FINANCIAL SERVICES TRIBUNAL
2012 ONFST 27
Decision No. P0500-2012-1c
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended by the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c.28 (the “Act”);
AND IN THE MATTER OF a Notice of Intended Decision of the Deputy Superintendent, Pensions, to Refuse to Make an Order under section 87 of the Act relating to the University of Toronto Pension Plan, Registration Number 312827;
AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Act.
B E T W E E N:
ELZBIETA OLSZEWSKA
Applicant
and
SUPERINTENDENT OF FINANCIAL SERVICES and UNIVERSITY OF TORONTO and the UNITED STEEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 1998
Respondents
BEFORE:
Florence A. Holden
Vice Chair of the Tribunal and Chair of the Panel
John Solursh
Chair of the Tribunal and Member of the Panel
Heather Gavin
Member of the Tribunal and Member of the Panel
APPEARANCES:
Elzbieta Olszewska (the “Applicant”) – self-represented
For the Superintendent of Financial Services (the “Superintendent”) – Deborah McPhail
For the University of Toronto (the “University”) – Elizabeth Brown and Sean Sells
For the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1998 (the “Union”) – Cathy Braker
December 4, 2012
I. INTRODUCTION
- This is a motion brought by the Applicant and submitted pursuant to Section 19.01 of the Tribunal’s Rules of Practice and Procedure (“Rules”) for an order that the Union respond to 27 interrogatories and produce 2 documents. All parties were previously agreed that the Tribunal had jurisdiction to hear the motion. At the start of the motion, the Applicant indicated that she had two further motions: the first, asking for a further delay in the proceedings on the basis that she received late service from the University of Toronto’s counsel on November 29th, rather than November 26th as previously ordered by the Chair and that she wanted more time to prepare. Her second was a general complaint about the University’s counsel in respect to that late delivery which the Applicant submitted was deliberately done and linked to a request by the Applicant for an immediate compliance order against the Union. After listening to the parties and reviewing their submissions, and jointly conferring, the Panel unanimously dismissed the Applicant’s ancillary motions for the following reasons:
a) The Applicant had received the responses of both the Union and the Superintendent on the required date and therefore had time to prepare her response to those parties.
b) While the minor delay was an unfortunate event, the Panel did not accept the Applicant’s contention that it was a deliberate act on the part of the University’s counsel. Further the Panel noted that the Applicant was asking for interrogatories from the Union, not the University. The Panel reluctantly accepted Ms. Brown’s offer to exclude the University’s participation in the motion as the University advised that it supported the Union’s position on this matter and as a matter of expediency only.
c) Originally the December 4th date was scheduled for a full hearing; the delay of the hearing was granted at the Applicant’s request so parties could prepare for the motion. As the issue before the Panel on the motion was a narrow one and all parties were present, the Panel decided that it should proceed as there appeared to be no prejudice to the Applicant and note that she had made detailed submissions on the original motion.
As counsel for the Superintendent also indicated that her courier also had had difficulty in serving the Applicant, the Panel further ordered under Section 9.02 (f) of its Rules of Practice and Procedure that future service on the Applicant only shall be both electronically and by registered mail, the latter requiring a signature. If undeliverable, the Applicant was advised that on notice of non-delivery she would have to personally attend at the post office to pick up the documents. Service on the other parties may continue to be electronically or by courier.
Subsequent to the hearing, counsel for the University indicated that Canada Post would not accept documents weighing more than 500 grams (1 pound) for registered mail delivery; at their request, the Tribunal subsequently consented to delivery to the Applicant by Express Post requiring signature for larger packages.
- With respect to the interrogatories, the Panel heard submissions with respect to three groupings:
a) The two documents requested in interrogatory 8 and 15, namely union bargaining notes dated October 23, 2002 and the findings of an investigation in April 2008 into an alleged assault of the Applicant by another staffer;
b) Interrogatories 1-23 which loosely speaking referred to the Applicant’s dismissal and grievance process; and
c) Interrogatories 24-27 which dealt with the early retirement window.
For completion the interrogatories are replicated in Appendix A to this Order.
- At a pre-hearing conference held July 4, 2012, the issues were framed as follows:
a) Has the University complied with the terms of the Plan and Act in determining the Applicant’s pension entitlement and options as set out in the package dated December 19, 2008?
b) Was the University acting in accordance with the Plan and the Act when it denied the Applicant access to the closed early retirement window that closed on June 30, 2008?
c) Did the Applicant become entitled to receive the pension benefit under the early retirement window at any time prior to or after June 30, 2008?
Despite reminders of the limited jurisdiction of the Panel only in relation to pension matters, the Applicant had tendered a large amount of documentation that relates more specifically to the circumstances of her termination of employment and related grievance. The initial response of the Union to the interrogatories under consideration is that they were irrelevant to the issues to be determined by the Tribunal and further not in compliance with the purposes of Section 19.01 of the Tribunal’s Rules. A further response was filed in respect of the main motion for use at this hearing and considered with the submissions of the Applicant and the Superintendent.
- For the reasons set out below we dismiss the Applicant’s motion that the Union respond to the interrogatories, noting that a response has in fact now been provided to interrogatories 24, 25 and 26.
II. ANALYSIS
- In reviewing this request and all of the others, the Tribunal is mindful of the Rules and prior decisions of the Tribunal. Section 19.01 of the Rules states:
19.01 A party may direct an interrogatory to another party to:
(a) clarify evidence filed by a party;
(b) simplify the issues;
(c) permit a full and satisfactory understanding of the matters to be considered; or
(d) expedite the proceeding.
- The Tribunal has considered this Rule most recently in the case of BCE Inc. and Superintendent of Financial Services, SCI Group Inc., and Canada Post Corporation1 (the BCE case), and this Panel adopts the approach of that decision in applying the standard for ordering responses to interrogatories. In that decision, the Tribunal noted the continuing relevance of the test for pre-hearing disclosure including interrogatories first developed in Monsanto Canada Inc. v. Superintendent of Financial Services2, known as the Monsanto test. This test has been applied in a number of subsequent cases before the Tribunal involving interrogatories and is summarized as follows:
Under the Monsanto test, the Tribunal will direct a party to respond to any interrogatory provided that the information requested meets the following three criteria:
(a) The information is arguably relevant to an issue in the proceeding and that issue is not a frivolous one;
(b) The information sought is sufficiently particularized that the party from whom the information is requested should be able to respond efficiently and with a reasonable degree of precision; and
(c) The information is not privileged.
- Section 27.01 of the Rules which relates to the disclosure and production of documents states:
The parties to a proceeding shall agree upon a plan for disclosure and production of relevant documents, including a timetable for carrying out the steps in the agreed-upon plan. In preparing such a plan, the parties shall take into account the principle of proportionality, and shall consider whether the costs, burden and delay that may be imposed on the parties in disclosing and producing documents are reasonable in light of the nature, scope and complexity of the maters at issue.
- In BCE, the Tribunal held that the “arguable relevance” test in Monsanto continues to be the appropriate standard or threshold to be attained; once established, the principal of proportionality applies thereafter as an overlay on the concept of relevance. While not directly applicable to disclosure, we agree with the BCE decision that the principle of proportionality may also apply to the interrogatory process which is closely linked to the pre-hearing disclosure process. The principle of proportionality suggests an order for production or response would not be warranted if the cost, burden and delay involved in responding is not warranted in light of the nature, scope and complexity of the matters at issue. The party who seeks to resist an order on the grounds of proportionality bears the onus of establishing that it would be “disproportional” to insist on a response to an interrogatory or production of documents. Even if the costs, burdens and delay involved are not warranted in light of the nature, scope and complexity of the matters at issue, it is not a substitute for the Monsanto test of relevance.
We now turn to the interrogatories in question.
Interrogatory 8 stated: Is the University truthful in their claim that this agreement really exists? Can you please provide those bargaining notes dated October 23, 2008 if they do actually exist for verification purposes?
The Applicant’s submissions were that this document was mentioned in a letter between University staff related to her grievance in July, 2008. The Applicant maintains that the notes deal with the bases for grievance by the union and that the union was engaged in a “fictitious grievance” with the University on her behalf. She consistently maintained that, notwithstanding the pension issues before the Tribunal, that the legitimacy of her grievance process and, in her view, collusion between the Union and University resulting in the Union dropping her grievance, is an issue before the Tribunal as she was advised that she could not elect under the early retirement window and pursue her grievance at the same time. Her position is that she should have been able to pursue the grievance and the early retirement window election at the same time.
Ms. Braker advised that the document in question was referred to in the second stage of the Applicant’s grievance negotiations in 2008. Her advice was that the memo related to the impact of organizational change/lay-off on the collective agreement and had no relationship to pension entitlements. The Union’s position was that the objectives of Rule 19.01 of the Rules were not met, and further, that the answers and document sought was not arguably relevant to the issues before the Tribunal. The Union confirmed that a grievance was initiated in May 2008 related to the Applicant’s dismissal and was withdrawn by the Union on December 15, 2008. We were advised that the Applicant subsequently initiated an unsuccessful appeal of the Union’s action to the Union’s Executive Committee, and later an unsuccessful complaint with the Ontario Labour Relations Board in relation to the grievance. An application for judicial review was dismissed in May 2009. The Applicant does not dispute the fact of the grievance, its withdrawal and subsequent appeals.
The Superintendent’s position is that the interrogatory is irrelevant to the issues, will not clarify any evidence, and will not contribute anything to permitting a full and satisfactory understanding of the matters to be considered.
The second document requested was in interrogatory 15 which stated: What were the findings of that investigation? Please submit a copy of that investigation and the conclusion reached by the investigator. For context, we also reproduce below interrogatory 14 which stated: Did the University actually conduct an investigation in April 2008 into the alleged assault on me by Professor (P) on November 30th, 2007?
The Applicant indicated in her submissions that she requested this investigative report under the Freedom of Information and Protection of Privacy Act (FIPPA). She also provided the Tribunal with a copy of a letter from the University’s Coordinator Freedom of Information and Protection of Privacy Office responding to her request that indicated no such report was found in the University files. The alleged incident that may have been the subject of such investigation related to a complaint against another University staffer prior to the Applicant’s dismissal. The Applicant however offered no evidence to the Tribunal that this alleged incident and related report, if any, was arguably relevant to issues before the Tribunal. Her argument again was that the requested document is meant to support her purported collusion between the University and the Union with respect to a “sham” grievance.
It was the Union’s position that interrogatories 14 and 15 were not arguably relevant to the issues in the proceeding; and that the Union did not have the document referred to in interrogatory 15. The Superintendent adopted the Union’s position.
These particular interrogatories and related documents follow earlier interrogatories again related to the Applicant’s grievance process and all requested by the Applicant, on her own admission, to demonstrate that the grievance was a “sham” concocted jointly by the University and the Union to coerce the Applicant into signing minutes of settlement removing her ability to seek legal redress for other employment-related matters. These other matters are not within the jurisdiction of the Tribunal and this is not an appropriate forum to essentially re-hash the Applicant’s many complaints about the grievance process or other non-pension matters.
No one argued the other grounds of insufficient particularization or privilege in respect of these documents so we make no finding on that basis. However, we find that the Applicant has failed to meet the test of arguable relevance outlined in the Monsanto case and the considerations outlined in Section 19.01 of our Rules. If anything, in the Tribunal’s view, the interrogatories cloud the issues, unduly complicate them and fail to expedite the proceedings. Consequently we will not order the Union to respond to interrogatory 8, 14 or 15.
The next grouping of interrogatories was 1-7, 9-13 and 16-23. These are replicated in Appendix A, but generally all go to the Applicant’s arguments as to the legitimacy of the grievance process and the basis for her termination of employment, and not to the issues before the Tribunal. The Applicant conceded that failure to obtain answers to these interrogatories would not prevent her from preparing her case. The Superintendent argued irrelevance and failure to meet the criteria of Section 19.01 of our Rules.
We agree with the Superintendent’s and Union’s position that these interrogatories were not arguably relevant to an issue before the Tribunal and in some instances (#2-12, 17, and 19) were not sufficiently particularized to permit the Union to respond efficiently and with a reasonable degree of precision. Consequently neither the Monsanto test nor the purposes of Section 19.01 of the Rules are met. We will not grant the motion requiring the Union to respond to interrogatories 1-13 and 16-23.
Interrogatories 24, 25 and 26 relate to the early retirement window that is, in part, a subject under dispute before this Tribunal, and were answered by the Union in their submissions on this motion. Consequently in our view, no order need be made in respect of those questions. While the Applicant may not agree with the answer, in our view, they have been answered and served on the Applicant. Further the Applicant indicated failure to succeed on the motion would not prevent her from preparing her case.
Interrogatory 27 states: Would it be correct to say that I cannot be left in limbo – I necessarily have to be covered under some CBA, and it certainly cannot be a CBA that I did not get a chance to vote on? The Applicant indicated this interrogatory dealt with the early retirement window. The Union’s response is that the question is irrelevant to the issues before the Tribunal and further unclear so as to prevent the Union from answering efficiently and with reasonable precision.
In our view, this question must be read together with Interrogatories 24-26 which seeks to establish the relevant collective bargaining agreement in relation to the Applicant’s retirement rights and the date the early retirement window closed. The Union in its response has in essence provided a partial response to 27. All parties will have an opportunity to present their full evidence as to the Applicant’s pension entitlements to the Tribunal at the hearing. The information sought in Interrogatory 27 lacks sufficient particularization in our view to meet the Monsanto test, and will not simplify the issues before us, as the parties disagree on the underlying facts. Ultimately this Tribunal will make its own findings of fact in relation to the issues. The motion is denied in respect of interrogatory 27.
III. THE ORDER
We dismiss the Applicant’s motion that the Union answer the interrogatories set out in Appendix A.
We further amend our earlier Order with respect to the preparation of the Agreed Statement of Facts and Agreed Book of Documents, to permit the Superintendent, University and Union (on request of those Parties) to serve a joint draft Agreed Statement of Facts and Agreed Book of Documents on the Applicant by December 14, 2012 with comments by the Applicant to the other Parties by January 15, 2013. It is expected that the Applicant will file her own Statement of Facts and Agreed Book of Documents. Filing of all documents with the Registrar’s office will be by January 30, 2013.
DATED at Toronto this 21st day of December, 2012.
“Florence Holden”
Florence A. Holden
Vice Chair of the Tribunal and Chair of the Panel
“John Solursh”
John Solursh
Chair of the Tribunal and Member of the Panel
“Heather Gavin”
Heather Gavin
Member of the Tribunal and Member of the Panel
Appendix A
Did the Union file a grievance against the University alleging improper reorganization/layoff (violation of Article 12:05 in the Collective Agreement)?
If the Union was grieving based on violations of Article 12:05, then why was the justification to dismiss my grievance in the letter dated December 15, 2008, where the Union wrote: “based on the evidence provided to the Union by the University that demonstrated that the grant that was primarily responsible for funding for [my] position had expired” if establishing this fact does NOT address the violations of Article 12:05 in any way?
Why did Vice President Human Resources and Equity A.H., in dismissing the Step 3 grievance, stated in her letter to Union Representative A.R. on November 17, 2008 that the Union had been arguing that the layoff was improper because of insufficient notice (which clearly indicates that the Union was in fact arguing violations of Article 12:05)?
Why wasn’t there any discussion about violation of Article 12:05 during the preparatory meeting for Step 3 hearing on October 16, 2008 (please see paragraphs 19, 20, 21, 22 and 23 in the Union’s submissions to the OLRB under Tab 4) even though I wanted to discuss that as indicated in my e-mail dated October 19, 2008 to the Union?
Why was this supposed agreement that the cessation of grant funding or budget cuts would be administered in accordance with Article 12:06(b) Indefinite/Layoff, made between the Union and University, not part of the Collective Agreement for the membership to see and why was it not revealed to me at any stage of the grievance process?
Is the Union and University permitted to go outside of the CBA at any point of the grievance process and refer to bargaining notes that have not been revealed to the membership and not subjected to ratification?
Do these supposed bargaining notes contain language pertaining to grants and grant funding that would give the Union any jurisdiction to investigate whether or not there was sufficient funding of any grant-supported staff position?
Is the University truthful in their claim that this agreement really exists? Can you please provide those bargaining notes dated October 23, 2002 if they do actually exist for verification purposes?
If the agreement did not exist between the University and the Union, then why did the Union abandon pursuing the University’s violation of Article 12:05?
If I was in fact laid off under 12:06 (legally or illegally) then what was the basis for filing a grievance given that there were no violations of Article 12:06?
If there was no basis for filing the grievance then would it be fair to say that I was not in a legitimate grievance in June of 2008 and that the University and Union had no right to tell me that I cannot retire and access the ERW since I was in a “grievance”?
The Union’s filing of my grievance was past the deadline to file, and Professor S. dismissed my grievance as a result. Did this not mean that the grievance came to an end on June 12, 2008, and that after that date the so called “grievance process” was a sham designed to strip me of my pension rights?
Why are the dismissals of Step 2 and Step 3 signed by someone other than Professor S., since only the Principal Investigator (in my case Professor S.) can fire or hire his/her research staff ?
Did the University actually conduct an investigation in April 2008 into the alleged assault on me by Professor P. on November 30th, 2007?
What were the findings of that investigation?
If the finding of that investigation was “personality conflict” then why did the Union claim that my layoff was done in bad faith?
If the Union indicated to the OLRB that I couldn’t pursue a grievance against Professor P. for her alleged assault, and that I did not wish to pursue the matter further after the February 2008 meeting, why did the Union claim that one basis of the grievance was that the layoff was done in bad faith if no actual complaints were ever made against Professor P.?
If I had really indicated to the Union that I didn’t want to pursue the matter further in February 2008, why did the University supposedly launch an investigation into the alleged assault in April 2008, and after the investigation was over why did J.L. communicate to me on two separate occasions that Professor P. was found guilty?
If, according to the Union, I did not file a complaint against Professor P. for her alleged assault on me on November 30, 2007, and if, according to the University, there was an agreement reached between the Union and University to treat matters of cessation of grant funding or budget cuts in accordance with Article 12:06(b) Indefinite/Layoff, then what exactly was the Union grieving in my case then, if the grievance was not pretend?
How did the Union know if the grant documents shown at the Step 3 meeting on November 4, 2008 by University were relevant to determine if in fact there was not enough funding for my position?
If any of the Union officials had any experience in dealing with the complexity of research grant application and administration, if the answer is no then if Union officials made any effort to become informed about those matters?
What were the reasons for the University to not permit the Union to take copies of the grant documents, since if obtained the Union would be able to seek others who might be better equipped to evaluate the bona fides of an employer’s offered reason for termination?
How were the Union Executives able to vote on not to take my grievance to arbitration without seeing any evidence, since none of the supposed documents shown by the University to the Union during the Step 3 meeting were in possession by the Union, and since the grant documents had absolutely no relevance to determine whether there were violations of Article 12:05?
Would it be fair to say that the closure of the ERW on June 30th, 2008, was entirely contingent upon the outcome of the ratification vote in September of 2008?
Would it be correct to say that the only reason that the early retirement window did in fact end on June the 30th, 2008 for those that were still employed by the University in September 2008, was because the new CBA, which did not continue offering the early retirement window, was accepted by the membership in September and became retroactive to July 1st, 2008?
Thus, would it be correct to say that I was covered still by the old CBA upon my termination on July 21, 2008, and that the early retirement window did not in fact close for me on June 30, 2008 or any time thereafter?
Would it be correct to say that I cannot be left in limbo - I necessarily have to be covered under some CBA, and it certainly cannot be a CBA that I did not get a chance to vote on?