GSB# 2002-0474

UNION# 2001-0506-0001, 2001-0506-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vangou)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Hilary Cook Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Suneel Bahal Counsel Management Board Secretariat

HEARING

September 13, 2005.

Order

This on-going proceeding is about a grievance filed by Ms. Emma Vangou alleging that the employer had discriminated against her on the basis of her disability, and harassed her because of her trade union activity. One of the allegations is that the employer acted in bad faith against the grievor in relation to her bid to obtain employment with Serco Driver Examination Services Inc. (“Serco”) to whom the driver examination function had been divested by the employer. The union served a subpoena duces tecum on an officer of Serco, requiring the production of the notes taken by reference checkers employed by Serco at the time they obtained three employment references for the grievor over the telephone, from three Ministry supervisors. Serco objected to the subpoena through its own counsel, and its objection was supported by the employer. The basis for the objection was that the notes with respect to the communications between the reference checkers and reference givers were privileged. The Board heard evidence and submissions on this objection and issued its decision with reasons on March 11, 2005. In essence, the Board ordered the production of “all notes and records of the references provided for the grievor by the three reference givers”, and attached conditions to ensure confidentiality except for the purposes of this proceeding.

This order relates to another subpoena duces tecum, served by the union to Ms. Lenore Thompson of Serco, returnable at the hearing on September 13th, 2005. The subpoena required her to produce, inter alia, “Any past or present contact information for the individuals who checked Ms. Vangou’s references”. After being sworn in, Ms. Thompson was asked if she had brought the information set out in the subpoena, specifically the contact information. Ms. Thompson replied that she had brought the contact information, but added that she would be prepared to produce the information to the union only pursuant to a written Board order requiring production. She stated that she had concerns about privacy issues, and she was not sure whether the reference checkers’ testimony is relevant, since their notes had been already produced pursuant to the Board’s previous order. I orally ordered that the information be produced, with an undertaking to confirm the order in writing as soon as possible.

In my view the union is entitled to the production. The hand-written short-form notes made by the reference checkers are already in evidence is this proceeding. If the union so wishes, it must at least have the opportunity to seek clarification of the contents of those notes. If the union chooses to call any or all of the reference checkers, and if they take issue with the relevance and/or admissibility of any specific evidence to be tendered through them, those must be determined at the time.

Therefore, I hereby confirm that Ms. Thompson is ordered to produce to the union any past or present contact information for the individuals who checked Ms. Vangou’s references.

Dated this 15th day of September, 2005 at Toronto, Ontario