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HomeMy WebLinkAbout2309-07-U - Boulam 08-08-08 RUG 08 2008 14:46 FR OLRB SOLICITORS 416 326 6392 TO 94164487469 P.03/05 ONTARIO LABOUR RELATIONS BOARD 2309-07-U Violet Boulam, Applicant v. OPSEU, Local 593, Responding Party v. The Clarendon Foundation (Cheshire Homes) Inc.; Intervenor. BEFORE: Mary Anne McKellar, Vice-Chair. APPEARANCES: Violet Boulam appeared on her own behalf; Donna Walrond and Don Martin appeared on behalf of the responding party; Stephen Bernofsky, Sarah Kravetz and Paresh Limbachia appeared on behalf of the intervenor. DECISION OF THE BOARD: August 8, 2008 1. This is an application under section 96 of the Labour Relations Act. j 995, S.O, 1995, c.l. as amended (the '"Act"). The applicant alleges that the responding party trade union ("OPSEU") has contravened section 74 of the Act. The application was filed on October 19, 2007 by counsel for the applicant. 2. The application relates to OPSEU's representation of the applicant in connection with her dischlU"ge from employment by the intervenor ("the Employer"), and in particular with respect to its conduct of an arbitration hearing which resulted in an award upholding the discharge. Among the applicant's assertions is an allegation that the OPSEU representative who presented her case did not cross-examine any of the Employer's witnesses, OPSEU disputes this assertion. 3, By notice dated June 13,2008 this application was listed for consultation on August 8, 2008. 4, By letter dated July 28, 2008, counsel for the applicant advised that he was no longer representing het, 5, At the outset of the consultation I advised all of the parties, but particularly the self- represented applicant, that I would be pleased to answer any questions they might have about the Board's processes, but that I could not provide any legal advice as to do so would be incompatible with my role as an impartial adjudicator. J also advised that the consultation process would result in a final decision of the Board, and might or might not involve testimony from witnesses, depending on what factual disputes existed between the parties and whether I thought it necessary to resolve them in order to dispose of the application. 6, The applicant almost immediately indicated that she had not attended at the Board prepared to litigate this matter and had not brought the necessary documents with her. She advised that some of the documents she possessed but had not brought were: her notes taken during the arbitration hearing, The applicant expressed a strong desire to settle the case. 7. With the consent of all parties, I caucused briefly with rt;presentatives of OPSEU and the Employer to ascertain whether there was any interest in pursuing a mediated resolution to this matter, Having ascertained that there was not, I then met with the applicant (as 1 had earlier AUG 08 2008 14:46 FR OLRB SOLICITORS 416 326 6392 TO 94164487469 P.04/05 - 2 - indicated I would) to communicate this to her, The applicant again indicated quite clearly to me that she was not prepared to litigate the application and if the consultation proceeded, she would remain silent and not participate. I suggested to her that she might consider seeking to have the litigation of Hris matter adjourned to another day when she could attend with her documents. In response to certain queries from the applicant, I advised that the Board does not provide duty counsel to parties who attend without legal representation, and also that I could not recommend any individual or agency she might approach for legal representation, although I did note the existence of Legal Aid Ontario and its clinic system. The applicant expressed a preference for adjourning the matter, although she did appear to indicate that, absent some form of legal representation, she would remain silent at a subsequent consultation. . 8. OPSEU and the Employer did not object to the adjournment of the consultation. I thereupon adjourned the matter orally, but indicated that I would also be issuing a written decision to that effect, outlining the Board's expectation of how the matter would proceed when the consultation resumed, and providing for the pre-consultation exchange of documents. 9. This is the applicant's application. She bears the burden of persuading the Board that the Act has been contravened, If she does not att<::ud a consultation, or attends one and does not participate by making: any representations, it will be very ditlicult for her to meet that burden, and her application wi!llike1y be dismissed. Regardless of whether she obtains legal representation or is self-represented, she should therefore be prepared to make submissions and answer questions (including: the possibility of providing sworn testimony) at the next day of consultation. If she does seek legal representation, she should do so as soon as possible and immediately advise OPSEUl the Employer and the Registrar of the Board of the identity of any representative she engages. 10. The Registrar is directed to consult with the parties on or after August 25,2008 and set a mU1ually convenient date thereafter for the consultation. The l:wo~week period between the date of this decision and the point at which the Registrar will confer with the parties respecting rescheduling is designed to permit the applicant an opportunity to secure legal representation and ensure that any date scheduled is available to both her and any representative. She should be aware that if she agrees to a consultation date before she secures legal representation she must ensure that any representative she engages is available to attend before the Board on the agreed date. Absent the consent of all the other parties, the Board does not typically adjourn a hearing or consultation because a party's representative is not available on that date. 11" A critical factual dispme between the applicant on the One hand, and OPSEU and the Employer on the other, is whether any of the Employer's eight or so witnesses at the arbitration hearing were cross-examined by OPSEU, I understand that the applicant took notes at the hearing as did the OPSEU representative who presented the case (and possibly other persons from OPSEU who were in attendance), and present counsel for the Employer. It appears to me that the resolution of this dispute may be expedited by an exchange of these documents, although I appreciate that there .may be concerns about portions of the notes that may record the note~ keeper's commentary On the evidence presented as opposed to merely recording that evidence. In the case of the Employer, there is some concern with respect to privilege attaching to the notes. I therefore make the following direction: (a) the applicant is to produce copies of her notes taken at the arbitration hearing to OPSEU and to the Employer at least two weeks in advance of the next consultation date; AUG 08 2008 14:46 FR OLRB SOLICITORS 416 326 6392 TO 94164487469 P.DS/OS - 3 - (b) OPSEU is to produce copies of its notes taken at the arbitration hearing to the applicant and to the Employer at least two weeks in advance ofthe next hearing date; (c) If the Employer chooses to produce any notes it took at the arbitration hearing, it must provide them to the appIicant and to OPSEU by no later than one week in advance. of the next consultation date; and (d) Any party producing notes pursuant to this direction may redact from the notes any portions that contain tbe note-taker's commentary on the evidence presented. 12. This matter is referred to the Re~.jstrar. 13. 1 am not seized, "Mary Anne McKellar" for the Board ** TOTAL PAGE.05 **