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HomeMy WebLinkAboutCoelho 24-10-15 1 IN THE MATTER OF AN ARBITRATION BETWEEN: HAMILTON HEALTH SCIENCES (the “Employer”) -and- ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 273 (the “Union”) Re: Grievance of Coelho – 2021-0273-0026 Decision Motion to dismiss – Abuse of Process ARBITRATOR: Daniel P. Randazzo, Arbitrator FOR THE EMPLOYER: Amanda Cohen, Counsel Matthew Wronko, Counsel (Student) Melina Senchyshak, Senior Lab. Rel. Specialist Denise Riggs, Perioperative Services Clinical Manager Ivana Melo, HR Business Partner FOR THE UNION: Anson Cai, Counsel Lori Reimer, OPSEU, Local 273, President Marvin Coelho, Grievor Alex Andrews, Counsel (February 13, 2023 only) DATE OF HEARING: February 13, 2023 September 18, 2024 October 9 and 10, 2024 1. This matter comes to me by way of consensual appointment. The Union has grieved the Hospital’s alleged failure to accommodate the Grievor’s family status. The Grievor’s claim for accommodation arose during the COVID pandemic. The matter was scheduled for hearing on February 13, 2023, September 18, 2024, October 9, 10, and 17, 2024. On February 13, 2023 I heard the parties’ opening statements and, 2 as this is a non-disciplinary matter, the Union called the Grievor as its first and only witness. The Grievor’s examination-in-chief was completed on September 18, 2024. On October 9, 2024 the Employer proceeded to cross -examine the Grievor. During the course of the cross-examination the Grievor refused to answer a question regarding the name/identity of his partner. The Union objected to the relevancy of the question regarding the name of the Grievor’s partner, however after hearing from the parties I determined that the question was relevant and directed the Grievor to answer. The Grievor refused. The Grievor claimed that the information sought was private and that he did not have the written authorization to reveal the name of his partner. The Grievor was, again, informed that the question was relevant and was, again, directed to answer. The Grievor once again refused. 2. As a consequence of the Grievor refusing to answer the question, I issued an Order and Direction directing the Grievor to provide the information requested. My October 9, 2024 Order is reproduced below: 1. This matter concerns the Union’s claim that the Hospital failed to accommodate the Grievor’s family status claim. The matter was scheduled for hearing on February 13, 2023, September 18, 2024, October 9, 10, and 16, 2024. On the first hearing date, February 13, 2023, following an unsuccessful attempt to mediate a settlement, I heard the parties’ opening statements as well as the Grievor’s initial examination-in-chief. I note that the examination-in-chief was not completed on February 13, 2023. 2. On the second day of hearing, September 18, 2024, after a change in counsel and a lengthy period between the first and second hearing dates, the parties agreed to re -start the Grievor’s examination-in-chief. I note that upon agreement of the parties, although the Grievor’s examination was re-started, the Grievor’s earlier testimony remained as evidence. The Grievor’s examination-in-chief was completed on the second day. 3. On the third day of hearing, October 9, 2024, the Grievor’s cross- examination was commenced. During the Grievor’s cross - examination, he was asked questions with respect to the details of family. During the exchange between the Hospital’s counsel and the Grievor, the Grievor refused to answer a question with respect to the name of his partner. I dismissed the Union’s objection to the question finding that the primary issue in dispute was a claim for an accommodation based on family status and the details of the Grievor’s family were relevant to that issue. I note as well, in a previous procedural decision, I had directed the Grievor to produce unredacted copies of invoices received during the relevant time period. The name of the Grievor’s partner is also relevant to issues relating to the invoices produced and identified by the Grievor in his testimony. I directed the Grievor to answer the question and again he refused. 4. Following a discussion with counsel, it was agreed that the Hospital would proceed with their cross-examination until the 3 mid-day break at which time I would prepare an Order directing the Grievor to answer the above noted question. 5. I make the following Order and Direction: i. The Grievor is directed to provide the information requested during the course of his cross-examination. In particular, the Grievor is directed to provide the full name of his partner. ii. Following my discussion with Counsel, the Grievor has until 5:00 pm October 9, 2024 to comply with this Order and Direction. iii. In the event that the Grievor complies with this Order and Direction, the Hospital is entitled to continue their cross-examination in this area should there be any follow up questions. iv. In the event that the Grievor does not comply with the Order and Direction, the Hospital is directed to advise the Union of how they intend to proceed. 6. In light of the Grievor’s refusal to answer the question referenced above and his refusal to comply with October 9, 2024 Order, the Hospital brought a motion seeking to dismiss the grievance on the basis that the Grievor refused to comply with my direction and refused to comply with an Order, all of which was an abuse of process. On October 10, 2024, the next hearing day, I heard the Hospital’s motion and the Union’s response to the motion. Neither party called evidence in support of their motion with both parties satisfied to argue the motion based upon the materials and evidence thus far submitted by the parties. This decision deals with the Hospital’s motion to dismiss. BACKGROUND FACTS 7. I am providing a very brief description of the facts giving rise to the dispute. I note at this juncture that I have made no findings of facts with respect to the merits of the grievance, and the description of the parties’ positions is for contextual purposes only. From March 2020 to December 2020, the Grievor was a part-time Respiratory Therapist employed by the Hospital. In January 2021 the Grievor was successful in obtaining a full-time position as a Respiratory Therapist with the Hospital. The Grievor resides in both Canada and the United States. When in Canada he resides with his mother in Mississauga, Ontario and when in the United States, he resides with his long-term partner in Michigan. 8. In March 2020 the COVID pandemic erupted. As a result of the pandemic, a number of health related safeguards were implemented. For example, and importantly, the Canada-US border was closed. Individuals entering Canada from a foreign country, 4 including the United States, were required to self-isolate for fourteen days. Further as a result of the pandemic, the Hospital instituted a number of polices including a policy which required employees who traveled abroad to self-isolate for fourteen days upon their return. 9. The Grievor lives in both Canada and the United States. Prior to the pandemic, on his workdays he resided in Mississauga, Ontario and on his days off from the Hospital, the Grievor would travel to Michigan to spend time with his family and to care for his children. I note that the Grievor, during the relevant time period, had two young children. 10. As an aside, the Grievor, from March 2020 to approximately May 2021, worked a second job which required him to travel abroad. Briefly, the second job involved the medical repatriation of patients from abroad. The Grievor’s second job is not relevant to the outcome of the Hospital’s motion but is a relevant issue with respect to the merits of the grievance. 11. During pandemic, as a result of the travel restrictions and more specifically, Hospital’s policy with respect to the fourteen day self-isolation requirement, the Grievor claims that was unable to travel to Michigan on his non-workdays to care for his children. In short, if he traveled to Michigan to be with his family, he would have to, upon his return, self-isolate for fourteen days, which in turn would interfere with his employment as a part-time Respiratory Therapist and then, after January 2021, as a full-time Respiratory Therapist with the Hospital. As a result of the pandemic and a consequence of the Hospital’s fourteen day self-isolation policy, the Grievor was unable to travel home and see and care for his children from March 2020 until October 2021. 12. It is the Grievor’s claim that in October 2020 he requested an accommodation for family status which would allow him to visit his family in Michigan. I note that there is a dispute over when the request for accommodation was made, the Grievor claims it was made in October 2020, while the Hospital’s view is that the request was not made until January 2021 or later. I note that I have yet to hear the Hospital’s evidence and as such I reiterate, for clarification purposes, that these are not findings of fact but merely a description of the parties’ relative positions. 13. Ultimately, the Grievor’s request for an accommodation was not granted. Both parties point the finger at the opposing side as cause or reason for the refusal or inability to accommodate the Grievor’s request for a family status accommodation. 14. The Grievor claims that as a result of the Hospital’s alleged failure to accommodate his request, he suffered significant emotional stress and trauma as he was not granted the ability or opportunity to be with his family for the period of March 2020 to October 2021. This, according to the Grievor, was particularly impactful as one of his children was only seven (7) months old at the time. Further, the Grievor has claimed that as a result of the Hospital’s alleged failure to accommodate his request, 5 he incurred additional costs associated childcare. The Grievor produced several invoices detailing the monthly childcare costs from June 2020 to May 2021. The invoices produced by the Grievor were redacted presumably to conceal the name of the individual to whom the invoices were directed. Prior to our October 9, 2024 hearing date, the Hospital sought copies of unredacted or original invoices. I understand that initially the Grievor refused to provide the unredacted versions on the basis that that the information redacted was private information. Further, I understand that the Grievor then advised that the unredacted versions or originals were no longer available. Following a case management meeting on October 7, 2024, I directed the Grievor to produce the unredacted versions and/or the original copies of the invoices and to conduct a thorough review of his records. My October 7, 2024 Order is reproduced below: 1. These matters come to me by way of consensual appointment. 2. The Union, as part of the regular production process, produced various invoices purporting to be invoices the Grievor received from a daycare provider. The Grievor, in his examination-in-chief, identified the documents and indicated that the cost of the daycare was incurred as a result of grievor’s inability to travel to his home in the US during the COVID pandemic. The invoices produced by the Union, and identified by the Grievor in his testimony, were redacted concealing the name and information of to the individual or individuals to whom the invoices were directed. 3. The Employer has requested unredacted versions of the invoices produced. The Grievor has resisted producing the unredacted versions on the basis that the documents are not arguably relevant, the documents contain private information, including private information relating to his partner, and on the basis that he no longer had in his possession the original copy or unredacted versions of the invoices. 4. Having heard from the parties, I am making the following order and direction: i. The original invoices (the unredacted versions) are arguably relevant and should be produced by the Grievor regardless of the fact that they may contain private information including private information of a third party and/or the Grievor’s partner. ii. The fact that the documents contain private information, including private information of the Grievor’s partner or another individual, is not a relevant consideration in assessing whether or not the document is arguably relevant. There is a process through which the private information 6 contained in documents produced in an arbitration can be protected. iii. The Grievor is directed to produce any and all invoices, in an unredacted form, from the daycare providers, institutions and/or services, including private daycare providers or services, who provided daycare services to the Grievor’s child or children during the relevant time period. iv. In the event that the Grievor did not retain a copy of the original invoices, the Grievor is directed to undertake a thorough review of his records and documents. Of note, the Grievor is reminded of the ongoing duty to produce those documents that are arguably relevant, which includes the unredacted copies of the invoices, that are in his possession and control. v. In the event that the Grievor is unable to produce the unredacted versions of the invoices, the weight and relevancy of the redacted invoices remains an issue the parties may address during closing arguments. 5. This matter will proceed as scheduled on October 9 and 10, 2024. 15. On October 9, 2024 the Hospital commenced their cross-examination of the Grievor. As described in my October 9, 2024 Order, in the course of the cross- examination, the Hospital asked the Grievor the name of his life partner. The Grievor refused to answer on the basis that this information was private and that he did not have the consent or written authorization of his partner to provide her name. The Union also objected to the question on the basis that it was not relevant. After hearing from the parties I found that the question was relevant and appropriate. I note that the Grievor’s claim was for a family status accommodation. The details with respect to his family were and are central to that issue. Further, the name of the partner was also relevant to the issue of remedy where, in this matter, the Grievor was claiming additional childcare expenses, and as indicated earlier, the payor information on the childcare invoices had been redacted by the Grievor. 16. I then directed the Grievor to answer the question put to him by the Hospital’s counsel. The Grievor once again refused stating that the information was private. I advised the Grievor that I had found the question to be relevant and that I was unconcerned with his views with respect to the private nature of the information. He was then again directed to answer and he once again refused. Counsel for the Union was given an opportunity to meet with the Grievor to discuss the importance of answering the question and the potential consequences of a refusal. 7 17. During the mid-day break, I issued my October 9, 2024 Order and Direction directing the Grievor to provide the information requested, specifically the name of his partner. He was given until 5:00 pm on October 9, 2024. Shortly after 5:00 pm on the 9th, Counsel for the Union advised that he had spoken with the Grievor and confirmed that the Grievor would not be complying with my October 9, 2024 Order and Direction. 18. On October 10, 2024, the Hospital brought their motion to dismiss. 19. The Hospital argued that the Grievor has demonstrated a pattern of dishonesty and blatant disregard and disrespect for the arbitral process. The Hospital pointed to the fact that it sought and obtained a production order directing the Grievor to produce the unredacted versions of the invoices. The Hospital noted that the October 7, 2024 production order directed the Grievor to produce the unredacted invoices and to conduct a thorough review of his records. The Hospital submitted that they had not received the unredacted invoices while noting that the copies provided, the redacted versions, were in an electronic form that allowed for them to be easily “unredacted”. The Hospital argued that the Grievor made no effort to obtain an unredacted version and that the Grievor simply refused to comply with the production order. 20. The Hospital further argued that the Grievor continued his deceit when he refused to provide the information regarding his partner’s name, noting that in a family status accommodation dispute, the details of the Grievor’s family go to the core of the dispute. The Hospital argued that the Grievor refused to answer the question notwithstanding a direction to do so and refused to comply with the October 9, 2024 Order. 21. The Hospital argued that the Grievor refused to provide the information because he did not want the Hospital to be able to test his evidence. The Hospital suggested that the refusal to comply, the refusal to provide relevant information in an accommodation case demonstrates a lack of respect to the employer and his contempt of the proceedings, as well as disrespect to the proceedings and my role as the arbitrator. 22. The Hospital argued that the Grievor’s refusal to comply with both the October 7 and October 8 Orders, his contempt and disrespect for the proceedings and my authority are in line with the cases where arbitrators have dismissed grievances without a hearing. 23. The Hospital relied on the following case law in support of their motion to dismiss the grievance without a hearing: Serco Des Inc. v USW, Local 9511, 241 L.A.C. (4th) 194; Baycrest Centre for Geriatric Care v. ONA, 2000 CanLII 39447 (ON LA); Re Budget Car Rentals Toronto Ltd. and UFCW, Local 175 (Botan), 8 2000 CanLII 50165 (ON LA); Abbeylawn Manor Living Inc. v SEIU, Local 1, 2022 CanLII 76359 (ON LA). 24. The Union argued that the Grievor’s actions have not been an abuse of process, noting that the Grievor has given testimony regarding the facts giving rise to the complaint as well as the impact upon him. The Union noted the question regarding the name of the Grievor’s partner was not centrally relevant to the issues in dispute. 25. The Union argued that the redacted invoices were not put to the Grievor during his cross-examination and his credibility with respect to the redaction of those documents has not been tested. 26. The Union noted that a dismissal without a hearing is an extraordinary remedy and should only be exercised in the clearest of cases. The Union argued that the Grievor’s actions fall far short of the “clearest of cases” threshold and added that there are lesser sanctions, such as the rejection of the Grievor’s evidence in this area, that could address the concerns. 27. The Union argued that the name of the Grievor’s partner was an ancillary fact not relevant to the central issue of family status and care of the Grievor’s children. 28. The Union suggested that the Grievor’s reasons for refusing to provide the name of his partner, specifically the private nature of the information requested and the lack of consent from the partner, were relevant considerations. I note at this time, I interrupted Counsel and advised that I had ruled on October 9, 2024 that the question regarding the name of the partner was relevant and the Grievor’s stated reasons for refusing to answer were rejected. I further noted that I found the Grievor’s refusal to answer and his failure to comply with my October 9, 2024 Order to be a blatant disregard for the arbitral process and my authority. 29. The Union argued that the Grievor had, to the best of his abilities, complied with my direction to answer and my October 9, 2024 Order and Direction. 30. The Union relied on the following case law in support of their position: Re Budget Car Rentals Toronto Ltd. and UFCW, Local 175 (Botan), 2000 CanLII 50165 (ON LA); Ontario (Ministry of Community, Family and Children Services) v. Crown Employees Grievance Settlement Board, 81 O.R. (3d) 419, 2006 CanLII 21173 (Ont. C.A.); and Serco Des Inc. v USW, Local 9511, 241 L.A.C. (4th) 194. DECISION 31. There is no dispute that an arbitrator has the power to dismiss a grievance without a hearing. An arbitrator, pursuant to Section 48(12)(d)(e), and (j) of the Labour Relations Act (“LRA”) and pursuant to the arbitrator’s duty to ensure a fair hearing in accordance with natural justice, has the authority to provide remedies 9 to ensure a fair hearing. This includes providing appropriate remedies to address allegations of an abuse of process. 32. In Re Budget Car Rentals Toronto Ltd. and UFCW, Local 175 (Botan), Arbitrator Davie was confronted with a situation in which a grievor failed to attend the hearing and failed to comply with an order and direction. Arbitrator Davie commented at paragraph 13 of her decision, 13. … Logic dictates that, if arbitrators have the power to make these types of orders, there must also be authority to enforce the orders made. Arbitral jurisprudence indicates that as part and parcel of the authority to enforce, an arbitrator has jurisdiction to dismiss a grievance where there has been noncompliance with an order. Thus, a grievance may be dismissed or held to be inarbitrable under the "abuse of process" rubric, where a party fails to produce documents or matters ordered to be produced by an arbitrator (Re. Thompson Products (1970), 22 L.A.C. 85 (Roberts); Re. National Standard Company of Canada (1994), 39 L.A.C. (4th) 228 (Palmer)), or where a grievor refuses to participate in the grievance/arbitration process, or refuses to otherwise accept the authority of the arbitrator or arbitration process (Re. Beacon Hill Lodges Inc. (1990), 15 L.A.C. (4th) 323 (Craven)). 33. The power to dismiss a grievance has been confirmed in several decisions including, Serco Des Inc. v USW, Local 9511, Re Budget Car Rentals Toronto Ltd. and UFCW, Local 175 (Botan), Baycrest Centre for Geriatric Care v. ONA; Abbeylawn Manor Living Inc. v SEIU, Local 1, and Ontario (Ministry of Community, Family and Children Services) v. Crown Employees Grievance Settlement Board, 81 O.R. (3d) 419, 2006 CanLII.1 34. In Serco Des Inc. v USW, Local 9511, Arbitrator Luborsky stated, 47. These cases support the principles that: (a) an arbitrator has authority to allow or dismiss a grievance without a hearing on the merits in response to a party’s non-compliance with a clear production or other valid procedural or evidentiary order; (b) provided such non-compliance is shown to arise out of a deliberate disregard for the arbitrator’s order; (c) which is an extraordinary sanction that should only issue 1 Serco Des Inc. v USW, Local 9511, 241 L.A.C. (4th) 194, see paragraph 47; Re Budget Car Rentals Toronto Ltd. and UFCW, Local 175 (Botan), 2000 CanLII 50165, see paragraph 13; Baycrest Centre for Geriatric Care v. ONA, 2000 CanLII 39447 (ON LA), see paragraphs 25, 31, and 32; Abbeylawn Manor Living Inc. v SEIU, Local 1, 2022 CanLII 76359 (ON LA), see paragraph 101; and Ontario (Ministry of Community, Family and Children Services) v. Crown Employees Grievance Settlement Board, 81 O.R. (3d) 419, 2006 CanLII, see paragraph 28. 10 in the clearest of cases where other less extreme measures could not fairly remedy the offending party’s refusal to comply, such as (but not limited to) drawing adverse inferences, prohibiting the admission of a document that has not been produced supporting the offending party’s side, granting an adjournment or possibly awarding costs, etc., subject to the provisions of a collective agreement on these matters. 35. In Baycrest Centre for Geriatric Care v. ONA, Arbitrator Gedalof, in dismissing a grievance without a hearing, relying on Re: Budget Care Rentals Toronto Ltd. and UFCW 175 (Baron), stated, 25. I agree with arbitrator Davie that one ought not to exercise this discretion lightly, particularly in a matter as significant as a discharge grievance, and that the exercise of such a power should be reserved for the clearest cases. But I equally agree with her statement that in processing a grievance—a dispute resolution procedure that is intended to provide a resolution to the dispute in a reasonably expeditious and inexpensive manner—it is reasonable to expect that the grievor would cooperate with reasonable requests made by the union and would comply with the directions and orders of the arbitrator. It is, after all, the grievor that seeks to obtain the benefit of this process. Where the grievor fails to cooperate and comply with orders, without good excuse, and where this failure frustrates the arbitration process and results in additional time and expense to the union and the employer, there may be good reason to dismiss the grievance. 36. It is also clear from the case law, that the power to dismiss a grievance should only be exercised in the clearest of cases and where a lesser measure, such as the exclusion of evidence, does not address the impugned conduct. 37. In Serco Des Inc. v USW, Local 9511, Arbitrator Luborsky, following a review of the case law, referenced the following principles: a. An arbitrator has authority to allow or dismiss a grievance without a hearing on its merits in response to a party’s non-compliance with a production, procedural or evidentiary order. b. Did the non-compliance arise out of a deliberate disregard for the arbitrator’s order. and 11 c. A dismissal is an extraordinary sanction that should only issue in the clearest of cases where other less extreme measures could not fairly remedy the offending party’s refusal to comply.2 38. In the circumstances of this matter and motion to dismiss before me, the Grievor was asked the name of his partner. He declined to answer. I found, that in the circumstances of this case, the question was relevant and appropriate. I directed him to answer the question. He, once again, refused to answer stating that the reason for his refusal was the private nature of the information sought and that he did not have the consent or written authorization from his partner to provide the partner’s name. I again directed him to answer while advising that his reasons for refusing to answer were not acceptable. He refused again. During a brief adjournment, Counsel for the Union was given an opportunity to speak with the Grievor. Following this exchange and a mid-morning break, I issued an Order and Direction directing the Grievor to provide the information, namely the name of his partner. He was given until 5:00 pm to comply with the Order and Direction. (The contents of the October 9, 2024 Order and Direction are reproduced above). Shortly after 5:00 pm on October 9, 2024, Counsel for the Union advised, via email, that the Grievor would not be complying with the October 9, 2024 Order and Direction. 39. I find that the Grievor refused to comply with a valid procedural and production order and that his refusal demonstrated a deliberate disregard for the arbitral process, the order, and my arbitral authority. The first two elements of the factors referenced by Arbitrator Luborsky in Serco Des Inc. v USW, Local 9511 have been clearly established. 40. I note at this time, that I firmly rejected the Grievor’s justification or reasons for his non-compliance. It is not unusual, in fact it is expected, that in a claim for accommodation, the individual claiming the accommodation will be required to provide private personal information, and in a claim for accommodation based on family status, it is expected that the individual claiming accommodation will be required to reveal private personal information regarding his or her family. 41. The Union argued that I should consider the Grievor’s non-compliance as less serious given that the information sought, the name of the Grievor’s partner, was an ancillary fact and not relevant to the central issue of family status accommodation. Although I agree with the Union that the information was likely not crucial to the central or core issue, this however is not the test and glosses over a deliberate non-compliance to a procedural and production order. The Hospital is entitled to the information. They raised concerns regarding the redacting of the invoices and they are entitled to test that information and/or probe into their concerns. It is not the Grievor’s role to determine what evidence will or will not be canvassed. The Grievor is not curator of relevant facts. The analysis is whether the Grievor deliberately or blatantly disregarded a direction and order. 2 Serco Des Inc. v USW, Local 9511, 241 L.A.C. (4th) 194, para.47. 12 That question is answered definitely in the affirmative. The importance of the information or facts withheld has little if any weight in the analysis of whether there has been a deliberate non-compliance. 42. The Union argued that the Grievor, to the best of his abilities, attempted to comply with the direction and order. I disagree. As described above, the Grievor’s non-compliance was deliberate and blatant. His refusal to answer, what can only be described as a simple straightforward question, defies logic and common sense. Is there a less extreme measure than dismissal, that can fairly remedy the Grievor’s non-compliance with the directions given on October 9, 2024 and the October 9, 2024 Order and Direction? 43. Having considered the parties’ submission and the case law, I am of the view that dismissal is the appropriate remedy. I have considered the fact that the non- compliance was deliberate and blatant. The Grievor was given a number of opportunities to correct the course of his actions/decision but chose non- compliance and did so after having an opportunity to speak to Union Counsel. 44. I also considered the seriousness of the matter before me. A claim for accommodation based on family status is an important or serious matter that can have potential future consequences. However, in the matter before me, the claim or need for accommodation has lapsed. The need for accommodation arose due to the COVID pandemic and the Hospital’s requirement that employees who are returning from abroad (including the United States) were required to self-isolate for fourteen days. The requirement to self-isolate for those who were fully vaccinated was lifted by the Hospital in July 2021. Further, the requirement to self-isolate, for all employees, including those who were fully vaccinated and those who were unvaccinated, was lifted by the Hospital in or around October 2021. The Grievor’s requirement to self-isolate for fourteen days, and therefore the need for an accommodation, ended as early as July 2021 but no later than October 2021. The case before me does not involve a continuing liability or a continuing claim for accommodation. The Union argued that the case, despite that an accommodation was no longer needed, remained important to the Grievor. Briefly put, the Grievor was unable to see his family for over one and half years, an affirmative decision in this matter could or would be of great benefit in the Grievor’s need to remedy the lost time and perhaps repair an injured relationship with his family. I have a great deal of sympathy for those traumatically affected by the pandemic. However, in the context of a motion to dismiss, this is not a consideration in determining the importance of this case. When assessing the importance of a case, we are looking at a labour relations importance. A termination, obviously, has a high level and ongoing, importance. A claim for an ongoing need for accommodation carries with it a high level of importance. In the matter before me, the Grievor’s claim for accommodation commenced either in or around October 2020 or in January 2021 or later and ended either in July 2021 or, 13 at the latest, October 2021. A remedy following a potential finding in favour of the Union upholding the Grievance in this matter, would not result in an ongoing family status accommodation and most likely, and importantly, would not have an impact on the ongoing or future employment rights for the Grievor and would not affect the ongoing relationship with his employer. 45. With respect to less extreme measures to remedy the Grievor’s non-compliance, the Union suggested the exclusion of some of the evidence in the area that there was a refusal to answer a relevant question. It is my view that this was the purpose or the Grievor’s intended result by the refusing to answer and does not address or remedy the Grievor’s non-compliance. 46. I considered the alternative remedy of excluding all of the Grievor’s testimony. This, at first glance, is less extreme than a dismissal and would address the Grievor’s non-compliance. However, it is not lost on me that this is a claim for an accommodation, as such the Union carries the onus. The exclusion of the Grievor’s testimony, when the Grievor is the Union’s only witness, is tantamount to a dismissal. Further, the exclusion of the entirety of the Grievor’s evidence could adversely affect the Hospital’s case as they, very likely, would seek to rely on some of Grievor’s evidence in support of their defence. 47. Finally, I considered the alternate remedy of addressing the Grievor’s non- compliance when assessing the Grievor’s reliability and credibility. Although this was the Hospital’s alternative position, it is my opinion that this measure did not properly address the Grievor’s deliberate and blatant disregard for the arbitral process and my orders and directions. The Grievor’s decision to not comply with my directions and order must have sanctions that fit the misconduct. The Grievor has demonstrated a blatant d isregard for the arbitral process and my authority as an arbitrator and as a consequence he has forfeited his right to proceed. CONCLUSION 48. Before concluding, I want to address two matters. 49. First, the Hospital argued that the Grievor was deceitful in his failure to comply with my October 7, 2024 order directing him to produce unredacted copies of the invoices and directing him to conduct a thorough review of his records. The Hospital’s argument and position were primarily based on their view that the invoices were redacted electronically and the electronic copies, provided in PDF, could be unredacted in mere seconds. The Hospital suggested that the Grievor would be aware of this and was, therefore, at all times in possession of unredacted copies of the invoices. I note that it is likely that the Hospital is correct in that the invoices would be easily electronically unredacted. However, the Grievor’s information or understanding of how the documents could be unredacted was not tested in evidence and I am therefore unable to conclude that the Grievor knew the documents could be easily redacted, and was therefore deliberately or 14 blatantly in non-compliance with my October 7, 2024 Order. In coming to the conclusion that the grievance should be dismissed without a hearing into its merits for an abuse of process, I did not consider the Hospital’s argument that the Grievor was in deliberate non-compliance of the October 7, 2024 Order 50. Second, I want to be clear that it is my view that the parties, and their Counsel, have conducted themselves professionally and commendably throughout this hearing. I thank both Counsel for their patience and professionalism in how they dealt with a very difficult situation. The dismissal for an abuse of process is a direct consequence of the Grievor’s conduct and does not reflect upon the parties or their Counsel. 51. In conclusion, I find that the Grievor’s deliberate and blatant refusal to comply with my procedural directions and orders and his deliberate and blatant refusal to comply with my October 9, 2024 Order and Direction was an abuse of process. In the circumstances of this matter, which include the Grievor’s disregard and disrespect towards the arbitral process and my arbitral authority, the fact that in this matter the Union carries the onus, and the fact that the Grievor is the Union’s only witness, I find that it is appropriate to dismiss the grievance without a hearing into its merits. 52. The hearing date scheduled for October 17, 2024 is cancelled. Dated at Ancaster this 15th day of October 2024.