GSB#2005-1443

UNION#2005-0530-0022

Group "A" & "B"

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tardiel et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Christopher J. Albertyn

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

Eric del Junco, Barrister and Solicitor

Jim Paul Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

August 13, 2012.

Decision

1This is an ongoing matter. Several previous decisions have been issued granting systemic remedies to restore the workplace at the Toronto Jail.

2Since 2007 the Ministry has had an ongoing investigation under s. 22 of the Ministry of Correctional Services Act, RSO 1990, c M.22 into the provenance of the anonymous racist letters that have so augmented the poisoned work environment at the Toronto Jail described in earlier decisions. Among the systemic remedies ordered in this matter was the appointment of an investigator to review the Ministry's investigation.

3The appointed investigator, Michael A. Davis, has provided a written report of his review ("the Davis report"). In it he has made 12 recommendations as to how the procedures associated with the racist letters can be improved and as to how the Ministry's investigation can be advanced.

4The Union has, throughout the proceedings in this matter, requested a full, independent investigation into the provenance of the racist letters in order to identify the author(s). It has asked for this comprehensive investigation as a remedy to make whole the Union and its members for the breaches by the Employer of the collective agreement and of the Human Rights Code, RSO 1990, c H.19, for failing to respond effectively to these letters, so as to prevent them creating a poisoned work environment.

5The Union is not satisfied that the Davis report sufficiently addresses the situation. The Union has in writing reiterated its request for a full, independent investigation. The Employer has responded in writing opposing the request. The matter will be argued before me. This decision deals with the steps preparatory to that argument.

6As with other aspects of this case, the hearing into the Union's request for the appointment of an independent investigation will be held in accordance with Article 22.16 of the parties' collective agreement, their expedited procedure. Pursuant to Article 22.16.2, I hereby order that there will be no oral evidence and that evidence will instead be received in the following manner.

7By a date to be determined by the parties (failing which, set by me) Employer counsel will write to Union counsel:

a. to confirm that, besides the reports already provided to Union counsel, there are no other forensic behavioural profiles created of the letter writer(s) by the Employer or anyone retained by the Employer between 2005 and the present; or to provide such further profiles;

b. to provide a complete and detailed written summary of the steps the Employer took to investigate the provenance of the hand-written letter found on April 1, 2010 in the Central Regional Office (referred to at pp. 8-9 of the Davis report), including a summary of persons interviewed, handwriting analysis conducted and fingerprinting and/or DNA analysis of the letter/note and also including a full explanation of why the Employer did not take certain possible steps referenced in the Davis report, such as obtaining handwriting samples from the two persons present on that day who did not work in that office.

8The evidentiary basis for the argument will be the documents produced in accordance with paragraph 7 above, the forensic behaviour reports already provided to the Union, and the Davis report. The parties will endeavour to create a common book of the relevant documents. In addition the Employer will provide an updated book of the hate mail letters sent to date.

9The Union has given notice that it will argue than an appropriate adverse inference should be drawn from any incompleteness or other defect in the summary provided by the Employer pursuant to paragraph 7(b) above.

10A mutually convenient hearing date will be set in consultation with the parties.