HomeMy WebLinkAbout2007-1470.Bolduc.08-02-05 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2007-1470
UNION# 2007-0737-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bolduc)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Owen V. Gray
FOR THE UNION
Sei Codjoe
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal
Counsel
Ministry of Government and Consumer
Services
HEARINGJanuary 31, 2008.
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Decision
[1] In her grievance of May 11, 2007, in this matter the grievor complains that ?the employer
is in breach of the WSIB return to work protocol? and asks ?that I be made whole and that the
employer honour the agreement.? This decision confirms my oral direction that the parties
exchange particulars and productions prior to the continuation of the hearing. I begin by
explaining briefly why the order was made.
[2] As I presently understand the grievance, the union relies on an agreement in writing with
respect to the grievor?s return to work following an absence due to an injury or disability for
which she had been receiving compensation under the Workplace Safety and Insurance Act
(?WSIA?). The agreement was made with the assistance of the Workplace Safety and Insurance
Board. One of the terms of that agreement, according to the union, was that the grievor would
thereafter be employed at a location referred to by the parties as ?the jail.? The union says the
employer breached that term by reassigning the grievor to work at the Thunder Bay Correctional
Centre (?TBCC?) some time after she returned to work at the jail.
[3] I do not intend to catalogue here all the factual allegations and legal arguments that the
employer apparently will or may raise in answer to this claim. One of those allegations is that
one of the reasons for its reassignment of the grievor to the TBCC (which it says is the location
of her home position) was that after the grievor returned to work at the jail some interpersonal
conflicts arose between her and co-workers there. The employer evidently also assigns some
significance to discussions it had with local union representatives about those conflicts and its
intention to deal with them by reassigning the grievor to the TBCC.
[4] While I noted employer counsel?s allegation that he had requested particulars from the
union some months before the hearing and had received no answer, the prospect of evidence and
counter-evidence concerning otherwise unparticularized incidents of interpersonal conflict
between bargaining unit members was sufficient reason to make the order that follows. In my
experience, it is difficult to conduct a fair hearing into matters of that sort without incurring
substantial delays, both during and between hearing dates, if each party does not have advance
notice of the specific allegations of fact to which it will have to respond.
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[5] Accordingly, each of the parties shall provide the other with full written particulars of the
material facts on which it relies in this matter, in accordance with the timetable and additional
requirements hereafter set out. Each party shall also provide the other with copies of any
documents (and in this order ?documents? means any record of information, in whatever form,
physical or electronic, that record may take) that are in its possession, custody or power on which
that party may wish to rely in these proceedings. The union shall also produce any documents on
which it may wish to rely that are in the possession, custody or power of the grievor. This
direction does not require that a party deliver copies of documents that it has already copied to
the other in the course of and expressly for the purpose of these proceedings: as to such
documents the party may, instead, unambiguously identify in writing the previously delivered
documents on which the party intends to rely.
[6] With respect to each act or omission alleged therein, each party?s written particulars shall
state what it says was done or not done, when, where, by what means and by whom, identifying
by name any individual whose actions are being attributed to an organization. Conclusory
statements based on unparticularized allegations of fact are not sufficient. The allegations of fact
set out in a party?s particulars should be sufficiently comprehensive that it would be unnecessary
for that party to call any evidence if the opposite party were to admit that all of those allegations
of fact were true. It is not necessary for a party to include in its written particulars a description
of the evidence by which it will seek to prove any of the allegations of fact set out. It is not
necessary for a party to identify in its particulars any witness to any occurrence in question,
unless the presence of that particular person on that occasion is a material fact on which the party
relies.
[7] The parties? particulars and productions shall be delivered in accordance with the
following timetable, which is designed to accommodate their desire to complete their attempts to
settle this matter before having to prepare further for the continued hearing in this matter:
a) On or before April 29, 2008 the union shall deliver to the employer?s counsel its
written particulars of the factual allegations on which it relies, and together with
copies of any documents upon which it may wish to rely.
b) On or before May 20, 2008 the employer shall deliver to the union?s counsel written
particulars that explicitly identify the allegations of fact in the union?s particulars that
the employer does not dispute, if any, and the allegations of fact that it does dispute
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and, as to the allegations that it does dispute and any other issues it intends to raise,
set out the allegations of fact on which it relies in that connection, together with
copies of any documents upon which it may wish to rely.
c) On or before June 3, 2008 the union shall deliver to the employer?s counsel written
particulars of any allegations of fact on which it relies with respect any issue first
raised by the employer in its particulars, together with copies of any additional
documents upon which the union may wish to rely in that regard.
If the need arises, these deadlines may be modified by agreement of the parties or further order
of the Board.
[8] For clarity, and without limiting the generality of the previous paragraphs, the particulars
to be delivered by the employer in accordance with paragraph [7](b) shall include particulars of
any incidents of interpersonal conflict between the grievor and another or others on which it
intends to rely, and the particulars to be delivered by the union in accordance with paragraph
[7](c) shall include its versions of each of those incidents and any other facts on which it relies in
response to the employer?s allegations in that regard.
[9] A party who fails to produce a document or to provide particulars of an allegation in
accordance with this order may not introduce that document or present evidence about that
allegation in these proceedings without leave.
[10] The provisions of this order with respect to production of documents do not preclude an
application by either party for an order requiring the production by the other of additional
documents once the issues in dispute have been defined by the exchange of particulars and
documents contemplated by this order.
th
day of February, 2008.
Dated at Toronto, this 5