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Home My WebLink About2015-0473.Kelso et al.23-09-08 DecisionCrown 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# 2015-0473 UNION# 2015-0313-0002 See Appendix A attached IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kelso et al) Union - and - The Crown in Right of Ontario (Ministry of Public and Business Service Delivery) Employer BEFORE Stephen Raymond Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Labour Practice Group Counsel HEARING May 9, June 9, and September 13, 2022; May 18, 2023 -2- DECISION [1] This decision deals with motions made by the Employer in a proceeding involving a claim by a number of individual grievors that the Employer violated the collective agreement when, in May 2015, it reclassified Executive Support ITSOs to SO4 from SO3. The Union asserts that the reclassification was carried out in bad faith. The Employer brings a non-suit motion and, in the alternative, a motion that the grievance be dismissed as the matter is now moot. I will address the non-suit motion first and then address the question of mootness. [2] Both Counsel were in agreement on the general principles that should be considered when deciding a non-suit motion. The Union reserved the right to address the non-suit motion test if the Employer was successful in its non-suit motion. The Employer acknowledged the Union’s right to make that argument, if necessary. [3] In Ontario Public Service Employees Union (Pacheco) v. Ontario (Solicitor General), 2020 CanLII 38998 (ON GSB), Arbitrator Petryshen set out the general principles that this Board has adopted in determining a non-suit motion: [9] There are a number of decisions of this Board which summarize the primary principles to be utilized when deciding a non-suit motion. With one addition, I adopt the following principles that are summarized in OPSEU (Whan et al.) v. Ontario (Ministry of Transportation), supra, as follows: 1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case. 2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities. 3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side. 4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion. 5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered. -3- 6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence. 7. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a non-suit motion is denied, no reasons, oral or written, will be issued. [4] Arbitrator Petryshen also remarked at paragraph 10 of his decision, that in addition to the above-noted principles, the determination of whether a prima facie case has been made out, the evidence must meet a minimum threshold of credibility. [5] Having heard the Union’s evidence, it meets a minimum threshold of credibility. In accordance with specifically point number 7 above, the Board does not provide reasons when a non-suit motion is denied. In this matter, I am denying the non- suit motion. No reasons will be provided. [6] I turn now to the issue of mootness. The motion that I dismiss these grievances was argued on the same facts as the non-suit motion. Given my decision on the non-suit and the Board’s practice not to provide reasons, I am not going to provide reasons in respect of mootness because they would be the reasons that I am not providing in respect of the non-suit motion. That said, I think it suffices to say that I agree with the Union that there is a labour relations purpose to ensuring that the Employer carries out its management functions in good faith. [7] This matter will continue on the dates already scheduled. Dated at Toronto, Ontario this 8th day of September, 2023. “Stephen Raymond” ______________________ Stephen Raymond, Arbitrator -4- APPENDIX A GSB File Number Grievor Union Grievance Number 2015-0473 Kelso, Steven et al 2015-0313-0002 2015-0474 McLeod, Jeanne 2015-0313-0003 2015-0475 Bamford, David et al 2015-0340-0001 2015-0476 Botulenko, Billy 2015-0340-0002 2015-0477 Cox, Rob 2015-0340-0003 2015-0478 Delong, Kimberley 2015-0340-0004 2015-0479 Grozelle, Donald 2015-0340-0005 2015-0480 Lindo, Derek 2015-0340-0006 2015-0481 Michael, James 2015-0340-0007 2015-0482 Monteleone, Larry 2015-0340-0008 2015-0506 Davidson, Mike et al 2015-0362-0002 2015-0507 Doiron, Anne 2015-0362-0003 2015-0508 Green, Stuart 2015-0362-0004 2015-0509 Kowalski, Bogdan et al 2015-0446-0002 2015-0510 McNulty, Brian 2015-0446-0003 2015-0511 Wong, Manon 2015-0446-0004 2015-0512 Concepcion, Roland et al 2015-0533-0009 2015-0513 Davey, Julian 2015-0533-0010 2015-0514 Garcia, Paulo 2015-0533-0011 2015-0515 Gonsalves, Valentina 2015-0533-0012 2015-0516 House, Michael 2015-0533-0013 2015-0517 Innes, Michael 2015-0533-0014 2015-0518 Lau, Danny 2015-0533-0015 2015-0519 MacFadyen, Ian 2015-0533-0016 2015-0520 Moore, Rosalind 2015-0533-0017 2015-0521 Mccaffrey, Glenn 2015-0533-0018 2015-0522 Pfeffer, Dennis 2015-0533-0019 2015-0523 Rode, Steven 2015-0533-0020 2015-0524 To, Tom 2015-0533-0021 2015-0525 Blackwood, Timolin 2015-0533-0022 2015-0526 Alcock, Joseph et al 2015-0702-0004 2015-0527 Villeneuve, JoAnne 2015-0702-0005 2015-0528 Brown, Denise et al 2015-0736-0001 2015-0529 Lapensee, Patrick 2015-0736-0002 2015-0530 Sereg, Istvan 2015-0410-0001 2015-0531 Monette, Gwen 2015-0649-0006