Loading...
HomeMy WebLinkAbout1999-1224.Pickett.04-02-05 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1999-1224 1999-1565 1999-1566 1999-1567 1999-2019 UNION# 99E122, 99D203 99D204 99D205 00A154 00A156 00A155 00A159 00A158 00A157 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (PIckett) Grievor - and - The Crown III RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Damel A Hams Vice-Chair FOR THE UNION John BrewIll Ryder Wnght Blair & Doyle Bamsters and SOhCItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING March 24 26 27 2003 2 Intenm DeCISIon The Proceedings The umon seeks to prove as part of Its case that Mr PIckett suffered damages as a result of hIS treatment by management, floWIng from an IncIdent on May 23 1999 The umon says that management's actIOns were motIvated In part by ItS dISCnmInatory attItude Mr PIckett, who has SInce passed away suffered from a physIcal dIsabIhty The dISCnmInatory attItude alleged IS Said to be extant at the Toronto East DetentIOn Centre, specIfically and throughout the Mimstry of CorrectIOnal ServIce, generally The umon seeks to have three documents entered Into eVIdence as part of ItS case In the above regard 1 ) MinistlY of the Solicitor General and Correctional Services Culture and Human Resources Revielt Final Report (Apnl, 1998 Coopers and Lybrand) 2) OPSEU (Pickett) and Ministry of Health GSB #2251/93 (W Kaplan, January 15 1996) 3 ) McKinnon v Ontario Ministry of Correctional Services (Human Rights Code Board ofInqmry N A Hubbard, November 29 2002) The umon seeks a ruhng on the admIssIbIhty of the documents per se and a dIrectIOn as to the scope of theIr use For convemence, the documents are hereafter referred to respectIvely as the Coopers and Lybrand Report, the Kaplan decIsIOn and the second McKInnon decIsIOn. 3 The Submissions of the Parties The umon said that the Coopers and Lybrand Report was commIssIOned by the employer and wIdely dIstributed. It should be accepted as expert eVIdence and the employer permItted to cross-examme the authors If so deSIred. The umon submItted that the Kaplan decIsIOn IS bIndIng both wIth respect to ItS findIng of fact and law as a pnor decIsIOn of thIS Board. The umon said that the findIngs of fact of the second McKInnon decIsIOn should be bIndIng on thIS Board and the decIsIOn as a whole should be receIved In eVIdence and gIven due consIderatIOn and senous weIght. The employer submItted that these are personal, not pohcy gnevances WhICh must be decIded on the basIs of the allegatIOns contaIned thereIn. In that regard, they allege IndIVIdual contraventIOns of the collectIve agreement to WhIch a broad InqUIry Into the culture of the Mimstry and specIfically the Toronto East DetentIOn Centre would be Irrelevant. The employer also submItted that the use the umon wIshes to make of the documents IS to receIve them at large, an approach WhICh IS too amorphous to respond to Further If the umon Intends to Invoke Issue estoppel wIth respect to the second McKInnon decIsIOn, the precondItIOns are not met. As to the Coopers and Lybrand Report, It was Said to be partIcularly unhelpful smce It IS largely survey results rather than expert eVIdence and, In any event, would have to be tendered by ItS authors 4 With regard to the Kaplan decIsIOn, the employer submItted that It IS an authonty that may be referred to In argument; It IS not eVIdence In reply the umon said that the documents are admIssIble to estabhsh the facts thereIn. The partIes rehed upon the folloWIng authontIes Canadian Labour Arbitration, (Brown and Beatty ThIrd EdItIOn) Evidence and Procedure in Canadian Labour Arbitration, (Gorsky Uspnch and Brandt) DevonianElectrical Services and IBEW (1971) 23 LAC 358 OPSEU (Villella) v Ministry of the Solicitor General and Correctional Services (GSB 1662/96 McKechme, February 25 1997) Rasanen v Rosemount Instruments Ltd (1994), 17 O.R. (3d) 267 (C.A) Ford Motor Company of Canada v Ontario (Human Rights Commission) [2001] OJ No 4937 Docket No C32965 Reasons for Decision The Coopers and Lybrand Report ThIS report was cIrculated on May 29 1998 to all CorrectIOnal ServIces DIVISIOn employees of the Mimstry of the SOhCItor General and CorrectIOnal ServIces By ItS own descnptIOn, It IS a compendIUm of hearsay In the form of survey and focus group results However the Board IS not precluded from admIttIng such eVIdence In VIew of the fact that the document IS notonous WIthIn the CorrectIOns DIvIsIOn, havIng been provIded to all staff, It would be artIficIal to exclude It, If relevant. It IS admISSIble, If arguably relevant, wIth ItS weIght to be determIned after final submIssIOns 5 The Kaplan Decision ThIS IS a final decIsIOn of thIS Board mvolvIng these partIes AccordIngly ItS findIngs of fact and law are bIndIng In these proceedIngs to the extent that there IS an IdentIty of Issue (see ATU (Blake) and Toronto Area Transit Operating Authority (G S.B 1276/87 et ai, ShIme May 3 1988)) The Second McKinnon Decision ThIS was a Human Rights CommIssIOn Board ofInqUIry decIsIOn In WhICh Michael McKmnon brought complaInts of racIal dISCnmInatIOn agaInst the Mimstry and vanous supervIsors at the Toronto East DetentIon Centre That Board of InqUIry made findIngs of senous and sustamed mIsconduct agaInst those respondents To rely on those findIngs here reqUIres the apphcatIOn of the doctnne of Issue estoppel That doctnne apphes If the same questIOn has been decIded, the decIsIOn IS final and the partIes or theIr pnvIes are the same Mr McKInnon's human nghts complaInts are not same questIOn raised by the complaInts ofMr PIckett. Second, the partIes agree that the decIsIOn IS beIng JudIcIally revIewed, so IS not final Lastly even If It mIght be broadly argued that the questIOn In common IS the culture of the InstItutIOn, the partIes or theIr pnvIes are not the same In both proceedIngs However Mr PIckett testIfied In those proceedIngs and the Board made comments regardIng the workplace consequences to hIm as a result of hIS havIng gIven eVIdence If relevant, those portIOns of the decIsIOn are admIssIble as part of the narratIve In thIS matter wIth theIr weIght to be assessed folloWIng final argument In these matters Dated at Toronto this 5th \; of Febrnary 2004 . .. . . ".. I .: :. '0: . .,.. ''I . .