GSB# 2023-01375

UNION# 2023-0248-0058

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hall)

Union

• and -

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

Employer

BEFORE

Kumail Karimjee

Arbitrator

FOR THE UNION

Anson Cai Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

CONFERENCE CALL

May 1, 2025

Decision

Introduction

1This is a preliminary award dealing with a contested production request in a grievance concerning the non-renewal of the grievor’s fixed term contract.

2The Union seeks an order requiring the Employer to produce documentation relating to 10 fixed term Correction Officers (other than the grievor) who worked in the same facility as the grievor. Specifically, the Union seeks the following documentation for each of the 10 identified employees:

a) the E-Roster schedule showing hours worked for a 37-week period (21 weeks before and 16 weeks after April 27, 2023), and

b) any warning letters sent by the Employer regarding the potential non-renewal of their fixed term contracts due to inadequate availability (during the same 37-week period).

3For the reasons that follow, I find that the documents requested are not arguably relevant. As such, the request for production is denied.

Analysis

4The parties agree on the general principles to be considered in determining a contested production request. The factors to consider, as set out in the oft-cited West Park Hospital v. O.N.A. (1993) 37 L.A.C. (4th) (Knopf) decision [West Park], are: 1) arguable relevance, 2) clear particularization, 3) not a “fishing expedition”, 4) clear nexus to positions in dispute, and 5) any undue prejudice.

5The core question here is whether the documents requested by the Union are arguably relevant to the issue in dispute. In considering this question, I am mindful, as submitted by the Union, that the test for relevance at the pre-hearing production stage is broader than at the hearing stage.

6The determination of arguable relevance or, stated another way, whether there is a nexus between the positions in the dispute and the request for production, requires consideration of what this grievance is about and specifically what factual issues are in dispute.

7By way of background, the grievor worked as a fixed term Corrections Officer. The grievance challenges the non-renewal of the grievor’s fixed term contract after the Employer raised concerns about the grievor’s availability for work. It is agreed that on April 27, 2023, the grievor received a warning letter from the Employer advising that a review of his availability in the past 21-weeks had been conducted, and that the grievor’s availability to work was inadequate and required significant improvement. At the same time, the grievor received notice of termination effective August 17, 2023; however, the warning letter states that a final decision regarding renewal of the contract would be made closer to the end of the contract.

8The issues in dispute are framed by the grievance and, more so, by the Union’s recent delivery of detailed particulars. The grievance dated July 31, 2023 alleges that the grievor was “…terminated from his employment due to ‘availability issues’ without due investigation, due process, or mitigating circumstances being taken into consideration.”

9The Union’s statement of particulars dated April 2, 2025, alleges that the grievor had accommodation to work night shifts only; that his medical circumstances impacted his availability; that the grievor needed more support from the Employer but that minimal to no action was taken to assist him; that while the grievor was on WSIB leave the Employer continued to contact him to request shifts; and the Employer failed to recognize the grievor’s disability. Of note, the grievor commenced a WSIB leave on June 19, 2023 (retroactively recognized) and, as such, the Union’s particulars allege that the grievor was unable to improve his availability for a significant portion of time after the Employer’s April 27, 2023 warning letter as he was on a recognized medical leave.

10The Union’s particulars allege that the Employer failed to consider the grievor’s medical condition in assessing his availability and thereby discriminated against him on the basis of disability. This is how the grievance has been framed and this in turn guides the determination of what is arguably relevant for the purposes of production. I must consider whether the documents sought by the Union are arguably relevant to the issues in dispute as outlined above.

11The Union argues that the documentation requested showing hours worked and warnings to other fixed term Corrections Officers will allow the Union to see whether other fixed term Corrections Officers with availability issues were treated differently as compared to the grievor. The Union does not relate its concern about potential differential treatment to a human rights ground. The Union submits that if other fixed term Corrections Officers were renewed while potentially working similar hours to the grievor, this would be arguably relevant to the question of whether management rights were exercised in bad faith. The Union does not assert that there was differential treatment, but states that it wishes to ascertain whether there was differential treatment through the disclosure (and review) of schedules and warnings letters for 10 other employees over a 37-week period.

12The Employer objects to the production request. The Employer submits that the documents requested are not relevant to the issues in dispute as framed by the Union’s particulars. The Employer submits that this is a non-renewal case with limited parameters for review. Relying on Ontario Liquor Boards’ Employees’ Union (Koonings) v. Ontario (LCBO), (2006) CanLII 17540 (Gray) and the recent decision in OPSEU (Klement) v. Ontario (Solicitor General), (2025) CanLII 28448 (Stephens), the Employer argues that the Union’s request is improper as it seeks aid in discovering a case not asserted rather than evidence to support a case asserted.

13I find that the Union’s particulars as referenced above do not make any allegations about the grievor’s treatment in relation to other fixed term Corrections Officers or differential treatment in the application of the availability standard. Such allegations have not been advanced. Rather, the particulars allege a failure to consider that the grievor’s disability and leave of absence negatively impacted his ability to meet the availability standard itself.

14Given the way this dispute has been framed by the Union, I find that the Union’s request for 37 weeks of schedules showing hours worked and also warning letters for 10 different fixed term Corrections Officers does not relate to the issues in dispute in this grievance. The request for production does not seek to support a case alleged but rather seeks to discover a claim that has not been asserted and for which no factual foundation has been put forward.

15For these reasons, I find that the documents requested are not arguably relevant.

16Given my determination that the documents requested are not arguably relevant, I do not need to consider the West Park factors of particularization of the request and undue prejudice.

17This request for production is denied.