GSB #0786/00

OLBEU#OLB265/00

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Labour Boards Employees' Union (Colbourne)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE Ken Petryshen Vice Chair

FOR THE GRIEVOR Julia Noble, Counsel Ontario Liquor Boards Employees' Union

FOR THE EMPLOYER Lia Chiarotto, Counsel Heenan Blaikie Barristers & Solicitors

THIRD PARTY Tony Wong, Counsel Blake, Cassels & Graydon Barristers & Solicitors

HEARING December 21, 2000.

DECISION

In a decision dated December 13, 2000, I directed the Employer to provide the Employer's cost for an air mile to the Union. The decision followed a pre-hearing conference call in which counsel for the Union requested the GSB to direct the Employer to provide the Union with certain particulars in relation to the discharge grievance filed on behalf of Kelly Colbourne. The Employer discharged Ms. Colbourne because she allegedly obtained air miles on purchases by customers who did not claim the air miles. At the conclusion of the conference call, the only outstanding issue was whether the Union was entitled to know the Employer's cost of an air mile. Counsel for the Employer had argued that this financial information is confidential and that the information is not arguably relevant. In making the above direction, I indicated that the information could only be used by the Union and the grievor in connection with this proceeding and for no other purpose.

After the direction to the Employer was issued, the parties agreed to provide Loyalty Management Group Canada Inc. ("Loyalty") the opportunity to address the disclosure issue at a hearing. Loyalty operates the Air Miles Reward Program. A Reciprocal Confidentiality Agreement ("the Agreement") between Loyalty and the Employer requires them to keep certain information confidential, including the price per reward mile, except to the extent required by law. Prior to the hearing, counsel for Loyalty filed a sworn affidavit of Daniel Kennedy, General Counsel of Loyalty. Attached to the affidavit is a draft Undertaking which Loyalty wanted the Union and the grievor to execute. Included as terms of the Undertaking is a clause acknowledging that disclosure of the price per reward mile would cause Loyalty irreparable harm and a term requiring the Union to pay Loyalty the sum of $1,000,000.00 in damages for failing to comply with its disclosure obligations. Counsel for Loyalty also filed an Endorsement issued by Mr. Justice Nordheimer in a civil proceeding in which Loyalty, a non-party, succeeded in obtaining an order sealing certain documents for the purpose of protecting its confidential financial information. Counsel indicated that the motion by Loyalty was supported by an affidavit by Mr. Kennedy.

At the hearing, counsel for Loyalty did not take the position that the Employer's price per reward mile is not arguably relevant. Rather, his efforts were directed to ensuring that there would be no inappropriate disclosure of this information. Loyalty requested that I direct the Union and the grievor to execute the Undertaking attached to the affidavit and that I clarify my previous direction in a number of respects. Counsel for the Union objected to any weight being given to Mr. Kennedy's affidavit since the Union did not accept the statements contained therein and did not have the opportunity to cross-examine Mr. Kennedy concerning those statements. The Union took the position that my earlier direction is adequate to protect the interests of Loyalty and that it is consistent with the GSB's general approach in such situations.

I agree with the Union's position that no weight can be given to the affidavit evidence filed by Loyalty. Even though this matter proceeded like a motion, any facts which were not agreed upon would have to be established by oral testimony, with the right of the party opposite to cross-examine. In this instance, the primary purpose of the affidavit was to establish the confidential nature of the information. However, the December 13, 2000 direction was based on an appreciation of the sensitive nature of the financial information which Loyalty wishes to protect. The Endorsement and the Order of Mr. Justice Nordheimer serve to further confirm the confidential nature of the information.

After considering Loyalty's request and the submissions of counsel, it is my conclusion that my earlier direction is sufficient to protect Loyalty's interests and is consistent with the orders given by the GSB in similar circumstances. As I indicated at the hearing, a written decision in this matter will not refer directly or indirectly to the price per reward mile. In my view, it is also possible to conduct the hearing without making specific reference to the price per reward mile. To reiterate, the Employer is directed to forthwith provide the Employer's price per reward mile to counsel for the Union. This information shall only be used by the Union and the grievor in connection with this arbitration proceeding and for no other purpose.

Dated at Toronto, this 22^nd day of January, 2001.