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HomeMy WebLinkAboutP-2002-0003.Ron Chyczij.07-08-10 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2002-0003 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Ron Chyczij Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Kathleen G. O?Neil Vice-Chair FOR THE GRIEVOR Ron Chyczij Alexandra Chyczij FOR THE EMPLOYER Yasmeena Mohamed Senior Counsel Ministry of Government Services HEARING August 8, 2007. 2 Decision At the hearing held on August 8, 2007 concerning a grievance contesting the denial of the grievor?s request for tuition assistance, the grievor made a further request for an order for production from the employer. During the examination of his own witness, Mary Crisanthus, the grievor asked if his request for tuition assistance had been discussed at a meeting of the Executive Committee of the Pay Equity Office. Ms. Crisanthus was not aware of any such discussion, and is not the person who keeps records of the Minutes of such meetings. Further, she believed that the Minutes were kept in the Pay Equity Office, but was not aware of how long they were kept. Mr. Chyczij then asked for an order for production of Minutes of the Executive Committee, submitting that it was covered by the Board?s earlier order, dated March 16, 2007, on page 6 at item 18, which reads as follows: 18. Any and all communications - written, verbal or electronic - pertaining to my applications for tuition assistance; Employer counsel did not object to this request, and said she would undertake to make sure nothing existed that had not already been produced. At pg. 7 of that decision, the Board directed that any information directed or agreed to be produced should be produced to the grievor as soon as possible and no later than March 30, 2007. At that time, no mention had been made of the Executive Committee or its meetings by either party. Counsel opposed this further request for production given the lateness of the request, several hearing days into the merits of the matter, and on the basis that questions about this area should have been put to Bev Rosser, the decision maker concerning the request for tuition assistance, and Director of the Pay Equity Office, whose testimony was concluded on July 10, 2007. Counsel submitted that this amounted to an expansion of the scope of the grievance and an abuse of process ? that it was a ?fishing expedition? in that the grievor did not know whether there was any discussion at an executive meeting, and that he was just casting about looking for something to substantiate his case. Further, counsel underlines that the grievor has been directed to prepare his witnesses, including about potentially relevant documents, which would have prevented this request in the middle of testimony. Counsel submitted that the employer should not be 3 considered in non-compliance of the March order for not disclosing the Minutes, since neither party was then aware of any suggestion that the tuition assistance request had been discussed at the Executive Committee, as there had been no mention of it until Ms. Crisanthus? testimony. The Board agrees with counsel for the employer that this is not a matter of non-compliance with the Board?s March 16 order. The submissions made prior to that order did not identify the Minutes as a potential source of information about the tuition assistance request, and the word ?communications? does not so clearly apply to the Minutes now in issue as to cause the Board to find that the request is covered by the previous order. Nonetheless, the range of things included in the March 16, 2007 order as arguably relevant would have included any Minutes discussing the tuition assistance request if they had been identified at the time. As the principal test for production is arguable relevancy, the employer is directed to produce to the grievor any executive committee minutes concerning his request for tuition assistance. This should be done as soon as possible, and no later than August 16. If there is some reason why that is not possible, employer counsel is directed to contact the Board forthwith to propose a feasible time frame in which to accomplish it. If there are concerns about confidentiality of any surrounding material in the Minutes which the parties cannot resolve themselves, the Board may be approached. If there is no reference to the grievor?s request for tuition assistance in the Minutes, there will be nothing to produce. The Board continues to be concerned about using its time and resources, and that of the parties, as efficiently as possible, as well as about the orderly introduction of evidence. To this end, the Board has directed the grievor several times to interview his witnesses in advance of the hearing, including about potentially relevant documents. That direction is repeated. This direction extends to giving the witnesses some notice of what they will be called upon to testify about, so that they can refresh their memory about the relevant dates and events, which occurred several years ago. Hopefully, this will help to avoid any further mid-hearing production requests, which are potentially problematic in terms of the orderly introduction of evidence. Further, in an effort to reduce the length of the evidence on uncontested matters, the Board repeats its prior direction to the grievor to attempt to arrive at agreement with employer counsel on any facts that might be stipulated. By August 16, he is to propose to employer counsel any 4 facts that he intends to prove during the August 21 and 23, 2007 hearing dates that might not be in dispute, so that counsel may seek instructions as to whether the employer can agree to them. Such facts would include, but not be limited to, dates and circumstances of events, meetings and documents about which he proposes to introduce evidence. Employer counsel is directed to respond as soon as possible, and no later than the beginning of the hearing on August 21, 2007. For witnesses proposed to be called on any of the scheduled hearing dates of October 18, 23, 25 and November 28, 2007, the grievor is directed to do the same as soon as possible and no later than October 12, and employer counsel is to respond within a week of the date the information is provided by the grievor, or at the start of the hearing date proposed for the witness in question, whichever is earlier. If the above directions are not complied with, the grievor risks refusal of any further production requests or such other consequences or directions as warranted. The hearing will re-convene on August 21, 2007 as scheduled. th Dated at Toronto this 10 day of August, 2007 Kathleen G. O?Neil, Vice-Chair