Ontario Public Service Employees Union (Hunt et al) v. The Crown in Right of Ontario (Ministry of the Attorney General), 2005 CanLII 55135

GSB# 2001-0534, 2003-2944, 2004-3263

UNION# 2001-0551-0001, 2003-0999-0023, 2004-0271-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hunt et al)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

March 8, 2005

Decision

The Employer has moved to dismiss this proceeding, in its entirety, on the basis that the Union has failed to comply with an order of the Board regarding the production of documents. After considering the evidence and arguments of the parties, I have decided to deny the Employer’s motion.

Briefly, my reasons are as follows:

1. On August 25, 2004, during the cross-examination of Ms. Florence Clarke, one of the grievors, counsel for the Employer, Ms. Burke, asked the Union to produce the grievor’s tax returns from 1979 to present. This period of time corresponds to the evidence presented by the Union.

2. On September 1, 2004, Ms. Burke followed-up that request in a letter to counsel for the Union, Mr. Gavin Leeb. In the letter, Ms. Burke asked for, among other items, “[a]ll Income Tax Reports/Statements filed by Ms. Clark for the period between 1979 until today.”

3. Counsel for the Union objected to producing the grievor’s tax records. The Union was willing to produce copies of the tax records which showed the categories completed by Ms. Clarke for her transcript income and related deductions, but not the specific amounts. The Employer sought the complete tax returns.

4. This matter was argued on September 29 and October 27, 2004.

5. On November 4, 2004, I issued an Award on this issue. At pp. 16-17, I concluded:

For all of the reasons set forth above, I conclude that the specific numbers are not “arguably relevant” to the issues in dispute. Instead, the Union is ordered to produce the tax returns of Ms. Clarke, with the numbers blacked out, but showing the categories (line items) records. Other related tax documents, such as the Statement of Business Activity, and the Schedule 8 documents, if any similarly edited, should also be produced. Further, any personal information on the tax return is to be blacked out. The same ruling applies to any other Court Report witness.

In terms of the years for which the grievor and other witnesses must produce the above tax information, no argument was made on that issue by either side. I will entertain arguments on this issue, either by oral submissions or in writing, if the parties cannot come to some agreement.

6. The Union supplied to the Employer Ms. Clarke’s income tax returns for 2001, 2002 and 2003. The schedules were not attached. The 2003 schedule had a summary of the deductions attached. Ms. Clarke testified that her husband mailed the completed forms to Revenue Canada and did not retain a copy of them, just the summary. As to earlier years, Ms. Clarke explained that she learned, in late September 2004, that the individual who prepared her tax returns, Hans Rosenthal, had died in a car accident on September 2, 2004.

7. On December 15, 2004, Ms. Burke wrote to Mr. Leeb that the documents provided were incomplete, and that she would raise the issue at the next hearing date.

8. At the hearing on December 17, 2004, the completeness of the tax documents provided was raised by the Employer. At that hearing, I requested the Union to make a request for the documents from Revenue Canada and further inquire about the records from Ms. Rosenthal’s firm. Counsel for the Employer advised that unless further documents were provided, she would be bringing a motion to dismiss.

9. At the hearing on March 8, 2004, the Employer moved to dismiss the grievances because of the Union’s failure to comply with the Board’s order of November 4, 2004. It asserts that the Union’s failure to comply breaches the disclosure requirements in the collective agreement, the Board’s order of November 4, 2004, and precludes the Employer from defending itself, similar to the situation in Re OPSEU (Larman) and Ministry of Community, Family and Children’s Services, GSB No. 1617/01 et al. (Abramsky), endorsed by the Divisional Court, leave to appeal filed.

10. Ms. Clarke’s evidence was that in September 2004, she called Mr. Rosenthal’s office and learned, from his widow, that he had been killed in a car accident on September 2, 2004, along with his daughter. His widow was unable to provide any information regarding the grievor’s tax returns at that time, and suggested she try again later. The grievor did so, calling some six or seven times subsequently, although she could not recall the specific dates. Each time the voice mail box was full. She also went to the Rosenthal’s home, twice, but had no success. In response to my request that further efforts be made, she wrote a letter to Mr. Rosenthal, in care of his wife, which she mailed in early January by registered mail. That letter was returned, unopened, by Canada Post in early February 2005. In late December 2004, she also wrote a letter to Revenue Canada which she sent by registered mail, and also faxed them a letter, requesting “all of my income tax returns from 1979 to the present including an schedules relied upon.” She advised that she needed these documents in connection with an arbitration hearing and that she had been unable to obtain the documents from her accountant. To date, she has had no response from Revenue Canada. She has made no follow-up telephone calls, nor sent any further faxes or letters.

11. It is my view that the order of November 4, 2004 was clear. The grievor was to provide her tax returns and related documents, with the specific numbers blacked out. How far back she had to go, however, was not decided.

12. It is also my view that additional efforts should have been made to obtain the requested documents. I would have expected some follow-up with Revenue Canada, and I agree with the suggestion of counsel for the Employer, that contact with an accrediting body for accountants regarding what happens to records after an accountant’s death and how they can be obtained should have been done.

13. Although more should have been done, I do not find this to be an appropriate case to dismiss the grievance for failure to comply with the Board’s order, or for the reasons set forth in Larman, supra.

14. The grievor did make significant efforts to obtain the requested documents. She explored and produced the documents in her possession. She tried to obtain the documents from her accountant, but ran into substantial difficulty because of his unexpected and tragic death. Nevertheless, she did try to obtain the documents from his widow, without success. She did request the documents from Revenue Canada.

15. The cases cited by the Employer are, in my view, distinguishable on their facts.

16. Further, there was no intentional disregard of the Board’s order by Ms. Clarke, nor flouting of the arbitration process.

17. I also find the Larman case to be distinguishable. In Larman, the documents that were destroyed by the consultant were central to the Union’s ability to present its case, the Employer’s ability to defend the grievance and the Board’s ability to assess the merits of the case. In this case, the grievor’s tax returns are not central to the case. With the documents submitted to date, the Union can still present its evidence that the typing of transcripts is bargaining unit work, and the Employer can still defend its position that such work is independent of the Employer and treated as independent by the court reporters. The Board will still be able to assess the merits of the case.

18. Further, Ms. Clarke is only one of three individual grievors. There is no evidence regarding what tax documents the other grievors possess, nor any of the other court reporter witnesses. The type of information that the Employer seeks may be obtained through tax returns other than Ms. Clarke’s.

19. In terms of potential liability, any relevance of the missing documents may be assessed at that time, if necessary.

20. In my view, the dismissal (or granting) of a grievance for non-production of documents is an extraordinary remedy. It should be granted only in the clearest of cases where there is an abuse of the arbitration process or the parties’ ability to have a full and fair hearing is irrevocably compromised. This case does not meet that standard.

Accordingly, although I order that further efforts to obtain the tax returns be undertaken, the Employer’s motion to dismiss is denied. The hearing will continue, as scheduled, on March 11, 2005.

Issued at Toronto this 10^th day of March 2005.