GSB# 2019-1989

UNION# 18-315

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Brown)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Ryan Culpepper Canadian Union of Public Employees – Local 1750 National Representative

FOR THE EMPLOYER

Todd Weisberg Shields O’Donnell MacKillop LLP Counsel

HEARING

January 27, 2021

DECISION

1This matter is a grievance in which it is alleged that Cameron Brown (the “grievor”) was dismissed without just cause. The grievor was dismissed for alleged sexual harassment of a co-worker (the “complainant”) on two occasions.

2This matter was scheduled for December 17, 2020, and January 27 and February 22, 2021. The January 27, 2021 hearing proceeded by way of video conferencing.

3When the hearing began on January 27, 2021, two preliminary issues were raised.

4The first preliminary issue was a request made by the complainant that the grievor not be present in the hearing room when she gave her testimony. The parties agreed that the grievor would not be present when the complainant testified, however, her evidence in-chief would be recorded and provided to the grievor for his review prior to the commencement of cross-examination. While not specifically discussed, I assume the parties were in further agreement that the complainant’s testimony in cross-examination would also be recorded and the grievor would have an opportunity to review the recording prior to the close of cross-examination. Finally, the complainant’s testimony in reply would likewise be recorded and the grievor would be permitted to view the recording before the hearing proceeded further.

5The second preliminary issue relates to document production. The Employer seeks an order for production of the following documents:

a. Full access to Claim file information for Diane Caggiano’s WSIB Claim #30571593 with a date of injury/illness of June 16, 2017.

b. A copy of all disclosure and all documentation/correspondence received from the Crown in the grievor’s criminal proceeding.

c. Copies of all correspondence, emails, text messages, or social media messages exchanged between the grievor and the Complainant between March 1, 2017 and August 16, 2018;

d. Copies of all notes, correspondence, recordings, text messages, social media messages, or documentation related to, or regarding, the allegations made by the Complainant against the grievor;

e. Copies of the grievor’s treating healthcare professionals’ medical files, and healthcare records (including clinical notes and treatment documents) between July 3, 2017 (or the date he was allegedly hit by a streetcar) and present day; and,

f. All documentation related to the grievor’s mitigation efforts since the termination of his employment on August 16, 2018, including but not limited to, copies of all job postings applied for, copies of all confirmations of job applications, the grievor’s T4’s for 2018, 2019, and 2020 (when it becomes available), and his Notices of Assessment for 2018, 2019, and 2020 (when it becomes available).

6The Union seeks an order for production of the following documents:

g. Complete records inclusive of notes and the Employer’s internal correspondence (texts, e-mails, memos, etc.) regarding any previous complaints raised in the workplace by the Complainant including but not limited to allegations of being videotaped in the workplace. For clarity, complete investigation notes, witness statements and findings, if any, are hereby requested.

h. A complete personnel file and employment history for the Complainant including but not limited to any records of previous medical leaves or leaves for any other purpose and previous reprimands and corrective measures taken, whether or not there was formal discipline.

7The Union does not object to the Employer’s request at paragraph 5a and accordingly I hereby order full access be given to the Employer to Claim file information for Diane Caggiano’s WSIB Claim #30571593 with a date of injury/illness of June 16, 2017.

8There is no objection to producing 5b however the Union states that it has produced everything in its possession, and it has not been able to obtain the remainder as of yet. The Union states that the Employer is equally able to obtain the information and suggests a joint effort to obtain the documents. Having regard to the Union’s submissions I understand it has no documents as described in paragraph 5b that have not already been produced. I understand both parties to be independently making efforts to get the missing documents and both consider them to be arguably relevant. I hereby order both parties to produce to the other any documents as described in 5b that they are able to obtain.

9The Union does not object to providing the documents described at 5c and 5d and the documents will be provided. Accordingly, I hereby order the Union to produce to the Employer the documents described at 5c and 5d.

10The Union does object to the production of the documents described at 5e being: “copies of the grievor’s treating healthcare professionals’ medical files, and healthcare records (including clinical notes and treatment documents) between July 3, 2017 (or the date he was allegedly hit by a streetcar) and present day” on the basis that they are not arguably relevant. The Employer argues they are arguably relevant as the grievor left the workplace on a medical leave very shortly after the alleged incidents. I understand the Employer to assert the grievor did not have a legitimate medical reason for being out of the workplace and/or delayed his return to work thereby delaying the investigation. The Employer also asserts the documents are relevant to mitigation. In response to the Union’s position and my question as to why, given hearings are routinely bifurcated such that damages, and thus mitigation, are only dealt with if a finding in favour of the Union is made, the Employer argues full document production assists the parties in assessing settlement options.

11In order to establish that documents sought by way of a pre-hearing production order are “arguably relevant” it is necessary for the party seeking production to be able to advance an argument that the documents could be of assistance to proving or disproving a fact that might turn out to be in dispute in the proceeding. I understand the Employer’s first argument to be that the grievor absented himself from the workplace on false grounds and delayed the Employer’s investigation. I take the Employer to say, the fact that the grievor absented himself from work on false grounds and delayed the investigation, supports a finding the grievor engaged in the alleged harassment and thus, documents relating to his absence, are arguably relevant.

12I find the documents to be arguably relevant and hereby order the Union to produce copies of the grievor’s treating healthcare professionals’ medical files, and healthcare records (including clinical notes and treatment documents) between July 3, 2017 (or the date he was allegedly hit by a streetcar) and present day as soon as practically possible.

13The documents described at paragraph 5f relate to the grievor’s mitigation efforts and earnings since the date of termination. Such documents will become relevant for the purposes of the hearing if the Union is successful in this matter. The Employer asserts the documents may be relevant to settlement discussions. The settlement of disputes is to be encouraged. On that basis I hereby order the Union to produce to the Employer the documents described at paragraph 5f.

14Turning to the Union’s requests for document production, the first request is for: “Complete records inclusive of notes and the Employer’s internal correspondence (texts, e-mails, memos, etc.) regarding any previous complaints raised in the workplace by the Complainant including but not limited to allegations of being videotaped in the workplace. For clarity, complete investigation notes, witness statements and findings, if any, are hereby requested.”

15I understand the Union to request the documents for the purposes of impugning the complainant’s credibility. According to the collateral fact rule the Union may cross-examine the complainant, in an effort to undermine her credibility, on matters collateral to the issues in dispute, however, the Union cannot lead evidence on collateral matters. The documents sought are arguably relevant to the credibility of the complainant and are necessary for the Union to prepare its cross-examination. Accordingly, I hereby order the Employer to produce to the Union complete records inclusive of notes and the Employer’s internal correspondence (texts, e-mails, memos, etc.) regarding any previous complaints raised in the workplace by the Complainant including but not limited to allegations of being videotaped in the workplace. For clarity, complete investigation notes, witness statements and findings, if any, are hereby requested. The documents are to be kept in the strictest confidence, and must not be shared beyond those who need to see the documents for the purposes of this litigation. No copies are to be made except for the purposes of the hearing and only one copy, to be held in the Union’s file, is to be maintained after the hearing.

16Should the documents contain private information belonging to other persons, the documents can be redacted before being provided to Mr. Culpepper. If the Union objects to specific redactions as not being necessary, I am to be provided with a copy of the unredacted and redacted documents and a conference call will be arranged to hear the parties’ submissions.

17The second request made by the Union for document production is for; “a complete personnel file and employment history for the Complainant including but not limited to any records of previous medical leaves or leaves for any other purpose and previous reprimands and corrective measures taken, whether or not there was formal discipline”. I understand these documents to be sought for the purpose of impugning the complainant’s credibility and to test the reason for her medical leave which may go to the extent of harm suffered by the complainant as a result of the alleged harassment. As above, according to the collateral fact rule the Union may cross-examine the complainant, in an effort to undermine her credibility, on matters collateral to the issues in dispute, however, the Union cannot lead evidence on collateral matters. The Union could lead evidence on the extent of the harm suffered by the complainant as such is not a collateral matter. The documents sought are arguably relevant to the credibility of the complainant and the extent of harm she suffered and are necessary for the Union to prepare its cross-examination. I hereby order the complete personnel file and employment history for the Complainant including but not limited to any records of previous medical leaves or leaves for any other purpose and previous reprimands and corrective measures taken, whether or not there was formal discipline. The documents are to be kept in the strictest confidence, must not be shared beyond those who need to see the documents for the purposes of this litigation. No copies are to be made except for the purposes of the hearing and only one copy, to be held in the Union’s file, is to be maintained after the hearing.

18I turn then to the Employer’s request for the cancellation of the February 22, 2021 hearing date due to the unavailability of counsel. Where hearing dates have been set at the time counsel is retained, it is expected the party will retain counsel who is available on the dates already set. Five further hearing dates have now been set in July and August 2021 and Employer counsel argues this matter will thus not conclude until August 2021 regardless of whether this matter proceeds on February 22, 2021. It is further argued, no efficiency is gained by proceeding on a single day in February and then having a break of several months when the entire hearing can be conducted and finished in the July and August dates set. The Union is adamantly opposed to the cancellation of February 22, 2021 pointing out that the December 17, 2020 date was adjourned at the request of the Employer and the hearing did not begin on the second date, January 27, 2021. If February 22, 2021 is cancelled, three days will have been lost.

19Turning to whether the February 22, 2021 date will be cancelled, the Union’s point that the grievor has now been out of work for a considerable period of time and is entitled to have his case heard with expedition is valid. I would not cancel the February 22, 2021 date if the only consideration were the unavailability of counsel who was retained after dates were set. In this case, however, by way of this decision, considerable document production must now be made, and issues may arise from the documents produced or not produced. Document production is to be completed to the fullest extent possible prior to the hearing commencing, and, given the timing of this decision, such may not be possible if the hearing were to commence on February 22, 2021. Given the timing of the additional dates set the cancellation of February 22, 2021 will not delay the conclusion of the hearing. Accordingly, the February 22, 2021 hearing date is hereby cancelled and this matter will proceed on July 21, 23, 27 and 30 and August 10, 2021.