PSGB# P-2018-1167

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Cummings

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Lise-Anne Cummings and Gregory Ireland

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 28, 2019

INTERIM DECISION

1This interim decision deals with the complainant’s request for production and the employer’s response that a number of things requested are not relevant to the complaint as filed. In the employer’s view, Ms. Cummings should not now be allowed to expand the scope of her complaint.

2The first task is to determine the proper scope of the complaint, because the disputes about what documents should be disclosed must be determined in light of what is relevant to the dispute before the Board. The Board does not take an overly technical view of the wording of complaints, and attempts to get at the real dispute between the parties. However, the complaint as filed remains the basis for the statutory dispute resolution process which follows. The Board looks to the wording and nature of a complaint to determine what issues have been raised, so they can be resolved, limiting the evidence to information that will be helpful in resolving the issue, which is referred to as probative or relevant evidence.

3Both sides need to know what the case is about so they can attempt to resolve it before the matter comes to the Board, and then can know what the issues are that they are to prepare for if the matter comes to mediation and/or arbitration. Mediation is the less formal of those two processes, and discussions are not necessarily limited to the issues outlined in the complaint. The same is not true at the arbitration stage. In arbitrating a dispute, the Board’s mandate is limited by the scope of the complaint filed, unless expanded by the mutual agreement of the parties. Here, the employer is clearly not agreeing to any expansion of the complaint.

4It is worth noting at the outset, at the risk of stating the obvious, that where there is a dispute, each side has a theory of the case, which is different from the other side’s. When measuring what is relevant to the issues raised, the Board takes into account both side’s theories of the case.

5As a way to introduce what follows, I will start with a summary of the two sides’ theories of the case. Ms. Cummings was one of a number of respondents in a management-initiated WDHP [Workplace Discrimination and Harassment Policy] complaint in 2018. She alleges that, in initiating and investigating this complaint, the employer breached certain terms and conditions of her employment, found in several policies and statutes. She alleges that the employer engaged in a planned reprisal against her for what I will refer to generally as “speaking up” about problems in her work unit over the years which preceded the 2018 complaint in which she was a respondent. These included a WDHP complaint that she filed in 2015 against a colleague, and events that followed upon that complaint.

6In an attempt to minimize confusion to the readers of the rest of this decision, the WDHP complaint in which Ms. Cummings was the respondent is referred to as the 2018 WDHP complaint, and the one in which she was the complainant as the 2015 WDHP complaint, while the complaint filed with the PSGB being dealt with here is referred to as this PSGB complaint. A PSGB complaint filed by another manager in 2016 is referred to as the 2016 PSGB complaint.

7By contrast, the employer sees the case very differently, and the 2018 WDHP complaint and investigation as a straightforward reaction to a credible WDHP complaint. One of the complainant’s co-workers came forward to complain that comments made by her and several other co-workers were discriminatory on the basis of race. The employer’s theory of the case is that, having found the complaint to be potentially viable, management was obliged to act on it by investigating the incidents. The employer notes that Ms. Cummings was not the only respondent, and that she did not dispute that the incidents took place. Rather, she is of the view that the incidents in question had been dealt with by direct management action by her supervisor at the time, so that further investigation or action was unnecessary and improper.

8The complainant takes the position that all the requested documents are relevant because there is a pattern of behaviour since 2013 which contributes to her conclusion that the investigation was a form of reprisal. In sum, the complainant describes a problematic workplace going back six years, and events since the filing of this PSGB complaint, which she believes are relevant and necessary to the proof of the allegations she has put before the PSGB.

9In coming to the conclusions set out below, I have considered both the content of Ms. Cummings’ PSGB complaint itself, filed on a Form 1, and that of her Notice of Intent to file a complaint, which is specifically mentioned in the Form 1 as containing the details of her complaint. I have carefully considered the comments made on behalf of both parties, in light of the current trend in disclosure rulings by both arbitrators and courts, to identify what is arguably relevant to the breaches claimed, balancing the interests of all parties, as always, but to give a renewed emphasis to proportionality in disclosure requests, in order to keep the arbitral process as informal and expeditious as possible. See the decision of Arbitrator Stout in Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2016 CanLII 87623 (ON LA) for a review of the relevant case law.

10I accept that a party may not be able to completely identify the documents they are seeking, especially if the nature of the identity of the documents is known only to one party. However, there must be enough in the request for disclosure to allow the other party and the arbitrator to narrow down what one is looking for to what is relevant, and to avoid what has often been called a “fishing expedition” – a search not for evidence that supports a case but rather to see if one has a case at all. In this case, the requests made by Ms. Cummings were very broad and it was often difficult to be satisfied that there was a clear nexus between the information being requested and the positions in dispute at the hearing, as discussed below.

11Turning to the details of Ms. Cummings’ PSGB complaint, her Notice of Intent to File a Complaint identifies the precipitating event as the fact that she was notified on March 16, 2018 that she had been identified as a respondent to WDHP allegations filed by Ministry management. It expresses the complainant’s view that the 2018 WDHP complaint was a disguised reprisal, and an attempt to improperly negatively affect her career, including an attempt to prevent her return to her former work unit.

12It is clear from the written material that the triggering event for the PSGB complaint was the launching of the 2018 WDHP complaint, but It is equally clear from the complainant’s submissions at the hearing of this matter, that she considered that incident to be a “last straw”, coming as it did after a number of events that go back to 2013. Those earlier events are not all mentioned in the written material, but the complaint uses the phrase in the Form 1 “a number of deliberate and coordinated actions on the part of the employer”, which is an indication that she was not only relying on the 2018 WDHP complaint. In her Notice of proposal to file the PSGB complaint, she mentions the following other events specifically, i.e. the 2015 WDHP complaint process, during which she alleges she had no support from the managers in charge, with negative effects on her personally and professionally; her expressing concerns with Senior Management during an employee engagement survey and subsequent discussions with the Strategic Business Unit staff, as well as her articulation of concern about being excluded from the engagement process; an upcoming cultural audit, the prospect of discipline from the 2018 WDHP complaint; being prevented from returning to her former position after a temporary assignment that she held at the time; being targeted by intimidation and threatening behaviour. The complaint claims that the employer is in breach of several statutes and policies, for example the Occupational Health and Safety Act, the Respectful Workplace Policy and the Ontario Correctional Services Code of Conduct and Professionalism.

13Having carefully reviewed the material before me in light of the submissions of the parties, it is clear that the PSGB complaint does centre on the 2018 WDHP complaint and investigation as a reprisal. However, the proof of the allegation of reprisal, according to Ms. Cummings’ theory of the case, relates as well to the other matters mentioned in the complaint, such as the 2015 WDHP complaint, its aftermath, and Ms. Cummings’ expressed discontent with the employee engagement process. What follows traces the line between what I see as arguably relevant to the complainant’s theory of the case, as well as that of the employer, while aiming for a sense of proportion so that the hearing of the PSGB complaint is not turned into a review of the whole history of the work unit going back to 2013, as it sometimes appeared Ms. Cummings was seeking.

14The employer did not object to providing Ms. Cummings with certain of the things she requested, such as her personnel file and performance reviews and was making arrangements to obtain them when this matter was argued. I will deal with each of the matters to which the employer objected in turn below. In doing so, I have combined some of the categories requested, and omitted some names and specifics in order to respect general confidentiality and the particular confidentiality afforded certain information in other proceedings before the Board or the Ministry’s internal processes.

a. The terms of reference of the work unit’s cultural audit and an unredacted copy of the cultural audit report.

15The cultural audit was a process which had begun at the time Ms. Cummings filed her PSGB complaint in 2018, and has since been completed. The employer’s position is that material related to the audit, such as the report, cannot be relevant because it did not exist at the time of this PSGB complaint. Counsel observes that in a reprisal case, the employer has the onus, and is required to show why they acted as they did. Counsel submits that it is difficult to see how the contents of the report could impact on the employer’s obligation to investigate the 2018 WDHP complaint. He acknowledges that it might be relevant if Ms. Cummings had been disciplined and the employer was answering to allegations that discipline was unjustified in light of the culture of the workplace or condonation by management, but that is not the nature of this PSGB complaint as filed.

16Further, the employer notes that the cultural audit had a fairly broad scope, and people contributing to it were assured confidentiality. It is not a case where the employer is relying on a report for their case, in which case it might be disclosed. Counsel observes that the findings of the cultural audit have already been made known to staff, but the comments about witnesses have been kept confidential as witnesses were assured they would be. In the circumstances of this case, counsel maintains that the complainant is just attempting to get the report, and the harm its disclosure would do would completely outweigh any probative value.

17By contrast, Ms. Cummings sees the materials related to the cultural audit as relevant because she believes the mandate of the cultural audit covered the period from 2013 onwards, including the period of time leading up to her PSGB complaint, and many of the negative aspects of the treatment of staff which underlie it, since she is of the view that the reprisal of an unjustified WDHP investigation was in reaction to the various ways she spoke up about the negative working conditions. She did not dispute that the outcome of the cultural audit had been made know to staff.

18I am not persuaded that I have a sufficient basis to order the disclosure of the report of the cultural audit or its terms of reference. The complainant frankly admitted that she did not know what was in it, although she was interviewed as part of the process, and she did not suggest that her input contributed to the employer’s decision to launch the 2018 WDHP complaint. All indications are that it was a wide-ranging effort, and I am simply not persuaded that it is likely to be useful in proving the facts of this case, related as they are to the employer’s motivation in making the specific decision to launch the 2018 WDHP complaint and related investigation. Further, in order to direct the disclosure of the unredacted report, there would have to be a clearer connection to the disputed facts in this case to override the fact that the participants were assured of confidentiality.

b. Communications related to SBU [Strategic Business Unit] employee engagement meetings and outcomes.

19The complainant refers to an announcement in September 2018 that the report of these meetings was available and that senior management would be reviewing the findings in the following weeks. Given that timing, the employer objects to this as post-dating the alleged reprisal.

20Ms. Cummings’ PSGB complaint was filed in June 2018, and specifically references her having expressed concerns about the employee engagement process and her exclusion from it as one of the triggers for the investigation which she considers to be a reprisal. As these aspects of the employee engagement process are referred to in the PSGB complaint, that part of the process must have pre-dated it, even if the report did not appear until the following September. If there are communications related to Ms. Cummings’ expressions of concern about this process, or her exclusion from it, they are potentially relevant and should be disclosed. However, Ms. Cummings did not indicate to whom she expressed these concerns or in what time frame, which would help to narrow down what might be there. She is directed to contact employer counsel with that information within 14 days of this decision.

c. In addition to her personnel file, which the employer has agreed to provide, the complainant seeks production of all communications (electronic or written), records, files, notes, logs, as they relate to her performance development, assignment, selection for assignments, and commentary related to her illness, back to the beginning of her engagement with the relevant work unit in 2013.

21Employer counsel argues that none of the categories such as Ms. Cummings’ performance or her illness, are part of the dispute raised in the PSGB complaint. There is nothing in the complaint about her illness or workers’ compensation, and no remedial request which would make this relevant, in the employer’s submission. Counsel objected to the very general nature of the request, which he characterized as a fishing expedition, far too broad to be relevant to what the employer characterizes as the rather narrow complaint about the 2018 WDHP complaint.

22As well, counsel suggested that any allegations based on facts going back significant periods of time would be subject to timeliness objections if they had been raised in the complaint, suggesting they would be if she were allowed to expand her complaint.

23Ms. Cummings explained the request on the basis that the information would help her prepare her case, in the context that she is complaining, not just about the 2018 WDHP complaint as a reprisal, but about a combination of planned and coordinated reprisals. In this respect she referred to a number of issues which are not referred to in this PSGB complaint as filed. These include things that post-date her complaint such as her alleged exclusion from certain assignments and meetings after June 2018, including those related to the training college.

24In her comments at the hearing, Ms. Cummings made reference to an illness, and how management treated it, and what she found to be inadequate assistance upon her return from sick leave, in December 2018, in finding a suitable work location. She also made reference to a colleague in the northeastern region who was treated more favourably in regards to his sick leave.

25Ms. Cummings also submits that the request is relevant to what she characterizes as double jeopardy; she maintains her supervisor reprimanded her for the comments which were the subject of the 2018 WDHP complaint, so that any further investigation, or consideration of further discipline would amount to being disciplined twice for the same incident.

26I agree with the employer that including facts related to assignments and meetings which post-date the PSGB complaint would represent an expansion of the complaint beyond what could have been contemplated when it was filed. As a result, I do not find information about events which post-date her complaint to be arguably relevant to issues raised in this PSGB complaint which centres on the employer’s motivation for the decision to launch the 2018 WDHP complaint of which she was informed in March of that year.

27As to the period referenced going back to 2013, I find this request over-broad. If there is a connection to the events complained of in this PSGB complaint, it has not been sufficiently described, so that I am not persuaded to order this aspect of the requested production. In particular, there is no mention of an illness in her PSGB complaint, and at the hearing Ms. Cummings did not establish a link between her illness and the allegations of reprisal in her complaint.

d. Memorandum of Understanding between the work unit and the OPP.

28It appeared at the hearing that it was unlikely that such a Memorandum of Understanding existed, and therefore could not be produced. In reply to the Ministry’s position that there was not likely a Memorandum of Understanding, the suggestion was made for the complainant that there might be job descriptions, or descriptions of roles and responsibilities for personnel seconded by the OPP to the Ministry. Ms. Cummings seeks these to better understand the management structure in place at the time of the facts in dispute.

29I find this a potentially relevant area, as it might assist in understanding the organizational structure underlying the decision-making process leading up to the alleged reprisal. If it turns out that either category of document exists, the employer is directed to disclose them to the complainant.

e. All communication relating to Ms. Cummings, including written communication, phone records and electronic records.

30The employer submitted that, on its face, this is too broad a request to even know what his clients would be looking for.

31At the hearing, Ms. Cummings offered to narrow the request down to communications about her sickness, illness, performance management and safety plan related to the 2015 WDHP complaint. When asked to give an example of what she thought was available, she referred to some events that occurred prior to her departure on a temporary assignment in November, 2018 which post-date the PSGB complaint.

32Ms. Cummings placed this request in the context that she believed she had the right to question the decision makers and full disclosure of the items that are essential to the preparation of her case, so that critical documentation, communications, information and details relevant to her case are not concealed from her.

33Employer counsel undertook to look for communications to show how the 2018 WDHP complaint process was initiated and by whom. These would be relevant, as would any indication of what was taken into consideration by whomever was involved in the initiation of the 2018 WDHP complaint and investigation.

34As well, although, as noted above, her illness is not mentioned in the complaint, her 2015 WDHP complaint and an alleged lack of support thereafter is clearly mentioned in the Notice of Intention to file this PSGB complaint. If there is information in the employer’s files not previously identified relating to the management of Ms. Cummings as related to the 2015 WDHP complaint and related workplace arrangements, safety plan or leaves, I would consider that potentially relevant, and it should be disclosed to the complainant.

35Beyond that, I agree that this portion of the request is overbroad, making it very difficult to determine what might actually be relevant. As well, the assertions in respect of incidents which occurred after the complaint appear to constitute an expansion of the complaint as filed, so that I do not find production in that respect to be justified.

f. Full unredacted copy of the intelligence review conducted by two named staff and any electronic records that pertain to Ms. Cummings during this review, which occurred in September 2017.

36Employer counsel also objects to this request on the basis that it is too broad to know what to look for.

37Ms. Cummings maintains that the intelligence review is relevant because it speaks to the management reporting structure and how she is being managed, including that she was reporting to OPP staff, rather than OPS staff.

38The employer’s information was that the individuals in question were on temporary assignments working for the ministry. Further, employer counsel doubted that information about the intelligence review would help answer the question about whether management’s decision to launch an investigation was a reprisal.

39From the information available to me, I am not persuaded that Ms. Cummings has provided a sufficient connection to the issues in dispute for me to find that the intelligence review is relevant to her reprisal complaint. In one of the documents filed with the Board, the review is described as an operational review of the unit relating to best practices and areas for improvement. One of the individuals named as part of the intelligence review may have been involved in the 2018 WDHP complaint in which Ms. Cummings was investigated as the respondent. However, the review seems to have been about operational issues rather than issues related to specific individual staff such as Ms. Cummings or the managers whose behaviour she complains of. In these circumstances, as with the cultural audit, I am not persuaded that it is likely that there would be arguably relevant information contained in it.

g. All information produced in a 2016 PSGB complaint which is now concluded.

40In respect of the 2016 complaint to which Ms. Cummings refers, it is the employer’s position that the information to which Ms. Cummings already has access which is part of the public record is sufficient for the purposes of her complaint. Given the parties’ positions in that case, employer counsel did not think there would be much dispute about facts that Ms. Cummings might assert pertinent to that complaint, making it unclear that there will be any factual dispute on which Ms. Cummings would need to call evidence.

41More generally, there was nothing specific referred to by Ms. Cummings which would allow me to decide with any confidence that the material she is requesting has any relevance to her allegation about the motivation of the employer in launching the 2018 WDHP complaint and investigation. As far as I can tell from the material before me, the facts of the incidents related to the 2018 WDHP complaint did not involve the person who filed the 2016 PSGB complaint.

42If Ms. Cummings is of the view that there are factual matters pertinent to proving her allegations in respect of the 2018 WDHP complaint which derive from the 2016 PSGB complaint, she may state those facts in writing to employer counsel to see if the employer is able to agree to those facts. If such agreement is not forthcoming, and Ms. Cummings identifies specific factual disputes in respect of the 2016 complaint that she is not in a position to prove with the material to which she already has access, this matter may be revisited before the next date of hearing.

h. All notes, communications, records, log books, duty notebooks, OneNotes, emails, phone logs relating to Ms. Cummings, her performance, her WSIB claim or any other matter in dispute including those of 31 named individuals who were associated with her work unit in one way or another, and/or its oversight in the Ministry.

43Ms. Cummings described this category as containing detail of the requests for production dealt with in other headings of this decision. She mentioned specifically two managers who were providing communication to WSIB [Workplace Safety and Insurance Board] and communicating with a correctional institution about her personal situation, and discussions with Human Resources. It appeared that she was of the view that there were records which shed light on the motivation she alleges for launching the 2018 WDHP complaint and attempting to undermine her position in the Ministry, including preventing her return to the work unit.

44The employer takes the view that this category is too broad, and not sufficiently relevant to the allegation of reprisal to warrant a production order.

45I agree that as stated, this request is too broad and it is not clear that there is anything contained in this request not covered in the other headings dealt with in this decision, so that I do not see a basis to make a specific production order. Nonetheless, if in reviewing the ambit of the complaint as set out in paragraph 11 and 12 above, and the other directions given in this decision, the employer identifies other relevant material, it should be produced to the complainant.

i. Copies of discipline letters, emails, performance management communication, and notification of work defects and deficiencies as they pertain to Ms. Cummings’ performance and communicated to her since 2013.

46It is not evident to me that there is anything in this category that is not part of the material in the complainant’s personnel file and performance appraisals which the employer agreed to provide. If there is any such material that is not part of that production, and which was taken into account in deciding on the investigation of Ms. Cummings as a respondent in the WDHP complaint in question, it should be produced.

j. Home or work address of a named former manager, as well as a list and addresses of all staff from her work unit, past and present from June 13th, 2013 until October 31st, 2019.

47Ms. Cummings wishes this information in order to be able to subpoena her former manager and others to give evidence in her case. As to the former manager’s address, the employer maintains that the person is no longer a public servant and that a home address is not information it would be appropriate to give out even if that were not the case. It was not suggested that evidence from the former manager would be irrelevant.

48The request for home addresses engages privacy interests which were not addressed in any detail in argument. I am not aware of any PSGB case law dealing with such an issue, and would need further argument on that issue in order to justify making such an order.

49As to the more extensive request, employer counsel observes that Ms. Cummings is still employed in the division, implying that she would have other means to contact many of the individuals. In respect of the remainder of the request in respect of all employees, past and present, counsel objected because of a lack of information to why such information was relevant.

50The complainant did not specify in any detail what evidence she was looking for from other employees, and I am not inclined to make such a broad order without more detail. Without any details concerning what type of evidence was being sought or from what employees, I am simply unable to establish that such a broad and general request is arguably relevant to either party’s theory of the case.

Conclusion and Summary

51To summarize, the employer is directed to produce, by March 10, 2020:

i) If not already completed, the documents agreed to be produced, including the complainant’s personnel file and performance reviews;

ii) Any communications related to Ms. Cummings’ expressions of concern about the employment engagement process, or her exclusion from it. By February 25, 2020, Ms. Cummings is to indicate to employer counsel the names of the people to whom she expressed these concerns and in what time frame, to assist the employer in narrowing down what records might exist.

iii) Any Memorandum of Understanding between the OPP and the Ministry, job descriptions, or descriptions of roles and responsibilities for personnel seconded by the OPP to the Ministry.

iv) Communications showing how the 2018 WDHP complaint process was initiated and by whom, and any indication of what was taken into consideration by whomever was involved in the initiation of the 2018 WDHP complaint and investigation.

v) Information in the employer’s records not previously identified relating to the management of Ms. Cummings as related to the 2015 WDHP complaint including any related workplace arrangements or leaves;

vi) In reviewing the ambit of the complaint as set out in paragraphs 11 and 12 above, if the employer identifies other relevant material, it should be produced to the complainant.

52In addition to the specific orders made in this decision, and in order to expedite the continuation of this hearing and preparation for it, the employer is to provide to the complainant a copy of all documentary material upon which it intends to rely at the hearing, within 30 days of this decision.

53By February 25, 2020, Ms. Cummings is directed to:

i) state in writing to employer counsel any factual matters pertinent to proving her allegations in respect of the 2018 WDHP complaint which derive from the 2016 PSGB complaint, which she is not in a position to prove with the material to which she already has access. If the employer is not able to agree to those facts, Ms. Cummings may identify specific factual disputes in respect of the 2016 PSGB complaint, and this issue may be revisited before the next date of hearing in writing or by teleconference.

ii) indicate to employer counsel the names of the people to whom she expressed concerns about the employee engagement process and in what time frame, to assist the employer in narrowing down what records might exist.

iii) By March 23, 2020, provide employer counsel a copy of all documentary material upon which she intends to rely at the hearing.

54The above rulings were made on the basis of the information provided by the parties before and at the hearing of the first day of hearing of this matter. As the hearing progresses, if it becomes clear that any documents not previously disclosed exist and are relevant to the issues in dispute, the Board will hear submissions on those matters. As well, rulings will be made on any other evidentiary issues which arise. For instance, if either party seeks to introduce evidence to which the other party objects as not relevant to the issues in dispute, the Board will hear the parties’ submissions as to whether there is a sufficient connection between the proposed evidence and the issues in dispute, and decide whether the evidence will be admitted or not.

55Continuation dates will be set in consultation with the parties.