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HomeMy WebLinkAboutUnion 02-12-23 ~ . - Jan-23-.Z003 02:02PM FrDII-RWBD 4163409250 T-525 P.OBZ F-969 . ,.,- . J . . . , IN THE MATIER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATTER OF A GRIEVANCE WITH RESPECT TO ARTICLE 2. O.B. SHIME, a.c. CHAIRPERSON RENE ST. ONGE NOMINEE FOR THE COLLEGE SHERRIL MURRAY NOMINEE FOR THE UNION APPEARANCES: PEIGI ROSS COUNSEL. and others for the College KELLY WADDINGHAM COUNSEL. and others for the Union Hearings were held in this matter at Toronto, Ontario on January 21, May 1 and June 10, 2002 . Jan-23-2003 02:02PIII FrQ8-RWBD 4163409250 T-525 P. 003/01 0 F-IIS9 . . - . - . . AWARD I n this matter the Union filed a grievance alleging that the College has failed to comply with the Collective Agreement by improperly utilizing sessional. part-time, and partial load appointments to fill regular full-time positions. The gñevance arose after the Union was provided. with a list of 21 full~timefacultywhoretired between November 1999 and August 31A, 2000. The Union claims to have discovered that 15 of those vacant full-time positions were never posted. Two preliminary issues have arisen. The first is an evidentiary issue. The concem is what evidence is required in order to establish a prima facie case and who has to provide that evidence. The second issue concerns the production of documents. The relevant provisions of the Collective Agreement are as follows: 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions subject to such operational requirements as the quality fo the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03A The College wiJI give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post- secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fitl ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives. the need for speaal qualifications, and enrolment patterns and expectations. We turn now to the first issue. The Union agrees that it has an obligation, in the first instance, to establish a prima facie case. The parties differ as to what constitutes a prima facie . Ja,J-23-:2003 D2:02PI FrDII-RWBD 4163409250 T-5Z5 P.DD4/DI0 F-9G9 . ,- . . - -2- case. A prima facie case means that the grievors evidence would reasonably allow the conclusion that the grievor seeks if the other party does not produce evidence to rebut it. In effect, to establish a prima facie case the evidence must be sufficient that if it is unexplained or uncontradicted it will be sufficient to allow a grievance in favour of the issue which the evidence supports. The nature of the grievance or the grievance itself is often determinative of the evidence to be adduced in oreler to establish a prima facie case. In this case the Union aDages a violation of Article 2 and requests the College to post for the positions vacated by retired faculty. Based on the grievance the Union claims that fulHime faculty have retired and the reasonable inference from the grievance is that other persons are performing the work or teaching the courses that were formerly taught by the full-time faculty who have retired. Accordingly, based on the grievance the Union must establish that (1) full-time faculty have retired and (2) there is a vacant position which requires the College to post. A vacant position exists where there is adequate work to justify the - filling of the position and, accordingly. the Union must demonstrate that there is adequate work, that is. i.e. sufficient courses are being taught to justify the filling of the position. In summary therefore. to establish a prima facie case the Union must show that the position that had been occupied by the full-time faculty who retired has been filled by another full. time person without being posted or, in the alternative, that the position that had been occupied by the full-time person who retired is being filled by others who are not full-time employees. In the context of this dispute the position compñses the courses that were taught by the retired full-time faculty member. \ Once the Union has established a prima facie case the College bears the onus of proving . Jan-Z3-:Z003 OZ:02P11 Fral-RWBD 4163409Z50 T-525 P.005/010 F-9S9 ... . - -3- facts to refute the facts adduced by the Union. and also the College has the onus of establishing that it is relieved of any obligation pursuant to the provisions of Article 2.02 and 2.03(A) of the Collective Agreement. In effect, the College has the onus of adducing evidence to show that the "preference" indicated for fun-time positions is subject to "operational requirements- pursuant to Articles 2.02 and 2.03A. We now turn to the issue of productions. In some respects this case has been argued on the basis that there are separate and distinct requirements for each of the parties to produce documents. However. the purpose of producing documents. is to enable all the evidence relevant to the matter to be placed before a Board of Arbitration. In that respect, both parties have an obligation to produce documents that are arguably relevant. If one party has given docLJments to the other party, it does not relieve that party from producing those documents for the purpose of the hearing. Both parties have that responsibility. In an ordinary commercial matter, for example, both parties may have signed contracts and there may have been an exchange of letters so that one partY has copies and the other party has the originals. In that case, either party is required to produce those documents which are in its possession which are arguably relevant. It is no answer for one of the parties to say that it has already given documents to the other party at some time in the past There is a distinction to be drawn between documents which are exchanged in the ordinary course of busin ess and documents Which are required for arbitration purposes. Under this Collective Agreement the Union in the ordinary course of business, so to speak, is provided with many documents which may touch on the issues ìn dispute. And while the Union may have some or all of those documents in their possession, the ordinary possession of those documents does not constitute production for the purposes of arbitration in the more legal sense. There is a distinction between ~exchanging" . Jan-23:2003 02 :O3PII Frq-RWBD 4163409250 T-525 P.O06/010 F-969 . . - -4- documents in the normal course of business and .producing" documents for the purpose of arbitration. Accordingly, and notwithstanding that documents have been exchanged in the ordinary course of business, the parties may be required to organize and consolidate those documents for the purpose of production in order to ensure that the Board of Arbitration will have those documents if they are relevant to the issues at hand. Accordingly, both the College and the Union are required, if requested by the other party. to produce documents in their possession for the purpose of the arbitration that are arguablY relevant. In Toronto District School Board and Canadian Union of Public Employees. unreported, July 17.2002, the chairperson of this Board of Arbitration, in a case where the Employer requested production from the Union, disCUS$Ød the production of documents both in civil and criminal matters and concluded as follows: "After duly considering and compañng the civil and criminal process to the arbitration process, it is my view that a liberal view should be taken with respect to the production of documents- In considering a general request for production. the following factors should be considered: (i) anything which can assist in the preparation and presentation of a party's case, the refining of issues, the facilitation of settlement and a fair process should be encouraged, Re Children's Aid Society of CitY of Belleville. County of Hastinas and CitY of Trenton and Canadian Union of Pyþlic Emplovees Local 2197. infra. Arbitration by ambush should not be condoned. (ii) Once a general request for production is made every document relating to any matter in issue that is or has been in the possession. control or power of a party must be disdosed and that includes documents for which prMIege is claimed. The party in possession, control or power of a document should provide a list of documents, relating to any matter in issue, to the requesting party and make those documents available for examination prior to the hearing. (iii) All documents which are arguably or seemingly relevant or have a semblance of relevance must be produced. The test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as . Jan-23:-Z003 02:03P1 FrDll"'RWBD 4163409250 T-525 P.OOTlO10 F-969 . ' . ' .- -5- to what may be relevant during the course of the hearing. (iv) The primary onus to produce documents rests with the party who has or has had possession. control or power of the documents. In the ordinary civil process a party must serve and file an affidavit of production with respect to documents, and while I do not suggest complicating the arbitration process by requiring affidavits on production, I see no reason Why a party who has or had possession, control or power over documents should not have the onus of producing such documents. (v) The burden lies on the party who resists disclosure to justify the refusal to disclose. (vi) Some of the arbitration decisions require a requesting party to particularize the documents it wishes to have produced with some precision. However, while I acknowledge that parties to the arbitration process live together in a continuing relationship and know something about each others affairs. they cannot be expected to be fully aware of each others internal affairs. Given the general purpose for producing documents, where the knowledge of those documents lies, coupled with the minimal pre.hearing procedures in the arbitration process, and after considering where the onus to produce documents lies, it is my view. that while a request for particular documents may be helpful, the request for particulars should not be scrutiniZed too carefully for precision. Where a party is served with a general request to produce documents as indicated above, it must produce evel)fdocument relating to any matter in issue which is seemingly or arguably relevant. Needless to say, I find that the ciVil rules make greater sense than the established arbitral rules, by requiñng the party who has possession, power or control over the documents to produce them. To require a party who has not had possession. power or control over the documents, or who may not be completely aware of the documents or their contents to identify them with any precision or particularity seems contrary to commonsense. (vii) where a request has been made for documents and a party fails to produce such a document, but seeks to produce it during the hearing and the document is favourable to that party's case, consideration should be given to not admitting the document at the hearing. However, the arbitrator should exercise his/her discretion in admitting the document and may do so under certain tems. (vii) Contrary to the Union's submissions. in this case. all documents should be produced prior to the hearing in order to enable the parties to prepare their cases with the documents in mind. And further the documents of the opposing parties may be Introduced in evidence in order to assist either party in the presentation of its case, regardless of the burden of proof. Verbal statements made by a party to the proceeding are always admissible even to assist the opposing party and there is no reason why statements in writing should not be similarly admitted. In civil matters, verbal statements made by a party whether made outside the proceedings or on discovery, as welt as documents produced by an opposing party may be used by the other party to buttress its case, even to the point in assisting the other party in satisfying the burden of proof. In this respect. while I am in agreement with much of the learned arbitrators interim award in Re Central Park lodges rVersa.Care Windsor Place} and Service Employees. International Union. Local 21095 LA.C. (4th) 192 (B. Etherington), I respectfully disagree with that portion of the award at p204, which maintained that production by the Union might undermine the "placement of the burden of proof on the employer", nor am I in agreement with that part of the award which delays . Jan-2372003 D2:03PI Fra-MD 4163409250 T-525 P.GOI/OID F-969 . , . - -6- production until well into the case. In my view, all productions should be ordered prior to the hearing regardless of whether the documents help or hurt a party's case. See also Re West Park Hosøital and Ontario Nurses' Association (1994) 37 LA.C. (4111) 160 at p169 (P. Knopf). The purpose of the prehearing is to either encourage settlement or ensure a fair process and a board of arbitration at that stage should not enter the tray and consider issues such as the burden of proof. The role of a board of arbitration prior to the hearing is simply to ensure that all relevant information is produced regardless of which party that information may help or hinder. Moreover, counselor representatives presenting the case should be in a position prior to the hearing to plan and strategize how the case is to be presented; it is too awkWard to plan and develop a case if productions are made mid- stream, so to speak. (ix) I also recognize that there are documents which are privileged as well as documents which should only be produced with certain restrictions imposed. In that resped. should any problem arise, an arbitrator may be asked to make a determination with respect to those documents prior to the hearing. Also, it is only those documents which are çlearly irrelevant which need not be produced." We now tum to apply these principles to the instant case. FIrst, the names of retiring professors (which have already been given to the Union) must be produced. In its argument as to what constitutes a prima facie case the College submitted that "in order to substantiate a violation of Article 2, the Board must first be satisfied that there is a body of work which translates into a full- time position" and the College then went on to say thaf'based upon the arbitral interpretation of Artide 2, the Union bears the onus of adducing evidence that such a full-time position exists" - In the earlier part of this award dealing with the obligation of the Union to establish a prima facie case, we agreed with the College's position. However, the College's submission makes "the body of work" a relevant consideration in these proceedings. . ' The "body ofwork" consists of the courses taught by the retiring professors and accordingly, the College must produce any documents which list the courses taught by the retired professors. ( And further the College must also produce any documents which indicate whether those courses, or courses sufficiently similar, or which are arguably relevant, are being taught by others who are \ either full~tim2 or part-time. which includes partial load and even sessional persons. . Jan-Z3-ZDD3 DZ:D4P1 FrOll-RVlBD 41SUD9Z5D T-5Z5 P.DD9/DtD F-9S9 , ,- - ' - -7- We also recog nize that in the particular circumstances of this case, the production of the myriad of documents required places an o~erous and expensive responsibility on the College and if the College were to serve the Union with a general notice to produce, the Union would have the onerous and expensive responsibility of producing all of the documents it received from the College in the ordinary course of business. All of this would require much time and expense to both parties. In our view, arbitration should be an inexpensive and expeditious process and, in order to assist the parties in this regard we direct the parties to exchange lists of documents which each party has ;n its possession. This would save each party the time and expense of searching for and producing documents which the other party has in its possession and would require only those documents which do not overlap to be actually produced. Accordingly, the parties are directed to exchange lists of documents which are arguably relevant in accordance with this decision. Only those documents which are not included in the overlap are to be produced to the other party. In the event that the parties have any difficulty implementing this award we will remain seized of this matter. . ; Jara-23.:2003 02:04P11 F FQ8-RWBD 4163409250 T-525 ~ "'. . P.DIO/D1D F-9GB .. . . . . - 'i,~ ' -8- DATED AT TORONTO THIS 23/d DAY OF DECEMBER 2002. ~- 8Rene Sl Onge8 RENE ST. ONGE NOMINEE FOR THE COLLEGE .Shenil Murray. SHERRIL MURRAY NOMINEE FOR THE UNION