GSB#2016-1319; 2016-1320
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
The Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi)
Association
- and –
The Crown in Right of Ontario (Treasury Board Secretariat)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE ASSOCIATION
Mark Wright Goldblatt Partners LLP Counsel
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
Written submissions
Decision
1The Association seeks an order that the Employer prove, through independent third party evidence, the authenticity and completeness of what it describes as the “e-mail record” which has been filed. In the alternative, the Association seeks such an order in relation to part of that record and to a specific email which the Complainant claims to have received and the Employer denies having sent.
2The Association argues there are reasonable grounds to doubt the authenticity of the copies of the emails filed by the Employer and that it is therefore incumbent on the Employer to prove the authenticity of those emails. Further, the Association argues there are reasonable grounds to doubt the completeness of the email record provided. On this basis, The Association relies upon s. 34.1 of the Evidence Act, R.S.O. 1990, C. E.23, as amended, which establishes rules relating to authentication and best evidence with respect to electronic records.
3The Association’s argument derives from emails and attachments to those emails relating to two incidents. One was a meeting which took place on January 27, 2015 involving Ms. Egesi (the complainant), Ms. Lindsay Stidwell (an AMAPCEO representative), and two managers, Ms. Lydia Lim and Ms. Linda Zhu, with respect to compressed work week (“CWW”) procedures. The other incident took place on January 29, 2015 between Ms. Zhu and Ms. Egesi. I find it useful to commence by summarizing the evidence thus far with respect to these incidents.
4The evidence in chief in this case has principally taken the form of detailed declarations, the contents of which are adopted by the declarant. The declarants are subject to cross-examination and re-examination on that evidence.
5Ms. Egesi was the only witness called on behalf of the Association.
6The Employer’s case is not complete. Thus far, it has called Ms. Zhu. Ms. Zhu’s declaration makes reference to a number of emails. What purport to be copies of all of those emails have been filed as exhibits (Exhibits 8 and 9). Ms. Zhu has given her evidence in chief and is still subject to cross examination. The Association indicated that it was seeking an order directing independent verification of all of the emails contained in Exhibits 8 and 9 and production to it of original “electronic copies” of those emails, prior to completion of its cross examination. The parties agreed to proceed by means of written submissions.
The January 27, 2015 Meeting
7Ms. Egesi’s evidence in her declaration with respect to this meeting is as follows:
- On January 27, 2015, I attended a meeting which management had called to discuss the need to strictly keep to the CWW procedures. There had been, I think, two occasions when I called in, due to personal circumstances which had developed, to say that I would be arriving late to work, but would work back the
time. This type of flexibility was previously allowed, but was not to be accommodated under the CWW in the future. After the meeting, I sent an email to thank management for its clarification of the CWW policy. Up to this time, considerable flexibility in working back time, in my case, had been provided by management. Also, Richard King had previously mentioned to me that the members of the capital markets audit team worked from home regularly.
- Date: Tue, 27 Jan 2015
Hi Linda:
I am grateful for the clarification of the CWW rules provided by yourself and Lydia this morning.
I will re-read the rules and together with the clarifications provided, endeavour to practise them effectively.
I request accommodation to have my half hour lunch whenever I am hungry as this will help me to control my blood sugar.
It is my intention to be a hard-working compliant employee who practises the OPS VALUES.
- In response, management acknowledged my email in an email from Linda of January 27, 2015 which implied that my summary of the meeting was consistent with theirs and that the parties were now moving on.
8Ms. Egesi was cross-examined on this evidence. In cross examination she agreed that the email which she sent to Ms. Lim was not actually worded as set out in paragraph 12 of her declaration. In particular, the email she sent to Ms. Lim did not include the sentence “I request accommodation to have my half hour lunch whenever I am hungry as this will help me to control my blood sugar.” It was put to Ms. Egesi that the Employer had conducted a search of its emails and there was no response to her from Ms. Lim, contrary to what Ms. Egesi had said in paragraph 13 of her declaration. Ms. Egesi maintained that there had been such a response. It was also put to Ms. Egesi that the Employer’s evidence would be that she had become quite heated during the meeting of January 27, 2015. Ms. Egesi denied that this was the case.
9Ms. Zhu’s declaration contains the following paragraphs with respect to the January 27, 2015:
In my respectful view, Karen’s evidence at paragraph #13 is false. I have scanned all of the relevant emails and have also asked Linda Lim and no email of Karen’s version of events summary was sent to Linda Lim.
I have also confirmed that no acknowledgment of her version of events summary was made, no consensus was reached.
Karen’s conduct was inappropriate at the meeting by yelling and shouting at Linda Lim.