GSB#2009-3165

UNION#2010-0999-0008

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

Kate Hughes Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Barristers and Solicitors

FOR THE EMPLOYER

Brian Loewen Ministry of Government Services Legal Service Branch Counsel

Raj Dhir Deputy Director Ministry of Labour, Legal Services Branch

HEARING

November 19, 2010.

Decision

1Before me is a policy grievance which raises issues relating to the obtaining of and the disclosure of information about enforcement officers to defence counsel in connection with prosecutions and, more specifically, the effect of the decision of the Supreme Court of Canada in R.v. McNeil (2009), 2009 SCC 3, 238 C.C.C. 353. Initially before me were both a policy grievance and an individual grievance. A request for interim relief was addressed in a decision dated May 20, 2010. The parties have resolved the individual grievance, however the policy grievance remains outstanding. In addition to the Ministry of Labour, where the individual grievance arose, there are sixteen ministries that engage in prosecutions (“Enforcement Ministries”). The parties have been unable to resolve a production issue and this decision addresses that matter.

2On October 20, 2010, I issued a decision relating to production which included reference to the Union’s request for disclosure in connection with the application of McNeil in relation to all prosecutions in all of the Enforcement Ministries, upon which the Employer undertook to seek instructions. Specifically, the Union is seeking a list of all prosecutions from all Enforcement Ministries since January, 2009, setting out the names of the lead/primary officers/inspectors with highlights for which of those prosecutions the Crown had requested CPIC checks or disclosure of discipline. The Employer has advised that establishment of an approach of general application in the Enforcement Ministries has been awaiting the development of a formal protocol applicable to disclosure in all Ministries. The Ministry of Labour approach has been described by the Employer as the “high water mark” in connection with McNeil checks. A copy of the draft protocol was provided to OPSEU at the hearing on November 19, 2010, the date on which the production issue was argued before me. Upon the agreement of the parties my ruling on this issue was held in abeyance in the event that the protocol provided a basis for the resolution of the grievance. I have since been advised that a ruling is required.

3It is the position of the Union that the information sought meets the test of arguable relevance and ought to be produced. Ms. Hughes provided me with a number of the cases that address the principles of fairness associated with the very expansive approach to disclosure that has characterized the general arbitral approach. She argued that detailed disclosure of practices at other Ministries would “speak volumes” about the legitimacy of the Ministry of Labour’s approach. The Employer’s position is that providing the information requested in connection with each prosecution would be a very large undertaking, that the request is a fishing expedition, and that complying with it would require the creation of documents. More fundamentally, it is the position of the Employer that given that the issue between the parties is whether or not McNeil applies at all to these prosecutions, the manner in which individual Ministries may or may not have implemented it is not relevant and will not be of assistance to me.

4I have reviewed the authorities provided to me by Ms. Hughes and agree with her observation that the test for production is not a high one. However, in each and every case it is important to ensure the efficient progress of the litigation and to avoid the expenditure of resources that may be associated with unnecessary voluminous production. Unlike many cases where pre-hearing disclosure orders are sought, I have the advantage of some understanding of the issues in this case, due to the proceedings to date. It is my view that the voluminous detailed information being sought will ultimately not advance the matter. The issue before me is whether McNeil has any impact on the Enforcement Ministries in relation to an obligation to obtain and disclose information about investigating officers in connection with prosecutions. The obtaining of and disclosure of information will be in accordance with an obligation created by McNeil or it will not. The details of all prosecutions being sought by the Union will not assist me in the issue that I will need to decide. Accordingly, this aspect of the Union’s production request is denied.