HomeMy WebLinkAbout2019-1164.Kay.21-06-24 DecisionCrown Employees
Grievance Settlement
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Toronto, Ontario M5G 1Z8
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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# 2019-1164
UNION# G-71-19-BOE
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Kay) Union
- and -
The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE
Michelle Flaherty
Arbitrator
FOR THE UNION
Dean Ardron
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Daniel Fogel (Counsel)
Kelly Brennan (Student-at-Law)
Hicks Morley Hamilton Stewart Storie LLP
HEARING
June 23, 2021
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Interim Decision
[1] The Grievor’s employment was terminated on June 3, 2019. The Union has grieved
the termination.
[2] This Interim Decision addresses the Employer’s motion to dismiss the grievance for
abuse of process, because the Grievor failed to comply with the Board’s Interim
Decision, dated April 14, 2021. The Union submits that the grievance should not be
dismissed at this stage and that the Grievor should be given a further opportunity to
comply with the Interim Decision.
[3] The Board convened a videoconference hearing on June 23, 2021, to address the
Employer’s motion to dismiss. I heard submissions from counsel for the Employer
and counsel for the Union. The Grievor attended the hearing and, at his request, he
was given an opportunity to make brief submissions.
[4] For the reasons set out below, I have decided not to dismiss the grievance at this
time. However, the Grievor is required to comply with this Interim Decision by July
7, 2021. Importantly, the Grievor’s continued failure to comply with the Board’s
orders will result in the dismissal of the grievance.
Interim Award of April 14, 2021
[5] The hearing in this matter commenced on April 14, 2021. Counsel for the parties
made submissions on case management issues, including documents held by the
Crown and Police relating to the Grievor’s alleged harassment of certain individuals
(“Documents”).
[6] I issued an Interim Decision on April 14, 2021, in which I concluded that the
Documents are arguably relevant and that their disclosure is required for the
adjudication of this grievance. The Interim Decision directed the Union and the
Grievor to take reasonable steps to facilitate the production of the Documents by
June 1, 2021.
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Did the Grievor Fail to Comply with the Interim Decision?
[7] Documents submitted by the parties show that the Union has made every effort to
comply with the Interim Decision and to facilitate production of the Documents. The
Union has been in frequent communication with the Grievor and has repeatedly
urged him to comply with the Interim Decision. For example, the Union provided the
Grievor with a copy of the Interim Decision of April 14, 2021 and the consent forms
required to obtain the Documents. The Union also repeatedly advised the Grievor
of his obligation to comply with the Interim Decision and the possible consequences
of failing to do so.
[8] Despite this, the Grievor has refused to facilitate the production of the Documents.
At the hearing on June 23, 2021, the Grievor described the steps he took in
response to the Interim Decision. He referred to extensive correspondence, which
he sent to the Union and its counsel, in which he expressed disagreement with the
Interim Decision or disputed his obligation to comply with it at this time.
[9] Based on submissions made on June 23, 2021, I understand that the Grievor now
intends to partially comply with the Interim Decision. To summarize briefly, the
Grievor has two ongoing objections:
a. He objects to signing the consent forms before arrangements for an
Independent Medical Examination (“IME”) are addressed by the Union to
his satisfaction.
b. He objects to signing one of the consent forms because it relates to
information that has or would be provided by a neighbour. There is no
dispute between the parties that the information addressed by the
consent form in question is arguably relevant and contemplated by the
Interim Decision.
[10] The Grievor is required to comply with orders of the Board. He is not excused from
compliance because he disagrees with the Board’s orders or because he believes
the Union should take other steps beforehand.
-4-
[11] The Grievor has not taken any steps to facilitate disclosure of the Documents. On
this basis, I find that he failed to comply with the Interim Decision of April 14, 2021.
Should the Grievance be Dismissed?
[12] There is no dispute that an arbitrator has jurisdiction to dismiss a grievance where
there has been noncompliance with an order. The cases relied on by both parties
support this proposition: see Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local
175, 2000 CarswellOnt 5849 (Davie) at para. 12; Baycrest Centre for Geriatric Care
and ONA (Pavlovych), Re, 2021 CarswellOnt 6801 (Gedalof); ATU, Local 113 and
Toronto Transit Commission, Re, 2018 CarswellOnt 3853 (Shime); Serco DES Inc.
and USW, Local 9511 (Bartley), Re, 2014 CarswellOnt 1151 (Luborsky); Hamilton-
Wentworth Catholic District School Board and OECTA (Hicks), Re 2014
CarswellOnt 10293, 119 C.L.A.S. 339 (Tacon).
[13] Failure to comply with an arbitral order is a serious matter, which will have serious
consequences. In this case, it is significant that the Grievor appears to have chosen
not to comply with the Interim Decision, although he had clear knowledge of the
order and was advised of the possible consequences of noncompliance.
[14] That said, however, the power to dismiss a grievance for abuse of process cannot
be exercised lightly, particularly where the grievance engages important issues like
termination. Among the factors to be considered is whether other, less extreme
measures could fairly remedy the Grievor’s non-compliance.
[15] The Grievor’s non-compliance with the Interim Decision is very troubling. In the
circumstances of this case, however, it is appropriate to give him a final opportunity
to comply with the Board’s orders.
The Grievor must Comply with the Following Orders
[16] On or about May 13, 2021, Counsel for the Union forwarded a series of consent
forms to the Grievor. The Grievor is directed to sign all the consent forms and
provide them to Union counsel by July 7, 2021.
-5-
[17] To be clear, this order and the July 7, 2021 timeframe are independent of any issues
related to the IME. In other words, the Grievor is required to provide all signed
consent forms to Union Counsel by July 7, 2021, regardless of any ongoing issues
related to the IME.
[18] The Grievance cannot be fairly adjudicated without production of the Documents.
The Grievor’s continued failure to comply with the Board’s orders will result in the
dismissal of the Grievance.
Dated at Toronto, Ontario this 24th day of June, 2021.
“Michelle Flaherty”
______________________
Michelle Flaherty, Arbitrator