Arbitration board dismisses spoliation motion

On May 6th, the Ontario Grievance Settlement Board dismissed a union motion for the ultimate spoliation remedy – granting of a grievance based on an abuse of process.

The Union made its motion in a seemingly hard fought discipline and discharge case. The Union’s pursuit of electronically stored information “to review the life cycle of certain documents that were exhibits in order to test the integrity and reliability of the documents” began after the employer had put its case in through 40 days of witness testimony. The ESI motion itself took 13 days, and at some point the employer agreed to conduct a forensic examination of certain data. Unfortunately, just before it was about to pull the data, three computers were wiped as part a routine hardware renewal process. Ooops.

Based on two more hearing days the Board held the destruction of the data was inadvertent and not even negligent. Arbitrator Petryshen said:

It is not surprising that the Employer or FIT did not arrange for the imaging of the three bailiff computers prior to September of 2017 because no one considered that there was a risk of losing that data.  Although management at the OTO unit and FIT knew that government computers were replaced every four years, it was reasonable for OTO management to expect that they would be notified when the computers in OTO unit were about to be refreshed. 

Although this is quite forgiving, Arbitrator Petryshen’s finding that the “the granting of grievances due to a loss of potentially relevant documents is an extraordinary remedy” is quite consistent with the prevailing law. In 2006, the Court of Appeal for Ontario quashed an arbitration award that allowed a grievance based on an employer’s inadvertent destruction of relevant evidence, and the Court of Appeal for Alberta’s leading decision in Black & Decker says that even negligent destruction of relevant evidence will not amount to an abuse of process.

Ontario Public Service Employees Union (Pacheco) v Ontario (Solicitor General), 2020 CanLII 38999 (ON GSB).

NSCA issues principled judgement on relevance standard for production and proportionality

On February 28th, the Nova Scotia Court of Appeal held that a motor vehicle accident plaintiff was not entitled to production of her insurer’s policy documents merely because she had alleged bad faith. It held that these documents might be relevant, but the plaintiff failed to meet an evidentiary burden to establish relevance. Justice Farrar explained:

Although the pleadings are a factor to be taken into consideration in determining whether documents are relevant, they are not the only factor.  If that were the case, adroit counsel could draft pleadings in such a manner to allow a party to embark on a fishing expedition.  This is precisely what the Rules were intended to avoid when they were amended to move from the “semblance of relevance” test to relevancy.  The motions judge’s decision, in my view, reverts to the “semblance of relevance” test.  Allegations, no matter how specifically worded or drafted, which have no basis in the facts or the evidence without more, cannot be the basis for a production application.  This is particularly true here, where there was a dearth of evidence before the motions judge.

Intact Insurance Company v. Malloy, 2020 NSCA 18 (CanLII).

Tribunal errs by ordering disclosure without redaction – right to redaction?

On November 28th the Nova Scotia Court of Appeal held that the Nova Scotia Workers’ Compensation Appeals Tribunal erred by ordering the disclosure of a worker’s entire file without redaction.

The matter was about a workplace safety insurance claim, and particularly whether a worker’s condition was caused by his work. The Tribunal made the order in response to an employer’s objection to various redactions made to a set of records in the possession of the Workers Compensation Board. Although the employer argued the redacted information was relevant, the Tribunal ordered the unredacted file to be produced because it lacked the resources to vet for relevance, because fairness and the “ebb and flow” of a hearing supported full disclosure and because of the difficulty in making relevance determinations.

Despite the obvious appearance of laziness, the Tribunal framed its decision as rooted in procedural fairness. In response, the Court said: “…there is no principle of procedural fairness… that a litigant who requests disclosure is entitled to see every document it requests, regardless of relevance and without a relevance ruling by an impartial arbiter.”

Implicit in this statement is a concern for the worker’s privacy interest. The Tribunal had recognized this interest in a policy manual that it disregarded in making its order, though there are aspects of the Court’s reasoning that suggest a more broadly based right to redaction.

The Court gave this guidance on how to vet for relevance:

The person who vets for relevance must keep in mind that material should be disclosed for its connection to the “proposition[s] being advanced” by the parties, to borrow Justice Rothstein’s phrase, and not merely to justify an anticipated conclusion on the merits of those propositions. The vetting official may not be able to foretell precisely how the evidence will be martialed. So the ambit of disclosure should allow the parties some elbow room to strategize for the engagement.

Baker v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2017 NSCA 83.