GSB# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219; 2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845; 2017-1846

UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012; 2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542-0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lupiani)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 21, 2018

DECISION

1The Board initially convened on July 18 and 19 of 2017 to deal with a number of variously dated grievances filed by Ms. Nancy Lupiani (“Grievor”). Subsequently, on the agreement of the parties three more grievances filed by her in 2017 (“the 2017 grievances”) were consolidated with those grievances and the union provided particulars to the employer relating to the 2017 grievances bearing GSB file numbers 2017-1845, 2017-1846 and 2017-1808.

2When the Board convened on June 21 2018, union counsel advised that there were a number of disagreements relating to production requests made by the union. After hearing the nature of the disputes and the parties’ respective positions, the Board provided instructions and directed that the parties attempt to resolve, or at least narrow the production issues. The parties engaged in discussions and advised that many of the disputed issues had been resolved. The union had clarified and/or amended its production requests in some cases to enable resolution. The parties described the resolutions reached, and requested that they be set out in a decision. They made submissions on the issues that remained in dispute, and requested that the Board rule on them.

3Resolutions reached between the parties

(1) The union had requested production of “Any and all communications, emails, memoranda or any documents in Mr. Swain’s possession, direction or control regarding the grievor’s accommodation and any discipline that was imposed upon the grievor”. The employer represented to the union that it had complied with that request.

(2) The union had requested production of “Any documents relating to the grievor’s first WDHP complaint”. The employer agreed to comply with the request.

(3) The union had requested production of “Any notes taken during any of the allegation meetings that led to the discipline being dealt with in this case”. Employer counsel stated that the employer believes that all notes taken during allegation meetings have been already produced to the union.

(4) The union sought particulars regarding how early Ms. Lisa Rowlings was involved with the grievor’s file. It was agreed that those particulars had been provided.

(5) The Board was advised that the employer had agreed to search for the following production requested by the union:

(a) Any and all notes, emails, correspondence, memoranda or any other documents in Deborah Burrell’s possession regarding the facts particularized at paragraphs 18, 21-27, 37-38, 42 of the most recent particulars.

(b) Any and all notes, emails, correspondence, memoranda or any other documents in Alyssa Kellman’s possession regarding the (facts particularized at paragraphs 39, 34-37, 39-42, 44, 46 of the particulars;

(c) Any and all notes, emails, correspondence, memoranda or any other documents in Lisa Rawlings’ possession regarding the facts particularized at paragraphs 11-13, 15, 17-20, 26-27, 35, 37, 40-42, 44;

(d) Any and all notes, emails correspondence, memoranda or any other documents in Susan Miller’s possession regarding the facts particularized at paragraph 14;

(e) Any and all notes, emails, correspondence, memoranda or any other documents in Maria Tejeda’s possession regarding the facts particularized at paragraph 15;

6The union sought production of “any and all emails that are in any way arguably relevant to any of the disciplinary sanctions that have been imposed on the grievor”. The employer took the position that it believes that the requested material had been already disclosed, but undertook to search whether any other arguably relevant documents not yet disclosed exist.

7The union had requested disclosure of the following:

• Any and all notes, emails, correspondence, memoranda or any other documents in Amanda Ryan’s possession regarding the Grievor for the time period when Ms. Ryan was assigned to the grievor’s file;

• Any and all notes that Ms. Ryan took during any meetings she attended with the Grievor or that concerned the Grievor in any way;

Union counsel pointed out that Ms. Ryan is referred to in para. 14 of the particulars (infra), as well as at paragraph’s 140 and 159 of the grievor’s will say statement. Following an exchange between counsel, union counsel clarified that the disclosure request is limited to any documents related to the assertions in paragraphs 140 and 159 of the will say statement. Subject to that clarification, the employer agreed that it would search for any documents that are arguably relevant.

4Submissions and rulings on production issues in dispute

The law is settled with regard to factors that govern a request for disclosure, and is summarized in the often quoted decision in Re West Park Hospital, (1993) 37 L.A.C. (4th ) 160 (Knopf). At p. 167, the Board wrote:

Where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition” Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice. In this regard, the criteria set out in the Desmarais and Morrissette case are applicable in terms of weighting whether or not privileged information should be protected. (Page. 167)

5Now I turn to the specific disputes between the parties. The union had requested disclosure of, “Any and all documents in Lianne Pollock’s possession concerning the grievor’s accommodation issues and the first discipline that was imposed, as well as the first WDHP complaint, and Ms. Pollock’s communications with Ms. Lisa Rawlings at any point in time.” Union counsel pointed out that Ms. Pollock is referred to in paragraph 14 of the union’s particulars. It reads:

In and around May, 2014 the grievor contacted Ms. Pollock’s manager, Susan Miller, advising that she could not work with Ms. Pollock and asking that she be reassigned. The grievor had to follow-up with Ms. Miller several times until she got a response several months later, and only after the grievor threatened to escalate the issue to higher levels of management. The Grievor had requested for Ms. Pollock to be taken off of her file as it was apparent that Ms. Pollock had a personal vendetta against the Grievor and her behaviour in the first meeting in May was so offensive that the Grievor knew she would never feel safe interacting with Ms. Pollock. However, Ms. Pollock remained copied on all emails. In late August/early September Ms. Miller assigned Pasqua Cantacessi to the Grievor’s file. In December, at the first Fact-Finding meeting Ms. Miller tried to reassign Ms. Pollock to the Grievor’s file. The Grievor again wrote to Ms. Miller stating that it would be an inequitable meeting because of Ms. Pollock’s egregious past behaviour towards the Grievor. Shortly thereafter and with no explanation Amanda Ryan, a different ERA showed up at the meeting instead. The Grievor was told Ms. Pollock eventually moved to a different area within the OPS but in fact remained involved with the Grievor’s file by being copied on email exchanges concerning the Grievor’s case. So while Mr. Ryan sat in on meetings Ms. Pollock remained active and involved in the grievor’s file.

6Counsel also referred to the grievor’s will say statement, which describes Ms. Pollock’s participation as Human Resources Advisor at a return to work meeting held on or about May 9, 2014. The grievor alleges, inter alia, that at that meeting Ms. Pollock made several disparaging remarks about her, implying that she was a “lazy troublemaker” because she was asserting her right to accommodation, that Ms. Pollock assaulted and abused the grievor’s character and self-esteem, and that it caused the grievor to request that Ms. Pollock be removed from her file. Referring to para. 151 of the will say statement, counsel stated that in January 2015, the grievor also filed a WDHP complaint against Ms. Pollock, among others, which was held to be “out of scope”. Counsel submitted that any documents relating to Ms. Pollock’s involvement in these alleged events are arguably relevant.

7Employer counsel submitted that the request should be denied because it lacks sufficient specificity. She pointed out that no time period or any incidents of concern are identified. Counsel further pointed out that the will say statement had been submitted some six months earlier. To make the request for disclosure at this late stage would add to the delay in the proceeding.

8In reply, union counsel pointed out that this request relates to the 2017 grievances which were consolidated only in July 2017, and there has been no undue delay.

9I am of the view that the will say statement of the grievor sufficiently identifies Ms. Pollock’s involvement with the grievor, and the allegations relating to her conduct during that involvement. I am also satisfied that the fact that the will say statement was provided six months earlier is not a reason to deny production of documents arguably relevant to Ms. Pollock’s involvement in the identified events. The parties are still dealing with other disclosure issues and no evidence has been led. Therefore, there is no undue delay that would prejudice the employer or the proceeding itself, particularly considering that this request relates to the 2017 grievances. Therefore, the employer is ordered to disclose the material requested by the union.

10The next issue in dispute relates to the union’s request for disclosure of “Any and all notes, emails, correspondence, memoranda or any other documents in Ms. Pasqua Cantacessi’s possession regarding the grievor for the time period when Ms. Cantacessi was assigned to the grievor’s file”. Union counsel clarified that the request is for disclosure of material only relating to the grievor’s accommodation during the period between August 2014 to December 2014 approximately, when Ms. Cantacessi was assigned to the grievor’s file.

11Employer counsel submitted that while specifics have now been provided relating to the time period and the type of documents sought, the request should still be denied. Counsel stated that the employer agrees that Ms. Cantacessi had been assigned to the grievor’s file during that period. However, there is no allegation made against Ms. Cantacessi. The mere fact that she was assigned to the file does not entitle the union to the requested disclosure.

12I agree with union counsel that the absence of any allegation relating to Ms. Cantacessi is of no significance. If she is in possession of any of the material which are arguably relevant to the issues in dispute in this case, they are subject to disclosure, and it is ordered that disclosure be made accordingly.

13The final issue remaining in dispute relates to the request for disclosure of “Any and all notes, emails, correspondence, memoranda or any other documents in Ms. Patricia Hudson’s possession regarding the facts particularized at paragraph 15”.

14Paragraph 15 of the particulars read:

In and around late November 2014, the Grievor sent an email to her union representatives blind carbon copying the human resources strategic unit, namely the Director Maria Tejeda and Coordinator Patricia Hudson. This was regarding the disciplinary action the employer had taken against her and the harassment and discrimination she was suffering. This information was then passed down the chain from ADM Heidi Francis, to Mr. Hudebine, who shared the information with Ms. Rawlings and Mr. Swain in order to give off the perception of proactive steps being taken.

15Union counsel stated that while the employer had provided disclosure with regard to the Director, Ms. Maria Tejeda, it has not done so with regard to Ms. Hudson on the grounds that she is no longer employed in the Ontario Public Service.

16Employer counsel submitted that the disclosure request as it relates to Ms. Hudson is objected to on the basis of the principle of proportionality. The employer complied with the disclosure request as it related to Tejeda, because as Director she had much more involvement with the grievor than simply being blind copied by the grievor on an email. Therefore, that request met the proportionality test.

17Counsel submitted that in contrast, the only involvement attributed to Ms. Hudson is that the grievor had blind copied Ms. Hudson on one e-mail she sent to her union representatives. Counsel submitted that since Ms. Hudson was no longer employed in the OPS all her documentation had been archived in accordance with government policy. A search of archived material would have to be manually done by an IT Specialist. That would entail significant time and monetary costs to the employer. Even if ordered to make production, there is no assurance that it is possible to do a successful search. In any event such a search will take significant time to complete and would delay the arbitration proceeding. Given Ms. Hudson’s very limited involvement, it may turn out that no documents arguably relevant to the issues in dispute in this arbitration exist. Considering that at this stage the email by the grievor blind copied to Ms. Hudson is her only involvement with the grievor, compared to the significant time and financial resources required for a search, counsel submitted that the proportionality principle should be applied in favour of not ordering the disclosure requested. Counsel submitted that if it is disclosed as the hearing progresses that Ms. Hudson had more extensive involvement with the issues in the grievances, the union may at that point make a request for disclosure.

18I agree with the employer’s position. The only involvement by Ms. Hudson asserted is an act initiated by the grievor herself, when she chose to blind copy Ms. Hudson on an email she sent to her union representative. She could have chosen to blind copy any number of staff members on her email. That by itself does not entitle her to production from each staff member, when considering the burden imposed in the employer. Considering the time and costs involved in undertaking such a search, the proportionality principle supports the employer’s position. Therefore, the request for an order for production is denied.

19During submissions, on a number of occasions union counsel stated that while the union at the time was willing to limit the extent of production request, he was reserving the right to make further request for production as necessary if new information is disclosed during the hearing. Similarly, on two occasions, employer counsel submitted that the union’s request for production was inappropriate “at this stage”, and added that the union may make further production requests if appropriate.

20Following submissions, the parties turned to a timeline for complying with the production, either agreed to or resulting from Board rulings. The parties made representations as to an appropriate timeline. The Board ultimately ruled as follows. The employer shall forward to union counsel production as and when it is able to obtain them. In any event, the employer shall make best efforts to complete all production no later than the end of July 2018. If the employer, following efforts to comply, is of the view that it is not possible to complete any of the production requests by that date, counsel is to communicate that to union counsel, explaining efforts it had made, which production requests need an extension, and seeking an extension of the timeline. If there is no agreement on the employer’s request for extension, that may be referred to the Board for ruling.

21The hearing will proceed on the dates scheduled, and the Board remains seized.