Loading...
HomeMy WebLinkAbout2012-1337.Nitsotolis.13-10-30 Decision.Crown 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#2012-1337, 2012-1856, 2013-0754, 2013-0755, 2013-1623, 2013-2029, 2013-2398 UNION#2012-0508-0012, 2012-0508-0024, 2013-0533-0003, 2013-0533-0004, 2013-0533-0007, 2013-0508-0017, 2012-0508-0042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Nitsotolis) Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Marilyn Nairn Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Caroline Cohen Ministry of Government Services Legal Services Branch Counsel HEARING October 16, 2013 - 2 - Decision [1] The parties met on October 16, 2013 in an initial attempt to deal with a total of seven outstanding grievances filed by P.N. (the “grievor”). At that time it was determined that the hearing date scheduled for October 31, 2013 would be used to hear the evidence and submissions of the parties with respect to preliminary issues raised by the employer as to whether the Board has jurisdiction to hear and determine two of those grievances. [2] By letter dated October 22, 2013 union counsel advised that the grievor was seeking permission to record the proceedings on the basis of medical reasons. The employer objected to the proceedings being recorded. No medical reasons were provided and by e-mail dated October 22, 2013 I wrote to counsel as follows: … As you know, GSB proceedings, like other labour arbitration proceedings, are not recorded. In the absence of any medical documentation in support of the grievor’s position that recording the proceedings is necessary for medical reasons, such permission is not granted. [3] Subsequently, by letter dated October 29, 2013 union counsel has written, advising that the grievor is renewing his request that he be granted permission to record the proceedings. Enclosed with that letter is a note dated October 28, 2013 from his medical doctor that advises: TO WHOM IT MAY CONCERN: This patient remains under my medical care. Although he has issues with attentional focus and concentration from his depression, there are no signs of thought distortion at this time. Therefore I believe Mr. [N.] is capable of addressing any issues regarding his claim with his union and the lawyers retained by OPSEU. [4] The employer again objects to any recording of the proceedings on the basis that the medical note does not support a deviation from the Board’s practice. [5] The grievor is entitled to be accommodated under the Human Rights Code, R.S.O. 1990, c. H-19, as amended, (the “Code”) in respect of these proceedings in circumstances where it is shown that he suffers from a disability within the meaning of the Code and that such disability impairs his ability to participate in the proceedings in the same manner and to the same extent as any other person in his position. [6] The test is not whether the grievor will understand every piece of the evidence or every submission. That may well be true of any grievor regardless of any disabling condition. It is the role of counsel to explain the proceedings as they unfold, having met with the grievor so as to ascertain the relevant facts so that counsel may then also prepare relevant argument in support of the claim. The test is whether the grievor is able to participate in the proceedings like any other grievor. - 3 - [7] The medical note advises that the grievor suffers from depression. Depression is a recognized mental disorder falling within the definition of disability under the Code. Although this condition appears to have resulted in issues with attentional focus and concentration, the medical note is by no means clear in a conclusion that the grievor will thereby be limited in his ability to participate in the hearing process due to symptoms of his depression. To the contrary, it appears to confirm that the grievor is capable of addressing any issues regarding his claim with his union and the lawyers retained to represent him. Issues regarding his claim would include, for example, any concerns about factual disputes that might emerge in evidence. [8] However, even were I to assume that the grievor’s ability to address any issues regarding his claim speaks more to his competency than to his concentration and focus, it is not apparent why the recording of the proceedings would be the appropriate means of providing accommodation in these circumstances. Recording of proceedings is typically not done because arbitration proceedings are designed and intended to be more informal and less costly than court proceedings. Were proceedings to be recorded, it would be open to other parties to request a copy or a transcript, giving rise not only to additional costs, but also issues regarding the veracity of any original and/or any copy of any recording. These concerns must be balanced with any accommodation needs and it seems apparent that there might well be other means of addressing issues of concentration and/or focus during proceedings, such as the use of additional breaks, note-taking, and other means that are more appropriate than simply granting permission to record the proceedings. [9] Having regard to the above, permission to record the proceedings that will convene on October 31, 2013 is denied. Dated at Toronto, Ontario this 30th day of October 2013. Marilyn Nairn, Vice-Chair