Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2011 CanLII 83723

GSB#2010-1600, 2010-2325, 2010-2365, 2010-2366, 2011-1022, 2011-1023, 2011-1024

UNION#2010-0340-0018, 2010-0999-0035, 2010-0340-0025, 2010-0340-0026,

2011-0340-0043, 2011-0340-0044, 2011-0340-0045

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 Counsel

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Counsel

HEARING

November 8, 2011.

DECISION

1The union requests a remedy for the employer’s failure to produce documents in accordance with to the Board’s order of June 16, 2011.

2After describing the circumstances in which it was made, the order of June 16^th directed as follows (emphasis added):

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.

3When the hearing resumed on November 8, 2011, union counsel stated that since the order was made the employer had produced nothing, despite repeated requests that it do so. Without denying this, employer counsel said her instructions were that the employer had taken to heart the component of the order that encouraged further attempts to settle, and had devoted its “limited resources” to that endeavour. Although she noted (as she had in the hearing that led to the order) that the employer had given the union some documents before the order was made, she confirmed that it was not the employer’s position that it had no further unproduced documents of the sort it had been ordered to produce. She did not suggest that the employer’s decision makers had thought that making efforts at settlement would excuse non-compliance with the order, nor could such a suggestion have been credibly made in light of the order’s clear terms.

4There is no suggestion that the union had expressly or impliedly agreed to extend the order’s deadline for production, as the order expressly contemplated they could, nor that the employer had somehow mistakenly thought there had been such an agreement. There is no suggestion that efforts at compliance had met with some difficulty that was not or could not have been anticipated at the time the order was sought and made. There is no suggestion that there has been partial compliance, or that the employer has made “best efforts” – or, indeed, any substantial effort – to comply.

5The union initially asked that I allow the grievance as a remedy for the non-compliance. I expressed concern that although the default that the Board considered in Larman¹ was of a different sort, the decision of the Court of Appeal² on judicial review of the Board’s decision granting the grievance in that case might be taken as direction that the Board should consider the other remedies that might be available.

6This led to discussion of contempt proceedings as a means of enforcement. I noted that a prior decision of the Board³ had found that the Statutory Powers Procedure Act (the “SPPA”) did not apply to its proceedings, from which it would follow that the procedure contemplated by section 13 of that Act would not be available. This would leave the matter of contempt to be addressed pursuant to the pre-SPPA jurisdiction of a tribunal that is statutorily assigned the same powers as a court of record to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence.⁴ I also noted my understanding that the focus of contempt proceedings in a Crown context might have to be on identifiable officials.⁵ Neither party offered any different view on any of these points.

7Discussions ensued between counsel and (I was told) between representatives of the parties who were not present at the hearing. I was thereafter informed that the parties had agreed to meet on December 14, 2011 to resolve what they could, and that in the meantime I was to deal with the union’s position that officials of both the Ministry of Government Services and the Ministry of Revenue should be directed that a) they are to ensure prompt compliance with the order, and b) they are to attend the hearing on December 20, 2011, to show cause why they should not be punished for contempt for the failure to comply to date. It was the union’s position that the individuals identified by name in the order should be the Deputy Ministers of the two Ministries, as well as whomever the employer might identify as the official in the Ministry of Government Services responsible for the non-compliance to date.

8Employer counsel took the position that the order should not name the Deputy Ministers, as they would not be directly involved in matters of this kind. Without saying that he was responsible for the non-compliance to date, employer counsel proposed that I address the order to David Logan, an Assistant Deputy Minister in the Ministry of Government Service responsible for labour relations matters. Employer counsel was not able to say that Mr. Logan’s authority was co-extensive with that of the two Deputy Ministers. She did represent, however, that a direction to Mr. Logan “would be sufficient to ensure compliance,” both by his Ministry and, because that Ministry “directs other Ministries in their labour relations,” by the Ministry of Revenue.

9I then told union counsel I was inclined to do as employer counsel suggested, but on the basis that the deadline for compliance would be three weeks hence (November 28^th). I observed that one or both of the Deputy Ministers could be summoned to the Board’s scheduled hearing on January 13, 2012 if on December 20^th any part of Mr. Logan’s explanation for any non-compliance with either order is that he did not or does not have sufficient delegated authority or resources, a prospect of which the two Deputy Ministers might appreciate early notice. Union counsel said he was instructed that that approach would be satisfactory to the union at this stage.

10I should note that the employer’s counsel objected on its behalf to a three week deadline. I did not see why any greater delay should be tolerated in the circumstances, and observed that the consequences of any failure to meet that deadline would depend on the nature and extent of the efforts to comply between now and then and, I would add, thereafter up to the December 20^th hearing date.

11At another point there was some discussion about whether compliance before December 20^th would render the contempt issue moot. It was and is premature to decide that at this stage. I did observe, however, and repeat, that Mr. Logan’s attendance on December 20^th will not be necessary if the employer’s response to this order persuades the union not to pursue remedies for the default, and it so advises the Board and employer counsel.

12The legislature created this Board to settle disputes by arbitration at the request of either party to the dispute. It gave the Board the power to order production of documents in the performance of that role. It did not make compliance with such orders optional on the part of the Crown. The Board encourages and prefers that disputes be settled by the parties themselves, but that preference gives neither party licence to unilaterally delay and defeat the other’s resort to expeditious and impartial arbitration to resolve disputes. The comments I made in paragraph 8 of the order of June 16^th continue to apply – all of them, including the closing words. The parties are encouraged to continue their efforts to settle the underlying dispute and, failing that, to narrow the issues and/or settle issues of the procedure to be followed in these proceedings. Except with the agreement of the union, however, the employer’s participation in settlement discussions will not relieve it of its obligation to comply with this and the previous order in these proceedings.

13I hereby confirm the directions I gave orally on November 8, 2011 that

a) David Logan, Assistant Deputy Minister, Ministry of Government Services, is directed to ensure compliance by the Crown with the provisions of the order of June 16, 2011 hereinby no later than the close of business on Monday, November 28, 2011; and,

b) unless the parties agree or the Board hereafter orders otherwise, Mr. Logan is directed to attend the hearing in this matter on December 20, 2011, and to bring with him and produce at that time any documents of the sorts described in paragraph 7 of the order of June 16, 2011 in this matter that have not been produced to union counsel before that date, and to show cause why he should not be punished for any failure to take all necessary steps to timely comply with the aforesaid order.

I note that employer counsel has undertaken to ensure that Mr. Logan receives a copy of this order and to advise union counsel in writing that she has done so. On reflection, I leave the matter of notifying the Deputy Ministers of the possibility of their being drawn into these proceedings in January to the employer’s discretion at this stage, and make no formal order in that regard.

14I also note that nothing in this order implies any criticism of the employer counsel, who has acted in an entirely professional manner in circumstances made difficult by her client. Nor does it imply any pre-judgment of Mr. Logan’s personal responsibility, if any, for the non-compliance that has regrettably become the focus of these proceedings.

15Finally, I should note that this order does not necessarily limit the possible remedies for non-compliance to punishment for contempt. The Board will consider any other remedies claimed, including remedies with consequences analogous to the striking out of the statement of defence of a non-complaint defendant in a civil proceeding, in light of the response to this order.

Footnotes

1. 1Ontario Public Service Employees Union v. Ontario (Ministry of Community, Family and Children's Services), 2003 CanLII 52907 (ON GSB).
2. 2Ontario (Ministry of Community, Family and Children Services) v. Crown Employees Grievance Settlement Board, 2006 CanLII 21173 (ON CA), 81 OR (3d) 419; 268 DLR (4th) 594; 142 CRR (2d) 226; 51 Admin LR (4th) 114; 213 OAC 169.
3. 3Villella, 1662/96 (Gray, December 11, 1996)
4. 4See ss. 48(12)(d), Ontario Labour Relations Act, S.O. 1995, c.1, Sch. A, s.2 and s.7 of the Crown Employees Collective Bargaining Act, S.O. 1993, c.38, as amended by S.O. 1995, c.1, and Re International Association of Heat & Frost Insulators & Asbestos Workers Local 95 and Master Insulators Association of Ontario et al. (1979), 1979 CanLII 1622 (ON HCJ), 25 O.R. (2d) 8 (Ont. Div. Ct.).
5. 5See, generally, McKinnon v. Ontario (Correctional Services), 2011 HRTO 263.