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 the Solicitor General)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 5, 27; March 27; May 6, 31; June 20, 25, 26; September 4, 5, 25, 26; October 3, 9 and 10, 2019

DECISION

1The proceeding before me commenced in March of 2016. It involves four discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. There is a grievance dated February 12, 2015, which challenged a 10-day suspension issued on February 6, 2015. A second grievance, dated May 29, 2015, challenged a 15-day suspension issued on May 25, 2015. The third grievance is dated December 7, 2015, and it challenged a 20-day suspension issued on December 7, 2015. And finally, the fourth grievance is dated March 3, 2016, and it challenged the March 2, 2016 termination of Mr. Pacheco's employment. Following a mediation session in June of 2017, the Employer elected to return Mr. Pacheco to employment as a Bailiff in the Offender Transfer Operations unit ("OTO") located at the Maplehurst Correctional Complex ("Maplehurst"). It took this step without prejudice to its position on the termination grievance since it maintained that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to be compensated for his losses.

2We are now at the stage in this proceeding where the Employer has essentially completed calling its evidence on the merits of the four discipline grievances. The Employer's evidence on the merits required at least 55 hearing days. There were other days of hearing that were devoted to other matters, including the resolution of disputes over the production of documents. The issue now before me can be characterized as another dispute relating to production in that it relates to a request for access to some of the Employer's electronically stored information ("ESI").

3This decision deals with the Union's request for an order directing the Employer to provide Computer Forensics Inc. ("CFI") access to the Employer's ESI for the purpose of conducting a forensic study on behalf of the Union on data which the Union claims is relevant to this proceeding. In particular, the Union seeks such access for the purpose of conducting an analysis of 65 documents that have been introduced in this proceeding which the Union has listed on a Schedule A and for the purpose of studying the wiping out of potentially relevant data in three computers in the Bailiff's office at Maplehurst in September of 2017. The Employer strongly opposes the Union's motion. In addition to claiming that there is no basis for issuing such an order in the circumstances, the Employer also asserts that an arbitrator of the Grievance Settlement Board ("GSB") does not have the jurisdiction to issue the order requested by the Union.

4The parties agreed at the outset that the motion would only address the general threshold issue of whether the Union was entitled to the order it requested. At this stage the parties did not address the questions of what process would be used to give CFI access to the ESI or what restrictions to that access were appropriate. Union counsel indicated that these matters would be set aside for now and subsequently dealt with by the parties if I decided the threshold issue in the Union's favour.

5The Union's motion consumed 15 hearing days. The evidence of the five witnesses took 13 days and the submissions of counsel took 2 days. The Union called Mr. M. Musters to testify. Mr. Musters is the Director of Forensics for CFI and someone who has considerable experience in forensic investigations. The Employer called four witnesses. Ms. A. Cameron is a Forensic Specialist, Ontario Internal Audit Division, Treasury Board Secretariat. Ms. Cameron is also an experienced forensic investigator. It was agreed by the parties that Mr. Musters and Ms. Cameron were expert witnesses. The Employer also called Mr. A. Garbacz, Mr. G. Brown and Mr. D. Fowler to testify. Mr. Garbacz is a Security Manager and IT site contact at Maplehurst. Mr. Brown has had various positions in Archives Ontario, including Manager, Record Keeping Strategy Unit. Mr. Fowler is a Senior Systems Administrator, Email Enterprise Service Operation.

6During his submissions on the motion, Union counsel argued that I did have the jurisdiction to grant the order requested by the Union and he referred me to article 22 of the Collective Agreement and parts of s. 48 (12) of the Ontario Labour Relations Act ("LRA"). On the merits of the motion, counsel submitted that the ESI the Union wanted to access was arguably relevant to issues in dispute in this proceeding. He also submitted that I would be required, in effect, to consider the relevant factors and engage in a cost benefit analysis to determine whether it was appropriate to grant the Union access to the arguably relevant ESI. Counsel argued that the probative value of the data that the Union is seeking through a forensic investigation outweighs other relevant factors in the circumstances of this case. Counsel submitted that I should grant the requested order to ensure a fair hearing for Mr. Pacheco. Union counsel provided me with the following decisions: Re Toronto District School Board and C.U.P.E., Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime); Re Ottawa (City) and C.I.P.P. (2010), 191 L.A.C. (4th) 62 (R. Brown); Toronto Transit Commission and ATU, Local 113 (Candela), 2016 CarswellOnt 19288 (Stout); and, West Park Hospital and O.N.A., 1993 CanLII 16806 (ON LA), 1993 CarswellOnt 1283 (Knopf).

7As noted previously, the Employer took the position that an arbitrator at the GSB does not have the jurisdiction to grant the order sought by the Union. Employer counsel argued that the GSB has the power by statute to require a party to produce relevant documents, but it does not have the power to direct the Employer to permit the Union, the party opposite, to have access to the Employer's ESI for the purpose of searching for documents. Counsel noted that the Union's request is akin to a request for a search warrant to gain access to the computer system of the party opposite. On the merits of the motion, the Employer asserted that there is no reasonable basis for granting the order requested by the Union. Employer counsel submitted that the data the Union seeks to access has no or little probative value. He argued that the reasons advanced by the Union for accessing the Employer's ESI is based on pure speculation and that the Union's request simply amounts to a fishing expedition. Counsel submitted that it is appropriate for me to apply the principle of proportionality and to reasonably balance the likelihood of obtaining probative information relative to the central issues in dispute against the burden, cost and delay of securing the production. Counsel submitted that a reasonable assessment of the circumstances of this case supports the conclusion that any probative value of the ESI sought by the Union is far outweighed by the factors of cost and delay. Employer counsel referred me to the following decisions: Zenex Enterprises Ltd. v. Pioneer Canada Ltd., 2012 ONSC 7243; Direct Energy Marketing Ltd. v. National Energy Corp., 2013 ONSC 4048; AMAPCEO (Egesi) and Treasury Board Secretariat (2017), GSB File #2016-1319 et al. (Anderson); Roger White v. Winfair Management Limited et al., OCJ ONT, Court File No. 03-CV- 246818CM2, released April 21, 2005; Northern Youth Services and OPSEU, Local 601 (Francella), unreported decision dated October 15, 2011 (Carrier); Re Kohler Ltd. and Hytec Employees Assn. (2008), 168 L.A.C. (4th) 161 (Coleman); Warman v. National Post Company, 2010 OMSC 3670; OPSEU (Pacheco) and Ministry of Community Safety and Correctional Services (2018), GSB #2010-2654 et al. (Petryshen); Siemens Canada Limited v. Sapient Canada Inc., 2014 ONSC 2314; Abrams v. Abrams, 2010 ONSC 2703; Murphy et al. v. Bank of Nova Scotia et al., 2013 NBQB 316; Ontario v. Rothmans Inc., 2011 ONSC 2504; Gould v. Edmonds Landscape & Construction Services Limited, 1998 CanLII 5136 (NS SC); and, Stilwell v. World Kitchen Inc. et al., 2013 ONSC 3354.

8In reaching my conclusions on the merits of the motion, I have considered the evidence called on the motion, the evidence in the main proceeding and the submissions of counsel. In addition to the decisions relied on by counsel, I have reviewed the additional material provided to me, such as the Sedona Canada Principles Addressing Electronic Discovery, certain rules contained in the Rules of Civil Procedure (Ontario), particularly Rule 29.2 Proportionality In Discovery, and articles 22.14.4 and 22.14.5 of the Collective Agreement. I have decided not to make a finding on the question of whether an arbitrator at the GSB has the power to grant the order requested by the Union, since it is unnecessary to do so having regard to my decision on the merits of the motion. Whether I have the jurisdiction to make the order as framed by the Union appears to be an issue of first impression. In my view, the Employer has raised a significant issue that is best left for a case where it is necessary to decide the question. Assuming that I do have the power to make the kind of order requested by the Union, I find that it would not be appropriate to exercise my discretion to make the order in the circumstances of this case. My reasons for reaching this conclusion are as follows.

9As I noted at the outset, the Union wants to review the Employer's ESI for essentially two reasons. The first reason is to conduct a forensic analysis in relation to the 65 documents listed on Schedule A. The 65 documents consist of many Occurrence Reports ("ORs"), emails, reports, etc. The Union wants to review the life cycle of these documents, particularly the electronic history of the ORs. It claims that a forensic study will disclose information about the documents that is not evident on the face of them, such as whether a particular document was altered, when it was altered, who altered it and who received the document. The Union suggests that there is reason to believe that there is more to these documents that meets the eye and that a forensic study is necessary to disclose the integrity, veracity and authenticity of the documents.

10The other reason the Union wants to review the Employer's ESI is for the purpose of forensically studying the wiping out of potentially relevant data in three computers in the Bailiff's office that occurred in September of 2017. The three computers in question belong to Maplehurst and were scheduled for a refresh in 2017. The refresh resulted in the complete wiping out of data on the hard drive. When it considers the circumstances of this refresh, the Union believes that the Employer deliberately wiped the data from the three Bailiff computers or that the Employer was negligent in wiping the data from their hard drives. Union counsel argued that there was "enough smoke" relating to the refresh of the three Bailiff computers to justify a forensic analysis of the relevant ESI. He submitted that a forensic study might shed some light on why there was the destruction of relevant evidence.

11The submissions on the motion were made in light of the extensive oral and documentary evidence called on the merits of the grievances. The many witnesses called by the Employer included managers and bargaining unit employees. A number of these witnesses were cross-examined for many days. Indeed, it is fair to say that the cross- examination of the Employer witnesses by Union counsel was thorough and rigorous, leaving no stone unturned, including with respect to the documentary evidence that was properly identified and introduced as exhibits. It was through cross-examination that the Union had the opportunity to test the integrity, veracity and the authenticity of the documentary evidence. The Union will have the opportunity in final argument to make submissions on what weight if any should be given to any document that is an exhibit in this proceeding. It is within this context that the Union wants to conduct a forensic study to further test the integrity, veracity and authenticity of 65 documents. There is nothing in the evidence which suggests that there is more to these documents than meets the eye. The Union does not point to anything it expects to find with a forensic examination that might cast doubt on the integrity, veracity and authenticity of the 65 documents. In my view, the Union's contention that the 65 documents require a forensic examination is based only on speculation. Without some concrete evidence to suggest that the 65 documents cannot be accepted at face value, there is no justification to warrant the extraordinary request for a forensic study of these documents. It is also my view that the Union's request for a forensic examination of the 65 documents amounts to nothing more than a request to engage in a fishing expedition.

12Similar comments apply to the Union's request as it relates the wiping out of the data on the three Bailiff computers. I appreciate that the Union considers the wiping out of the data on these computers to be a significant event. Union counsel has indicated that the Union will likely take the position that the destruction of the data should result in certain consequences for the Employer in the litigation of Mr. Pacheco's grievances. Extensive evidence was called about the circumstances relating to the deletion of data from the Bailiff computers. The Employer volunteered documents relating to this event and at the Union's request I directed the Employer to produce documents so as to obtain a complete a picture as possible of what occurred relating to the refresh of the relevant computers and other computers at Maplehurst. The witnesses called by the Employer on this issue and the relevant documents were again subject to a thorough and extensive cross-examination. It is in this context that the Union wants to conduct a forensic study to see if there is any information in the Employer's ESI that might shed some further light on why the data was destroyed. The Union does not suggest that there is any such information in the Employer's ESI or that the Employer has failed to provide any of the relevant documents relating to this issue. Again, the suggestion that there might be some new information about the Employer's reasons for the wiping out of the data on the Bailiff computers within the Employer's ESI is based only on speculation. It appears that the Union's request is based on the hope that it will discover the proverbial "smoking gun". In my view, the Union's request for a forensic examination relating to the loss of data from the Bailiff computers also amounts to a request to engage in a fishing expedition.

13Both counsel recognized in their submissions that there has been a movement away from the liberal or expansive approach to the production of documents in the labour arbitration process as espoused by arbitrator Shime in Re Toronto District School Board and C.U.P.E., Local 4400. It is more common now for arbitrators to apply the principle of proportionality or, in other words, a cost benefit approach when determining whether to direct a party to produce documents. This is particularity the case when a production request is in relation to ESI. Applying this approach in the instant case involves balancing such factors as cost and delay against whether the information the Union is seeking in the Employer's ESI will likely have probative value in determining Mr. Pacheco's discipline grievances. In addition to the concerns I have expressed earlier about the Union's request, I am satisfied that the appropriate balancing of the relative considerations in this case favours the denial of the Union's request for access to the Employer's ESI.

14As I indicated previously, the Union's request for wanting a forensic study of the Employer's ESI is essentially based on speculation. In my view, it is quite likely that a forensic examination of the Employer's ESI will yield information of little or no probative value for purposes of determining the central issues in dispute. On the other hand, the cost of the forensic study is not insignificant and, more importantly, the delay that such a study will create for the hearing of Mr. Pacheco's grievances would be considerable. The parties have different estimates on the cost of conducting the forensic study contemplated by the Union. I suspect the Employer's estimate of the cost is too high and that the Union's estimate is too low. Even with the Union's agreement to an email cap of 50, the cost of restoring backup tapes to retrieve emails alone would cost $50,000.00. Given the other costs of the forensic study, it is quite likely that the cost could run to at least $70,000.00. Even if the costs are shared between the parties, there will still be a significant cost for the Employer. It is also difficult to estimate the length of the delay that will be created if the motion were granted. At this time the motion is only dealing with the threshold issue. I agree with Employer counsel that the parties are unlikely to agree on the methodology for conducting the forensic study and on what restrictions to apply in relation to privilege and privacy issues. The failure to agree on these issues would lead to further litigation. Once the disputed issues were resolved, the conduct of the forensic study itself would take time to complete. Given these considerations, I would estimate that it would be at least four or five months after the motion was granted before the forensic examination would be completed. This would amount to a significant delay in a proceeding that has already taken a very long time. It is with these considerations in mind that I determined that the cost and the burden of delay are disproportionate to the probative value of the information that is likely to be discovered from a forensic study of the Employer's ESI. In other words, the benefits likely to be derived from the Employer's ESI are outweighed by the cost and delay that would be incurred as a result of a forensic investigation.

15For the foregoing reasons, the Union's motion to obtain documentary information from the Employer's ESI is hereby dismissed.

Dated at Toronto, Ontario this 5th day of November 2019.

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