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HomeMy WebLinkAboutP-2021-0974.Stanley.23-02-23 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 PSGB# P-2021-0974; P-2022-1841 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Stanley Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Smeenk Chair FOR THE COMPLAINANT Sandeep Bandhu Brickhouse Legal Services Licensed Paralegal FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS Employer: January 23, 2023 Complainant: February 6, 2023 - 2 - DECISION [1] The Complainant, Bridgette Stanley, was employed as a Sergeant at the Employer’s Toronto South Detention Centre (“TSDC”). She was given a 20-day suspension for attendance and punctuality-related misconduct by letter dated June 25, 2021. File # P-2021-0974 is her application under The Public Service of Ontario Act, 2006, S.O 2006, c.35, Sched. A (“the PSOA”) challenging that suspension (“the Suspension Application”). Her employment was then terminated by letter dated March 17, 2022 for similar misconduct. File # P-2022-1841 is her application challenging the termination of her employment (“the Discharge Application”). [2] By way of written submissions dated January 23, 2023, the Employer’s counsel requests an order that Ms. Stanley “particularize” her “affirmative defences raised in each of the Applications before the Board.” The Employer also submits that the Chair should “take a view” of the workplace. Ms. Stanley, through counsel, opposes the requested order and the request that I “take a view”. Moreover, Ms. Stanley requests an order striking a number of paragraphs of the Employer’s pleadings (its Form 2 Responses to the Applications) on a number of grounds. [3] This decision deals with these procedural motions. A. Background: The Proceedings Thus Far [4] In a decision dated November 16, 2022 (“the Undue Delay Ruling”), I dealt with Ms. Stanley’s motion that both the suspension and the termination should be voided by the Board due to the Employer’s delay in taking these disciplinary steps. I ruled that the Culpable Attendance Allegations (regarding lateness, leaving early and being absent during a shift without approval) in respect of both the suspension and the discharge must be set aside for undue delay. I reserved my decision on the undue delay motion in respect of the remaining allegations about falsification of records, improper entry and exit from the jail and improper notebook storage, until the merits of the case have been heard. Hearing dates are scheduled, starting March 21, 2023. [5] In a Case Management Direction dated August 15, 2022, the parties were directed to request and exchange particulars in a defined period following the Undue Delay Ruling. After doing so, the parties were further directed to promptly make submissions in writing regarding any remaining disputes about particulars. [6] The Employer wrote to the Applicant by letter dated November 29, 2022 requesting further and better particulars with respect to all the paragraphs of the Application that alleged discrimination, harassment and condonation of the conduct in question by the Employer, and production of supporting documentation. - 3 - The Employer also proposed that the Chair take a view of the workplace. By letter dated December 19, the Applicant refused to provide any particulars and opposed the proposal that I take a view of the workplace. [7] The parties then filed written submissions with the Board in respect of these issues. In her submissions, Ms. Stanley also requests an order striking a number of paragraphs of the Employer’s pleadings (its Form 2 Responses to the Applications). B. Legal Framework [8] This Board is established pursuant to the terms of the PSOA. Section 23 of PSOA provides that proceedings before the Board are governed by the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22 (“SPPA”). Sections 5.4 and 25.1 of the SPPA permit the Board to make rules and orders with respect to, among other things, the exchange of documents and the provision of particulars. [9] Complaints brought before the Board and its hearings are also governed by Ontario Regulation 378/07, a regulation under the PSOA (“the Regulation”). In addition to defining what kinds of complaints can be filed with the Board and who is eligible to file them, the Regulation requires a complainant who proposes to file a complaint to give prior notice to their employer of their intention to do so. Section 8(3) of the Regulation specifies that, “The notice must set out the reasons for the complaint.” If the dispute is not resolved between the parties and a complaint is later filed with the Board, Section 10(2) of the Regulation specifies what a complaint must include. It provides: (2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify.[emphasis added] [10] The Board has established Rules in accordance with ss. 25.1 and 5.4 of the SPPA. Specifically, Rule 12 provides as follows: 12. The Board may, at any stage of the proceeding before all hearings are complete, make orders for: A. the provision of particulars; B. the exchange of documents; C. the exchange of witness statements and reports of expert witnesses; D. the oral or written examination of a party; E. any other form of disclosure relevant to the proceeding. [11] This Board, the Grievance Settlement Board and arbitrators in other sectors have of course issued many decisions about the obligation to provide particulars and - 4 - pre-hearing productions. The Employer has referred me to the following, all of which I have reviewed: OPSEU (Gates et. al.) and Ministry of Health and Long- Term Care (January 22, 2007), 2007 CarswellOnt 10726 (Dissanayake) at para 12, citing with approval from Barillari (GSB # 2390/02); Chyczij and Ministry of Labour, P-2002-0003, June 20, 2005 (O’Neil) (“Chyczij 2005”); OPSEU (Singh) and Ministry of Community Safety and Correctional Services (June 27, 2005), GSB No 2001-1070 (Abramsky); Chyczij and Ministry of Labour, P/0017/00, September 28, 2001 (Maeots) (“Chyczij 2001”); OPSEU (Morsi) and Ministry of Finance (August 27, 2008), GSB No. 2006-2863 et. al. (Devins); and Ontario Public Service Employees Union (Dartch) v Ontario (Solicitor General), 2021 CanLII 26593 (ON GSB) (“Dartch”). [12] Ms. Stanley has referred me to the following cases, which I have also reviewed: Copland v Commodore Business Machines Ltd. 1985 CanLII 2190 (ON SC); OPSEU (Ryall) v Ministry of the Solicitor General 2022 CanLII 106478; Physicians’ Services Inc v. Cass [1971] CanLII 359 (ON CA); Spiers v. Zurich Insurance Co, 1999 CanLII 15089 (ON SC); Canadian Niagara Hotels Inc. and Unite Here, Local 75 2006 CanLII 25535 (ONLA); Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII); Ontario Public Service Employees Union (Bhandari) v. Ministry of Education, 2007 CanLII 46155 (ON GSB) (“Bhandari”); Canadian Pacific Forest Products Ltd. V. I.W.A., Local 2693 1993 CarswellOnt 1225. [13] In my view, the decisions of this Board are the ones that bear the most attention. They deal with our legislative and regulatory framework, and the group of eligible complainants and employers that appear before us. In Chyczij 2001, this Board had before it a job posting case in which there were allegations that the competition process was not only flawed but also that the employer acted in bad faith and in an arbitrary, discriminatory and inequitable manner. In dealing with the obligation to provide particulars, this Board stated as follows: Each side is entitled to know the case that it is required to meet. When a party is faced with allegations, it should expect to receive an answer to the questions “when”, “where”, “how” and ‘who” from the party making the initial allegations. Accordingly, I direct the grievor to provide the employer with full particulars of the allegations of fact on which he relies in this proceeding, including 1. details of the specific acts and/or omissions committed by or on behalf of the employer that the grievor alleges constitute either a breach of Policy, Directives, Guidelines or past practice, or which were made in bad faith or in an arbitrary or discriminatory manner, 2. details of actions or facts which the grievor will contend constitute a flawed competition process, 3. details of actions or facts relating to the grievor's contention of inequitable treatment, - 5 - 4. the names of the individuals alleged to have committed any of the above alleged acts, and 5. the dates and places where such acts were allegedly committed. In providing particulars of the above, the grievor is required to provide only the material facts relating to each issue, and is not obliged to set out the evidence upon which he will be relying. [13] In Chyczij 2005, the Board had before it a complaint about tuition assistance. The complainant had refused to provide particulars of his complaint, saying he first required disclosure from the employer, which had been denied him. The Board denied the employer’s request to dismiss the complaint due to the complainant’s refusal to provide particulars. It noted that there had been a standoff about which party should first provide disclosure. The Board ordered the complainant to first provide particulars so that his requests for disclosure could be assessed for relevancy. In doing so, the Board commented on the purpose of a previous version of what is now Section 8(2) of the Regulation. Section 34(4) of the PSOA at that time required that a “grievance must set out the reasons for the person’s complaint…” The Board stated as follows at p.9: The purpose of these provisions is obviously to put the other side on notice of what the case is about. The Board's jurisprudence makes clear that particulars may be ordered when the statement of grievance or the Form 1A before the Board is insufficient to put the other side on notice of what the case is about. If the parties do not know in advance what the case is about, it is not conducive to a fair or expeditious hearing. [14] Like here, the complaint before the Board in Chyczij 2005 included allegations that the employer’s decision-making process was tainted by discrimination. In ordering further and better particulars, the Board commented as follows: As to each of his allegations, including that the denial of tuition assistance was unfair, discriminatory and inequitable, he must state the reasons for that complaint. For example, the allegations of discriminatory treatment suggest that the grievor is of the view that there is some baseline or standard for granting tuition assistance in respect of which he was treated differentially in a negative way, or for some improper reason. The grievor must clearly state what the standard is and who it is that he says breached it, in what way, and on what date or dates [15] Dartch is a 2021 decision of the Grievance Settlement Board. It is a discharge case. Like this case, the Union alleged that most of the conduct for which the - 6 - employee was terminated was condoned by the employer. While particulars had been exchanged, the employer sought an order for further and better particulars. Arbitrator Ian Anderson noted at para. 13 that, “While there was no argument before me on this issue, there is no suggestion the Union was not required to provide full particulars with respect to its condonation argument at this stage of the proceedings.” [16] Despite the acknowledged obligation to provide particulars regarding its allegation of condonation, the difficulty was that some of the condonation allegations were broad and general in nature and some were more specific. Arbitrator Anderson very aptly summarized how this difficulty must be approached, in the following passage: [14] The obligation to provide particulars means the obligation set out all material facts on which a party intends to rely: see Gates at p. 10. This obligation is not met by providing statements which amount only to argument or conclusions. Having said that, it is not uncommon for statements of particulars to contain not only allegations of facts but also conclusions based on the facts alleged and some argument. This appears to me to be true of some of the Union’s particulars in this case. Conclusions are permissible, but they may not be used as a basis for subsequently leading evidence with respect to non particularized facts. [15] The purpose of particulars is to inform the opposing party of the case which it has to meet. The specificity of the facts required depends on what is alleged. Where the allegation is of improper conduct, it is appropriate to require a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly. Failure to do so may result in dismissal of the allegation for want of a prima facie case. Both of the decisions relied upon by the Employer are cases in which the conduct of the employer was challenged as improper. [16] In this case, the Union does not allege impropriety on the part of the Employer. Rather, in response to the Employer’s allegations of improper conduct, the Union alleges condonation as a defence. The challenge posed by the Union’s particulars is that they allege normal or general condonation of conduct by the Employer. [17] The Employer states it is entitled to know who, what, when and where. The Union’s particulars generally answer the what question: they identify specific conduct which was allegedly condoned. The Employer argues it is entitled to know who, when and where. Simply stated, the answers are everyone, always and everywhere. To the extent the Union’s particulars assert the Grievor or the Employer has always or - 7 - generally acted in a certain way or that a practice is widespread and known to the Employer, they are disproved by the Employer adducing evidence to demonstrate that is not the case. An assertion that something “always” happens is disproved by one instance in which it did not. An assertion that something generally happens can be disproved by sufficient instances in which it did not. The sufficiency of the evidence will depend on the nature of the allegation. [18] On the other hand, allegations by the Union that the conduct was condoned by some members of management, on some occasions or in some locations, requires specific particularization of which members of management, which occasions or which locations. In the absence of such particulars, the Employer cannot know the case it must meet. Specific allegations must be specifically rebutted, assuming the allegation is material and relevant to the issues in dispute. [19] What the Union is not entitled to do is to allege in its particulars normal or general condonation and then later adduce evidence with respect to specific incidents of condonation which it has not particularized. The time for the Union to jog the Grievor’s memory is now. [emphasis added] [15] Arbitrator Anderson then went on to rule on which of the Union’s allegations were sufficiently specific in nature so as to require further particulars, which he ordered. C. The Employer’s Requests for Particulars Analysis [16] The Employer requests an order that Ms. Stanley “particularize her affirmative defences raised in each Application.” In reviewing the Employer’s original demand for particulars, this appears to relate to about 9 paragraphs of the Suspension Application and 13 paragraphs of the Discharge Application. The Employer further requests that, if Ms. Stanley fails to provide sufficient particulars in accordance with such an order, those paragraphs be struck from the Applications and Ms. Stanley then be precluded from leading evidence with respect thereto. In the alternative, the Employer requests a broad right to call reply evidence. As noted above, Ms. Stanley opposes these requests. [17] The PSOA, the Regulation and the Rules, taken together, make it clear that a complainant must set forth the nature of her complaint as to why her rights have been infringed. At both the notice of proposal stage and the complaint stage, an employer is entitled to know the reasons for the complaint. Just as a complainant - 8 - is entitled to know the particulars of the allegations against her. If a complainant alleges misconduct or mismanagement by her superiors affecting the validity of the decision being challenged, the employer is entitled to particulars of those allegations. This includes allegations of direct discrimination. It also includes allegations of specific occasions when the conduct in question was condoned unless it is alleged that the condonation was universal. This becomes all-the-more important as the parties proceed to a hearing. It is in the interest of both parties as well as the public who funds this system, that disputes coming before the Board be resolved as efficiently and fairly as possible. Full pre-hearing disclosure of the facts alleged and grounds relied upon by both parties helps to achieve that outcome. [18] Ms. Stanley raises concerns about the onus of proof. She relies on Bhandari, a decision of Arbitrator Briggs sitting as a member of the Grievance Settlement Board. There, the arbitrator declined to order the employee to provide particulars in a discharge case, noting that the onus was on the employer is such a case. Arbitrator Briggs expressed concern that to issue the order requested could potentially prejudice the grievor’s rights. Ms. Stanley goes on to argue that, of all the cases cited by the Employer here, only Dartch was a discharge case. It is distinguishable, it is argued, because the Union did not oppose the demand for particulars. The other cases, being cases in which the grievor had the onus of proof, are of no assistance to the Employer in justifying such an order in a discharge case, submits Ms. Stanley. [19] I do not agree with that submission. In my view, the Dartch decision appropriately captures the proper approach to requiring that an employee in a discipline or discharge case provide particulars of her allegations against an employer (what the Employer here describes as “affirmative defences”). It is a more recent decision of the Grievance Settlement Board than Bhandari. It is also an approach that is consistent with the prior decisions of this Board and the regulatory framework under which it operates. [20] Furthermore, Bhandari is readily distinguishable from this case. There, a total of nine grievances had been filed. Some of them concerned the employee’s allegations of discrimination and harassment in the workplace. Others concerned suspensions and the employee’s discharge. The parties agreed to proceed first with the suspension and discharge cases and to hold the discrimination and harassment grievances in abeyance. Arbitrator Briggs emphasized that this was important to her decision. In her concluding paragraph she stated: My decision in this matter might well have been different in the absence of the parties’ agreement to put the grievances regarding discrimination and harassment aside while the discipline grievances continue. Arguably, without that agreement there would be a need for the Employer to have a comprehensive appreciation for the particulars of those allegations at the outset. However, given the - 9 - method of proceeding agreed upon to date, this motion is denied at this time. [21] We have in the instant matter the kind of case that Arbitrator Briggs noted might well have led her to a different result. Ms. Stanley has made several allegations about discrimination on the basis of race, disability and family status. She has made other allegations of misconduct or serious flaws in the steps taken by management. As Arbitrator Briggs noted, this gives rise to “a need for the Employer to have a comprehensive appreciation for the particulars of those allegations at the outset.” [22] The requirement to provide particulars and documentary disclosure must not be confused with who bears the onus of proof. Such pre-hearing “discovery” (to use a civil litigation term) will often and necessarily be broader than the evidence that is ultimately put before the Board. Moreover, the onus of proof can sometimes shift, on an issue-by-issue basis. An obligation to provide particulars or pre-hearing disclosure operates independently of the onus of proof in the hearing. While the onus of proof may affect the order in which the parties should exchange particulars, it does not dictate the scope of pre-hearing disclosure obligations. [23] Moreover, as noted in Chyczij 2005, some of Ms. Stanley’s disclosure requests of the Employer can only be properly and fully assessed for relevancy once she has fully particularized her case, including what if any errors, omissions or misconduct on the part of management are alleged. This does not diminish the Employer’s burden of proof. It does, however, allow it to know the nature of the issues in dispute and properly prepare its case. It also allows it to provide arguably relevant documents to the complainant. [24] As the cases have repeatedly held, ideally both parties should be able to fully understand the case being put forward by the adverse party – the case they must meet. This should result in a more efficient and effective hearing process. [25] This does not, I repeat, pre-judge what party has the onus of proof on any particular issue. It also does not mean that Ms. Stanley will be precluded from probing and challenging the Employer’s evidence, particularly in cross examination, even on issues she has not set out in her particulars, to test whether it meets its onus. Nor does it preclude a request for leave to amend one or both Applications in appropriate circumstances, at a later stage. Pursuant to Rule 8, either party may seek to amend their pleadings, with leave of the Board. [26] For these reasons (and noting that Ms. Stanley has not demanded that further and better particulars first be provided by the Employer, as discussed below), a number of the Employer’s requests for further and better particulars are justified and should be granted. Certain other requests made by the Employer will not be granted, for reasons explained below. - 10 - Requests to be Granted [27] Further and better particulars are to be provided, if known to Ms. Stanley, regarding the following allegations. Such particulars should include the kinds of details set forth in Chyczij 2001, in the passage quoted above, with appropriate modifications. If she does not have any further or more particular information, that should be made explicit: Allegations in the Suspension Application – Page 6, Section III • Para. 22 – the allegation that the investigation is fatally flawed and unreliable • Para. 23 – the allegation that race was a factor during the investigation • Para. 34 - the allegation the investigation was done with a careless and reckless disregard for procedural fairness, etc. Allegations in the Discharge Application • Section 1, para. 6 – the allegation that Ms. Stanley was personally disliked by managers who directed her discipline • Section II para. 27 – the allegation that the Employer ignored requests to meet with Ms. Stanley to resolve concerns • Section II, para. 37 – the allegation as to what accommodation the applicant sought and the Employer’s response to such request[s] • Section II, para. 41 – the allegation that a Superintendent notified Ms. Stanley that her WDHP complaint would be referred to a third-party investigator • Section II, para. 43 – the allegation that the Employer condoned all other TSDC employees who were late, do not record entries in their duty notebooks and used entrances as Ms. Stanley did. These particulars should include the identity of other employees whose similar conduct was condoned, if known. • Section II, para. 48 – the allegation that Ms. Stanley sought a meeting with the Superintendent and Deputy Superintendent to resolve concerns prior to her dismissal, including particulars about any responses received. • Section II, para. 52 – the allegations about duty notebook practices varying and rules not being consistently enforced. • Section III, para. 19 – any policies the Employer allegedly breached that are not listed there. Requests to be Denied [28] A number of the allegations in respect of which further particulars are sought are in the nature of arguments or conclusions. For example, in the Suspension Application, on page 4, paragraph (f), Ms. Stanley pleads that the Employer’s decision to discipline her following a complaint by her under the Workplace Discrimination and Harassment Policy (“WDHP”), “constitutes discrimination and reprisal on the basis of race, disability and family status…” That is an argument; a conclusory statement. I agree with Ms. Stanley’s submission that no further - 11 - particulars need to be provided regarding such a conclusory statement. However, if she has other facts to support an allegation of direct discrimination, she must provide the particulars. [29] For similar reasons, I would not order further particulars regarding the following portions of her Suspension Application: • Part 3, page 4, para. (g) – allegation that the Employer’s characterization of Ms. Stanley’s conduct is evidence of discrimination; • Part 4, page 6, para. 24 – allegation that the Employer exercised no diligence to maintain confidentiality or discretion during its investigation. [30] And for similar reasons I would not order further particulars regarding the following portions of her Discharge Application, all of which are in the nature of arguments or conclusions: • Section II, para. 19 (except as ordered above), 20, 21 and 29. [31] I also agree with Ms. Stanley that allegations regarding lateness per se, having been set aside by the Undue Delay Ruling, need not be particularized unless they are relevant to proving any of the remaining factual issues in dispute. Thus, it would appear unnecessary to particularize her allegations at Section II, para. 50 and 51 of the Discharge Application. [32] One issue that bears comment concerns a response that counsel for Ms. Stanley provided to counsel for the Employer regarding one of the allegations listed in this section. In addition to stating that no further particulars are necessary, he argued the “any and all details of the systemic racism and anti-black racism in the Ontario Public Service and within the ministry are a matter of public knowledge…” In ruling here that further particulars are not required for the conclusory statements listed above, I do not intend to imply that an allegation of systemic racism would not need to be particularized and proven if it was indeed part of Ms. Stanley’s case. This is a very serious allegation and not one of which the Board would take quasi-judicial notice. I note, however, that that allegation was not made in either of the Applications. I therefore do not consider it to be an issue currently before the Board. D. The Complainant’s Request to Strike Employer’s Pleadings [31] Ms. Stanley argues that the Employer, “has not minimally produced particulars to align with the November 16, 2022 decision of the Board…” Ms. Stanley does not demand further and better particulars, stating that they would now be unreliable. She argues that the appropriate remedy at this stage is to set aside the remaining allegations that have not been adequately particularized. She argues that the justification for doing so is based on Employer’s pleadings failing to disclose material facts, being irrelevant, conclusory, inflammatory and argumentative in nature. Counsel lists 16 paragraphs of the Employer’s Form 2 Response to the - 12 - Suspension Application, and 20 paragraphs of the Employer’s Form 2 Response to the Discharge Application that should be struck for these reasons. [32] The Employer responds that it has already provided extensive disclosure and will be providing “more fulsome disclosure” soon. I was provided with a chart that the Employer sent to counsel for Ms. Stanley by letter dated January 12, 2023. That chart constituted the Employer’s reply to Ms. Stanley’s request for particulars and productions. In it, the Employer indicates what particulars have already been provided, what other requests it will be complying with, and what requests it refuses to grant. I am not aware of the extent to which further particulars and disclosure has been provided since that time. [33] In these circumstances, there is no basis to strike any of the Employer’s pleadings. The Employer has responded in detail to Ms. Stanley’s request for particulars and production. The disclosure process is, apparently, still underway. There has been no failure to comply with any order of the Board. In addition, while it may or may not be the case that portions of the Employer’s responses are conclusory, argumentative or inflammatory from Ms. Stanley’s perspective, I would not strike them on that basis: see Dartch at para. 14. [34] Having said that, both parties are reminded that the failure to provide full particulars of allegations after they’ve been demanded may make such evidence inadmissible in the hearing: see Dartch at para. 19. It is in the interest of all parties to expedite the hearing process by making full disclosure in advance. Arbitration by ambush serves nobody. E. Taking a View [35] The Employer submits that it would be helpful for the Chair to tour parts of the workplace to properly understand the physical structure and how the swipe card/video systems work. Concerns were also expressed that, in the absence of taking a view, the need to produce detailed diagrams and descriptions of the jail, in a public hearing, could give rise to significant security issues. [36] There is no argument that a member of the Board has the discretion to take a view in appropriate circumstances. Ms. Stanley submits, however, that it would serve no purpose here and is not necessary. She also raises delay and cost concerns. She also argues that taking a view would in effect allow the Employer to amplify or introduce new evidence, in the absence of adequate particulars having been provided by it. This would, it is argued, be contrary to the principle that an employer must be held to the grounds upon which it chose to discipline the employee, citing Re United Steelworkers of America and Aerocide Dispensers Ltd., 1965 Carswell Ontario 754. - 13 - [37] Both submissions have some merit, in my view. On the one hand, taking a view may indeed deepen my understanding of the evidence on key factual issues. One of the key issues that remains in dispute is that relating to Ms. Stanley’s alleged improper exit and entry from the workplace, and the Employer’s alleged undue delay in acting on this. It will be important for me to have a good understanding of the physical layout of the employee entries and exits at TSDC and the processes that an employee like Ms. Stanley should or could follow when entering and departing. It will also be relevant to know what information the Employer gets about who comes and goes and when they get that information. To the extent that these factual issues can be elucidated by taking a view, that would be helpful. [38] On the other hand, Ms. Stanley’s concerns about increasing the cost of an already-expensive process are legitimate. So too are her concerns about due process and the Employer not being allowed to change its case. [39] The parties are therefore directed to seek to come to agreement as to the conditions under which, and at what juncture of the hearing, the Chair might take a view of the workplace. In coming to such an agreement, the parties should take into consideration how this might be done in the most efficient, cost-effective manner possible, only in relation to the issues that remain in dispute, and with due regard for procedural fairness. [40] If necessary, a further Case Management Conference can be arranged to work out the details and any issues related to this upon which the parties cannot agree. F. Conclusion [41] The particulars that are ordered to be provided by Ms. Stanley, as outlined above, shall be provided to the Employer by March 9, 2023. [42] The parties shall seek to reach agreement regarding the conditions and timing for my taking a view, also by March 9, 2023. [43] If there are any remaining issues regarding pre-hearing processes, including any issues or disputes in connection with the implementation of this decision, the parties are directed to make further submissions to the Board by March 14, 2023. Dated at Toronto, Ontario this 23rd day of February 2023. “Brian Smeenk” ________________________ Brian Smeenk, Chair