GSB# 2003-3766

UNION# 2003-0999-0034

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

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Fateh Salim Counsel Ministry of Government Services

HEARING

April 7 and May 8, 2006.

Decision

On December 19, 2003, the Union filed a grievance that stated:

The Employer has violated specifically, but not exclusively, Articles 2, 3, 9 and 21 of the Collective Agreement, with respect to the conduct, behaviour and actions of Ministry inspectors and investigators in the course of their investigations under Section 22 of the Ministry of Correctional Services Act.

By way of remedy the Union asked “that the Employer be directed to ensure that Inspectors/Investigators perform their respective duties within accepted professional guidelines and standards, while respecting individual Rights.”

Prior to the first hearing date in this matter, the Employer had requested particulars in correspondence on three occasions. The Union had asked the Employer for certain documents to be disclosed approximately a week before the hearing. Neither of these pre-hearing requests was met.

At our first day of hearing on November 3, 2004, after very brief opening statements, Ms. Gersht, for the Employer, and Mr. Leeb, for the Union, agreed that a further hearing day would be scheduled and in the meantime the Union would provide particulars to the Employer by December 31, 2004. The Employer would respond to the Union as to its view of the sufficiency of those particulars and then it would identify any further outstanding matters.

On January 6, 2005, the Union wrote to the Employer the following:

Further to the hearing on November 3, 2004, I am writing to provide particulars in the above matter.

As you know this grievance relates to the Union’s position that the Ministry causes investigations to be conducted in a manner that is improper, unfair and not in compliance with the requirements of natural justice, procedural fairness or generally accepted standards governing the conduct of investigations.

In general terms, I can advise that it is the Union’s experience that investigators appear to reach their conclusion(s) well before completion of an investigation and then use extremely heavy-handed and unfair techniques to obtain evidence that corroborates the conclusion(s) they have reached. Furthermore, there is an overwhelming propensity to find fault with the conduct of bargaining unit members while the conduct of non-bargaining unit persons is rarely criticized.

It is the Union’s position that examples of the Ministry’s failure to comply with the requirements of natural justice, procedural fairness and/or generally accepted standards governing the conduct of investigations include the following:

1. Interviewees may be threatened with discipline up to dismissal if they do not alter their version of events.

2. Interviews may last excessive periods of time, e.g. 9 – 12 hours.

3. The Ministry does not use appropriate staff and/or resources to ensure that interviews can be conducted expeditiously thereby prolonging interviews.

4. Representatives of interviewees are threatened with discipline if (s)he attempts to speak during an interview.

5. Interviewers may use obscene, provocative, threatening and abusive language during the course of the interview.

6. Interviewers purposely misrepresent the statements of other persons to influence and/or obtain a statement from the interviewee that may not otherwise be provided by the interviewee.

7. Interviewers taint the interview process by advising interviewees that, for example, “clear and compelling evidence exists” as to establishing a certain fact or facts before the interviewer has completed the investigation and/or is in a position to make findings about the event(s) in question.

8. Interviewers make premature conclusions – and so advise interviewees – and further state that they are simply in the process of gathering evidence to confirm their conclusion(s).

9. Interviewers employ an unreasonably expansive definition of what constitutes obstruction of an investigation for the purpose of controlling interviewees and/or their representatives.

10. Interviewers routinely badger interviewees by repeatedly posing the same question independent of the number of times an interviewee provides an answer to the question.

11. Non-bargaining unit employees are treated differently by investigators both in the course of an interview and in respect to findings made in Investigation Reports. For example, reports relating to bargaining unit personnel may contain biased and/or inflammatory language when describing the event(s) and/or conduct in question.

12. In addition, reports relating to bargaining unit personnel may not be complete in that exculpatory and/or other favourable information is deliberately not included. For example, when an inmate is interviewed and his/her statement is relied upon, little or no attempt may be made to assess the inmate’s credibility, nor is information provided as the inmate’s criminal record. In other circumstances, investigators fail and/or refuse to interview potential key witnesses.

13. Interviewees who “co-operate” with investigators are promised a favourable assessment of any misconduct they are found to have committed in exchange for making potentially damaging statements regarding others.

To be clear, the grievance pertains to Level 1 investigations conducted pursuant to s. 22 of the Ministry of Correctional Services Act (“Act”). It is the Union’s understanding that IIU investigations are also conducted pursuant to the Act and therefore are included in the purview of this proceeding. In the event that it is the Ministry’s position that IIU investigations are not conducted pursuant to the Act please do so in writing.

Please be advised that while every effort has been made to ensure that particulars are complete to the extent of the Union’s and grievor’s knowledge at this time, the Union reserves the right to amend and/or supplement its particulars.

Finally, please be advised that I will be forwarding an additional disclosure request in the near future.

Thank you for your attention to the foregoing. If you have any questions please do not hesitate to contact me.

On February 25, 2005, Mr. Sean Kearney, for the Employer, wrote to the Union making clear that the above correspondence fell far short of the Union’s obligation to provide particulars. In part the Employer wrote:

First, with respect to the issue of particulars, your letter of January 6, 2005, merely serves to illustrate that the union will continue in its blanket refusal to provide any such detailed particulars despite Vice-Chair Briggs’ clear directives in this regard. In addition to the directives, it is trite law that the union is obliged to provide detailed and specific particulars in advance of arbitration proceedings. The Employer certainly has a right to receive the detailed information necessary to both adequately respond to the grievance itself and any disclosure requests by the union. To re-iterate what the Employer requested in writing on October 28, 2004:

In response to your letter, the Employer requires detailed particulars of the grievance including the specifics of how, when, where and by whom, the Ministry investigators/inspectors (including without limitation, the dates names and specifics of the allegations) are alleged to have breached the collective agreement, including articles 2, 3, 9 and 21. The Employer requires particulars of who, when, where, by what means, the inspectors and/or investigators are alleged to have violated the collective agreement articles 2, 3, 9 and 1, in their conduct, behavior, and actions (including without limitation, the dates names and specifics of the allegations). The employer requires particulars including who, when, where and by what means, dates and specifics of how the investigations are alleged to be conducted in an unfair, improper manner and who, when, where and by what means, including names and dates, the conduct of the investigations is alleged to have not been in compliance with natural justice, procedural fairness or generally accepted standards governing the conduct of investigations. The Employer also requires particulars of what generally accepted standards the Union relies upon.

Your January 6 letter has simply provided more vague and unsubstantiated allegations containing little or no specificity. Indeed, there is not one reference to a specific incident or event, only speculation and self-serving innuendo. Furthermore, the union even seeks to reserve its right to amend or add “particulars” later on in the proceedings. So, it is abundantly clear that the union wishes to proceed in a manner that is wholly inconsistent with relevant arbitral jurisprudence and fair process. Consequently, it remains the Employer’s positions that the “particulars” provided on January 6 are woefully deficient and are in no way assistive to this process. The Employer requires proper detailed particulars and full disclosure of any and all documents that are arguably relevant to the allegations being made by the union, including witness statements, will says, occurrence reports, notes, etc.

On March 16, 2005, the Union wrote to Mr. Jodhan, for the Employer, with a lengthy request for disclosure. Eighteen specific investigations were identified by name and institution. For each of those investigations the Union asked for various documents such as witness statements, notes taken, any documents obtained or created by the investigators, copies of correspondence between “any ministry or agency of the Crown and the investigator”, directives, guidelines and instructional material used to train investigators. Other material was also requested.

The second day of hearing was held on April 1, 2005. At that time the Union provided a somewhat more fulsome opening statement. However, from the Employer’s point of view those comments did not assist in its need for particulars. It was apparent that the parties were of disparate views as to the order of proceedings. The Union was of the view that its disclosure request should be provided while the Employer asserted that it needed specific particulars before it could provide any disclosure in this matter. After hearing from the parties I met with the parties to attempt to resolve this matter. The Union indicated to me that it felt it could not provide some of the details requested by the Employer because some of the facts it intended to rely upon came to its attention during the litigation of other files and, in the past, the Employer had objected to the Union introducing facts in one matter that were obtained in another. I spoke with the Employer about this concern and ultimately it was agreed that the Employer would not raise such an objection in this matter. At the conclusion of the mediation I recalled the parties into the hearing room and read to them my understanding of their agreement. Both parties agreed that we would proceed as follows:

1. The Union will write to the Employer confirming that it was agreed that the Union can rely on documents that it obtained in other proceedings for particulars.

2. Accordingly, further particulars will be provided.

3. The Employer will then assess sufficiency of particulars and notify the Union and the Vice-Chair of that view.

4. The Employer will also specify any outstanding disclosure issues and/or concerns.

5. The parties will attempt to resolve further particular and/or disclosure issues and if needed the Vice-Chair will be asked to get involved.

6. The Vice-Chair is to be copied on all correspondence.

7. The Union is to suggest alternatives to traditional litigation for the Employer’s consideration.

I was next contacted for a conference call which took place on August 4, 2005. Unfortunately the parties had not sent to the Board their correspondence as agreed and the issue of particulars and disclosure remained outstanding. In the meantime the Union had again written to the Employer on June 20, 2005, regarding further particulars. In that letter the Union identified nineteen investigations along with a list as to which of its earlier stated concerns (as set out in its January 6, 2005 letter) applied to each investigation along with a comment as to whether disclosure was required. For example, the Union said that for a specific investigation that took place at the Windsor Jail, the “Nature of Concerns” for the Union was numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, and 13. Of the nineteen listed investigations, disclosure was needed for nine of the nineteen.

Shortly thereafter the Employer wrote to the Union indicating that the Union’s letter of June 20, 2005 did not provide the “particulars as discussed on our last day of hearing before Vice-Chair Briggs.” In its letter of July 7, 2005, the Employer wrote, in part:

We are again requesting the particulars required for us to adequately prepare our case. I have attached two decisions that outline the minimum amount of information that must be provided in order for a party to be in a position to properly prepare its case. The following is an excerpt of the Ross decision.

These written particulars are to include not merely legal conclusions but, in addition, facts upon which the union and grievor assert support such conclusions and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when where, by what means and by whom and, to the extent motivation may be a relevant factor, with what motivation.

During the August 4, 2005 conference call, a proposal for proceeding was discussed and both counsel agreed to seek instruction from their clients. It became apparent when a further hearing date was requested that this proposal was not agreeable to the parties.

Two days of hearing were devoted to the matters of necessary particulars and disclosure. There may be other preliminary matters such as a consolidation request and an objection regarding arbitrability to be addressed at a later date.

UNION SUBMISSIONS

It was conceded by the Union that the grievance is broadly worded. However, it clearly puts at issue the method in which the Employer acts regarding its obligations under Section 22 of the Ministry of Correctional Services Act (hereinafter referred to as “the Act”). Since the first hearing date into this matter the Union has met its obligations to provide particulars to the Employer. Indeed, the Union has done everything possible to accommodate the Employer’s concerns. It is now appropriate that the Employer provide the properly requested disclosure.

Mr. Leeb asserted that the Employer is attempting to put “the cart before the horse”. It is acceptable that an Employer can seek clarification regarding identification of the issues in the face of a broadly worded grievance. However, once the Union has identified the issue then it is up to the Employer to provide the requested disclosure. After the Union receives the requested documents it can then fully particularize its case.

It was contended by the Union that if the Employer were correct in this matter both Unions and grievors would potentially be barred from bringing matters before a Board of Arbitration. The Union ought not to be prevented from carrying a matter forward because it failed to particularize an issue when it is the Employer who possesses all of the necessary information.

The Union suggested that in the present Collective Agreement between these parties it is clear that there is a positive obligation upon the Employer to provide disclosure of information at the earliest stages. Article 22.14.5 states:

The parties agree that at the earliest stage of the grievance procedure either party upon request is entitled to receive from the other, full disclosure.

The test for determining whether to order disclosure is whether the Employer is in a position to respond to the Union’s request. The Union rejects the Employer’s view that it is entitled to a precise factual foundation of the matter at hand. The Union is obligated to provide “bits of detail”.

The Union relied upon Re The Crown in Right of Ontario (Ministry of Community & Social Services and Ontario Public Service Employees Union (Watts) (Stewart) GSB#1340/90; Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU (Arnold) (Dissanayake) GSB#255/91; Re The Crown in Right of Ontario (Ministry of Community Safety & Correctional Services) and OPSEU (Lariviere) (Dissanayake) GSB#2202-2124 and 2202-3017; The Crown in Right of Ontario (Toronto Area Transit Operating Authority) and Amalgamated Transit Union (Blake et al) (Shime) GSB#1276/87; Re Toronto Electric Commissioners and CUPE, Local 1 (1994), 1994 CanLII 18724 (ON LA), 45 L.A.C. (4th) 248 (Solomatenko); Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1985), 1985 CanLII 5461 (ON LA), 21 L.A.C. (3rd) 346 (Saltman); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services & OPSEU (Lake) (Brown) GSB#2003-2874; Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Simon et al) (Mikus) GSB#1390/00; Re Minister of Health for Ontario v. Wilston et al (1976), 1975 CanLII 440 (ON HCJ), 11 O.R. (2d) 631; Re Fanshawe College and OPSEU (Kovari) (January 25, 2006) unreported (H. D. Brown); Re Toronto District School Board and CUPE, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime); Re Children’s Aid Society of City of Belleville, County of Hastings and City of Trenton and Canadian Union of Public Employees, Local 2197 (1994), 1994 CanLII 18707 (ON LA), 42 L.A.C. (4th) 259 (Briggs); Re Winchester District Memorial Hospital and Ontario Nurses’ Association (1989), 1989 CanLII 9368 (ON LA), 8 L.A.C. (4th) 342 (Bendel); and Re Obonsawin v Canada 2001 CanLII 28431 (ON SC), [2001] O.J. No. 369 (Ontario Superior Court of Justice) Epstein J.

The Union urged the Board to look at the jurisprudence outside the Grievance Settlement Board. The courts have found that there is a two-fold test for particulars. The respondent must be able to prove to the court that it does not have the information itself and it must be able to show that the information is needed in order to establish a defense. That two fold test has been met by the Union in this matter.

Mr. Leeb anticipated that the Employer would argue that this matter is well established law at the Grievance Settlement Board. In Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Union Grievance) (Mikus) GSB#2002-2260, the Union was grieving that the Employer had violated the Collective Agreement “in regards to the occupancy loads within the Hamilton-Wentworth Detention Centre.” It appears from the decision that the Union made no effort to particularize the matter at issue to the extent that they did not identify the time frame of the allegations. The Union stated that largely agrees with the decision of Vice Chair Mikus. The difference between the facts before Vice Chair Mikus and the matter at hand is that here the Union has provided sufficient particulars. In other words, the Union has met the standard set out by Vice Chair Mikus in her decision and therefore it is now appropriate for the Employer to disclose the documents. The Union set out its allegations in its January 6, 2005 letter to the Employer. The Employer cannot assert that it does not know what the allegations are. It was given a list of thirteen allegations and it is not incumbent upon the Union to provide intricate detail of each allegation. The purpose of particulars is to allow the Employer to know the case it has to meet. There is sufficient information been provided by the Union for the Employer to defend itself against the allegations and to know what it should provide by way of disclosure.

It was submitted by the Union that the Employer is asking for far more detail than it is entitled to at this point in the proceedings. In Re Simon et al (supra) Vice Chair Mikus articulated a concern that requests for particulars can bring about disputes which detract from the merits of the case. That is precisely what is at play in this matter.

The Union asserted that it is for these reasons, it is appropriate for this Board to order the disclosure of the arguably relevant documents set out in the Union’s earlier correspondence.

EMPLOYER SUBMISSIONS

Mr. Salim, for the Employer, reminded the Board that the Union conceded that the grievance was a broad statement of allegation. Indeed, the Employer could not possibly know the case that it has to meet by reading the grievance. This inability has not been alleviated by the limited information that has been provided by the Union since the filing of the grievance.

The Employer noted that there have been approximately ten distinct requests for particulars made to the Union and yet there is still insufficient information for the Employer to ably defend itself in any future litigation. It was suggested that given this history there has been an abuse of process as a result of the Union’s continual refusal to provide the particulars as requested.

Mr. Salim stated that the Employer needs particulars so that it is aware of the case it must meet; to ascertain the arguable relevance of the documents requests; to ascertain whether this Board has the necessary jurisdiction to deal with the issue; and to determine whether there are other preliminary issues for this Board to address.

The Employer urged this Board ought not to look further than the well established law of the Grievance Settlement Board regarding the matter of particulars. It was suggested that the Union, in its submissions, virtually asked this Board to ignore the Board’s earlier case law on this matter and adopt a broader interpretation that is more to the Union’s view. To do so would be counter-productive to labour relations and wrong.

Mr. Salim submitted that, given the Union’s view that this Board should make an order that is contrary to the Board’s jurisprudence, it is appropriate to review the jurisprudence on issue estoppel. The three conditions for issue estoppel are same parties, same issue and the presence of a final and binding decision on the outstanding issue. There is no question that each of those conditions has been met in this case and therefore this Board should apply the now trite law to the facts at hand. There can be no doubt that the Grievance Settlement Board has decided the duties and obligations concerning the need to particularize. This Board must order the Union to provide particulars.

The Employer relied upon Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Simon et al) (Mikus) GSB#1390/00; Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Pickett/McCormick/Holden) (Harris) GSB#1001/99; Re The Crown in Right of Ontario (Ministry of Education) and OPSEU (Esmail) (Gray) GSB#2002-2533; Re The Crown in Right of Ontario (Ministry of Public Safety and Security) and OPSEU (Union Grievance) (Dissanayake) GSB#2113/02; Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Ross) (Herlich) GSB#2690/96; Re United Association of Journeymen and Apprentices of the Plumbing Industry of the United States and Canada, Local 46 v. Vitullo Bros. Plumbing Co. Ltd. [1995] O.L.R.D. 3153; and Re Toronto (City) v. Canadian Union of Public Employees – Local 79 2003 SCC 63, [2003] 3 S.C.R. 77.

The Employer contended that the Union failed to provide any rationale or “exceptional circumstances” for departing from the Board’s jurisprudence regarding the issue of particularization.

The Employer also reviewed the Board jurisprudence regarding the extent of particulars needed at this point in the proceedings. Again, in this regard the Union has fallen short of its obligation.

It was urged by Mr. Salim that it would be premature for the Board to order disclosure at this point given the lack of particulars. It may be that there is little issue regarding the matter of appropriate disclosure once the Employer has received and reviewed the Union’s particulars. It is difficult for the Employer to make even that determination given the lack of information before it at the present time.

UNION REPLY

The Union submitted that the Employer has only one decision in its favour and that is Re Ministry of Community Safety and Correctional Services (Union Grievance) decided by Vice Chair Mikus. This Board can revisit and should re-visit the broad interpretation of that decision. There are articulated criteria allowing such a review as set out in Re Blake. Additionally, the Board has the authority to do so as set out in Section 48 of the Ontario Labour Relations Act. As a general statement of law the Union questions whether in every fact situation there must be particularization before disclosure. The decisions of Vice Chair Brown would seem to suggest otherwise. In any event, the Union has met the obligations set out by Vice Chair Mikus.

EMPLOYER REPLY SUBMISSIONS

In its final reply the Employer asserted that the case as issue is not a simple one that involves one or two individuals. The Union’s allegations involve many institutions and investigations that involved many people over a considerable period of time. It is very clear that the Union has not met its obligations as set out by Vice Chair Mikus.

DECISION

The Union suggested that the only decision from the Grievance Settlement Board upon which the Employer can rely is the Ministry of Community Safety and Correctional Services (Union Grievance) decision issued by Vice Chair Mikus. I must disagree. The Grievance Settlement Board has issued a number of decisions and orders regarding the matter of particulars and disclosure. Indeed, I understand why the Employer took the view that this is a matter of settled law at the Grievance Settlement Board. Having said that, I am also of the view that the law continues to evolve as new and previously unidentified issues arise but that does not detract from the now established Board jurisprudence.

It is useful to review the Board jurisprudence provided by counsel in this regard. The Employer contended that such an analysis will reveal that the Board now has an expectation that sufficient particulars must be provided in the first instance.

In Re Simon et al (supra), Vice Chair Mikus had before her an individual grievance that was once part of a group grievance that alleged “prolonged systemic discrimination, harassment, anti-union animus and poisoned work environment”. One of the issues addressed in her decision was the matter of particulars. She referred to an earlier decision of the Board by Vice Chair Gray (Re The Ministry of Health & OPSEU (Damani) GSB#1581/95 that ordered the Union to “provide employer counsel with the written particulars of the facts that it and the grievor say demonstrate the discrimination alleged. With respect to each act or omission alleged, the union particulars shall indicate what was done or not done, when, where, by what means and by whom. The union shall also provide particulars with respect to the grievor’s 3 month sick leave in 1995 and the connection between it and the alleged discrimination”. She also took into account another decision of Arbitrator Gray (Re Thermal Ceramics, Division of Morganite Canada Corp. and United Steelworkers (1993), 1993 CanLII 16811 (ON LA), 32 L.A.C. (4th) 375 regarding a more general concern that once specific orders are written by Boards of Arbitration, 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.” It was worried that such orders might well prolong the litigation rather than benefit the process. In Re Simon et al, there had already been one order issued regarding the matter of the need to provide particulars. Further, it is apparent from the decision that there had been much discussion between the parties about the facts during the course of mediation sessions. Indeed there had already been “a voluminous exchange of documents which has included enough information about the alleged incidents and the parties involved in those incidents for both parties to proceed to hearing”. She noted that the Union had provided to the Employer “details regarding specific incidents concerning named individuals.”

In Re Ross, Vice Chair Herlich had 26 grievances filed by one individual before him. As a preliminary matter he was asked to hear and determine “some outstanding issues relating to particulars and production of documents.” He ordered the Union to “provide particulars of the facts on which it and the grievor rely, specifically with respect to grievances alleging discrimination, unfair treatment or other generalized allegations. These written particulars are to include not merely legal conclusions but, in addition, the facts which the union and the grievor assert support any such conclusion and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant fact, with what motivation.” The Union was also ordered to produce any documents on which it and the grievor intended to rely.

In the March 13th 2003 decision of Vice Chair Dissanayake, the Union had grieved that the Employer had violated various provisions of the Collective Agreement “with regards to the vacation protocol.” The Union was asking the Board for interim relief regarding the vacation protocol and the Employer argued that there were insufficient particulars to allow it to defend itself in the application for interim relief. It was ordered at page 2:

Having regard to the fact that the particulars sought are in relation to an application for interim relief, and having considered the submissions of the respective counsel, as well as the legal authorities cited it is ordered as follows:

1. The union shall provide the employer with written particulars as to each and every violation of the collective agreement and/or statute it relies on to establish an arguable case in support of its application for interim relief. As part of these particulars, the union shall set out each provision alleged to be violated; which acts and/or omissions resulted in each alleged violation; and when, where, and by whom (if the allegation is directed to an individual (s)) the alleged violation was committed.

2. The union shall provide to the employer particulars of each circumstance it intends to rely on to establish the adverse impact it says will result, if the interim relief sought is not granted.

3. The union shall provide to the employer particulars as to the facts it relies on to support its estoppel argument. This shall include particulars as to what representations (conduct or statements) were made, by whom, to whom, and when; what detriment it suffered as a result of reliance on such representation.

Those specific particulars are ordered as of a certain date and Vice Chair Dissanayake then ordered the Employer to provide its particulars two weeks later.

In Re Pickett et al Vice Chair Harris was asked by the Employer to dismiss portions of the grievance before him, or, in the alternative, to disallow the Union from presenting certain evidence regarding allegations because of its failure to sufficiently particularize the facts of the case. In his interim order, the Vice Chair notes that the matter before him is similar to Ross and Simon et al. because it included allegations of discrimination, harassment and a poisoned work environment. He noted that such allegations need a broad scope of evidence but commented that in Re The Crown in Right of Ontario (Ministry of Finance) & OPSEU (Klonowski et al) it was found that claims of discrimination should not be developed as a case proceeds but should be particularized in a crisp and clear fashion. Vice Chair Harris ordered the union to provide “particulars of the facts upon which it intends to rely in form set out in Ross above.”

In the March 31, 2004 decision of Vice Chair Mikus, relied upon heavily by the Employer in the instant matter, the Board was considering a grievance that alleged only that two specified articles of the Collective Agreement were violated “in regards to occupancy loads within the Hamilton-Wentworth Detention Centre.” Full redress was requested. Vice Chair Mikus had before her a request for disclosure as well as a request for the matter to be further particularized. In her decision it was said at page 4:

This preliminary issue has been the subject of much litigation. The questions of what a party must provide to the other party before a case can proceed is of critical importance to a party in determining how the case is to be presented or, whether it ought to proceed at all.

The collective agreement recognizes the importance of each party knowing in advance the case it must meet and has addressed that mutual need in Article 22.14.5 of the collective agreement. There is a reciprocal duty to provide that information. The collective agreement does not, however, define what must be disclosed to the other, for obvious reasons. It depends entirely on the pleadings. If specific facts are provided in the grievance, the collective agreement requires the Employer to respond to those facts. There is no dispute between the parties on that issue. The dispute lies in each party’s interpretation of the meaning of the word “particulars”.

The test for disclosure of information during the grievance procedure has been set out in previous decisions and approved and applied consistently. That test is set out in Children’s Aid Society (supra) at page 262 as follows:

…Those criteria are that the requested information must be arguably relevant, must be particularized clearly to avoid later disputes, cannot be a “fishing expedition”, and must be clearly connected to the dispute at hand. Finally, the production of the information requested should not cause undue prejudice.

The issue in the instant case is whether the allegations have been particularized sufficiently to put the Employer on notice of the facts giving rise to the grievance. The Union has made a sweeping allegation that overcrowding at the Hamilton-Wentworth Detention Centre is a violation of the Management Rights and Health and Safety and Video Display Terminals provision of the collective agreement. It now asks the Employer to provide information concerning the decision making process that established the capacity of the facility and the steps it took to alleviate the overcrowding.

It seems to me that before the Union can expect that information, it must provide the Employer with more particulars concerning its allegations. The Employer is entitled to know when the alleged overcrowding took place, where it took place, who was involved and how it relates to Articles 2 and 9 of the collective agreement. Once the Employer knows those elements of the Unions case, it can determine what information it should provide the Union.

For these reasons the Union’s request for disclosure is denied at this time. The Employer’s request for particulars is allowed. The Employer conceded its duty to provide disclosure and had agreed to do so after it receives the particulars from the Union. If the parties have further difficulty in determining what particulars or disclosure is appropriate, I remain seized.

Vice Chair Gray issued an order regarding particulars in Re Esmail. He ordered both parties to do so. Specifically he ordered the Union to provide “written particulars of all of the allegations of fact on which it relies in this matter, together with copies of all documents in the possession, custody or power of the union or the grievor on which the union may wish to rely in support of its allegations. He then ordered the Employer to do the same a month after receiving these particulars and, to the extent that there are matters not addressed by the Union, to provide any additional particulars. He also stated at paragraph 4:

With respect to each of the acts and omissions alleged therein, each party’s written particulars shall indicate what was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. It is not necessary for a party to include in its particulars a description of the evidence by which it will seek to prove the facts alleged. The allegations of fact in a party’s particulars should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit the truth of all of the allegations of fact therein.

Vice Chair Gray further said at paragraph six that “a party who fails to produce a document or provide particulars of an allegation of fact in accordance with this order may not introduce that document or testimony about that allegation into evidence in these proceedings without leave.”

As in Re Gareau, it has happened at the Grievance Settlement Board that a request for further particulars will be denied. Vice Chair Abramsky found that “the grievance, the December 2, 2004 letter and the documents reveal the “who, what, where, when and how of the allegations” were sufficient for dealing with the interim motion before her.

In my view, I am bound by the decision in Re Blake et al to follow the Board jurisprudence. While I accept that there may be “exceptional circumstances where an earlier decision of this Board might be reviewed”, there is nothing in the present circumstances that would cause me to do so. It is apparent that all of the above cited Grievance Settlement Board decisions consistently stand for the proposition that there is an onus on the Union to provide sufficient particulars prior to the triggering of the Employer’s obligation to disclose information. In some instances it might be that this onus is easily satisfied. The question of sufficiency of particulars will vary from case to case as will the issue of what constitutes appropriate disclosure.

In the instant matter, I am of the view that the Union has provided the employer with a general overview as to the theory of its case. However, it has fallen short of meeting its obligation to provide sufficient particulars. The grievance is very broadly stated and the Union’s two letters setting out some particulars were not enough. The only information that the Union has given the Employer is the name of the institution, a name that should identify the investigation that is at issue and the general allegations that will be addressed in the litigation. Unlike the facts in Re Gareau, the particulars provided to date do not reveal the “who, what, where, when and how of the allegations”. This Board has found in the past, and I am compelled to reiterate in this matter, that the Employer is entitled to that information.

Like other Vice Chairs before me I have no intention of issuing a detailed order of what, in my view would constitute sufficient particulars. As noted by Vice Chair Mikus, the parties are in a much better position to make that determination. However, I have no hesitation in declaring that the Union has not yet provided sufficient particulars to the Employer at this point in the proceedings. The Union has set out its broad allegations. For example, the Union told the Employer in its letter following our second day of hearing that some “interviewers purposely misrepresent the statements of other persons to influence and/or obtain a statement from the interviewee that may not otherwise be provided by the interviewee”. That information is not sufficient. The Union is now to provide the “who, what, where, when and how” of the allegations on which it intends to rely. As was noted by the Employer, there has been not one clearly specified incident or event that has been identified by the Union to date. The Employer is entitled to be put on notice of the specific facts that gave rise to the filing of the grievance. Certainly, general assertions that some violations may have taken place, such as “interviews may last excessive periods of time, e.g. 9 – 12 hours” are insufficient. It is difficult to see how the Employer could prepare its defense if that was the extent of the form and substance of the information provided by the Union.

The parties were agreed that this is an important matter and that it will probably be somewhat complicated litigation. For this reason it is all the more important that the parties are fully aware of the scope of the matters at issue from the outset. That being said, I recognize that matters might arise during the course of this litigation which could not have been reasonably foreseen.

Once the particulars have been produced there will remain the issue of disclosure. The Employer did not suggest it has no obligations in this regard. Indeed, I expect the Employer will comply with its obligations. In the event that there remains an issue regarding particulars or a question as to whether the Employer has met its obligation to disclose information, I ask counsel for the parties to contact me for a conference call prior to our next day of hearing. It would be my expectation that we can now turn to the other preliminary matters in this case, if any, as well as the merits at our next day of hearing. I remain seized.

Dated in Toronto this 31st day of May, 2006.