GSB# 2016-2406

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 (Vescio)

Association

• and –

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Nadine Blum (Counsel) Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier (Counsel) Treasury Board Secretariat Legal Services Branch

FOR THE THIRD PARTY HEARING

Susan Parsons, on her own behalf Landlord and Tenant Board Ministry of the Attorney General January 15, 2020

Decision

1This decision relates to a dispute between the parties about production of a document. Mr. Vescio was surplussed from the position he had held as a FISCO mediator. His dispute alleges that the employer denied him the right to bump the most junior incumbent in the position of Dispute Resolution Officer at the Landlord and Tenant Board (“DRO”). The issue to be determined by the Board is whether Mr. Vescio is qualified for the DRO position based on the criteria set out in article 27.29.1 of the collective agreement.

2It is agreed that another employee who had been in the OPSEU bargaining unit (hereinafter “JL”) was appointed on a temporary basis to a DRO position, first from January 2017 to March 2018, and again in January 2019. The employer has refused the AMAPCEO’s request for production of the application JL had submitted for the DRO position.

3Counsel for AMAPCEO submitted that its position on the merits of the dispute is that Mr. Vescio met the qualifications for the DRO position and that the employer’s decision that he did not was reached arbitrarily without a bona fide and reasonable examination of Mr. Vescio’s credentials.

4Counsel submitted that it is AMAPCEO’s understanding that at the time JL was appointed to the DRO position she lacked a number of the same requirements on the basis of which Mr. Vescio was found to be not qualified, including experience in issuing binding orders and ability to switch between mediation and binding decision-making roles. She asserted that the application JL had filed would show whether or not AMAPCEO’s understanding of her qualifications is correct. She argued that given the employer’s reasons for finding Mr. Vescio to be not qualified, a document which establishes that another individual who lacked the same qualifications was appointed to a DRO position, even on a temporary basis, is arguably relevant to the issue to be determined by the Board.

5Employer counsel pointed out that the two temporary appointments JL received were necessitated by the sudden departure of two DROs. The first passed away, and the other left to accept appointment as a Justice of the Peace. He noted that in this proceeding, there will not be any comparison of, or competition between, Mr. Vescio’s qualifications and the qualifications of the incumbent he seeks to bump, Ms. Parsons, because this is a “threshold case”. That is, Mr. Vescio only has to demonstrate that he has the qualifications for the DRO position. He cited Re Daossis 2013-1445 (Tims) at para. 31 and submitted that the test the Board applied is to the effect that the Board must be able to conclude that the grievor is qualified for the position when the full range of his skills and abilities is weighed against the minimum necessary qualifications for the position.

6Employer counsel submitted that this is also a fishing expedition on the part of AMAPCEO. In addition, he argued that AMAPCEO is raising a collateral issue, that is whether or not JL met the necessary qualifications for the DRO position she was awarded. Even if the Board agrees with AMAPCEO’s reasoning for relevance, before the document becomes relevant, the Board will have to decide whether JL met the required qualifications. That is not a matter that arises in Mr. Vescio’s dispute.

7The third party incumbent, Ms. Parsons, made no submissions of her own, but stated that she supported the employer’s submissions.

8In reply, counsel for AMAPCEO clarified that she was not disputing that the relevant time for the Board to assess Mr. Vescio’s qualifications is September 2016, when the Employer made its decision. However, she argued that the subsequent appointment of JL, if she also lacked the very same qualifications the employer relied on to deny Mr. Vescio’s request to bump, would be arguably relevant to the issue of whether the employer gave bona fide consideration to Mr. Vescio’s credentials. The request for JL’s application is not a fishing expedition because AMAPCEO believes that JL did not have the qualifications. Counsel argued that the standard a surplus employee has to meet to establish qualifications for bumping is lower than that of an employee such as JL, who was appointed to a vacancy. She submitted that JL’s application may establish that she was in fact qualified. If so, the issue is whether Mr. Vescio had the same qualifications she had. She took the position that this does not raise a collateral issue, because JL’s application would show the qualifications she possessed.

9It is established law that ordering production of documents is a matter of arbitral discretion. The basis for AMAPCEO’s request for production is that it is AMAPCEO’s understanding that JL did not possess certain qualifications. Besides that broad assertion, there is no information with regard to the process the employer followed in appointing JL, for example whether the appointment was pursuant to a job posting and competition. Most importantly, there is no suggestion that the appointment was made solely on the basis of the contents of JL application, which usually consists of a resume, and cover letter. In my view, even if inclined to do so, this Board would not be able to determine whether or not JL possessed a particular qualification or experience, based solely on the application. In order to be of any value, the Board would need evidence as to all of the information the employer had before it and considered. For example, did the employer consider information elicited by an oral interview, review of personnel file or performance reviews, and whether information relating to the relevant qualifications was received through reference checks. The point is that it is not in evidence, and not asserted, that JL’s appointment was based solely on what was set out in her application. Therefore, the mere fact that the application did not explicitly set out a particular qualification or experience would not enable the Board to conclude that she did not have that qualification or experience. The Board may have to hear from JL herself. At the very least, the Board would have to hear from the decision-maker, as to what qualifications, and experience requirements were applied to JL, and on what basis he/she concluded that JL met those.

10Moreover, it is important to consider what follows in the event the evidence discloses that some of the requirements imposed on Mr. Vescio were not applied to JL. That by itself, would not necessarily lead to the conclusion that since JL was deemed qualified for the purposes of temporarily filling in for temporary absences, the grievor must also be found to be qualified. That evidence would assist AMAPCEO only if, based on that evidence, it could be concluded that the qualifications/experience in question were in fact not necessary qualifications. The mere fact that the employer was flexible and that a lesser standard was applied for purposes of a temporary appointment, by itself, would not give Mr. Vescio the right to claim that he is also entitled to similar treatment.

11Therefore, in my view, to be of relevance, the Board would have to engage in a collateral issue, and in fact make decisions on JL’s qualifications. Even at the end of that process, the potential probative value of the evidence would, if any, would be very minimal.

12In the circumstances, AMAPCEO request for production is denied. I remain seized with jurisdiction.