HomeMy WebLinkAbout2014-3302.Lupiani.18-05-07 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# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219;
2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845;
2017-1846
UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012;
2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542-
0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Lupiani) Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation) Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Susan Munn
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 2, 2018
-2-
DECISION
[1] The Board is seized with some 16 grievances filed by Ms. Nancy Lupiani
(“grievor”). The parties, with the Board’s intervention on occasion, are dealing still
with preliminary and process issues. When the Board convened on May 2, 2018
the parties requested that the Board rule on two preliminary issues.
[2] First, the employer objects to parts of the particulars the union has filed with
respect to three grievances filed in 2017.
[3] Second, the employer has objected to production of some documents requested
by the union. The union takes the position that it is entitled to full production as
per its request.
[4] In making the rulings that follow I have considered the submissions of counsel on
each of the matters in dispute, as well as legal principles, particularly those
established in arbitral jurisprudence.
PARTICULARS
Grievance Procedure Privilege
[5] Paragraphs 28, 29, 31, 32, 33 and 48 are objected to on the grounds that the union
is not entitled to rely on the facts asserted therein because they are protected by
the grievance procedure privilege.
[6] The Board finds that the assertions in the paragraphs are about communications
or positions taken, either during the grievance procedure or during mediation at
the Grievance Settlement Board. The assertions were, if not directly, at least
generally related to the grievances being dealt with. Therefore, they are privileged.
The employer’s objection is upheld, and evidence relating to the assertions in the
paragraphs in question is not permissible.
-3-
Abuse of Process
[7] The employer objects to the admission of evidence relating to assertions made in
paragraphs 14, 15, 16, 18, 30, 34 and 43 of the union’s particulars. It is argued
that the three grievances in question were filed in August 2017 and the grievor filed
a “will say” statement in December 2017. The “will say” statement includes all of
the assertions made in the paragraphs of the union’s particulars. The employer
argues that the union’s attempt to recast the same assertions in the particulars at
this late stage is an abuse of process, and should not be permitted.
[8] I find that in the absence any assertion of prejudice to the employer, or delay or
other detriment to the process, there is no legal or rational basis to preclude the
union from making the assertions which are relevant to the grievances. The
employer’s objection is dismissed.
Similar Fact Evidence
[9] The employer objects to the assertion in paragraph 45 of the particulars on the
basis, inter alia, that it amounts to reliance on similar fact evidence. I agree with
the union that the rule against similar fact evidence does not apply in the particular
circumstances.
[10] However, the employer’s request to strike paragraph 45 is granted for other
reasons. That paragraph does nothing more than make a bald assertion in relation
to the motivation for discipline imposed on another employee. It is totally lacking
in particulars. More importantly, even if that flaw is addressed by provision of
additional particulars, to be of any relevance to this proceeding, the Board will in
effect have to determine the legitimacy – i.e. whether there was just cause – of the
letter of reprimand issued to the other employee. Considering the relative
relevance and potential weight, and the prospect of in effect conducting an
arbitration with regard to discipline imposed on another employee, which may
potentially be the subject of a grievance and arbitration, I exercise my discretion to
disallow evidence in that regard.
-4-
Production
[11] The union agrees that the employer has already made substantial production. The
union has not specified what specific documents, or even what types of documents
are missing. The broad request for further unspecified production is a fishing
expedition which is not permissible considering also that the request casts a wide
net of unspecified documents which would entail significant costs and effort on the
part of the employer, the union’s request for an order for production, as presently
drafted, is denied.
Dated at Toronto, Ontario this 7th day of May, 2018.
“Nimal Dissanayake”
________________________
Nimal Dissanayake, Arbitrator