GSB # 0102/97

OPSEU # 97C212, 97C213

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Buckingham)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Citizenship, Culture and Recreation/

Ontario Human Rights Commission )

Employer

BEFORE Nimal V. Dissanayake Vice Chair

FOR THE Nelson Roland

GRIEVOR Barrister & Solicitor

FOR THE Liane Brossard

EMPLOYER Counsel, Legal Services Branch Management Board Secretariat

HEARING March 3, 2000

DECISION

A hearing was convened at the request of the employer to deal with an allegation that the grievor had failed to comply with a term of the Minutes of Settlement she had executed along with the union, resolving certain grievances she had filed against the employer.

It was common ground between the parties that the grievor had undertaken in the Minutes, inter alia, to withdraw a related complaint she had filed before the Ontario Human Rights Commission. It is also agreed that she had failed to comply with that undertaking.

At the commencement of the instant proceeding, the parties jointly requested that I act as a mediator-arbitrator with regard to the issue of whether there were justifiable grounds for the grievor to resile from the particular undertaking she had made. It suffices to note that my efforts to mediate hardly got off the ground and the arbitration phase of the proceeding commenced.

At this stage the employer made a request for a number of orders and directions from the Board, including orders for particulars and disclosure of documents. The disclosure request pertained to medical information about the grievor, including notes and files kept by physicians, psychiatrists, psychologists and counsellors. The request for particulars was about the reasons why the grievor claims that she is not bound to comply with the terms of the minutes she had been party to.

The union did not, as a general matter, oppose disclosure of medical information. However, counsel stressed that the information sought is of a very personal and private nature and that only such documents that are absolutely relevant should be disclosed to the opposing side. The employer agreed that there was a valid concern about protecting the confidentiality of medical information. However, the parties disagreed as to the procedure that should be followed with a view to determining which documents should or should not be disclosed.

The employer counsel advocated a process whereby the Vice-Chair would meet with the two counsel in the absence of anyone else, to review the documents one by one, and receive submissions on the relevance of each disputed document, before ordering disclosure. Counsel envisaged an order from the Board that neither counsel divulge the content of any documents ruled to be not relevant and not subject to disclosure to anyone, not even their respective clients. She indicated her preparedness to make an undertaking to comply with such an order.

Counsel for the union relied on a prior decision of this Board in Re Crown in Right of Ontario (Ministry of Transportation) and OPSEU, (1996) 1996 CanLII 20450 (ON GSB), 54 L.A.C. (4th) 1 (Kaufman) and the court decisions cited therein, and advocated a two-step procedure to determine the relevance of the documents in question. Under such a process, the union will produce to the Vice-chair the requested documents in a sealed package. The vice-chair on his own will review the documents and weed out those documents he deems to be not relevant. Only those deemed relevant will be disclosed to employer counsel. Under this process, no one on the employer side, including its counsel, gets to see the contents of the excluded documents. Counsel pointed out that his proposal maximizes the protection of confidentiality and that this process has already been approved by this Board in similar circumstances.

I orally ruled at the hearing that I was not prepared to rule upon the appropriate process for determining the disclosure issue at this stage. The parties have provided me with very little information which will assist me in determining relevance. I have little information about the initial grievances filed or the terms of their settlement. More importantly, even the employer has not received particulars as to the reasons the grievor claims justifies her non-compliance. The union, which was also signatory to the settlement, has to date not taken a position as to the grievors claim that she is not bound by the particular term of the minutes. Indeed, union counsel advised that he was not in a position to given any indication as to what position the union may take in that regard, or even whether the union will take any position at all.

In these circumstances I found myself in a position, where I would be required to determine relevance of documents, with little or no information about the respective positions the parties were taking with regard to the very issue before me. As I review each document for relevance in these circumstances, I would be faced with the inevitable question, relevant to what?

In the circumstances I ruled that my order will have to be deferred until I have received more information. For that purpose I order as follows:

(1) The grievor and the union shall provide to the employer (with copy to the Board) full and complete particulars as to the reasons relied upon as justification for her position that she is not bound by the terms of the Minutes of Settlement she had entered into. This order must be complied with on or before April 7, 2000.

(2) Within 3 weeks from the date of the issuance of the particulars referred to in (1) above, the union shall provide in writing to the employer (with copy to the Board) its position, if any, with regard to the Minutes of Settlement it had entered into, and the assertions in that regard made by the grievor as reflected in her particulars.

Once the foregoing orders are complied with, the Board shall issue a decision ruling on all of the issues raised, including the appropriate process for determining relevance of documents for purposes of disclosure.

I remain seized of this matter to determine all outstanding issues.

Dated at Toronto, this 6th day of March, 2000.