GSB# 2019-0169; 2019-0622; 2019-1920; 2019-2978; 2020-1096

UNION# G-012-19 COR; G-039-19 BOW; G-140-20-BFF; G-014-20-BOE; G-039-20-BOW

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Policy)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE UNION

Simon Blackstone and Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Co-Counsel

FOR THE EMPLOYER

Bonnea Channe and Mark Van Ginkel Filion Wakely Thorup Angeletti LLP Co-Counsel

HEARING

May 26, 2022

Decision

1This interim decision addresses a) the order of proceeding, and b) production issues.

2I have five grievances for determination. The merits of the policy grievance concern the reasonableness and/or the constitutionality of a Fitness for Duty Policy (the “Policy”) amended by Metrolinx (the “Employer”) regarding off-duty use of cannabis (the “prohibition grievance”) following the legalization of cannabis. Four related individual grievances (reflecting three individuals) are also before me.

3The Policy prohibits all recreational use of cannabis or cannabis products both on and off-duty for anyone working in a designated safety-sensitive position. The Policy identifies “medical cannabis” as a “potentially impairing medication”, requiring disclosure of any prescription for medical cannabis to the Employer. Consequences for a breach of the Policy can include discipline up to and including termination from employment. The individual grievances generally involve allegations of discrimination and an unreasonable exercise of management rights on behalf of the three Grievors who disclosed medical use of cannabis and were removed from their designated safety-sensitive position as a result of that disclosure. In one instance, the Employer takes the position that the removal from the safety-sensitive position was done following “reasonable cause” testing. It appears that the Grievors were either reassigned to a non-safety-sensitive position or were placed on sick leave.

4There is no dispute that none of the Grievors sought an accommodation of any disability. In the Step 2 response in the Wong grievance, the Employer states:

... we have a duty to accommodate you where your prescribed medication(s) could affect your ability to perform your duties safely. Although you have not requested accommodation, your medical prescription could affect your fitness for duty, and therefore we feel the duty to accommodate has been triggered.

5In the Step 2 response to the Sousa grievance, the Employer states:

Since you are being treated for a medical condition using a substance prohibited by the Policy, we are not able to have you work in a safety sensitive position.

6Following the hearing of these preliminaries, and in addition to its allegations that the Employer has violated both the collective agreement and the Human Rights Code (the “Code”), the Amalgamated Transit Union, Local 1587 (the “Union”) has also filed a Notice of Constitutional Question alleging that the Policy violates sections 7 and 15 of the Charter.

7The Employer has taken the position that it implemented the Policy in furtherance of its intention and objective to ensure and provide a safe workplace for the benefit of both its employees and the general public that the Employer serves. During its submissions, it also indicated that it was seeking to put the Union to the strict proof of whether the cannabis use by the Grievors was medical or recreational.

8The Union referred me to the following decisions. It relied particularly on the decisions in Irving, Mechanical Contractors Association Sarnia, and Ornge Air, infra, on the procedural issue. On the production issue, it relied on the orders made by Arbitrators Howe and Flaherty, and the decisions in Ottawa Hospital and Greater-Essex County School Board, all infra:

• Brown and Beatty, Canadian Labour Arbitration, 5th Edition, at § 3:37
• Palmer and Snyder, Collective Agreement Arbitration in Canada (Bendel, et al.), 6th Ed., at 5.158 and at 5.159
• Gorsky, Upsrich and Brandt, Evidence and Procedure in Canadian Labour Arbitration, at § 9:7 and § 9:8
• Irving Pulp & Paper, 2013 SCC 34
• Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLII 54951 (Surdykowski)
• Ornge Air v Office and Professional Employees International Union, 2021 CanLII 126376 (CA LA) (Misra)
• Oxford Pendaflex (Canada) Ltd. (1977), 1976 CanLII 2102 (ON LA), 13 L.A.C. (2d) 63 (Abbott)
• Labourers' International Union of North America, Local 183 (Universal Workers Union) v. Greenwin Property Management Inc. (Collective Agreement Grievance), [2014] O.L.A.A. No. 116 (Anderson)
• London Free Press, a Division of Sun Media Corp. v. Communications, Energy and Paperworkers Union of Canada, Local 87-M (Commission Targets Grievance), [2006] O.L.A.A. No. 377 (Davie)
• Cancer Care Ontario v. O.N.A., 2003 CarswellOnt 9434, [2003] O.L.A.A. No. 13, 71 C.L.A.S. 312 (Keller)
• Ontario (Treasury Board Secretariat) and AMAPCEO, Re, 2015 CarswellOnt 17398, 125 C.L.A.S. 86 (Dissanayake)
• Ontario Public Service Employees Union v. Ontario (Education), 2008 CanLII 4253 (Richard L. Jackson)
• Air Canada v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 2213 (Bird Grievance), [2001] CLAD No 522 (Dissanayake)
• Re Canadian Pacific Railway Co., Canadian Railway Office of Arbitration Case No. 3036, 1999 (M.G. Picher)
• Unilever HPC NA v Teamsters, Chemical, Energy & Allied Workers, Local 132, 2002 CarswellOnt 4749 (Springate)
• OPSEU v Ontario (Ministry of Community & Social Services), [1996] OJ No 608 (Ont Div Ct)
• Ontario Public Service Employees Union v Ontario (Ontario Human Rights Commission), 2003 CanLII 52924 (ON GSB) (Briggs)
• Ontario Public Service Employees Union v. Ontario (Health and Long-Term Care), 2007 CanLII 6892 (Dissanayake)
• Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 31463 (Briggs)
• Assn. of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Attorney General) (Braun Grievance), [2017] O.G.S.B.A. No. 89 (Janice Johnston)
• Production Order of Arbitrator Howe in TTC & ATU 113 - Sherri Stillo (#58722) - Failure to Accommodate, dated October 26, 2016
• Amalgamated Transit Union - Local 1587 (Kay) v Ontario (Metrolinx), 2021 CanLII 17432 (Flaherty)
• Sunnybrook Health Sciences Centre v. Ontario Nurses' Assn. (Devine Grievance), [2006] O.L.A.A. No. 600 (Davie)
• Ottawa Hospital v. Canadian Union of Public Employees, Local 4000 (Daze Grievance), [2011] O.L.A.A. No. 529 (Slotnick)
• Greater Essex County District School Board v. Canadian Union of Public Employees, Local 27 (Sick Leave Grievance), [2018] O.L.A.A. No. 442 (White)
• Orillia Soldiers' Memorial Hospital and OPSEU, Local 383, Re, 2020 CarswellOnt 17222, [2020] O.L.A.A. No. 305 (Abramsky)
• Information and Privacy Commissioner of Ontario, Order H0-009, dated October 13, 2010
• Ontario Gazette 139-10 (11 March 2006)
• Information and Privacy Commissioner of Ontario, PHIPA Decision 117, “Humber River Hospital,” dated April 17 2020

9The Employer referred me to the following decisions:

• Re Bloorview School Authority and CUPE, Local 4400, 2016 CarswellOnt 1823 (Ont Arb) (Knopf)
• IUOE, Local 793 & LIUNA, Local 183 v Earth Boring Company Limited, 2018 CanLII 59385 (Ont Arb) (Rogers)
• Ottawa (City) v Civic Institute of Professional Personnel (Lehman Grievance), [2007] OLAA No 255 (Ont Arb) (Starkman)
• Sunnybrook Health Sciences Centre v ONA, 2006 CarswellOnt 9538 (Ont Arb) (Davie)

A. ORDER OF PROCEEDING

10It was the position of the Union that the Employer should proceed first. This Policy was introduced unilaterally, noted the Union. The Union need only indicate its lack of agreement with the Policy and the central onus then shifts to the Employer to establish that the Policy meets the criteria set out in the long-accepted decision in KVP, argued the Union. Similarly, while the Union need establish a prima facie case of discrimination, the Employer bears the central onus of establishing that the Policy is not discriminatory, argued the Union. Where that central onus rests with the Employer, it should proceed first, argued the Union.

11In the alternative, the Union argued, fairness and efficiency require that the Employer proceed first and that the Board’s discretion ought to be exercised so as to require the Employer to proceed first, regardless of onus. The Employer has specific and unique knowledge pertinent to both the Policy and its application to the Grievors, argued the Union. The application of the Policy to the individual Grievors, taking them out of their positions, was akin to a disciplinary action, argued the Union; only the Employer is aware of its reasons for these decisions, such that it makes sense for the Employer to proceed first. Hearing evidence as to the Employer’s reasons first provides a clearer structure and better understanding of the evidence, argued the Union, and prevents the need for both anticipatory evidence and extensive reply.

12It was the Union’s position that the individual Grievors are fit to perform their usual positions without accommodation. These individuals were taken out of their usual positions, argued the Union, and the reasons for declaring them unfit for those positions are solely within the Employer’s knowledge. An assertion of safety is insufficient particularization, argued the Union, without some explanation as to how it is tethered to its response.

13It was the position of the Employer that the Union ought to proceed first. There was no dispute, argued the Employer, that the Union bore the legal onus to establish its allegations in the grievances, and there was no basis to depart from the rule that order of proceeding follows onus. The reasons for the Policy, argued the Employer, are not surprising and have been described to the Union as reflecting the Employer’s commitment to and interest in ensuring the safety of employees and the public that the Employer serves. The Employer, it argued, has the right to make reasonable rules and it is the Union that is asserting that the Policy is unreasonable.

14The Union has also asserted that the Policy is discriminatory, asserting general breaches of the collective agreement, the Code, and the Charter, noted the Employer. The Union is required to prove those assertions, argued the Employer, and as a matter of fairness, ought to proceed first in order to establish a prima facie case of discrimination, thereby establishing a need for an Employer response.

15It is disputed, argued the Employer, whether any individual cannabis use was connected to any disability, that is, whether it was recreational or medical use. That needs to be established as part of any prima facie case of discrimination, argued the Employer. The removal of individuals from their usual positions came after their disclosure of cannabis use. The medical records supporting the assertion of medical use rest with those individuals, argued the Employer. The Employer has no information advantage, it argued, as a third party health management provider retains any relevant health information and is bound by privacy regulations.

16In the same manner, argued the Employer, the Union must show that any Charter right has been infringed before the Employer is required to show that any infringement constitutes a reasonable limitation. Thus, argued the Employer, as a matter of fairness and efficiency, the Employer needs to be made aware of the case it has to meet. The Employer argued that the application of the KVP test in fitness for duty policies requires a balancing of the interests of safety and privacy, and that an assertion of unreasonableness was insufficient without evidence, asserting that both parties have an evidentiary onus to meet. There was no compelling reason to depart from the norm that the Union proceed first, argued the Employer, referring to the decisions in Bloorview, Earth Boring, and City of Ottawa, all supra.

17In reply, the Union argued that it was incumbent on the Employer to establish a nexus between the Policy requirement and the workplace. The Policy governs off-duty consumption of cannabis, argued the Union, and the Employer must establish the safety risk in the workplace that it asserts. The Union argued that the balancing required by KVP is a sub-set of onus; that the decision in Irving requires that the Employer establish that its rule falls on the right side of the balancing of interests, that is, it is an employer onus to show that its legitimate business interests outweigh the individual interests.

18In terms of the individual grievances, the Union argued that the central issue in those cases is the same as the Policy issue. The Employer has claimed that the reason for the Grievors’ removal is because they disclosed cannabis use, but the Employer has said nothing concerning how that use affected their fitness for work, argued the Union. This, argued the Union, reflected the need for the Employer to establish a nexus to the workplace and the Policy’s asserted safety objective. The Union also asserted that it was entitled to know why the Employer acted, noting that the Employer’s argument here was the first time that the Employer had identified that it was contesting whether the use of cannabis by the individual Grievors was medical and not recreational.

Decision

19There is no dispute that in the usual case, the order of proceeding is determined by which party holds the legal onus. There is also no dispute that an arbitrator has the discretion to consider and direct an order of proceeding that does not conform to that relationship in circumstances where it would be more efficient and/or appropriate from a procedural or evidentiary standpoint to have a particular party proceed first, regardless of the legal onus of proof. The question of onus and its inherent concern of fairness remains a consideration but is balanced by the need for efficient proceedings.

20There is no dispute that the challenged portion of the Policy was unilaterally introduced by the Employer and that breaches of the Policy can attract consequences up to and including discharge from employment. There is also no dispute that the Policy, as an exercise of management rights, must be reasonable. Any argument regarding the Charter is one that is effectively subsumed into the question of whether the Policy is reasonable.

21In its decision in Irving Oil, supra, the majority in the Supreme Court of Canada stated:

24 The scope of management's unilateral rule-making authority under a collective agreement is persuasively set out in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson). The heart of the "KVP test", which is generally applied by arbitrators, is that any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable (Donald J.M. Brown and David M. Beatty, Canadian Labour Arbitration (4th ed. (loose-leaf)), vol. 1, at topic 4:1520).

25 The KVP test has also been applied by the courts. Tarnopolsky J.A. launched the judicial endorsement of KVP in Metropolitan Toronto (Municipality) v. C.U.P.E. (1990) 1990 CanLII 6974 (ON CA), 74 O.R. (2d) 239 (C.A.), leave to appeal refused, [1990] 2 S.C.R. ix, concluding that the "weight of authority and common sense" supported the principle that "all company rules with disciplinary consequences must be reasonable" (pp. 257-58 (emphasis in original)). In other words:

The Employer cannot, by exercising its management functions, issue unreasonable rules and then discipline employees for failure to follow them. Such discipline would simply be without reasonable cause. To permit such action would be to invite subversion of the reasonable cause clause. [p. 257]

22There appears to be no dispute that, upon complying with the disclosure requirement under the Policy, two of the Grievors were removed from their designated safety-sensitive positions and either reassigned or placed on sick leave. The remaining Grievor was removed from his position pursuant to what the Employer asserts was “reasonable cause” testing, which the Union disputes. There is no dispute that no request to accommodate a disability was made by any Grievor. At the same time, these actions in removing the Grievors from their designated safety-sensitive positions are not considered disciplinary by the Employer, but have been identified as the Employer having engaged the accommodation process under the Code in circumstances where the Employer is also challenging whether any cannabis use is medical or recreational. I accept that the Employer’s position at this stage appears to be somewhat contradictory, a concern that might warrant a direction that it proceed first.

23To the extent that the Employer has indicated ‘safety’ as its rationale for the Policy, the Union is aware that the manner in which the Policy is being administered effectively creates an absolute prohibition on cannabis use both on and off-duty, triggering either a disciplinary approach or an accommodation process depending on whether use is recreational or medical. It is the Union’s position that the Policy is overly broad and therefore unreasonable, and that the removal of the Grievors from their positions based on their disclosure of medical cannabis use was both unreasonable and discriminatory, as the Employer effectively imputed a lack of fitness to work in the designated safety-sensitive position without further inquiry.

24The Employer puts the Union to the strict proof of its claims, particularly in relation to the individual Grievors. And, while that legal onus does rest with the Union, it is also the case that the Policy grievance may not require much factual foundation from the Union before an evidentiary burden shifts to the Employer to speak to the factors in KVP. And it appears that much of the factual context underpinning the Union’s decision to pursue the grievances is not or is unlikely to be in dispute. What is in dispute is the issue of whether a prohibition on cannabis use is overly broad with all of the attendant consequences. While that potential shift in evidentiary burden can suggest that the Employer ought to proceed first, it remains the case that neither party has a particular or unique ‘lock’ on the issues in dispute. While the Union claims that ‘safety’ is insufficient particularization to explain the Employer’s decisions, the Union is aware that the Employer has taken a ‘zero tolerance’ approach to cannabis use for those working in designated safety-sensitive positions. Whether that is appropriate is a matter that both parties have the ability to address.

25These parties have as yet been unable to agree to a process that might include an agreed statement of fact and/or will-say statements subject only to cross-examination. It is anticipated that there will also be expert evidence, whether documentary or viva voce. The various means whereby the hearing process might be expedited remain available, much like the process used in Ornge, supra.

26However, I am not persuaded that there is good reason to depart from the usual order of proceeding. Whether there is need for reply evidence will be determined in the normal course. Given the scope of the Union’s allegations, it is prudent that it make its case at the outset. I find therefore that the Union is to proceed first.

B. PRODUCTION/DISCLOSURE

27There are three types of records subject to disclosure: health and safety files, Driver Check files, and Oncidium (and/or Wellpoint) files. Oncidium is the third party occupational health management provider that the Employer has contracted with to provide occupational health services. Wellpoint was its predecessor.

28A file maintained by Oncidium pertaining to an employee cannot be accessed by the Employer without the employee’s consent. The Driver Check file is maintained by a third party contracted by the Employer to provide drug and/or alcohol testing services, and, following a process, to report to the Employer. The health and safety files are occupational health files maintained internally by the Employer that also contain health information and information relating to communications between the Employer and Oncidium concerning its services relating to short term and long term disability claims and workers compensation claims.

29There is a history of exchanges between the parties concerning this issue that need not be reviewed except to note that the parties failed to reach any agreement as to how these files should and/or could be disclosed. There is no dispute as to the arguable relevance of at least portions of these files. All of these files contain personal health information. The first issue is the manner in which the files are to be disclosed, an issue that arises because there is an underlying dispute as to the scope of the material to be disclosed. There is a secondary issue as to who should bear the costs of disclosure from the third party provider and a related issue that that cost is unreasonable.

30The Union argued that the information in the files includes material both relevant and irrelevant to the issues in this proceeding. It seeks the opportunity to review the files and redact irrelevant information prior to their release to the Employer or its counsel.

31The Union proposes that following a review by Union counsel, counsel would provide a schedule setting out the general nature of redacted material. The Employer would then be provided with an opportunity to challenge any exclusion, with the arbitrator ultimately determining whether the material is arguably relevant. This is a model previously followed between these parties, argued the Union, referring to a production order made by Arbitrator Howe, and to the order made in ATU v Metrolinx (Kay), both supra. The Union argued that the Employer was looking for documents that were not relevant, documents to which it had no entitlement.

32The Union asserted that all files are held either by the Employer or by agents of the Employer and that no summons was required as it is a matter of production from the Employer. It pointed to correspondence wherein Driver Check declined to disclose its files relating to the Grievors because “Metrolinx..[had] declined to release any records until further notice”.

33The Union argued that Oncidium had stipulated an upfront cost for the release of each Grievor’s file. This provider is acting on behalf of the Employer, argued the Union, and the Employer must provide access to the employee’s file pursuant to Article 4.14.1 of the collective agreement. Any cost should be borne by the Employer in the circumstances, argued the Union. In the alternative, if fees are to be levied against individual employees, those fees must be reasonable, referring to the conclusions of the Privacy Commissioner, cited supra.

34The Employer noted that neither party had served a summons and that therefore the files could not be released without the Grievors’ individual consent. The Employer had asked the Grievors to provide consent for the release of their files simultaneously to both counsel. In that context, the Employer acknowledged that it was making a request for access and would have been responsible for any costs associated with that request. The Employer asserted that it was not interested in medical information not relevant to this proceeding and was seeking the production of records that pertain to each Grievor’s fitness for duty and specifically records concerning medications and/or use of substances that affect fitness. It argued that where a summons had been served orders could be made limiting the scope of the material to be produced with no ancillary concern that access was being provided more broadly than appropriate, referring to the decision in Sunnybrook, supra.

35In reply, the Union argued that, notwithstanding its claim to seek only arguably relevant material, the Employer had indicated that it was seeking all materials and information relating to the Grievors’ fitness for work, an overly broad request. The decision in Sunnybrook, supra, argued the Union, did not support the third party determining arguable relevance.

Decision

36Underlying the issue of how arguably relevant material is to be disclosed is an issue as to the scope of the health information to which the parties are entitled. The Union opposed any material going to the Employer or its counsel prior to review by Union counsel, based on its concern that irrelevant private health information would be inappropriately disclosed. The Employer first sought disclosure of the entire file for each Grievor jointly to counsel. In submissions it argued that it sought information relevant only to each Grievor’s fitness for work and records concerning medications and/or use of substances that affect fitness. That request as framed goes beyond what is arguably relevant to these proceedings.

37The issues in the individual grievances relate to the Grievors’ use of cannabis. That can include whether the use is recreational, medical, and/or whether there is any record relating to potential or actual impairment as a result. These files all contain personal and private health information. At this stage, it appears that the only information to be found in any of the files that is arguably relevant to this proceeding is information or records related to that Grievor’s cannabis use.

38I am not persuaded that Article 4.14.1 of the collective agreement captures the Occupational health and safety file. The provision refers specifically to accessing the employee’s “personnel file”. To suggest that the Occupational health and safety file forms part of the personnel file gives rise to an argument that the Employer has access to that material at any time, an argument directly contrary to the recognition of the privacy interest that motivated the creation of distinct occupational health and safety files in the first place. There is nothing to suggest that the parties intended in Article 4.14.1 of the collective agreement to allow such Employer access and I decline to read the term so broadly.

39It is also the case that third party providers are not typically preferred to vet a file for arguably relevant material. In the circumstances here where I have concerns that either of the Employer’s articulations of the arguable relevance test identifies material beyond that relating to the Grievors’ use of cannabis, I direct that Oncidium, Wellpoint, Driver Check, and the Employer’s Occupational Health Department forthwith disclose their respective files to union counsel, Simon Blackstone and Kassia Bonisteel. This is consistent with what I acknowledge is a consent award issued by Arbitrator Flaherty.

40Union counsel are to vet each file for purposes of identifying the arguably relevant material relating to each Grievor’s use of cannabis and to thereafter produce such material to the Employer. Union counsel are to identify to Employer counsel in a general way any redacted material contained in each file. Should there be any dispute as to whether a particular document or record is to be produced, and failing counsels’ agreement with respect to its disclosure, the issue can be raised with the arbitrator for determination.

41As the Employer acknowledged it would have assumed any cost for the disclosure of the Oncidium file if disclosed jointly, I see no reason that any such cost (whether Oncidium or Wellpoint) should not continue to be borne by the Employer. Should there be other costs of disclosure, and absent agreement, that may be raised before the arbitrator.

CONCLUSION

42Having regard to the above, I hereby direct that:

1. the Union is to proceed first.

2. Oncidium, Wellpoint, Driver Check and the Employer’s Occupational Health Department are to forthwith disclose their respective files regarding each of the named Grievors (David Sinclair, Wil Wong, and Antero Sousa) to Union counsel, Simon Blackstone and Kassia Bonisteel of the law firm Ursel Phillips Fellows Hopkinson LLP in Toronto. Any necessary consent is to be provided by the Grievors, failing which the conduct of their grievance may be affected.

3. any costs of disclosure in relation to Oncidium or Wellpoint are to be borne by the Employer.