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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 - and - 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 - 2 - 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. - 3 - 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 - 4 - 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