GSB# 2016-0984

UNION# 2016-0302-0005

Full list of files attached 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 (Church et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 6, 2020 (by videoconference)

INTERIM DECISION

1This matter was a subject of an earlier decision of the Grievance Settlement Board issued November 18, 2019.

There, I identified in the opening paragraphs that:

1The subject grievances relate to scenarios at the Central Ambulance Communication Centre (CACC) in Oshawa.

2The Grievors’ duties as Ambulance Communication Officers (ACO-1) are largely comprised of the processing of requests for Emergency Medical Services (EMS/Paramedics) and the dispatch of EMS resources.

3There has yet to be a proper crystallization of issues in this matter.

In that decision, amongst other things, I issued orders with respect to several representative Grievors either to commit to these proceedings or to stand aside and to be replaced by other representatives.

2Since that time, there has been significant compliance with my directions in that decision, however, several new issues have arisen regarding productions which require further determination. Since this matter was scheduled as a referral pursuant to section 22.16 of the Collective Agreement between the parties, my identification and disposition of the issues will be relatively brief.

3On April 27, 2020 the Employer responded in a fulsome manner to most of the production requests and issues raised by the Union in a letter from its counsel dated February 28, 2020. However, in its response the Employer took special objection to two production requests made by Union counsel as follows:

(a) The “full audio tapes” of the entire conversations of the calls made by the public for “all dates the Union is relying upon”.

(b) The Bell call logs for the administrative lines for each twelve (12) hour shift identified by the Union.

The Audio Tapes

4With respect first to the audio tapes the Employer’s objection was two-fold:

(a) “…it is the Employer’s position that releasing unredacted audio tapes would breach its obligations under the Personal Health Information Protection Act (PHIPA) as these unredacted recordings would contain personal health information of members of the public above and beyond what has been produced to the Union so far for the purposes of facilitating the grievance.

It remains the Employer’s position that it cannot and should not release any further personal health information given that the Union has sufficient information to pursue its grievance and provide the Employer with full and sufficient particulars. The Employer will not produce the audio tapes requested by the Union.

(b) Furthermore, it is my understanding that providing unredacted recordings would still be a significant undertaking on behalf of management that is not proportionate to the alleged relevance of the audio tapes. In order to provide audio tapes, for each date management would have to review multiple “channels” (up to 15) individually, as the recordings are logged by the channel they are stored on and not by the individual taking the call. This would require a significant amount of effort gather those recordings for the specific ACO for that date. As such, the Employer will not be producing the audio tapes.

[5a] As follows, I have considered the Union’s request, the Employer’s objections and submissions of counsel and I am satisfied that aside from the burden of complying with the Union’s request for the audio tapes in issue, the release of the tapes would constitute a breach by the Employer of its obligations pursuant to the PHIPA. It would constitute a release of personal health information beyond what the public would expect with respect to personal medical information provided to CACC employees while seeking medical assistance.

[5b] Additionally, I am satisfied that the information which the Employer has produced or has agreed to produce in respect of the relevant dates including material such as the 911 call logs, existing dispatch notes, schedules as well as incidents reports insofar as they do not confirm any personal health information of callers will be more than sufficient to satisfy the Union’s needs to crystallize its claims. The additional burden upon the Employer of assimilating from the audio tapes just those calls required would go beyond what is reasonably necessary to satisfy the Union’s requirements.

6In the circumstances I decline the Union’s request for production of those audio tapes.

The Bell Call Logs for the Administrative Telephone Lines

7The Employer also resists this request since the production of these logs would also create not only a burdensome obligation upon the Employer to assimilate the requested information but would also constitute a requirement to produce material that is not in the Employer’s possession and would have to be created by reviewing and assimilating phone call information from numerous shifts on multiple phone lines. Additionally upon inquiry of Bell Canada the Employer determined that the information requested could not be gathered directly from that Company since it too had no way of identifying or separating administrative call lines from regular emergency calls. The burden would therefore fall to the Employer to create or produce material which is not in the Employer’s possession.

8Specifically the Employer provided the following explanation for denying the request in the letter of April 27, 2020 by Counsel Thomas Ayers to Union counsel, Ms. Jane Letton:

THE UNION’S REQUEST FOR THE BELL CALL LOG

… the Ministry maintains its position that producing the Bell Call Log would be an unduly burdensome requirement. It is not existing documentation that can be obtained and would involve the Ministry creating material that does not presently exist. Producing this material would require that one or more members of management manually listening to, categorizing and documenting each phone call made on multiple lines for each 12-hour shift identified by the Union and specifically identifying the number of non-emergency/administrative phone calls and the length of all such phone calls. Currently, these non-emergency/administrative phone calls are not tracked as a measurable component.

As the Employer also advised the Union in its letter dated April 18, 2018, it has contacted technical support with the Ministry of Health and an Operations Technical Specialist with Bell Canada and had been told by both contacts that this information could not be gathered directly from Bell Canada or by the Ministry’s technical support. Accordingly, it is the Employer’s position that this information cannot be obtained other than through the process described above, which is unduly burdensome in the circumstances.

9In addition to the foregoing objection, Mr. Ayers reiterated his submission that the fulsome information it has already provided or undertaken to provide should be more than adequate to satisfy the Union’s requirements.

10As in the case of the Call Audio Tapes, I am satisfied that the Employer’s position rejecting the Union’s request for the production of the Bell call logs must be sustained for the very reasons submitted by Mr. Ayers. Accordingly, I decline to order production of the requested Bell call logs.

11The foregoing constitutes my decision in this interim matter. I remain seized of course to deal with any further issues which might arise including, of course, the merits of the case as and when all issues have been crystallized.

Dated at Toronto, Ontario this 2nd day of November, 2020.

Appendix “A”

GSB File Numbers

Union File Numbers

2016-0984

2016-0302-0005

2016-0985

2016-0302-0006

2016-0986

2016-0302-0007

2016-0987

2016-0302-0008

2016-0988

2016-0302-0009

2016-0989

2016-0302-0010

2016-0990

2016-0302-0011

2016-0991

2016-0302-0012

2016-0993

2016-0302-0014

2016-0994

2016-0302-0015

2016-1614

2016-0302-0022

2016-1615

2016-0302-0023

2016-1616

2016-0302-0024

2016-1617

2016-0302-0025

2016-1618

2016-0302-0026

2016-1619

2016-0302-0076

2016-1620

2016-0302-0077

2016-1621

2016-0302-0078

2016-1622

2016-0302-0079

2016-1623

2016-0302-0080

2016-1624

2016-0302-0081

2016-1625

2016-0302-0082

2016-1626

2016-0302-0083

2016-1627

2016-0302-0035

2016-1628

2016-0302-0036

2016-1629

2016-0302-0037

2016-1630

2016-0302-0038

2016-1631

2016-0302-0039

2016-1632

2016-0302-0040

2016-1633

2016-0302-0041

2016-1634

2016-0302-0042

2016-1635

2016-0302-0043

2016-1636

2016-0302-0044

2016-1637

2016-0302-0045

2016-1638

2016-0302-0046

2016-1639

2016-0302-0047

2016-1640

2016-0302-0048

2016-1641

2016-0302-0049

2016-1642

2016-0302-0050

2016-1643

2016-0302-0051

2016-1644

2016-0302-0052

2016-1645

2016-0302-0053

2016-1646

2016-0302-0054

2016-1647

2016-0302-0055

GSB File Numbers

Union File Numbers

2016-1648

2016-0302-0056

2016-1649

2016-0302-0057

2016-1650

2016-0302-0058

2016-1651

2016-0302-0059

2016-1652

2016-0302-0060

2016-1653

2016-0302-0061

2016-1654

2016-0302-0062

2016-1655

2016-0302-0063

2016-1656

2016-0302-0064

2016-1657

2016-0302-0065

2016-1658

2016-0302-0066

2016-1659

2016-0302-0067

2016-1660

2016-0302-0068

2016-1661

2016-0302-0069

2016-1662

2016-0302-0070

2016-1663

2016-0302-0071

2016-1664

2016-0302-0072

2016-1665

2016-0302-0073

2016-1666

2016-0302-0074

2016-2489

2017-0302-0001

2016-2490

2017-0302-0002

2016-2491

2017-0302-0003

2016-2492

2017-0302-0004

2016-2493

2017-0302-0005

2016-2494

2017-0302-0006

2016-2495

2017-0302-0007

2016-2496

2017-0302-0008

2016-2497

2017-0302-0009

2016-2498

2017-0302-0010

2016-2499

2017-0302-0011

2016-2500

2017-0302-0012

2016-2501

2017-0302-0013

2016-2502

2017-0302-0014

2016-2503

2017-0302-0015

2016-2504

2017-0302-0016

2016-2505

2017-0302-0017

2016-2506

2017-0302-0018

2016-2507

2017-0302-0019

2016-2508

2017-0302-0020

2016-2509

2017-0302-0021

2016-2510

2017-0302-0022

2016-2511

2017-0302-0023

2016-2512

2017-0302-0024

2016-2513

2017-0302-0025

2017-0018

2017-0302-0027

2017-0019

2017-0302-0028

GSB File Numbers

Union File Numbers

2017-0020

2017-0302-0029

2017-0021

2017-0302-0030

2017-0022

2017-0302-0031

2017-0023

2017-0302-0032

2017-0024

2017-0302-0033

2017-0025

2017-0302-0034

2017-0026

2017-0302-0035

2017-0080

2017-0302-0036

2017-0208

2017-0302-0037

2017-0371

2017-0302-0038

2017-0372

2017-0302-0039

2017-0397

2017-0302-0040

2017-0398

2017-0302-0041

2017-0399

2017-0302-0042