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HomeMy WebLinkAbout2019-2529.Wills.21-11-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2019-2529 UNION#2020-0551-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wills) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Paul Meier Treasury Board Secretariat Legal Services Branch Counsel HEARING November 16, 2021 -2- Interim Decision [1] This decision confirms an oral ruling made at the hearing, granting the Employer’s request to adjourn the November 16, 2021 hearing date. [2] The Employer sought an adjournment due to assigned counsel’s inability to attend due to an ongoing medical leave. There was no dispute that assigned counsel has been and continues to be absent from work for medical reasons. [3] On October 25, 2021, the Employer asked the Union if it would agree to an adjournment of the November 16, 2021 hearing date on the basis that assigned counsel would be unable to attend and that it would be unable to find counsel to step into an ongoing case for November 16. Notwithstanding follow-up, no response was received from the Union until November 10, 2021, when it advised the Employer that it opposed the request to adjourn. The parties subsequently agreed to argue that motion at the hearing on November 16, 2021. [4] The parties had met for mediation in January 2021 in connection with Grievance #2020-0551-0002, filed as GSB #2019-2529. Assigned counsel was present on behalf of the Employer. That mediation was unsuccessful. At that time, it was noted that a further grievance was outstanding. Dates were scheduled for the hearing of this file taking into account assigned counsel’s expected availability and prior to any medical leave. Three of those scheduled dates (in September and October 2021) have since been adjourned on consent because of assigned counsel’s inability to attend. The Union opposes this request to adjourn on the basis that further delay is prejudicial and inappropriate, that the issues are serious involving allegations of racial discrimination, and that the Employer could assign different counsel. [5] A third grievance involving discipline has also been filed, which was referred to another roster arbitrator. The first scheduled date for that hearing in October 2021 was adjourned because of Employer counsel’s inability to attend for medical reasons. It is the Union’s intention to bring a motion to consolidate the hearing of the three grievances, which motion the Employer opposes. In the result, the parameters of this hearing are not, at this time, determined. [6] I was referred to two cases, The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Hyland), 2013 CanLII 26532 (ON GSB) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Therrien), 2008 CanLII 32795 (ON GSB). -3- [7] There is no dispute that I have the authority to exercise the discretion to grant or deny an adjournment request. The decision in Therrien, supra, sets out in broad terms the kinds of factors to be taken into account, noting that, fundamentally, fairness is the determining driver. In that case, the Union sought to adjourn grievance proceedings indefinitely, pending the outcome of a separate human rights complaint brought against the Union by that grievor. It was determined that an indefinite adjournment was not warranted given the arbitrator’s conclusion that the outcome of the grievances was not dependent on the determination of the human rights complaint and that both matters could proceed without unduly influencing the other. [8] The decision in Hyland, supra, deals with circumstances somewhat akin to those here, where a request to adjourn was granted in circumstances where counsel had been required to leave the country in order to attend to a serious family emergency and was unable to attend the scheduled date. In that case, previous dates had also been adjourned. Unlike here, the evidence in that case had been heard and only submissions remained. [9] As set out in Therrien, one assesses the relative prejudice of granting or denying the adjournment request. There has been some delay in initiating this hearing process. However, it is not apparent that there will be delay in completing the hearing. That can be the more relevant consideration in assessing the potential prejudice caused by delay. Requiring a party to proceed in the legitimate absence of counsel retained on the matter is prejudicial to that party. The fact that the Union consented to prior adjournments implies confirmation that those adjournments were warranted. [10] As noted, the Union seeks to have other matters consolidated with the hearing of this grievance. The scope of this hearing needs to be determined before it can proceed efficiently. The Employer is seeking to adjourn the November 16 date and anticipates being able to proceed on December 3, 2021, the next scheduled date, with assigned counsel. At that time, it is anticipated that the motion to consolidate will be heard. Counsel attending for the Employer on the adjournment request is available on December 3, 2021 if required, for the limited purpose of hearing the consolidation motion. [11] Having regard to all of the above, I granted the Employer’s request to adjourn the November 16, 2021 hearing date. The matter is to proceed on December 3, 2021 for the purpose of hearing the evidence and submissions of the parties with respect to the Union’s motion to consolidate the hearing of the three grievances. -4- Should assigned counsel be unavailable on December 3, 2021 for medical reasons, counsel attending today will appear on behalf of the Employer in respect of that motion. Once that motion has been determined, further case management may be required. Dated at Toronto, Ontario this 17th day of November, 2021. “Marilyn A. Nairn” ________________________ Marilyn A. Nairn, Arbitrator