HomeMy WebLinkAbout2005-1363.Hepplestone.07-02-08 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas Sl. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
reglement des griefs
des employes de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tel. : (416) 326-1388
Telec. : (416) 326-1396
IN THE MATTER OF AN ARBITRATION
Under
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Ontario
GSB#2005-1363
UNION#2005-0549-0003
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
BEFORE
FOR THE UNION
FOR THE EMPLOYER
HEARING
Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union
(Hepplestone)
- and -
The Crown in Right of Ontario
(Ontario Science Centre)
Bram Herlich
Ed Holmes
Counsel
Ryder Wright Blair & Holmes LLP
Paul Meier
Counsel
Ministry of Government Services
May 1, 2006, February 1 & 2, 2007
Union
Employer
Vice-Chair
2
Decision
The grievor alleges that he was improperly surplused.
The union has indicated that there is a multiplicity of positions, which the grievor could
have assumed rather than being laid off. The employer asserted that the union ought to be limited
to pursuing a single position on behalf of the grievor. Without resolving that dispute, the parties
agreed that, for the initial phase of these proceedings, the union would identify a single position
for which it asserts the grievor was qualified. It has done so and the employer contests the
grievor's capability to meet the minimal requirements of that position. The crux of the issue at
this stage of these proceedings is whether the grievor meets the basic requirements of the
position.
At the conclusion of the Union's evidence on the issue, the employer moved for a non-
suit. The union consented to the motion being argued without any need for the employer to be
put to its election.
There was no dispute between the parties as to this Board's general approach to non-suit
motions. Both parties referred to the decision of the Board in Re Whan et al. 2003-3446
(Dissanayake) in which the following was outlined (at page 2 et seq.):
1. The Board will not put the moving party to an election of whether or not to call its
own evidence as a matter of course. The appropriateness of putting the moving
party to such an election will be determined based upon the considerations of
expedition and fairness in the particular circumstances of each case.
2. In a non-suit motion, the standard of proof expected from a responding party is that
of a prima facie case, which is significantly lower than the standard of proof on a
balance of probabilities.
3. In determining whether a prima facie case has been made out, the test is whether
some evidence exists to support the claim, which requires an answer or explanation
from the other side.
4. In applying the standard of a prima facie case, any conflicts in or doubts about the
facts must be determined in favour of the party responding to the motion.
3
5. In assessing the existence of a prima facie case, viva voce evidence as well as all
documentary evidence before the Board must be considered.
6. In examining the evidence before it, the Board will not assess the quality,
reliability or the credibility of the evidence.
7. Where a non-suit motion is granted a written decision with reasons will follow.
However, where a motion is denied, no reasons, oral or written, will be issued.
In the context of the foregoing and having considered the evidence, the authorities cited
and the submissions of the parties, I am satisfied that, without commenting on its quality,
reliability or credibility, some evidence exists to support the union's claim.
The employer's non-suit motion is hereby dismissed.
Dated at Toronto, this 8th day of February, 2007.
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Bram Herlich, Vice-Chair