GSB#2003-0678, 2003-0912, 2003-2934, 2003-2935, 2003-2936, 2003-2937, 2003-2938

UNION#2003-0204-0008, 2003-0270-0004, 2003-0204-0010, 2003-0204-0011, 2003-0204-0012, 2003-0270-0008, 2003-0270-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Toner et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Lucy McSweeney Counsel Management Board Secretariat

HEARING

September 2, 2004.

Order

1This order confirms the outcome of requests for compelled production entertained at the hearing of September 2, 2004 in these matters.

2The documents of which the union requested production from the employer were described in six numbered paragraphs of its counsel’s letter to employer counsel of August 24, 2004:

1. Mr. Docherty's entire investigation file including but not limited to all witness statements and all correspondence with the Ministry.

2. All documentation the possession of the Equal Opportunities Program Office in relation to complaints about the Winona work site including but not limited to the "review" that was conducted by the office as referenced in Mr. Hougham's letter of November 10, 2002 to Gerry Foreman.

3. Copies of all e-mails and other documentation from Mike North to Mr. Fulford, Mr. Ali or other Ministry employees that involves or relates to either and/or both of the grievors.

4. Copies of all e-mails and other documentation exchanged between Mr. Fulford, Mr. Ali, Mr. Hougham and/or other Ministry employees that relates to Mr. North' behaviour and/or his treatment of one or both of the grievors or other Ministry employees including themselves.

5. Mr. Fulford's accommodation request and the accommodation plan that was subsequently approved.

6. Copies of all documentation that relates to either or both of the grievors' absences from work since May 1, 2003 including but not limited to i) the medical notes that were provided to the Ministry, ii) whether the Ministry considered sending the grievors for an independent medical examination and iii) whether consideration was given to accommodating the grievors in some manner so as facilitate their return to work.

3With respect to paragraph 1 of the union’s request, the employer takes the position that Mr. Docherty was engaged as a conciliator on the basis that his private interviews of individuals involved would remain confidential from the employer, and that the employer does not have the legal power to require that Mr. Docherty deliver to it copies of his entire file. Having already provided a copy of the report that Mr. Docherty delivered to it, the employer has agreed to provide copies of all correspondence between it and Mr. Docherty concerning its engagement of him to intervene in the subject workplace, including documentation reflecting the terms of the engagement, as well as any notes made by members of management with respect to their oral communications with Mr. Docherty concerning this engagement or its outcome. Counsel agreed that consideration of the request that the employer be directed to produce Mr. Docherty’s file would be deferred until union counsel has an opportunity to consider the documentation with respect to the nature to Mr. Docherty’s retainer.

4With respect to paragraph 2 of the union’s request, union counsel clarified that the request is with respect to any complaints filed between February 2001 and May 2003. The employer has agreed to produce the report referenced in Mr. Hougham’s letter to Mr. Foreman of November 10, 2002, as well as any complaint filed by either of these grievors. In so far as the union seeks documentation with respect to any “complaint” by anyone other than the grievors, the request is deferred until union counsel has an opportunity to consider whether the union takes the position that any and all information provided by an employee to the Equal Opportunities Program Office is information that that office is obliged to provide to management or is information to which management has access.

5With respect to paragraph 3 of the union’s request, union counsel clarified that the reference to “other Ministry employees” means other members of the Ministry’s management, and that the time frame is between February 2001 and May 1, 2003. I confirm my oral direction that the employer shall produce to the union copies of all e-mails and other documents sent or provided by Mike North to Mr. Fulford, to Mr. Ali or to any other member of the Ministry’s management in the period between February 2001 and May 1, 2003 that involves or relates to either or both of the grievors.

6With respect to paragraph 4 of the union’s request, as clarified by union counsel, I confirm my oral direction that the employer shall produce to the union copies of all e-mails and other documents exchanged between Mr. Fulford, Mr. Ali, Mr. Hougham and/or other members of the Ministry’s management in the period February 2001 and May 1, 2003 that relate to Mr. North’s behaviour and/or his treatment of one or both of the grievors or his treatment of other Ministry employees at the Winona site.

7Union counsel withdrew the request in paragraph numbered 5 of the letter of August 24, 2004.

8With respect to paragraph 6 of the union’s request, I note that employer counsel agreed to provide copies of medical notes submitted by the grievors in the period since May 1, 2003. I confirm my oral direction that the employer shall produce any documents reflecting Ministry consideration of whether to send the grievors for an independent medical examination or of accommodating the grievors in some manner so as facilitate their return to work, other than documents for which solicitor-client privilege or settlement discussion privilege is claimed.

9Counsel for the employer requested production of the complete medical files of each doctor who has treated either grievor since February 2001, other than doctors who only treated conditions that the union does not claim a) were caused or aggravated by alleged workplace harm or b) prevented the subject grievor from returning to his pre-May 1, 2003 work situation. Union counsel undertook to obtain a copy of each such file and review it, and advise employer counsel whether in his view there are personal matters that should be blacked out before copies are produced to the employer, and agreed that if employer counsel believes that the information that union counsel proposes to black out is relevant that issue may be addressed in a further hearing by teleconference or otherwise.

10By way of clarification, where the word “document” is used in this order, it encompasses information recorded in any form, and included any electronic record whether or not a paper version of that record exists or ever existed.

11I note that in addition to the dates previously scheduled – January 18 and 19, 2005 – at the hearing of September 2, 2004 the parties agreed on the following addition hearing dates in 2005: April 13, 14, May 18, 25, June 21, 28.