GSB# 2003-3101, 2003-3914, 2004-2011, 2004-2012, 2004-2013, 2004-2016, 2005-0085

UNION# OLB531/03, OLB016/04, OLB504/04, OLB505/04, OLB506/04, OLB509/04, OLB083/05

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (Koonings)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Ernest A. Schirru Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Richard J. Charney Ogilvy Renault LLP Barristers & Solicitors

HEARING

January 12 & 13, 2006.

Decision

By way of confirmation and elaboration of directions given orally at the hearings of January 12 and 13, 2006, in this matter, and for reasons to be issued at a later date:

1The employer is directed to produce to the union all arguably relevant email messages and other forms of written communication and correspondence relating to Tina Koonings that were sent by, on behalf of or to any of the following individuals during the period August 1, 2003 to March 31, 2005, inclusive (or as otherwise noted) of which an original or copy is in its possession, custody or power:

David French

Geoff Allaire

Mark Upton

Ron Bartucci

Maggie Plant

Ian Martin

Peter Cahill

Chris Martin (sent or received during the period May 11 2004 to December 31, 2004, inclusive)

The employer is also directed to produce to the union all arguably relevant email messages and other forms of written communication and correspondence relating to Tina Koonings that passed between Bob Peter and Murray Kane during the period August 1, 2003 to March 31, 2005, inclusive, of which an original or copy are in its possession, custody or power.

2The union is directed to produce to the employer all arguably relevant email messages and other forms of written communication and correspondence of which an original or copy is in the possession, custody or power of the union or grievor, Tina Koonings, that were sent by, on behalf of or to Tina Koonings during the period August 1, 2003 to March 31, 2005, inclusive. I note that the union and grievor have agreed, without admitting relevance, that the email messages and other written communications to be produced pursuant to this paragraph include email messages and other written communications between Tina Koonings and any principal, employee or representative of either Lifford Agencies or Miriam Rogers Agencies.

3The parties and the grievor are directed to promptly conduct appropriate paper and computer searches in order to comply with this order. Each arguably relevant document for which no claim of privilege is asserted is to be copied to counsel opposite or made available for inspection by counsel opposite and/or a representative of the opposite party. Documents for which any claim of privilege is asserted may be withheld from production to the opposite party pending resolution of any dispute in that regard, but the party making the claim shall provide counsel opposite with a list of all such documents including (for documents other than communications between the grievor or a representative of one of the parties and a member of the Law Society of Upper Canada acting on her or the party’s behalf) a description of each such document sufficient to uniquely identify it together with particulars of the surrounding circumstances on which the claim of privilege in respect of that document is based. Documents for which no claim of privilege is made are to be copied to or made available for inspection by the opposite party, and lists of documents for which such a claim is made are to be provided to the opposite party, on or before February 9, 2006 or such other date as the parties may agree.

4The grievor is obliged to promptly put the union in a position to comply with its obligations under the two previous paragraphs in so far as they relate to documents in her possession, custody or power.

5I am told that the employer’s IT staff are reluctant to facilitate a search of an employee’s workplace computer or his/her server-based LCBO email account data or any stored data relating to such an account, without some form of authorization or justification. For clarity, therefore, I note that this order authorizes and requires that the employer search any computer or machine readable data in its possession, custody or power in which there is reason to believe that copies of messages or communications referred to in paragraph [1] may exist.

6Further, the employer is entitled and authorized to search any computer or machine readable data in its own possession, custody or power in which there is reason to believe there may be copies of arguably relevant messages sent to or from the grievor at or from an LCBO email address (an address in the lcbo.com domain or any other domain used by the LCBO in its business) in the period August 1, 2003 to March 31, 2005, inclusive, including any communication of the sort described in the second sentence of paragraph [2] above. Since in that period email messages could have passed between the grievor at a non-LCBO email address and someone at an LCBO email address, the employer is also authorized to search any present or former workplace computer and any LCBO email account data of any employee named in the particulars exchanged by the parties in these proceedings, in order to locate arguably relevant email messages sent in that period pertaining to Tina Koonings. Each arguably relevant document located as a result of a search described in this paragraph is to be copied to or made available for inspection by the union, whether the employer intends to rely on it or not.