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HomeMy WebLinkAbout1992-3042.Vassallo.96-08-14 "!~- " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # "3042/92, 1447/93, 785/94, 786/94, 787/94, 788/94, 847/94 OPSEU # 93A131, 93F611, 94A999, 94A998, 94A997, 94A996, 94E058 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Vassallo) Grievor - and - The Crown in Right ~Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE s. Kaufman vice-Chairperson P Klym Member M. Milich Member FOR THE S. Stamm GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J Benedict EMPLOYER James F. Benedict Dispute Resolution services Inc HEARING January 27, 1995 April 4, 6, 1995 May 26, 1995 February 7, 1996 April 24, 1996 May 13, 1996 June 14, 1996 1 INTERIM DECISION At the close of the union's evidence, counsel for the employer brought a motion for a non-suit without an election as to whether the employer would call evidence, based on the jurisprudence of this board in Faler (218/89), Rate (1732/87, etc ) and Toplin ( 2690/92, etc.) Counsel for the union advised that the parties had agreed that Faler applied, and that the employer could bring its motion without electing whether it would call evidence, but submitted that the 7 grievances before this panel had been "consolidated", and as a result, were to be treated as one grievance. The panel therefore, it was submitted, could not and should not examine the evidence which might otherwise be viewed as pertaining to each grieva~. Rather, the evidence should be reviewed in its entirety with respect to three points: 1) discrimination 2 ) harassment and a poisoned work environment, 3) health and safety. Only if the panel concluded that the union's evidence was such that the grievance could not possibly succeed on one or more of these points, should it grant the motion in whole or in part. The panel was asked to consider the definitions in Black's Law Dictionary (5th ed ) of "consolidate" and "consolidation of actions". "Consolidate" is defined as follows: In a general sense, to unite or unify into one mass or body, as to consolidate several small school districts into a large district, or to consolidate various funds In legisative usage, to consolidate two bills is to unite them into one The terms means something more than to rearrange or redivide To make solid or firm; to unite, compress, or pack together and form into a more compact mass, body or system To cause to become united and extinguished in a superior right or estate by both becoming vested in the same person 2 See also Commingle; Consolidation; Joinder; Merger "Consolidation of actions" is defined as The act or process of uniting several actions into one trial and judgment, by order of a court, where all the actions are between the same parties, pending in the same court, and involving substantially the same subject matter, issues and defenses; or the court may order that one of the actions be tried, and the others decided without trial according to the judgment in the one selected When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay See also Joinder (Joinder of claims) Subsequent to oral argument, in support of the submission that the parties had agreed that the 7 grievances had been "consolidated", counsel for the union provided the panel copies of correspondence between the parties, dated December 2, 1993, January 5, 1995, January 13, 1995, January 31, 1995, ;;.'i,o "conso- and February 2, 1995. The parties had used the terms lidation" and "consolidate" in that correspondence. Counsel for the employer submitted that although the word "consolidate" had been used, the parties had not agreed to determine the 7 grievances as though they were one. On the first day of hearing, at which time only GSB 3042/92 (grievance dated October 9, 1992, Tab 1, union Book of Docu- ments Vol. I) was scheduled to be heard, the union referred to "additional grievances", which the parties subsequently agreed would be heard together, notwithstanding that the word "consolidate" was used. The parties may agree to "consolida- tion" in the sense used by the union where, with respect to a multiplicity of grievances, they agree that the determination of one of the grievances will determine the outcome of the others. Where the intention is to avoid the need to call the same evidence in a number of grievances, the parties agree that those grievances will be heard together. This was intended in Smith (545/94), in which Mr. Kaplan used the word 3 "consolidated" to direct that two grievances would be heard together The panel cannot determine the motion for non-suit regarding the 7 grievances on an issue-by-issue basis, but must deal with each incident in the union's evidence. First Ruling: On the second day of hearing the parties indicated to the panel that they agreed to "consolidate" seven grievances Those grievances contain the following allegations: Grievance Allegations 1 Oct 9, 1992--GSB 3042/92 a) conducting and condoning a Tab 1 poisoned work environment b) not being treated -fairly -equally -in non-discriminatory ,;," manner 2 May 28 /93--GSB 1447/93 a) harassment Tab 2 b) conducting and condoning a poisoned work environ- ment c) not being treated -fairly -equally -in non-discriminatory manner 3 May 5 /94--GSB 0787/94 a) conducting and condoning a Tab 21 poisoned work environment b) not being treated -fairly -equally -in non-discriminatory manner with regard to handicap 4 May 5 /94--GSB 0786/94 I grieve Art 18 1 in that the Tab 22 Ministry and Toronto Jail Management are jeopardizing my health & safety with total and complete disregard with respect to my disability i e -their lack of training and understanding of such disability and conditions 4 -the employer has failed to follow s 25 (2) (c) of OHSA, 1991 5 May 5 /94--GSB 0785/94 a) failure to comply with Tab 23 1 Ont Human Rts Code 2 Workplace Harassment & Discrim n Policy 3 Employment Equity regarding 1 Work Assignments 2 Accomodation re disability 6 May 5 /94--GSB 0788/94 a) violation of health and safety Tab 24 act 1 by permitting untrained managers to manage & run shifts 2 employer's unwillingness ,~~to properly train their management group 7 May 24 /94--GSB 0487/94 a) violation of CECBA and Tab 25 b) violation of C A by unfair and unequal applica- tion of their attendance review process During the course of this proceeding, union counsel advised that the incorrect section of the Ontario Health and Safety Act was stated in grievance #4, and that the reference to s. 14 was intended to be a reference to s. 25 The foregoing breakdown of the allegations in each grievance discloses a degree of overlap and repetition as between some of the grievances, and the allegedly continuing nature of the alleged violations. On the first day of hearing, January 27, 1995, the panel was scheduled to hear GSB 3042/92, the first of the above grievances On that occasion the panel was advised that there were other outstanding grievances of this individual grievor, which had in common the fact of his insulin depen- 5 dent diabetic condition, his request for certain accomoda- tion, and the alleged failure of management to provide that accomodation, among other things. We were advised that medi- cal evidence might be called establishing the condition and need for accomodation, which would be common to each of the grievances The grievor began his evidence-in-chief on January 27, 1995, when GSB 3042/92 was the sole grievance before this panel. On April 4, 1995, the second day of hearing, counsel for the union advised the panel that the parties had agreed to "consolidate" all seven grievances. No submissions were made at that time as to the procedural implications of that agree- ment and no order "consolidating" the grievances was made. The panel accepted jurisdiction over the seven grievances at that point, and in the context of Mr. Vassallo continuing his evidence-in-chief, proceeded to hear evidence pertaining to each of them. ~:;.o,. The union's evidence, presented over 7 days of hearing, dealt with approximately 24 alleged occurrences and viola- tions between March of 1992 to May 24, 1994 and events subsequent to that date. Thereafter the motion for non-suit was argued over 2 days The panel is of the view that the parties' use of the word "consolidate" both in their correspondence and before this board is not necessarily determinative of their inten- tion as to the procedural consequences of their agreement. While the Rules of Civil Procedure, O./Reg 194, 1990, as amended, do not directly apply to these proceedings, when considered together with the above Black's Law Dictionary definitions of "consolidate" and "consolidation of actions", Rule 6 demonstrates the relatedness of the terms "consolida- tion" and "hearing together". Rule 6 is titled "Consolida- tion or Hearing Together" (emphaasis added) Rule 6.01(1) provides: 6 Where two or more proceedings are pending in the court and it appears to the court that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the court may order that ( d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (i) stayed until after the determination of any of the other of them, or (ii) asserted by way of counterclaim to any other of them Rule 6 establishes that consolidation and hearing together are procedural options which ~~y be followed to avoid a multiplicity of proceedings. However, Rule 6, and the ruling in Smith, supra, also demonstrate that the word "consolidate", without further clarification, is used in legal and administrative proceedings to refer to any of a number of procedural possibilities: 1) to hear the evidence pertaining to several claims or grievances in one hearing; this form of hearing is at times referred to as "joinder of claims", "consolidation" of claims, or hearing together, and can encompass the following options: a) the evidence regarding all the claims or grievances is heard together in one hearing, at the conclusion of which the judge or tribunal deter- mines whether the evidence supports each of the allegations stated in each claim or grievance at the close of the all the parties' evidence, where a motion for non-suit has not been argued; 7 b) the evidence regarding each claim or grievance is heard serially, in the sense that each grievance is heard one after the other, such that the plaintiff/grievor presents his/her evi- dence on one grievance at a time, followed by the responding party's evidence as to that grievance, and by reply evidence, if any, after which the plaintiff/grievor presents his/her evidence on the next grievance, followed by the responding party's evidence on that claim or grievance, and so on until the evidence as to each claim/grievance is heard. The judge or tribunal may make its determi- nations either at the completion of evidence regar- ding each claim/grievance, which may assist the parties to resolve the balance of the actions/grie- vances, or may render its determination(s) after hearing all the evidence per~ning to all the claims/grievances. 2 ) additionally or alternatively to the procedure of presentation of the evidence as to each claim/grievance, the parties may, by using the term "consolidation", intend that all the claims/grievances be merged into one claim. Where merger is intended, each claim/grievance loses its individual character and the claims/grievances are reconsti- tuted as one, and all the evidence regarding them is heard in one proceeding When, by use of the term "consolidation", the parties' intention is merger of a number of claims/grie- vances, in addition to hearing them together, principles of fairness and natural justice require that that intention be made clear to al~ parties at the commencement of the procee- dings, either by clear agreement as between them or by an order or direction of the tribunal. In this case, the correspondence sheds no light on what the parties meant by agreeing "to consolidate" the grievan- ces. On January 30, 1995, counsel for the union faxed the 8 employer a letter (Ex. 32) setting out the particulars of the grievance numbered 4, above. No consolidated grievance or statement of allegations and violations was delivered. There was no indication that prior to argument with respect to this motion for a non-suit, which took place on May 13 and June 14, 1996, the parties had agreed, orally or in writing, that the seven grievances before this panel would be resolved on the basis that they had been merged into one which alleged discrimination, harassment and a poisoned work environment, and a health and safety violation or violations. The union's evidence was given chronologically, and from time to time during the course of the union's evidence, counsel indicated the specific grievance to which particular evidence pertain- ed. The panel was of the understanding, until argument on the motion for a non-suit, that because the seven grievances dealt with some common issues of fact, law and arbitral jurisprudence, and if heard separately wbuld result in the same evidence being given in more than one proceeding before differently constituted tribunals, at greater expense and with the possibility of inconsistent findings, that the parties had agreed that it would be more cost-efficient to them and the public if the grievances were heard together and by one panel. The panel concurred with that approach. It is common in arbitration and other proceedings for parties to agree and/or for courts and tribunals to order that a number of actions/grievances which share common issues of fact and law be heard together. The purpose of doing so is to save the time and cost of hearing the same or similar evidence and arguments in multiple proceedings b~fore diffe- rent tribunals and to avoid the risk of inconsistent find- ingso It is not unusual for the term "consolidation" to be used when the parties simply intend the actions/grievances to be heard together for the foregoing reasonso Neither of the parties, prior to argument on the motion for a non-suit, clearly indicated to one another or to this panel that they intended the seven grievances to be merged into one, such 9 that they lost their individual character and constituted one broad grievance alleging discrimination, harassment and a poisoned work environment and a health and safety violation or violations. In the absence of any clear agreement to that effect, the panel is of the view that prudence and fairness obliges it to consider the motion for a non-suit on the basis that the parties, by agreeing "to consolidate" the seven grie- vances, had simply agreed that they be heard together Second Ruling In Faler, supra, at p. 7, Mr. Fisher was of the view that the benefits of proceeding with the motion for a non- suit without putting the mover to an election were that "the length of the proceeding would not be ul1.Ciuly prolonged", and further, if the motion was successful, "the total length of the hearing would have been substantially reduced", and if "denied, it will not have hindered the case unduly" This approach, then, was expected to have the overall advantage of expediting the proceeding. Mr. Fisher also expressed a concern about maintaining fairness and about the possibility that the Board might "compromise its neutrality" by ruling on the motion for non- suit without putting the mover to an election Referring to a thirty-page decision in Ontario Human Rights Commissions Mar9aret Tomen and Linda L09an Smith v. OTF and OPSTF in which the Chairman, in determining that the moti9n must fail, expressed his opinion as to both the evidence and the law, Mr. Fisher stated: it seems inappropriate for a Board such as the Grievance settlement Board, which is constantly determining disputes between the same parties, to express full reasons as to why one party has failed to prove a prima facie case This would be the equivalent to an "arbitral time-out in which the opposing party has the opportunity to find out what the Board is thinking, and then plan its strategy for the rest - 10 of the case In a situation like this, one would expect a motion for non-suit in every case, as it would provide a useful advantage in every case to the moving party, whether or not they had any chance of winning a motion of that sort However, these fears can be eliminated if the board gives no oral or written reasons in the event the motion is dismissed Of course, if the motion is upheld, full and proper reasons would be provided, as then the motion would end the case A mere indication by the Board that the motion was dismissed would not give a tactical advantage to either party when one looks at the interests of expedition and fairness as they relate to the circumstances of this parti- cular case, it is proper that the Union be able to present its motion for a non-suit without the requirement of having to elect as to whether or not to call evidence, on the understanding that if the Board dismisses the motion, it shall do so without written or oral reasons The parties were agreed that the foregoing was the applicable arbitral jurisprudence and procedure when deter- mining a motion for a non-suit without an election by the moving party and the panel concurs. In Toplin, supra, at p. 4, Mr. Waisglass approved this approach, and said: .;;."' If we had dismissed the non-suit motion we would not have given the parties our reasons for doing so, orally or in writing, at least not until the final award is issued upon closure of the case, and then only if requested by one of the parties He also quoted from Abary 9 C.H.R.R. D/4975, at para. 38201 the principles of fairness should not require an eviden- tiary response in the absence of a 'case to meet' with approval. This panel also agrees with the foregoing statements. In Toplin, supra, Mr. Waisglass canvassed the standard which the evidence must meet (or fail to meet, depending upon one's point of view) in order for a motion for a non-suit to succeed. The standard has been expressed in a number of ways and it is useful to set them out concisely: a) In order to succeed, the Employer must show that there is not sufficient evidence for a prima facie case, which means that there is no evidence of probative value for the defendant, the Employer, to answer [Toplin, supra, p 5] b) If there is some evidence a motion for non-suit must be dismissed If there is none, it must be granted In per- . 11 forming this function the judge must lean in favour of the respon- dent to the motion [Ontario v. OPSEU (Calhoon), (1990), 37 0 A C 218 cited in Toplin, supra, pp 5-6] c) it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, may be inferred The judge does not decide whether in fact he believes the evidence [but] whether ~he ~nference which the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it The decision of the judge on the sufficiency of evi- dence is a question of law; he is not ruling on the weight or the believability of the evidence which is a question of fact Be- cause it is a question of law, the judge's assessment of the pro- bative sufficiency of the plaintiff's evidence is subject to review by the Court of Appeal {Re Calgary Cooperative Assn. & Cal- co Club, 24 LAC (4th) at p 316-7 (McFetridge), cited in Top- lin, supra, p 6] d) The evidence must be relevant to the questions which must be decided if the grievances are to succeed the estab- lishment of a prima facie case requires evidence which has the minimum necessary probative value to require a response from the Employer, and which, in the absence of an acceptable defence, is sufficient evidence for the grievance to succeed Clearly, the evidence required for a prima facie case is not to be weighed on the balance of probabilities, but rathe~~he evidence is to be assessed to determine if it has sufficient probative value to require an answer from the defence [Toplin, supra, p 7] The panel has reviewed the union's evidence in view of each of the foregoing standards and in view of the submissions of each of the parties. As stated previously, employer counsel urged the panel to rule on an incident-by-incident basis as to whether the union's evidence had met the necessary standard In our view, such an approach would give the moving party the advan- tage of some insight into how the panel viewed the evidence and what it was thinking, and enable it to plan its strategy for the rest of the case. These are precisely the concerns regarding procedural fairness, both actual and perceived, that were expressed in Faler and Abary, supra. This Board must decline to render a ruling which could be perceived as providing one party a tactical advantage. Fairness dictates that the panel assess the evidence against the above stan- dards on a grievance by grievance basis, rather than global- . . 12 ly, as urged by the union, or on an incident-by-incident basis, as urged by the employer. We conclude., after careful consideration of the evi- dence, the submissions and the standards, that no evidence of probative value has been presented with respect to the alle- gations in grievances 4, 6 and 7 above, i.e. GSB Files 0786/94 and 0788/94, dated May 5, 1994 and GSB File 0487/94, dated May 24, 1994, (Tabs 22, 24 and 25, Union Book of Documents Vol. II) . Accordingly, the motion for non-suit succeeds in part, and those three grievances are dismissed. The evidence disclosed some overlap in the fact situa- tions underlying each grievance. The motion for non-suit is dismissed regarding grievances 1, 2, 3 and 5, above. The panel anticipates hearing evidence from the employer in response. In the circumstances of this~ase, the provision at this time of written reasons for granting the motion for non-suit regarding grievances 4, 6 and 7 would have the potential of constituting the "arbitral time-out" and give rise to an appearance of unfairness if not to actual unfair- ness as expressed in Faler and Abary, supra, and the cases considered therein. Consequently, at this point in the proceedings, the panel reserves its reasons for upholding the motion in part, and will provide them in its final decision on the merits, if either party requests them. The hearing will continue on September 5 and 6, 1996, as previously agreed to by the parties. . ~ ~ ~ 13 Dated at Toronto this 14th day of August, 1996. Susan D. Kaufm n Vice-Chair -L~.;L~/iJ2 Micheal Milich I Employer Nominee .;.;.... i/;c 0,J'~ Peter Klym Union Nominee