GSB#2011-0378, 2011-0381, 2011-0382, 2011-0383, 2011-0385, 2011-0386, 2011-0387

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 (Chapman et al)

Association

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier and Suneel Bahal Ministry of Government Services Legal Services Branch Counsel

HEARING

November 25, 2011.

Decision

1The Board is seized with seven individual complaints, which were consolidated on agreement. The grievances are:

GSB File No: Complainant

2011 – 0378 Mary Chapman

2011 – 0381 Catherine Hermon

2011 – 0382 Lain Joyce

2011 – 0383 Scott Margerison

2011 – 0385 Claudio Pevide

2011 – 0386 Judy Steenburggen

2011 – 0387 Yull Wynter

2The complaints arise out of the following background which was orally presented by Association counsel. The complainants were employed in the position of Facilities Management Coordinator (“FMC”) in the Ministry’s Facilities Management Branch. These FMC positions were classified at the 19 AGA level. As part of a reorganization undertaken by the employer, all 19 AGA/FMC positions were eliminated, resulting in the surplussing of the seven complainants. The employer also created six new Regional Planning & Business Advisor (“RPBA”) positions classified at the 20 AGA level. Three of the complainants were placed into other positions following their surplussing, and the others used their seniority to bump into other positions. Two of the complainants who bumped into positions were subsequently surplussed again from those positions. The employer posted the six new RPBA positions under the collective agreement. While many of the complainants applied, only one, Ms. Chapman was granted an interview. Ms. Chapman was unsuccessful in the competition and has grieved. That competition grievance filed by Ms. Chapman is not before me in this proceeding.

3The Association makes several assertions in support of the instant complaints. While it does not challenge the reorganization as a whole, it asserts that the employer’s decision to eliminate all 19 AGA positions and to create six new RPBA positions at the 20 AGA level was not made for bona fide business reasons, but pursuant to a desire to “clean house” and employ only those employees it wanted. The Association would be asserting that the fact that only one of the complainants was even selected for interviews when they applied for the new positions posted supports its position.

4In the alternative, the Association takes the position that even if the employer’s decision was not tainted by bad faith, the core duties of the FMC positions the complainants held and the new RPBA positions remained substantially the same after the purported reorganization. The Association asserts that it was therefore inappropriate for the employer to post the RPBA positions. It submits that the complainants ought to have been assigned to the new positions without a competition and reclassified at AGA 20.

5In the further alternative, the Association takes the position that the surplussing of the complainants was in any event in contravention of the collective agreement.

6The Board was advised that the parties had agreed to bifurcate the hearing and to initially obtain a ruling on the first two grounds asserted by the Association, i.e. the bad faith allegation and the submission that the core duties remained unchanged and thus posting the new positions was inappropriate. If the Association succeeds on one or both grounds, the Board was requested to remain seized of the issue of appropriate remedy.

7In light of the foregoing context, the Board was advised that there were several disputes between the parties with regard to disclosure requested by the Association. The parties decided to obtain a ruling from the Board on one of those disclosure issues at this time. That arises from items 8 and 9 listed in the Association’s request for disclosure, which read:

8. WEAR forms, application forms and material submitted by applicants, and material in the personnel files of all persons selected for interviews for RPBA positions which was relied upon by the employer in selecting candidates for interviews and/or for appointment to RPBA positions.

9. WEAR forms, application forms and material, submitted by applicants, and material in the personnel files of all persons working in the RPBA position from March 2011, which was relied upon by the employer in selecting them for interviews and/or appointment to RPBA positions.

8The Association seeks an order for the production of the material listed in items 8 and 9 above. Association counsel pointed out that for production the standard to be met is not high. Material is subject to production if it is arguably relevant to an issue in dispute. He submits that the material sought in items 8 and 9 relates to the Association’s bad faith allegation. They are arguably relevant to the bad faith allegation because that material would disclose how the employer selected the individuals who would be interviewed and/or appointed to the new RPBA positions. It would disclose who was selected for interviews and/or appointment, and what their abilities and qualifications were for the posted position. If the material indicates that the employer had selected persons with abilities and qualifications similar or lesser than that of the complainants as the association asserts, it would support the Association’s allegation of bad faith. Counsel pointed out that since its request is limited to those applicants who were selected for interviews, it would only capture only 3 or 4 individuals, and therefore production would not be unduly onerous on the employer.

9Counsel for the employer submitted that the employer would be denying any bad faith and would establish that its actions were solely based on bona fide operational considerations. Counsel opposed the production of the material requested. He submitted that to order production of that material would be to allow the Association and the complainants to indirectly grieve the RPBA job competitions without filing job competition complaints under the collective agreement. He argued that only Ms. Chapman had grieved that competition and she would be entitled to pursue that. He argued that the complainants should not be allowed to “take an end run” at the job competition in this proceeding.

10Employer counsel referred to the following passages from Re Koonings, 2003-3101 etc. (Gray) and particularly to the emphasized portion in para 19:

19It is not apparent to me, either from the West Park Hospital award or otherwise, what the “clear nexus” test adds to the “arguable relevance” test. Evidence must have a probative nexus with an allegation of fact that has been put in issue by one party and disputed by the other before it can be said to be arguably relevant. Evidence that is arguably relevant must of necessity have such a nexus with a disputed allegation of fact. Of course, it must first be apparent what factual issues are in dispute before one could apply either test. The arguable relevance enquiry, and hence an order for production, may be premature if the issues in dispute have not been clearly defined. That appears to have been the case in Re Laurentian Hospital, supra, where the arbitrator observed at page 299 that “This extensive request of documents represents a dilemma in the sense that the union has not yet put forward its ‘theory’ of the case which would allow me to judge the relevancy of the requested documents”.

20A “fishing expedition” is said to be an endeavour “not to obtain evidence to support [a] case, but to discover whether [one] has a case at all”: Canada Post, supra at 57 L.A.C. (3d) 159. If one can have production only of documents arguably relevant to allegations of fact already put in issue in the case at hand, it follows that there cannot be production in aid of discovering a case not already asserted. Viewed in that way, the “no fishing expedition” test is really nothing more than a corollary of the arguable relevancy test. The difficulty with the “fishing expedition” metaphor, however, is that it may evoke irrelevant considerations, such as whether the party seeking production already has some evidence to support the allegations of fact it has put in issue. Although made in the context of a dispute about the propriety of questions asked on examination for discovery, the observations of Seaton, J.A. in Cominco Ltd. V Westinghouse Canada Limited et al., (1979) 1979 CanLII 489 (BC CA), 11 B.C.L.R. 142 (B.C.C.A.) at p. 149 bear equal application in this context:

Counsel said that one cannot embark on a fishing expedition. I find little help in that statement. I take it that a fishing expedition describes an examination of discovery that has gone beyond reasonable limits into areas that are not and cannot be relevant. In those waters one may not fish. In other waters one may. That one fishes is not decisive, it is where the fishing takes place that matters.

(Emphasis added)

11Counsel submitted that the disclosure sought does not have a probative nexus with an allegation put in issue in this proceeding, although they may have such a nexus had the complainants filed job competition complaints. In this proceeding the Board is not dealing with job competition grievances. Counsel submitted that to order the requested disclosure would allow the complainants to in effect grieve the job competition in this proceeding, thereby circumventing the time limits prescribed in the collective agreement.

12Having considered the able submissions of the parties, I conclude that the requested disclosure ought to be ordered. The employer is correct that the instant complaints are not “competition grievances” in the traditional sense in that they do not directly allege a violation of the job competition provisions of the collective agreement. However, the appropriateness of a request for disclosure does not depend on the labelling of a grievance. It depends on whether the requested material is of some probative value, and therefore arguably relevant, with respect to an issue in dispute in this proceeding. That is the determinative test in every case. The Association has clearly asserted that the elimination of all EMC positions, the surplussing of the complainants, the creation and posting of the new RPBA positions, and the denial of those positions to the complainants constitute a scheme the employer devised in bad faith to “clean house” and get rid of employees the employer no longer wished to employ. It has not been suggested that the association is not entitled to make that assertion as part of these complaints. Rather, the employer denies bad faith. Thus the allegation of bad faith, including bad faith in the treatment of the complainants in the job competition for the RPBA positions, is an issue put before the Board in this proceeding. The disclosure sought, in the Board’s view is, therefore, arguably relevant to an assertion of bad faith already made by the association, and does not amount to a “fishing expedition”. Rather, the Association, through its request for disclosure, is attempting to obtain evidence to support a position it has already clearly asserted.

13Therefore, the employer is hereby directed to provide disclosure of the material described in items 8 and 9 set out above at paragraph 9 of this decision as soon as practicable prior to the next scheduled hearing or on a date to be agreed to between the parties following this decision. The Board remains seized with the instant complaints.