HomeMy WebLinkAbout2010-2654.Pacheco.18.05.28 Decision
Crown 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#2010-2654
UNION#2010-0234-0283
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pacheco) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Suneel Bahal
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
TELECONFERENCE
May 24, 2018
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DECISION
[1] I am hearing a number of discipline grievances filed on behalf of Mr. J. Pacheco,
a Bailiff. We are at a stage in the proceeding where the Employer is calling its
evidence. It is likely that the testimony of a Manager will be completed soon and the
Employer intends to call a few more witnesses before closing its case in chief. An issue
has arisen regarding the recalling of three employees who had been called by the
Employer to testify. I heard from counsel on the recall issue during a conference call
held on May 24, 2018.
[2] During the course of this proceeding, the parties have addressed a number of
disclosure issues, primarily related to the production of documents. The parties agreed
to address these issues without delaying the calling of witnesses. Without setting out
the agreement of the parties in detail, I note that counsel agreed that the Union could
request the recall of an Employer witness for the purpose of dealing with matters
covered in documents that were produced after the witness had testified. With respect
to three Employer witnesses who had testified last year, Union counsel advised that he
had likely completed his cross-examination, subject to his right to request the recall of
the witness if the subsequent production necessitated further cross-examination. With
at least two of the witnesses, Employer counsel may have questions for them in re-
direct. It appears that there are no longer any outstanding production issues. For the
purpose of organizing the presentation of the Employer’s case, Employer counsel has
requested that the Union advise him if the Union wants to have any of the three
witnesses recalled. The Union has responded by indicating that it will decide on
whether it wants any of the three witnesses recalled only after the Employer presents
the rest of its case in chief. The Employer has requested that I direct the Union to
indicate now whether it wants any of the three witnesses recalled so that their testimony
can be completed in a timely fashion and because of its view that it has the right to
decide when and in what order to call its witnesses. On this last point, Employer
counsel relied on the Association of Management, Administrative and Professional
Crown Employees of Ontario (Mar et al) v. The Crown in Right of Ontario (Ontario
Science Centre), 2010 CanLII 28620 (ON GSB).
- 3 -
[3] Having considered the submissions, I am satisfied that it is reasonable in the
circumstances for the Union to decide now whether it wants any of the three witnesses
to be recalled. Having received the relevant documents, the Union is now in a position
to decide whether it has any further cross-examination of these witnesses and to
complete its cross-examination in a timely manner. To defer the decision on the recall
of the witnesses until the Employer has called the rest of its case is not consistent with
the purpose of the agreement on the recall of witnesses and it unduly restricts the
Employer’s right to call its case as it sees fit. As a general matter, delay in the
completion of the testimony of a witness should be avoided if possible.
[4] I appreciate that the Union may need some time to determine whether the
subsequent production of documents will require further cross-examination of the
witnesses who were subject to recall. I therefore direct the Union to advise the
Employer by no later than June 15, 2018, as to the witnesses it wants recalled for
further cross-examination due to the subsequent production of documents. After June
15, 2018, the Employer can decide to recall a particular witness consistent with its right
to organize the presentation of its case.
Dated at Toronto, Ontario this 28th day of May 2018.
“Ken Petryshen”
Ken Petryshen, Arbitrator
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Appendix A
GSB Number OPSEU File Number
2012-0727 2012-0234-0066
2013-3214 2013-0234-0359
2014-0350 2014-0234-0061
2014-3305 2014-0234-0458
2014-3846 2014-0234-0508
2014-4854 2015-0234-0030
2015-0390 2015-0234-0058
2015-0494 2015-0234-0069
2015-0495 2015-0234-0070
2015-0496 2015-0234-0071
2015-0913 2015-0234-0085
2015-0914 2015-0234-0086
2015-0915 2015-0234-0087
2015-0916 2015-0234-0088
2015-1310 2015-0234-0108
2015-1311 2015-0234-0109
2015-1312 2015-0234-0110
2015-1313 2015-0234-0111
2015-1314 2015-0234-0112
2015-1315 2015-0234-0113
2015-1316 2015-0234-0114
2015-1317 2015-0234-0115
2015-1318 2015-0234-0116
2015-1319 2015-0234-0117
2015-1320 2015-0234-0118
2015-1321 2015-0234-0119