GSB# 2019-0515

UNION# 18-349

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Policy)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Emma Phillips Willow Petersen Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Jozef Hadlaw-Murray Shields O’Donnell MacKillop LLP Counsel

HEARING

January 27, 2026

Decision

1On November 6, 2018, the Union filed a Group Grievance alleging that “[w]e have been unjustly treated when the employer violated article 25 as the workload expected of Case Managers in Service Delivery is not reasonable.” The “Group” states: “All Affected.” Article 25 provides, in relevant part, as follows:

ARTICLE 25

WORK/LIFE BALANCE

25.01 Preamble

The Employer and the union are committed to maintaining a workplace that demonstrates a sincere and continuing interest in the individual and collective well-being of all employees and recognizes the inherent worth and dignity of every employee.

The Employer undertakes to:

• Protect the safety and health of its employees when assigning work, covering absence or vacation leave.

• Ensure that there is no unreasonable workload imposed on an employee.

The Employer and the union acknowledge that workload can fluctuate and should be reviewed on an ongoing basis with the goal of equitable and reasonable distribution of workload.

The Employer will ensure that employees know what is expected of them by providing ongoing performance feedback and collaborate on development objectives through regular supervision.

2The requested settlement sought the following:

For the Case Managers in Service Delivery to be staffed up to no less than the numbers that they were at in 2014.

The employer promptly backfill all leaves, temporary and permanent vacancies.

Written acknowledgement of the workload issue from Senior Management.

The employer to reimburse any financial loss due to the workload issue.

Any award deemed fit by the Vice Chair.

3Why this 2018 grievance was not scheduled for arbitration before late 2025 was not explained. Another workload grievance, also a group grievance, was filed on December 12, 2024, which is not currently before me, although the Union has stated that it will be seeking to consolidate the two cases.

4I was advised that the issue of workload for Case Managers in Service Delivery, as well as a number of other classifications, has been an ongoing issue between the parties, and was a significant factor in the strike that took place in the Summer of 2025. A workload committee was established to review the situation, and is currently meeting.¹

5The parties have exchanged a considerable number of documents and particulars. This Decision addresses the outstanding issues. The parties provided the following case law which I have reviewed. In the interests of expedition as our upcoming hearing dates are fast approaching, I will be providing only brief reasons.

6The case law submitted by the Union includes the following: Re West Park Hospital and O.N.A.,(1993) 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160 (Knopf); Re Centre for Addiction and Mental Health and Ontario Public Service Employees Union, 2004 CanLII 94774 (Nairn); C.U.P.E. and Air Canada (Kent), (2019), 303 L.A.C. (4th) 241 (Nyman); Canadian Labour Arbitration, 5th Edition, Section 3.8, Ordering Particulars; Re OPSEU (Duffy) and Ministry of Community Safety and Correctional Services, 2008 CanLII 9602 (GSB, Gray); and, Re Stone Lodge and U.F.C.W., Local 175, 1998 CanLII 30156 (ON LA), 1998 CarswellOnt 5634, 75 L.A.C. (4th) 78 (Williamson).

7The case law submitted by the Employer includes the following: Re West Park Hospital and ONA, supra; Re Board of Governors of Laurentian University and The Laurentian University Faculty Association, 2011 CanLII 8978 (ON LA), 2011 CarswellOnt 15961 (Surdykowski); Re Nestle Canada Ltd and L.I.U.N.A., Local 3000, 2022 CanLII 76361 (Wright); Re Toronto District School Board and C.U.P.E. , Local 4400, 2002 CanLII 79047 (ON LA), 2002 CarswellOnt 4762 (Shime); Re Rouge Valley Health System and ONA, 2016 CanLII 10059 (Stout); Re Telus Inc. and Telecommunications Workers Union, 2010 CanLII 69136 (Surdykowski); Re Federation of Teachers in Hebrew Schools and Anne & Max Tanenbaum Community Hebrew Academy of Toronto, 2024 CanLII 1398 (Anderson); Re OSSTF and OSSTF Staff Association (Newstead), 2024 CanLII 11434 (Clarke); and, Re Toronto Transit Commission and Amalgamated Transit Union, Local 113, 2024 CanLII 96064 Price).

A. Outstanding Items Sought by the Union

8The Union seeks the following:

1. The number of medical leaves, including STD and LTD, taken by Case Managers, per year for the period of 2014 and 2018-2024.

2. The average number of medical leaves taken by WSIB employees as a whole, per year, for the period of 2014 and 2018-2024.

9The Union asserts that these documents are arguably relevant. It is the Union’s position, as set out in its particulars, that insufficient staffing, including the Employer’s failure to provide backfill coverage for Case Managers on leaves, is a factor in creating an unreasonable workload. It is also the Union’s position that unreasonable workload demands led to an increase in medical leaves.

10The Employer objects to producing these documents. It argues that there is no causal link between STD and LTD claims and the Union’s workload concerns since there are many reasons why an employee may require STD and LTD. It submits that it has provided records regarding employee absences so there is no need to provide absences specifically due to STD or LTD, as the reason for the absence is not relevant. In its view, this is a “fishing expedition” by the Union.

Decision:

11The standard for pre-hearing disclosure is “arguably relevant.” In Re York1 Excavating Ltd., supra, at para 5, the Board quoted a 2003 OLRB decision in Re Maplehurst Correctional Complex [2003] OLRB Rep. March/April, at para. 8:

Whether documents are “arguably relevant” means, in my view, whether there might or could be some logical or rational relationship between the documents being sought and the issues in the proceeding. The party seeking to establish that documents are arguably relevant must meet a relatively low threshold. Nevertheless, the Board will not order production of documents where the party seeking that production cannot establish that logical connection or is seeking production not to prove a case but to find out if there is even a case.

12Although Maplehurst Correctional Complex, supra, is an OLRB case, I find that the definition of “arguably relevant” to be consistent with the arbitral standard. It corresponds with Arbitrator Stout’s decision in Re Rouge Valley Health Systems, supra at para. 26:

It is well accepted that the test for ordering production of documents is not limited to only those documents that are relevant and admissible. Rather, the test is more expansive and includes documents that are “arguably relevant,” or as the statute [the Ontario Labour Relations Act] expressly states “may be relevant.” Determining what may be relevant does not mean that parties are permitted to undertake a “fishing expedition,” where they are provided with any and all documents that may in some remote way touch upon the matters in issue. The test involves the party seeking production identifying the documents and providing some rationale for why they ought to be produced.

13In Re Laurentian University, supra at p. 6, Arbitrator Surdykowski stated that a “liberal view should be taken with respect to the production of documents” and that “[t]he test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as to what may be relevant during the course of the hearing.”

14Having considered the request, the arguments of the parties and the relevant arbitral standards, I find that the requested documents should be produced, for 2014 and 2018-2024. The requested information is “arguably relevant” to the Union’s claims. There “could be some logical or rational relationship between the documents being sought and the issues in the proceeding.” The Union has produced “some rationale for why they ought to be produced.”

15I do not find that this is a “fishing expedition” in that the Union is seeking to determine whether it has a case as opposed to supporting their case. See Re Federation of Teachers in Hebrew Schools, supra at para. 25.

16In addition, the information sought is for the total numbers of STD and LTD among Case Managers for Service Delivery and the WSIB as a whole. No personal medical information is involved.

3. Particulars of how the full-time equivalent workforce analysis is conducted for Case Managers, including production of any relevant documents.

17Although it is not entirely clear to me, at this time, what this analysis shows, the Union asserts that it measures the time it takes to perform work tasks and is used by the Employer to determine the number of Case Managers required. It is the Union’s position that this analysis does not take the complexity of files into consideration and that this is a flaw which contributes to the workload issues. It therefore submits that particulars of how the analysis is conducted and any related documents are “arguably relevant.”

18The Employer asserts that this is a “trend /inventory analysis” of active cases, done on a continual basis, and is not tied to specific tasks within a claim, but it agrees that it is tied to the number of full-time equivalent employees. The Employer objects to the production of this analysis on the basis that since it does not pertain to the specific tasks, whether a claim is complex or not, is immaterial.

Decision:

19I conclude that particulars and documents in regard to the “full time equivalent workforce analysis for Case Managers, are “arguably relevant.” At this point, it is unclear to me exactly what this analysis represents, and I believe that the Union is entitled to information about it since it relates to the Employer’s determination of the number of Case Managers required, and the Union is asserting that staffing levels are deficient.

4. The number of performance improvement plans for Case Managers for 2014, 2018-2024.

20It is the Union’s position that this information is “arguably relevant.” It asserts that unreasonable workload expectations led to an increased number of Case Managers on PIPs.

21The Employer objects on the basis that there are many reasons, other than workload, that may lead to a Case Manager being placed on a PIP, and that there is no causal connection between workload and PIPs. In its view, there is “no logical or rational relationship between the documents being sought and the issues in the proceeding,” citing the standard set out in Re York1 Excavating Ltd., supra.

Decision:

22Having considered the arguments of the parties and the case law, I conclude that the number of PIPs among the Case Manager for Service Deliveries should be produced. This is similar to the STD and LTD number issue. The Union is alleging that excessive workloads have led to an increased number of PIPs among Case Managers. The Union has provided “some rationale for why they ought to be produced.”

5. Scope of Production

23On the evening of January 26, 2026, the Employer advised the Union that it would only provide the documents requested for the Regional Offices (offices outside of Toronto) for the period of 2018 to 2020, since the Employer used a provincial adjudication model with claims assigned to Case Managers regardless of geographic region for those years, but changed to a regional model in 2020. It therefore declined to produce documents after the model was changed in 2020, although it acknowledged that “data for regional offices after 2020 could be addressed in the context of consolidation and/or a continuing breach.”

24The Employer asserts that the Union has not provided particulars regarding the existence of a continuing breach, and therefore records beyond 2020 are not relevant.

25The Union is seeking information for 2018, 2020-2024. It contends that the first time it heard about a regional change was in the Employer’s email from the previous evening, and that the time period in dispute is the full period between 2018-2024, with 2014 as the base year. It asserts that the documents cannot be withheld solely on the basis of the Employer’s claim of change in its model. It further submits that it has provided ample particulars concerning the continuing systemic nature of the issues which, it asserts, apply regardless of whether cases are assigned regionally or provincially. It further asserts that the documents are relevant to its upcoming motion for consolidation.

Decision:

26The Employer does not assert that the documents sought by the Union are not arguably relevant. The issue is the length of time for which they should be produced. Although it initially agreed to produce the documents for 2014, 2018-2024, it subsequently asserted that documents after 2020 were not relevant in light of the Employer’s change from a provincial to a regional adjudication and case assignment model.

27Having considered the documents in issue, the arguments of the parties, and the case law, I find that the documents to be produced should include 2014, and 2018-2024. The Union has alleged particulars about the continuing nature of the issues in its December 5, 2025 correspondence. It asserts that there are “systemic” causes that are ongoing and continuous since at least 2018: insufficient staffing for the volume of claims; an inadequate system for the assignment of claims which does not account for the complexity of the file or the existing workload of the Case Manager, and unreasonable performance expectations. It asserts that these issues persist regardless of the model used by the Employer.

28I am persuaded that the Union has sufficiently particularized its claim for a continuing violation that goes beyond 2020, when the model changed. The documents sought are arguably relevant to the issues in dispute.

B. Outstanding Items Sought by the Employer

1. Outstanding Documents

29The Employer seeks the following documents:

A. The distribution list used by the Union for each workload survey circulated for the periods 2014 and 2018 to 2024 – a complete list of each employee who was issued a workload survey by the Union or its designate.

B. The results of each individual workload survey, including surveys the Union does not intend to rely upon. Also, the underlying records/copies of each individual survey submitted to the Union.

C. To the extent the Union intends to lead expert evidence regarding workload levels:

a. A copy of the CV for any individual involved in the creation of any reports or analysis of data concerning the alleged workload issues identified in the grievances. The CV should include the individual’s qualifications, employment history and educational background.

b. Copies of all correspondence and or instructions exchanged between the Union and any individual tasked with analyzing or reporting on the alleged workload issues identified in the grievances; and

c. Copies of all underlying data and or documents relied upon by the above-noted individuals.

30It appears, at this time, that the Union conducted two surveys of employees regarding workload, one in 2018 and one in 2024. The Union has provided the aggregate results for the 2024 survey, but the Employer seeks the individual surveys submitted to the Union. It is not clear in the record what information about the 2018 survey has been provided. The Employer submits that it is entitled to see the actual individual results of the surveys in order to challenge the results and determine the accuracy of the surveys. It contends that the Union cannot rely on the conclusions of the surveys without disclosing the basis of those conclusions. It further asserts that the case law clearly permits the production of confidential records, including records from third-parties, provided appropriate safeguards are maintained.

31The Union asserts that it has already provided the list of employees to whom the 2024 survey was sent, when it advised the Employer, in response to its request for a “list of the union members that the survey and related communications was provided to as well as their known status (i.e., active, disability leave, retiree, etc.” The Union responded:

“The list of union members and their status matches the membership list provided by WSIB and dated January 23, 2024.” In the Union’s view, therefore, the Employer has the requested information.

32In terms of the 2018 survey, the Union advises that it can provide a similar list to the Employer.

33In regard to the individual surveys, the Union asserts that those are maintained by the third party who conducted the survey and are not in the Union’s possession. An email exchange, with the third party, was provided where the third-party provider stated: “We do not provide any individual results as per our consent form at the beginning of the survey.” The Union submits that the individual survey results are confidential under the four criteria of the Wigmore test. It further submits that the information is protected under the litigation privilege. In its reply submissions, the Union suggests, in the alternative, that the individual surveys may be provided with the names redacted.

34In regard to the requested CVs and related information, the Union submits that information has already been provided.

Decision:

35I am persuaded that the list of the employees who received the 2024 survey has already been provided, and that the Union must provide the same information for the 2018 survey.

36I am persuaded that the Employer is entitled to the underlying survey results in order to determine, and possibly challenge, the validity of the workload surveys. The names of the employees responding to the survey, however, should be redacted. This, in my view, balances the confidentiality interests of the individual employees while providing the Employer with the ability to determine, and potentially challenge, the survey results. This determination applies to both the 2018 and 2024 surveys.

37If the Union is unable to obtain the redacted individual survey responses from the third-party voluntarily, a subpoena duces tecum may be issued for their production for our next hearing date.

38In regard to the CVs of potential experts, relevant correspondence and underlying data, the Union advises that they have provided this information. It is not clear that this has been done for the 2018 survey. To the extent any such relevant documents have not yet provided, the Union must provide them.

D. To the extent the Union intends to argue that any grievor’s health was negatively affected by the alleged workload issues set out in the grievances, the Employer requests copies of all medical records, including clinical notes from any treating practitioners, for the applicable grievor for the period beginning three (3) years prior to the relevant diagnosis and continuing to the present.

39The Employer asserts that to the extent the Union asserts that excessive workload caused stress and health impacts on employees, it is entitled to review the medical records of the employee in order to challenge that claim. It submits that medical records are routinely produced at arbitrations when relevant to the claim.

40The Union asserts that this is a group grievance which raises systemic workload issues, not an individual grievance. It submits that it does not intend to call evidence of individual injury, but states that if it does, it will provide relevant medical documentation, although it contends that the Employer’s request for medical information for three years before the diagnosis is overly broad and unreasonable. It also asserts that that while medical records may be relevant in a specific case, the Employer has not established that it is entitled to medical records to the entire class of grievors.

Decision:

41At this point, I am not persuaded that the Employer is entitled to the medical information it seeks. If the Union leads evidence that a specific grievor’s health, or the group as a whole, was negatively affected medically by excessive workload, the Employer would be entitled to more information – the identity of the impacted grievors and medical documentation concerning this claim. Based on the Union’s submissions, we are not at that point yet and may not be going forward.

E. All correspondence, notes, documents, records, and other communications between the Union and any third party, whether or not the Union intends to rely on the records or call any employees as witnesses, relating to the workload issues underlying the Grievances.

F. All correspondence, notes, documents, records and related materials concerning interviews and/or investigations conducted by the Union, or its designate(s), regarding the alleged workload issues underlying the Grievances.

42The Employer asserts that it is not requesting information or documents regarding the Union’s discussions with its members, but only communications with third-parties, and which are non-privileged. It points to communications with the third party who conducted the surveys and a Toronto Star article on workload and suggests that there may be other such communications.

43The Union finds these requests to be very broad and had thought #6w involved communications about the grievances with its members. To the extent it pertains to third-parties, it is not currently aware of such communications, except the emails already disclosed. But it stated that it will review and identify whether such communications exist. It reserves the right to object to any such communications identified.

Decision:

44The Union will review for correspondence, notes, documents and other communications between the Union and any third party related to the workload issues underlying the grievances for the period 2018 to 2024. It will either provide the document or, if it objects, that objection will be dealt with by the parties, and the Board if required.

Outstanding Particulars

45The Employer seeks the following particulars:

1. The material facts on which the Union alleges that the grievor(s) were subjected to an unsafe workload, including, without limitation, a description of why each individual grievor’s workload was unsafe.

2. The reason the Union asserts that workforce and workload levels in 2014 were safe, whereas the levels in 2018 to 2014 were unsafe, and how the Union reconciles that 2014 workforce levels remained appropriate when the Employer’s adjudication model fundamentally changed in 2018 and 2020.

46The Employer seeks particulars concerning why the Union contends that workload levels in 2014 were safe and acceptable but workload levels in 2018-2024 were not. It submits that this information is essential for it to understand the case it must meet, as it is the lynchpin of the Union’s claim.

47The Union asserts that it has provided the Employer with sufficient particulars for it to understand the case it must meet, and to require more would amount to providing the Employer with its evidence. It contends that what the Employer is seeking is the Union’s legal argument. It further submits that it will provide additional particulars for each representative witness it calls to testify.

Decision:

48The case law defines “particulars” as “the details which one party may be required to give of the allegations of fact which that party is making against the other, so that the other party may know what case it has to meet.” Re Stone Lodge and U.F.C.W., Local 175, supra at para. 9, citing Thermal Ceramics and U.S.W.A., (1993) 1993 CanLII 16811 (ON LA), 32 L.A.C. (4th) 375 (Gray), at p. 381. The arbitrator in Re Stone Lodge, supra at para. 11, determined: “the term particulars pertains to the specifics of a fact situation or event that will be relied on by a party in presenting its evidence. That is the ‘when,’ ‘where,’ ‘who’ and ‘how’ of the ‘what.’”

49In my view, the Union has not set out the factual basis of its claim that Case Manager workloads were safe and reasonable in 2014, except due to staffing levels, yet unreasonable and unsafe since 2018. This appears to be key to the Union’s claim (i.e., they were safe and acceptable then but not later) and the Employer is entitled to understand that claim from the outset. The Union has set out the various systemic reasons that it contends that the workload has become excessive but not why it was acceptable in 2014. The Union’s offer to provide additional particulars for each representative grievor will not suffice for this matter.

50I do not find, however, that the Union must provide a “description of why each individual grievor’s workload was unsafe.” It has outlined its systemic concerns, and the Union has chosen to proceed with representative grievors. It has agreed to provide additional particulars for each witness. The Employer may make arguments on the sufficiency of the evidence, as outlined in the Union’s email of January 24, 2026 – that the “evidence is not representative [or] that the Union has not met its onus of proof.” The Union need not, at this point, provide why each individual grievor’s workload was excessive.

Conclusions:

51For the reasons set out above, I conclude and Order as follows:

A. Outstanding Items Sought by the Union

1. The Employer is ordered to provide the number of medical leaves, including STD and LTD, taken by Case Managers for 2014, and 2018-2024.

2. The Employer is ordered to provide the average number of medical leaves taken by WSIB employees as a whole, per year, for 2014, and 2018-2024.

3. The Employer is ordered to provide particulars and arguably relevant documents regarding how the FTE workforce analysis is conducted for Case Managers.

4. The Employer is ordered to provide the number of Performance Improvement Plans for Case Managers for 20214, and 2018=2024.

5. In regard to the scope of production, the Employer is required to produce arguably relevant documents for 2014, and 2018-2024.

B. Outstanding Items Sought by the Employer

Documents:

1. The Union is ordered to produce the distribution list for the 2018 workload survey, as it has done for the 2024 survey.

2. The Union is ordered to produce the results of each individual workload survey with the names redacted for the 2024 and 2018 workload surveys. If the Union does not have these in its possession and is unable to obtain them from its third-party provider, a subpoena duces tecum will be issued prior to the next hearing date.

3. To the extent not already provided, the Union is ordered to provide a copy of the CV for any individual involved in the creation of reports or analysis concerning Case Manager workload issues, copies of or correspondence or instructions between the Union and those individuals and copies of underlying data and documents relied upon (with any identification of individual employees redacted.)

4. In terms of employee medical information, if the Union leads evidence that a specific grievor, or the group as a whole, was negatively medically impacted by excessive workload, the Employer would be entitled to more information – the identity of the impacted grievor(s) and relevant medical information. Based on the Union’s submissions, however, we are not at that point yet and may not be going forward.

5. The Union is ordered to review its records to determine if there are any other communications with third parties regarding workload issues related to the Case Managers. If such documents exist, the Union is to identify them and either produce them to the Employer or provide the basis of its objections. Those objections will, if needed, be argued and decided.

Particulars:

1. The Union is directed to set out the factual basis of its claim that the Case Manager workload was safe and reasonable in 2014, except due to staffing levels, yet unreasonable and unsafe since 2018-2024. The Union need not, however, provide a description of why each individual grievor’s workload was unsafe.

Footnotes

1. 1Article 25.06 of the 2017-2020 collective agreement provides for a Joint Workload Committee “responsible for considering workload concerns.” It also provides “[i]ndividual workload complaints brought forward by employees will be considered in accordance with the grievance process.” There are no individual grievances that are before me.