HomeMy WebLinkAbout2008-3994.Deprophetis.10-03-29 Decision
Commission de
Crown Employees
Grievance
règlement des griefs
Settlement Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
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GSB#2008-3994
UNION#2008-0205-0161
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Deprophetis)
Union
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The Crown in Right of Ontario
(Ministry of Labour)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE UNION
Danny Kastner
Paliare Roland Rosenberg Rothstein LLP
Counsel
FOR THE EMPLOYER
George Parris
Ministry of Government Services
Counsel
HEARING
March 16 and March17, 2010.
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Decision
[1]The Board is seized with a grievance dated November 28, 2008 filed by Mr. Steven
Deprophetis, who is employed by the Ministry of Labour as an Employment Standards
Officer. For purposes of this decision, it is not necessary to review the detailed
statement of grievance, other than to note that the grievance alleges harassment and
discrimination.
[2] At the commencement of the hearing on February 11, 2010, employer counsel advised
the Board that although he was not satisfied that the union had fully particularized its
case, he had agreed with union counsel that the union can ?fill in the particulars?
through the testimony of the grievor, and therefore, the hearing could proceed.
[3] Opening statements were received, and the union commenced its case by calling the
grievor. At the end of the day union counsel advised that the examination-in-chief of
the grievor was complete, except that he reserved the right to examine the grievor
further, following disclosure of some information he was waiting for from the
employer.
[4] When the hearing resumed on March 16, 2010, employer counsel moved that the
grievance be dismissed on the grounds that the particulars provided by the union, as
supplemented by the testimony of the grievor, do not disclose a prima facie violation
of the collective agreement or the Ontario Human Rights Code. This motion was
argued on March 16 and 17 of 2010.
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[5] Employer counsel proceeded to argue that the particulars nor the testimony of the
grievor in-chief, even if accepted as true, could not possibly amount to a violation of
either the collective agreement or any statute. Union counsel?s primary response was
that the employer?s motion was in effect a non-suit motion, and that since the union
had not closed its evidence yet, it was premature. He urged the Board to deny the
motion on that basis alone.
[6] In the alternative, union counsel submitted that if the Board disagrees that the motion
was premature, the Board should treat the motion as a motion for non-suit. He advised
that for that purpose the union would not be putting the employer to an election, and
went on to argue that applying the arbitral principles relating to non-suit motions, the
employer?s motion should be denied. It was his view that the union?s evidence does
establish a prima facie case for the employer to meet.
[7] In reply, employer counsel disagreed that the motion was premature. He emphasized
that this was not a non-suit motion. Rather, it was a motion based on the failure of the
particulars to support a prima facie violation. Since all of the particulars were in, the
motion was not premature. Indeed, he submitted that if the instant motion is denied,
the employer should be free to bring a non-suit motion at the closing of the union?s
case.
[8] It is important to note the stage of the proceeding at which the instant motion was
brought. Opening statements had been completed. The union had commenced
leading its evidence. Its first witness was on the stand and his examination-in-chief
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was yet to be completed. While union counsel had indicated during his opening
statement that he did not at the time contemplate calling any witnesses besides the
grievor, employer counsel conceded that the union may call further witnesses if it
decides to do so.
[9] In the circumstances, I find that the motion must fail. If the motion is viewed as a
motion for dismissal due to the inadequacy of the particulars, as the employer
characterizes it, then it is simply too late. Such a motion should have been brought
prior to the commencement of the union?s evidence. The employer is not entitled to
make such a motion in the middle of the union?s case.
[10] On the other hand, if the motion is viewed as a non-suit motion, as the union contends,
it clearly is premature. Such a motion may be made only after the closing of the
union?s case. Therefore, in either case the motion is untimely.
[11] I find no reason, having denied the instant motion, to deny the employer?s usual
entitlement to move for non-suit at the end of the union?s case, if it decides to do so
with appropriate notice to the union.
[12] In light of the foregoing disposition, it is unnecessary to review the detailed
submissions of the respective counsel, as to whether or not the particulars disclose a
prima facie violation.
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The hearing shall continue on days fixed by the Registrar.I remain seized with this
matter.
th
Dated at Toronto this 29 day of March 2010.
Nimal Dissanayake, Vice-Chair