GSB# 2024-01885

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Di Maria)

Association

• and -

The Crown in Right of Ontario (Ministry of Environment, Conservation and Parks)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Senior Counsel

HEARING

March 3 and 30, 2026

Decision

1The Board is seized with a grievance dated September 26, 2024, filed by Mr. Paul Di Maria (“Grievor”). The relevant part of the grievance addressed to Mr. Simon Chan reads as follows:

In accordance with Article 15.3.1 of the AMAPCEO, on behalf of the above-named employee, files a dispute at the formal stage of the dispute resolution process.

AMAPCEO asserts that the employer has treated Mr. Di Maria in a discriminatory manner through its failure to accommodate him in violation of articles 2.2.1, 3.1, 25.1 of the collective agreement section 25.2 (h) of the Occupational Health and Safety Act, and the Employer’s Disability Accommodation Policy, as well as any other relevant Collective Agreement Articles, Employer policies or legislation.

As redress AMAPCEO seeks:

• Acceptance of Mr. Di Maria’s accommodation request to telework from home for five (5) days per week.

• Damages

• Any other redress necessary to make Mr. Di Maria whole.

2The Board convened on this matter on May 28, 2025, and spent the day doing “case management”. Timelines were agreed to for filing of particulars and production of documents. At the request of the parties the Board issued a “consent order” for compliance with the agreements reached. This decision deals with a request by the Association for further production by the employer of certain documents which the employer has objected to. The Association seeks an order that the employer produce those documents prior to the commencement of the hearing on the merits.

3The documents the Association requests are described as follows:

AMAPCEO requests that the Employer produce the following:

1. All documentation, in whatever form (including but not limited to emails, audio recordings, handwritten notes, text messages, policies, guidelines, reports, agendas, calendar entries, meeting notes, letters, etc. [“documentation”]), in any way related to or reflecting the Employer’s consideration of Paul’s September 13, 2018, October 5, 2018 and March 2024 formal requests for accommodation. Without limiting the generality of the foregoing, please produce the following:

a. Calendar entries for any meetings or calls (phone calls, Microsoft Teams calls, etc.) held among representatives of the Employer to discuss Paul’s requests or to discuss Paul’s follow-up correspondence.

b. Notes taken by the participants in any meetings or calls held among representatives of the Employer to discuss Paul’s requests or to discuss Paul’s follow-up correspondence.

c. Emails or any other documentation among representatives of the Employer pertaining to any meetings or calls held to discuss Paul’s requests or to discuss Paul’s follow-up correspondence.

d. Drafts of any written responses to Paul concerning his September 13, 2018 and October 5, 2018, formal requests for accommodation, including drafts of the Employer’s approval of the request and drafts of the Employer’s responses to Paul’s follow-up correspondence.

e. All documentation related to the Employer’s decision to approve the October 5, 2018, formal request for accommodation allowing him to work from home for three months effective March 1, 2019;

2. All documentation related to the Employer’s re-assessment of Paul’s March 1, 2019 accommodation plan. Without limiting the generality of the foregoing, please produce the following:

a. Calendar entries for any meetings or calls (phone calls, Microsoft Teams calls, etc.) held among representatives of the Employer to discuss Paul’s requests, follow-up correspondence, or medical documentation.

b. Notes taken by the participants in any meetings or calls held among representatives of the Employer to discuss Paul’s requests, follow-up correspondence, or medical documentation.

c. Emails or any other documentation among representatives of the Employer (including human resources personnel) pertaining to any meetings or calls held to discuss Paul’s requests, follow-up correspondence, or medical documentation.

d. Drafts of any written responses to Paul’s requests, follow-up correspondence, or in pursuit of further medical documentation.

e. All documentation related to the Employer’s August 6, 2019, decision to deny Paul a fully remote workplace and/or an alternate work location and, instead, to order a gradual return to work.

3. All documentation related to the Employer’s decisions to direct Paul to return to the office three days per week effective October 1, 2024, and to grant Paul an AWA on September 11, 2024, allowing for two days of telework in addition to the two days per week already allowed for telework in the accommodation plan. Without limiting the generality of the foregoing, please produce the following:

a. Drafts of any written responses to Paul concerning his March 2024 formal request for accommodation, including drafts of the Employer’s approval of the request and drafts of the Employer’s responses to Paul’s follow-up correspondence.

b. Drafts of any written responses to Paul concerning his July 18, 2024, request for an AWA, including drafts of the Employer’s approval of the request and drafts of the Employer’s responses to Paul’s follow-up correspondence.

c. Calendar entries for any meetings or calls (phone calls, Microsoft Teams calls, etc.) held among representatives of the Employer to discuss Paul’s 2024 requests for accommodation and AWA, follow-up correspondence, or medical documentation.

d. Notes taken by the participants in any meetings or calls held among representatives of the Employer to discuss Paul’s requests, follow-up correspondence, or medical documentation.

e. Emails or any other documentation among representatives of the Employer (including human resources personnel) pertaining to any meetings or calls held to discuss Paul’s requests, follow-up correspondence, or medical documentation.

f. Drafts of any written responses to Paul’s requests, follow-up correspondence, or in pursuit of further medical documentation.

g. All documentation related to the Employer’s July 31, 2024, decision directing Paul to return to the office three days per week effective October 1, 2024.

h. All documentation related to the Employer’s September 11, 2024, decision directing Paul to work from home an additional two days per week pursuant to an AWA.

i. All documentation related to the Employer’s April 22, 2025, decision extending Paul’s AWA to October 31, 2025.

4Submissions were received from the parties based on the particulars the Association had provided and documents that had been exchanged between the parties.

5The Ontario Labour Relations Act sets out the powers of an arbitrator including the power to require any party to “produce documents or things that may be relevant to the matter, and to do so before or during the hearing (s. 48(12)(b))”. Therefore, I must decide whether the documents sought by the Association “may be relevant to the matter” i.e. the grievance before me.

6The leading case on this subject of pre-hearing disclosure is West Park Hospital and Ontario Nurses’ Association (1988) 1993 CanLII 16806 (ON LA), 37 L.A.C. (4^TH) 160 (Knopf). Arbitrator Knopf at p. 167 wrote that “It is open for counsel for both parties to make submissions to the Board of Arbitration as to the relevancy of the medical evidence at the hearing of the merits of the case and/or on issues as to what is the proper remedy when we come to that point. But at this stage, the only issue to be determined is whether or not the grievor’s personal medical information should be turned over to the employer prior to the hearing”.

7Arbitrator Knopf then went on to examine the factors or principles that should be taken into consideration where a request for pre-hearing production is contested. She wrote:

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 positions in dispute at the hearing.

8The Association has filed detailed particulars consisting of 63 paragraphs. They describe the grievor’s history of employment in the OPS since he joined in October 2016 as a program advisor with the Ministry at its office at St. Clair Avenue West in Toronto.

9The particulars go on to review the difficulties the grievor had with commuting to his office at St. Clair West from his home in Burlington by train and subway. It is asserted that beginning in 2017 he progressively suffered symptoms brought on because of his commute to work. The particulars then review in detail the history of the grievor’s attempts to seek accommodation from the employer as follows:

3. When hired into the OPS in 2016, Paul’s commute to work from his home in Burlington to 40 St. Clair Ave. W. in Toronto was approximately 75-90 minutes each way. Soon after starting his job, Paul noticed that the commute to and from work was having an adverse impact on his health.

4. Paul raised his symptoms directly in conversation with his manager, Stephanie Liu Leconte, sharing that his mental health was declining, and his anxiety was growing. As a result of these discussions, Stephanie allowed Paul to work from home one day per week beginning on October 24, 2017.

5. On December 13, 2017, Paul submitted a formal accommodation request in which he asked to work from home one day per week. The employer granted his request.

6. In late summer 2018, Paul told Stephanie and his senior manager Tom Johnson that he wished to work from home two days per week due to the impact the commute continued to have on his health.

7. On September 13, 2018, Paul again spoke to Stephanie about his declining health. In response, Stephanie suggested that Paul work from home five days per week. Later in the day on September 13, 2018, Paul made a formal request for accommodation.

8. Later that same day, Stephanie told Paul that he could work from home five days per week, pending the determination of his request. Stephanie indicated that the request would be reviewed by the employer’s HR Advisor and Disability Accommodation Specialist.

9. On September 17, 2018, the employer requested a medical note from Paul. That same week, Paul commenced working from home five days per week.

10. On September 21, 2018, Paul provided the employer with a medical note from Dr. Leonard De Bolster, his family physician at the time.

11. The employer rejected Paul’s request for accommodation on October 1, 2018, indicating that the medical note from Dr. De Bolster did not support the need for a formal medical accommodation. Stephanie offered Paul two flexible work arrangements: (1) a Telework Agreement allowing him to work from home one day per week; and (2) a Compressed Work Week Agreement allowing him one day off every 15th day.

12. Paul submitted a revised request for accommodation on October 5, 2018, along with a new letter from Dr. De Bolster. The new letter identified that Paul was developing symptoms of depression, anxiety and insomnia since returning to the workplace and having a significant commute. Dr. De Bolster stated that: If (Paul) could be accommodated in such a way that he could work from home 4 days per week and be in the office once per week or if alternatively he could work from a satellite office in the community, I believe his symptoms would abate and he could remain a productive employee.

13. Stephanie informed Paul by email that he could return to working from home five days per week until the employer had addressed his revised request. By letter dated October 29, 2018, the employer requested from Dr. De Bolster “updated information regarding Mr. Di Maria’s ongoing need for medical accommodation including his specific work-related limitations/restrictions, prognosis for improvement and recovery, functionality and fitness to work”.

14. In correspondence dated November 1, 2018, Dr. De Bolster identified Paul’s commute as the primary contributor to the evolution of Paul’s symptoms, which were identified as significant depressive thoughts, ruminating thoughts, and overwhelming worry, anxiety, and insomnia. He indicated that Paul could not commute more than one hour (daily, round trip) four days per week, due to two aspects of the commute: 1. The length of time required to get to and from the office, as it compromised his mental health; and 2. Paul’s exposure to large crowds or being in tight spaces for extended periods of time during the commute resulted in anxiety and worsened his symptoms.

15. Dr. De Bolster noted that at the time he completed the questionnaire Paul’s condition was stable and attributed this to the fact that Paul had been working from home on a full-time basis since October 9, 2018 which allowed him to manage his symptoms. The doctor stated that working more than one day per week in the office was contraindicated.

Independent Medical Examination

16. On December 6, 2018, the Employer requested an Independent Medical Examination (“IME”), citing its need to obtain a “clear understanding of the impact of commute on your ability to perform your essential work duties within the workplace”. Paul agreed, and attended an appointment with Dr. John Dudley, a psychiatrist, on January 22, 2019.

17. In a report dated February 5, 2019 [Tab 8], Dr. Dudley assessed Paul as having an adjustment disorder with mixed anxiety.

10The parties made their submissions making reference to the foregoing particulars. It was understood by the parties that facts set out therein are not agreed to. Particulars, as always, are an outline of the facts, the party intends to establish through evidence, viva voce or documentary, at the hearing on the merits of the grievance. The employer, however, did not seek to strike any of the particulars.

Association Submissions

11The Association submitted that in determining whether the employer failed to accommodate the grievor as alleged in the grievance, the history of the employer’s approach to his request for accommodation based on his inability to commute is relevant. That difficulty with commuting to work did not start in 2024. As far back as 2017, when the grievor was commuting by train and subway from his home in Burlington, he verbally requested accommodation from his manager by allowing him to work from home. He then made a formal request for accommodation and provided medical notes and employer health information questionnaires completed by his family doctor. When the employer decided to subject the grievor to an independent medical examination, he underwent that willingly. Throughout this period from 2017 up to the date of the filing of the grievances, different managers the grievor reported to did not take the position that the grievor did not have a disability that had to be accommodated to the point of undue hardship. The grievor was in fact accommodated at different times and was allowed to work from home a certain number of days per week. There was also discussion of finding an office closer to the grievor’s home as an accommodation.

12Then when Mr. Chan became the grievor’s manager, the employer did a complete “about-face” and took the position that the grievor’s request to work from home was a personal preference on his part and not a matter of a disability which prevented him from commuting to work at the St. Clair West office.

13Counsel submitted that during this period the various managers who attempted to find a reasonable accommodation for the grievor would have had consultations and advice from disability and accommodation specialists. DAS attends accommodation meetings and plays an important role in the search for accommodations. Therefore, the material disclosing the nature of those discussions is arguably relevant “contextual information” at the production stage. That material would show what efforts the employer made at the time accommodate the grievor.

14Counsel submitted that it would be open to the employer to object to the admission of any of this material in evidence at the hearing on the merits, and the Board can rule on it. However, for purposes of pre-hearing production all the materials the Association seeks are arguably relevant.

Employer Submissions

15The employer reviewed in detail the Association’s particulars. He submitted that it is important to keep in mind what the grievance before the Board is. It is whether the employer’s denial of the grievor’s request in 2024 that he be allowed to work from home five days a week, contributed a failure to accommodate in violation of the collective agreement and the OHRC. The Association claims that it is, and seeks by way of remedy, a Board order that the employer provide the requested accommodation and order general damages.

16The employer made two arguments in support of its position that the material should not be ordered produced. The first argument is that the material is “historical stuff”, not at all relevant to the issue to be decided in the grievance, i.e. whether the employer’s denial of the accommodation the grievor wanted in October 2024 was a violation. There is no probative value in the documents such as notes and calendar entries in the period 2018 and 2019. Those related to efforts by the managers at the time, to respond to the grievor’s request for accommodation. Counsel submitted that those managers acted reasonably, and the Association has accepted that it is not challenging the employer conduct in that period.

17The employer pointed out that as set out in the particulars, in the period 2018-2019 the grievor had moved from Burlington to several other locations in Ontario. Each move increased the distance between the grievor’s home and the St. Clair West office where he worked. There is no dispute these moves were from the moves made by the grievor solely for personal reasons and had nothing to do with the employer. Counsel further referred to the particulars show that the grievor and the union entered into agreements with the employer setting out terms of accommodation accepted by all parties.

18The second argument of the employer was that if the grievor was not satisfied with the managers’ conduct before 2024, he could have filed grievances within the time limits in the collective agreement. He not only failed to do that, but he also signed off an agreement, accepting terms offered to him by the employer. It is too late to challenge that employer conduct in the instant grievance.

19Citing decisions of this Board, the employer argued that the Board’s “three-year rule” precludes the Association from seeking the production in question. The employer relied on the following GSB decisions. OPSEU (Bharti) and MNRF, 2014 CanLII 747769 (Anderson); OPSEU (Zhao) and M of Education, 2026 CanLII 20001 (Karimjee); OPSEU (Akintunde) and MCSCS, 2019 CanLII 42398 (ON GSB), 2018 CanLII 55850 (Watters).

20Counsel reviewed para. 3 of the interim ruling by arbitrator Anderson in Re Bharti (supra) which reads:

3The allegations with respect to Mr. Jones are untimely for the reasons stated by the Employer in its submissions. This grievance was filed on March 6, 2013. Particulars referencing Mr. Jones were filed by the Union on October 5, 2014. Mr. Jones retired on January 31, 2009. To the extent that statements made by Mr. Jones are said to constitute separate breaches of the collective agreement, grievances with respect to those breaches are clearly untimely. To the extent that those statements are advanced to establish a course of conduct, this Board has adopted a general “rule” restricting such evidence to the preceding three years: Re Brown, 2011-0583, February 23, 2012, (Dissanayake). This period is sufficiently long to permit the Union to establish a pattern but not so long as to make it impossible for the Employer to defend. This rule is not hard and fast and may be departed from where circumstances warrant. In this case, the Union has identified no such circumstances. Accordingly, the allegations referencing Mr. Jones are struck. Given this conclusion, I need need not address the alternative argument that the allegations with respect to Mr. Jones are an abuse of process.

21He also relied on paragraphs 7 to 15 in the decision in Re Zhao (supra) as follows:

7For the reasons set out below, this is a clear case for the application of the three-year rule to limit the scope of the evidence that the Union may call in support of the grievor’s allegations of harassment.

8The Board’s case law on the three-year rule is well developed and referenced in the case law relied upon by both the Employer and Union. As stated by Arbitrator Sheehan in OPSEU (Lavoie et al) v. Ontario (MCSCS) 2015 CanLII 60426 (GSB) (at para.42) “…the Grievance Settlement Board in cases involving harassment and racial discrimination, while allowing evidence that predates the time frame for filing a grievance under the collective agreement has imposed a limitation of not permitting evidence that relates to events that took place more than three years before the date of filing the grievance.”

9I accept, as submitted by the Union, that what is often referred to as the “three-year rule” is not rigid or inflexible. Its application necessitates a balancing of competing interests, namely the Union’s interest in proving its case with the Employer’s right to defend itself. I am persuaded, based on a review of the grievance itself, the particulars as a whole (not just the impugned paragraphs), and the applicable case law, that it should be applied in this case.

10In the present case, the particulars challenged are from 2010 to 2018, six to 14 years prior to the filing of the grievance. Further, there is a five-year gap in the Union’s particulars between 2018 and 2023. This gap diminishes the argument that the past events from the grievor’s first 10 years of employment must be considered to understand the grievor’s more recent harassment allegations. Further, allowing the Union to call the evidence in question would undoubtedly prolong the hearing and may create evidentiary challenges given the passage of time. There is also no evidence or argument to support the presence of unique or exceptional circumstances justifying departure from the Board’s three-year rule. The Union’s particulars are very detailed for the three year period prior to the grievance and provide an adequate timeframe to provide context and for the Union to seek to establish a pattern.

11Further, it is preferable to deal with this scope of evidence question now, rather than during the hearing. A failure to address the Employer’s concerns regarding the early allegations advanced would require the Employer to unnecessarily provide disclosure and prepare to respond to historical allegations.

12In the result, the Employer’s motion to strike paragraphs 1 to 42, 272 to 275, 278 and 279 is allowed. This ruling captures allegations prior to January 16, 2021 (three years prior to the grievance), including the allegations from that period of challenges with advancement, lack of interviews and offers for positions, and unfair job competitions and granting of positions.

13However, there are two important caveats to this ruling.

First, I accept, as submitted by the Union, that some challenged paragraphs, separate from the allegations of harassment, contain background facts. This decision is not intended to prevent the Union from leading background evidence of the grievor’s employment history including positions held, duties performed, and accomplishments. Neither the Employer nor Union parsed the paragraphs in their submissions to separate out background facts. However, I am confident that counsel will be able to separate out the admissible basic history and timeline of the grievor’s employment from the historical allegations of challenges with advancement. Further, any challenges can be dealt with during the hearing.

14Second, aspects of the Union’s “particulars,” specifically paragraphs 272 to 275, 278 and 279, are more in the nature of summaries of positions and arguments, rather than allegations of fact. I have struck the paragraphs challenged by the Employer to limit the evidence at the hearing to events in the three years prior to the grievance. For the sake of clarity, this will not limit the ability of the Union to rely on any positions or arguments articulated in the paragraphs struck so long as it is not relying on events referenced in those paragraphs that predate the grievance by three years to do so.

15In conclusion, the Union will be allowed to rely on evidence from three years prior to the filing of the grievance. However, the Union will not be permitted to lead evidence of incidents alleged to have occurred more than three years prior to the filing of this grievance.

22Counsel stated that the employer does not dispute that the past history of the accommodation requests by the grievor and how the various managers addressed those requests are relevant in this proceeding since it provides the background and context in which the parties’ actions may be assessed. The employer however objects to the production of documents going back years, which are not in any way related to the grievor’s accommodation request in 2024 which is the only issue before the Board.

Association Reply Submissions

23The Association submitted that the employer repeatedly stated that the only issue to be decided by the Board in this arbitration is about Mr. Chan’s actions in 2024. On that premise he argued that the actions of the previous managers who dealt with the grievor’s need for accommodation are irrelevant. Counsel submitted that while the Board in this case must deal with Mr. Chan’s actions in 2024, the request in 2024 was for an accommodation with a long history. That is why the actions of previous managers become relevant. To limit the evidence to Mr. Chan’s actions would be to ignore the fact that accommodation is an ongoing obligation.

24The Association also stated that it is not trying to grieve any past conduct by management. At the present stage the question for the Board is not whether the past documents are admissible in evidence. It is only whether they should be produced to the Association in advance of the hearing on the merits. The test, therefore, is whether the documents are ‘arguably relevant’. It is a lower standard that applies. Issues relating to admissibility can be dealt with at the hearing if they arise.

25The Association also confirmed that it is not alleging that the grievor’s previous managers violated their legal obligations. In fact, counsel stated that the grievor was satisfied with how the managers responded to his accommodation requests at the time. The Association wants to rely on the documents only to show the contrast between how management dealt with the grievor’s disability “then and now”.

26The Association reviewed the particulars relating to the period starting in 2018 about the grievor’s requests for accommodation from his previous managers. The managers engaged DAS and ERA staff, reviewed the medical notes and health information questionnaires provided by the grievor’s treating medical professionals and responded to the accommodation requests. During this period, they did not dispute that the grievor had a disability. Various accommodations of work from home were offered to the grievor. There was even a suggestion that there should be a search for an office close to Burlington where the grievor lived, although nothing came out of it.

27Then following the COVID period, during which all employees worked from home, and the grievor’s leave of absence to work outside the OPS, he returned to his job with the employer. It is at that point that Mr. Chan decided that the grievor must attend the office 3 days a week like all the colleagues did at this time. He took the position that the grievor had made a personal choice to move to Elmwood which significantly increased the commute to St. Clair West, and therefore, the employer no longer had an obligation to accommodate him. Thus, the employer suddenly decided to withdraw the accommodation it had provided. This sudden about-face is the reason the Association seeks the production.

28Counsel stated that AMAPCEO is not seeking any remedies for any employer conduct in 2019 to 2023 because the grievor was accommodated in that period. The production is necessary only because the employer suddenly took the position that any medical issues, he had was due to a personal choice he made to move to Elmwood.

29Citing Re Flecher (OPSEU) & MNRF, 2016-2529 (Petryshen) and Re Cooper (OPSEU) & OCWA, 2017-1413 (Anderson), the three-year rule” of the GSB only applies in harassment cases, where a grievor alleges a pattern of conduct AMAPCEO is not attempting to establish a pattern of conduct in his case. In fact, its position is that the employer had a change of heart after accommodating the grievor for some 6 years. AMAPCEO wants to see how the employer went from accommodation for 6 years, to no accommodation at all. She submitted that the Board should order the employer to produce the documents in question.

Employer Sur-Reply

30Counsel pointed out that when the grievor requested accommodation prior to 2024, the employer requested medical information and accommodated the grievor. The Association has stated that it was satisfied, as did the grievor, with the employer’s actions at that time. In fact, accommodation plans were agreed to between all three parties. Now, the Association is in effect challenging those agreements. He referred to paragraph 14 in Re Zhao (supra) to argue that a party is not allowed to challenge agreements in a subsequent proceeding, even if it is not seeking remedies.

31The employer submitted that the “three-year rule” is not confined to “harassment” allegations. He pointed out as an example that in Re Bharti (supra) arbitrator Anderson applied the rule in an accommodation case.

32Counsel submitted that, in any event, manager Chan was dealing with a very different problem than the grievor’s previous managers. The grievor’s home was in Elmwood requiring a daily commute of some six hours. More importantly, unlike before, the grievor was not requesting an office located closer to his Elmwood home or that he be allowed to work from home on some days. The only accommodation he was prepared to consider was that he be allowed to work remotely five days a week from his Elmwood home.

DECISION

33This decision is only about the dispute between the parties, whether the Association is entitled to production of the material it seeks. There is no dispute between the parties that the test is whether the material is arguably relevant to the grievance before the Board. The Association accepts that the grievance is only about the employer’s denial of the request for accommodation the grievor made in 2024. It is explicitly conceded by the Association that it is not grieving or even challenging any employer conduct prior to the 2024 denial of accommodation by the grievor’s manager, Mr. Chan.

34Submissions were made by the parties whether the material from the period before 2024 are arguably relevant to the Board’s determination whether the employer’s denial of accommodation in 2024 is a violation of its duty to accommodate under the collective agreement and the OHRC. I have set out the submissions in detail above.

35Counsel submitted that in these circumstances, the history of the accommodation approved for the grievor for his on-going difficulties with commuting to work, and how the employer approached the grievor’s previous request for accommodation is arguably relevant for purposes of production.

36The employer has not objected to the particulars of the Association setting out in detail the history of the grievor’s requests for accommodation relating to commuting to work.

37The authorities the employer relies on where the three-year rule was applied by the Board were cases where one party was seeking to admit material outside the three-year rule into evidence. See, Re Zhao, 2026 CanLII 20001 (Karimjee) Re Akintunde, 2019 CanLII 42398 (ON GSB), 2018 CanLII 55850 (Watters); Re Bharti, 2014 CanLII 74769 (Anderson).

38In Re Akintunde (supra) the union sought an extension of the three-year limit arguing that it will allow it “to better establish a pattern of systemic discrimination and harassment”. The union stated that “such evidence will set the context for what led to the filing of the instant grievance”. The Board concluded that it was not persuaded that unique or special circumstances exist to support an extension of the three-year limit, on a fair balancing of the interests of the two parties.

39In Re Zhao (supra) the employer sought an order striking certain paragraphs from the union’s particulars which relying on the three-year rule. The grievance alleged “harassment, bullying, and preferential treatment of others, tied to the alleged lack of workplace opportunities and career advancement for the grievor”. The Board accepted that the three-year rule “is not rigid or inflexible”. Its application necessitates a balancing of competing interests, namely the union’s interest in proving the case with the employer’s right to defend itself. Based on the whole of the union’s particulars the Board disagreed with the union that the past events from the grievor’s first 10 years of employment must be considered to understand the grievor’s more recent harassment allegations. The Board ruled that the three-year rule will apply.

40It is relevant to note that the Board in Re Zhao, having applied the rule, set out two caveats to that ruling. One was that “This decision is not intended to prevent he union from leading background evidence of the grievor’s employment history including positions held, duties performed and accomplishments”.

41I accept that the documents will assist the Association to understand the history and context that led to the filing of the grievance before the Board. In fact, the employer did not dispute that. However, that history and context is set out in detail in the Association’s own particulars. The employer has not objected to anything in the particulars. The facts asserted therein are unchallenged, at least at this stage of the proceeding. The documents sought by the Association have to do with employer deliberations with its human rights and labour relations specialists or among members of management.

42Therefore, it is not necessary for me to deal with the employer’s submissions based on the three-year rule. I am convinced that the documents in question simply cannot have relevance to the grievance, even at the lower standard of “arguably relevant”. His grievance is about alleged discrimination and failure to accommodate in 2024. The Association has explicitly acknowledged that it does not allege or challenge past conduct by any of the grievor’s managers. It even agreed that the Association and the grievor were satisfied with the previous managers’ responses when the grievor requested accommodation. Therefore, there is no pattern of discrimination issues in this case. The only allegation here is about the conduct of one manager Mr. Chan in response to the grievor’s request in 2024.

43The Association does not claim that Mr. Chan was in any way, directly or indirectly involved, with the grievor’s past accommodation request. The documents it wants produced can only relate to those past requests. The Association will have the opportunity to deal with Mr. Chan’s decision making with regard to the grievor’s 2024 request for accommodation. It will also be entitled to production of all relevant documents relating to that.

44Association counsel repeatedly asserted that the requested production is necessary and is arguably relevant only to assess how the employer changed its position from accommodating the grievor for over 6 years to no accommodation at all in 2024. However, that documentation cannot shed any light on why Mr. Chan made his decision which the Association calls a sudden about-face. The material relates only to the discussions and actions other managers took in the past. Those managers or the other staff had nothing to do with Mr. Chan’s decision. Only documents relating to discussions and consultations between Mr. Chan and any DAS or LR staff involved in the 2024 accommodation request would be relevant.

45This Board recognizes that probative information that is arguably relevant is subject to pre-hearing production. In Re West Park Hospital, (supra) two of the principles that must be applied for pre-hearing production are that the information requested “must be arguably relevant”, and “there must be a clear nexus between the information requested and the positions in dispute at the hearing”. I find that neither of those requirements are met in this case. Therefore, the Association’s request for production is dismissed. The Board remains seized.