GSB#2013-1169; 2013-1170; 2016-0302; 2016-2388; 2018-0102; 2018-0615

UNION#2013-0424-0002; 2013-0424-0003; 2016-0424-0001;

2017-0424-0001; 2018-0424-0008; 2018-0424-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranger)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Craig Flood Koskie Minsky LLP Barristers & Solicitors Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 5 and 8, 2022

Decision

1This decision is further to my decision dated March 15, 2022 in which the Employer was directed to call viva voce evidence as to whether it had made its best efforts to comply with my production order, given orally at the hearing on November 4, 2021. That production order related to staff emails, exchanged amongst each other, made using the Employer's internal email servers. On the evidence before me, those emails relate directly to events witnessed by the staff that led to the grievor being disciplined by way of a five-day suspension without pay. The existence of such emails was evident from the direct-examination of Alex Champagne. In the course of his direct-examination he reviewed an email, dated Wednesday, January 24, 2018, to Audrey Takasaki. That email includes the following:

Hey,

Just writing as you requested about the events of this morning.

April, Janine and I have had a few email exchanges of support, since talking in the office right now is uncomfortable to say the least.

2At the time, Ms. Takasaki was the Assistant-Manager of the Ottawa Centre Probation and Parole Office where the events took place, and Mr. Champagne was an Administrative Support Clerk in that office. Accordingly, Ms. Takasaki knew of the circulation of these staff emails prior to the grievor being disciplined. Before commencing the cross-examination of Mr. Champagne, the Union asked for the production order, which was issued.

3The continuation to hear the viva voce evidence of whether the Employer had made its best efforts to find the said emails took place on April 5, 2022.

4On April 5, 2022 the Employer called two witnesses. The first witness was Mr. André Laperriere, the Team-Lead for Enterprise Email Service, Information Technology Services, MGCS. He testified about his efforts to restore the data tapes for the time period in question relating to the employees in question to allow the re-creation of the resultant mailboxes. The second witness was Mr. Jamie Pearson, Quality Assurance Manager, Eastern Region, SOLGEN. He was given the task of taking that data and searching the mailboxes for any relevant emails. I am satisfied that they applied themselves with the diligence required; that is, they made their best efforts, within their respective spheres of endeavour.

5It should be borne in mind that the Order given was for the Employer to find what it could within the parameters above; that is, amongst the data that had in fact been preserved, not the data that could have been preserved. On the way through the viva voce testimony, I heard some evidence about a category of email preservation known as a "litigation hold". Seemingly, the employer can require that some emails have an infinite retention. Indeed, some of what was recovered was apparently as a result of such a hold being exercised, by others, for reasons unrelated to the matters before me. It was because of that hold that some of the emails produced were accessible. Mr. Laperriere learned of this from a Mr. Petitclerc. Mr. Petitclerc did not testify; however, Mr. Laperriere testified about an email sent to him from Mr. Petitclerc on December 2, 2021. That email reads as follows:

Subject: RE: Litigation Request - Data Availability Check

From what I can see the policy that backs up those databases did a Daily Full and had a retention of 3 years.

So based on that I would think the furthest we could go back is Dec. 3, 2018.

That is the furthest I can see with the 3 year retentions.

I do see a bunch of images from Sept. 28, 2018 to Oct 5, 2018 that have the infinite retention. This must have been from litigation.

6Accordingly, Mr. Petitclerc expressed the opinion that the unexpected availability of this data, ". . . must have been from litigation." Mr. Laperriere had no knowledge himself of the reason why this evidence had been infinitely preserved, as he made clear in his re-direct examination. More's the pity that the instant litigation did not benefit from the employer imposing, at the time, infinite retention of the emails now at issue in the production order.

7Accordingly, I am of the view that best efforts were made in compliance with my Order to uncover what existed.

8Mr. Champagne's cross-examination will commence on the next scheduled day of the hearing.