villella, 1662/96 (Gray, December 11, 1996) 3 - 3 - leave the matter of contempt to be addressed pursuant to the pre-SPPA jurisdiction of a tribunal that is statutorily assigned the same powers as a court of record to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence. I also noted my understanding that the focus of contempt proceedings in a 4 Crown context might have to be on identifiable officials. Neither party offered any 5 different view on any of these points. [7]Discussions ensued between counsel and (I was told) between representatives of the parties who were not present at the hearing. I was thereafter informed that the parties had agreed to meet on December 14, 2011 to resolve what they could, and that in the meantime I was to deal with the uniRQ·VSRVLWLRQWKDWRIILFLDOVRIERWKWKH Ministry of Government Services and the Ministry of Revenue should be directed that a) they are to ensure prompt compliance with the order, and b) they are to attend the hearing on December 20, 2011, to show cause why they should not be punished for FRQWHPSWIRUWKHIDLOXUHWRFRPSO\WRGDWH,WZDVWKHXQLRQ·VSRVLWLRQWKDWWKH individuals identified by name in the order should be the Deputy Ministers of the two Ministries, as well as whomever the employer might identify as the official in the Ministry of Government Services responsible for the non-compliance to date. [8]Employer counsel took the position that the order should not name the Deputy Ministers, as they would not be directly involved in matters of this kind. Without saying that he was responsible for the non-compliance to date, employer counsel proposed that I address the order to David Logan, an Assistant Deputy Minister in the Ministry of Government Service responsible for labour relations matters. Employer FRXQVHOZDVQRWDEOHWRVD\WKDW0U/RJDQ·VDXthority was co-extensive with that of the two Deputy Ministers. She did represent, howeYHUWKDWDGLUHFWLRQWR0U/RJDQ´ZRXOG EHVXIILFLHQWWRHQVXUHFRPSOLDQFHµERWKE\ his Ministry and, because that Ministry ´GLUHFWVRWKHU0LQLVWULHVLQWKHLUODERXUUHODWLRQVµE\WKH0LQLVWU\RI5HYHQXH See ss. 48(12)(d), Ontario Labour Relations Act, S.O. 1995, c.1, Sch. A, s.2 and s.7 of the Crown 4 Employees Collective Bargaining Act, S.O. 1993, c.38, as amended by S.O. 1995, c.1, and Re International Association of Heat & Frost Insulators & Asbestos Workers Local 95 and Master Insulators Association of Ontario et al. (1979), 25 O.R. (2d) 8 (Ont. Div. Ct.). See, generally, McKinnon v. Ontario (Correctional Services), 2011 HRTO 263 (CanLII). 5 - 4 - [9]I then told union counsel I was inclined to do as employer counsel suggested, but on the basis that the deadline for compliance would be three weeks hence (November 28). I observed that one or both of the Deputy Ministers could be summoned to the th %RDUG·VVFKHGXOHGKHDULQJRQ-DQXDU\LIRQ'HFHPEHU any part of Mr. th /RJDQ·VH[SODQDWLRQIRUDQ\QRQFRPSOLDQFHZLWKHLWKHURUGHULVWKDWKHGLGQRWRUGRHV not have sufficient delegated authority or resources, a prospect of which the two Deputy Ministers might appreciate early notice. Union counsel said he was instructed that that approach would be satisfactory to the union at this stage. [10],VKRXOGQRWHWKDWWKHHPSOR\HU·VFRXQVHOobjected on its behalf to a three week deadline. I did not see why any greater delay should be tolerated in the circumstances, and observed that the consequences of any failure to meet that deadline would depend on the nature and extent of the efforts to comply between now and then and, I would add, thereafter up to the December 20 hearing date. th [11]At another point there was some discussion about whether compliance before December 20 would render the contempt issue moot. It was and is premature to decide th WKDWDWWKLVVWDJH,GLGREVHUYHKRZHYHUDQGUHSHDWWKDW0U/RJDQ·VDWWHQGDQFHRQ December 20 will not be necessary if the employer·VUHVSRQVHWRWKLVRUGHUSHUVXDGHV th the union not to pursue remedies for the default, and it so advises the Board and employer counsel. [12]The legislature created this Board to settle disputes by arbitration at the request of either party to the dispute. It gave the Board the power to order production of documents in the performance of that role. It did not make compliance with such orders optional on the part of the Crown. The Board encourages and prefers that disputes be settled by the parties themselves, but that preference gives neither party licence to XQLODWHUDOO\GHOD\DQGGHIHDWWKHRWKHU·VUHVRrt to expeditious and impartial arbitration to resolve disputes. The comments I made in paragraph 8 of the order of June 16 th FRQWLQXHWRDSSO\²DOORIWKHPLQFOXGLQJWKHFORVLQJZRUGV7KHSDUWLHVDUHHQFRXUDJHG to continue their efforts to settle the underlying dispute and, failing that, to narrow the issues and/or settle issues of the procedure to be followed in these proceedings. Except - 5 - with the agreement of the union, however, WKHHPSOR\HU·VSDUWLFLSDWLRQLQVHWWOHPHQW discussions will not relieve it of its obligation to comply with this and the previous order in these proceedings. [13]I hereby confirm the directions I gave orally on November 8, 2011 that a)David Logan, Assistant Deputy Minister, Ministry of Government Services, is directed to ensure compliance by the Crown with the provisions of the order of June 16, 2011 hereinby no later than the close of business on Monday, November 28, 2011; and, b)unless the parties agree or the Board hereafter orders otherwise, Mr. Logan is directed to attend the hearing in this matter on December 20, 2011, and to bring with him and produce at that time any documents of the sorts described in paragraph 7 of the order of June 16, 2011 in this matter that have not been produced to union counsel before that date, and to show cause why he should not be punished for any failure to take all necessary steps to timely comply with the aforesaid order. I note that employer counsel has undertaken to ensure that Mr. Logan receives a copy of this order and to advise union counsel in writing that she has done so. On reflection, I leave the matter of notifying the Deputy Ministers of the possibility of their being drawn into these proceedings in January to thHHPSOR\HU·VGLVFUHWLRQDWWKLVVWDJHDQG make no formal order in that regard. [14]I also note that nothing in this order implies any criticism of the employer counsel, who has acted in an entirely professional manner in circumstances made difficult by her client. Nor does it imply DQ\SUHMXGJPHQWRI0U/RJDQ·VSHUVRQDO responsibility, if any, for the non-compliance that has regrettably become the focus of these proceedings. [15]Finally, I should note that this order does not necessarily limit the possible remedies for non-compliance to punishment for contempt. The Board will consider any - 6 - other remedies claimed, including remedies with consequences analogous to the striking out of the statement of defence of a non-complaint defendant in a civil proceeding, in light of the response to this order. day of November, 2011. Dated at Toronto this 9 th Owen V. Gray,Vice Chair