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 and Solicitors

HEARING

January 12 and 13, 2006.

Decision

1At the hearings of January 12 and 13, 2006 in this matter I gave certain oral directions with respect to the production of documents. Those directions were confirmed and elaborated in an order issued in writing on January 27, 2006, with reasons to follow. These are the reasons.

Background

The Grievances

2At the time of the events in question in these proceedings, the grievor, Tina Koonings, was a Customer Service Representative in the LCBO’s Private Ordering Department, which is part of the LCBO’s Logistics Facility. That department handles requests made by agents of manufacturers and suppliers of alcoholic beverages that the LCBO purchase and warehouse their principals’ products, in anticipation of resale by the LCBO to licensed vendors to whom the agents promote those products. Such agents must be licensed under the Liquor License Act, R.S.O. 1990, c. L.19.

3In August 2003 one of those agents, Lifford Wine Agencies Limited (“Lifford”), caused summonses to be served on the grievor and several other employees in the Private Ordering Department, requiring that they attend to testify at a hearing that scheduled by the Alcohol and Gaming Commission of Ontario (“the AGCO”) to consider proposals to revoke Lifford’s license. The grievor alleges that after she received such summons Mr. David French, the manager of the Private Ordering Department, threatened her that “If you tell the truth and if the LCBO in any way perceives that you are aiding the agent in their case, … your career at the LCBO will be history ... And [your] time in the Private Ordering Department would be made extremely difficult” and told her that “I would make a very, very strong recommendation for you ... I advise you that your idea of the truth should be the following sentences: ‘I don’t remember’ and ‘I don’t recall’.” The grievor testified to that effect before the AGCO in September 2003. The course those hearings took thereafter is described in Ontario (Liquor Control Board) v. Lifford Wine Agencies (2005) 2005 CanLII 25179 (ON CA), 76 O.R. (3d) 401 (Ont. C.A). In October 2003 the grievor filed the first of the nine grievances now before me, which is focused on this alleged misconduct by Mr. French.

4The second grievance concerns an allegation that in December 2003 the employer filled a position for which the grievor had previously competed unsuccessfully, without conducting a fresh competition.

5The next six grievances were filed in July 2004. In them, the grievor complained that she had been harassed and discriminated against over a period of months by some members of management in the Private Ordering Department, and by bargaining unit employees whose behaviour management encouraged, approved or at least failed to restrain, and that the employer had not responded appropriately to her complaints about this harassment and discrimination. On her behalf the union alleges, among other things, that these acts and omissions by management were in reaction to the grievor’s having testified as she did in the proceedings before the AGCO, and was in furtherance of the threats she alleges were made to her in August 2003 by Mr. French, who had in the meantime had been moved to a higher management level in the Logistics facility.

6The last of the grievances before me challenges management’s decision in January 2005 to suspend the grievor for a month and transfer (or, as the union would say, demote) her out of the Private Ordering Department into a position in a retail store. The stated reasons for imposing the suspension and effecting the transfer were that she had “initiated complaints against managerial and bargaining unit employees which have no basis at all,” had pursued complaints “with malice and for an improper purpose” and had “chosen to abuse the grievance process in order to harass and intimidate LCBO employees”, and that these actions, and her other allegations against and conflicts with management over the years, had made her continued employment in the Private Ordering Department or elsewhere in the LCBO’s head office environment untenable.

These Proceedings

7On the first day of hearing the parties were in dispute about the order of proceeding, and there were issues about the production of documents. Although there had already been some exchange of information and documents between counsel, I ordered that each party deliver to the other written particulars of the allegations of fact on which it relied and copies of any documents in its possession, custody or power on which it might wish to rely in the hearing. Any question of compelling production by a party of documents other than those on which it might wish to rely was expressly postponed. This was because, as I told counsel orally at the time, determinations of the arguable relevance of any such documents could not be made without first knowing with particularity what facts were in dispute, and because the initial exchange of all documents on which each party wished to have the opportunity to rely would better inform the parties’ decisions about whether and what to what extent further production of documents might be needed.

8Delivery of particulars and relied-upon documents occurred on an agreed-upon timetable that concluded about a week before hearings resumed on December 5 and 7, 2005. During those hearings union counsel said he thought employer counsel had represented to him that the documents already produced on behalf of the employer were all documents in its possession, custody or power that might be relevant to any of the issues in dispute. Employer counsel said that he had not made such a representation and was not in a position to make a representation to that effect.

The Union’s Request for Production

9On December 12, 2005, union counsel requested of employer counsel that the employer disclose to the union

all emails and/or other forms of communication and/or correspondence between LCBO managers and/or supervisors that in any way relate to Ms. Koonings.

Employer counsel responded that the LCBO did not agree to do so:

You are asking the LCBO to join with you in an unreasonable fishing expedition which it is not prepared to do. Nor, as you suggest, can such documentation be arguably relevant when the request is so broad, in terms of subject matter and chronology, as to be of no obvious relevance.

After some further telephone conversations, union counsel requested

disclosure of all arguably relevant emails and/or other forms of communication and/or correspondence between LCBO managers and/or supervisors that in any way relate to Ms. Koonings from August 2003 to date. For further clarity, this request does not include correspondence that is subject to solicitor-client privilege.

(emphasis added)

10Counsel could not reach agreement, and union counsel asked that I order the employer to produce all arguably relevant emails and/or other forms of communication and/or correspondence to or from (rather than just “between”) LCBO managers and/or supervisors that in any way relate to Ms. Koonings from August 2003 to date.

Argument

11Union counsel explained that he sought correspondence arguably relevant to the union’s allegations of harassment by management and/or the employer’s allegation that the grievor’s continued employment as a CSR in the Private Ordering Department was untenable. His position was simply that production of arguably relevant documents should be ordered in the circumstances.

12Employer counsel submitted that there is no equivalent in labour arbitration of the obligation of parties in civil litigation to produce all relevant documentation. While acknowledging that an arbitrator has the power to require a party to produce more than just the documents on which that party may wish to rely, he argued that an order of the sort sought by the union would unfairly put the employer in a position of having to assess relevancy, an assessment that he described as “subjective” and “potentially arduous.” He submitted that the union’s request was so broad as to constitute a “fishing expedition,” that the party seeking production was obliged to particularize its request more than the union had, and that there must be a nexus between the materials sought and the issues in dispute. He submitted that requiring broad production is contraindicated in labour relations matters, as it disrupts the workplace and creates a sense of unfairness. This is particularly so, he argued, because by contrast with civil litigation there is no provision in labour arbitration for an award of costs, so one party can put the other to the expense of broad production with impunity. He noted that in some cases grievors and trade unions make broad allegations of “bad faith” in which arguable relevance could cast a wide net, and that arbitral unwillingness to facilitate “fishing expeditions” should take this into account. Reference was made to McQueen, GSB #0383/97, (October 5, 1998, Briggs), Tone, GSB #2693/96 (September 22, 2000, Dissanayake), Re Laurentian Hospital and Ontario Nurses’ Association (1997), 1997 CanLII 25110 (ON LA), 67 L.A.C. (4th) 289 (Pineau), and Re Canada Post Corp. and Canadian Union of Postal Workers (Best) (1986), 1986 CanLII 6670 (CA LA), 24 L.A.C. (3d) 157 (Weatherill) for various statements of principle contained therein.

Analysis

13By virtue of section 2 of the Crown Employees Collective Bargaining Act (1993, S.O. 1993, c. 38), various provisions of the Labour Relations Act, 1995 (S.O. 1995, c.1, Schedule A, as amended – “the LRA”) apply to the proceedings of the Grievance Settlement Board, including subsection 12 of section 48. That subsection provides that

(12) An arbitrator or the chair of an arbitration board, as the case may be, has power, …

(b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;

The addition of that provision to the then Labour Relations Act in 1993 put an end to debate about whether labour arbitrators in this province have the power to compel pre-hearing production of documents by parties otherwise than pursuant to their power to issue and enforce a summons.

14Subsection 48(12) of the LRA does not oblige parties to make pre-hearing disclosure of documents in the absence of an order, as parties to civil litigation are obliged to do as a matter of course under the rules of civil procedure. In that respect employer counsel is correct that there is no equivalent of that obligation in labour arbitration proceedings. I do not agree, however, that an arbitrator’s imposing such an obligation, at an appropriate stage and in an appropriate manner, is somehow inimical to the purposes of labour arbitration or to the interests of good labour relations generally.

15Good labour relations require that the process for resolving rights disputes at arbitration be both expeditious and fair. Full pre-hearing disclosure of all arguably relevant documents advances that interest. In that regard I adopt the observations of arbitrator Germaine in British Columbia v. British Columbia Government and Service Employees’ Union, [2003] B.C.C.A.A.A. No. 150 at paragraph 48:

¶48 Pre-hearing production of relevant documents is consistent with the right of parties to a fair hearing and the process values of expedition and cost saving: Pacific Press Limited and The Newspaper Guild, Vancouver-New Westminster Guild, Local 115, (1983), 2 CLRBR (NS) 277 (BCLRB Decision No. 109/83). Fairness is advanced by assisting the parties to know and prepare for the case they must meet, and by avoiding unfair surprise at the hearing. Expedition and economy are served by minimizing the adjournments necessitated by unanticipated evidence at the hearing. These considerations, combined with the absence of any structured procedure in labour arbitration, recently persuaded a prominent arbitrator to take “a liberal view ... with respect to the production of documents”: Toronto District School Board and CUPE, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime), at page 31. The same considerations have been recognized specifically in relation to pre-hearing production of medical documents containing personal and private information: West Park Hospital and ONA (1993), 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160 (Knopf), at page 167; Stelco and U.S.W.A., Local 1005 (1994), 1994 CanLII 18600 (ON LA), 42 L.A.C. (4th) 270 (Dissanayake), at page 274.

That fairness favours full production is underscored by the decision of the Court of Appeal in Ontario (Liquor Control Board) v. Lifford Wine Agencies, supra, which held that the AGCO’s failure to compel production of documents at the request of a party to the proceedings (in that case by refusing to issue or enforce a summons duces tecum to a third party) amounted to a denial of natural justice.

16Expedition and fairness are not the only interests worthy of attention in matter of production of documents. Arbitrator Germaine’s award dealt with another common consideration: concerns about the privacy of personal medical information. As that award and others illustrate, such privacy concerns warrant care in assessing what might be arguably relevant, and caution in fashioning a pre-hearing production process that provides for disclosure only to those whose participation is needed in order to assess either arguable or actual relevance as those issues arise. The same may be said about other sorts of information that, while not privileged as a matter of law or policy, is so clearly confidential or private in the ordinary sense of those words that those to whom the information belongs have a legitimate interest in special protection from any more disclosure than is necessary, particularly before the documents have been found admissible and admitted into evidence in a public hearing. In that regard I remain of the view that any party who seeks an order for pre-hearing production impliedly undertakes not to make use of the information thus obtained except for the purposes of the proceeding in which the order was made: Re Thermal Ceramics, Division Of Morganite Canada Corp. and United Steelworkers (1993), 1993 CanLII 16811 (ON LA), 32 L.A.C. (4th) 375 (Gray) at p. 383. If in any case there is any doubt that such an undertaking is implied, then that limitation should be made express in the order for production. I did not understand there to be any such doubt here. Counsel seemed satisfied that they could resolve between themselves any concerns about having a pre-hearing production process that adequately protects commercial and personal interests in the privacy or confidentiality of non-privileged, arguably relevant documents.

17I considered the then recently enacted predecessor of subsection 48(12) of the LRA in Re Thermal Ceramics, supra. I concluded there that if a party has arguably relevant documents that it could be compelled by summons to bring to the hearing, it bears the burden of showing why it should not be ordered to produce those documents in advance if the opposite party requests. That award did not stand for the proposition that production should be compelled only for arguably relevant documents on which the producing party intends to rely, as was argued before arbitrator Briggs in Re Children’s Aid Society of the City of Belleville and City of Trenton and Canadian Union of Public Employees, Local 2197 (1994), 1994 CanLII 18707 (ON LA), 42 L.A.C. (4th) 259. She quite properly rejected that argument. My view was and is that arguable relevance is the test for determining the scope of pre-hearing production, subject only to claims of privilege and suitable constraints on who is to have access to the produced documents and on the use to which they may put the information in the documents.

18In Re West Park Hospital and Ontario Nurses’ Association (1993), 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160 (referred to in McQueen, supra) arbitrator Knopf wrote (at page 167)

… where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the board of arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the board should be satisfied that disclosure will not cause undue prejudice. In this regard, the criteria set out in the Desmarais v. Morrissette case are applicable in terms of weighing whether or not privileged information should be protected.

19It is not apparent to me, either from the West Park Hospital award or otherwise, what the “clear nexus” test adds to the “arguable relevance” test. Evidence must have a probative nexus with an allegation of fact that has been put in issue by one party and disputed by the other before it can be said to be arguably relevant. Evidence that is arguably relevant must of necessity have such a nexus with a disputed allegation of fact. Of course, it must first be apparent what factual issues are in dispute before one could apply either test. The arguable relevance enquiry, and hence an order for production, may be premature if the issues in dispute have not been clearly defined. That appears to have been the case in Re Laurentian Hospital, supra, where the arbitrator observed at page 299 that “This extensive request of documents represents a dilemma in the sense that the union has not yet put forward its ‘theory’ of the case which would allow me to judge the relevancy of the requested documents.”

20A “fishing expedition” is said to be an endeavour “not to obtain evidence to support [a] case, but to discover whether [one] has a case at all”: Canada Post, supra, at 57 L.A.C. (3d) 159. If one can have production only of documents arguably relevant to allegations of fact already put in issue in the case at hand, it follows that there cannot be production in aid of discovering a case not already asserted. Viewed in that way, the “no fishing expedition” test is really nothing more than a corollary of the arguable relevancy test. The difficulty with the “fishing expedition” metaphor, however, is that it may evoke irrelevant considerations, such as whether the party seeking production already has some evidence to support the allegations of fact it has put in issue. Although made in the context of a dispute about the propriety of questions asked on examination for discovery, the observations of Seaton, J.A. in Cominco Ltd. v. Westinghouse Canada Limited et al., (1979) 1979 CanLII 489 (BC CA), 11 B.C.L.R. 142 (B.C.C.A.) at p. 149 bear equal application in this context:

Counsel said that one cannot embark on a fishing expedition. I find little help in that statement. I take it that a fishing expedition describes an examination of discovery that has gone beyond reasonable limits into areas that are not and cannot be relevant. In those waters one may not fish. In other waters one may. That one fishes is not decisive, it is where the fishing takes place that matters.

21The law relating to summonses duces tecum is that such a summons should identify the documents sought with sufficient particularity to enable the summonsed witness to know what it is that s/he must bring to the hearing. “Bring all arguably relevant documents” is generally not enough, because summonses are addressed to individuals who are almost never themselves parties to the dispute, and who generally cannot be expected to know what issues are in dispute in the proceeding. A party, on the other hand, is entitled to particulars of the issues are in dispute, and once it has those particulars it is in a position to know what documents would be arguably relevant. The assessment required is not “subjective,” as employer counsel argued. It is not unfair to expect a party to perform that assessment, with the assistance of those who advise it with respect to its legal rights and obligations.

22The arbitral jurisprudence about production of documents is rich with debates about whether one party will be ordered to produce to the other all documents of a particular kind or class defined without express use of the qualifying words “arguably relevant.” When the issue is framed in that way it is necessary to determine whether a document’s being of the defined kind or class would be sufficient, without more, to make it arguably relevant. The definition used may fail that test if it is insufficiently particular. Accordingly, when one party seeks production from the other of all documents of a particular kind or class defined without express use of the qualifying words “arguably relevant,” the observation that the request must be particularized may be nothing more than identification of one of the logical consequences of the arguably relevant test. When more is intended by such a requirement, however, if it is intended as a restriction on access to documents that are otherwise arguably relevant (as those sought here must necessarily be, since the request before me is expressly limited to “arguably relevant” documents), then such a limitation is objectionable for the reasons given by arbitrator Shime in Re Toronto District School Board and Canadian Union of Public Employees, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 at pp. 32-33:

Some of the arbitration decisions require a requesting party to particularize the documents it wishes to have produced with some precision. However, while I acknowledge that parties to the arbitration process live together in a continuing relationship and know something about each other’s affairs, they cannot be expected to be fully aware of each other’s internal affairs. Given the general purpose for producing documents, where the knowledge of those documents lies, coupled with the minimal pre-hearing procedures in the arbitration process, and after considering where the onus to produce documents lies, it is my view, that while a request for particular documents may be helpful, the request for particulars should not be scrutinized too carefully for precision. Where a party is served with a general request to produce documents as indicated above, it must produce every document relating to any matter in issue which is seemingly or arguably relevant. Needless to say, I find that the civil rules make greater sense than the established arbitral rules, by requiring the party who has possession, power or control over the documents to produce them. To require a party who has not had possession, power or control over the documents, or who may not be completely aware of the documents or their contents to identify them with any precision or particularity seems contrary to common sense.

23In that award arbitrator Shime, a former Chair of this Board, compared the civil litigation and labour arbitration processes. He concluded that despite the differences between it and civil litigation, should be the same broad pre-hearing disclosure of “every document relating to any matter in issue that is or has been in the possession, control or power of a party” when either party to a labour arbitration proceeding requests it. I agree.

24I am not dissuaded from adopting arbitrator Shime’s view by the fact that parties to collective agreements almost invariably choose not to confer on arbitrators the power to award costs, nor by hypothetical concerns about the effect of trade union allegations of bad faith and the like on the scope of production.

25Unlike the vast majority of parties to civil litigation, the employer and trade union parties to labour arbitrations proceedings almost always have a continuing relationship. It might be argued that the existence of that relationship is, generally, at least as effective a constraint on litigious excesses as the threat of an award of legal costs is in civil litigation. In any event, I do not accept that when the parties choose not to confer on arbitrators a jurisdiction to award costs this carries with it some implication about the extent to which they can expect or be expected to make disclosure to one another of information pertinent to the resolution of disputes between them.

26An allegation of “bad faith” or the like by a union would be made in relation to management’s having taken or failed to take some particular action for legally improper motives. Before production of documents could be sensibly addressed in such a case, either by the employer or by an arbitrator, particulars of the acts or omissions complained of would be needed, from which it would become apparent which individual’s (or individuals’) motivation was in issue and during what time frame. It is not at all obvious that allegations of bad faith and the like of necessity make an obligation to produce arguably relevant documents limitless. In addition, it is hardly an objection to the doing of justice that its requirements may be burdensome.

27Although less onerous that the test for admission into evidence, the arguable relevance test does have limits. It does not require production of documents which could have no probative value with respect to a disputed fact, either alone or in combination with any other testimonial or documentary evidence the party seeking them intends to adduce. Evidence with no possible probative value can have no relevance. It may be consistent with fairness and natural justice to delay or reject an application for production of documents for which an extensive and expensive search would be required if it appears that the documents sought are of such marginal probative value that to compel a search for them would be oppressive. I leave that question to another occasion. It did not appear to arise here.

28Although I do not accept that particularization by the requesting party is a prerequisite to production independent of the implications of the “arguably relevant” test, I do agree that when framing an obligation to produce documents other than those relied upon by the producing party it is desirable that the scope of the obligation be made as clear as possible. In this regard I reiterate some of the observations I made in Re Thermal Ceramics, supra, at pp. 379-380:

The subsection confers or confirms powers, but does not dictate how those powers are to be exercised. Their exercise should be guided by the evident intent of the Act that the arbitration of disputes under collective agreements be as expeditious a means of resolving those disputes as it can be without being an unfair one. The parties to proceedings in civil courts have the right to particularized pleadings, production of documents and pre-trial discovery of opposite parties. Much attention is focused on the scope of the parties’ corresponding obligations in that regard. Much argument is had over whether those obligations have been met. And a hearing on the merits of the parties’ dispute does not proceed in that forum until those obligations and any disputes about them have been met and resolved. In the result, the average piece of civil litigation proceeds at a rather slower pace than can be and generally is achieved in the arbitration of collective agreement disputes. No doubt that has something to do with why the legislature chose not to burden the grievance arbitration process with mandatory pre-hearing proceedings of the sort available by right in civil litigation.

The legislature has left it to the arbitrator charged with deciding a collective agreement dispute to judge whether and to what extent there should be any compelled pre-hearing exchange of information. In my view, one of the considerations to be taken into account in making that judgment is the possibility that an order intended to expedite the hearing and disposition of the matter may have the opposite effect. Once there is an order compelling a party to do something it has not agreed to do, there is then the possibility of disputes about what the order means, how it applies to unanticipated circumstances, whether it has been complied with and what the consequences of non-compliance should be. The resolution of such disputes may consume the very hearing time and expense which the order was intended to save, and more, without advancing the resolution of the underlying dispute even as much as it would have been had no order been made. That will not always be so, but it is a risk which must be weighed against the possible benefits of a more structured and onerous pre-hearing disclosure process.

This is not to say that enabling one party’s access to arguably relevant documents in the possession of the other is in some the sense optional. The challenge in exercising jurisdiction under subsection 48(12) of the LRA is to enable access while minimizing the possibility of subsequent distracting and unproductive disputes about the scope of the obligation initially imposed. When the initial request is baldly framed as “all arguably relevant documents,” it is desirable that further particularization be attempted by the requesting party, by the responding party and, if necessary, by the arbitrator. Particularization “so there is no dispute as to what is desired” may not always be possible, however, and the mere possibility of dispute about what an order requires is not an objection to making it.

Decision

29My initial response to the union’s application was that the managerial communications concerning the grievor that were likely to be relevant in this matter were communications to or from individuals expressly identified in the parties’ particulars as having engaged in acts or omissions complained of by the grievor, including those involved in making the decisions complained of. I ruled first that written and email communications to or from each such person concerning the grievor should be produced for a period that was in each case sensible having regard to that person’s alleged involvement. I invited further submissions as to who those persons were and what time period was sensible in each case. I also invited submissions as to whether there were any members of management other than those mentioned whose communications might be arguably relevant.

30The ensuing discussion started with a list of the names of all individuals whose conduct had been put in issue in the particulars, including some bargaining unit employees. The names of all but one of those bargaining unit employees were removed in recognition that it was only communications between them and a listed manager that were likely to be relevant, and that the participation of the listed manager would make all such communications producible. Union counsel proposed adding two senior members of management to the list and offered a tenable basis for arguably relevance of any communications that may have passed between them concerning the grievor. I resolved the mostly minor differences between them as to the relevant periods, and ordered as follows:

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.

31Employer counsel sought an order for production by the union and the grievor of relevant documents. Once the terms of the order for production by the employer had been determined, counsel were able to agree in general terms on the scope of the order concerning communications to and from the union and the grievor, including provisions authorizing the employer to search email and other computer data and archives in its own possession, custody or control for communications to and from the grievor. I note particularly that I was not called upon to decide whether communications between the grievor and anyone at “Lifford Agencies or Miriam Rogers Agencies” would be arguably relevant. I prepared a draft fleshing out the mechanics of production and invited the submissions of counsel on the aspects of the draft that had not been expressly determined by me or agreed by the parties at the hearing. Taking into account their submissions, the balance of the formal order for production provided as follows:

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.