GSB# 2017-1301

UNION# G-58-17-BOS

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Thiripurapavan)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Jasbir Parmar

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP

SUBMISSIONS

Counsel May 26, 2021

Decision

ISSUE

1The Grievor grieves that his employment was unjustly terminated. This decision addresses the Union’s motion for an order for production of certain documents in relation to the Employer’s stated intention to call an expert witness.

2By way of background, the Grievor was employed as a bus driver with the Employer. He was terminated for driving a bus while impaired by alcohol, as well as for drinking alcohol while he was driving the bus. The Employer discovered the Grievor was impaired during his shift and called the police. The Grievor was arrested. Within a couple hours, the Grievor underwent breathalyzer testing by the Peel Regional Police. The Union’s case is premised on the assertion that the Grievor has an alcohol dependency, that this dependency has a clear nexus to his impugned conduct, and that therefore, pursuant to the Human Rights Code, the Employer has an obligation to accommodate the Grievor.

3The Employer has advised it intends to lead expert opinion evidence from Dr. Snider-Adler. The Employer has provided a report authored by her to the Union.

4The report indicates that it addresses the following questions:

a) My opinion as to whether the Grievor’s driving of a passenger bus while impaired can or should be attributed to alcohol use disorder.

b) If so, to what extent can or should that conduct be attributed to alcohol use disorder?

c) My opinion regarding the sufficiency of the Grievor’s medical treatment, counselling, and rehabilitation efforts in the circumstances.

d) In light of Dr. Corbett’s projection [about blood alcohol concentration], provide an opinion concerning the extent to which Mr. Thiripurapavan’s ability to drive a bus was impaired by alcohol during the timeframe of interest (i.e. 10:06 p.m. to 10:54 p.m. on April 7, 2017).

5Dr. Snider-Adler has also signed an Acknowledgement of Expert’s Duty form, indicating she acknowledges her to duty to provide evidence in this proceeding as follows:

a) To provide opinion evidence that is fair, objective and non-partisan;

b) To provide opinion evidence that is related only to matters that are within my area of expertise; and

c) To provide such additional assistance as the Grievor Settlement Board may reasonably require, to determine a matter in issue.

6Dr. Snider-Adler’s curriculum vitae (C.V.) indicates that, amongst the various professional positions she currently holds, she is chief medical review officer of DriverCheck Inc., a company with whom the Employer has contracted to perform various drug and alcohol testing and related services for the Employer. In her C.V. Dr. Snider-Adler described her duties in respect of DriverCheck as follows:

I began working as a Medical Review Officer (MRO) in 2007) at DriverCheck Inc. DriverCheck Inc. was founded in 1996 and continues to provide comprehensive Alcohol and Drug Testing Programs to more than 6500 companies spanning across Canada. I am presently the Chief Medical Review Officer for DriverCheck Inc., which involves MRO work, overseeing the other MROs at DriverCheck and consulting with companies who may have questions about their Alcohol and Drug Testing Programs. DriverCheck Inc. conducts over 300,00 drug and alcohol tests annually. DriverCheck Inc. also provides comprehensive Third Party Administrator Services (TPA), including test booking services, computerized random testing selection services, specimen collection services, mobile collection services and a host of occupational health services.

Given the difficulty employers have had dealing with cannabis for medical purposes, I helped to institute a medical cannabis review process at DriverCheck Inc. The Medical Cannabis Review Program (MCRP) began in 2018. Since its inception, I have been instrumental in reviewing cases and providing conclusions regarding fitness for duty with authorized cannabis and other prescription medications for employees working in safety-sensitive and risk-sensitive industries. This service has expanded to include review of employees who are prescribed opioids as well as treatment for opioid use disorder including methadone and buprenorphine. Given this work, I have remained up to date with the latest research, papers and medical information pertaining to cannabis use and impairment, specifically related to impacts in the workplace.

7The Union has not yet advised whether it objects to the admissibility of Dr. Snider-Adler’s report. Before doing so, it seeks production of certain documentation which it asserts is essential for it to determine its position on that issue. Specifically, the Union seeks the following:

a. The retainer letter between Dr. Snider-Adler and the Employer for the report provided in respect of the present matter;

b. Dr. Snider-Adler’s contract with DriverCheck and any other record disclosing Dr. Snider-Adler’s relationship with DriverCheck and/or the Employer.

c. Any and all contracts between the Employer and Drivercheck and any other record disclosing any relationship between the Employer and DriverCheck;

d. Any and all Requests for Proposals (RFP) for the Employer’s drug and alcohol testing program;

e. Copies of unpublished adjudicative decisions listed in Dr. Snider-Adler’s C.V. in which she provided expert testimony.

BRIEF SUMMARY OF SUBMISSIONS

8The Union submits that it has three broad concerns that warrant production of these documents before it takes a position on the doctor’s qualifications. The first is a concern about the doctor’s independence given her relationship with DriverCheck and DriverCheck’s relationship with the Employer. The second is a concern that the Union has not been provided all of the foundational materials for Dr. Snider-Adler’s report. Third, the Union is concerned about Dr. Snider-Adler having a bias or advocacy role based on her previously providing expert evidence on behalf of employer and her role generally within the drug testing community. The Union submits it wants to investigate its concerns and determine whether they warrant challenging the doctor’s qualifications. It submits that it cannot advise whether it is challenging the doctor’s qualifications in the absence of production of these documents.

9The Union submits that it is entitled to materials that form the foundation of an expert’s report, because they are directly relevant to the expert’s conclusions. The Union submits that this includes the retainer letter from the party seeking the expert opinion because it documents the underlying facts and additional materials provided to the expert along with the specific questions the expert is asked to answer.

10The Union submits that an expert should be independent and have the appearance of independence. The Union points to the fact that Dr. Snider-Adler has an ongoing relationship with DriverCheck. The Union raises a question as to whether someone at DriverCheck, who has a relationship with the Employer, can be independent or would be seen to be independent. The Union submits it is entitled to Dr. Snider-Adler’s contract with DriverCheck and entitled to DriverCheck’s contract with the Employer so that it can assess that relationship and determine whether it gives rise to an appearance of non-independence or actual independence. For example, the Union submits it is relevant whether Dr. Snider-Adler is receiving compensation on the basis of the Employer’s broader relationship with DriverCheck, as such facts would speak to her independence. The Union also submits that if she is an employee versus a contractor for DriverCheck is a material consideration with respect to the issue of independence. The Union stated the Employer could redact any commercially-sensitive information from these contracts.

11The Union also submits it is entitled to any RFPs issued by the Employer for its drug and alcohol testing program because it is relevant what services the Employer was seeking to obtain for this program and whether those included providing expert evidence in a labour arbitration. The Union submitted such information would go to Dr. Snider-Adler’s independence. However, the Union conceded, these documents would be of lesser relevance than the contract ultimately established with DriverCheck.

12The Union also submitted the Employer should provide the Union with any unpublished adjudicative decisions from proceedings in which Dr. Snider-Adler provided expert opinion evidence. As the Employer has agreed to provide these to the Union to the extent they have them, I will not address this issue.

13The Union relied on the following authorities: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; Moore v. Getahun, 2015 ONCA 55 (Ont. C.A.); Fellowes, McNeil v. Kansa General International Insurance Company Ltd., 1998 CanLII 14856 (Ont Ct Gen.Div.), and United Brotherhood of Carpenters and Joiners of America and Sgotcorp. Ltd., 2007 CanLii 23597 (McKee).

14The Employer submits that a party seeking production of documents must first establish a legitimate basis for such production, and the Union has failed to do that in this case. The Employer submits that the Union’s request is clearly a fishing expedition. The Employer submits that, without actually objecting to Dr. Snider-Adler’s qualifications, the Union is seeking documents with an open acknowledgement that it is for the purpose of seeing if they can find anything to ground such an objection. The Employer submits that finding in favour of the Union would set a terrible precedent, and mean that any party seeking to rely upon an expert opinion would be required, without any basis, to disclose confidential business records.

15The Employer submits the documents the Union seeks are subject to litigation privilege or are highly confidential documents.

16The Employer submits the retainer letter is subject to litigation privilege, and ought not to be disclosed unless there is a reasonable suspicion that counsel has interfered with the expert. The Employer submits any questions about what Dr. Snider-Adler was asked to opine upon is answered in her report, where she expressly sets out the questions she was asked to address and the documentation that was provided to her for the purposes of her opinion. The Employer notes that Dr. Snider-Adler has provided an acknowledgement of her duty to the Board to be non-partisan, objective and fair in providing her opinion. The Employer submits that inclusion of that information in the report is what is required by the courts, and there is no basis for an arbitrator to require further exploration in the absence of any reasonable suspicion of interference.

17As for the contracts sought by the Union, the Employer notes first that it does not have control over the contract between Dr. Snider-Adler and DriverCheck. Furthermore, the Employer submits, Dr. Snider-Adler has openly disclosed and provided details about her relationship with DriverCheck in both the report and her C.V.. The Employer submits that the concerns the Union raises about the possibility of an employment relationship have been determined to be matters which do not form a basis for disqualification of an expert, noting that the courts have held that the fact of an employment relationship is not sufficient to disqualify an expert. Thus, the Employer submits, there is no basis for production of the contracts to explore whether an employment relationship with DriverCheck exists, since it will not be determinative for the issue of qualification. Moreover, the Employer submits, production of the Employer’s RFP for drug and alcohol testing does not make any sense, as it does not relate to any issue.

18The Employer relied on the following additional authorities: Maxrelco Immuebles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836; Edwards v. McCarthy, 2019 ONSC 3925; Orbcomm Inc. v. Randy Taylor Professional Corporation, 2019 ONSC 2636; Scaffidi-Argentina v. Tega Homes Developments Inc., 2017 ONSC 6530; Wright v. Detour Gold Corp., 2016 ONSC 6807; Liddy v. City of Vaughan, 2017 ONSC 6575; Simons v. Canada (Attorney General), 2018 ONSC 3741; Teamsters Canada Rail Conference and Canadian Pacific Railway (2019), 141 C.L.A.S. 270 (Clarke); Ontario and OPSEU (2016), 126 C.L.A.S. 252 (Harris); Brown & Beatty, 3:1422 – Ordering Production; West Park Hospital v. ONA, [1933] O.L.A.A. No. 1212 (Knopf); AFG Industries Ltd. and Aluminum, Brick and Glass Workers International Union, Local 295G (1998), 1998 CanLII 30028 (ON LA), 71 L.A.C. (4th) 67 (Knopf); Toronto District School Board and CUPE, Local 4400, [2007] O.L.A.A. No. 233 (Luborsky); and Toronto Transit Commission and ATU, Local 113 (2016), 129 C.L.A.S. 253 (Stout).

ANALYSIS

19The issue is whether the Employer should be ordered to produce the identified documents.

20The test for production in labour arbitration was set out in West Park Hospital, supra, and is as follows:

i) The information requested must be arguably relevant;

ii) The requested information must be particularized;

iii) The arbitrator must be satisfied that the information is not being requested as a “fishing expedition”;

iv) There must be a clear nexus between the information being requested and the positions in dispute at the hearing; and

v) The arbitrator should be satisfied that disclosure will not cause undue prejudice.

21In terms of arguable relevance, at this point it has not yet been determined whether Dr. Snider-Adler will be permitted to provide evidence or whether her report is admissible. As such, the only issue in respect of which these documents can be relevant is the issue of admissibility unless and until the report is admitted. It is noted that there is a distinction between evidence which is relevant to the threshold issue of admissibility as opposed to the weight to be given to an expert’s evidence: see White Burgess, supra, at para. 40.

22The Union seeks production of the Employer’s retainer letter with Dr. Snider-Adler. There is no dispute between the parties that foundational materials upon which an expert opinion is based must be produced. The dispute is whether production of this particular document is required in light of that obligation. The Employer submits the fact that Dr. Snider-Adler has set out in her report the specific questions she has been asked to address and the documents she was provided to consider in providing her opinion is sufficient to meet the obligation.

23The Employer relied upon a number of court decisions in support of its submission that retention letters do not have to be disclosed. Those decisions address this issue in the civil context, and make reference to the Ontario Rules of Civil Procedure. I make the obvious observation that the Rules of Civil procedure do not apply in labour arbitration; the Labour Relations Act authorizes arbitrators to admit evidence whether or not it may be admissible in court. Nonetheless, the Rules may offer some guidance with respect to ensuring a fair and just arbitration proceeding.

24Rule 53.03(2.1) requires a party who intends to call an expert witness at trial to provide the opposing party a copy of a report from the witness containing the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert.

25As noted by the Court of Appeal in Moore, supra, the practical result of this rule is that “the foundational information” for the opinion must be disclosed. It is clear from Rule 53.03(2.1) that the foundational information includes the instructions provided to the expert.

26Maxrelco, Edwards, Orbcomm, Scaffidi, Liddy, and Simmons are all cases where it was held that, where a report meeting the requirements of Rule 53.03(2.1) had been provided, there was no requirement to produce the retainer letter or instruction letter from counsel to the expert in respect of which litigation privilege remained. However, all of those decisions were rendered in the context of a refusal to provide such documents during the discovery process. I observe the scope of information upon which a party is entitled to discover in relation to expert opinions is governed by Rule 31.06(3).

27In Edwards v McCarthy, supra, the Ontario Superior Court considered an appeal from a decision of a master who had ordered a party to disclose an instruction letter to an expert at the discovery stage. The Court relied on the analysis of the Ontario Court of Appeal in Moore and concluded the master had erred. The Court stated the following:

10In reaching the conclusion she did, the Master relied on the Andreason decision. In my view, that case is distinguishable, and ought not to have been followed.

11Andreason was concerned with disclosure of information at the commencement of trial, relating to experts who were going to testify as part of the plaintiff’s case. By contrast, the present motion is brought at the discovery stage. Different considerations arise when an expert is actually testifying and the trial judge is asked to determine the extent of required disclosure of materials that would otherwise be protected by litigation privilege.

12As the Court of Appeal noted in Moore v. Getahun, 2015 ONCA 55 (Ont.C.A.)(at para. 76, quoting Blank v. Canada (Department of Justice), 2006 SCC 39 (S.C.C.) at para. 37): “ ‘litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.’ Litigation privilege yields where required to meet the ends of justice…” Rules 31.06(3) and 53.03(2.1) specify the extent to which litigation privilege must yield at the discovery stage. Absent special circumstances or other good reasons, and unless otherwise mandated by the rules (such as rules 31.06(3) and 53.03(2.1)), a party is entitled to continue to maintain litigation privilege through to trial where, by calling a witness or otherwise taking a particular position, the privilege may be deemed to be waived.

28The above suggests that the line of analysis in the Maxrelco cases is of limited value to labour arbitration, where there is no discovery process and the issue is what should be produced in advance of a specific expert testifying at the arbitration.

29In the arbitral context, it has been held that instructions of counsel to an expert are part of the foundational materials which must be produced when a party seeks to lead expert evidence: Sgotcorp Ltd., supra.

30In the present case, the Employer has clearly indicated its intent to call Dr. Snider-Adler as an expert witness. The retainer letter sent to her would include its instructions to her. As such, it contains information which is at the very least arguably relevant to her opinion. By putting her forth as a witness, the Employer is deemed to have waived any litigation privilege attached to the document. For these reasons, this document must be produced. The Employer may redact the amount of compensation to be paid Dr. Snider-Adler for her opinion, if that information is contained in that letter. All experts are paid for their provision of an opinion, and so, at least at this point, I see no probative value in disclosure of the amount.

31The Union also seeks production of Dr. Snider-Adler’s contract with DriverCheck. The Employer is not a party to that document and therefore it does not have any control over this document. I cannot order a party to produce a document over which it does not have control. The Union submitted that its request is simply a manner of expediting the process, because if no order is granted, it will seek to obtain that document in the course of cross-examining Dr. Snider-Adler in the course of a voir dire. The fact that the Union has declared its intention to do so does not change the limits of my jurisdiction.

32The Union also seeks production of the contract between DriverCheck and the Employer, on the basis that Dr. Snider-Adler has a relationship with DriverCheck and DriverCheck has a relationship with the Employer.

33DriverCheck is not a party to this arbitration and there is no indication it has anything to do with the factual matrix of this case. There is nothing that indicates it engaged in any drug or alcohol testing of the Grievor. There is nothing that indicates the expert opinion is provided by DriverCheck. There is nothing in Dr. Snider-Adler’s report which suggests she is providing this opinion on behalf of DriverCheck. The report is set out on her own letter-head. While she references her professional relationship to DriverCheck in her report, it is only in the context of establishing her broader professional experience upon which draws the expertise to provide her opinion, just like her professional experience at Queen’s University Medical School Family Practice Residency Program, her professional experience at the Methadone Program at the College of Physicians and Surgeons of Ontario, and her professional experience as an addiction treatment physician at the South Oshawa Clinic.

34The mere fact that Dr. Snider-Adler has a professional relationship with a party with whom the Employer also happens to have relationship is insufficient to form a factual foundation to conclude that DriverCheck has anything to do with this particular case or with the opinion provided by Dr. Snidler-Adler in this case. In the absence of such, to order production of highly confidential business records in light of this most tenuous of connections would be enabling a fishing expedition. I am also concerned about the undue prejudice that may arise from producing confidential records which likely address a myriad of issues with no relevance to this matter given the tenuous connection of DriverCheck to this case.

35The Union also seeks all RFPs issued by the Employer for its drug and alcohol testing program. There is no logical connection between what the Employer may have at one point in time contemplated in establishing its testing program to any issue in this case.

36In closing, I observe that this production request was made in advance of any determination about the issue of admissibility of the report. If later in the proceeding there is a basis to conclude these documents have become arguably relevant, the Union may of course seek production at that time.

DISPOSITION

37The Union’s motion is granted in part, in that the Employer is required to produce its retainer letter to Dr. Snider-Adler. Other than that, the Union’s motion is dismissed.