PSGB# 2019-1091

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Paul

Complainant

• and –

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

Employer

BEFORE

Andrew Tremayne

Vice Chair

FOR THE COMPLAINANT

Eren Erinc Hum Law Firm Counsel

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 22, 2020 (by teleconference)

Decision

1The applicant, Mr. Paul, is employed by the Ministry of the Solicitor General as an Operational Manager (formerly known as a Sergeant). He alleges that he has been unfairly denied developmental, promotional, and other work-related opportunities by the employer for reasons that are he says, discriminatory and improper. His complaint also alleges that he has been the target of workplace bullying and harassment, that the employer has failed to address his concerns about this, and that the employer has otherwise acted in bad faith towards him. Mr. Paul self-identifies as a young, visible-minority male of Indo-Caribbean/South Asian descent.

2This is a preliminary decision on a motion by the applicant for the production of documents related to a 2017 job competition in which Mr. Paul participated. The employer resists the applicant’s motion. For reasons set out below, the motion is granted in part.

3A very brief review of some of the events described in the pleadings is helpful to provide background and context. At this stage in the proceedings, no findings of fact have been made, and much of the evidence, including what happened, and when, appears to be in dispute. As a result, this brief review is intentionally vague, and I emphasize that it contains no findings of fact.

4Mr. Paul’s “home” position is at the Toronto East Detention Centre (TEDC), where he has been an Operational Manager since approximately 2015. In 2017, there was a job competition for several Staff Sergeant positions at the Toronto South Detention Centre (TDSC). Mr. Paul applied and was successful. He was offered and accepted a temporary position as a Staff Sergeant at the TDSC. Some months later, he was given an opportunity to act as a Deputy Superintendent of Operations at TDSC, which he accepted. Mr. Paul alleges that while he was at TDSC, he was the target of workplace bullying and harassment.

5In May 2019, Mr. Paul was informed that he would be returned to his home position at the TEDC. He says that a short time later, he learned that he had received the highest score in the 2017 competition for the Staff Sergeant positions, which is something he had not known until then. Soon after that, he started the process that led to the filing of this complaint.

6In his complaint, Mr. Paul says that he should not have been removed from the acting position as Deputy Superintendent of Operations at TDSC and returned to his home position. He alleges that the employer did so for reasons that are discriminatory and improper. He also says that he ought to have been awarded a full-time Staff Sergeant position, and he alleges that the employer failed to do so for similar reasons.

7Counsel for Mr. Paul requests production of the following: the final scores from the 2017 job competition together with the name and race of all of the successful candidates; and the scoring sheets, worksheets, and any other notes that were used to arrive at Mr. Paul’s final score. Counsel argues that the test scores and additional information are material to the argument that the employer has denied Mr. Paul full-time permanent work opportunities. If Mr. Paul received the highest score in the 2017 competition, he was objectively the best candidate for a permanent Staff Sergeant position based on the objective metrics of the testing. However, he was passed over by the employer in favour of three other candidates who (assuming that Mr. Paul received the highest score) must have scored lower than he did.

8Towards the end of Mr. Paul’s time as Acting Deputy Superintendent of Operations at TDSC, the employer directed Mr. Paul to return to his home position as an Operational Manager; however, his home position should be a full-time permanent Staff Sergeant, argues counsel. The test scores and other information are arguably relevant to demonstrating that Mr. Paul, as the winner of the competition, should not have been passed over for a permanent Staff Sergeant position. The scores and other information are also arguably relevant in demonstrating the employer’s differential treatment of Mr. Paul that is alleged in the complaint: Mr. Paul scored the highest, but he was treated differently than the other successful candidates.

9Counsel for Mr. Paul relies on Rastel v. Dryden Police Services Board, 2011 CanLII 1974 (HRTO), a decision of the Human Rights Tribunal of Ontario in which the applicant, who alleged discrimination in his employment on the basis of age, requested production of a written test and the scoring documents for the other candidates for the purpose of comparing them with his own, which had already been produced. The employer argued that the issue before the Tribunal was whether the applicant was denied employment on the basis of age, and that the test scores of the other candidates were not relevant to that issue. The employer also argued that reviewing the tests would unduly lengthen the hearing. The Tribunal noted that the applicant’s date of birth appeared on his test, so his age and the ages of the other candidates could have been disclosed to the test assessors. While noting that this was not determinative of whether there was discrimination with respect to assessing the applicant’s application, the Tribunal held that it could not be said that the other candidate’s written tests were not arguably relevant to the issues in the pleadings.

10Counsel for the Ministry argues that the 2017 test scores and the other information that the complainant is seeking are not relevant. Mr. Paul’s complaint was filed in 2019 and it relates to the allegedly improper conclusion of his temporary assignment at TSDC, but he is now attempting to expand his complaint to include the 2017 competition, which is a collateral issue. The test scores have a minimal to no probative value, argues the employer, because the employer’s decisions about Mr. Paul’s employment were not made solely based on the test scores, and the evidence of the scores is not sufficient to establish the allegation that he was improperly passed over for a permanent position. The request is also unduly prejudicial to the employer, because the competition was three years ago, and searching for and retrieving the documents requested is an arduous process, particularly during the current public health crisis.

11Counsel for the Ministry relies on Ontario Liquor Boards Employees’ Union (Koonings) v. LCBO, 2006 CanLII 17540 (ON GSB) for the proposition that while the scope of pre-hearing disclosure is broad, requests that amount to a fishing expedition or that will result in undue prejudice to the party from whom disclosure is sought will most likely be refused. Counsel also relies on AMAPCEO (Vescio) v. Ministry of Finance, 2020 CanLII 20370 (ON GSB) where the grievor, whose position as a mediator was declared surplus, alleged that he was denied the right to bump the most junior incumbent in a different position (a Dispute Resolution Officer, or DRO). The Association requested production of the application submitted by another employee who had been appointed to a DRO position on a temporary basis. In that decision, the Board denied the production request on the basis that whether the other employee was qualified for the position was a collateral issue and not a matter that arose from the grievance.

12For pre-hearing production, it is generally accepted that all documents in the possession of a party that are arguably relevant and have a connection to the issues in dispute are subject to production. Requests that amount to a fishing expedition or that will result in undue prejudice to the party from whom disclosure is sought will most likely be refused, however. Moreover, a finding that documents are arguably relevant and subject to production does not mean that the same documents are admissible when the matter is heard on the merits.

13Mr. Paul’s complaint raises issues about the way he was treated by his employer after the 2017 competition for the Staff Sergeant positions. While much remains in dispute, including but not limited to whether the 2017 competition was for permanent or temporary Staff Sergeant positions, or both, and how many; and whether Mr. Paul competed for or was assigned to the Deputy Superintendent of Operations position at TDSC, the essence of the complaint is that Mr. Paul experienced discriminatory and improper treatment in his employment after the competition. One element of his complaint is the allegation that he was treated less favourably than others whose scores were lower than his. The scores form part of the factual matrix at the time the employer made decisions about Mr. Paul’s employment, including all of the circumstances surrounding the direction that he return to his home position at TEDC. While I agree that inquiring into the merits of the 2017 competition would be a collateral issue that is not arguably relevant at this time, the results of the competition are arguably relevant to the matters raised in the complaint. Similarly, because the complaint includes allegations that Mr. Paul was treated unfairly because of his race, any information held by the Ministry about the race of the other successful candidates is also arguably relevant.

14Turning briefly to the employer’s argument that the request is unduly prejudicial, I agree that searching for and retrieving the documents requested is an arduous process, particularly during the current public health crisis. However, this would likely be the case for the production of any physical (i.e., non-electronic) document at this time, so there is nothing particularly (or unduly) prejudicial about the steps that will need to be taken to comply with this request.

15As a result, the final scores from the 2017 job competition, together with the name and race of all of the successful candidates, are arguably relevant, and the Ministry is directed to produce this information to the complainant.

16I find that the complainant has not established that the other information requested, namely the scoring sheets, worksheets, and any additional notes that were used to arrive at Mr. Paul’s final score, are arguably relevant. This is because the complaint does not allege any impropriety concerning the 2017 job competition per se, nor is the complainant challenging the scores that were awarded. Moreover, there is no nexus between how the final scores were arrived at and the way that Mr. Paul was treated after the 2017 competition. As a result, this part of the complainant’s motion is dismissed.

17I remain seized.