GSB#2003-0001

UNION#2003-0999-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario

and

Ontario Public Service Employees Union

(Union)

Association

Union

• and -

The Crown in Right of Ontario

(Ministry of Government Services)

Employer

BEFORE

Susan L. Stewart

Chair

FOR OPSEU

FOR AMAPCEO

Kate Hughes

Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

Counsel

Lorne Richmond

Sack Goldblatt Mitchell LLP

Counsel

FOR THE EMPLOYER

Brian Loewen

Ministry of Government Services

Counsel

HEARING

February 17, 2009.

Decision

1At issue before me is a request by AMAPCEO and OPSEU for interim relief. The request arises in the context of a challenge to new security checks for employees that originate in new rules under the Western Hemisphere Travel Initiative. The bargaining agents have raised a number of objections to the new security checks and point out that there is a comprehensive existing OPS Personnel Screening Checks Policy that does not contemplate the security checks that are being proposed here. It is argued that the security checks should not proceed pending the resolution of the challenge to the validity of the checks. The Employer did not dispute that there is an arguable case in this instance and thus the question to be addressed is where the balance of convenience or harm lies.

2At the conclusion of his submissions Mr. Loewen, on behalf of the Employer, requested that I delay the issuance of my decision on this motion, pending further discussions between the parties to attempt to resolve the dispute. I granted Mr. Loewen’s request and advised the parties of my intention to issue my ruling on March 4, 2009, unless I was advised beforehand that the parties had resolved this issue. I was advised on March 3, 2009 that the parties had not resolved the matter and that a ruling on the motion was required.

3The Western Hemisphere Travel Initiative has been established by the United States Department of Homeland Security and relates to documents required for travelers departing from or arriving from ports of entry within the western hemisphere. Since January 23, 2007, a passport has been required to enter the United States by air. Effective June 1, 2009, new requirements will extend to land and sea ports of entry. An alternative to a passport acceptable to the Department of Homeland Security is a document establishing the bearer’s identity and nationality that meets their prescribed security standards. Those security standards include requirements relating to security checks for personnel involved in the production of those documents. As would be anticipated, this is a matter that has been addressed between the Department of Homeland Security, the Federal Canada Border Services Agency and Citizenship and Immigration Canada and in turn has been addressed between the Government of Canada and the provinces, including the Province of Ontario. There is a draft Memorandum of Understanding between the Government of Canada and the Province of Ontario, however as of the date of the argument on the interim relief motion it had not been finalized. Notwithstanding the obvious vigour with which the matter has been pursued by counsel for the Employer, production of documents relevant to the dispute has been hampered by virtue of the fact that there have been issues of sensitivity of information and the need to follow protocols for release in relation to documents to which other governments are signatories.

4An Enhanced Driver’s Licence and an Enhanced Photo Card have been developed by the Ministry of Transportation, ServiceOntario, and the Cabinet Office-Intergovernmental Affairs, in collaboration with the Government of Canada. This document has been developed as an alternative to a passport, which will meet the Department of Homeland Security standards. While there will be an additional cost associated with the acquisition of an Enhanced Driver’s Licence in comparison to a regular Licence which will still be available, the cost will be less than the cost of obtaining a passport. The Employer, noting that it is anticipated that the new requirements will have a significant impact on cross border land travel, where most travelers have used documents such as driver’s licences and/or birth certificates, wishes to ensure that travel and trade are not disrupted and wishes to ensure that its citizens who would like to obtain documentation which will be an acceptable alternative to a passport are able to do so prior to the June 1, 2009 effective date of the new rules for land border crossings.

5In connection with the implementation of the Enhanced Driver’s Licence Program, employees and bargaining agents have been advised as follows with respect to security checks:

The Government of Canada requires that all employees

who can manipulate EDL records, process EDL applications

or produce and handle EDL cards have to meet the Government

of Canada’s personnel security requirements for their employees

using similar types of documents (e.g. a passport). They are

requiring that Ontario implement a two-step process:

A reliability check, conducted by the province, consisting

of a criminal background check and a financial (credit)

check.

A Level 2 (secret) security check conducted by the Canadian

Security Intelligence Service.

The new security checks have also been described as consisting of three components: a Criminal Records Name Check, Credit Check and Canadian Security Intelligence Service (CSIS) Indices Check.

6In the course of their submissions, counsel for the bargaining agents emphasized that the issue of interim relief in connection with the Employer’s intent to implement security checks was previously addressed by me and their request for relief granted, in Ontario (Management Board Secretariat) and OPSEU (2003), 2003 CanLII 89536 (ON GSB), 117 L.A.C. 4th 128 (Stewart). Both Ms. Hughes and Mr. Richmond emphasized the considerations of privacy at issue and that as noted in that decision, incursions of privacy cannot be reversed if the position of the bargaining agents were ultimately to prevail. Reference was also made to the involvement of CSIS in the security checks program and that it is a federal agency beyond provincial regulation.

7In his submissions, Mr. Loewen emphasized that the requirements with respect to security checks has been imposed on the Province and that the Province must operate within the framework that has been imposed. He made reference to the statutory framework within which CSIS operates, as well as the fact that there is an agreement being developed between the Province and CSIS (in draft at the time of the motion) that he submitted will address concerns raised by the bargaining agents. Mr. Loewen emphasized that the timing of the effective date of the new requirements for documentation for border crossing, June 1, 2009, is a matter beyond the Province’s control. He argued that a delay in the ability to implement security checks will jeopardize the Province’s ability to meet its objective of reducing the impact of the new initiative by allowing its citizens to obtain acceptable documentation at a lower cost than if they had to obtain a passport.

8The Employer’s interest in proceeding with the security checks with dispatch is understandable, in that security checks constitute an important element in its preparation to have the EDL program in effect before June 1, 2009. Its objective is clearly motivated by a wish to provide the best possible service to the citizens of the province and to make the transition to the new regime of land border crossing to the United States as seamless as possible. However, as the bargaining agents have noted, even if the EDL program is not in place before June 1, 2009, citizens of Ontario will still be able to cross the border to the United States with a passport, just as is currently the case with the relatively recent requirement in connection with air travel. The interests of the Employer, while real and understandable, must be balanced against the concerns advanced by the bargaining agents. They have raised concerns that, as noted in my earlier decision granting interim relief, cannot be effectively remedied on a retroactive basis in the event that the bargaining agents are ultimately successful in their challenges.

9With the cooperation of the bargaining agents, an early date has been established to deal with the merits of the case. The parties have been successful in resolving issues relating to security checks in the past and I have no doubt that they will continue to work diligently to achieve a prompt resolution in this case, whether by settlement or through the adjudicative process. It is my view that a weighing of the balance of convenience or harm in this case clearly compels the conclusion that the Employer ought to be precluded from proceeding with the proposed security checks pending the resolution of the dispute on its merits and I so order.