GSB#2021-0523; 2022-8627; 2022-8628; 2022-11745; 2022-11859

UNION#2021-0533-0005; 2022-0533-0023; 2022-0533-0024;

2022-0533-0031; 2022-0533-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

April 11, 2023

Decision

1The grievor will be referred to as the “grievor”, rather than being identified by name.

2Three grievances (Board Files 2021-0523; 2022-8627 and 2022-8628) were scheduled for hearing before me on April 11, 2023. Two further grievances were subsequently filed on behalf of the grievor. The parties have now agreed that those two grievances (Board Files 2022-11745 and 2022-11859) ought to be heard together with the others. Further, approximately one week prior to the scheduled hearing date, the union filed an application for interim relief in respect of some or all of the grievances.

3When the hearing convened, the employer had not yet filed a full reply to the interim relief application. It had, however, filed a summary of events it felt might be useful in the circumstances. Although the application for interim relief was not formally listed for hearing on the day, the parties devoted time to discussions aimed at resolving the interim relief application. Those efforts were successful, at least to the following extent. The parties entered into an interim agreement, the result of which is that (at least) it is not currently necessary to schedule, consider or dispose of the interim application and (at best) it may never be necessary to do so.

4While much of the hearing day was devoted to the parties’ consideration of the interim application, there was time to deal with the union’s request for production, filed in relation to the grievances that were actually scheduled to be heard that day. I turn to that request.

5While the earliest of the grievances currently before me dates to April, 2021, the grievor’s workplace dissatisfaction is of considerable vintage. Indeed, in March 2013, the parties entered into a lengthy Memorandum of Settlement (“MOS”) resolving grievances that were previously outstanding. In the MOS, the parties explicitly acknowledged that it was “a full and final settlement of the above noted grievances and all issues related to the Grievor’s employment to date [March 12, 2013]”.

6The union has filed some 20 pages, 108 paragraphs, of particulars in support of its case. These were not reviewed in detail in the union’s submissions regarding the outstanding production request. And neither do I propose to do so. It is sufficient to note that the grievances relate primarily, though by no means exclusively, to allegations of failure on the part of the employer to abide by its obligations under the terms of the MOS.

7There are some additional thematic wrinkles emerging from the particulars, including, among others, allegations of bad faith with respect to both the execution and implementation of the MOS by the employer; allegations of reprisal, failure to accommodate, and harassment. I note, however, that although it is alleged that the employer entered into the MOS in bad-faith, the union is not seeking to vitiate its terms, but rather, is seeking to have them enforced.

8The production order sought by the union is broad and far ranging. The scope of the order sought is evident in some of the union’s written submissions regarding production. Among the items sought by the union are:

• …all communication in any format from Management regarding the Grievor’s medical information to and from HR, any agents, Sibley and other assessors, meeting notes where his medical was discussed, any phone call records where his medical was discussed.

• … all contracts executed between the Employer and Sibley’s and / or its agents including Dr. Zielinsky including the specific contract engaging Sibley / Dr. Zielinsky relevant to the Grievor’s IME. Any contracts relating to other employees should have any identifying information redacted.

• The contracts between Manulife and the Employer.

9I note too that the employer has agreed to provide the following, subject to its objection to produce any documents pre-dating the 2013 MOS (the union submits that production orders should apply to all documents sought, including those that pre-date the MOS):

• … electronic copies of the Grievor’s personnel file(s);

• … a copy of medical files in relation to the grievor in its possession, upon receipt of a duly executed consent to release by the Grievor;

• … a copy of WDHP files relating to the grievor subsequent to March 12, 2013. For clarity, the Employer will not disclose any active WDHP files.

• … [the employer] file[s] relating to the accommodation of the Grievor which are subsequent to March 12, 2013. The Employer advised that it did not think such files existed.

10The employer uniformly objects to the production of documents which pre-date the MOS; the union makes little or no distinction in the treatment of documents based on their temporal relation to the March 12, 2013 MOS. And while the employer objects to the production of pre-MOS documents, it has, by and large, raised no objection in principle to the production of documents which postdate the MOS.

11I agree with the employer. Documents which pre-date the MOS ought not to be the subject of any production order. There are essentially two reasons for that, either of which would, in my view, be sufficient to preclude the production of these documents: they are too old and they relate to a period in time in respect of which all issues related to the grievor’s employment have, by agreement of the parties and the grievor, been resolved.

12I understand the union’s urging that I be cautious in foreclosing access to arguably relevant documents. And, in the context of a requested production order, it is true we are dealing only with pre-hearing disclosure of documents. Such disclosure does not, in any way, guarantee that documents disclosed will, ultimately, be viewed as relevant and admissible or otherwise received into evidence.

13However, I am unable to ignore the fact that the production of these vintage documents runs the risk of guiding our litigation into historical periods which, simply by virtue of their remove, should be beyond the scope of the instant proceedings. Indeed, even with respect to the production, let alone the conduct of the actual litigation, the employer enumerated many of the legitimate concerns which naturally arise (availability of witnesses or participants; employee/witness turnover; workplace reorganizations; difficulties in document location, etc.) when we attempt to look back further than a decade. This is one of the reasons there are time limits on the filing of grievances. And even in cases where evidence of a repeated course of impugned conduct may properly be relied upon to support conclusions of discrimination or harassment, this Board, while it has, from time to time, reached back as far as six years in exceptional cases, has never reached back a decade or more.

14For that reason alone, the union’s request for production of pre-MOS documents must be rejected.

15But there is more. The MOS resolved all of the grievor’s employment issues up to its execution. The importance and the sanctity of settlements are an integral part of the bedrock of the labour relations regime. This proposition has become axiomatic. Settlements ought not to be lightly disturbed and the facts which were previously at issue ought not to be re-litigated. To countenance the production of documents which predate the MOS is to open the door to a re-litigation of facts and legal issues, which, though they may have previously given rise to competing legal claims, have now been fully and finally resolved. I will not permit that detour.

16For these reasons the union’s request for a production order, at least insofar as it pertains to pre-MOS documents, is hereby denied.

17I turn now to the union’s request insofar as it pertains to more recent documents (in our context, that appears to mean documents not more than a decade old, or, more precisely, those dating back not later than March 13, 2013, the day following the execution of the MOS).

18I am unable to deal with this request, except at a very high level. And at that high level I can offer the following general conclusions:

• The union has made its request in fairly general terms, identifying classes of documents more so than the specific individual documents it seeks to have produced.

• The employer has not raised any principled objection to the production of the documents sought.

• The employer advises that it has made the necessary internal inquiries to secure access to the documents being sought resulting in the location of some, but not all of those documents. What it has succeeded in locating, it has produced to the union. If the documents continue to exist and can be located within the employer’s possession, they have been produced to the union.

• The grievor is of the view that there is more out there.

19In these circumstances, I see no value or utility in directing any further production on the employer’s part. Counsel has advised that the employer has produced that which it was able to locate. The employer need not be directed to produce that which it cannot locate, that which is not or is no longer in its possession.

20Accordingly, the union’s request for a production order, insofar as it relates to post-MOS documents, is hereby denied.

21However, despite this latter ruling, should the union be able to identify a specific (rather than a class of) arguably relevant document which is in the employer’s possession or should a proper evidentiary basis be formed to support a request for the production of a particular specific document, I may entertain a subsequent request from the union.

22Having regard to all of the foregoing, the union’s request for a production order is denied.