GSB#2010-2873, 2010-2933

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 (Bokhari)

Association

• and -

The Crown in Right of Ontario (Ministry of Economic Development and Trade)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel

HEARING

June 8, 2011.

Decision

1The Board is seized with two grievances, an individual grievance and an Association grievance, which are consolidated on the agreement of the parties. At the commencement of the hearing, the Board was asked to determine a preliminary issue with regard to particulars and disclosure.

2The grievances relate to the grievor’s transfer from his position of Financial Analyst at the Ministry of Government Services to the Ministry of Economic Development and Trade, and his subsequent surplussing from that latter Ministry. The grievances include allegations that the employer failed to follow the proper surplussing procedure, that the grievor was subjected to discrimination and harassment due to his disability, that there was differential treatment, and that the employer acted in bad faith.

3The grievances were scheduled for arbitration on June 8, 2011. On May 5, 2011, counsel for the employer wrote to counsel for the Association requesting “full particulars as to the substance and nature of the grievances and the allegations” against the employer, and “any supplemental information and/or documentation that may be arguably relevant to the matter” before the Board.

4The Association’s position is that the grievances themselves set out sufficient particulars of the allegations. Counsel suggested that if the employer is of the view that particulars relating to any specific allegation(s) are inadequate, it is entitled to seek additional particulars in that regard. It submits that the employer is not entitled to make a general claim that particulars are insufficient, without pointing out where the inadequacy is.

5The employer submits generally that the Association’s request for disclosure is too broad. Counsel submits that in any event, in order for it to decide whether or not the requested documents are arguably relevant to the issues in dispute, it must first receive sufficient particulars. In the absence of sufficient particulars it was not prepared to comply with the Association’s request.

6It should be noted that during the hearing the following clarifications and agreements were made:

• The Association withdrew its allegation that the employer failed to identify a direct assignment and/or a displacement for the grievor.

• Flowing from that, the Association withdrew item 9 of its disclosure request.

• Counsel for the Association undertook to provide to the employer particulars relating to the allegation that the employer subjected the grievor to continuous discrimination and harassment.

7The primary purpose of particulars is to permit the responding party to know the case it has to meet. Disclosure of documents has a broader purpose in that it actually allows a party to prepare its case. The test for disclosure at the pre-hearing stage is that the material sought must be “arguably relevant” or “potentially relevant” to the issues in dispute. In determining a request for disclosure which is opposed, the Board has some discretion. In exercising that discretion the Board must balance the interests of the parties. That is, the potential prejudice to the responding party if disclosure is ordered. (for example because of confidentiality and/or privilege) on the one hand, and the probative value and need for the requesting party to have access to the material in order to be able to adequately present its case, on the other.

8Having regard to the submissions of the parties in light of the material before me and the principles foregoing, it is ordered as follows:

Particulars

The issue is whether or not the employer has sufficient information to be able to adequately defend the allegations made by Association. In the absence of specific requirements to that effect in the collective agreement, there is no obligation on a party to present particulars in a single document or in a particular format. I find that a blanket assertion that particulars are inadequate, without seeking particulars – i.e. the “who, when, what and where” – of a specific allegation does not justify denial of disclosure of otherwise relevant information. If the employer is unable to ascertain the “who, when, what and where” of any allegation asserted by the Association it is entitled to seek the missing particulars in that regard. Counsel’s submission that the Employer should not have to defend against “a moving target” is well founded. However, the employer has a remedy to address that concern. The association may be precluded from leading evidence with respect to an allegation which had not been adequately particularized. If the employer is taken by surprise during the hearing by the Association attempting to raise allegations which had not been sufficiently particularized, the employer may object. The Board will then be required to determine whether or not to permit such evidence. Subject to the foregoing, I find that the particulars provided in the two grievances are adequate to not impact on the employer’s obligation to disclose documents, which otherwise are arguably relevant. Therefore, except for the Association’s undertaking to provide particulars referred to in paragraph 6 above, no further order is made against the Association at this time.

9Disclosure

I find that the material listed in the Association’s request for disclosure, (item 9 having been withdrawn) is arguably relevant to the issues raised in the grievances. If the employer objects to the disclosure of a particular document on specific grounds, it may be raised. Then the Board would be required to engage in the balancing exercise – for example the relative value of the material to the Association in preparing its case compared to the effort and cost to the employer – or to decide upon any legal impediment to the production of the material in question such as privilege or confidentiality. Employer counsel asserted that compliance with the Association’s request may result in disclosure of privileged documents. If and when an objection is made to the disclosure of a particular document or documents, the Board would be required to decide whether those documents ought to be disclosed, an if so, whether such disclosure should be made subject to conditions. In the absence of objection to any specific documents, and having regard to my finding that the material requested is arguably relevant to the issues raised by the grievances, the employer is hereby ordered to comply with the Association’s request for disclosure. Considering that the next hearing date is November 16, 2011, the Association shall provide particulars to the employer pursuant to its undertaking as soon as practicable, and no later than July 29, 2011. The disclosure herein ordered shall be completed by the employer no later than September 2, 2011. The timelines for compliance set out herein may be changed by order of the Board upon request, or by mutual agreement between the parties.

10The instant proceeding shall continue as scheduled on November 16, 17 and 29 of 2011. The Board remains seized with jurisdiction.