HomeMy WebLinkAbout2019-1633.Toppin.23-03-15 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# 2019-1633; 2020-2399; 2022-12123
UNION# G-82-19-SOW; G-018-20-SOW; G-143-19-SOW
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Toppin)
Union
- and -
The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE Diane L. Gee Arbitrator
FOR THE UNION
Andrea Wobick
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Daniel Fogel
Hicks Morley Hamilton Stewart Storie LLP
Counsel
HEARING March 1 and 15, 2023 by (conference call)
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Decision
[1] This matter concerns Grievances #082-19-SOW, #143-19-SOW and #018-20-
SOW. The hearing was originally scheduled to commence on April 6, 2022 but
adjourned, for reasons not material to this decision, to January 26, 2023. The
January 26, 2023, date was adjourned due to the Union not having provided the
Employer with pre-hearing document production.
[2] At the time of adjourning the January 26, 2023 date, the parties agreed that the
Employer would be provided with particulars and all arguably relevant documents
in the Union’s and Grievor’s possession, power or control by February 15, 2023,
including but not limited to the following:
1) Facts the Union will advance that would not reasonably be
known by Metrolinx, including the facts that the Union will rely on to
support any claim for a violation of the Human Rights Code.
2) Particulars of the Union’s expected evidence regarding
grievance #082-19-SOW.
3) Arguably relevant documents in respect of other employment
the grievor held for the period of time that Metrolinx alleges that the
Grievor “failed to attend work” as per the termination letter of January
23, 2020.
4) All arguably relevant documents in the Union’s and grievor’s
possession, including emails and recordings.
5) If a medical condition is now being asserted:
(a) disclosure of all arguably relevant clinical notes and records
of any doctor or other health professional seen by or treating
the grievor in respect of the condition; and
(b) disclosure of any arguably relevant records maintained
by Oncidium and Metrolinx’ Health and Wellness department.
6) Particulars of the grievor’s mitigation since termination.
[3] The above disclosure was not provided to the Employer by February 15, 2023. As
a result, the Employer requested that a conference call be convened. That
conference call was held on March 1, 2023. A further conference call was
convened on March 15, 2023. The Union advised the reason for having failed to
produce the documents as agreed is that the Grievor has not responded to its
attempts to contact him. The Employer sought an order for the production of the
documents listed in paragraph 2 above as well additional particulars and
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documents. The additional particulars and documents sought by the Employer are
particulars and arguably relevant documents in respect of other employment that
the grievor held on June 7, 2019, July 25, 2019 and, in addition to the documents
the Union agreed to produce in respect of periods of time that Metrolinx alleges
Grievor was late for work and “failed to attend work” as per the termination letter
of January 23, 2020, particulars thereof. The Union objected to the Employer’s
request.
[4] It is my determination that it is appropriate to Order the Union to produce the
documents set out in paragraph 2 as well as the additional particulars and
documents sought by the Employer during our conference call. I hereby order
the Union to provide to the Employer, no later than March 24, 2023, with the
exception of the documents at subparagraph 5 which must be obtained from
third parties, the following:
1) Facts the Union will advance that would not reasonably be
known by Metrolinx, including the facts that the Union will rely on to
support any claim for a violation of the Human Rights Code.
2) Particulars of the Union’s expected evidence regarding
grievance #082-19-SOW.
3) Particulars and arguably relevant documents in respect of
other employment that the grievor held on June 7, 2019, July 25, 2019
and for the periods of time that Metrolinx will advise that the
Grievor was late for work and “failed to attend work” as per
the termination letter of January 23, 2020
4) All arguably relevant documents in the Union’s and grievor’s
possession, including emails and recordings.
5) If a medical condition is now being asserted:
(a) disclosure of all arguably relevant clinical notes and records
of any doctor or other health professional seen by or treating the
grievor in respect of the condition; and
(b) disclosure of any arguably relevant records maintained
by Oncidium and Metrolinx’ Health and Wellness department.
6) Particulars of the grievor’s mitigation since termination.
[5] The Grievor is hereby ordered to contact the Union immediately, and in the
absence of compelling circumstances that prevent him from doing so, to forthwith
take all steps reasonably required to facilitate the disclosure described in
paragraph 4(5) above, including the execution of any consents required for
disclosure from third parties.
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[6] In the absence of compelling circumstances that prevent him from doing so,
communicated to the Union in advance, the Grievor is ordered to attend at
arbitration on the next day of hearing, which is March 31, 2023.
Dated at Toronto, Ontario this 15th day of March 2023.
"Diane L. Gee”
Diane L. Gee, Arbitrator