In the Crown - Ministry of Community, Family and Children’s Services v. OPSEU (Larman) the Court upheld the Arbitrator’s decision to grant grievances without a hearing on the merits of the case on the basis that a fair hearing could not be held due to destruction of relevant documents by the Employer’s agent – a Workplace Review Consultant.
The employee is a Probation Officer for the Employer. Over the years the employee filed a number of grievances which were ultimately settled. As stated in the Arbitrator’s decision the Parties agreed that the documentation related to the grievances would be destroyed and would not be relied upon in the future. Ultimately the Employer retained a Workplace
Review Consultant with terms of reference which included interviewing staff and reviewing complaints – both past and present in the Grievor’s workplace. The Consultant was contractually required to not destroy any material or information. Notwithstanding this contractual obligation they destroyed all of the information and materials they collected.
The Consultants recommended transferring the Grievor and the Employer unilaterally re-assigned the Grievor to another office. The new office was a substantial distance from the grievor’s home and former office. The Grievor filed grievances claiming unjust discipline and a breach of the settlements in so far as the Consultants may have received and relied
upon restricted information. The Union immediately sought disclosure of all of the materials and information that was given to the Workplace Consultants. The Union was informed that they had destroyed the materials.
The Union, represented by Ed Holmes, Ryder Wright Blair and Holmes, LLP, brought a motion before the Arbitrator asking that she grant the grievances on the basis that a fair hearing could no longer be held in the absence of these highly relevant materials. The Arbitrator determined that the Collective Agreement required “documents or things that are
arguable relevant” to be disclosed. She found that the documents requested “were highly relevant, and in fact, crucial to the Union’s case”. She determined there was “no way to be certain, with any degree of confidence, what documents were actually provided” to the Consultants and that the documents were critical to the Boards ability to assess the merits of
the case. Ultimately she agreed that a full and fair hearing within the principles of natural justice could not be held and granted the grievances.
The Ministry applied for Judicial Review of the decision. The Union was represented by David Wright and Ed Holmes, Ryder Wright Blair & Holmes, LLP. The Court upheld the Arbitrator’s decision with written reasons dated January 24, 2005. The Court found the Arbitrator’s reasons to be cogent and her decision to be reasonable, both on the impact of the
absence of the documents on the hearing as well as on the remedy she awarded in granting the grievances.
The Employer has now applied for Leave to Appeal to the Court of Appeal.
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