P-2009-0520

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Joseph Brlek

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE COMPLAINANT

Mike Mously

FOR THE EMPLOYER

Michelle Dobranowski Ministry of Government Services Labour Practice Group Counsel

HEARING

September 1, 2010.

Decision

1Mr. Joseph Brlek, currently Deputy Superintendent, Operations, at Toronto West Detention Centre, filed a complaint to the Board on February 5, 2009 alleging that the employer “failed to follow the OPS WDHP Policy in investigating a complaint against” him. The first day of hearing, on September 22, 2009, proceeded with mediation. When the settlement discussions were unsuccessful, I informed the parties that I would not be seized of the case on the merits. However, I was willing to issue an order for disclosure if it was on consent. The employer and the complainant were not initially able to agree on the consent order and I was asked to meet with them to assist the parties in reaching an agreement on October 27, 2009. The agreement was achieved and the consent order was issued on November 4, 2009. Chair Carter is seized on the merits of this case.

2This decision addresses a motion by the complainant which I heard by way of conference call. An agreed statement of facts, documents and case law were forwarded in advance of the hearing. The complainant alleges that the employer has breached the Board’s order dated November 4, 2009, which made the parties agreement on disclosure signed October 27, 2009, an order of the Board. The employer agreed to provide the disclosure within 14 days of the agreement. The order required that the employer provide the following disclosure of documents and particulars by November 10, 2009:

i. Details regarding the complaints filed by the complainants identified in the grievance ("the Complainants"). These details shall include any other relevant complaint made by others against the Grievor or complaints filed by the Complainants against other managers. This includes, but is not limited to, copies of the actual complaints, responses, other correspondence, records of meetings and/or notes made by managers.

ii. In addition to the above, specific information is requested with regard to a complaint against the Grievor initiated by Mr. Scott Andrews of OPSEU which was forwarded to ADM Fiona Crean on April 25, 2008. This includes, but is not limited to, copies of the actual complaints, responses, other correspondence, records of meetings and/or notes made by managers.

iii. Details of any investigations conducted by or on behalf of the Employer with regard to the above complaints. This includes, but is not limited to, investigation reports, investigation notes, transcripts of interviews, documents provided to assist the investigation.

iv. Details of any investigations conducted as a result of the concerns that the Grievor reported to the Employer regarding the conduct of one of the Complainants and the improper motivation for the complaint. This includes, but is not limited to, responses to the Grievor, correspondence regarding the complaints, records of meetings, notes made by managers, investigation reports, investigation notes, transcripts of interviews and/or documents provided to assist the investigation.

v. Details of any investigations conducted and/or action taken by or on behalf of the Employer regarding alleged threats made by Mr. Grimaldi of OPSEU against the Grievor on February 24, 2006. This includes, but is not limited to, correspondence regarding the event, records of meetings, notes made by managers, investigation reports, investigation notes, transcripts of interviews and/or documents provided to assist the investigation.

vi. Information regarding the filling of the following positions: Superintendent of Niagara Detention Centre, Toronto West Detention Centre, Toronto East Detention Centre, Elgin-Middlesex Detention Centre, Mimico Correctional Centre and Toronto Jail; and Manager, Correctional Investigations Services Unit. Specifically, details are required as to who was involved in these staffing decisions, whether or not the Grievor was under consideration, how the decision was made and what factors were considered.

The order also captured the parties’ agreement that documents provided pursuant to this order were not permitted to be used by the complainant for any purpose other than this complaint before the Board.

3The complainant alleges that the employer has failed to comply with the order as follows:

1. Information that was provided was not provided within the time specified by the Board:

2. The requirements of paragraph [1] (i) of the Order have not been complied with in that documents related to the Cobb settlement(s) have not been provided:

3. The requirements of paragraph [1] (v) of the Order have not been complied with in that the Employer has withheld documents claiming privilege; and

4. The Grievor submitted a request for additional disclosure on November

23, 2009 and the Employer has not responded to that request.

Submissions on the issue of delay in disclosure and not responding to the November 23 request for additional documents

4The complainant’s representative stated that he received the first documents pursuant to the order on November 6, 2009. Additional documents were provided on November 10, 13, and December 15, 2009. Further documentation was not forwarded until January 2010. However, he argued that the delay in getting documents stretches back to before the complaint was filed with the Board, when the grievor first asked for disclosure. He takes the position that the employer has not taken the disclosure seriously and therefore he seeks a declaration that the employer has not complied with the Board’s order and compensation for the delay. Finally, the complainant’s representative noted that there was no response to his request for further disclosure by email on November 23, 2009.

5Counsel for the employer submitted that she delivered over 200 documents by November 6, 2009 (four days before the deadline). She reminded the Board that she had warned the complainant that it might be difficult to get some of the documents by November 10, but she undertook to do her best. She also advised in her submission that she had communicated her concern that documents from very senior people were coming in but slowly. Thus counsel argued the employer was diligent forwarding disclosure as ordered. By January 15, 2010 all disclosure had been provided, except those documents for which the employer was asserting privilege. She apologized for the delay in responding to the November 23 request for additional disclosure, which was inadvertent.

Decision

6Strictly speaking the employer missed the undertaken deadline to disclose documents by about a month. However, there is no evidence that the employer willfully avoided its obligation under the Board’s order. I accept the evidence that the employer diligently sought to produce substantially all of the documents before the deadline and kept the complainant informed as to any documents that would be late. Further, the delay cannot be measured from before the consent order for production issued. If there are any cost consequences because of the short delay, these would be better considered with the merits of the case.

Submissions on the issue of the Cobb Settlements

7The complainant argues that the employer is obliged to disclose minutes of settlement regarding a bargaining unit employee. The employer argued that these settlements between OPSEU and the Ministry are confidential. She submitted further that this issue was raised before Chair Carter during a mediation session and he indicated that that the issue would be better addressed during the hearing on the merits.

Decision

8I agree and defer to Chair Carter. I am convinced that it would be inappropriate for me to make a decision on this issue in a preliminary motion, given all the circumstances here.

Submissions on the issue of nondisclosure of privileged documents

9The complainant’s position here is that the employer agreed to disclose certain documents as outlined in paragraph 1 (v) of the order and therefore it is too late to assert privilege for some of the documents. Counsel for the employer argued that when she agreed to disclose documents here, it did not mean she agreed to forward privileged communications. She has maintained that the employer is willing to put the documents before the decision maker in the case and argue why privilege should attach.

Decision

10Again, I have decided that it would be inappropriate for this decision to be made by me. I am persuaded that the issue of whether a document is privileged, or whether there has been any waiver of that privilege is best decided by Chair Carter, who will hear the case on its merits.

11In sum, having carefully considered the submissions of the parties, I have decided that the issues of privilege, confidentiality and remedy raised by the complainant’s motion should not be decided by me. I shall not remain seized of any issue in this matter.