Ontario Public Service Employees Union (Madan) v Ontario (Environment), 2012 OGSB minicounsel 181

GSB#2010-2112, 2010-2113, 2010-2114, 2010-2115, 2010-2116, 2010-2117

UNION#2010-0302-0012, 2010-0302-0013, 2010-0302-0014, 2010-0302-0015, 2010-0302-0016,

2010-0302-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Madan)

Union

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

M. V. Watters

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

October 24, 2012.

DECISION

1The instant proceeding raises two (2) primary issues. First, whether the grievor was disciplined for just cause for refusing to return to work as directed by the Employer on a number of occasions. This refusal resulted in the grievor’s suspension for periods of two (2) days, five (5) days, ten (10) days, and twenty (20) days. She was ultimately dismissed by letter of November 22, 2010 from Mr. Paul Nieweglowski, Director, Safe Drinking Water Branch, Drinking Water Management Division. All of these disciplines were grieved. It appears that the grievor’s position will be that she repeatedly advised the Employer she could not return to work because the workplace was unsafe and constituted a poisoned work environment. The second issue arises from two (2) further grievances alleging that the Employer breached articles 3 and 9 of the collective agreement. More specifically, the grievor claims therein that she was subjected to harassment, discrimination and bullying at the workplace. It appears that the grievor’s position will be that the treatment she received was part of a systemic problem in the context of a poisoned work environment. It is apparent that she claims Mr. Nieweglowski was largely responsible for this treatment.

2Hearings on the merits of the dispute were held on February 6 and March 8, 2012. At the subsequent hearing of October 24, 2012, counsel for the Union asked for an order that the Employer provide disclosure of certain documents. He advised that the Union had just recently become aware of the fact that Mr. Oral Binda, the grievor’s direct Supervisor, had previously initiated a complaint under the Workplace Discrimination and Harassment Prevention (WDHP) Program against Mr. Nieweglowski. Counsel for the Union asked, in substance, that all documentary information concerning the complaint and subsequent investigation be disclosed by the Employer. This request was opposed by the Employer.

3Counsel for the Employer advised that Mr. Binda, the Senior Compliance Manager in the Central Region of the Safe Drinking Water Branch, filed a WDHP complaint dated October 6, 2011 against Mr. Nieweglowski. An investigation was subsequently initiated by the Employer on December 5, 2011. The external investigator interviewed a number of witnesses during the course of the investigation. A draft report was completed on April 9, 2012. The parties to the complaint did not provide feedback on the draft report and the document was not sent to the Deputy Minister, or designate, for determination. In this regard, counsel for the Employer further advised that Mr. Binda and the Employer agreed to a full and final settlement of all of the former’s employment issues, including those relating to the WDHP complaint, on April 25, 2012.

4Mr. Binda was served with a summons to attend the hearing of October 24, 2012 and to bring the related documents with him. Mr. Binda complied with the summons. The parties elected, however, to argue the motion without presenting any oral or documentary evidence.

5The submissions of the Union may be summarized as follows:

i)At this stage of the proceeding, the appropriate test is whether the documents sought are arguably relevant to the issues raised, and not whether they are, in fact, relevant or admissible. Counsel stressed that he was not addressing the question of admissibility at this juncture. He noted, in this regard, that most of the authorities relied on by the Employer speak to the issue of admissibility and not to the application of the arguably relevant test;

ii)The fact the WDHP process was not completed does not establish that the materials generated therefrom are not arguably relevant. Similarly, the fact that witnesses may have provided information under the “auspices of confidentiality” is not determinative. It was counsel’s submission that the expectations of persons involved in the process as to confidentiality does not serve to protect the Employer from having to disclose arguably relevant materials. Additionally, on his reading, the WDHP policy is not a legal bar to the disclosure of the material requested;

iii)There is a nexus between the material sought and the issues existing in this case. Counsel referenced the following in support of this argument: the complaint of Mr. Binda was filed against the same Employer and relates to the same workplace and department; the complaint, generally, raises issues similar to those raised by the grievor, namely harassment, discrimination, and a poisoned work environment; Mr. Binda was the grievor’s direct supervisor and was involved with responding to her issues from an early stage in the chronology of events; Mr. Binda authored a number of documents that were forwarded to the grievor; the grievor communicated with him as a representative of the Employer; and Mr. Binda, who directed the grievor to return to work, notwithstanding her stated concerns, had also filed the same type of complaint against the Employer;

iv)The documents sought are arguably relevant to the allegation that there are systemic problems in the workplace and that such workplace represents a poisoned work environment. Counsel further submitted they are also arguably relevant to rebut an Employer argument that the workplace is safe. He maintained that the material is not being sought merely to show that Mr. Nieweglowski has a propensity to engage in the type of conduct complained of by the grievor;

v)In this instance, the Union was not a party to the settlement. Rather, the settlement effected was between the Employer and Mr. Binda. On counsel’s analysis, this circumstance serves to distinguish the present case from the authorities relied on by the Employer; and

vi)The parties have agreed in article 22.14.5 of the collective agreement “that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure”. It was counsel’s submission that this provision reflects the parties’ intention to avoid this type of dispute and to ensure a fair process.

6The Union relies on the following authorities in support of its position: OPSEU (Karas) and the Ministry of Natural Resources, GSB #2003/0844 et al. (Mikus); OPSEU (Simon et al.) and the Ministry of Correctional Services, GSB #1390/00 (Mikus); OLBEU (Koonings) and the LCBO, GSB #2003/3101 et al., (Gray); Hotel-Dieu Grace Hospital and the Ontario Nurses’ Association (Thompson Grievance) (2008), 178 L.A.C. (4th) 319 (Brandt); Mirolin Industries v. United Steelworkers of America, Local 13571 (2007), 163 L.A.C. (4th) 385 (Knopf); Queen Elizabeth Hospital v. Ontario Nurses’ Association, [1996] O.L.A.A. No. 175 (Charney).

7The Employer resists the Union’s request for disclosure on three (3) grounds. First, the documents sought represent similar fact evidence. Second, the documents are captured by a full and final settlement, including a release and confidentiality provision. Third, the documents are not arguably relevant to the issues raised by the grievor.

8The submissions of the Employer may be summarized as follows:

i) The WDHP complaint filed by Mr. Binda against Mr. Nieweglowski and the product of the ensuing investigation constitutes similar fact evidence. On the Employer’s analysis, the Union seeks these materials in order to establish that Mr. Nieweglowski has a propensity to engage in acts of harassment and discrimination. Counsel submitted that such evidence is inadmissible for this purpose, as its prejudicial effect outweighs any probative value;

ii) Counsel noted that if the material requested was ultimately presented as evidence, this Vice-Chair would be required to make findings of fact as to whether the Director of the Safe Drinking Water Branch harassed and/or discriminated against Mr. Binda. It was the thrust of her submission that this would be improper given the full and final settlement between the Employer and Mr. Binda. Counsel emphasized that the settlement covered all of the latter’s issues, including those related to his WDHP complaint. She also referenced the fact that the settlement contained a no admission of liability provision, and that it expressly provided for the withdrawal of Mr. Binda’s complaint. Counsel observed that the Grievance Settlement Board has a long history of respecting the sanctity of settlements. She argued that the Employer, in reaching a settlement with Mr. Binda, had a legitimate expectation that his allegations would not later resurface in another guise;

iii) Counsel acknowledged that this Vice-Chair has discretion under section 48(12)(b) of the Labour Relations Act, 1995 to order production of documents prior to, or during the course of, a hearing and that such discretion is also codified in the collective agreement provision referenced above. It was her submission, however, that in deciding whether to exercise the discretion, there is a need to balance the competing interests of the parties. More specifically, the potential prejudice to the Employer must be measured against the probative value to the Union in terms of the latter’s ability to prepare and present its case. Counsel argued that, in this instance, the granting of the Union’s request would be highly prejudicial to the Employer. She noted that the report sought is in draft form and that it was never finalized, as contemplated by the WDHP Program. Additionally, counsel suggested that the witnesses questioned during the investigation gave information to the investigator with the understanding their statements would remain confidential;

iv) Counsel submitted that the documents the Union wants disclosed

relate not to the grievor but to another employee, namely Mr. Binda. It was

her view that there is no nexus between Mr. Binda’s complaint against

Mr. Nieweglowski and the grievor’s concerns. Indeed, she maintained that

the WDHP materials relating to Mr. Binda’s complaint have no probative

value with respect to the issues raised by the grievor in this proceeding.

Counsel reiterated that, from her perspective, the materials requested will

simply be used by the Union to cast Mr. Nieweglowski in a poor light in an

effort to persuade this Vice-Chair to conclude that he has a propensity to

engage in the type of behavior alleged by the grievor; and

v) Lastly, counsel argued that a denial of the Union’s request will not serve to hinder the Union’s preparation of its case. She observed that there has been extensive production between the parties and that the Union has provided substantial particulars to the Employer relating to the grievor’s allegations surrounding harassment, discrimination and poisoned work environment.

9The Employer relies on the following authorities in support of its position: OLBEU (McIlwain) and the LCBO, GSB#2002/2077 (Watters); OPSEU (Deprophetis) and the Ministry of Labour, GSB#2008-3994 (Dissanayake); OPSEU (Louis) and the Ministry of Transportation, GSB#2008/3753 (Harris); OPSEU (Hawkes) and the Ministry of Community Safety and Correctional Services, GSB#2007/2388 et al. (Leighton); OPSEU(Dale) and the Ministry of Health and Long-Term Care, GSB#0783/00 et al.(Abramsky); Hotel-Dieu Grace Hospital and Ontario Nurses’ Association (Bennett Grievance) (1997), Source decision, 62 L.A.C. (4th) 164 (Picher); AMAPCEO (Bokhari) and the Ministry of Economic Development and Trade, GSB#2010-2873 et al. (Dissanayake); West Park Hospital v. Ontario Nurses’ Association (1993), Source decision, 37 L.A.C. (4th) 160 (Knopf).

10The award in West Park Hospital sets out the following factors which must

be considered when a request for disclosure is contested:

1. the information requested must be arguably relevant;

2. the requested information must be particularized so there

is no dispute as to what is desired;

3. the decision-maker should be satisfied that the information is

not being requested as a “fishing expedition”;

4. there must be a clear nexus between the information being

requested and the positions in dispute at the hearing; and

5. the decision-maker should be satisfied that disclosure will not

cause undue prejudice.

11The arguably relevant test was adopted by the Vice-Chairs in Karas, Koonings, and Bokhari and by the Arbitrator in Hotel-Dieu Grace Hospital (Thompson Grievance). The second and third factors listed above are not in contest here. While counsel for the Union is uncertain as to the specifics of Mr. Binda’s WDHP complaint, and as to what the persons interviewed may actually have told the investigator, he clearly particularized the material being requested. Simply stated, the Union seeks disclosure of all information pertaining to, and resulting from, Mr. Binda’s complaint. There is no doubt about what information is being sought. The Vice-Chair in Koonings described a fishing expedition as “an endeavour not to obtain evidence to support a case but to discover whether one has a case at all”. I am satisfied that the request now before me is not tantamount to a fishing expedition. Two (2) days of evidence have already been completed and it is readily apparent that the Union is advancing the following arguments: the discipline imposed on the grievor was unjust; the workplace was unsafe and poisoned; and the grievor was harassed, bullied and discriminated against. I note that counsel for the Employer advised that the Union has provided substantial particulars regarding these positions.

12The decision in Koonings indicates that while the arguable relevance test is less stringent than the test for admission into evidence, the former test does have limits. The limitation was described as follows by the Vice-Chair:

“…………….It does not require production of documents which

could have no probative value with respect to a disputed fact,

either alone or in combination with any other testimonial

or documentary evidence the party seeking them intends to

adduce. Evidence with no possible probative value can have

no relevance………………………………………………………………..”

(paragraph #27)

13It is clear that an order for the production of documents for disclosure purposes does not mean the information disclosed will be later treated as admissible evidence. The following passage from the Hotel-Dieu Grace Hospital (Thompson Grievance) speaks to this point:

“23 The key starting point in applying that test is the

definition of the ‘issue’ that has been put to the

arbitrator for decision. Once that has been determined

a production order may be issued in respect of documents

that are ‘arguably relevant’ to a determination of that

issue. It should be noted as well, at the outset, that what

is being determined is simply whether or not certain

documents in the possession and control of the Hospital

should be produced to the union in order to permit it

a fair opportunity to meet its onus of establishing that

there has been a violation of the collective agreement.

Thus, it should not be assumed that any documents

herein ordered to be produced will necessarily, by that

fact alone, be admitted into evidence. The threshold

for the admission of evidence is a different one from

that for the production of documents and will need

to be met independently.”

14The decision in Deprophetis describes the test for the admission of similar fact

evidence as follows:

“…………Similar fact evidence to become admissible, must meet the

initial test that it has relevance for some purpose other than

it tends to show that the individual was the type of person likely

to have engaged in the alleged conduct.

Once such relevance is established, the trier of fact must also

be satisfied that the probative value of the similar fact evidence

significantly outweighs its prejudicial effect………………………”

(paragraphs #7 and #8)

15Similar fact evidence will not be considered as admissible if its purpose is simply to show that an individual has a propensity to act in a certain way. In McIlwain, similar fact evidence was rejected because it was being presented to show an alleged disposition on the part of the grievor’s District Manager to intimidate and/or threaten employees who attempted to enforce their collective agreement rights. In Deprophetis, similar fact evidence was not admitted as it had no relevance other than to show that the grievor’s Manager was the type of person who was likely to have harassed the grievor by interfering with his decision-making authority. Lastly, in Louis, such evidence was similarly rejected, as it was only led to establish a propensity on the part of the grievor’s Manager to not respond to complaints of racial discrimination at the hands of co-workers.

16This Vice-Chair noted in McIlwain that there is differing treatment of similar

fact evidence in civil, in contrast to criminal cases. The decision cites the following

excerpt from The Law of Evidence in Canada, Sopinka and Lederman:

“Prejudice, which dominates the determination of

admissibility of similar fact evidence in criminal cases,

plays a significantly lesser role in civil cases, and

evidence of similar facts should be admitted if it is

logically probative of the issue in the case as long as,

to borrow from the formula of Lord Denning, it is not

unduly ‘oppressive or unfair’ to the other side.”

(page 577)

17I note that a broad, and more liberal, view as to the scope of admissible evidence has been adopted in cases concerning allegations of harassment, systemic discrimination and poisoned work environment. In Simon, two (2) group grievances were filed alleging that the Employer had violated articles 3 and 9 of the collective agreement. The grievances raised allegations of prolonged systemic discrimination, harassment, anti-union animus, and poisoned work environment. The Vice-Chair there permitted the Union to call evidence relating to incidents involving other employees in the correctional facilities of the Ministry. Her reasons for so doing were expressed as follows:

“14 The issue in this case is an allegation of a prolonged

and systemic discrimination, harassment, anti-union animus

and poisoned work environment. It is the very nature of the

grievance that requires a full hearing into the acts or

omissions alleged to have occurred. Systemic discrimination

does not necessarily consist of similar acts of misconduct but

rather a series of acts or omissions on the part of people who

represent the workplace that, in their totality, can be shown

to contribute to or, conversely, fail to prevent the acts alleged.

If it was required to meet the test of similar fact evidence,

it would be very difficult to prove that the system itself

is the problem and not just individuals within the system.

To adequately evaluate the claims of the grievor, the entire

system is open for review and if it ultimately leads to an

inference of a systemic problem, it will do so on the basis

of the evidence provided. The issue of similar fact evidence

has no bearing on this issue.”

18In Queen Elizabeth Hospital, the grievor raised issues of systemic racial discrimination. The Board of Arbitration there agreed to hear similar fact evidence from other workers who experienced similar discrimination. The explanation for this decision is captured by the following paragraphs of the award:

“19 For the reasons which follow, it is our view that the Union

should be able to call the above-noted evidence of other workers

and the background evidence with respect to the grievor’s

employment history. The Board generally accepts the argument

made by the Union as set out above that this evidence is

relevant and can assist this Board to determine whether

management’s practices towards this grievor constitute racial

discrimination and therefore violate the collective agreement

and the Human Rights Code. It will also assist the Board

to determine whether the grievor is subjected to a work

environment poisoned by racial discrimination.

20 With respect to similar fact evidence, the rule has always

been that one has to weigh the prejudicial

effect of similar fact evidence against its probative value.

In human rights cases, adjudicators have more often taken

the position that an important and sometimes only way to

prove systemic discrimination, whether it involves an

individual or a group of individuals, is to listen to all the

similar fact evidence that is available and then decide what

weight to give it. Such evidence can be used to corroborate

the testimony of a complainant and enable the adjudicator

to make a more informed decision………………………………

26 What the Union alleges is that this series of grievances involves systemic racial discrimination against the grievor and the only legitimate way for the grievor to prove that is to show there has been systemic discrimination in the workplace and that the workplace has been poisoned. The Union argues that simple actions which can easily be explained on an isolated basis become more understandable if they are put in the context of what occurs on a regular basis in this workplace.

27 The Board essentially agrees with that argument, and is of the opinion that the true differences between the parties is alleged discrimination manifested by a series of grievances by this individual. Further, the Board accepts that the probative value of similar fact evidence will outweight the prejudicial value of such evidence.”

19The decision in Simon and the award in Queen Elizabeth Hospital both dealt with the admissibility of evidence and not with a request for disclosure, as here. Given the result in both cases, I think it can be safely inferred that evidence would have been ordered disclosed pursuant to the arguably relevant test if that had been the issue at arbitration.

20Vice-Chairs of the Grievance Settlement Board and other arbitrators are generally disinclined to receive evidence relating to matters which have been resolved by way of a mutual settlement. In Hotel-Dieu Grace Hospital (Bennett Grievance), the Union wanted to lead evidence about another grievance dealing with racial discrimination that had been previously settled. The Arbitrator upheld the Employer’s objection and did not permit the introduction of that evidence. The pertinent excerpt from the award reads:

“……………..We have similar concerns with respect to

allowing evidence to be adduced with respect to the treatment of nurse Prima, to the extent that her human rights complaint was fully settled, on a without prejudice basis. We must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutal settlement.” (paragaph #5)

21In Dale, the Vice-Chair was similarly concerned about hearing evidence concerning numerous other grievances which had been previously settled. The Union there sought to rely on the facts and circumstances underlying the earlier grievances to support its allegation that the action taken by the Employer in the case then before the Grievance Settlement Board was also based on anti-union animus. The Employer objected to the introduction of this evidence on the ground that the prior matters had been fully and finally resolved through a settlement. This objection was sustained by the Vice-Chair. In the course of her decision, she observed:

“The GSB has long recognized the critical importance of settlements and their enforcement.”

(paragraph #16)

-and-

“Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise.”

(paragraph #17)

22This Vice-Chair accepted the approach adopted in Hotel-Dieu Grace Hospital (Bennett Grievance) and in Dale in the course of rendering the decision in McIlwain. The relevant part of that decision reads:

“31 After fully considering the submissions of both parties, I conclude that the Union should be precluded from presenting evidence about the facts and circumstances underlying the grievances of Mr. Jeremschuk and Mr. Chrysler, notwithstanding the degree of similarity alleged between their situations and the treatment received by Mr. McIlwain. I reach this conclusion because of the fact that the Jeremschuk and Chrysler grievances were resolved by Minutes of Settlement which intended to provide for a full and final, and without prejudice or precedent, resolve to the complaints. I share the concerns expressed in Re Hotel-Dieu Grace Hospital and Dale et al. with respect to the consequences which could potentially follow from a decision to admit the contested evidence. More specifically, this Vice-Chair could be called upon to make adverse findings against the Employer in respect of Mr. Poulin’s treatment of Mr. Jeremschuk and Mr. Chrysler when these very issues have been the subject of a mutual settlement. I, too, am reluctant to proceed down that road, as I believe that it could serve to undermine the parties’ confidence in final settlements and their legitimate expectation that settled matters will not reappear in some different guise. This reasoning would also apply to evidence about the 1997 Labour Board Application and the Furey grievance.”

23In Hotel-Dieu Grace Hospital (Thompson Grievance), the grievor filed a statement of concern” pursuant to the Workplace Violence Prevention Program in effect at the Hospital. That filing subsequently led to an investigation of the grievor’s concern about the conduct of a surgeon while they were both in the operating room. The grievor was not satisfied with the results of the investigation and grieved that the Employer had failed to take all necessary steps to maintain a safe workplace free from violence, harassment and discrimination. At arbitration, the Union sought production of a number of documents relating to the investigation and two (2) follow-up investigations involving allegations of similar conduct towards other members of the operating staff. The documents requested included interview notes, witness statements, other material produced in connection with the investigations, and a copy of the full reports issued. This request was opposed by the Employer. It was the Employer’s submission that the process contained in the Workplace Violence Prevention Program was an “internal process” that functioned on an expectation of confidentiality. It maintained that opening up the process through a production order “would have a chilling effect that would deprive the program of its efficacy”. The Employer relied on certain provisions in the policy relating to confidentiality to support this position. The Employer’s position was rejected by the Arbitrator. His reasoning is reflected in the following passages from the award:

“29 In my opinion this argument cannot be sustained. While it may be the case that the program will work best when strict confidentiality is maintained, I do not believe that decisions or actions taken under the program are completely immune from review………………………………………………………….

30 I find further support for this conclusion in paragraph 7 immediately preceding in which it is said that the Hospital will “do its best to preserve and protect confidentiality in the alleged case” but that “where required by law or required in order to investigate and/or resolve the matter it may be necessary for [the Hospital]to take action.” If it were intended that investigative proceedings under the Program were completely immune from review this is where one would expect language to that effect to appear. However, the paragraph in question acknowledges that there may need to be exceptions, one of which is where the Hospital is required “by law” to compromise confidentiality. This is one of those cases. I am appointed by the Minister of Labour, pursuant to a statute of the Province of Ontario which statute gives me certain discretionary powers, inter alia, to order the production of documents.

31 In reaching this conclusion I am supported by the decision of Arbitrator Briggs in Children’s Aid Society of City of Belleville (1994), Source decision, 42 L.A.C. (4th) 259 where the arbitrator found that an employer manual creating a policy of non-disclosure of personal information to a third party cannot be a legal bar to an order of production of arguably relevant documents that an arbitrator may make in the exercise of his/her discretion to ensure a fair process.

32 Thus, I conclude that I am not barred by the terms of the Program from ordering production of documents in an appropriate case.”

24I note that the WDHP Program Guide contains the following provision under the heading of ‘Confidentiality and Privacy’.

“During and after an investigation and resolution of alleged

policy violations, all information must remain strictly confidential except when sharing this information is required by collective agreement provisions or by law.”

The above-mentioned exceptions would, in my judgment, encompass the disclosure of information pursuant to the application of the arguably relevant test.

25After considering the submissions of the parties, I am satisfied that the documents requested by the Union are arguably relevant to the issues raised by the grievor in this proceeding. In my judgment, there is a firm nexus between the information sought and the grievor’s claim that she was harassed, bullied and discriminated against in the workplace. While this Vice-Chair was not informed of the specifics of Mr. Binda’s WDHP complaint, I was left with the impression that he may have been concerned about similar treatment. Additionally, I find that the documents requested are arguably relevant to the following allegations of the grievor: the workplace is unsafe; the workplace constitutes a poisoned work environment; and there is a pattern of systemic discrimination existing therein. It is material that both the grievor and Mr. Binda were positioned in the same workplace and department. I also think it significant that Mr. Binda was the grievor’s immediate Manager, and that he directed her back to work on several occasions, notwithstanding he was aware of her concerns. The subsequent filing of his WDHP complaint may arguably shed light on the very relevant question as to whether the grievor’s concerns were legitimate and well founded.

26I have not been persuaded that an order for disclosure will result in undue prejudice to the Employer. For purposes of the instant request, I do not think it matters that the complaint process initiated by Mr. Binda was not finalized and that the report remains in draft form. These facts do not detract from the arguable relevance of the information generated by the process. An issue as to the appropriate degree of weight to accord to same might arise if such information is subsequently deemed to be admissible evidence. Further, I conclude that an order to disclose arguably relevant information, which may have been provided under an expectation of confidentiality, cannot be viewed as causing undue prejudice particularly when such disclosure is made pursuant to collective agreement and statutory provisions. In this regard, I adopt the reasoning expressed in Hotel-Dieu Grace Hospital (Thompson Grievance). Lastly, I note the language of the WDHP Program clearly contemplates that information may have to be disclosed under the aforementioned authority.

27The authorities relied on by the Employer in respect of the treatment of both similar fact evidence and settlements all dealt with the issue of admissibility of evidence, and not whether certain materials should be disclosed under an arguable relevance test. Those cases all required the application of a different, and more stringent, standard. At this stage, I am not required to determine the admissibility of evidence. To reiterate, I must determine whether the documents requested by the Union should be disclosed. It would be premature to now deal with the issue of admissibility. If that issue subsequently arises with respect to similar fact evidence and/or the treatment to be given to settlements, this Vice-Chair will determine same in accordance with the submissions of the parties as referenced above. I accordingly reserve decision on those issues.

28For all the above reasons, I order the Employer to disclose the documents requested by the Union.