HomeMy WebLinkAboutP-2023-03118.Mancini.24-05-17 Decision
Public 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-2023-03118
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mancini Complainant
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian Smeenk Chair
FOR THE
COMPLAINANT
Anthony Mancini
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
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DECISION
[1] This decision provides further procedural directions to the pleadings and pre-
hearing process for this application.
[2] After a Case Management Meeting held on March 21, 2024, the Board issued a
memorandum the same day (“the Direction”) reflecting the parties’ agreements
and the Chair’s directions regarding the steps that would facilitate the efficient
determination of this application. It appears that some clarification is necessary.
[3] The Direction stated, in relevant part, as follows:
… This will confirm the following agreements of the parties and directions of the Chair
regarding steps that will facilitate the efficient determination of this application:
1. Mr. Mancini summarized his 3 main arguments regarding his re-assignment to the Staff
Sergeant position as follows:
a. Violation by the Employer of employment policies regarding fairness, equity and
non-arbitrary treatment;
b. Breach of contract; and
c. Breach of his rights under Section 2(d) of the Charter.
2. It was agreed to proceed first with issues 1 [a] and [b], while holding issue [c] in abeyance
for possible later determination (including a likely jurisdictional objection from the
Employer regarding issue [c]).
3. The Employer will file with the Board and deliver to the Applicant, its Form 2 Response by
April 30, 2024. That response will include an outline of its position on all three issues. It
will also include a statement of all facts together with all documents that the Employer
believes are relevant for the argument of issues [a] and [b].
4. The Applicant will reply regarding the factual elements of the Employer’s Response by
May 24, 2024. That reply will outline what facts stated by the Employer are agreed, any
factual disagreements and the Applicant’s version of those facts, and any additional facts
upon which the Applicant relies.
5. The Employer will respond to the Applicants’ factual submissions by May 31, 2024, with
a view to reaching agreement on what facts shall be put before the Board for the purpose
of arguing issues [a] and [b].
6. If the parties are unable to agree on all the necessary facts, they will outline by May 31
the substance of any additional evidence they will seek to put before the Board at a
hearing. Such outline[s] will be provided to the Board along with the Statement of Agreed
Facts.
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7. Although it was not discussed during the Case Management Meeting, the parties are
directed to seek agreement on a date by which they will submit any written submissions
to the Board, prior to the hearing.
8. A hearing will be scheduled on June 21, 2024. The hearing will take place using Zoom,
unless the parties agree or the Board directs otherwise. At the hearing, the parties may
present any additional, contested evidence, subject to any rulings on admissibility; and
will present oral argument.
9. The Board will then rule on issues [a] and [b].
10. Hearings on issue [c], the Charter issue, will not be scheduled until after the Board rules
on issues [a] and [b], if such decision does not fully resolve the application. In that event
a fresh Case Management Meeting may be convened to determine the process for
hearing and deciding the issues that remain before the Board.
[4] The Employer subsequently served and filed its Form 2 Response in accordance
with the agreed timeline. The Response, however, does not include the
Employer’s position on Mr. Mancini’s argument [c]. Employer counsel notes in a
covering email that, “I would note in the direction below that the Employer was to
set out their position on the Constitutional question. I have not done so as I
thought we had left that question until the first two issues were complete.”
[5] The Employer’s Response thus does not comply with the Direction. As counsel
acknowledged, paragraph 3 of the Direction clearly states, “That response will
include an outline of its position on all three issues.” (Emphasis added). That
requirement is distinct from stipulating all of the facts or arguments relied on by
the Employer, which were dealt with separately in the Direction, with argument [c]
being put into abeyance. The Board and Mr. Mancini are thus left with only part
of the Employer’s response or defense to his application.
[6] Mr. Mancini is entitled to know the Employer’s position regarding each of his
three arguments, even if the third argument is being put in abeyance until the first
two are determined.
[7] The Employer is thus directed to complete its response to the application by May
31, 2024.
[8] A second issue which appears to require clarification is the process for dealing
with the factual issues relevant to Mr. Mancini’s arguments [a] and [b]. The
Employer’s Response complied with the Direction by including a statement of
facts it relies on in opposing Mr. Mancini’s arguments and contesting the Board’s
jurisdiction to decide these issues. Mr. Mancini did not, however, comply with
paragraph 4 of the Direction. Instead of setting out what facts stated by the
Employer are agreed or not agreed, Mr. Mancini advised the Board in an email
dated April 30, 2024 that, “I will review [the Employer’s Response] and respond
as discussed during our virtual meeting.” It appears that the “virtual meeting” he
refers to is the hearing scheduled for June 21, 2024. This does not comply with
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the process that was agreed upon and set out in the Direction for coming to an
agreement on facts and stipulating those that are in dispute.
[9] The parties are therefore directed to comply with paragraphs 4 – 7 of the
Direction regarding stipulating the facts relied upon and seeking to come to an
agreement on those facts to the extent possible. For further clarity, the parties
are directed to consult with one another in order to seek agreement on a
Statement of Agreed Facts and to file such a Statement with the Board by May
31, 2024. The Statement must clearly reference, by way of numbered and
tabbed exhibits and a Table of Contents, any documents that they agree shall be
appended to it and placed before the Board.
[10] At the same time, if any arguably relevant facts remain in dispute, the party
asserting such disputed facts shall by May 31, 2024 file a statement of
particulars outlining such allegations together with any further documents relied
upon. This shall be identified as, “Statement of Further Allegations of [Party’s
Name]”. If any party submitting such a Statement seeks to argue that the Board
cannot rule on the Employer’s preliminary objection without hearing such
disputed evidence, it shall make such submissions when filing the Statement of
Further Allegations.
[11] The parties must also comply with paragraph 7 of the Direction to seek
agreement on a date by which any further written submissions will be filed with
the Board, failing which the Board will set such a date.
[12] If any of the dates in the Direction or this decision require modification, the
parties are directed to seek agreement on any such modifications and advise the
Board. Failing agreement, submissions may be made.
Dated at Toronto, Ontario this 17th day of May 2024.
“Brian Smeenk”
_____________________
Brian Smeenk, Chair