FPSLREB Decisions

Further orders for the production of documents

1 At a hearing in Saskatoon, Saskatchewan, on April 21, 2009, counsel for John Tarala (“the grievor”) made an application for the production of certain documents. An oral ruling was made at the hearing with respect to certain categories of the requested documents, and this ruling was confirmed in written orders subsequently issued.

2 Further orders were issued on September 14, 2009 (2009 PSLRB 111) concerning the other categories of documents requested in the application. These orders took the form of “O’Connor orders,” in which I ordered that the documents be remitted to me for review in the first instance with a view to determining which of them were of sufficient relevance to the proceedings to justify compromising confidentiality and privacy concerns, which their disclosure entails. I have now completed the review, and before making an order for production I wish to state the following points:

3 In my original order for the production of documents, conditions were attached to their production and use based on those outlined by counsel for the grievor in the application. Those conditions also apply to the documents produced pursuant to this order, and I repeat them for ease of reference as follows:

1. Any of the information disclosed by this application should not be used for any purpose other than the adjudication.

2. The information on psychiatric and psychological records not be disclosed to any other individual or party beyond the grievor without a further order unless there is a reference in the records being disclosed to an individual who is a staff member at the RPC, or was a staff member at a time material to the adjudication. Counsel for the grievor should be able to review a reference with a named staff member to determine the accuracy of the reference and decide if the staff member should be a witness. All staff members are bound by their position not to disclose any such information. If counsel for the grievor is seeking review of any psychological or psychiatric records by an expert, counsel for the grievor undertakes to make an application to the adjudicator to allow such a review.

3. The information, other than psychiatric and psychological records, should be able to be reviewed with witnesses who are staff members at the RPC or who were staff members at material times. As an example, it would be artificial and wrong not to be able to discuss reports prepared by staff members with the individuals who prepared the documents or are referred to in the documents. As set out above, staff members are already bound to keep private such information.

4. The originals and any copies of documents not filed or marked by counsel for the grievor in this adjudication shall be returned to the employer at the expiration of the appeal or judicial review period in these proceedings; and

5. Copies of documents should be limited to what are needed by counsel to prepare for adjudication and to file with the adjudicator if any disclosed documents or material are being submitted as evidence. It is inappropriate to deny counsel for the grievor the right to make any copies. There are two counsels for the grievor and it is an unnecessary restriction to prevent each from having a copy. Counsel for the grievor sometimes finds it helpful to make notes on copies of disclosure or highlight sections of disclosure. With regard to copies marked by counsel, counsel for the grievor undertake to shred any copies of the disclosure upon which notes are made by them at the expiration of the appeal or judicial review period in these proceedings.

4 I was advised by counsel for the employer when the requested documents were produced to me that there are no separate documents falling into the category of “. . . any summary of the institutional history of inmate S prepared by the employer before the transfer of inmate S from the RPC on or about April 12, 2007.” He advised that any summaries are included as parts of the other documents that are covered by this order.

5 None of the orders made previously or in this decision will prevent the parties from raising issues concerning the relevance or admissibility of specific documents at the time of the hearing of the grievance.

6 Subject to the above considerations, I make the following order:

Order

7 I order the production of records of any charges against “inmate S” under the Corrections and Conditional Release Act, S.C. 1992, c. 2, that are in the employer’s possession and that pertain to the period before her transfer from the Regional Psychiatric Centre Prairies (RPC) on or about April 12, 2007.

8 I order the production of the case management file for inmate S for the time she was in federal custody before her arrival at the RPC.

9 I order the production of the preventative (or preventive) security file for inmate S for the period in which she was in federal custody up to her transfer from the RPC on or about April 12, 2007. I note that, in a limited number of instances, notably in the documents for November 11, 2006 and December 8 to 12, 2006, there are unvetted references to other inmates whose identities are not germane to these proceedings. I direct that the copies have the names of those inmates obscured.

10 I order the production of the discipline and dissociative files for inmate S for the period in which she was in federal custody up to her transfer from the RPC on or about April 12, 2007.

11 I make no order for the production of the psychiatric records of inmate S up to her transfer from the RPC on or about April 12, 2007.

January 7, 2010.

Beth Bilson,
adjudicator