Service Employees International Union, Local 204 v. Durham Access to Care, 2000 CanLII 13411

Ontario Labour Relations Board

File No.: 3227-99-R Date: May 24, 2000

Between: Service Employees International Union, Local 204, Applicant v. Durham Access to Care, Canadian Red Cross Society (Ontario Zone) and Comcare Independent Living Inc., Responding Parties v. Ontario Nurses’ Association, Intervenor.

Before: Gail Misra, Vice-Chair.

Decision of the Board

1This is an application filed pursuant to sections 69 and 1(4) of the Labour Relations Act, 1995 (the "Act").

2By a letter dated April 14, 2000 the applicant (the "SEIU" or the "union") is seeking pre-hearing production of a large number of documents. In referring in this decision to the requests made, the Board will refer to them as the parties have, by the paragraph number the union assigned to each request in its original letter of April 14. The Board is only addressing the matters that remain in contention between the parties.

3The parties are all familiar with the Board's jurisprudence with respect to pre-hearing production in sections 69 and 1(4) cases, and with the provisions of sections 69(13) and 1(5) regarding the duties of responding parties in this type of case. For the reasons expressed in Highland York Flooring Company Limited, [1993] OLRB Rep. July 607, the Board is of the view that pre-hearing disclosure permits the parties to better assess their respective positions. The question with respect it each request made for production is whether the material will be generally relevant to the proceeding.

4If documents the union requests do not exist, they obviously cannot be produced. However, any documents which are in the possession, care and control of the responding parties must be produced to the applicant if ordered by the Board. Any documents produced in response to this order, and indeed in advance of this order, are not to be used for purposes unrelated to this proceeding. The Board also orders that the applicant cannot disclose the documents and information it receives as a result of the pre-hearing production to any other party unless the Board so orders. In light of the sensitive nature of some of the documents the Board will have more to say about this matter later.

5Given the breadth of the union's requests for production in this case some of the responding parties have requested that the applicant bear the cost of the preparation and copying of anything the Board orders produced. While the Board does not normally order that one party pay for the copying of documents produced in the course of a proceeding, this appears to be a particularly paper-intensive proceeding in which it may be appropriate to make such an order. The Board notes that some of the responding parties are non-profit organizations and that the responding parties have already produced a considerable number of documents to the applicant. Therefore, the Board directs that if a responding party wishes it, the union must pay for the reasonable costs of copying any documents it receives as a result of this production order. Documents already produced are not affected by this direction. The Board is specifically not ordering that the applicant bear the cost of the preparation of documents for production, but only for the photocopying of documents. In light of the amount of documentation being made available, should this matter proceed to a hearing the Board recommends that the parties work together to ensure that there is little or no duplication of materials as between themselves and what is ultimately to be put before the Board.

6The union has requested one or more documents from the various responding parties that would require the responding parties to create documents. The Board notes and agrees with the decision in D'Luxe Drywall (1987), [1995] OLRB Rep. Feb. 112, wherein the Board stated as follows:

8. ... However, part of the applicant's request appears to require that the responding employers create as well as produce documents. While the information which would be revealed in that respect may well be relevant to a proper consideration of the application under sections 1(4) and [69], any obligation to produce documents, whether arising out of a Board order or otherwise, does not include an obligation to create documents which do not exist (although it may well be helpful if the information itself is provided).

7With the above in mind, the Board turns to the specific production requests as outlined in the union's letter and attached documents of May 8, 2000. When referring to each production request the Board has reviewed what the union is seeking in its response to each responding party, and what the responding parties have objected to in their subsequent letters to the Board.

8Regarding Paragraphs 1 and 2:

• The Board notes that Comcare Independent Living Inc. ("Comcare") has undertaken to make available five policy and procedure manuals for the applicant to view. The Board directs that Comcare permit the union to review the manuals and to make copies of those portions it wishes to rely upon. At the time that the union seeks to utilize the material at the hearing the Board will entertain Comcare's particular objection to the use of the document or information. The Board will then consider whether its use would be detrimental to Comcare's competitive position, or whether the union will be permitted to rely on the information.

• The Board cannot see how the union's present request for production regarding Paragraphs 1 and 2 is related to what it had originally requested from Canadian Red Cross Society (Ontario Zone) ("Red Cross"). However, if Section A refers to the applicant's request in paragraph 1, the Red Cross is directed to produce it. As with Comcare, should the union seek to utilize the material at the hearing the Board will entertain the Red Cross' particular objection and will determine whether use of the document or information gleaned from a document would be detrimental to Red Cross' competitive position, or whether the union will be permitted to rely on the information. The Board declines to order the production of any financial information in the Response to the Request for Proposal.

9Regarding Paragraph 3:

• The Board directs Comcare to provide the applicant with the requested information in paragraph 3 of the request for production. Comcare is also directed to provide a copy of one file which contains occurrence reports as referred to in the February 7, 2000 Contract Meeting Notes. All identifying patient information is to be removed. The applicant is reminded of the extremely confidential nature of the information being disclosed to it and is ordered to handle any information of this nature with the utmost care and sensitivity.

• The Board declines the applicant's request with respect to the Red Cross as that responding party has already produced one file to the applicant.

• The applicant's request regarding representative client files is overbroad. It would appear to the Board that it may be useful to the applicant to receive a copy of each of the DATC's client files that corresponds to the client file produced by Comcare and the Red Cross. The Board therefore directs the DATC to provide to the applicant such files, with all identifying patient information removed. The Board's proviso regarding the confidential nature of these documents is reiterated to the applicant.

10Regarding Paragraph 4:

• The Board directs Comcare to produce to the applicant any and all communications between it and the DATC which relate or refer to the conduct or actions of Comcare homemakers, including all occurrence reports. For the purposes of confidentiality, any identifying information regarding the persons involved is to be removed. The Board's proviso regarding the confidential nature of these documents is reiterated to the applicant.

• The Red Cross has indicated it has no documentation regarding this request, so no order is made to it.

• The Board directs DATC to produce to the applicant any and all communications between it and Comcare and the Red Cross which relate or refer to the conduct or actions of either organization's homemakers, including all occurrence reports. For the purposes of confidentiality, any identifying information regarding the persons involved is to be removed. The Board's proviso regarding the confidential nature of these documents is reiterated to the applicant.

11Regarding Paragraph 5:

• There appears to be no reason to make an order in respect of this paragraph as both Comcare and Red Cross have indicated they have provided what they have. DATC is going to produce anything should it have any further documentation.

12Regarding Paragraphs 6 and 7:

• The Board directs Comcare to seek written authorization from DATC to permit the applicant to review and copy the Comcare responses to the Request for Qualification and Request for Proposal. Since DATC has already indicated it will grant authorization if requested, the only areas of the documentation that are not to be disclosed are financial information and cost of service and pricing information. The information is to be treated with the utmost confidence by the applicant. At the time that the union seeks to utilize the material at the hearing the Board will entertain Comcare's particular objection to the use of that information. The Board will then determine whether its use would be detrimental to Comcare's competitive position, or whether the union should be permitted to rely upon it.

• The Board notes that Red Cross has already produced to the applicant the documents in question. To the extent that it has not done so, the Board has ruled above regarding paragraphs 1 and 2 of the applicant's request for production. The documents already produced are to be treated in the utmost confidence.

• The Board notes again that the DATC has agreed to provide authorization for the release of the documents in question.

13Regarding Paragraph 8:

• The Board denies the applicant's request for production as the material requested is highly confidential and not particularly relevant to the question that will be before the Board to decide in this application.

14Regarding Paragraph 9:

• The Board denies the applicant's request as the documentation does not exist and the Board will not require that a responding party create documents for the applicant's use.

15Regarding Paragraph 10:

• All of the responding parties are directed to provide to the applicant their respective employee lists for all of the periods that the applicant has requested. The Board's proviso regarding the confidential nature of these documents is reiterated to the applicant and the information provided is not to be used for any purpose whatsoever that is unrelated to this application. It is also not to be disclosed to any other party to this application.

16Regarding Paragraph 11:

• Comcare and Red Cross have indicated they have not received any communications of the types requested by the applicant. The Board therefore sees no need to make a direction with respect to these responding parties.

• The Board notes that the DATC had undertaken to and did provide any documentation it has regarding this request, so an order is not necessary.

17In the event that there are any further production issues to be addressed, the parties may address them at the hearing to be held in the near future. The parties are to complete all production within 20 days of the date of this decision. I remain seized.

"Gail Misra"

for the Board