HomeMy WebLinkAbout2011-3309.Beaman-Hearn.13-06-05 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2011-3309, 2011-3310
UNION#2011-0523-0002, 2011-0523-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Beaman/Hearn) Union
- and -
The Crown in Right of Ontario
(Ontario Place Corporation) Employer
BEFORE Barry Stephens Vice-Chair
FOR THE UNION Leslie Gilchrist
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Stewart McMahon
Ministry of Government Services
Legal Services Branch
Counsel
HEARING May 2 & 6, 2013.
- 2 -
Decision
[1] The grievors both worked as group sales representatives for Ontario Place Corporation,
and both received surplus notices in November 2012. The grievors allege that the surplus
notices were motivated by bad faith and discrimination.
[2] The parties engaged in an exchange of documents and particulars prior to the first hearing
day in this matter. The employer provided notice to the union of an intention to seek a ruling at
the outset of the hearing that there was no prima facie case identified by the grievances. This
decision deals solely with the ‘no prima facie case’ motion.
[3] The test for a motion of no prima facie case was articulated as follows by Vice-Chair
Dissanayake in Re Couture et al, 2008-3329, at paragraph 6:
“[A] prima facie motion would succeed if the facts asserted in support of a grievance,
if accepted as true, are not capable of establishing the elements necessary to
substantiate the violation alleged.”
[4] Vice-Chair Gray provided a somewhat memorable commentary on the issue of the test
for a non-suit in a case involving allegations of discrimination in Re Gauntlett, 2006-0659, at
paragraph 33, stating:
“The test, then, is only whether discriminatory motivation is a possible explanation of
the behaviour described in evidence, having regard to all of that evidence, not
whether it is the only possible explanation or the most probable of the possible
explanations or more probable than the sum of all of the probabilities of all other
possible explanations or whatever the appropriate test may be when it comes time to
weigh the evidence.”
[5] The parties requested a ‘bottom line’ decision on the issue. Indeed, as is the case with
motions for non-suit, it would not be appropriate to provide commentary on the reasons for
determination of the motion where the motion is dismissed.
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[6] After considering the submissions of the parties, as well as the authorities provided, it is
my conclusion that the employer’s motion should be dismissed. This case will continue on the
dates previously agreed between the parties.
Dated at Toronto this 5th day of June 2013.
Barry Stephens, Vice-Chair