GSB# 2022-9358; 2022-9359; 2022-9360; 2022-9361

UNION# 2022-0234-4168; 2022-0234-4169; 2022-0234-4170; 2022-0234-4171

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Klement)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Nancy Dhugga Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 12, 2025

Decision

Introduction

1The grievor is a Correctional Office at the Maplehurst correctional facility. She has approximately 29 years of service. The grievor has filed four grievances alleging discrimination with respect to the employer’s masking policy. The union is seeking pre-hearing production of documents from the employer. The parties could not agree on one of the union’s production requests.

2Union counsel provided the employer with a statement of particulars and a request for disclosure on August 14, 2024. The particulars stipulated that the grievor had health issues that prevented her from complying with the employer’s mask policy. The grievances assert that the employer was required to accommodate the grievor’s medical restrictions by allowing her to return to work either in a position that did not require masking, or to permit her to wear a mask known as a Clear Mask in lieu of a standard face mask. The union argued that the grievor had provided sufficient medical documentation that supported her requested accommodation and that other employees had been provided mask accommodations. The union sought disclosure of documentation, including documentation with respect to any other employees who had been granted masking accommodations. Initially the union indicated this disclosure request should apply across the Ministry. The employer objected to the production of this information.

3The accommodation documentation in dispute was described by the union as follows:

“The list of employees that were provided masking accommodation and the nature of the accommodation (names of employees may be redacted.)”

Employer Submissions

4The employer argued that the production sought by the union was a “fishing expedition” and that it also gave rise to concerns about the privacy of the medical information for other employees. The employer submitted the general principle was that pre-hearing production should not be provided when the purpose of the production was to attempt to build a case. The union had offered no evidence or information to support a claim that the grievor had been treated differently in comparison to any other employee. The disclosure was sought solely to determine whether such a claim could be made.

5The employer argued that redacting names of affected employees would not be sufficient to protect privacy. The union had claimed a breach of the employer’s duty to accommodate and, yet this production requested appeared to be seeking evidence to demonstrate the employer had treated other employees differently from the grievor. The information was not arguably relevant and amounted to a ‘fishing expedition.’

6The employer relied on the following authorities: Ministry of Environment (Madan), (unreported, 2010-2112, Watters); LCBO (Koonings), (unreported, 2003-3101, Gray); Ministry of the Solicitor General (Tone), (unreported, 2693/96, Dissanayake); Ministry of Children and Youth Services (Patterson), (unreported, 2003-1588, Abramsky); MCSCS (Quade), (unreported, 2017-2972, Sheehan); Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A, s. 29; Freedom of Information and Protection of Privacy Act, R.S.O., c. F.31, ss. 41 & 42.

Union Submissions

7The union submitted the case was about the accommodation of the grievor, who had provided the employer with medical documentation that she could not return to work wearing a mask but could wear a face shield. The union was seeking information about all employees who were provided with masking accommodations because this information was essential to determine if the employer had properly accommodated the grievor’s medical restriction.

8The union argued the test for pre-hearing disclosure was not high, and that the information in question was arguably relevant to the matter in dispute and met the test set out in the jurisprudence. The significance of disclosure was also emphasized by the parties to this collective agreement in Article 22.14.5, which states:

“The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.”

9The union submitted that the test for disclosure was found in the West Park decision of Arbitrator Knopf, cited in Webb at para 13:

“Where the disclosure is contested, the following factors should be taken into consideration. First the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a ‘fishing expedition’. Fourth, there must be a clear nexus between the information being requested and the position in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice.”

10The union argued the disputed information was arguably relevant to the grievor’s case and that it had been sufficiently particularized by the union in its letter of August 14, 2024. The union relied on the fact the employer did not seek any clarifications to the particulars. The union asserted that the information was not a ‘fishing expedition’ and there was a clear nexus between the issues in dispute. The disclosure requested related to the employer’s duty to accommodate and might impact on the remedy available to the grievor. The union also indicated that information restricted to Maplehurst might be sufficient to begin, and that the employer could de-identify medical information if it wished to protect the privacy of other employees.

11The union relied on the following authorities: Labour Relations Act, 1995, SO 1996, c1, Sched A.; Ministry of Natural Resources (Webb), (unreported, 2017-0616, Watters); Ministry of Environment (Madan), (unreported, 2010-2112, Watters); Ministry of the Solicitor General (Manna et al), (unreported, 2017-1792, Hewat).

Decision

12After reviewing the submissions and the authorities, it is my conclusion that the pre-hearing disclosure requested by the union in paragraph ‘G’ of the letter of August 14, 2024, should not be ordered. Applying the five point test in West Park, the disclosure requested is not arguably relevant, and there is no “clear nexus” between the disclosure and the issues in dispute.

13The disclosure requested, by implication, raised an issue of unequal treatment of the grievor. However, the union has not provided any basis upon which such a claim could be founded. There is no assertion in the particulars that the grievor was treated unfairly in comparison to other employees in any specific way. The only reference to other employees is found at paragraph 21 of the particulars wherein the union states:

“Other staff members have been provided with mask accommodations.”

Assuming the union can prove this fact, it does not describe a difference between the parties but merely states accommodations have been granted. The assertion does not explain any basis upon which the union claims the grievor was treated differently from other employees under the employer’s masking policy. Given this, I am not persuaded the disclosure is arguably relevant or that it bears a “clear nexus” to the matter in dispute between the parties.

14The disclosure request seems to fall within the category of improper disclosure requests often described as ‘fishing expeditions’, as set out at paragraph 11 of Madan. The disclosure request is not an attempt to obtain evidence to support a case, but an attempt to discover whether the union has a case with respect to differential treatment. The effect of the disclosure request would be to require the employer to demonstrate that other employees were accommodated with respect to masking in some way that differs from the grievor’s treatment, even though the union has not offered any foundation for making such an allegation. In Koonings, Arbitrator Gray observed at paragraph 20 that the ‘fishing expedition’ metaphor is really just a corollary of arguable relevance in that, “… it follows that there cannot be production in aid of discovering a case not already asserted.” I would add that the assertion cannot be general speculation but should be supported by some reasonable foundation that has been set out by the asserting party.

15In my view, the cases relied upon by the union can be distinguished on their facts. They also help to illustrate how the West Park test has been applied in other cases.

16In Webb, the grievor alleged the employer had not completed a proper modified work search for the grievor’s return to work. The employer objected to providing all the information requested by the union with respect to the job search. Arbitrator Watters, relying on the reasoning in West Park, found that the information had to be disclosed as there was a “clear nexus” between the disclosure request and the main issue in dispute. In the case before me, the union has not offered any foundation to support an allegation that the grievor was treated differently from other employees, even as a secondary issue, and I can draw no parallels with the Webb decision. I would add that I concur with the comments in Webb that the test for pre-hearing disclosure is “looser and broader” than that applied to the relevance of evidence at a hearing. However, disclosure requests still must meet minimum standards of reasonableness, as set out in West Park.

17In the Madan decision, the arbitrator ordered the disclosure of a WDHP complaint by the grievor’s manager because it appeared likely to be related to the harassment issues alleged by the grievance. In Manna, the disclosure involved sign-in sheets that the arbitrator concluded were relevant to a dispute about work during unpaid breaks. Both cases are readily distinguished from the case before me on the basis that the information requested in each case was arguably relevant to the issues between the parties and there was a “clear nexus” between the requested disclosure and the matters in dispute.

18The case before me closely parallels that of Tone, where the grievor had been disciplined for an incident in the yard at a correctional facility. The union sought disclosure of all discipline issued to other employees arising out of incidents in the yard. Arbitrator Dissanayake denied the motion, stating that if the union had pointed to specific incidents similar to the case before him, disclosure might have been appropriate. Much the same result was reached in Patterson, which involved a dispute about a denial of compassionate leave. The union requested broad disclosure of all documentation related to the employer’s approval of compassionate leave for other employees. Following Tone, Arbitrator Abramsky denied the motion because the union had failed to establish that there was a “similarity of circumstance” between the requested documentation and the issues in dispute. I make the same finding with respect to the disclosure request in this case.

19The motion for an order to disclose the information described in paragraph ‘G’ at page 16 of union counsel’s letter of August 14, 2024, is denied.