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 19th, 2010.

Decision

1At issue before me is a request for interim relief. A change in practice initiated by the RCMP with respect to the process for providing criminal record information has affected one of the foundations upon which the Personnel Screening Checks Policy and Operational Guidelines between the parties operate. In essence, the effect of the new practice on these parties is that the provision of fingerprints by employees is now required to obtain criminal record information where it previously was not.

2The bargaining agents claim that the provision of fingerprints which is not in accordance with the provisions of the agreed upon Policy and Guidelines cannot be permitted. It is the Employer’s position that these agreements must be construed in light of the reality of the situation that it now faces and notes its fundamental need to obtain and review criminal record information in relation to employees in positions where the need for a security check has been established, as provided for in the Policy and Guidelines, if a clearance is to be granted. The bargaining agents note their clear and specific agreement that “a fingerprint check will only be required as a measure of last resort”. I note, parenthetically, that the difficulty that has arisen here is in relation to general clearances and not to those in the vulnerable services and enforcement sectors where different rules apply. I also note that all applicants for security checks will now have to provide two pieces of identification of a type that has been specifically prescribed, whereas the Personnel Screening Checks Policy contemplates a single piece of identification being supplied to a manager to verify personal data. While not the major issue in this proceeding, I will address it for purposes of completeness and clarity.

3The Canadian Police Information Centre (“CPIC”) system is administered by the Royal Canadian Mounted Police (“RCMP”). The change in practice that has been referred to is reflected in a broadcast email from the RCMP dated November 30, 2009, which indicates that criminal record information has been disclosed by certain police agencies in contravention of, inter alia, the Criminal Records Act, the Youth Criminal Justice Act and the Ministerial Directive on the Release of Criminal Records. The Ministerial Directive is apparently an internal directive and thus is not available, however the contravention of the legislation that is referred to is not readily apparent, a matter that was emphasized by the bargaining agents. A policy entitled “Dissemination of Criminal Record Information”, effective December 8, 2009, which addresses what is described as “interim measures” has been issued by the RCMP. The RCMP has advised that the change in practice does not represent a change in policy, but rather, represents the enforcement of existing policy in relation to the release of CPIC information.

4In the past, upon the provision of name and date of birth of an OPS employee for whose position a threat risk assessment had been conducted and a determination made that a security clearance check was required, a CPIC check would be conducted by the Ontario Provincial Police (“OPP”) in accordance with the Policy. The OPP would conduct the CPIC check and would then advise the OPS Security Service and Contingency Planning Branch (“SSCPB”) whether there was a “hit”, indicating the possibility of a criminal record or “no hit” indicating that no criminal record was identified. For “no hit” situations, there is no change as a result of the new practice. If there is a “hit”, however, instead of releasing the criminal record information associated with the name and date of birth as it did in the past, the provision of fingerprints is now required before the information will be released. The OPP has advised that it must comply with this RCMP directive. The rationale for that change is set out on the CPIC website, which was referred to in the Statutory Declaration of Mr. M. Smeaton, Director of the SSCPB. In a FAQ format in response to the question of why fingerprints would have to be provided by someone who does not have a criminal record it is noted that: “There are many people on the criminal records data base with names and dates of birth that are identical or similar”. Accordingly, in order to provide privacy to the person who has been convicted, fingerprints are required to ensure that the criminal record that is disclosed does in fact relate to the applicant. While in the past, the criminal record information itself could have been utilized to deal with issues of mistaken identity, or to confirm information that has or has not been disclosed from someone who has a criminal record, the criminal record information now cannot be obtained without the provision of fingerprints.

5Mr. Smeaton has acted diligently in raising the concerns that this new practice has created, and in a letter dated January 20, 2010, requested a meeting with the RCMP, offering to travel to Ottawa, to facilitate a discussion. At the time of the hearing there had been no reply to Mr. Smeaton’s letter, notwithstanding a follow up request that he made on February 10, 2010. Mr. Smeaton has also questioned the application of the policy to the Province of Ontario, noting the definitions therein and in particular its reference to “a private organization”, which the province of Ontario is obviously not. The response that has been received from the RCMP via the OPP seems to acknowledge that the definition does not encompass the Province, but suggests that its role puts it within the category described and that this matter would “in all likelihood be addressed and updated in the upcoming working group discussions”. Notwithstanding the lack of clarity that surrounds this change, the reality that the Employer faces is that the OPP will not provide it with information in the way that it did previously, in the absence of fingerprints. Thus, without the provision of fingerprints, the Employer is unable to access information that it previously had, and as the Policy contemplates it would have, in order to assess an employee’s suitability to work in a position requiring a security clearance.

6The Employer’s proposal that the process change to allow it to request fingerprints in cases where there has been a “hit” and that if the employee chooses not to provide fingerprints that the redeployment process be invoked is opposed by the bargaining agents. They submit that this process would be in clear violation of the mutually agreed upon Policy and Guidelines, a violation of the Collective Agreement and in violation of the employee’s Charter rights. There is no doubt, in my view, that an arguable case exists here. Accordingly, the first part of the test for interim relief has been met.

7The more challenging question is where the balance of harm or convenience lies. It would seem likely that some further clarity will develop shortly. It would also seem that the clarity might entail the exemption of the Province from the application of this initiative, if the application of “private organization” is to be given its ordinary meaning. Such an exemption would, of course, resolve the critical aspect of this dispute. However, if the situation remains that the premises under which the Policy and Guidelines have been negotiated have permanently changed and a violation of the Collective Agreement is found, the ultimate result may be, as Mr. Richmond has suggested, that the parties will have to renegotiate the terms of the Policy and Guidelines. If that is the process that must unfold, it will no doubt entail the passage of some time. While the Employer has essentially put its security check process on hold pending the appearance before me on this motion, it is understandably concerned about continuing to do so. While few in number, it is currently faced with a situation where there have been “hits” in relation to employees holding a position in which it is entitled to obtain a security clearance. If it were to continue to simply hold the process in abeyance, as the bargaining agents urge me it should, pending the resolution of the grievance, it is effectively denied the benefit of its bargain under the policy in connection with a fundamental matter. However, the proposal of the Employer that employees be provided with the option of providing fingerprints and if they opt not to, they would fall under the redeployment process, is also unsatisfactory, given that one of the possibilities under Appendix F of the Operational Guidelines is that the employee will be removed from the workplace at the outset (albeit on salary continuance) and that the ultimate result of the redeployment process may be that the employee is no longer employed. The bargaining agents understandably view this as unsatisfactory, denying them the benefit of their agreement in connection with a fundamental matter, the need for an employee to provide fingerprints other than as a “last resort”, as contemplated at the time the agreement was entered into and creating a situation of an employee being put to the obligation to decide on an individual basis between privacy rights and safeguarding his or her job.

8In my view, the solutions proposed by both parties unacceptably compromise a fundamental interest of the other party. In balancing the competing interests I have concluded that the following interim disposition is appropriate:

a) There will be compliance with the requirement for the provision of photocopies of two pieces of identification as required by the RCMP for all applications for security clearances.

b) In cases where there has been a “hit”, employees will not be asked to provide fingerprints. However, they may, as contemplated by Appendix F of the Operational Guidelines, be deployed to the extent contemplated by the first two bullet points of s. 8 of the process steps, that is, their position may be modified to eliminate the need for a check or they may temporarily be assigned to a position that does not require a check. To be absolutely clear:

(i) there will be no loss of pay in connection with any modification or reassignment of duties;

(ii) removal of the employee from the workplace, even on salary continuance, is not an option available to the Employer;

(iii) the deployment process will not proceed beyond a modification of or reassignment of duties.

In accordance with the high level of confidentiality that is appropriate in connection with all matters arising under the Policy and Guidelines, any modifications of duties or reassignments will be dealt with discretely.

9While the foregoing does not reflect the disposition that either the bargaining agents or the Employer urged upon me, it reflects my attempt to best balance the competing interests that are in play. The interim application is disposed of in accordance with the foregoing and I retain jurisdiction to deal with any difficulties that the parties may experience in implementing this interim order. The hearing on the merits of the matter will proceed on mutually agreeable dates to be set by the Registrar, with notice to the Attorney General to be provided, given that a Charter argument has been raised.