Wells v. Liquor Control Board of Ontario, 1995 CanLII 7206

PAY EQUITY HEARINGS TRIBUNAL

0494‑94 Gail R. Wells, Applicant and Benita Larsen, Applicant v. Liquor Control Board of Ontario, Respondent

0498‑94 Liquor Control Board of Ontario, Applicant v. Gail R. Wells, Respondent and Benita Larsen, Respondent

0536‑95 Gail R. Wells, Applicant and Benita Larsen, Applicant v. Liquor Control Board of Ontario, Respondent

Before: Janice Sandomirsky, Vice‑Chair and Members Bruce Budd and Janet Slone Taylor

Cite As: Liquor Control Board of Ontario (June 29, 1995) 0494‑94; 0498‑94; 0536‑95 (P.E.H.T.)

DECISION OF THE TRIBUNAL, JUNE 29, 1995

1. This interim decision addresses four preliminary matters raised by the parties to the applications:

(a) a motion by the Liquor Control Board of Ontario ("L.C.B.O.") to dismiss Application No. 0494‑94 for failure to provide particulars;

(b) a motion by the L.C.B.O. to dismiss Application No. 0536‑95 for failure to establish a prima facie case;

(c) a motion by Gail R. Wells and Benita Larsen ("the Employees") for the production of documents;

(d) a concern raised by the Employees regarding the conduct of Tribunal counsel and neutrality of the hearing Panel.

(i) The Applications

2. Given the nature of the preliminary issues, the Panel considered it useful to review the history of the applications.

3. In Application No. 0494‑94 (the "494 Application"), the Employees alleged that the L.C.B.O. breached section 9(2) of the Pay Equity Act, R.S.O. 1990, c. P. 7, as amended (the "Act"). The Employees listed a number of allegations as the basis of their claim.

4. Breaking the law and Pay Equity Act.

5. Breach of Memorandum of Settlements (Pay Equity Commission).

6. Inappropriate/no assignments.

7. Change in roles and responsibilities without current notification.

8. Denied promotional opportunities.

9. Work place harassment.

10. Severely curtailed courses, conferences and professional associations.

11. Usual work assignments given to contractors or consultants.

12. Termination without the offer of alternative positions.

13. Breach of Memorandum of Agreement (Pay Equity Hearings Tribunal).

14. Entrapment.

15. Pain and suffering, ruined reputations, low profile assignments negative impact on careers.

16. Low performance appraisals.

17. Red circling.

18. Termination after L.C.B.O. met government reduction targets.

19. In Application No. 0498‑94 (the "498 Application"), the L.C.B.O. complained against the Review Officer's order dated March 30, 1992. The Review Officer found that the L.C.B.O.'s termination of the Employees was in breach of section 9(2) of the Act. The Review Officer also concluded that reinstatement was not a viable remedy in this case and ordered the L.C.B.O. to pay the Employees damages in the form of two months salary per year of service, continuation of all benefits for that period of time and the provision of relocation counseling services.

20. On January 6, 1995, the Employees filed Application No. 0536‑95 (the "536 Application"). In this application they alleged that the L.C.B.O. breached the Memorandum of Agreement (the "Agreement") signed by the parties on February 12, 1992, and requested a remedy for that breach.

21. In its response to the 494 Application, the L.C.B.O. made a number of preliminary requests. They asked that the Employees provide full particulars of the allegations listed in the application, that the Tribunal restrict the hearing to matters considered by the Review Officer, that the Tribunal not deal with the allegations regarding breaches of the February 12, 1992, Agreement and the June 11 and July 6, 1992, Memoranda of Settlement, that the Tribunal restrict the scope of the Applicants' allegations to events occurring after July 6, 1992, and that the Tribunal strike from the record all references to settlement discussions in this matter.

22. In its response to the 536 Application, the L.C.B.O. also set out a number of preliminary matters including a motion to dismiss the application for failure to make out a prima facie case or, in the alternative, for particulars and a restriction on dealing with the allegations that predated the Agreement signed on February 12, 1992.

(ii) The proceedings to date

8. We have had eight days of hearing in this case. All of the hearing time has been devoted to sorting out preliminary matters. The parties also raised many preliminary issues through their considerable correspondence in between the hearing days. A summary of this correspondence is attached as an Appendix to this decision.

9. Prior to the first day of hearing, this correspondence addressed substantive pre‑hearing concerns. The parties requested clarification of the issues and the scope of the evidence as well as the production of documents, particulars and witness statements. The correspondence also addressed a number of procedural concerns. These included time extensions for filing the 498 Application and a response to the 494 Application, a possible conflict of interest between the lawyers representing the L.C.B.O. in these proceedings and the Panel, scheduling conflicts and a request to bifurcate the hearing. In addition, the Employees raised a number of concerns regarding their interaction with the L.C.B.O., such as the delivery of personal mail, which they characterized as evidence of further harassment.

10. The Tribunal arranged a pre‑hearing conference for June 17, 1994, to try to resolve some of the parties pre-hearing -procedural and substantive concerns. A Pre‑Hearing Memorandum of Agreement set out the following:

11. The parties agree that files 0494‑94 and 0498‑94 should be heard together. [This was before the Employees filed the 536 Application.]

12. The employer does not dispute that the Applicants in 0494‑94 have made out a prima facie case that section 9(2) of the Act has been violated. The employer will lead its evidence first.

13. The employer will advise Ms. Wells and Ms. Larsen in writing by July 4, 1994, if it requires additional particulars.

14. The employer will respond in writing to the request for particulars set out in paragraphs 6, 7, 8 and 13 of the Applicants' reply in file 0494‑94 by July 4, 1994.

15. The parties request that the panel deal with the following preliminary motions on the first day of hearing:

(i) the motions set out in paragraphs 2(b), (c), (d) and (e) of the Employer's Response in file 0494‑94

(ii) the motions set out in paragraph B on page 2 of the Applicant's reply in 0494‑94 and in the Applicant's letters to the Registrar of the Tribunal dated May 16, 1994 and May 19, 1994; and

(iii) if necessary, any motions with respect to particulars.

11. At the first day of hearing on September 16, 1994, the Panel considered the preliminary issues. We addressed the following matters in the course of the hearing:

(a) Mr. Johnston advised that he no longer had a scheduling problem and he was available for all the dates set to hear the case.

(b) The Panel questioned the Employees about the basis of their concern regarding the potential conflict of interest between the Panel members and Mr. Johnston. They advised us that they were satisfied that there was no conflict, but they raised this matter out of the utmost of caution.

(c) The Panel ruled that, as the Employees provided no basis for the request to bifurcate the proceedings, we would not depart from the normal process of hearing the evidence on the merits of the case and the remedy together.

(d) The Employees clarified that they were not making a claim under section 7 of the Act and withdrew allegation 1.

(e) The Panel advised that the problems between the Employees and the L.C.B.O. regarding the delivery of personal mail was not a matter that we would deal with, but that we would ensure that the L.C.B.O. had their correct addresses for the purposes of future correspondence.

(f) The L.C.B.O. identified one document it intended to rely on in these proceedings, the "Information Resources Management Study," dated July 20, 1989. Mr. Johnston advised that he would produce the document with an order from the Panel restricting its use to protect the confidentiality of the information contained in the document. The Panel directed the parties to try to work out the confidentiality issue and Mr. Johnston agreed to draft an agreement for the Employees to review.

12. The Panel then focused on the L.C.B.O.'s concern regarding the Employees' particulars. Mr. Johnston advised that the L.C.B.O. was still awaiting further particulars in response to its letter of May 6, 1994. The Employees believed that the L.C.B.O. had made no further request for particulars as stipulated in paragraph 3 in the Pre-Hearing Memorandum. The Panel, however, noted that on June 30, 1994, the L.C.B.O. wrote to the Employees and reminded them that the earlier request for better particulars was still outstanding.

13. In reviewing the Employees' particulars, the Panel found that it was difficult to work through the voluminous chronological listing of events and understand how the events related to the allegations listed in the 494 Application. We explained the necessity of particulars which set out the material facts and actions or omissions supporting each allegation and directed the Employees to reorganize the particulars using the format set out in the L.C.B.O.'s May 6, 1994, letter as a guide.

14. The scope of the 494 Application was analyzed by the Panel in its interim decision released on October 7, 1994. We concluded that, as the Review Officer found that the L.C.B.O. was in breach of the Act and ordered the payment of damages, the issue before the Panel was the Employees' termination and the appropriate remedy. The Panel also reviewed the other alleged violations of section 9(2) listed in the 494 Application and concluded that there were other mechanisms through which the Employees could pursue remedies for those matters.

15. The interim decision then considered the order of proceedings. The Panel noted that the Employees were not satisfied with the remedial damages ordered by the Review Officer and brought the matter to the Tribunal seeking reinstatement. The Review Officer had concluded, however, that reinstatement was not a viable remedy as the employment relationship between the parties had been "irreparably severed." Noting this conclusion, and the Employees' insistence on reinstatement as the only acceptable remedy, the Panel decided that it would be useful to review the remedy question. Therefore, we asked the parties to provide us with oral submissions at the next day of hearing on whether reinstatement was a viable remedy in the circumstances of this case.

16. The Panel met with the parties again on October 26, 27, 28, and November 3, 1994. Prior to these hearing days, there was further correspondence between them giving rise to a number of additional preliminary issues. The Panel considered the following at the beginning of the reconvened hearing:

(a) The L.C.B.O. asked whether we should give notice of these proceedings to other potentially affected employees. The Panel did not address this issue and left it to be dealt with, if necessary, at a later date.

(b) The Employees summonsed the Vice President of Human Resources and requested the production of a list of documents. The L.C.B.O. objected to this summons. The Panel did not rule on this issue and left it to be dealt with, if necessary, at a later date.

(c) The Employees gave notice of their intention to pursue complaints regarding the breach of the Memoranda of Settlement and Agreement.

(d) We discussed a proposed agreement regarding confidentiality and the disclosure of documents. The Panel asked the parties to reach an agreement between themselves on this.

(e) The Employees requested a written decision from the Panel on the conflict of interest issue. The Panel stated that we would not write a decision on this issue as the Employees did not present any basis for this concern.

17. The Panel then heard extensive submissions on reinstatement. After considering the parties submissions, we concluded that, given the nature of the allegations, we could not address the remedy issue without first hearing the merits of the case.

18. In the course of the submissions on the remedy issue, the Employees asked the Panel to order relief by way of interim reinstatement. They relied on recent decisions from the Ontario Labour Relations Board in support of their argument. Mr. Johnston, however, noted that these decisions followed from a recent amendment to the Labour Relations Act which expressly gave that Board the jurisdiction to grant interim relief. He argued that, without express statutory authority, this Panel did not have the jurisdiction to grant a remedy in the form of interim relief. The Panel agreed with Mr. Johnston's analysis of our remedial jurisdiction and refused the Employees' request for interim reinstatement.

19. The Employees forwarded further particulars regarding allegations 3, 4, 5, 7, 8, 9 and 15 on October 17, 1994, in response to the Panel's direction at the September 16, 1994, hearing. They noted that they would be submitting particulars on the other allegations at some future point in time. The L.C.B.O. quickly responded that this revision did not satisfy its request for particulars. In a letter dated October 18, 1994, Mr. Johnston requested answers to the same questions set out in the May 6, 1994, letter pertaining to the allegations the L.C.B.O identified as relevant to the question of the Employees' termination and remedy (allegations 3, 4, 5, 8, 9, 11, 12, and damages).

20. The Panel again reviewed the issue of particulars at the October 28, 1994, hearing. The L.C.B.O. stressed that it could not fully respond to the 494 Application without adequate particulars. Mr. Johnston highlighted the concerns about the information provided and the many references to other documents under a caption of "see also..." or "plus anything...". He argued that the L.C.B.O. should not be required to guess what the case was about. The Employees took the position that they had provided sufficient information and, in any event, the employer knew all the facts.

21. In reviewing the particulars, the Panel also remained concerned about the lengthy and unfocused listing of events provided by the Employees. We emphasized the importance of concise particulars in light of the fact that the L.C.B.O. would lead its evidence first and, therefore, was entitled to know the exact factual basis of the Employees' case. We also shared Mr. Johnston's concern regarding the references in the particulars to other documents and noted that the Employees' belief that the L.C.B.O. knew about the event in issue was not a sufficient response. The Panel requested that the Employees provide better particulars using the L.C.B.O.'s list of questions in the October 18, 1994, letter (which was an update of the May 6 letter) as a guide. To further clarify our expectations, the Panel went through the letter in some detail with the parties at the hearing. The Employees agreed to respond within two weeks.

22. On November 10 and 11, 1994, the Employees forwarded a revised list of particulars. Mr. Johnston responded on November 17, 1994, noting in detail under each allegation where the response was sufficient and where the L.C.B.O. needed further clarification. He also reiterated the L.C.B.O.'s position that allegations 1, 2, 6, 10 and 13 were not relevant to the issues before the Panel. There was no reference to allegations 14 and 15.

23. The Employees set out further particulars in letters dated November 30, 1994, and January 5, 1995. In the November 30, 1994, list of particulars, they took the position that they intended to rely on allegation 6 (workplace harassment) and 13 (low performance evaluations) and that the particulars regarding allegations 14 and 15 were complete. They refused to provide further particulars regarding damages stating that "additional information with respect to actual monetary losses and obligation to mitigate any monetary losses are not part of the particulars".

24. On December 1, 1994, the Employees requested a further pre‑hearing meeting to finalize the particulars and other outstanding preliminary matters. On December 14, 1994, the L.C.B.O. requested a hearing date to present a motion to dismiss the 494 Application for failure to particularize the allegations.

25. The Panel met with the parties on January 11, 1995, to consider these matters. We heard submissions on the motion to dismiss the 494 Application. We also heard submissions from the Employees about the lack of response from the Tribunal to their December 1 request for a pre‑hearing and a request to consolidate the hearing of the 536 Application with the 494 and 498 Applications.

26. Before reaching a decision on the motion to dismiss, the Panel felt it might be useful to provide the parties with another opportunity to meet informally with a Vice‑Chair to try to resolve the matters. The parties accepted this suggestion and met on February 28, 1995. The Panel was advised, however, that after a full day of meeting, the parties were unable to reach any further resolution of the case.

27. The hearing reconvened on March 6, 1995. At the outset of the hearing, the Employees asked us to address their concern about the conduct of Tribunal counsel. They referred us to their letter of January 16, 1995, to the Tribunal Registrar which read as follows:

We have been concerned for some time with the lack of neutrality of our case lawyer. Our concerns are becoming more apparent as shown in the following incident.

On December 1, 1994, we wrote a letter to PEHT requesting a Pre‑Hearing. On December 14, 1994, the L.C.B.O. wrote a letter requesting a Hearing. Our request was ignored; the L.C.B.O. request was fulfilled promptly.

In light of our concerns, we formally request that the PEHT assign our case to a lawyer other than [Tribunal counsel]; preferably to a lawyer with an established reputation of neutrality and impartiality. Please notify us in writing if there are any difficulties in meeting our request. Please notify us in writing of the name of the lawyer to whom our case will be assigned.

28. Mr. Johnston replied to this concern in a letter dated January 23, 1995, in which he outlined his understanding of the role of Tribunal counsel. Mr. Johnston argued that the Employees did not "identify any example of alleged inappropriate behavior which could cause a reasonable person to raise an issue concerning neutrality or impartiality".

29. The Tribunal Registrar replied to the Employees letter on February 2, 1995. He advised the Employees that Tribunal counsel was not assigned to a specific case and that the concerns about the conduct of Tribunal counsel did not raise the issue of impartiality.

30. During the course of this discussion, the Employees also referred to a letter they wrote to the Chair of the Tribunal on February 14, 1995, on this subject. The Panel stated that, while we had received the January 16 letter, we had no knowledge of the February 14 letter. The Employees then expressed a concern about their letters not being forwarded to the Panel. The Panel decided to take a break to inquire about the letter. We were advised that the Tribunal Registrar decided not to forward the February 14 letter to the Panel because it was marked confidential. However, as the Employees questioned why the Panel did not receive the letter at the hearing, the Registrar provided the Panel with a copy.

31. The Panel reviewed the February 14, 1995, letter the Employees sent to the Tribunal Chair. In doing so we discovered that, not only did the Employees have concerns about the conduct of Tribunal counsel, they also had concerns about the Panel's handling of the case. The letter in part set out the following:

We are concerned that our case is not being handled in a neutral manner. ...

A: Our letters and requests are being ignored. Our letters go missing for days and are not always received by the Panel in a timely manner. We are hounded to respond to the LCBO's, requests. Our requests are ignored or set aside.

B: We are being accused of wasting the Panel's and LCBO's time and money because we do not have a lawyer. The Panel has been led to believe that we are using the Panel for legal advice. The Panel has been led to believe that we are vexatious.

C: We believe that the Panel has been ‘primed’. The Panel does not always listen to us; they do listen thoroughly and completely to the LCBO. The Panel responds to our statements with objections we would expect to hear from the LCBO; not from a neutral Panel. In comparison, the Ontario Public Service Board Grievance Panel was neutral to a point where the difference was very evident.

32. When questioned by the Panel about these allegations, the Employees initially stated that they were satisfied with the way the Panel handled the case, but then went on to say that they did perceive that we paid more attention to the L.C.B.O.'s arguments and motions than we did to theirs. They referred to the lack of response to the request for a pre‑hearing meeting in their December 1, 1994, letter and the immediate response to the L.C.B.O.'s request for a hearing date in its December 14, 1994, letter as an example of this preferential treatment.

33. The Panel was very concerned to discover these allegations regarding the integrity of the hearing process and the Tribunal's procedures. We decided it was necessary to hear submissions from the parties on how we should proceed in light of these serious allegations. We met again on March 10, 1995, and heard submissions from the parties on the conduct of Tribunal counsel and the Panel's handling of the case.

34. The Employees took the position that their concerns about the hearing process were misinterpreted. They stated that they had full confidence in the Panel and that the only remedy they were seeking was better communication. Mr. Johnston submitted that the Panel should continue to hear the case. He argued that there was no basis for the allegations regarding the neutrality of Tribunal counsel. Mr. Johnston then reviewed the rulings in this case and noted that, on balance, the Panel more often found in favour of the Employees than the L.C.B.O. and that the Panel responded to the parties' requests in an even‑handed manner.

35. The Panel also heard submissions on the L.C.B.O.'s motion to dismiss the 536 Application at the March 10, 1995, hearing.

(iii) DECISION ON MOTION TO DISMISS THE 494 APPLICATION FOR FAILURE TO PROVIDE PARTICULARS

36. The Panel reviewed the particulars in the 494 Application. The initial particulars consisted of 120 pages of a detailed chronology of events between 1989 and 1993. Some of the chronology was repetitious. More importantly, however, there was no indication of how the information related to the 15 allegations set out in the application.

37. The L.C.B.O. acknowledged that the Employees had a prima facie case regarding the violation of section 9(2) in the 494 Application. It also agreed to lead its evidence first. In order to prepare its case, the L.C.B.O. has repeatedly asked the Employees for concise particulars. The first request was in a letter attached to the response to the 494 Application on May 6, 1994. It set out a series of questions under the heading of each allegation which asked the Employees to outline what events occurred, how the events came about and who was responsible for the events.

38. As noted in the outline of the history of the case, the adequacy of the Employees' particulars was considered by the Panel for part, if not all, of three hearing days. The particulars were also addressed in the pre‑hearing Memorandum of Agreement and the parties have exchanged considerable correspondence on the subject since the inception of the case.

39. On the motion to dismiss the 494 Application, Mr. Johnston accepted that the L.C.B.O. had sufficient particulars regarding all of the allegations it considered relevant to the issue before the Panel with the exception of allegations 3, 5, 12 and damages. Mr. Johnston reviewed with the Panel some of the problems the L.C.B.O. faced in trying to piece together the information provided regarding these allegations. He noted, for example, that under allegation 3, "Inappropriate/no assignment," the Employees listed 35 assignments in the January 5, 1995, letter, but for most of them they did not indicate who gave out the assignments or in what way the assignments were inappropriate. Further, under allegation 5, "Denied promotional opportunities," Mr. Johnston noted that the Employees listed these opportunities in the November 30, 1994, letter, but did not indicate whether they applied for the positions or how they were denied the opportunities. Nor did they indicate what acting positions or secondments they were denied. Regarding allegation 12, "Pain and suffering," Mr. Johnston noted that, other than references to ruined reputations, slander and low profile assignments, the Employees provided very little information to indicate the basis for these allegations. Finally, he argued that the Employees provided no particulars to support the claim for damages, nor have they provided any information about their efforts to mitigate their losses.

40. The Employees responded to Mr. Johnston's submissions by stating that they did the best they could to meet the requirements for production of particulars. To that end, they noted that they even requested another pre‑hearing meeting to assist both parties in finalizing the particulars. As they were not given that opportunity, they forwarded further particulars on January 5, 1995, which were, in their view, a complete response to the L.C.B.O.'s request. Finally, the Employees argued that they did not have to provide particulars regarding damages as they were not making a claim for damages at this point in the hearing.

41. In considering the question of the adequacy of particulars, the Panel referred to the Tribunal's decision in the Township of Belmont (1994) 5 P.E.R. 5 which also involved a section 9(2) complaint. After commenting on the effect of section 25(7) (which puts the onus of the burden of proof on the party alleged to have contravened section 9(2)), the Panel concluded that, given this shift in the burden of proof, the preferable hearing procedure was for the respondent to lead all of its evidence first. It then referred to the need for particulars and noted the Tribunal's Rules of Practice 1.02(b) which requires "... a clear and concise statement of the facts and events upon which the Applicant relies...". The Panel stated that this rule, which is designed to ensure that the respondent knows what facts and events the applicant relies on, was especially important where there was a reverse onus and the respondent was expected to lead its evidence first. In this context, the Panel also referred to, and adopted as a good guideline for particulars, Practice Note No. 1 of the Ontario Labour Relations Board which provides that, where improper conduct is alleged, the applicant is obliged to provide detailed particulars including ".... a concise statement of the material facts, actions and omissions upon which he intends to rely, ... including the time when and place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them..."

42. Following the Township of Belmont case, the Tribunal's procedure in a section 9(2) application is clear. In the context of this case, however, the Panel was sensitive to the fact that the Employees, having chosen to pursue their application at the Tribunal without a representative, were not as familiar as Mr. Johnston with the Tribunal's procedural requirements. Therefore, we devoted a considerable amount of time to explain what was expected of them by way of particulars. To illustrate our expectations, we reviewed the L.C.B.O.'s request for particulars and their response in great detail on a number of occasions and provided them with many opportunities to revise the particulars accordingly.

43. In taking this time to go over the particulars, the Panel was also sensitive of the fact that it required that the L.C.B.O. spend additional time in the preparation of its case. As the proceedings at the Tribunal are adversarial in nature, each party is expected to appear at the hearings fully prepared to present its best case. There is no requirement that one party accommodate the opposing party in setting out its case. Nor, is the Panel, as a neutral decision maker, in a position to assist the parties. Nonetheless, in this case both Mr. Johnston and the Panel did try to help familiarize the Employees with the nature of particulars.

44. The Panel considered all of these factors in reviewing the L.C.B.O.'s motion to dismiss the 494 Application for the failure to provide particulars. We were satisfied that we provided the Employees with ample opportunity to set out the particulars in support of their case. We noted, however, that even after filing what they characterized as a complete response to the L.C.B.O.'s request for particulars, the Employees still had to explain to us the connection between some of the particulars and the allegations in the application. Therefore, even if we accept that the Employees listed all the material facts upon which they intend to rely, there remained many instances where the particulars failed to specify in what way they supported the allegations. These deficiencies left both the Panel and the L.C.B.O. guessing as to what use the Employees planned to make of the information. Therefore, we conclude that the particulars are not sufficient or complete.

45. In addition to the sufficiency of the particulars, the Panel was also very concerned about the manner in which the Employees presented the information. There was no single document that contained all the particulars. They were set out in a series of documents, each a revision of the last, and each referring to other documents. As a result, there was no one place to find all the information pertaining to each allegation.

46. That being said, however, we did not find that these difficulties with the particulars (which have caused considerable confusion and delay) were of such a degree that they left the L.C.B.O. unable to respond to the 494 Application. Indeed, Mr. Johnston admitted that he was satisfied with the particulars regarding most of the allegations the L.C.B.O. considered relevant to the issue of the Employees' termination. Therefore, we concluded that there was insufficient basis for dismissing the 494 Application for failure to provide sufficient particulars.

47. The L.C.B.O. requested, in the alternative to the motion to dismiss, that the Panel order further particulars regarding allegations 3(c),(d), 5(b),(c),(e), 12 (a) through (g) and damages. In reviewing this request, the Panel agreed that the particulars provided to support allegation 3 (inappropriate job assignments), allegation 5 (denied promotional opportunities) and allegation 12 (a) through (g) (pain and suffering and ruined reputations) were incomplete. The Employees have had many opportunities to provide the appropriate particulars in support of these allegations and have failed to do so. Therefore, we have decided to strike allegations 3, 5 and that part of 12 dealing with pain and suffering, ruined reputations and slander from the 494 Application. Although Mr. Johnston indicated that he was satisfied with some parts of the particulars under allegations 3 and 5, in our view, without the necessary information indicating how the assignments were inappropriate and how they were denied the promotional opportunities, the existing particulars do not set out a sufficient basis to support any part of those allegations.

48. The Panel is also of the view that the question of the appropriate remedy is properly before the Panel and the L.C.B.O. is entitled to particulars from the Employees regarding damages and mitigation of losses.

(iv) DECISION ON THE MOTION TO DISMISS THE 536 APPLICATION

49. In the 536 Application, the Employees requested a remedy for the alleged breach of the Agreement they signed with the L.C.B.O. on February 12, 1992. The Employees asked the Tribunal to order the L.C.B.O. to comply with the Agreement (including reinstatement and back pay) and to pay damages in the form of six months salary.

50. Mr. Johnston argued that the Employees failed to make out a prima facie case in the 536 Application. In support of this argument, he set out the history of events that lead to the signing of the Agreement at the Tribunal. According to Mr. Johnston, the L.C.B.O. used a pay equity questionnaire completed by the staff in April 1989 as the basis for its pay equity plan for management employees. The questionnaire was designed to capture the job duties at that time period. The Business System Analyst IV ("BSA IV"), the position held by the Employees, was placed in pay grade 8. The BSA IV's asked Review Services to re-evaluate their classification. The Review Officer decided that the proper pay grade for the BSA IV position, based on the 1989 job evaluation, was at level 9. Both the Employees and the L.C.B.O. appealed the Review Officer's order to the Tribunal. At a pre‑hearing conference, the parties agreed to settle all outstanding differences between them and signed an Agreement on February 12, 1992. The Agreement stipulated that the BSA IV position would be re‑evaluated. This re‑evaluation confirmed the Review Officer's order that the BSA IV was properly a pay grade 9 position. The L.C.B.O. paid the BSA IV employees a retroactive increase.

51. The Employees alleged that the L.C.B.O. breached sections 11, 12 and 13 of the Agreement. Those sections read as follows:

52. All parties agree to be bound by the results arrived at by the Evaluator. None of the parties will have any recourse to the Pay Equity Commission or the Pay Equity Hearings Tribunal with respect to those matters in Tribunal Files 223‑91, 225‑91 and 237‑91. All parties will co‑operate in implementing the Evaluator's results.

53. The L.C.B.O. understands that the Pay Equity Act requires that it both establish and maintain pay equity. The L.C.B.O. also understands that the Act prohibits it from taking reprisal action against employees for the reasons set out in section 9 of the Act.

54. In the event that the BSA IV or the Manager, Payroll job classes are reclassified or red‑circled in the future, the L.C.B.O. will provide to the employees concerned a written explanation of its reasons for the reclassification or re‑circling. The L.C.B.O. will provide to the incumbents in the BSA IV job class with a written explanation of the 1991 re‑evaluation. Further, the L.C.B.O. agrees that the BSA IV and Manager, Payroll job classes will not be re-circled or reclassified before December 31, 1992 and any red-circling which occurs will use as its base the Grade which the Evaluator finds to be appropriate to the female job classes.

55. The Employees told the Panel that, immediately after the Review Officer ordered a change in the pay level for the BSA IV position, the L.C.B.O. rewrote their job description at a pay grade 8 level and did not notify the incumbents of the change until the pre‑hearing discussions at the Tribunal. The Employees argued that, by not revoking or revising the 1991 job description after receiving the evaluator's results, the L.C.B.O. breached the Agreement. Further, the Employees argued that the L.C.B.O. breached the Agreement by red circling their positions in January 1993. They submitted that, even if the L.C.B.O. technically complied with the terms of the Agreement in a temporary, partial and monetary sense, it did not implement the spirit of the Agreement.

56. The Panel accepts that the Employees' expectations were not met by the L.C.B.O.'s implementation of the Agreement. They received a retroactive pay increase, but their job was changed and red‑circled. In our view, however, there appears to be nothing in the Agreement that prevented the L.C.B.O. from taking these steps. It is clear that the Agreement expressly addressed concerns regarding reclassification, red‑circling and pay equity. The fact that the Employees had different expectations about what they bargained for does not amount to a finding that the L.C.B.O. was in breach of the Agreement. The Employees themselves acknowledged this fact when they admitted at the hearing that they would have a hard time making their case if the breach of the Agreement was their only complaint. The Panel concludes, therefore, that the Employees failed to make out a prima facie case in support of the 536 Application and we dismiss the 536 Application.

57. In reaching this conclusion, however, we understand that the Employees believe that the conduct of the L.C.B.O. regarding their job classification was just one more example of its anti‑pay equity animus which culminated in their termination. As the issue of whether their termination was in breach of the Act is before the Panel in the 494 Application, the L.C.B.O.'s handling of the BSA IV classification may be relevant to that issue.

(v) PRODUCTION OF DOCUMENTS

55. The Employees requested production of many L.C.B.O. documents. The L.C.B.O. identified one document upon which it intended to rely, the "Information Resources Management Study" dated July 20, 1989. It was prepared to release the document, but was concerned about retaining the confidentiality of the information contained in the document.

56. The parties submitted drafts of agreements concerning the disclosure and use of documents in the proceeding. The drafts contain essentially the same wording and appear appropriate to the Panel in the circumstances of this case. Therefore, the Panel orders the L.C.B.O. to produce the "Information Resources Management Study" dated July 20, 1989, and all other arguably relevant documents. We further order that the production of all documents in the proceedings be subject to the following terms:

(a) Any document provided to either party shall be used for the purpose of the conduct of these proceedings only;

(b) Every person who receives a protected document during disclosure agrees to be bound by this agreement, even if he or she ceases to be associated with the proceedings;

(c) Unless permission is granted, no witness or potential witness shall retain custody of the documents;

(d) The parties shall keep an inventory of all copies of the documents;

(e) No person shall divulge the contents of any documents to any other person nor copy nor replicate the documents in any manner outside of the proceedings in these matters;

(f) An alleged breach of this order will be dealt with in the same manner as other alleged breaches of Tribunal decisions and orders.

57. There has been no discussion before the Panel regarding the relevancy of the other documents requested by the Employees in the course of the hearing. If they request a document that the L.C.B.O. is unwilling to produce, the Panel will address the question of the relevance of the document to the proceedings and rule accordingly.

(vi) NEUTRALITY OF TRIBUNAL COUNSEL AND THE PANEL

58. The Panel reviewed the Employees' allegations regarding the conduct of Tribunal Counsel. We note that the role of Tribunal counsel is to provide legal assistance to the hearing panels. Tribunal counsel is not assigned to a case and plays no role in the adjudicative process. Nor is it Tribunal counsel's job to assist the parties with their case.

59. Tribunal counsel has had very little involvement in this case. The only contact he had with the parties was when, in the absence of the Registrar, the Panel asked him to phone the parties to advise them of the timing of the release of the interim decision. Tribunal counsel did not handle the December 1, 1994, letter in which the Employees requested a pre-hearing meeting. The letter was received by the Tribunal Registrar, as is all correspondence sent to the Tribunal regarding an application, but unfortunately was not responded to in an expeditious fashion due to a change in staff. The Registrar spoke to the Employees about this and, while we agree that this should not happen in the normal course of events, the fault cannot be attributed to Tribunal counsel. In our view, therefore, there is nothing in the history of the case to suggest that Tribunal counsel acted in any way that could be characterized as improper.

60. The allegations against the Panel seemed to reflect a similar lack of familiarity with the process. The Panel is a neutral decision maker. It is not our role to assist the parties in the presentation of their case. The fact that the Employees chose to present their case without a representative, however, does put a special onus on the Panel to ensure that the hearing process and Panel's expectations are clear and understood by all. The Panel has gone to some lengths to be accessible to the Employees, to answer all inquiries and to explain each step of the process. However, the Employees appeared to feel that the assistance from the Panel showed a lack of neutrality. If we questioned the Employees closely on some issues, it was only in an effort to understand their position as fully as possible. It is also common in the course of a hearing to deal with matters somewhat informally and without the necessity of rulings when the parties are in agreement on the way to proceed. In these informal discussions, the Panel may have raised concerns about the issues, but, in our view, such comments were necessary to achieve a fair hearing since an element of fairness is not to prolong the hearing unduly prolonged by peripheral or minor issues and give the parties an opportunity to respond to the Panel's concerns about the case.

61. Of course it is not surprising that Mr. Johnston is more experienced at presenting the L.C.B.O.'s case. He has undergone years of training to be able to provide that very service to his client. Indeed, it is precisely this experience as an advocate that the L.C.B.O. pays for to help win the case. The Employees too had the opportunity to retain a professional advocate to present their case. They chose otherwise and as a result have had to work very hard to learn the process and present their case at the same time. We appreciate that that is not an easy task.

62. In conclusion, therefore, having examined the Employees' concerns about Tribunal counsel and the conduct of the Panel, we find that there is no basis for their apprehension that they are not being dealt with fairly. Nonetheless, we believe the discussion regarding these concerns has been useful in clarifying the roles of the players in the hearing process and the rules by which we expect the parties to conduct their case.

63. One final matter on this point, the Employees raised a concern about the release, without their consent, of the confidential letter they sent to the Chair of the Tribunal. However, faced with an allegation regarding the conduct of the proceedings, the Panel was entitled to seek out the factual information relevant to the issue. And, the Employees, having raised the letter in the context of the hearing, waived any claim to confidentiality. Furthermore, in the course of conducting a legal proceeding before the Tribunal, it is unlikely that in any circumstance correspondence between the parties and the Tribunal will be considered confidential. It may not be necessary for the Panel to be copied on every letter sent by the parties to the Tribunal (for example scheduling matters that are handled by the Tribunal Registrar), however, the Panel hearing the case is acting for the Tribunal and, therefore, any correspondence addressed to the Tribunal regarding the conduct of the case is necessarily a part of the matter before the Panel.

(vii) A SUMMARY OF THE PANEL'S RULINGS

64. The Panel denies the L.C.B.O.'s motion to dismiss the 494 Application for failure to provide particulars. We conclude, however, that allegation 3, 5 and part of 12 ought to be struck from the 494 Application for failure to particularize those allegations. We order that the Employees provide the L.C.B.O. with particulars in support of their claim for damages and mitigation of their losses.

65. The Panel orders that the L.C.B.O. produce the "Information Resource Management Study" dated July 20, 1989, and all other arguably relevant documents. We further order that all production of documents be subject to the terms set out in paragraph 56 of this decision.

66. We grant the L.C.B.O.'s motion to dismiss the 536 Application for failure to establish a prima facie case.

67. We conclude that there is no basis for the Employees' allegations regarding improper conduct by Tribunal counsel and the neutrality of the hearing panel.

APPENDIX

1. In a letter dated April 13, 1994, the L.C.B.O. requested a time extension to May 6, 1994, to respond to the 494 Application. The Employees objected to granting the L.C.B.O. an extension to respond to the Application on the basis that the L.C.B.O. was aware of the situation for three years and all the information had been previously submitted. The Tribunal granted the time extension. The L.C.B.O. filed the 498 Application and its response to the 494 Application on May 6, 1994.

2. Along with the response to the 494 Application, Mr. Mombourquette, the solicitor for the L.C.B.O., sent a letter to the Tribunal setting out a detailed request for particulars of the 15 allegations in the 494 Application.

3. In a letter dated May 9, 1994, the Employees asked the Tribunal to deny acknowledgment of the 498 Application. They stated that the letter from the L.C.B.O. dated April 13, 1994, noting its intention to submit an application, did not constitute a request for an extension to submit it beyond the 30 days from the Review Officer's decision. In response, Mr. Mombourquette wrote a letter dated May 16, 1994, noting that neither the Act nor the Tribunal's Rules of Practice set out a 30 day time limit for filing an application for hearing of a Review Officer's decision. However, in light of the Employees' objection to the filing of the 498 Application, Mr. Mombourquette requested a pre‑hearing conference.

4. The Employees filed a response to the 498 Application dated May 17, 1994, noting in a covering letter that it was without prejudice to their request to have the Tribunal declare the 498 Application invalid.

5. A Pre‑Hearing Conference was set for June 17, 1994. Prior to the Conference, the Employees wrote to the Tribunal regarding a letter from Mr. Mombourquette to Ms. Well dated May 16, 1994, about a matter involving the delivery of personal mail. The Employees characterized the May 16, 1994, letter as further evidence of harassment by the L.C.B.O. and asked the Tribunal to order the L.C.B.O. to forward their mail to their home addresses.

6. A letter dated June 27, 1994, from the Employees to the Tribunal Registrar raised the question of a possible conflict of interest between Mr. Mombourquette and members of the panel selected to hear the application. In a letter dated July 4, 1994, Mr. Mombourquette stated that he was not aware of any conflict of interest, but that it was impossible to assess the validity of the allegation without the particulars of the alleged conflict. In a letter dated July 8, 1994, the Employees outlined the history of their concern and concluded that they were satisfied that there was no conflict between Mr. Mombourquette and members of the panel.

7. In a letter dated June 30, 1994, the L.C.B.O. responded to the request set out in paragraph 4 of the Pre‑hearing Memorandum. The letter advised the following: the only study the L.C.B.O. intended to rely on at the hearing of the matter was entitled "Information Resource Management Study"; the L.C.B.O. was considering the request for a list of IT Division staff hiring and should be able to provide some information prior to the first day of hearing in September; the L.C.B.O. was not prepared to produce detailed information about courses attended by other employees until the Tribunal ruled on whether that information was relevant to the issues in the case; four non‑union positions were identified as surplus in March, 1 Systems Consultant and 3 Business Systems Analysts; the L.C.B.O. was not prepared to provide the names of the five bargaining unit positions, but would consider the request at the commencement of the hearing. Further, the letter stated that, pursuant to paragraph 3 of the Pre‑Hearing Memorandum, the L.C.B.O. continued to insist that the Employees comply with the request for particular set out in the May 6, 1994, letter.

8. In a letter dated July 8, 1994, to Mr. Mombourquette, the Employees requested a copy of the study the L.C.B.O. intended to reply upon prior to the first day of hearing.

9. A letter dated July 4, 1994, from the Employees to the Tribunal commented on the Pre‑Hearing Memorandum of Agreement and that the Tribunal has the power to order reinstatement and that the issue of the employer/employee relationship was not relevant.

10. A letter dated July 30, 1994, from the Employees to Mr. Mombourquette requested the production of all documents upon which the L.C.B.O. intended to rely and a list of witnesses, the order of their appearance and a summary of what each witness will say.

11. A letter dated July 31, 1994 from the Employees to Mr. Mombourquette requested that the L.C.B.O. support the suggestion that the hearing be divided into two parts: breach of the Act; and remedy for breach of the Act. The L.C.B.O. did not support this request. This is set out in a letter dated August 23, 1994, to Ms. Wells from Vincent Johnston, the lawyer retained by the L.C.B.O. to act on its behalf.

12. A letter dated August 12, 1994, from the Employees to the Tribunal Registrar noted that the L.C.B.O. had retained Mr. Johnston and that he might have scheduling conflicts with some of the dates set for hearing of the case. They requested that, as the L.C.B.O. had previously agreed to the dates, they not be changed. The letter also noted that the Employees did not accept any delays concerning the request for particulars and witness information set out in their letters of July 8 and 30, 1994, and that that information was to be provided by August 15, 1994. A further letter of the same date from the Employees to Mr. Johnston requested notification of whether he had a conflict of interest with members of the panel.

13. In a letter dated August 23, 1994, to the Employees, Mr. Johnston stated that he was not aware of any conflict of interest with members of the Panel. In another letter of that date, Mr. Johnston advised the Employees that he had resolved his scheduling conflicts for all except one day and asked for their consent to an adjournment of that day and the scheduling of another day.

14. On August 16, 1994, the Employees wrote to the Tribunal Registrar regarding their requests set out in the letter to Mr. Mombourquette dated July 8 for the production of the documents and witness information and asked the Tribunal to order that this information be produced before August 24, 1994.

15. On August 23, 1994, Mr. Johnston responded to the Employees' request for production of documents and witness information noting that the L.C.B.O. had identified the one document upon which it intended to rely, but that there was no obligation to provide a copy of the document prior to the hearing and that the L.C.B.O. would only release a copy on order of the Tribunal with conditions. Regarding witness information, Mr. Johnston stated that he was unaware of any cases from the Tribunal that supported the request and, at any rate, given the number of preliminary matters to be dealt with at the first day of hearing which might narrow the scope of the evidence and testimony, it was premature to provide witness information. Mr. Johnston also noted that the Employees failed to respond to Mr. Mombourquette's letter of May 16, 1994, (the Panel assumes that this should read May 6, 1994) in which he requested the production of particulars of the allegations and that their response to the request could have an impact on the witnesses the L.C.B.O. intended to call.

16. There were a number of letters from the Employees dated August 26, 1994, addressed to Mr. Johnston: one letter asked that all correspondence be sent to both Ms. Wells and Ms. Larsen; one letter requested that the L.C.B.O. reconsider its position regarding the splitting of the hearing into the merits of the case and the remedy and that, if there was no consent to this process, they would raise it as a preliminary matter at the first day of hearing; one letter stated that the Employees did not consent to a change in the hearing date; one letter contained a further request for production of documents; and, a letter confirming Mr. Johnston's letter that he had no conflict of interest with members of the Panel.

17. A Summons to Witness dated October 14, 1994, was served on Murray Kane, Vice President, Human Resources, requesting the production of all L.C.B.O. job postings, resignations and terminations since January 1, 1993, and all resumes and job applications of successful L.C.B.O. candidates since September 1, 1993. In addition, on October 17, 1994, the Employees sent a letter to Murray Kane noting that they intended to request an investigation of the allegation that the employer breached the Memoranda of Settlement and Memorandum of Agreement. The letter also requested a copy of a document noted in Appendix 3 of the L.C.B.O. response to the 494 Application.

18. A letter dated October 18, 1994, from Mr. Johnston noted that he received a copy of a Summons to Witness served on Murray Kane on October 14, 1994, and that it was his intention to challenge the summons at the next day of hearing. In a second letter of the same date, Mr. Johnston enclosed a copy of an agreement for disclosure of documents for the employees' review and comment. In a third letter of the same date, Mr. Johnston provided a revised request for particulars.

19. A letter dated October 17, 1994, from the Employees to the Tribunal Registrar contained a re‑sequencing of the evidence by allegation in response to the May 6, 1994, letter from the L.C.B.O. pertaining to reinstatement. This list set out particulars relating to allegations 3, 4, 5, 7, 8, 9 and 15 from the original information contained in the 494 Application.

20. In a letter dated October 20, 1994, Mr. Johnston notified the Employees that the revised list of particulars attached to their letter of October 17, 1994, did not satisfy the employer's request for particulars. Mr. Johnston noted that the Panel specifically directed the Employees to organize the particulars in response to the questions set out in Mr. Mombourquette's letter of May 6, 1994, and that they failed to do so. He further advised in this letter that the L.C.B.O. would not release any documents without first having agreement on document disclosure.

21. In a letter dated October 18, 1994, the Employees again raised the question of conflict of interest. They noted that the parties had agreed to proceed with the current Panel and L.C.B.O. lawyer based on the knowledge currently available. However, they requested that that decision be documented by the Panel in the next decision/order.

22. A letter dated November 9, 1994, from the Employees to Murray Kane requested the production of: annual reports and audited financial statements 1991‑93 which bear directly or indirectly on the termination of the Employees; L.C.B.O. organization charts from 1990‑1993; notes, studies, reports, minutes, memoranda, correspondence and any other documents relating to the decision to terminate the Employees; notes or documents relating to the implementation of the termination of the Employees and to any changes in responsibilities, job duties, work assignments of any other employees following or as a result of the termination; documents relating to the organization and staffing of the L.C.B.O. head office; existing or revised job descriptions and summaries of duties and responsibilities from 1990 to date for all position categories in the IT division; all notes, studies, reports, minutes, memoranda and correspondence and any other documents from 1990 to date relating to the analysis, evaluation, planning or implementation of the job descriptions in the IT division; the budgets for the IT division for 1991‑93 and all studies, reports, minutes, memoranda and correspondence and documents containing financial plans and projected budgets; and, any contract, draft contract, tender, bid, requisition, invoice, account, memoranda, note and correspondence and other documents respecting contractors and consultants. The employees attached to this request some revised pages relating to the 494 Application.

23. A letter dated November 9, 1994, from the Employees to Mr. Johnston addressed four issues: scope; production of documents; witness information; and, agreement on disclosure of documents. Regarding the production of documents and witness information, the letter asked that the L.C.B.O. provide the information requested in the July 8, July 30, August 16, October 17 and November 9, 1994, letters. Regarding the agreement for disclosure, the Employees asked the L.C.B.O. to clarify the relevance of the "Information Resource Management Study" and identify the confidential information in the document.

24. A letter dated November 10, 1994, from the Employees to Mr. Johnston contained revised particulars in response to the May 6, 1994, L.C.B.O. letter. This letter replaced the response of October 17, 1994. The letter asked Mr. Johnston to review the particulars and advise on whether they were sufficient to proceed or whether he required further information.

25. A letter dated November 11, 1994, from the Employees to Mr. Johnston with corrections to the November 10 particulars.

26. A letter dated November 17, 1994, from Mr. Johnston to the Employees responding to their letters of November 9, 10 and 11. First, Mr. Johnston questioned the purpose of stating their view as to the scope of the proceedings and stated that, if it was their intention to deal with matters beyond the ruling in the interim decision, the L.C.B.O. would request a hearing date prior to the next date scheduled for hearing in March 1985. Second, Mr. Johnston advised that the L.C.B.O. would not provide witness information. Third, regarding the proposed agreement on disclosure of documents, Mr. Johnston stated that a number of the documents requested by the Employees contained confidential information and he asked that they review the proposed agreement. He stated that, failing an agreement, it would be necessary to obtain an order from the Panel. Mr. Johnston noted that such an order may be necessary in any event, as the information requested might be subject to the Freedom of Information Act under which the information could not be disclosed without permission of the individuals referred to in the documents or under order of the Tribunal. Finally, Mr. Johnston took the position that the information requested from Mr. Kane was a fishing expedition and that the L.C.B.O. would object to the production of the documents. On the issue of particulars, Mr. Johnston provided a detailed response to the November 10 and 11 particulars noting under each allegation which response was sufficient and where the LCBO needed further clarification. Mr. Johnston advised that, failing a satisfactory response to this further request for particulars, he would request a hearing prior to March 1995. He also advised that, if the information was insufficient, he would ask the Tribunal to dismiss the application for failure to particularize the allegations.

27. A letter dated November 30, 1994, from the Employees to Mr. Johnston addressed the points set out in the November 9 letter and Mr. Johnston's response in the November 17 letter and further particulars were provided.

28. A letter dated December 1, 1994, from the Employees to the Tribunal Registrar addressed Mr. Johnston's statement about a possible motion to dismiss the application for failure to particularize. The Employees requested the assistance of a pre‑hearing in finalizing the particulars and other outstanding preliminary issues.

29. A letter dated December 14, 1994, from Mr. Johnston to the Employees acknowledged receipt of a letter dated November 20 (the Panel assumes this should read November 30) and December 1, 1994. This letter essentially repeated the statements regarding production of documents and further request for particulars set out in the letter of November 17, 1994. Mr. Johnston asked for a hearing date to address these issues.

30. A letter dated January 5, 1995, from the Employees with an attached proposed agreement for disclosure of documents and further particulars.

31. Letters from both parties dated January 4 and 6, 1995, clarified the issue agenda for the January 11, 1995, hearing.

32. A letter dated January 16, 1995, from the Employees to the Tribunal Registrar addressed the December 1, 1994, request for a pre‑hearing and outlined issues regarding particulars.

33. A letter dated January 16, 1995, from the Employees to the Tribunal Registrar expressed a concern about the "lack of neutrality of our case lawyer" and a request that the Tribunal assign the case to another lawyer.

34. A letter dated January 23, 1995, from Mr. Johnston to the Tribunal Registrar responded to the Employees comments about Tribunal Counsel and requested that the comments regarding particulars in the letter, which Mr. Johnston characterized as "post‑hearing submissions with respect to the LCBO motion to dismiss the application," not be taken into account by the panel in making its decision on that motion.

35. On February 2, 1995, the Tribunal Registrar responded to the Employees' concern regarding Tribunal counsel.

36. A letter dated January 27, 1995, from the Employees to Mr. Johnston requested a response to the proposed agreement for disclosure of documents attached to their letter of January 5, 1995.

37. Letters dated January 30 and February 1, 1995, between the parties addressed the Employees' direct contact with persons at the L.C.B.O. rather than Mr. Johnston about production of documents.

38. On January 27, 1995, the Employees wrote to the Tribunal Registrar to follow up on a telephone conversation regarding acknowledgment of the receipt of the 536 Application, to enquire whether it would be combined with the earlier applications and to ask for a response regarding the concerns about Tribunal counsel.

39. On February 14, 1995, the Employees wrote to the Tribunal Chair regarding the question of neutrality.