Arbitration board dismisses spoliation motionOntario Public Service Employees Union (Pacheco) v Ontario (Solicitor General), 2020 CanLII 38999 (ON GSB)
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.