P/0097/98

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Zoltan Ronkai

Grievor

• and -

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

Employer

BEFORE

John A. Willes

Vice-Chair

FOR THE GRIEVOR

Christopher Pool Representative

FOR THE EMPLOYER

Laura Williams, Staff Relations Officer Linda Stevenson, Staff Relations Officer Ministry of the Solicitor General and Correctional Services

HEARING

May 13, 1999, June 16, 1999, October 5, 1999

INTERIM DECISION

The grievance in this matter relates to a workplace Discrimination And Harassment Complaint filed by the Grievor, Zoltan Ronkai on September 7, 1998. According to the evidence, the grievor’s complaint states as follows:

“Mr. Duffield would not allow me to work on September 7, 1998, because I was on workplace accommodation as per doctor’s orders due to a W.S.I.B. injury. (disability)”.

A hearing on the grievance was scheduled for May 13, 1999, at which time the Grievor discovered that the person presenting the Employer’s case at the hearing was Linda Stephenson, a Staff Relations Officer in the Ministry of the Solicitor-General and Correctional Services. The Grievor objected to the Staff Relations Officer being a part of the Employer’s team on the basis that she had acted as his ‘Advisor’ in the preparation of his Workplace Discrimination and Harassment Complaint.

The case concerning the Grievor’s objection continued on June 16, 1999, and October 5, 1999, and on both days testimony was heard from the parties pertaining to their interaction in matters related to the Grievor’s formal complaint under the Workplace Discrimination and Harassment Prevention Policy.

The Grievor’s evidence was that Linda Stephenson worked in the capacity of an Investigator at the Independent Investigations Unit of the Ministry of the Solicitor-General and Correctional Services. This unit was responsible for the investigation of complaints filed under the Workplace Discrimination and Harassment Prevention Policy, and the Grievor testified that he had contacted Ms. Stephenson with his complaint and discussed the matter with her, believing the discussion would be strictly confidential. His intention was to call Ms. Stephenson as a witness on his behalf.

The Grievor expressed concern that certain information that he provided to Ms. Stephenson is now in the hands of the Ministry, and Ms. Stephenson is now in a position where she is acting on behalf of the Employer in the conduct of the Employer’s case before this Board. The Grievor submits that Ms. Stephenson is now in a position of conflict of interest, and to allow her to proceed as the Employer’s representative would be improper, and a denial of natural justice. In his view, this Board should direct the Employer to remove Ms. Stephenson from the case.

Counsel for the Employer submitted that Ms. Stephenson was not in a position of conflict of interest while in her role as an Investigator in the Independent Investigations Unit. Counsel noted that Ms. Stephenson’s evidence was that she provided the Grievor with general information about the complaint procedure, and made no assessment of the merits of the Grievor’s claim. Counsel also noted that Ms. Stephenson had testified that she had received only a very brief outline of the Grievor’s complaint from the Grievor in a telephone conversation, and the information she (Ms. Stephenson) provided in her capacity as an Investigator was a response that could also have been provided to the Grievor in her capacity as a Staff Relations Officer. Counsel also noted that Ms. Stephenson was never assigned to the case as an Investigator.

Counsel for the Employer submitted that no conflict of interest existed on the part of Ms. Stephenson in her role as Staff Relations Officer. Counsel argued that this Board did not have the authority to remove the Employer’s representative from the case, as Ms. Stephenson was not acting as Counsel, and did not act in such a capacity in her dealings with the Grievor as an Investigator in the Independent Investigations Unit. Counsel’s position was that no solicitor-client relationship existed between the Grievor and Ms. Stephenson, and no conflict of interest therefore existed.

In support of her arguments, Counsel for the Employer referred to G. Morrison and the Crown In Right of Ontario (Human Rights Commission) P/0037/95 (P.S.G.B.); MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235; Kuiack v. Babcock Estate (1991) 1991 CanLII 7143 (ON CTGD), 5 O.R. (3d) 650.

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This Board has carefully reviewed the submissions of the parties on the matter of Ms. Stephenson acting as the Employer representative in the case now before the Board. In his submissions, the Grievor has urged this Board to remove Ms. Stephenson as the Employer representative on the basis of conflict of interest and a denial of natural justice with respect to his grievance.

The Public Service Act, R.S.O. 1990 c.P-47 and the Regulations related thereto make no specific reference to the authority of this Board to remove Counsel or any other person as a representative from a case, but the general obligation of this Board to conduct a fair hearing may very well vest this authority in the Board where it can be shown that a party improperly obtained confidential information from their now adversary prior to the hearing. Such would be the case if the Grievor had retained Counsel initially, only to find his Counsel was later acting for the Employer. This, however, is not the situation in the case before this Board, although the events that took place are of some concern with respect to confidentiality.

According to the evidence, the Grievor did engage in conversation with Ms. Stephenson in her role as an Investigator in the Independent Investigations Unit under the impression or in the belief that his discussion of his grievance would be kept confidential. The evidence also indicates that much of the discussion was concerning procedural matters. While Ms. Stephenson’s evidence was that no confidential information was imparted to her by the Grievor, the Grievor maintained that this was not the case, although his evidence did not identify specific information that was clearly confidential or detrimental, if disclosed to the Employer. In fairness to the Grievor, however, he was attempting to recall a conversation that took place many months prior to the first hearing day.

On the evidence before this Board, there would appear to be no information in the hands of Ms. Stephenson that might be characterized as confidential to the Grievor’s case, and this Board under the circumstances is not prepared to direct the removal of Ms. Stephenson as an Employer representative. However, if, as the case is heard on its merits, the evidence reveals that Ms. Stephenson was in fact the recipient of confidential information from the Grievor, this Board is prepared to revisit the issue at that time, and take whatever steps may be necessary to ensure that the Grievor is not denied natural justice in the resolution of his grievance.

Dated at Toronto this 11^th^ day of April 2000.```