GSB# 2022-0590

UNION# 2022-0128-0137

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Semenuk)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 5, 2025 (Conference Call) September 5, 2025

Decision

Introduction

1This case involves the grievor’s termination of employment. The grievor was a Correctional Officer (CO) at the Sarnia Detention Centre (EMDC) and was terminated on March 31, 2022. By decision dated March 5, 2025, I upheld the discharge grievance. This award deals with a production dispute related to the calculation of the remedy arising from the decision on the merits.

Employer Submissions

2The employer sought production of the following:

1. A list of each and every attempt that Mr. Semenuk made to attempt to secure alternate employment between April 1, 2022 and March 4, 2025. These should include a list of names and address[es] of each and every employer he approached for employment together with the specific date that he made application to such employers.

2. Copies of the hire/offer letters in respect of Mr. Semenuk’s employment between April 1, 2022 and March 4, 2025 with: Western Fair Association; Universal Protection Service of Canada Corp; Loss Prevention Uniform Security Service Inc; and John Howard Society of London and District.

3. Copies of any ROEs in respect of Mr. Semenuk’s employment between April 1, 2022 and March 4, 2025 with: Western Fair Association; Universal Protection Service of Canada Corp; Loss Prevention Uniform Security Service Inc; and John Howard Society of London and District.

4. Copies of any letters of termination or other documentation regarding [ ] Mr. Semenuk’s cessation of employment between April 1, 2022 and March 4, 2025 with: Western Fair Association; Universal Protection Service of Canada Corp; Loss Prevention Uniform Security Service Inc; and John Howard Society of London and District.

The union provided some documentation and information in response to the production request, but the employer took the position that there were gaps that needed to be filled. The employer acknowledged the union has produced the T4s which provide detail as to the grievor’s earnings during the period in question. The union has also provided information with respect to the grievor’s job search.

3The employer sought an order for the documentary record with respect to the following documentation:

1. Records of Employment (ROE) for all jobs held by the grievor.

2. Hiring letters for all jobs held by the grievor.

3. Any documents relating to the reasons why the grievor left all jobs he held during the mitigation period.

4The employer argued that the duty to mitigate requires the grievor to take all reasonable actions to obtain and retain alternate employment during the mitigation period. This meant the employer was entitled to information with respect to the details of the job offer, the precise dates the grievor worked a specific job, and the reasons for leaving a job. The employer submitted the duty to mitigate did not end when the grievor acquired a new job, and that the employer has a right to inquire into all aspects of employment, including the details of how and when the grievor left a job. The employer also sought job offer letters, as evidence of the work that was made available to the grievor, to determine whether he reasonably followed through with the earning potential of the positions he held.

5The employer submitted that the fact the grievor received EI for one year was not conclusive proof that he met his duty to mitigate for that period. Similarly, while T4s provided information about the grievor’s gross earnings, they did not shed any light on the grievor’s rate of pay or hours he worked. In addition, it was not a ‘fishing expedition’ to seek documentation with respect to the grievor’s employment where such information was within his knowledge and which the employer could not otherwise obtain. Several of the jobs the grievor secured ended quickly, and the employer has a right to know the reasons why that happened. These are all issues the employer would be free to cross-examine the witness about at arbitration, and the question of whether further evidence might be required would depend on the grievor’s responses. The fact that a legitimate line of inquiry may lead to more evidence is not a basis upon which to deny the employer the right to ask to such questions.

6The employer relied on the following authorities: Canada Post Corp. (Collin), [2020] CarswellNat 1987 (Archibald); Zhou and Vixman Construction Ltd., [2020] CarswellOnt 13799 (Ont. HRT); Ward and Your Organized Living Store, [2015] HRTO 327; Jenkins and Pacific Law Group, [2017] BCHRT 116; Listuguj Mi’Gmaq First Nation, [2005] CarswellNat 7836 (Bertrand); McDougall v. Knutsen, [2023] CarswellBC 373 (BCSC); Canada Post Corp., [1995] CarswellNat 1567 (Burkett).

Union Submissions

7The union argued that the issue was whether the information requested by the employer was arguably relevant to determining the amount of compensation owed to the grievor. The union has set out the details of the mitigation period, including dates for each job and the time during which the grievor collected regular and medical Employment Insurance (EI). It was relevant that to qualify for EI the grievor had been required to satisfy government requirements to provide evidence of a valid ongoing job search. The fact the grievor qualified for and continued to receive EI for a year, was proof that the government accepted the bone fides of his job search.

8The union has also provided all available T4s, which include very specific information as to the precise amounts paid to the grievor by each employer. The grievor also produced evidence of a very extensive job search, that demonstrated he was not restrictive and applied for a variety of positions, such as special constable, administrative assistant, emergency dispatcher, security, construction, driver and so on. The grievor did not simply sit back and wait for the results of his arbitration. He tried to find as much work as he could, and he was successful in securing continuous income for a large proportion of the mitigation period.

9In response to the employer’s request for hiring letters, ROE’s and reasons for termination of employment for the mitigation period, the union submitted that the T4s were the best information and all available T4s has been provided to the employer. Any further documentation was unnecessary and irrelevant. The union also took the position that documents, such as letters relating to the termination of any position, would be prejudicial and of no probative value. The union submitted the employer’s production request was a ‘fishing expedition’ and that the employer was improperly seeking documents without any basis for suspecting malfeasance in the hope they might find evidence that could be used to disputing the grievor's claim for full and proper compensation.

10The union submitted that documentation related to the termination of any of the jobs held by the grievor during the mitigation period could not be accepted as valid evidence until confirmed by testimony of someone involved. The author would have to be called to give evidence, and the grievor would have the right to take issue with any statements contained in such a letter, and to counter any evidence submitted about the letter. This would mean the potential for several separate arbitrations on the issue of the termination of the grievor’s employment by third-party employers. Such a process would be expensive, time consuming and, ultimately, abusive of the Board’s mandate to efficiently resolve disputes in the workplaces governed by the collective agreement. Moreover, such additional litigation would not be relevant to the issue of mitigation. The union asserted the employer’s sweeping request to inquire into the grievor’s employment in other workplaces posed a significant threat to a fair and efficient hearing process.

11The union submitted the employer had the onus to prove the grievor did not satisfy his duty to mitigate. The records already produced to the employer indicate that the grievor engaged in an active job search, he was successful in obtaining four jobs, and he was gainfully employed or receiving EI for much of the mitigation period. The union submitted that there was no basis upon which to suspect that the grievor was remiss in his efforts to fulfill his duty to mitigate. If there were any gaps in employment or income replacement, they were minimal. The union relied on the comment in Leading Cases on Labour Arbitration, setting out that the employer has the onus to prove there was a failure to mitigate that was avoidable.

12The union relied on the following authorities: Leading Cases on Labour Arbitration, Mitchnick & Etherington, P. 7.5 The Duty to Mitigate; Royal Ottawa Health Care Group (2013), 230 L.A.C. (4th)101 (Albertyn); West Park Hospital (1993), 1993 CanLII 16806 (ON LA), 37 L.A.C. (4TH) 160 (Knopf); Sganos and Treasury Board, [2024] FPSLREB 11; Ministry of Environment (Madan), [2012] CanLII 76562 (ON GSB, Watters).

Conclusions and Decision

13The employer seeks an order for production of three types of documentation related to the jobs the grievor worked during the mitigation period:

1. Records of Employment (ROE)

2. Letters of Offer of Employment

3. Letters or documentation pertaining to the termination of employment at any job the grievor held during the mitigation period.

The test for production is arguable relevance. The main point of contention between the parties is the request for documentation with respect to the termination of any jobs the grievor held during the mitigation period. The employer asserts information related to the reasons why the grievor left a job are arguably relevant to the issue of the duty to mitigate. I accept this proposition to a certain extent.

14There are three ways an individual can leave a job.

15First, they can be laid off due to lack of work or the termination of a term contract. In my view, and I would expect the parties would agree, if the grievor was laid off from any of his jobs, such an event would have no impact on his duty to mitigate.

16The second reason someone might leave a job is that they can voluntarily quit or retire at a time of their choosing and for their own reasons. I agree with the employer that, if the grievor quit any jobs during the mitigation period, the employer would have a right to pose questions to the grievor in cross-examination about why he left the job, given that by doing so he made a decision to interrupt his income earnings. His reasons for doing so could be relevant to his duty to mitigate, since he would have voluntarily decided to terminate an income flow that would have otherwise continued. To that extent, quitting a job is arguably relevant to the issue of mitigation, and information with respect to such a decision should be disclosed to the employer. For these reasons, I find it is reasonable for the union to provide the ROEs, which will indicate reasons for leaving each job.

17Similarly, letters of hire might shed light on how much work was available to the grievor in a new position. For example, the employer might have offered full-time employment but the grievor might have only worked part-time. The employer has a right to disclosure of letters of employment in order to confirm whether the grievor followed through with all the work that was available with an employer, and if not, why not.

18The third way someone might leave a job is to be terminated for cause. This possibility is the main point in conflict between the parties with respect to the employer’s request for production. The employer’s position is that if the grievor was terminated for cause, the employer should be permitted to call whatever evidence might be relevant to determine the grievor’s fault that led to the termination for cause, and that, if the evidence confirmed the grievor was at fault, his claims to compensation from the Ministry in the case before me should be reduced.

19In my view, the issue with respect to mitigation is not whether the grievor is a difficult employee or is a person who has difficulty succeeding in new workplaces; the issue is whether he fulfilled his duty to mitigate. In this case, I have found the grievor was terminated without just cause and is entitled to compensation for lost earnings. Even if I were to assume for the moment that the grievor was terminated for cause in each case in which he left a job during the mitigation period, and even assuming that I agree he behaved in such a way that each termination was for reasonable cause, what difference should that make to the grievor’s claim for compensation?

20I start from the view that the fact that the grievor successfully found any alternate employment is to his credit. It demonstrates that he engaged in an effective job search. His obligation was to take reasonable steps to find alternative income to mitigate his losses. Given the record provided so far, it appears the grievor’s efforts were considerable and, at this stage, there is no sense that the grievor was malingering or engaging in a pro-forma, restricted job search. He was successful at finding four jobs in the mitigation period. When those jobs ended, he found other employment. The disclosure provided so far indicates that during the 36-month mitigation period, the grievor earned a total of approximately 24 months of wages from employment and 12 months of EI payments. Some of these months of compensation are said to have overlapped, but on the surface his mitigation efforts appear to total to an impressive bottom line. The grievor finished the mitigation period with a 19-month stretch of continuous employment, including a short period when he worked two jobs. It would appear that the grievor was successful in mitigating a significant portion of his damages, and did so through consistent effort through the entire mitigation period.

21I agree with Mr. Holmes’ submission that forcing the parties into litigation about termination for cause by a third-party employer might likely require the Board to hold lengthy hearings about a termination or terminations involving workplaces that have no connection with the GSB, the Act, or the collective agreement. I also agree that the outcome of the litigation could be prejudicial to the grievor, without shedding light on whether he engaged in reasonable mitigation efforts. The only period of claimed compensation that might be relevant to such litigation would be the time it took the grievor to find alternate employment after having been terminated by a third-party employer. The longest such period appears to be four months. The risk of potentially protracted litigation does not seem proportional to the significance of the issue of the grievor’s duty to mitigate over a relatively short period of mitigation and would be inconsistent with the mandate of the Board to resolve disputes between the parties efficiently. I see this case as factually quite distinct from the decision in Canada Post (Ross) which involved an employee’s failure to meet the expectations of a “last chance” agreement. There was no third-party employer involved and, most significantly, there was no prior ruling by the arbitrator that the grievor had been terminated without just cause.

22It is significant that it was the employer that put the grievor in the position where he was required to find alternative employment. If he did not succeed in fitting into a new workplace, I cannot ignore the fact he would not have been forced into a different job were it not for his termination without just cause.

23The employer is entitled to continue to explore and litigate the details of the grievor’s mitigation efforts. However, given the picture that is being presented, it would not be unreasonable to move quickly to resolve the issue of compensation without the need for further litigation, once the ROEs and letters of employment have been provided. I urge the parties to take a second look at the grievor’s record of mitigation and attempt to find common ground in direct discussions as to the appropriate compensation to be paid.

24For the reasons outlined above, I agree the union should produce the ROE’s and employment letters for the various positions held by the grievor. However, I deny the employer’s request for production of documentation related to the termination of the jobs the grievor held during the mitigation period. I retain jurisdiction on this and any other issue arising from the implementation of this award and the award on the merits.