HomeMy WebLinkAbout2014-1158.Brown-Bryce et al.16-06-13 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2014-1158, 2014-1159, 2014-1160, 2014-1162, 2014-1163, 2014-1164
UNION#2014-5112-0043, 2014-5112-0044, 2014-5112-0045, 2014-5112-0047,
2014-5112-0048, 2014-5112-0049
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Brown-Bryce et al) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING June 7, 2016
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Decision
[1] The Board is seized with six individual grievances, each alleging that the
employer failed to make reasonable provisions for safety and health of the
grievors as required by article 9.1 of the collective agreement. The grievances
arose following an incident that took place at the Toronto South Detention Centre
on March 11, 2014. Upon agreement of the parties, a view of the relevant areas
of the Toronto South Detention Centre was conducted on June 7, 2016.
Following the view, a hearing was held at the detention center to deal with certain
preliminary matters.
[2] The first issue was a motion by the employer that the grievances in GSB FILES
2014-1162 (Peck) and 2014-1164 (Thanachayan) be dismissed due to the
grievors’ failure to attend any of the hearings in this matter, and due to their
failure to prosecute the grievances.
[3] The union advised the Board that it was withdrawing the grievance in GSB File
2014-1164 (Thanachayan).
[4] After the completion of submissions on the motion as it related to file 2014-1162
(Peck), union counsel advised that he would be seeking instructions on whether
Ms. Peck wished to pursue or would be withdrawing her grievance. In the
circumstances, the parties requested that the Board differ the issuance of its
decision on the motion until the union advises whether or not it wishes to pursue.
The union is therefore directed to advise the Board and employer, no later than
Wednesday June 22, 2016 whether the Peck grievance is withdrawn or whether
it wishes to pursue with it. If no communication is received by that date, the
Board would be issuing its decision based on the submissions received.
[5] The second issue raised by the employer was about disclosure and particulars.
The employer had previously raised its concerns about inadequacy of particulars
and disclosure on the part of the union. At the hearing on April 6, 2016, the issue
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came to a head. Following discussions between the Vice-Chair, employer
counsel, and union counsel at the time, Mr. John Brewin, the parties agreed on a
process with attached timelines. On agreement, this process was issued in the
form of a Board order in a decision dated April 8, 2016.
[6] The parties agree that some particulars and productions had been made
pursuant to the Board order. Mr. Hannigan conceded that some particulars and
production are still outstanding, and that the timelines for compliance set out in
the Board order have passed. Mr. Hannigan submitted that nevertheless, it
would not be appropriate to dismiss the grievances outright at this stage without
giving the union a further opportunity. He submitted that the union and the
grievors have treated the Board order very seriously and had made significant
attempts to comply. To the extent that medical disclosure still is not complete, it
is the result of the failure on the part of third parties to respond to the union’s
requests for information in a timely manner. Mr. Hannigan pointed out that he
had recently taken over this matter as counsel from Mr. Brewin, and stated that
he would, if it becomes necessary, force the third parties in question to produce
the information by serving them summonses.
[7] Employer counsel reviewed in detail all efforts he had made to obtain the
information ordered by the Board. He submitted that while he was entitled to
seek outright dismissal of the grievances for failure to comply with the Board
order, he would not oppose giving the union a further opportunity to comply,
provided strict conditions are attached together with severe consequences for
non-compliance.
[8] In a communication to union counsel dated May 16, 2016, employer counsel set
out the information ordered by the Board, which in his view was still outstanding.
The union did not dispute that the information in question was relevant and had
not been provided as required by the Board order. If the Board accepts that the
missing medical documentation is due to tardiness on the part of third parties,
that still does not explain the failure to provide particulars referred to in the May
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16, 2016 communication of employer counsel. That information has nothing to
do with third parties. Therefore, taking all of the circumstances into
consideration, it is ordered as follows:
The union shall provide all of the outstanding disclosure and particulars
referred to in the employer’s communication dated May 16, 2016, as they relate
to the issue of liability, no later than July 4, 2016. If the Board concludes that the
union has been non-compliant, the union would be precluded from leading any
evidence on the assertions related to such information. To be clear, the medical
information outstanding is arguably relevant to the issue of liability, and must be
disclosed no later than July 4, 2016.
[9] The Board remains seized.
Dated at Toronto, Ontario this 13th day of June 2016
Nimal Dissanayake, Vice Chair