GSB# 2002-2260

UNION# 2002-0248-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

March 23, 2004.

Decision

On December 3, 2003 the Union filed the following grievance:

The Employer has violated specifically, but not exclusively, Article 2 and 9 of the Collective Agreement in regards to occupancy loads within the Hamilton-Wentworth Detention Centre.

It asked for a declaration and full redress.

At the first day of hearing on March 23, 2004, a preliminary issued was argued concerning the Union’s request for production of the following: any documents related to the establishment of the operational capacity for the Hamilton-Wentworth Detention Centre, including but not limited to any documents related to the creation of the Correctional Facility Capacity Certificate for that institution; copies of the Correctional Facility Capacity Certificate for the years 2000, 2001 and 2002; any documents related to the calculation of capacity or occupancy in the facility as it relates to the Ontario Building Code; and any documents in the possession of the Ministry related to any efforts made to reduce occupancy in the Hamilton-Wentworth Detention Centre to bring occupancy within the operational capacity for that facility.

Mr. Blair, counsel for the Union, was seeking an order from the Board for production of the above noted documents. It was said that the allegations raised in the grievance raise an arguable issue concerning the safety of the employees due to overcrowding. The Union believes this overcrowding has resulted from the Ministry’s methods of calculating or establishing capacity levels and the Employer’s failed steps to deal with it at the institution. The details of those decisions and steps are within the knowledge of the Employer, not the Union, and should be provided to the Union. The documents requested are relevant or arguably relevant to the case and the Union is entitled to them. Article 22.14.5 of the collective agreement provides as follows:

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.

That provision, it was argued, requires the Employer to provide the Union with the information it is seeking.

The Union relied on the following cases: Re University of Saskatchewan and Faculty Association 1995 CanLII 18319 (SK LA), 59 L.A.C. (4th) 273 and Re Children’s Aid Society of City of Belleville, County of Hastings and City of Trenton and Canadian Union of Public Employees, Local 2197 (1994), 1994 CanLII 18707 (ON LA), 42 L. A. C. (4th) 259 (Briggs).

Mr. Hatzis, Counsel for the Ministry, took the position that the request for production must follow a requirement for full particulars. It was argued it is a two pronged test that must be followed in sequence. The Union must establish a prima facie case before the Employer can be required to provide disclosure. The Union must furnish the Employer with the material facts upon which it intends to proceed before a determination of the relevance or arguable relevance can be made.

The Employer pointed to the test for particulars used by the Ontario Labour Relations Board as the appropriate approach this Board should take in considering this issue. In the Bridgewood Plumbing Limited case ([1995] O. L. R. D. No. 3153) the Board stated, at paragraphs 4 and 5:

As a general principle, parties here seeking production of documents from Local 183 are entitled to have those documents produced if they exist, are in the possession or control of Local 183, its agents, or officers, and if they are arguable relevant. Of course, arguable relevance will depend upon the particulars that have been filed, which particulars crystallize the issues and set out the material facts in the proceedings. A request for production of documents cannot be a fishing expedition, but must relate to the material facts and allegations pleaded.

In light of the particulars, where specific employers have been identified, together with sufficient material facts to allege a PRIMA FACIE case with respect to inappropriate or improper employer conduct, the parties seeking production of documents are entitled to have produced to them documents that might contain matters of arguable relevance with respect to the employer misconduct or conspiracy allegations. Conversely, where there have been no sufficiently particularized allegations of improper employer conduct, either acting independently or as part of the conspiracy allegation, parties are not entitled to production of any documents containing reference to such employers.

The Employer also relied on a decision of a panel of the Public Service Grievance Board (Chyczij and Ministry of Labour(September 19, 2001), GSB # P/0017/00 (Maeots) which involved a preliminary issue of disclosure. The Board stated, on pages 2 & 3, as follows:

In the normal course of the employer’s grievance process, opportunities are afforded to define the issue between the parties. However, as the initial position of the employer had been that the matter in issue was not a grievable one, no grievance meetings had been held and, as a result, the employer now contends that it lacks sufficient information about the specifics of the grievor’s allegations to enable it to prepare a response.

Each side is entitled