GSB#2010-2654

UNION#2010-0234-0283

Additional grievances noted in Appendix “A”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pacheco)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

John Brewin and Manprit Singh Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

TELECONFERENCE

January 29, 2018

DECISION

1I am hearing a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. We are at the stage where the Employer is calling evidence and Mr. Dykstra, a Manager, is being cross-examined. The Union made a number of disclosure requests that relate primarily to Mr. Dykstra’s testimony. These disclosure requests were addressed during a conference call held on Monday, January 29, 2018. Having regard to nature of the discussion during the conference call, I am not required to rule on all of the approximately 25 disclosure requests. In commenting on the requests and when ruling on some of them, I will reference the numbered List of requests prepared and distributed by Mr. Brewin in advance of the conference call and his email dated email dated January 28, 2018, which included two disclosure requests. I note that the requests numbered 1 and 18 on the List were withdrawn by the Union before the conference call.

2Items 2 to 13 on the List request the Employer to produce Mr. Dykstra’s hand-written and typed notes of a number of allegation and disciplinary meetings. Item 14 requests all correspondence between the Employer and Mr. Dunscombe in relation to Mr. Pacheco and/or the audio of Feb.12, 2016. Mr. Dunscombe was an investigator for one of the incidents for which Mr. Pacheco was disciplined. With respect to these items, the Employer takes the position that it has produced all of the notes and correspondence in its possession. Employer counsel undertook to verify again that the Employer has produced all of the requested items in its procession.

3Items 15 and 16 on the List request the production of certain draft allegation letters and draft disciplinary letters that were referenced in Mr. Dykstra’s testimony. On the basis of the submissions on this issue, I am not satisfied that these draft letters have any relevance to the issues in dispute. The focus must be on the actual allegation and disciplinary letters issued to Mr. Pacheco. The mere fact that a witness makes reference in his or her testimony to the preparation of draft letters prior to issuing a letter does not, by itself, make the draft letters relevant. The request for these items does appear to fall within the category of a fishing expedition. The Union’s request is therefore denied.

4Item 17 on the List requests Mr. Dykstra’s office and cell phone records for Feb. 25, 2016. The reason for this request is to determine if Mr. Dykstra was credible when he testified about the manner in which he communicated with Ms. A. Fowler on Feb. 25, 2016. The Union wishes to ascertain if Mr. Dykstra communicated with Ms. Fowler by phone, contrary to what he said in his testimony. There is nothing in the evidence to suggest that Mr. Dykstra’s recollection of his manner of communication with Ms. Fowler is not credible. A witness will likely refer to many matters that are not particularly relevant to the central issues in a dispute and his or her recollection of these kinds of matters may not be perfect. However, in my view, the purpose of the disclosure process is not intended to permit a party to request disclosure of an item to corroborate the credibility of a witness on a matter that has no particular relevance to the central issues in dispute. Credibility is important of course, but it does not justify a disclosure request that is based only on checking to determine whether a witness’s testimony is accurate on a matter of no particular relevance. There is no justification for the disclosure request set out in item 17. This request also appears to fall within the category of a fishing expedition. This Union request is denied.

5With respect to the disclosure requested on the List in items 19, 20, 23 and 24, Union counsel advised that he would first deal with these matters by asking Mr. Dykstra further questions. It may be that there are no documents relating to these matters.

6Item 21 on the List requests the disclosure of Mr. Dykstra’s OCSC training records. The Union wishes to get some confirmation of Mr. Dykstra’s investigative training. This issue was addressed in Mr. Dykstra’s evidence-in-chief. I find that the requested document is arguably relevant and direct the Employer to produce Mr. Dykstra’s OCSC training records.

7Item 22 requests time sheets for all Bailiffs for July 24, 2015, in order to test Mr. Dykstra’s assertion that the workplace restoration meeting on July 24, 2015, lasted about 6 hours. My response to this request is the same as the response I gave in paragraph 4. This disclosure request is over a statement Mr. Dykstra made that has no particular relevance to the central issues in dispute. This Union request is denied.

8Item 25 requests documentation that relates to the Union’s request to certain employees to produce ORs on the incident giving rise to the 15-day suspension. It is not clear that the requests at issue were made in writing. However, if the requests of the three employees to produce ORs were made in writing, the Employer should produce the documentation the Union has requested if they still have it in their possession.

9As noted previously, Union counsel made two additional disclosure requests in his email dated January 28, 2018. The Union requests the Employer to produce the ORs relating to an incident that occurred in 2015 involving Mr. Nelson and Mr. Powis. The Employer now responds to this request by indicating that Maplehurst and the Offender Transport Unit is not in possession of such ORs.

10The second disclosure request in the email is the Union’s request for the Employer to produce a Memorandum of Settlement that resolved a previous employment issue between Mr. Dykstra and the Ministry. Apart from whether this document contains a confidentiality provision, I am satisfied that such a document and its terms can have no relevance to the central issues in this proceeding. The Union’s request for the disclosure of this document is therefore denied. I understand that Union counsel may have further questions of Mr. Dykstra about his history with Mr. Nelson. This ruling does not decide whether any of these questions would be relevant.

11The hearing of Mr. Pacheco’s discipline grievances will continue on February 2, 2018. It is anticipated that Mr. Dykstra’s testimony will be completed on that day.

Dated at Toronto, Ontario this 31^st^ day of January 2018.

Appendix A

GSB Number

OPSEU File Number

2012-0727

2012-0234-0066

2013-3214

2013-0234-0359

2014-0350

2014-0234-0061

2014-3305

2014-0234-0458

2014-3846

2014-0234-0508

2014-4854

2015-0234-0030

2015-0390

2015-0234-0058

2015-0494

2015-0234-0069

2015-0495

2015-0234-0070

2015-0496

2015-0234-0071

2015-0913

2015-0234-0085

2015-0914

2015-0234-0086

2015-0915

2015-0234-0087

2015-0916

2015-0234-0088

2015-1310

2015-0234-0108

2015-1311

2015-0234-0109

2015-1312

2015-0234-0110

2015-1313

2015-0234-0111

2015-1314

2015-0234-0112

2015-1315

2015-0234-0113

2015-1316

2015-0234-0114

2015-1317

2015-0234-0115

2015-1318

2015-0234-0116

2015-1319

2015-0234-0117

2015-1320

2015-0234-0118

2015-1321

2015-0234-0119