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 11, 2010.

Decision

1At issue before me is a request by AMAPCEO for interim relief. The issue arises in the context of a grievance dated December 7, 2009, filed by AMAPCEO, challenging the Ministry of Revenue’s proposed personnel screening checks affecting approximately 214 of its members. AMAPCEO is seeking an order that the Employer refrain from conducting screening checks until the dispute between them is resolved. OPSEU was represented on this motion given its interest in this issue but did not seek an order affecting its members.

2The Ministry of Revenue administers the province’s major tax statutes, tax credit programs, tax benefit programs and collects tax revenues. In order to carry out its functions, the Ministry of Revenue has access to taxpayer information that is provided to it by the Canada Revenue Agency (CRA). There is a long history of the provision of this kind of information.

3The CRA has advised the Ministry of Revenue that it requires that employees of its external partner organizations who require and use information released by the CRA be granted a reliability status, at the enhanced level, involving the same elements as those described in the Treasury Board Secretariat’s Personnel Security Standard. Correspondence between the CRA and the Ministry of Revenue refers to the Ministry’s intention to proceed with the implementation of the Ontario Public Service Personnel Screening Checks

Policy for those positions having access to the taxpayer information, with an expected completion date of June 30, 2010, in order to fulfill the CRA’s requirement. There is a Memorandum of Understanding in development between the government parties in relation to this matter, which is presently in draft stage.

4The Ministry of Revenue commenced a project in 2008 known as the Security Protocol project, which, according to a statutory declaration completed by S. Butson-Lewis on behalf of the Employer for the purpose of this proceeding, was launched to address adherence to both the CRA requirement for enhanced reliability status and the OPS Personnel Screening Checks Policy. Ms. Butson-Lewis refers to the process undertaken of identifying what processes and positions had access to “highly sensitive information” as defined by the OPS Policy, which resulted in a request for approval to MGS to proceed under phase 4 of the OPS Policy, approval which was received on March 12, 2009. Ms. Butson-Lewis refers in her declaration to the completion of a Threat Risk Assessment for every position identified as requiring a screening check, with a review, feedback and an approval process by the Security Services and Contingency Planning Branch. The approval process was completed at the end of June, 2009.

5Disclosure to AMAPCEO commenced on October 1, 2009, and was extended on two occasions, concluding on December 7, 2009, with employee

notification taking place that day. The phased approach was initiated on December 10, 2009.

6In the statutory declarations of B. Moffat, prepared on behalf of AMAPCEO for the purpose of this proceeding, and in particular in his February 11, 2010 declaration, issue is taken with whether the CRA data constitutes “highly sensitive” information within the meaning of the OPS Policy. This matter was also the subject of submissions by OPSEU. AMAPCEO asserts, based on interviews of a sample of approximately forty of its members, that the requirements established under the Operational Guidelines of the OPS have not been met.

7Mr. Loewen advanced a forceful argument distinguishing the cases in which I have granted interim relief in connection with security checks and emphasizing the steps that the Employer has taken in this instance. While, as Mr. Loewen has pointed out, an agreement between the parties that is reflected in my decision of October 26, 2007 contemplates the process continuing while a dispute is resolved, the parties have not agreed that an application for interim relief could not be sought in the appropriate case, as it has been subsequent to that decision. Here there is a significant dispute involving a large number of employees that has arisen between the parties. An arguable case has been raised before me and I have no hesitation in concluding that the first part of the test for interim relief has been met.

8With respect to the second part of the test, the balance of harm or convenience, the Employer raises a number of concerns. These concerns include the prospect that any delay in the implementation of the screening checks could lead to an inability to comply with the June 30, 2010 deadline, with the prospect that the CRA might restrict access to federal information, thus impeding the ability of the Ministry to perform its functions, with negative ramifications for its reputation, with both its business partners and the public, and with negative implications in terms of the disruption of its planned implementation. AMAPCEO emphasized the privacy interests of its members that are at issue here, interests that I have previously indicated are interests of considerable significance. AMAPCEO also emphasized that access to federal data of this type by provincial employees has existed for many decades. While AMAPCEO questions the immutability of the June 30, 2010 deadline, it expressed its commitment to engage in the dispute resolution process on an expedited basis in order to ensure that the merits of the grievance are dealt with and resolved quickly.

9While I view the interests of the Employer as significant, the granting of the motion would essentially require the maintenance of a long established status quo and the Employer’s interests must be balanced against the privacy interests of the employees, interests which, as I have previously observed, cannot be effectively remedied on a retroactive basis in the event that the grievance is ultimately successful. Considering all of the circumstances,

particularly in light of the commitment by AMAPCEO to the expedition of the dispute resolution process, a weighing of the balance of convenience or harm in this case compel me to 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. I observe, as I have previously, that the parties have been successful in resolving issues in relation to security checks in the past and I anticipate a prompt resolution in this case as well, whether by settlement or through the adjudicative process. The Registrar will contact the parties in order to arrange hearing dates.