GSB# 2003-3764

UNION# 2003-0999-0032

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)

Union

• and -

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

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

May 13, 2005.

Interim Award

At the hearing scheduled to deal with this matter, the parties informed me that they had been unable to reach agreement on some production requests that had been made by the union. In addition, counsel for the Ministry indicated that he intended to make a motion that I was without jurisdiction to deal with the matters raised in this grievance based on the doctrine of issue estoppel. He suggested that the issue before me, involving the same parties, had been dealt with previously by the Grievance Settlement Board, pursuant to GSB No. 360/83. At the hearing, we agreed that it was appropriate to deal with this motion by way of written submissions and a time frame for these submissions was agreed to.

This award therefore shall only deal with a motion for the production of documents that has been raised by the union.

This matter first came on for mediation/arbitration on June 8, 2004. The grievance, which is dated December 19, 2003, alleges, inter alia, that the Ministry has violated articles 9.5 and 9.6 of the Collective Agreement which deal with Video Display Terminals (VDT). On June 8, 2004, the parties signed Minutes of Settlement in which they agreed to refer the issues raised in the grievance to the next “MERC” meeting scheduled for later the same month. Unfortunately, efforts to resolve this case were unsuccessful.

The relevant language, in part, in the collective agreement is:

9.5 After each hour of continuous operation of a VDT, a VDT operator shall be relieved of such duties for a period of ten (10) minutes.

9.6 At the beginning of assignment to a VDT and annually thereafter, a VDT operator who is regularly required to operate a VDT for two (2) hours or more per day shall be required to undergo an eye examination by an optometrist or an ophthalmologist who is qualified to conduct the following tests:

(a) unaided visual acuity (letter chart test)

(b) refractive findings

(c) corrected visual acuity

(d) amplitude accommodation

(e) suppression

(f) muscle balance (near, one metre, distant)

(g) slit lamp biomicroscopy.

The cost of the eye examination, not to exceed the OHIP fee schedule for such examinations, shall be borne by the Employer, and the VDT operator shall authorize release of a copy of the examination report to the Employer.

By letter dated May 9, 2005, the Ministry confirmed its legal position with respect to VDTs located in the control rooms at correctional institutions. Counsel stated:

“To confirm, for the purposes of the present proceeding, the Employer’s position is that the equipment used in central and sub-control rooms of all MCSCS Correctional Institutions, which meet the CSA definition of a VDT, are VDT’s as per the current Article 9 of the Collective Agreement. However, it continues to be the Employer’s position that Correctional Officers are not VDT Operators and that they do not operate the VDT’s in the manner contemplated by the collective agreement. Consequently, the provisions do not apply to Correctional Officers working in the control and sub-control rooms of the institutions”.

It became clear at the hearing that one of the issues in dispute pertained to whether or not corrections officers operate the VDTs in a “continuous” manner as stated in Article 9.5

This is the third interim award I have issued in this case. The two previous awards also dealt with issues pertaining to process, the provision of particulars and the exchange of documents.

Union counsel wrote to counsel for the Ministry on May 5, 2005, requesting the production of certain data. The request reads as follows:

“I am writing further to what appears to have transpired at the hearing on May 3, 2005, in the above-noted case. As I understand it, the Employer is challenging the “continuousness” of the use of the VDTs in the correctional institution and, therefore, the applicability of the VDT Article of the Collective Agreement to COs who work in “control” and the “pods.” I understand that there exists data in the institution’s computer system memory which can be printed out in a report. Please provide a printout report of each opening and closing of doors (in the entire institution [C.E.C.C.]) that were activated from central control and/or the pods for the 2 weeks prior to and 2 weeks after 19 Dec. 2003 (as well as on 19 Dec. 2003), the date of the grievance. Also, please provide a report of all the alarms monitored and/or responded to by or from central control and/or the pods. Please provide a computer printout indicating any other activity in central control and/or the pods, as well.

It is the union’s position that the aforementioned data will assist in determining how “continuous” is the use of VDTs in central control.”

The Ministry resisted the union’s requests for this data on the basis that it was not arguably relevant and that the request for it was not made in a timely manner. At the hearing, the employer reiterated this position. It was suggested that the request was untimely as the employer had provided its particulars to the union in March, 2005. As these particulars identified that the employer would be challenging the “continuous” aspect of the operation of the VDT’s by Correctional Officers, any requests for disclosure should have been made at that time. The Ministry argued that the data sought was not arguably relevant as the report will only provide a list of activities performed in association with or resulting from an activity performed on a screen. It will not demonstrate that a particular Corrections Officer performed a particular activity.

It was also argued that the information requested should not be disclosed because to do so was prejudicial to the Ministry. This prejudice argument had two components. Counsel suggested that the data was highly sensitive and to disclose it would compromise the security of the institutions. At the hearing, Counsel for the Ministry requested the opportunity to call evidence from its security experts to elaborate on the nature of the security risks. Although counsel indicated that the production issue should not be decided in the absence of this evidence, he was not in a position at the time of the hearing to call the evidence and would need an adjournment to prepare. Counsel also indicated that the data requested by the union was voluminous in nature. As such, he argued that requiring the Ministry to produce it would be prejudicial as it would be a very time-consuming and costly task. Counsel for the Ministry suggested that the union did not need the documents requested as the evidence could be brought forward in the form of viva voce evidence from a Corrections Officer.

Counsel for the union disagreed with the submissions of employer counsel and pointed out that the data sought was clearly being requested in a timely fashion and was arguably relevant. He suggested that the fact that it was arguably relevant had been conceded when opposing counsel stated that the evidence could be led through the viva voce testimony of a corrections officer. The Ministry by letter dated May 9, 2005, clarified its legal position on some aspects of this case and in particular indicated that it would no longer be challenging that the equipment in use was a VDT but would be focussing on the meaning of the term “continuous” as used in article 9.5 and whether the work of the Corrections Officers met this definition. This letter clarified and confirmed discussions which had taken place at the hearing on May 3, 2005. As it was only at the time of the May 3rd hearing that the union became aware that the case would be taking a different focus, the request for the information on May 5, 2005, was clearly timely. The documents sought are a record of the activities of the persons working in the central control and pods and are relevant to the establishment of the “continuous” nature of this work. As such, they are arguably relevant.

In response to the Ministry’s submission that the production of these documents was prejudicial to the Ministry in terms of the cost and time required to produce them, counsel suggested that cost was irrelevant and that as the next hearing date was not until October 18, 2005, the employer would have plenty of time to get the documents together. As to the employer’s position that producing the data would require the disclosure of confidential or sensitive information, union counsel indicated that he was prepared to have the documents produced under strict conditions with regard to their use and disclosure. As an officer of the court, he indicated he would ensure that any restrictions were carefully adhered to.

At the hearing on May 13, 2005, when counsel for the Ministry requested an adjournment to prepare and call certain evidence with regard to the sensitivity of the data the union was seeking disclosed, I enquired as to what evidence he was planning to call. In particular, I put to counsel for the Ministry that if I were inclined to order production of the data to union counsel on strict terms to ensure that the confidentiality of it was maintained, what evidence he would call to indicate that this was not an adequate safeguard. He indicated that he did not know at that point what evidence he would be calling. As counsel for the employer was aware that the request for production of documents, which was made on May 5, 2005, was an issue to be dealt with at the hearing on May 13, 2005 and in light of the vague nature of the evidence which the employer might call with regard to the confidentiality of the data sought, I am not prepared to delay the decision on the union’s production request until October 18, 2005, which is the next day scheduled for the continuation of this matter.

I am satisfied, and in fact the parties agreed, that the test for the production of documents is that of arguable relevance. While it is possible that in certain circumstances it may be appropriate to adopt a different standard, the unique circumstances that could engender such a reassessment of the appropriate test to apply do not exist in this case. After careful consideration, I conclude that the documents or data sought by the union in this case meets the test of arguable relevance.

Given the way in which this case has evolved over time, the fact that we have not yet commenced hearing evidence on the merits of this case and that the next day of hearing is scheduled for October, 2005, I also do not accept the position of the Ministry that the union’s request for production is untimely or unduly prejudicial to the employer.

Although I accept that we are dealing with documents that are sensitive and may contain highly confidential information, I am satisfied that the information contained in them can be protected by making their production subject to a number of orders intended to restrict the use to be made of the documents and the number of individuals who may have access to them. Union counsel is very experienced and in his submissions indicated that as an officer of the court he was well aware of his responsibility to keep any data disclosed to him confidential, should I order him to do so. I have absolutely no reason to believe that should I order the disclosure of sensitive records and other data to counsel for the union and one advisor, over whom counsel’s mantle of responsibility extends, that this gives rise to any security concerns.

The union has requested that the records set out in the letter dated May 5, 2005, be provided for the period covering the two weeks prior to and the two weeks after December 19, 2003. That is a one-month period of time. Counsel for the Ministry has indicated that the data produced over a month would be voluminous. It is not clear to me at this point that such a long time frame is actually necessary. To meet the concerns expressed by the Ministry, I am prepared at this point to reduce the period of time for which the records need be produced to a seven-day period. If after the data has been reviewed by counsel for the union he is of the view that the data received is insufficient, we can look at this issue again. Counsel for the union can pick the one-week period he feels is representative of the work performed and advise counsel for the employer.

Therefore, to ensure the confidentiality of the records and data requested by the union in this case, I am prepared to make this production order subject to a number of specific conditions. I agree that this is necessary to ensure as much as is possible that the potentially sensitive information contained in them is protected.

Accordingly, I hereby direct the following restrictions be placed on any documents produced by the Ministry pursuant to this order:

(a) Any material disclosed to the Union shall be limited to the Union’s counsel and one advisor from the Union;

(b) Union counsel shall not photocopy the material he has been provided with, unless and until he obtains the agreement of counsel for the Ministry to do so.

(b) Any material so disclosed shall be used only for the purpose of this litigation and for no other purpose;

(c) Any person to whom the information is disclosed is ordered not to disclose it to anyone else except upon my further order;

(d) Upon completion of the litigation, the documents and other material disclosed to the Union shall be returned to the Employer, and all copies of the material which may have been made for the hearing shall be destroyed.

This matter will continue on previously scheduled hearing dates.

Dated at Toronto this 31^st^ day of May, 2005.