GSB# 2003-0711

UNION# 2003-0999-0015

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 Transportation)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Craig R. Collins-Williams Paliere Roland Rosenberg Rothstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Lucy McSweeney Counsel Management Board Secretariat

HEARING

March 12, 2004.

Order

1This order concerns a request by the union that the employer be ordered to produce certain records that may be relevant to issues in this proceeding. For reasons set out hereafter, the order was granted orally on March 12, 2004, and is hereby confirmed.

2This grievance, filed April 28, 2003, concerns the assignment of employees to perform work on what came to be known as the Vehicle Resolve Project. The work was done by employees in the Ministry’s Kingston office, and by Ministry employees in other regions of the province. Generally speaking, the union’s contention is that between roughly May 2002 and August 2003 a number of Ministry employees did that work continuously for more than six months and that, in the circumstances, the employer was obliged to post and fill by competition the temporary assignments to that work, pursuant to Articles 8.6.1 and 6 of the collective agreement.

3In November 2003, the parties agreed to an order requiring that they exchange particulars of their positions and copies of the documents they relied upon. The order did not require that either party produce relevant documents in its possession on which it did not intend to rely. At that time the parties agreed to a timetable for exchange of particulars, and to continued hearing dates of March 9 and 12, 2004.

4In its particulars of February 6, 2004, the employer contended that employees outside of Kingston only did Vehicle Resolve work on overtime during the first third or four months of the period in issue, performing their regular duties during regular working hours in that period, that such employees did Vehicle Resolve work during their regular hours only from roughly April to August, 2003, and that in every case there was between those two periods a gap of between three weeks and two and a half months during which the employees in question performed no Vehicle Resolve work at all. The union has not accepted the truth of those assertions, and persists in the allegation that employees outside of Kingston were assigned to Vehicle Resolve work for continuous periods of six months or more.

5When the hearing resumed on March 9, 2004, without prior notice counsel for the union sought production from the employer of certain additional records. He stated that the union had recently learned that employees performing Vehicle Resolve work outside of Kingston had been required to keep track of the time they spent on that work during their regular working hours and had provided that information by email to their supervisors on a daily (or, at least, frequent) basis, and that the employees had understood that the information they provided was transmitted to Kingston on an ongoing basis for use in tracking the costs of the project. Based on that information, union counsel sought production of any records in the possession of the Ministry showing details of the time spent on Vehicle Resolve work by the employees in question during the period in question.

6Counsel for the employer objected to being required to produce documents at that stage, contending that the matter ought to have been raised earlier.

7It is important to note that the order for particulars and production did not require either party to produce any document in its possession, custody or power on which it did not intend to rely (or wish to keep the option of relying), even if the document was relevant. The order did not require that either party identify any document on which it might wish to rely other than a document in its possession, custody or control.

8Apart altogether from what the order for particulars and production of documents required, the expedition expected of the arbitration process required and requires that each side investigate its case and marshal the evidence in support of that case in a timely way, so that scheduled hearing dates are not wasted. The dates when and basis on which employees performed the work in issue are matters for proof by the union as part of its case. The union had known for months that its contentions in that regard were in dispute. It was the union’s obligation to determine whether there were any documents on which it might wish to rely to support its position, and to make whatever applications for pre-hearing production and serve whatever summonses might be necessary in advance of the scheduled hearing dates, in order that the hearing could proceed as scheduled with whatever evidence it could muster in support of its case.

9The union’s counsel contended on its behalf that it had not investigated the matter of record-keeping by bargaining unit employees earlier because it had interpreted certain employer representations about disclosure as indicating that there were no pertinent records other than those it had produced. I will not review in detail what I have been told about the communications between counsel with respect to production. It suffices to say that I am not persuaded that there was any representation by or through employer counsel either that there had been an exhaustive search for all relevant records or that none could or did exist other than those it had produced.

10When this issue arose for the first time on March 9, union counsel said he only had two witnesses to call. At that point it seemed not unlikely that the testimony of those witnesses might be complete, and the union’s case closed, before the end of the second hearing day on March 12. It would simply not have been realistic to expect that before then the employer could respond to a summons served or order pronounced on March 9 by completing a search for and making production in Toronto of any such records as might still exist concerning the information allegedly provided electronically to management by employees during a period that begun almost 18 months earlier. Since the records concerned matters that the union would have to establish in its case in chief (its counsel having clearly stated that he did not intend to attempt to prove through the employers’ witnesses any issue to which the sought-after records would be pertinent), it seemed that no useful purpose could be served by requiring the employer to search for and produce the records unless the union’s case did not close on March 12. Accordingly, I deferred the issue to the hearing of March 12.

11The testimony of the two witnesses that the union had on hand was completed before the end of the day on March 12, 2004. At that point employer counsel was not ready to proceed, however, as the only witness she had had with her had left the hearing early. In those circumstances, I was not prepared to require that the union call another witness or close its case. The earliest date on which the hearing could continue was June 9, 2004. In those circumstances, there was no longer the prospect of hearing time being wasted by an adjournment to await the sought-after records.

12It appearing that the contents of such records, if they exist, would be relevant to matters in issue between the parties, I directed orally that the employer produce to the union copies of any paper or electronic records in its possession, custody or power with respect to the nature of work performed on a day to day basis by the MTO employees outside of Kingston named in the union’s particulars as having been involved in Vehicle Resolve work. Such records, if any, are to be produced with respect to each such named employee for the period commencing on the first date on which the employer’s particulars identify that that employee began doing Vehicle Resolve work and ending March 31, 2003, inclusive, and, for employees in the Northern Region, also for the period August 16 to September 29, 2003, inclusive. The aforesaid records, if any, are to be produced to the union by April 30, 2004.

13I note the union’s undertaking to advise employer counsel of any dissatisfaction with the response to this order by May 14, 2004, and of any intention to call any additional witnesses by May 28, 2004.

14The deadlines stated in this order may be varied by agreement of the parties.