Ontario Public Service Employees Union (Miller) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 55862

GSB# 2017-0127

UNION# 2017-0369-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Miller)

Union

• and -

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

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair and Holmes, LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

May 18, 2018

Decision

1This preliminary motion arises from the Grievor’s discharge from employment as a correctional officer for failing to do a visual scan and identifying a fight on July 25, 2016; failing to conduct a proper watch tour and failing to notice an injured inmate that same day; and failing to remove a weight bag from the dayroom area, also on July 25, 2016.

2The Employer previously fulfilled the Union’s production requests and made an Opening Statement. The Arbitrator and Counsel then attended at the correctional facility to view the facilities where the Grievor’s alleged failures to carry out his duties occurred. Several continuation dates have been set, with the next days of hearing scheduled for June 4 and 18, 2018, at which time the Union will give its’ Opening Statement.

3The Union has very recently asked for additional production regarding three occasions where inmate fights and resulting injuries were allegedly missed by staff and for which no discipline was imposed. The Union has provided the date and Unit of the alleged occurrences and stated that management was aware that the incidents were missed by staff, but took no disciplinary action. The Union seeks production surrounding these incidents, maintaining that these documents are arguably relevant to whether the discharge of the Grievor constitutes discriminatory or differential discipline.

4Counsel for the Employer submitted that the Union has not satisfied the degree of specificity required in detailing the incidents for which production is sought and has therefore not established a sufficient nexus between these events and the issues before me at arbitration. In the Employer’s submission, the Union’s request amounts to an impermissible “fishing expedition”. The Employer further argued that the granting of an order for production would unduly delay the proceedings and it would be prejudiced as a consequence.

5In light of the timing of the upcoming dates, and the desire to ensure that this matter can proceed as expeditiously as possible, the parties indicated that they were content to receive abbreviated reasons, reserving their right to request further elaboration in my final decision. Therefore, having considered the submissions of the parties and the authorities cited to me, I have determined that production of the documents requested in Union counsel’s letter of May 16, 2018, should be ordered for the following reasons:

1. The requests relate to matters that are arguably relevant to the matter before me;

2. The Union has provided sufficient detail so that the Employer knows what is being sought;

3. Although the evidence may not ultimately be sufficient to establish a case of differential treatment in the disciplinary response to the Grievor’s conduct, there is a sufficient nexus between the events described by the Union and the facts at issue before me. The Union has set out specific dates, locations and lack of management response on three occasions where inmate fighting and/or injury were missed by staff during the course of their duties. I regard that as sufficient in this case to demonstrate that this is not a mere fishing expedition;

4. I am also satisfied that production can be achieved without undue delay and that any prejudice to the Employer can be mitigated through management of the process and the opportunity to address the issue of the appropriate remedy, if required;

5. Finally, I am mindful that this is a discharge case and that care must be taken to ensure that the Union has a full opportunity to challenge the Grievor’s termination.

6I would therefore order as follows:

i. The Employer will produce the documents requested by the Union by 5:00 p.m. on May 30, 2018;

ii. The next hearing day will commence at 1:00 p.m. on June 4, 2018, at which time the Union will provide its’ Opening Statement;

iii. The Union will include particulars of any assertions of discrimination or differential treatment it intends to rely upon in its’ Opening Statement;

iv. At the conclusion of the Union’s Opening Statement I will entertain requests from Employer Counsel for written particulars from the Union, the opportunity to provide a supplemental Opening Statement or any other procedural issues arising from this Order.