GSB#2010-1600, 2010-2325, 2010-2365, 2010-2366
UNION#2010-0340-0018, 2010-0999-0035, 2010-0340-0025, 2010-0340-0026
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Brosseau et al/Union.)
Union
- and -
The Crown in Right of Ontario (Ministry of Revenue and Ministry of Government Services)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel
HEARING
February 18 and June 15, 2011.
DECISION
1This decision deals with a request by the union for an order directing that the employer produce arguably relevant documents.
2This proceeding concerns a union grievance filed with the Ministry of Government Services and three individual grievances filed by employees of the Ministry of Revenue. The parties have agreed that three other individual grievances (OPSEU Local Reference Nos. 11-340-07, 11-340-11 and 11-340-42) filed by employees of that Ministry will be added to the proceedings when they are formally referred to the Board for arbitration, which the union has undertaken to do.
3Paragraph 2(a) of Appendix 40 of the collective agreement provides :
- TEMPORARY VACANCIES
a. The Employer will encourage the respective Ministries to consider Impacted Employees for temporary assignments in their own ministry that are not required to be posted in accordance with Article 8 (Temporary Assignments).
The term “Impacted Employees” is defined elsewhere in the Appendix. All seven grievances allege that the employer failed to discharge, properly or at all, the obligations it assumed in this provision with respect to Ministry of Revenue employees impacted by the transfer to the federal government of functions formerly performed by the Corporate Tax and Retail Sales Tax divisions.
4The phrase “[t]he Employer will encourage the respective Ministries” is unusual because the employer bound by the collective agreement is the Crown in Right of Ontario and Ministries form part of the employer. On the first day of hearing union counsel explained that the union had originally filed its grievance with the Ministry of Revenue, but then the employer had asked or suggested that it be filed with the Ministry of Government Services instead, which it did. As a result, he said, the union’s understanding of the employer’s position was that the word “Employer” in paragraph 2(a) of Appendix 40 actually meant the Ministry of Government Services. That position was flatly disclaimed by the employer on the first day of hearing. On the second day, however, employer counsel advised the Board that the employer takes the position that the word “Employer” in paragraph 2(a) of Appendix 40 refers to the Ministry of Government Services.
5Union counsel initially suggested that since the employer knew best what it had done to satisfy the obligation it had assumed in paragraph 2(a) of Appendix 40, the employer should present evidence on that issue first. It was initially and (after discussions between counsel) ultimately the employer’s position that because the union bears the onus of proving that the employer breached the provision in issue the union should have to present its evidence in support of its position first.
6Since prior to the first day of hearing the union has been seeking production from the employer of documents that are arguably relevant to the issues it raises in these grievances. Discussions before, during and between hearing days failed to result in full production or in an undertaking to fully produce what the union sought, nor in an alternative satisfactory to the union. On behalf of the employer its counsel opposed production in the terms sought by the union, but could not say how the documents sought by the union would not be arguably relevant to the issues raised by the union.
7Accordingly, I hereby order and direct that the employer (that is, the Crown in Right of Ontario) produce to union counsel on or before September 15, 2011 (or such other date as the parties agree) all documents in its possession, custody or control
a) relating to communications between anyone on behalf of the Ministry of Government Services and anyone at the Ministry of Revenue with respect to consideration of “Impacted Employees” for temporary assignments, or
b) relating in any way to consideration by management, at any level and at any time in the relevant period, of creating or filing any temporary assignment within the Ministry of Revenue, including any temporary assignment that management at any level may have considered creating or filing or sought approval for creating or filling but was not ultimately created or filled.
In the foregoing order, “temporary assignment” means a temporary assignment that the employer was not or might not have been obliged by Article 8 to post, “relevant period” means the period between January 1, 2009 and the date of the last surplus notice received by any of the six individual grievors, and “document” means a record of any sort, whether physical or electronic, formal or informal, and whether or not at the time it was created its author shared or intended to share it with others.
8This order for production casts a broad net. Compliance may well be time consuming. These are necessary consequences of the nature of the issues raised and the fact that the union is put to the strict proof of a negative with respect to things that are largely within the exclusive knowledge of the employer’s management. The obligation to produce cannot be made less onerous by wishful thinking on the part of those tasked to search for relevant documents. It might be made less onerous as part of an agreement of the parties on some sensible substitute for full blown adversarial litigation in this matter, one in which the parties are more focused on problem solving and less on supposed procedural advantage. The parties are encouraged to continue their thus-far unsuccessful attempts to reach such an agreement, without in the meantime delaying efforts to comply with this order and prepare for the hearing now scheduled to continue on five days in November, December and January.
Dated at Toronto this 16th day of June 2011.