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HomeMy WebLinkAbout1996-1662VILLELLA97_10_30 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO -/ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, SUITE800, TORONTOONM6G tZ8 TELEPHONE/TELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 800, TORONTO (ON) M5G tZ8 FACS/MILEITELECOPIE (410) 32tJ-13QtJ GSB # 1662/96 OPSEU # 96A311-414 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Villella) Grievor - and - The Crown 10 Right of Ontano (Mimstry of the Sohcltor General & CorrectIOnal ServIces) Employer BEFORE G,H. McKechme Vice-ChaIr FOR THE M. McFadden GRlEVOR Counsel KoskIe & Minsky Bamsters & Sohcltors FOR THE M. Wilson EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING October 28, 29, 1997 .- DECISION Trus is an intenm decision arising from questIOns asked dunng the cross-exanunation ofMr D Olver, a witness for the Ministry, on October 28, 1997 The decisIOn was outlined to the parties, orally, at the hearing. Stated bnefly, the issue arose as follows. (1) At the end ofcross-exanunatIOn, Counsel for the Umon asked Mr Olver where he took the mornIng break in the proceeding. The Witness stated that he had spent the break at the same table in the cafe as Counsel for the Mimstry, Mr S Patterson, and Ms. J LIndsay (2) Mr Olver was asked ifhe saw Mr Patterson and Ms. Lindsay flipping through documents and discussing the subject of the Instant case. Mr Olver replied that he was facing the window, looking at Dundas Street. (3) Counsel for the Union stated that the grievor, Mr J Villella, and others, would say that Mr Olver was closely observIng Mr Patterson and Ms. Lindsay as they flipped through the documents. Mr Olver disagreed. (4) Mr Olver was asked If he heard the conversation and he replied that he did not take part in any conversation, did not pay attention, did not see any documents and that he looked out the window Mr Olver was excused from the heanng room and Mr Patterson, who had been advised earlier that the Union intended to raise this issue, stated that the matter was very senous. He was not sure what would be alleged by Mr Villella, however, if the issue was that Mr Patterson had been engaged in unethical practices, or conduct, that issue must be resolved by means of a vOir dire in this heanng pnor to proceeding further on the ments of the case. Mr M. McFadden, Counsel for the Union, stated that there was no allegation beIng made by the Umon or by Umon Counsel agaInst Mr Patterson; rather the Issue was the credibility of, and weight to be given to, Mr Olver's evidence. Counsel also stated that any complaint with respect to conduct could be dealt With by the appropriate authority instead of haltIng the heanng. Finally, Counsel stated that an issue arose earlier in the hearing process with respect to a WDHP complaInt wruch was filed by Mr Villella agaInst Mr Patterson, during the heanng, and I had ruled that If It was to be pursued, the appropnate place was outSide the arbitration process, not dunng the heanng. Mr Patterson rephed that the undertakmg by Counsel for the Umon, and the Union, did not bmd Mr Villella and an allegation could still be made, by rum, regardmg unethical conduct. Further, resolutIOn of the issue of the credibihty ofMr Olver could reqUIre eVIdence from Mr Patterson, Also, Mr Patterson stated that a factual finding m thiS proceeding could be relIed upon m another quasI-Judicial proceeding between the same parties As a result, the matter should be deCided Immediately After consideratIOn of the arguments made by both Counsel, I reported to the parties on October 29,1997, as follows (1) The mstant sItuatIon dIffered from the earlIer WDHP matter because the WDHP complaInt referred to comments, made by Mr Patterson and others, unconnected With / eVIdence being presented In the ments of the case, the process whIch is now underway My ruling in the WDHP matter was that non-arbItration matters were to be pursued outside the heanng process and only arbitral matters were to be brought to the hearing. The current matter is related, directly, to the evidence ofMr Olver on the merits of this case. (2) Although Mr McFadden gave his undertaking that neither he nor the Union were bringing any allegations agaInst Mr Patterson, it is clear th~t Mr Villella is not bound by thIS. I agree with Mr Patterson that allegations could be made by Mr Villella. From Mr McFadden's questions to Mr Olver, and his submissions on the voir dire, it is clear that the matter is related, directly, to the Issues before me. As a result, this hearing IS the appropriate venue, and authonty, to hear and deCIde the matter (3) The Issue is not the weIght to be gIven to Mr Olver's evidence. Rather, It is the behaVIor of the Mirnstry personnel dunng the break on October 28, 1997, and Mr Patterson, as Counsel, is Involved directly in this matter I ruled that ifMr Villella, the Union and Counsel withdrew the suggestion of impropriety, or allegation, the hearing would proceed on the merits and the questions regarding the break posed to Mr Olver, and his answers, would be stricken from the record. However, if the Union and Mr Villella maintained theIr pOSItion, a voir dire would be necessary in order for the allegation to be stated and the issue deCIded. Dated at Toronto this 30th day of October, 1997 ~Y7~ Graeme H. McKechnie Vice-ChaIr