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

2022-11859; 2024-00122; 2024-00123; 2024-00124;

2024-00125; 2024-02208; 2024-02654; 2024-02656

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

2022-0533-0031; 2022-0533-0032; 2024-0533-0007;

2024-0533-0008; 2024-0533-0009; 2024-0533-0010;

2024-0533-0017; 2024-0533-0021; 2025-0533-0002

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 8, 2025

Decision

1Two years ago, almost to the day, the union was unsuccessful in its motion seeking the production of certain medical information. It has now renewed and expanded that request.

2Like today, the 2023 motion sought the disclosure of medical documents both prior and subsequent to the execution of a memorandum of settlement (the “MOS”) agreed to by the parties and the grievor in 2013.

3In my decision dated April 24, 2023, I distinguished the treatment of documents prior and subsequent to the execution of the 2013 MOS.

4In paragraphs 11-16 of my 2023 decision I dismissed the request for pre-MOS documents, essentially for two reasons: first, to reach back in excess of ten (now twelve) years and potentially open up that historical terrain for examination, inquiry and possible litigation was unfair and inappropriate and, second, the parties and the grievor, having agreed to the terms of the 2013 MOS, ought not to be permitted 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.”

5And now, two years later, I see no reason for the union to be permitted to re-litigate the issue of the production of any pre-MOS medical documents. Nothing, beyond a reprise of the arguments advanced and rejected two years ago, was presented to me in support of the union’s resurrected motion.

6Thus, and insofar as it seeks production of pre-MOS medical documents, the union’s request for production is dismissed. The vast majority of the classes of documents the union enumerated for production related to the pre-MOS period and are accordingly hereby once again dismissed.

7In my previous decision, the disposition of requests for production of post-MOS medical documents was handled somewhat differently (at paragraphs 17-21):

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.

8Thus, a small crack remained in the door which was otherwise closed on the production of any post-MOS medical documents.

9Although it identified a specific medical practitioner said to have been involved in the grievor’s care both prior and subsequent to the MOS (up to 2017), no specific documents sought were identified and neither was I pointed to any of the evidence to support a claim that an evidentiary foundation to support production had been established. I leave aside any consideration of the curiosity of a grievor seeking production by the employer of medical documents authored by the grievor’s own physician.

10But, at least equally significant, I note that the employer’s position as adverted to in the second and third bullet points set out above remains the same. The employer has no principled objection to the production of the (post-MOS) documents sought by the union. It has made internal inquiries, secured and produced the resulting documents. Counsel advises that the employer has produced all that it has been able to locate.

11Accordingly, and for the same reasons set out two years ago, I see no value or utility in directing any further production on the employer’s part.

12The union’s request for an order requiring the employer to produce certain post-MOS medical documents is dismissed.

13The union added another branch to its request for production. It is also seeking production of records and log books related to the swipe card access to the workplace premises. Access is controlled by the use of swipe cards issued to employees. These cards can be programmed to permit full or restricted access or to deny access, in whole or in part, to workplace locations. The union’s request is both general and specific. It seeks records related to the grievor’s swipe card access on two specific days: December 6, 2023 and February 29, 2024. On those days – there is no dispute – the grievor’s swipe card privileges were altered to preclude or restrict normal access. The union seeks access to records that will disclose whether the normal or proper procedure was followed to alter the grievor’s access. In addition the union’s more general ask seeks disclosure of all employee swipe card records, including any log books, from August 2022 to February 2024.

14The specific request is related to the grievor’s concern that he was targeted for some type of special discriminatory treatment in that the proper procedure was not followed in restricting his workplace access.

15The request for some 19 months’ worth of records and logbooks related to all employees is tied to the grievor’s concern that he was, for improper motives, treated differently from other employees with respect to in-person attendance requirements in the workplace.

16The most significant response to these requests from the employer is the practical one. Again, it proffers no principled objection to the production sought. It advises, however, that the maintenance and day to day management of the security access to the workplace Is entrusted to a third party security provider. Logs are kept of the daily access records via swipe card entries. In the normal course, however, and unless some specific incident or events dictate otherwise, these records are not maintained for any significant period of time, and the records sought are no longer available.

17In the circumstances, I, once again, see no value or utility in issuing any production order.

18I note, however, that, except with respect to pre-MOS documents (that door is firmly shut), should a proper evidentiary foundation emerge during the course of the proceedings, the union may renew its production requests. Subject to that proviso, the union’s current production request is denied.