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

December 12 and 19, 2019

Decision

1The matter before me involves four discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. At the conclusion of the Employer’s evidence, the Union made a non-suit motion and a motion relating to the Employer’s failure to preserve data on the hard drive in three bailiff computers located at the Offender Transfer Operations (“OTO”) unit at the Maplehurst Correctional Complex (“Maplehurst”). The Union had requested that I decide the lost data motion first and I have acceded to this request. This decision deals only with the lost data motion.

2The Employer began calling its evidence on the discipline grievances on November 18, 2016. The three bailiff computers were refreshed in September of 2017, with the result that the data on the hard drives was wiped out and therefore irretrievably lost. The Union takes the position that the Employer had a duty to preserve the data on the bailiff computers and its failure to do so resulted in a lost opportunity to determine whether any information stored on the computers was arguably relevant to the issues in this proceeding. The Union claims that the Employer’s conduct relating to the loss of the data was intentional or at least very negligent and constitutes an egregious abuse of the arbitration process that has prevented Mr. Pacheco from obtaining a fair hearing on his four discipline grievances. To remedy the abuse of the arbitration process, the Union requested that the four discipline grievances filed on behalf of Mr. Pacheco be allowed and the grievances remitted to the parties. The Union indicated that it might seek alternative remedies for the Employer’s conduct if I was not prepared to allow the four discipline grievances.

3In support of the motion, Union counsel referred me to section 3:1421 of Canadian Labour Arbitration, Brown & Beatty and to the following decisions: Re National-Standard Co. of Canada Ltd. and C.A.W., Local 1917 (1994), L.A.C. (4^th) 228 (Palmer); Re Budget Car Rentals Toronto Ltd. and U.F.C.W., Local 175 (2000), 2000 CanLII 50165 (ON LA), 87 L.A.C. (4^th) 154 (Davie); Re Fraser Health Authority and HSABC (Finnerty), 2003 CarswellBC 3987 (Gordon); Brampton (City) v. Lam, 2015 ONCJ 415; Ontario (Ministry of Community, Family and Children Services v. Crown Employees Grievance Settlement Board, 2006 CanLII 21173 (ON CA), 81 O.R. (3d) 419 (Ont. CA); and, Re Rippel (2009) Enterprises Ltd. and UNITE-HERE, Local 40, 2016 CarswellBC 2425 (Saunders).

4In opposing the Union’s motion, the Employer took the position that its conduct in relation to the wiping out of the data on the three bailiff computers did not constitute an abuse of the arbitration process since the loss of the data was not intentional or negligent, but was inadvertent. It also claims that the lost data would not prevent Mr. Pacheco from obtaining a fair hearing on his grievances. The Employer maintains that the suggestion that any of the lost data would be arguably relevant to this proceeding is unlikely and purely speculative. The Employer submitted that there is no legitimate basis on the facts of this case to justify the exceptional remedy of allowing Mr. Pacheco’s grievances or for granting any other remedy.

5In support of his submissions, Employer counsel relied on the following decisions: UNITE HERE, Local 40 v. Compass Group Canada (Nanaimo Seniors Centre) (Stauffer), [2012] B.C.C.A.A.A. No 67 (Dorsey); Manitoba Nurses’ Union v. Nor-Man Regional Health Authority Inc., [2010] M.J. No. 258; Ontario Liquor Boards Employees’ Union (Goncalves) and Liquor Control Board of Ontario, 2005 CanLII 55217 (Carrier); Amalgamated Transit Union - Local 1587 (Farrell) and Metrolinx - GO Transit, 2010 CanLII 68722 (Mikus); OPSEU (Hunt et al.) and Ministry of the Attorney General, 2005 CanLII 55135 (Abramsky); Re Essar Steel Algoma Inc. and USW, Local 2251 (Moore), 2014 CarswellOnt 879 (Rose); OPSEU (Larman) and Ministry of Community, Family and Children’s Services, 2003 CanLII 52907 (Abramsky); OPSEU (Pacheco) and Ministry of the Solicitor General, 2019 CanLII 118416 (Petryshen); OPSEU (Brosseau) v. Ontario (Ministry of Revenue and Ministry of Government Services), [2011] O.G.S.B.A. No. 159 (Gray); Dufferin-Peel Catholic District School Board v. Ontario English Catholic Teachers’ Ass., Secondary Unit (Castellano), [2010] O.L.L.A. No. 278 (Levinson); OPSEU (Phagau) and Liquor Control Board of Ontario, 2016 CanLII 7445 (Harris); and, OPSEU (Pacheco) and Ministry of Community Safety and Correctional Services, 2018 CanLII 7262 (Petryshen).

6The context for the lost data motion can be described as follows. In presenting its case on the merits of the 10-day, the 15-day, the 20-day suspension grievances and the termination grievance, the Employer called ten witnesses during well over forty hearing days. The 10-day suspension was issued to Mr. Pacheco by letter dated February 6, 2015, and the termination letter is dated March 2, 2016. I note that in June of 2017, the Employer returned Mr. Pacheco to employment as a Bailiff without prejudice to its position that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to any compensation for his losses. The Employer witnesses were thoroughly and rigorously cross-examined not only on the events that gave rise to the grievances, but on other matters the Union submitted were arguably relevant, such as the claim of discriminatory treatment against Mr. Pacheco when compared to the disciplinary treatment of other employees, the interpersonal difficulties among the Bailiffs and management’s approach to addressing these difficulties and the claim that management was engaged in a deliberate program to remove Mr. Pacheco from the OTO unit. There was an extensive production process in which I issued about nine decisions with orders directing a party, primarily the Employer, to produce arguably relevant documents. This process resulted in the disclosure and introduction of a significant number of documents, such as Occurrence Reports (“ORs”) and emails, related to the events that gave rise to the four grievances and related to the other matters which the Union had submitted were arguably relevant. Union counsel took every opportunity to cross-examine witnesses about the reliability, integrity and authenticity of the documentation that was admitted as exhibits. By the conclusion of the Employer’s case on the merits, it is difficult to imagine that there could have been a more thorough examination of the oral and documentary evidence on the relevant issues. Some of the witnesses called by the Employer on the merits of the grievances did provide some evidence relevant to the loss of data motion.

7Once the Employer completed its case on the merits of the grievances, a Union motion to obtain access to the Employer’s electronically stored information (“the ESI motion”) was addressed. Five witnesses testified on the ESI motion over the course of thirteen hearing days. There was considerable testimony on this motion that related to the wiping out of the hard drives in the three bailiff computers. In addition to relevant documents voluntarily disclosed by the Employer, I directed, at the Union’s request, the Employer to disclose arguably relevant documents to obtain a complete understanding of the relevant refresh process at Maplehurst. The Employer’s oral and documentary evidence on the ESI motion was also subject to an extensive and thorough cross-examination by Union counsel.

8The circumstances that are particularly relevant to the Union’s contention that the Employer’s conduct amounted to an abuse of the arbitration process are as follows. On a number of occasions during the disciplinary process, the Employer was asked to preserve documentary evidence. In writing on March 26, 2015, Mr. Pacheco asked Mr. A. Quinn, the then Manager of the OTO unit, to preserve “the keypress log, IT login information, my work emails and the camera recordings for the dates provided in the document I submitted to Ms. Curcio…” On April 14, 2015, Mr. Pacheco followed up on this request in an email to his immediate supervisor, Mr. A. Watson, who was then the Regional Transfer Manager. On the day after the termination of Mr. Pacheco’s employment, Mr. S. Jagpal, a Local Union Representative, sent an email dated March 3, 2016, to Mr. T. Dykstra, the Manager of the OTO unit, asking him to preserve the data on the three bailiff computers and certain “keywatcher” information. In an email to Employer counsel also dated March 3, 2016, Union counsel followed up on Mr. Jagpal’s email to again request that the Employer protect the integrity of the bailiff computers and the other items noted by Mr. Jagpal. Mr. Watson and Mr. Dykstra agreed that the Employer had an obligation to preserve relevant documents relating to the discipline grievances.

9As the hearing progressed, the Union made a number of requests for the production of documents. Quite early on in the proceeding, the Union advised that it sought access to the Employer’s ESI in order to conduct a forensic study on the data on the computers in the OTO unit. The Union wanted Mr. M. Musters, the Director of Forensics for Computer Forensics Inc. (“CFI”) to conduct the forensic study. The Union’s primary purpose for requesting access to the Employer’s ESI was to review the life cycle of certain documents that were exhibits in order to test the integrity and reliability of the documents. The Employer was opposed to this request on a number of grounds. However, the Employer eventually advised that it would conduct its own forensic examination of the computers in the OTO unit. To this end the Employer engaged the services of the Forensic Investigation Team (“FIT”), lead by Ms. A. Cameron, a Forensic Specialist within the Ontario Internal Audit Division of Treasury Board Secretariat. Once the necessary approvals were obtained, FIT planned to conduct a forensic investigation and set out its findings in a report. The Union was prepared to have FIT conduct a forensic investigation, but reserved its right to renew its request to have CFI perform a forensic investigation on the OTO computers if it was not satisfied with the report completed by FIT.

10On May 11, 2017, Mr. Musters met with FIT to convey the Union’s view on the proper scope of the FIT forensic examination. After the meeting, Mr. Musters sent an email to Mr. D. Langille, a Manager with FIT, setting out his understanding of the scope of the FIT forensic investigation. It is unnecessary to set out the details of Mr. Musters’ email. I simply note that the objective at the time was to examine 19 documents and the forensic examination would begin with the imaging of the seven computers located at the OTO unit at Maplehurst. In essence, Mr. Langille indicated that the scope of the investigation as set out by Mr. Musters looked good to him.

11On September 1, 2017, there was a teleconference between FIT and individuals within the OTO unit to discuss the FIT forensic study that was likely soon to begin. From the Union’s perspective, the result of the teleconference was to significantly reduce the scope of the forensic examination. Ms. P. Fernandes, Regional Transfer Manager, South, was asked to and did provide Ms. Cameron with the workstation numbers for the seven computers in the OTO unit at Maplehurst.

12The final approvals for FIT to conduct the forensic study were dated Monday, September 11, 2017. Without advising anyone in the Ministry or in the OTO unit, FIT began its forensic examination during the early part of that week, FIT attempted to remotely acquire the seven computers, but discovered that a number of them were offline. Ms. Cameron advised Ms. Fernandes of this difficulty in an email dated September 13, 2017. Ms. Fernandes was on vacation during that week. When she returned from vacation on Monday, September 18, 2017, Ms. Fernandes addressed the issue raised by Ms. Cameron and advised her that the three bailiff computers had been refreshed during the previous week and that their hard drives had been wiped. FIT did not image the seven computers in the OTO unit at Maplehurst prior to the week of September 11, 2017.

13Mr. A. Garbacz is a Security Manager and IT site contact at Maplehurst. He has been responsible for the refreshing of Maplehurst’s computers for many years. An Infrastructure Technology Services Deployment Guide provides that desktops will be replaced every four years. The computers in the OTO unit at Maplehurst are Maplehurst’s computers. Mr. Garbacz was notified in May of 2017 that well over 100 computers were due to be refreshed. It appears that a Bailiff who was shown as the last user of the least used bailiff computer was notified of the refresh, but there is no indication that this Bailiff told anyone in authority about the refresh. The refresh process was scheduled to begin during the week of September 11, 2017, but after consulting the Superintendent, Mr. Garbacz, with the assistance of two managers, started the refresh process on Saturday, September 9 and Sunday, September 10, 2017. The essential tasks performed on that weekend consisted of removing the old computers, placing them in a storage area and then replacing the old computers with new computers. Since the bailiff computers were on the list of over 100 computers to be refreshed, they were removed from the bailiff area and taken to a storage area before the weekend was over. During the following week, technicians from Compucom were on site wiping the hard drives on the old computers in the storage area, including the hard drives on the three bailiff computers.

14Ms. Cameron on behalf of FIT and the persons in authority in the OTO unit at Maplehurst testified that they had not been advised and had no knowledge of the fact that the three bailiff computers were scheduled for a refresh. Mr. Garbacz testified that he was unaware that a forensic study was planned for the Maplehurst computers in the OTO unit. He also testified that he did not advise anyone in authority in the OTO unit about the refresh of the bailiff computers and when that refresh would take place.

15FIT did complete its forensic examination and produced a report dated February 22, 2018. The Union’s dissatisfaction with the report led it to make the ESI motion referred to previously. Following submissions on the motion on October 9 and 10, 2019, I dismissed the ESI motion in a decision dated November 5, 2019. I concluded that the reasons for the Union’s request to access the Employer’s ESI were based on speculation and in the circumstances constituted a request to engage in a fishing expedition. Applying the principle of proportionality, I also 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.”

16The Union’s motion and the primary remedy it seeks essentially raise two issues for determination. The first is whether the Employer’s conduct with respect to the data lost from the three bailiff computers amounts to an abuse of the arbitration process. The second issue is whether the lost data has prevented Mr. Pacheco from obtaining a fair hearing on his four discipline grievances. I will concisely address each of these issues in turn.

17As a general proposition, I agree with the Union’s assertion that there was a duty on the Employer to preserve documentary evidence which is arguably relevant to Mr. Pacheco’s grievances in order to be in a position to disclose that material as part of the disclosure process. I appreciate that the Employer takes the position that there was no arguably relevant material within the data on the three bailiff computers that had not been disclosed in this proceeding. In any event, I will assume for this aspect of the motion that the Employer was obliged to preserve the data on the three bailiff computers. Although it is unclear as to whether the loss of the data due to negligence could constitute an abuse of the arbitration process, I recognize that the deliberate destruction of the electronic data might very well support such a claim.

18After spending so many hearing days on this proceeding, it is clear to me that Mr. Pacheco likely believes that the Employer has not and will not treat him fairly. It is therefore not surprising that he would likely view the loss of data on the three bailiff computers as a deliberate effort by the Employer to destroy evidence that might assist him and the Union with his grievances. However, the evidence simply does not support the claim that there was a deliberate effort by the Employer to destroy data so that it would be unavailable for this proceeding. As late as September 1, 2017, the management in the OTO unit and the Ministry were supportive of the forensic examination of data on the OTO computers. The Ministry had committed significant resources to the forensic study and it is extremely unlikely that it would have wanted its efforts compromised by the deletion of data on the three bailiff computers. It is not surprising that the Employer or FIT did not arrange for the imaging of the three bailiff computers prior to September of 2017 because no one considered that there was a risk of losing that data. Although management at the OTO unit and FIT knew that government computers were replaced every four years, it was reasonable for OTO management to expect that they would be notified when the computers in OTO unit were about to be refreshed. I accept as true the testimony of the OTO unit witnesses and Ms. Cameron to the effect that they were committed to a forensic examination of the data on the three bailiff computers and that they were completely unaware that these computers were scheduled to be refreshed in September of 2017. I also accept as true the testimony of Mr. Garbacz that he engaged in the usual process of refreshing the three Maplehurst bailiff computers without knowing about their relevance to the arbitration proceeding or the FIT forensic study and that he did not advise anyone in authority in the OTO unit about the refresh of these three computers. The extensive documentary material relevant to this motion confirms the testimony of these witnesses. I have no doubt that these witnesses were acting in good faith in carrying out their respective responsibilities. The evidence before me supports the conclusion that the data from the three bailiff computers was lost through inadvertence and not because of negligent or deliberate conduct on the part of the Employer. Accordingly, I find that the actions of the Employer in relation to the loss of data from the three bailiff computers did not amount to an abuse of the arbitration process.

19Does the data lost from the three bailiff computers prevent Mr. Pacheco from obtaining a fair hearing on his discipline grievances? The Union’s claim at its highest is that an opportunity has been lost to discover whether there was any information in the lost data that was arguably relevant to the issues in this proceeding. Given the loss of the data, the Union is not in a position to assert that specific information relevant to this proceeding was lost. But since this motion was heard after the Employer closed its case, there is some basis for assessing the significance of the lost opportunity relied upon by the Union. The loss of the data from the three bailiff computers occurred in September of 2017, well after the Employer began calling its evidence and after the disclosure process resulted in the production of a considerable number of documents relevant to all of the issues in dispute. As I noted previously, the extensive oral and documentary evidence called thus far has presented a thorough examination of the relevant issues. When one balances the extent of the documentary material that has been entered thus far, along with the cross-examination of that material, with any lost opportunity that arose from the wiping of the hard drive on the three bailiff computers, it is difficult to conclude that Mr. Pacheco’s right to a fair hearing has been compromised.

20The decisions referred to me clearly indicate that the granting of grievances due to a loss of potentially relevant documents is an extraordinary remedy. Since I have determined that the Employer’s conduct does not constitute an abuse of the arbitration process and that the loss of data from the three bailiff computers has not prevented Mr. Pacheco from obtaining a fair hearing, I find that the circumstances before me do not present a clear case for granting the extraordinary remedy of allowing Mr. Pacheco’s four discipline grievances. The Union indicated that it may seek alternative remedies for the loss of data from the three bailiff computers. I expect such remedies will be addressed during the Union’s final submissions on the basis of all of the evidence.

21For the foregoing reasons, the Union’s loss of data motion is hereby dismissed.

Dated at Toronto, Ontario this 6^th day of May, 2020.

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