GSB# 1617/01, 1700/02, 1701/02

UNION# 02F006, 2002-0211-0041, 2002-0211-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Larman)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community, Family and Children’s Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

John Smith, Senior Counsel Mary Pat Moore, Counsel Management Board Secretariat

HEARING

April 7 & 8, May 6 & 7, 2003.

AWARD

The Union has moved to have the Board grant its grievance on the basis that relevant evidence required for it to advance its case has been destroyed by an agent of the Ministry. This Award addresses that motion.

Facts

This case has had a fairly long and painful past. The grievor, Don Larman, is a long-service Probation Officer 2 with the Ministry of Family and Children’s Services. He first came to the Board on three grievances related to certain letters placed in his personnel file. Vice-Chair Ken Petryshen mediated the matter and Minutes of Settlement were executed on April 14, 1999. Paragraph 2 of the settlement provides as follows:

2. The Ministry shall not refer to or rely on any of the report (sic), allegations and/or incidents giving rise to the Grievances in any way or in any subsequent proceedings.

The parties were back before the Board, this time before me, in July 2001, relating to three new grievances. The grievances were settled, and the settlement required a number of things from both the grievor and the Ministry. In part, the Ministry was to destroy all documentation related to the grievances prepared up to April 23, 2001. In addition, “[t]he parties agree[d] not to rely on the content of these documents.”

In December 2001, the Ministry alleged a breach of the July 2001 settlement by the grievor, and disciplined the grievor based on findings in an investigation report dated November 15, 2001. It also transferred the grievor from his home position in the St. Catherines Probation Office to its Simcoe office. The grievor filed two grievances against the Ministry. The parties resolved these matters on February 22, 2002. The Memorandum of Settlement, in part, states as follows:

7. The Employer will not take discipline or take substantive punitive action against the Grievor for the findings that directly relate to him in the Ministry of Community and Social Services investigation report dated November 15, 2001. The Employer will not take discipline or substantive punitive action on the four allegations upon which those findings were based.

8. The Employer will not give the Ministry of Community and Social Services investigation report dated November 15, 2001 to the workplace review consultant.

The “workplace review consultant” referred to in paragraph 8 had not yet been retained. At the mediation, the Ministry committed to hire an outside professional group to undertake a review of the St. Catherines Probation Office. While this review was pending and undertaken, Mr. Larman would remain out of the St. Catherines office on a leave of absence. He would then be advised, two weeks prior to his return to work, of his “workplace location” and he retained the right to grieve this workplace location under the collective agreement.

According to Rick Beauchamp, Program Manager, Community Programs for Hamilton/Niagara Region, the purpose of the review was to obtain an objective, professional assessment of the work environment at the office in relation to its commitment to provide a workplace free of harassment, discrimination and violence. It should be noted that Mr. Beauchamp testified only on examination-in-chief before the Union brought its current motion. The “terms of reference” of the review stated, in part, as follows:

The review will consist of, but not be limited to:

• interviews with all staff in the Probation Office to determine if the Ministry is meeting the above commitment

• review of complaints – both past and present and recommendations on resolution

• review of documents, reports, minutes and correspondence related to the working and interpersonal relationships between staff to determine whether the environment staff have created is consistent with the Ministry’s commitment and fosters a positive atmosphere for growth and development.

A number of firms tendered for the project, and Mr. Beauchamp selected Mediated Solutions Incorporated. A formal consulting service contract was entered into between the Ministry and Mediated Solutions. This contract, it should be noted, was not produced until closing arguments on the Union’s motion. The contract provided as follows in regard to information and material acquired by or prepared by or for Mediated Solutions, the “Consultant”, pursuant to the contract:

Ownership of Materials

7. The Consultant agrees that copyright in and all information and material, excluding company logos and trade marks whatsoever acquired or prepared by or for the Consultant pursuant to this contract, shall, both during and following the term of the contract, be the sole property of Ontario.

Delivery of Material and Information

8. Upon receipt of a written request from Ontario, the Consultant agrees to deliver forthwith to Ontario all material and information specified in the request which is the property of Ontario and in the possession or under the control of the Consultant. …The Consultant further agrees not to destroy any material or information which is the property of Ontario without Ontario’s prior written approval. This clause survives the expiration or termination of the contract.

Confidentiality

9. The Consultant agrees to ensure that the Consultant, its partners, directors, officers, employees, agents and volunteers, shall both during and following the terms of this contract, maintain confidential and secure all material and information which is the property of Ontario and in the possession or under the control of the Consultant pursuant to this contract. …

The workplace review was undertaken in June and early July 2002. Mr. Beauchamp testified that he did not provide any documents to the consultants. The manager of the St. Catharines office, Dave Hopkins, did that. Mr. Beauchamp met with the consultants to discuss the terms of reference and his goal of obtaining a clear and objective assessment of the nature of the working relationships in the office and the problems, if any. He testified that he relayed his understanding, through the manager and staff, that concerns had been expressed regarding issues of harassment and claims of discrimination, and that there was tension among individuals in the office. Mr. Hopkins also attended this meeting.

Mr. Hopkins testified on examination-in-chief that, “to the best of my recollection”, he provided the consultants with his supervisor notes from September 19, 2001 to November 28, 2001, along with two e-mails dated June 26, 2002. When asked whether he could recall providing any other documents, he replied “to the best of my recollection, no.” On cross-examination, he acknowledged that he was “not 100%” sure but he was “fairly confident” that was all that he provided. He testified that pursuant to the earlier settlements, he had destroyed a number of documents. In addition, when he took a new job in August 2002, he did some “housecleaning” and destroyed documents about staff “which were not of any particular import.” On cross-examination, Mr. Hopkins was not certain exactly when the documents that were to be destroyed pursuant to the settlements were destroyed. He acknowledged that he did not send a covering letter to Mediated Solutions when he sent them his supervisor notes. Nor did he keep a written record of what had been sent. Instead, he sent them electronically to Mediated Solutions and unfortunately deleted the transmittal message. He could not recall exactly what it said, but recalled that it was along the lines of here is “what I promised you or what you were looking for.”

Mediated Solutions issued its Workplace Review Report on July 23, 2002. The Executive Summary of the report recommends that “the individual on leave”, Mr. Larman, “be relocated laterally to another office maintaining his position as Probation Officer and given an opportunity to start fresh.” In concludes in part:

Returning the individual who has been at the centre of past and present conflict would unnecessarily disrupt the healing process. There is too much water under the bridge to repair the working relationship between the individual on leave and his former colleagues

In a footnote, the report states: “If this is not possible, then prior to this employee returning to the workplace, there should be a facilitated meeting of all staff in which all of the parties are told the expectations around the working environment.”

Mr. Beauchamp invited Mr. Larman to review the Executive Summary on August 1, 2002, but he was unable to attend. Accordingly, in order to comply with the 15-day notice of Mr. Larman’s workplace location as required by the February 2001 Minutes of Settlement, Mr. Beauchamp wrote to Mr. Larman on August 1, advising him that he would be temporarily assigned to the Simcoe Probation office, effective August 15, 2002. The letter states, in pertinent part, as follows:

As you know, the Ministry of Community, Family and Children’s Services retained Anne Grant and Judi Clarkson of Mediated Solutions Incorporated, a Toronto based Dispute Resolution firm to conduct a workplace review of the St. Catharines Probation Office during the months of June and July 2002. The consultant’s findings indicate that it would be beneficial for all parties in the St. Catharines Probation Office to have a fresh start. Management has carefully reviewed the consultant’s findings and recommendations to create a healthy working environment for all staff members of the St. Catharines Probation Office.

In order to provide you with a fresh start, you will be temporarily assigned to the Ministry of Community, Family and Children’s Services Simcoe Probation Office, effective August 15, 2002, until the Young Offender’s Program is transferred from this ministry to the Ministry of Public Safety and Security. At the time of consolidation, MPSS will confirm workplace locations for all staff. During your temporary assignment in Simcoe, your job responsibilities as a Probation Officer, classification and salary will remain the same. You will be reporting to your new supervisor, Jim Wilkinson. The Hamilton/Niagara Region will provide reimbursement for transportation costs from your home to the Simcoe Office. …

On August 1, 2002, Mr. Larman grieved his relocation to the Simcoe office.

On August 15, 2002, counsel for the Union, Ed Holmes, advised the Registrar of the Grievance Settlement Board, that the Union and grievor claim that the Employer breached the February 22, 2001 Memorandum of Settlement, and requested that a hearing date be scheduled before me as I had remained seized. A copy of this letter was sent to counsel for the Ministry.

On August 19, 2002, the local union president, Judy DeVries, sent a letter to Human Resources Consultant Mike Symons, requesting disclosure in connection with Mr. Larman’s grievance, “pursuant to Sections 22.14.4 and 22.14.5 of the Collective Agreement and all other appropriate sections of the Collective Agreement and the rules of natural justice.” The request was quite extensive, and included the following, among other documents:

• all notes, reports, e-mails, briefing notes, letters, names of persons interviewed, and any and all other documentation in the possession of both the Hamilton/Niagara Regional Office and Mediated Solutions related to the Workplace Review of the St. Catharines Probation Office conducted by Mediated Solutions that the Hamilton/Niagara Regional Office of the Ministry engaged for this purpose.

• Copies of all correspondence between the Hamilton/Niagara Regional Office of the Ministry and Mediated Solutions with respect to the Workplace Review of the St. Catharines Probation Office.

• Copies of all documents relied upon for the Workplace Review by the Hamilton/Niagara Regional Office and Mediated Solutions.

On August 20, 2002, Human Resources Consultant Mike Symons responded to Ms. DeVries’ request for disclosure. The letter states, in pertinent part: “Due to health and safety concerns that the employer has as a result of the circumstances that gave rise to Mr. Larman's grievance, the employer will not be disclosing any further information to the grievor for the Stage 2 meeting.”

On August 30, 2002, counsel for the Union, Ed Holmes, wrote to counsel for the Employer, Mary Pat Moore, requesting “full and complete disclosure of any and all documentation, notes, tape recordings, memoranda, letters, reports etc. arising out of and establishing the internal review performed on the St. Catharines office."

On September 30, 2002, Ms. Moore wrote to Mr. Holmes, as follows:

Please be advised that the Employer is not prepared to produce the report prepared by Mediation Solutions Incorporated dated July 23, 2002 at this time.

I have enclosed a copy of a letter dated September 18, 2000 (sic) from Anne E. Grant, Director, Mediated Solutions Incorporated. Ms. Grant identifies that there are no other documents in her possession related to the preparation of this report for the Hamilton Regional Office of the Ministry of Community, Family and Children’s Services.

Yours truly,

/s/

Mary Pat Moore

Counsel

The attached letter from Mediated Solutions, addressed to Richard Beauchamp and dated September 18, 2002 states as follows:

Dear Mr. Beauchamp:

Re: Request for Documents

St. Catharines Probation Office Workplace Review

MSI File # OI 41525-1,166

Further to our telephone conversation regarding the above-mentioned request, I would like to confirm that the only documents retained in the Mediated Solutions Incorporated (“MSI”) file, other than our contract for services, is the final report dated July 23, 2002. I understand that this report is already in your possession. It is MSI’s practice (based on best practices in this field) to shred all documents, notes, memoranda, etc. used to generate the report and recommendations once the final report has been accepted by the retaining client. As per best practices, the notes were shredded in this case. I would also like to confirm that it is not my practice to tape record confidential interviews, and to my knowledge no recording were made in this case.

I hope this assists you. Please let me know if I can be of further assistance in this matter.

Yours Truly,

/s/

Anne E. Grant, RN, LL.M (ADR, C. Med

Director, Mediated Solutions Incorporated…

On November 19, 2002, the first day of hearing in this matter, Mr. Holmes raised an issue about the need for further disclosure, and counsel for the Ministry agreed to respond by letter. Given that our next hearing date was not until April 7, 2003, Mr. Holmes advised that there was no rush, and it could wait until after the New Year.

On March 28, 2003, Mr. Holmes again wrote to Ms. Moore stating that “the materials disclosed do not satisfy our request”, and listed a number of specific matters. One of the specific matters was that “[w]e have not been provided with a list of the documents or copies of same that were provided to the investigator in the course of the investigation. …”

On April 4, 2003, Ms. Moore provided some further information in response to the Union’s disclosure requests, then stated:

In response to your paragraph 5, the Employer has reviewed its files to determine which documents were provided to the workplace investigators. I have received instructions from the employer that the documents were shredded.

At the hearing on April 7, 2003, based on this representation that the Employer’s record of the documents provided to the consultants had been destroyed, Mr. Holmes moved to have the grievances granted. Counsel for the Employer requested an opportunity to speak again with Mr. Hopkins to clarify the situation of the documents that were provided to the consultants. The following day, Ms. Moore advised that the instructions she had received were in error and that the documents provided by Mr. Hopkins to the investigator had not been destroyed and that Mr. Hopkins would be available to testify about that. Mr. Holmes reserved his motion to consider these events.

When the hearing resumed on May 6, 2002, Mr. Holmes presented his motion.

Positions of the Parties

For the Union

The Union asserts that the Employer’s actions in regard to disclosure in this case – its initial refusals to provide disclosure, the shredding of relevant documents by its agent, Mediated Solutions Inc., its changing positions (the documents provided by Mr. Hopkin’s were shredded and then “miraculously” found again) - all preclude the Union from advancing its claims and that to proceed with the hearing would constitute both a denial of natural justice and an abuse of process.

In support of its position, the Union relies on Article 22.14.4 and 22.14.5 of the collective agreement. Articles 22.14.4 and 22.14.5 provide:

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union of behalf of a member or members, or the Union itself, and full disclosure of the facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution process.

22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

The Union notes that these provisions are fairly new to the collective agreement and demonstrate the parties’ mutual commitment to “full disclosure.” In its submission, under these provisions, if a document is “arguably relevant”, the requesting party is entitled to get it. These provisions, it submits, create a substantive entitlement to full disclosure.

Along with the duty to disclose, the Union argues, there is corollary duty to preserve relevant documents. It submits that without the duty to preserve relevant evidence, the duty to disclose may be rendered meaningless. It contends that the greater the relevance of the evidence, the greater the degree of care required to preserve that evidence. In its view, given the history of this case, the relevancy of the documents exchanged between the Ministry and consultants, as well as the documents generated and gathered by the consultants would be at the highest level of relevancy.

Despite the contractual obligation to disclose and the corollary duty to preserve, the Union submits that disclosure was initially, and repeatedly, denied and documents were shredded by Mediated Solutions. On the eve of the hearing, the Union was advised that documents had been shredded by the Employer, and then, after counsel for the Union asserted that the grievor could not obtain a full and fair hearing under these circumstances, did the documents that were provided to the consultants “miraculously” reappear. It notes that although the Ministry initially asserted that a “mistake” had been made, there was no evidence of that presented during the testimony of Mr. Hopkins. Further, it submits that Mr. Hopkin’s testimony about what he gave to Mediated Solutions is unreliable. It asserts that Mr. Hopkin’s could not say with any certainty exactly what he provided to them. There was no list made and no accompanying letter or e-mail outlining what had been provided. On the contrary, the e-mail which transmitted the documents to the consultants had been deleted, which the Union claims was a deliberate destruction of relevant evidence.

The Union further argues that the Ministry cannot hide behind the fact that it was Mediated Solutions, a third party, that destroyed the requested documents. It submits that Mediated Solutions was the hired agent of the Ministry and subject to its direction regarding the retention of documents. It notes that the contract between the Ministry and Mediated Solutions specifically addresses this point and makes the documents provided to Mediated Solutions as well as documents generated by Mediated Solutions the “property of Ontario.” It also prohibits their destruction. Yet the documents were intentionally destroyed based on the company’s “best practices” approach.

The Union also questions the completeness of the Ministry’s production of the documents it provided to Mediated Solutions. It notes that the contract between the Ministry and Mediated Solutions was not produced until the argument portion of this motion. It suggests that other documents that reasonably would be expected, such as a letter selecting Mediated Solutions, a letter accompanying payment for their services, a letter acknowledging receipt of their report, were not produced. This leads the Union to question the extent of the Ministry’s production, especially when considered in light of the Ministry’s initial refusal to disclose any documents. It submits that, under these facts, neither the Union nor the Board can be sure that all of the documents exchanged between the Ministry and Mediated Solutions have been disclosed, or that a full and fair hearing can take place.

This uncertainty, the Union asserts, is further seriously compounded by the deliberate destruction of relevant evidence by Mediated Solutions. It submits that with the destruction of Mediated Solutions notes and documentation, there is no possible way to determine what occurred during the review and whether the Memorandum of Settlement was breached. It asserts that because the relevant information and documentation was destroyed, there is no way for the Union to challenge any of the information that arose during the course of the review. It cannot, for example, put a single contradictory statement to any of the participants, including Mr. Hopkins. Nor can Mr. Hopkin’s testimony about the documents and information he provided to Mediated Solutions be challenged. In the Union’s submission, this inability to determine what occurred during the review and what information the Employer provided to the reviewers precludes the grievor from being able to have a full and fair hearing.

The Union argues that the documentation provided to Mediated Solutions and the reviewer’s interview notes are crucial to its case. It also submits that the disclosure of that information is essential to maintain the integrity of the arbitration process and the grievor’s right to a full and fair hearing. In its submission, the intent of the Ministry or Mediated Solutions is irrelevant. What matters is the fact that the relevant documents were destroyed.

It further submits that in light of the destruction of the relevant documents, there is no alternative remedy but to grant the grievance. The destruction cannot be corrected, it submits; it cannot be undone. Accordingly, it asserts that the appropriate remedy is to grant the grievances.

In support of its contention, the Union cites to R. v. Carosella 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80 (S.C.C.); Re Dough Delight Ltd. and Bakery, Confectionery and Tobacco Workers International Union, Local 181 (1998), 1998 CanLII 30033 (ON LA), 74 L.A.C. (4th) 144 (E. Newman); Re Budget Car Rentals Toronto Ltd. and United Food & Commercial Workers, Local 175 (2000), 87 L.A.C. (4th) (Davie); Re Thompson Products Employees Association and Thompson Products Ltd. (1970), 1970 CanLII 1593 (ON LA), 22 L.A.C. 85 (Roberts); Re National Standard Co. of Canada Ltd. and CAW-Canada, Local 1917 (1994), 1994 CanLII 18625 (ON LA), 39 L.A.C. (4th) 228 (Palmer), Brown and Beatty, Canadian Labour Arbitration, at Par. 3:1420.

The Employer

The Ministry asserts that the Union’s interpretation of Articles 22.14.4 and 22.14.5 are overly broad, and do not provide for a process whereby the Union must simply ask for something and is then entitled to receive it. Instead, it submits that what is meant by the words “full disclosure” in Article 22.14.5 is defined in Article 22.14.4 to mean “full disclosure of facts relied upon by management in a decision that is subject to a grievance…” The Ministry contends that it fully complied with Articles 22.14.4 and 22.14.5 when it provided the Union with the Workplace Review report dated July 23, 2002 in November 2002, and accordingly, there was no breach of this provision. At most, it submits, the Ministry may have been somewhat tardy in supplying the report to the Union, but it fully complied with the requirements of “full disclosure” under the collective agreement.

The Ministry further contends that it has produced all of the documents that it possesses, including all of the documents that it provided to Mediated Solutions and all of the documents that it intends to rely upon at the hearing. It argues that it cannot produce documents that Mediated Solutions destroyed. Consequently, the Ministry asserts that the impact of the destruction of documents by Mediated Solutions is the same on it as on the Union – both are limited to the range of documents produced. The Ministry acknowledges that Mr. Hopkin’s testimony demonstrated some confusion, but the bottom line, from its perspective, is that his testimony about what documents he gave to Mediated Solutions was consistent with the documents produced for the Union – his supervisor notes and the two e-mails.

The Ministry also acknowledged that Mediated Solutions destruction of the documents was “of concern”, but argued that the concern was limited because of the nature of the case. In contrast to a case which involves a witness statement about a single event which would be required to challenge effectively the witness’s credibility, it submits that the Employer’s decision to relocate Mr. Larman was based on a pattern of behaviours over a ten year period as outlined in the Workplace Review. It contends that the interviewer’s notes would be of little use in cross-examination of the participants. Instead, it was submitted that each participant could be cross-examined by asking if he or she had conveyed such information to the reviewer. If en employees respond “no”, the Employer’s case fails. Consequentially, the Employer asserts that the Union has the ability to challenge the report, even in the absence of the reviewer’s interview notes.

In terms of the cases relied upon by the Union, the Employer submits that R. v. Carosella, supra, is a criminal proceeding and factually distinguishable from the instant civil matter. It also notes that the decision was a 5-4 ruling, and that the dissent held that a third party cannot be held to the same standards of disclosure as the Crown. The arbitration decisions, it contends are distinguishable because in each case the Board had issued an order for production which was ignored by one of the parties. In contrast, no production order was ever made in this case.

In sum, the Employer argued that any prejudice to the grievor caused by the destruction of the documents by Mediated Solutions was minimal and could be dealt with by a skillful cross-examination. It submits that there has been no abuse of process and that it has fully complied with its duty to disclose.

Union Reply

In response, the Union submits that the fact that there was no Board order for production of documents is irrelevant because with the destruction of the documents by Mediated Solutions, there could be no order. Their destruction, moreover, is precisely why it is seeking to have the grievances granted as a remedy.

The Union also contends that the obligation of “full disclosure” as set forth in the collective agreement is not limited to the facts relied upon by the Employer but include all “arguably relevant” documents. Nor is it limited to those documents which the Employer intends to rely upon. It also submits that its motion is not based on the fact that production was tardy. It is based on the fact that documents were destroyed.

Finally, the Union vigorously disputes the Employer’s contention that skillful cross-examination can avoid any prejudice to the grievor caused by the destruction of the documents. It submits that while a witness may say he or she said something to the reviewer, without the interview notes, there is no way for the Union to challenge that testimony.

Decision

This long and difficult case has become even more so. At issue is whether a full and fair hearing, consistent with the requirements of natural justice, can be held in light of the destruction of Mediated Solutions notes and documentation.

The right to a full and fair hearing is basic to the arbitration process. There are many aspects to a full and fair hearing, including the right to advance one’s case and the right to respond. As set forth in Williams v. Roblin (1858), 2 P.R. 234, at p. 237: “Neither side can be allowed to use any means of influencing the mind of an arbitrator which are not known to and capable of being met and resisted by the other.”

The case of R. v. Carosella, supra, cited by the Union, is instructive. In that case, the complainant went to a sexual assault crisis centre in 1992 for advice about laying charges against the accused for sexual abuse that she alleged occurred in 1964 when she was a student. The complainant was interviewed by a social worker for about an hour and forty-five minutes. The social worker took notes during the interview and advised the complainant that the notes could be subpoenaed to court. Following the interview, the complainant contacted the police and the accused was charged and later, after a preliminary inquiry, was ordered to stand trial. In October 1994, counsel for the accused sought production of the centre’s file concerning the complainant. When the file was produced, it did not contain the notes of the complainant’s interview. The notes had been destroyed in April 1994 pursuant to the centre’s policy of shredding files with police involvement before being served a subpoena in relation to criminal proceedings.

The Court majority, in a ruling by Justice Sopinka, determined that there was ample evidence to conclude that the notes were “relevant and material.” (Quicklaw, pp.15-16, par.44) The Court stated that “it is clear that the appellant could have made use of the information in the notes even though it is difficult to specify the precise manner in which the information could have been used without knowing the content of the notes.” (Id., p. 16, par. 45). As a result, “[t]he destruction of this material and its consequent non-disclosure resulted in a breach of the appellant’s constitutional right to full answer and defence.” (Id., p. 16, par. 47)

In terms of the stay of proceedings, the Court cited R. v. O’Connor [1995] 4 S.C.R.41, at para. 82 that:

It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

Since credibility was a major issue in the case, the trial judge had determined that the destruction of the documents was very significant. Also significant was the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence. The other factor was irreparable prejudice to the integrity of the judicial system if the prosecution were continued. As the Court stated:

The presence of the first factor cannot be denied. With respect to the second, in my opinion, the complete absence of any remedy to redress or mitigate the consequences of a deliberate destruction of material in order to deprive the court and the accused of relevant evidence would damage the image of the administration of justice.

(Quicklaw, p. 18, par.56)

Although R. v. Carosella arose in a criminal law context, with Charter Rights at stake, the principles explored there do have some applicability in the instant matter. As noted, the right to a fair hearing includes the right to advance one’s case and the right to respond.

1. The Duty to Disclose

The first issue is whether the Ministry had a duty to disclose the notes and documents that were destroyed by Mediated Solutions in this case. Under Article 22.14.5, “…either party upon request is entitled receive from the other, full disclosure.” Under Section 48(12) of the Labour Relations Act, an arbitrator has the power “to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing.” These obligations go beyond disclosing the “facts relied upon by management in a decision that is subject to a grievance…” as set out in Article 22.14.4. The obligation applies to documents or things that are “arguably relevant.”

In this case, the documents provided to Mediated Solutions by the Ministry and the documents, including interview notes generated by Mediated Solutions during the review, are highly relevant to the issues in dispute. As set out in the Union’s opening statement at the hearing on November 19, 2002 and in correspondence to the counsel for the Ministry, the Union asserts that the Employer’s relocation of Mr. Larman, based on the Workplace Review, violates the April 14, 1999 settlement, the July 2001 settlement and the February 2002 settlement. It submits that in each of those agreements, the Ministry agreed not to rely on certain allegations and information. Yet, in its view, the Workplace Review is “littered” with references to matters that were settled. The Union asserts that insofar as the Workplace Review refers to and relies upon allegations that were settled and could not be relied upon by the Employer, the Employer has breached these settlements. It also contends that the Employer’s relocation of Mr. Larman was a disciplinary response in violation of the February 2002 settlement and the collective agreement. Finally, without knowing what documentation was provided, the Union could not ascertain whether paragraph 8 of the February settlement was complied with. Paragraph 8 reads: “The Ministry will not give the Ministry of Community and Social Services investigation report dated November 15, 2001 to the workplace review consultant.”

Although it was recognized at the February 2002 mediation that employees participating in the review could discuss any matter with the workplace reviewers, including matters that had been settled, the Ministry could not rely on those matters which had been resolved. As a result, what information was provided to the reviewers is important to establish the basis of the reviewer’s recommendations and is central to the Union’s case. The documentation provided to the reviewers by the Ministry is also critical to a determination of whether paragraph 8 was breached.

It is not sufficient, as counsel for the Ministry asserts, for Union counsel to cross-examine witnesses about the list of behaviours attributed to Mr. Larman over the past ten years, as outlined in the report, and ask them whether or not they said that to the reviewer. Regardless of whether a witness says “yes” or “no”, the Union cannot challenge the testimony in the absence of the interview notes.

In light of the specific issues raised in this matter, it is critical to go behind the report to review what was said to the reviewers, and what they relied upon. Therefore, I conclude that the notes and documentation destroyed by Mediated Solutions were highly relevant, and in fact, crucial to the Union’s case.

2. The Destruction of the Documents

The evidence is undisputed that Mediated Solutions, based on its “best practices” policy, destroyed all of its notes and documentation related to the workplace review. The Ministry bears the legal responsibility for this.

The Ministry cannot avoid responsibility for the destruction of the documents by Mediated Solutions on the basis that Mediated Solutions is a third party. Mediated Solutions, for the purpose of the workplace review, was an agent of the Ministry. It was subject to the Ministry’s direction and control in regard to the retention of documents. The Ministry’s contract with Mediated Solutions made it clear that “all information and material…. whatsoever acquired or prepared by or for the Consultant pursuant to this contract shall, both during and following the term of the contract, be the sole property of Ontario. The consultant agreed that upon written request it would deliver “all material and information specified in the request which is the property of Ontario and in the possession or under the control of the Consultant” and “further agree[d] not to destroy any material or information which is the property of Ontario without Ontario’s prior written approval.” Yet the documents were destroyed, per the consultant’s “best practices” policy. In this regard, it should be noted that the project Mediated Solutions had undertaken was an investigation into the causes of a workplace conflict – not a mediation. The Ministry, as the hiring agency, is legally responsible for the destruction of the documents.

Also problematic is the fact that no written record was made of the documents provided by the Ministry to Mediated Solutions. Mr. Hopkin’s was “fairly confident” that all that he provided were his supervisor notes and two e-mails, but that is insufficient when the settlement precluded certain documents from being provided by the employer. Clearly, significant care should have been taken to identify and list all of the documents provided to the reviewer. This situation is then exacerbated by the destruction of Mediated Solutions documents. Under these circumstances, there is simply no way to be certain, with any degree of confidence, what documents were actually provided.

C. The Legal Impact of the Destruction of Relevant Evidence

Having determined that the documents destroyed by Mediated Solutions were highly relevant to the Union’s case, the question becomes what remedy should result. In this case, the Union is clearly asking for an extraordinary remedy – the granting of its grievances. In support, it cited to an except from Brown and Beatty, Canadian Labour Arbitration, at par. 3:1420, Production of Documents, which states:

However, where a timely request is made and there is no compliance, it would appear that the remedy is to order production and grant an adjournment, and if the party’s refusal continues thereafter, to convene the hearing and either allow or dismiss the grievance as may be appropriate in the circumstances. (emphasis added)

Most of the arbitration cases cited by the Union involve dismissals of grievances for failure to produce ordered documents, thereby resulting in an abuse of process. None involves the granting of a grievance. Counsel for the Union acknowledged that he could find no such authorities. But as counsel for the Employer, John Smith, candidly acknowledged, if a grievance can be dismissed on this basis, it should follow that a grievance can also be granted on this basis.

In Re National-Standard Co. of Canada Ltd. and CAW-Canada, Local 1917, supra, Arbitrator Palmer determined that an arbitrator has the power to dismiss a grievance to prevent abuse of the arbitration process. He further stated at p. 235 that such power “is also consistent with the old adage of the courts ibi jus, ibi remedium: where there is a right, there is a remedy.” In that case, the arbitrator determined that the grievor was intentionally not complying with production orders, resulting in an abuse of the system to both the company and the union. As the remedy, he dismissed the grievance.

A number of the other cases cited by the Union which dismissed the grievances also involve a determination that there had been an abuse of the arbitration process. In this case, on the facts presented, I cannot conclude that the Ministry engaged in an abuse of the arbitration process. There was no order for production that was intentionally disregarded. Although I cannot condone the Ministry’s initial blanket refusals to produce the requested documents, quite a number of documents and information were produced, albeit, as counsel acknowledged, somewhat tardily. The Ministry’s actions, however, do not amount to an abuse of the arbitration process.

That conclusion, however, does not end the inquiry. The fundamental concern here is whether the right to a fair hearing has been irreparably damaged as a result of the destruction of Mediated Solutions notes and documents. In R. v. Carosella, supra, the Court stated that a stay of proceedings was an “extraordinary remedy” and only appropriate in the “clearest of cases.” In that case, the destruction of the interview notes was very significant because credibility was an important factor in the case. Also significant to the Court was the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence. The other factor was irreparable prejudice to the integrity of the judicial system if the prosecution was continued.

In this case, the Ministry suggested no alternative remedy that would repair the damage to the Union’s case caused by the destruction of Mediated Solutions notes and documents. It argued, instead, that there was no irreparable damage. For the reasons set forth above, I do not agree with that conclusion. The destroyed documents were critical to the Union’s case. For the reasons set forth below, I also conclude that the destroyed documents were critical to the Employer’s ability to defend its actions and, ultimately, this Board’s ability to assess the merits of the case.

In so concluding, I have considered whether the taking of adverse inferences - i.e., inferring that the employee participants and Mr. Hopkins discussed matters that had been settled with the reviewer – would repair the damage. After much consideration, I conclude that under the specific facts of this case, that would not repair the damage.

As previously noted, at the mediation that led to the February 2002 settlement, it was recognized that the employer could not control what employee participants would tell the reviewer. It was recognized that the employee participants might discuss matters that had been settled. What was agreed, however, was that the Employer would not rely on those incidents. Hence paragraph 7 of the settlement: “The Employer will not take discipline or take substantive punitive action against the Grievor for the findings that directly relate to him in the Ministry of Community and Social Services investigation report dated November 15, 2001. The Employer will not take discipline or substantive punitive action on the four allegations upon which those findings were based.” Consequently, even if it is inferred that the employees and Mr. Hopkins discussed matters that had been settled, the Union’s ability to advance its case – as well as the Employer’s ability to defend its actions - are irreparably damaged by the destruction of Mediated Solutions notes and documents. Without knowing the full extent of what was relayed to the reviewers, the basis upon which Mediated Solutions made its recommendations cannot be determined. Without knowing the complete basis upon which Mediated Solutions made its recommendations, it cannot be determined whether the Employer based its decision to relocate Mr. Larman on prohibited information. The interview notes might show that the recommendations were based exclusively or primarily on matters that had been settled, or it might show that those matters played only a very small part of the whole. Consequently, without knowing the full extent of what was relayed to the reviewers, neither the Union nor the Employer can have a full and fair hearing on the central issues in dispute. Likewise, this Board will not be able to determine if there was a breach of the settlements and determine the merits of this case.

Consequently, I conclude that there is no alternative remedy that would cure the prejudice to the Union’s ability to advance its case. I also conclude that the destruction of the documents and notes by Mediated Solutions irreparably prejudiced the Employer’s ability to defend its action. Finally, it caused irreparable prejudice to this Board’s ability to determine the merits of the case. A full and fair hearing, which the principles of natural justice require, cannot be held in this matter. Under the specific facts and circumstances of this case, including the fact that it was the Employer’s agent that destroyed the relevant documents, the appropriate remedy is to grant the grievance. As stated by Arbitrator Palmer in Re National-Standard of Canada Ltd. and CAW-Canada, Local 1917, supra, “where there is a right; there is a remedy.”

In so ruling, I wish to emphasize a few points. This ruling is based solely on the destruction of highly relevant evidence and documents which has precluded the possibility of a full and fair hearing. It is not a determination that the Ministry breached the February 2002 Minutes of Settlement or any of the earlier settlements. There is no finding that the Ministry or Mediated Solutions destroyed the documents in order to thwart the arbitration process. The problem lies in the fact that the documents were destroyed, precluding the possibility of a full and fair hearing.

Conclusion:

For all of the reasons set forth above, I conclude as follows:

1. The notes and documents sought by the Union from Mediated Solutions, an agent of the Employer, were highly relevant to the advancement of its case.

2. The destruction of those notes and documents by Mediated Solutions irreparably prejudiced the Union’s ability to advance its case. I also find that it irreparably prejudiced the Employer’s ability to defend its actions and this Board’s ability to determine the merits of the case.

3. There is no alternative remedy that would cure the prejudice caused by the destruction of these documents.

4. Based on the specific facts and circumstances of this case, I conclude that a full and fair hearing cannot take place.

5. Based on the specific facts and circumstances of this case, I conclude that the appropriate remedy is to grant the grievance.

6. Mr. Larman is to be reinstated to his position at the St. Catherines Probation Office as soon as it may be practically arranged.

7. He is also to be made whole, if there is a financial loss.

8. I shall remain seized.

Issued at Toronto this 15th day of May, 2003.