HomeMy WebLinkAbout2019-2537.Noorani.22-04-05 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# 2019-2537
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Noorani) Association
- and -
The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Owen V. Gray Arbitrator
FOR THE
ASSOCIATION
Marisa Pollock (Counsel)
Kelly Doctor (Counsel)
Goldblatt Partners LLP
FOR THE EMPLOYER Caroline Cohen (Counsel)
Jackson Lund (Counsel)
Treasury Board Secretariat
Legal Services Branch
HEARING March 28, 2022 (by submissions)
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Decision
[1] On January 21, 2022, Mr. Adam Adamczyk was duly served with a summons to
attend an arbitration hearing to be held by video conference in this matter on March
21 and May 6, 2022. The hearing convened and proceeded by video conference
on March 21, 2022, but Mr. Adamczyk did not join the video conference at any time
that day. The Employer now seeks an Order compelling Mr. Adamczyk to attend by
video conference on the next hearing date in this matter, May 6, 2022. The
Association does not oppose that motion. For reasons that follow, I grant the order
sought.
[2] This is an arbitration under the Crown Employees Collective Bargaining Act , 1993,
S.O. 1993, c. 38, as amended (“the CECBA”). I was appointed mediator-arbitrator
in this matter on February 24, 2020, under Part V of the CECBA. After attempts at
mediation and hearings to address certain preliminary issue, a hearing on the merits
was scheduled for a series of dates beginning March 21, 2022.
[3] Subject to certain modifications and exceptions not relevant here, section 2 of the
CECBA incorporates the Ontario Labour Relations Act, 1995 S.O. 1995, c.1, Sched.
A., as amended, (“the LRA”), including subsections 48(12)(d) and (i):
An arbitrator or chair of an arbitration board, as the case may be, has power,
…
(d) to summon and enforce the attendance of witnesses and to compel
them to give oral or written evidence on oath in the same manner
as a court of record in civil cases;
and
…
(i) to make interim orders concerning procedural matters;
[4] It is evident that Mr. Adamczyk would have evidence relevant to the issues in the
matter as outlined in the particulars exchanged by the parties. The employer has
filed with me a copy of the summons to Mr. Adamczyk requiring his attendance in
an identified video conference on March 21 and May 6, 2022, and an affidavit of a
process server that the summons and conduct money were served on Mr.
Adamczyk on January 21, 2022.
[5] I understand from Employer counsel that she sent Mr. Adamczyk an email message
about his default after it occurred, and that he has responded saying that he had
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been ill and had forgotten about the summons. There are no particulars of the illness
sufficient to excuse his default, nor does forgetfulness excuse it.
[6] Mr. Adamczyk was obliged by law to comply with the summons, and failed to do so.
I adopt the observations of Arbitrator Surdykowski in Giffin Sheet Metal Co. 1999,
CarswellOnt 7077, [1999] O.L.A.A. No. 728, 57 C.L.A.S. 364 at paragraph 13:
Section 48 of the Labour Relations Act, 1995 provides arbitrators with the tools
required to make the labour arbitration process work, the hard way if necessary.
Specific to this cas[e], an arbitrator has the power to summon and enforce the
attendance of witnesses and the production of documents in the same way that
a Court does, and to make such procedural directions as may be required in the
interests of justice (clauses 48(12)(d) and (i)). This means that arbitrators can
issue Summonses or orders to compel witnesses to attend an arbitration
hearing and to bring with them documents that are arguably relevant to the
matters in issue. If a person properly served with such a Summons or order
ignores it or fails to comply without lawful excuse, and it appears that that
person’s attendance is necessary in the interests of justice, an arbitrator has the
power to issue a warrant requiring the police to arrest that person and bring
him/her before the arbitrator. Also or in the alternative, a person who fails to
comply with a Summons or other order of an arbitrator without lawful excuse
may find themselves the subject of contempt proceedings in the same way as
for contempt of Court, and upon conviction may be punished by fine or
imprisonment. I am pleased to say that such drastic action is rarely necessary
in this Province. On the other hand, while I was a Vice-Chair of the OLRB sitting
as an arbitrator under section 133 of the Act, I had occasion to issue several
arrest warrants in order to compel the attendance of reluctant witnesses.
[7] Employer counsel does not ask that I issue a warrant for the arrest of Mr. Adamczyk
at this point, but only that I issue an Order compelling him to attend the next hearing
on May 6, 2022, by joining on that date the video conference identified in the original
summons.
[8] I hereby Order and Direct that Adam Adamczyk attend the hearing in this matter on
May 6, 2022, by joining at or before 10 a.m. that day the videoconference detailed
in the aforesaid summons and in the Board’s Notice of Proceeding with respect to
the hearing. The Employer shall cause copies of this Order, that summons and that
Notice of Proceeding to be personally served on Mr. Adamczyk.
[9] As I hope Mr. Adamczyk will appreciate from the foregoing, more serious
consequences may ensue if he fails to attend a second time. If he encounters any
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difficulty joining the videoconference, he should immediately contact Employer
Counsel, for whom it appears he has contact information.
Dated at Toronto, Ontario this 5th day of April, 2022.
“Owen V. Gray”
________________________
Owen V. Gray, Arbitrator