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HomeMy WebLinkAbout2002-2157.Labadie.06-04-07 Decision Crown Employees Commission de Nj 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# 2002-2157 2003-1260 UNION# 2002-0362-0004 2002-0362-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Lab adI e) Union - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Richard L Jackson Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Yasmeena Mohamed, Semor Counsel George ParrIs, Counsel Mimstry of Government ServIces HEARING Apnl15 21 & 22 May 5 &12 June 15 & 16 November 24 & 25 December 5 & 12,2005 January 4 March 6 2006 2 DeCISIon ThIS IS a fuller verSIOn of my rulIng on the employer's request for an adj ournment of the heanng dates of March 6 and 7 and, possIbly Apnll0 a proposal opposed by the umon. At the partIes' request and for ObVIOUS reasons of necessIty I made an oral rulIng after the partIes' submISSIOns on March 6 The purpose for the requested adjournment was to gIve the employer an opportumty to have the sealIng order on the LabadIe famIly-law file lIfted or amended so that the Report of the ChIldren's Lawyer's InVestIgatIOn Into the LabadIe famIly sItuatIOn (hereInafter referred to as "the Report") could be relIed upon In thIS arbItratIOn. The umon had argued, In a motIOn on December 12, 2005 that I should not allow thIS Report Into eVIdence In an Intenm award, dated January 9 2006 I agreed wIth the umon's motIOn, gIven that the InVestIgatIOn Into the LabadIe famIly sItuatIOn and Report had been ordered by the preSIdIng famIly-court judge and was now part of a legally sealed file of that case My award stated that "unless the employer can get the sealIng order lIfted pursuant to SectIOn 6 (1) of the Courts of Justice Act or by appealIng to Judge Olah (who had Issued the sealIng order) the Report may not be entered Into eVIdence" The Mimstry acted on thIS dIrectIve and had two court dates set for ItS request to be heard. Mr LabadIe asked that both dates be adjourned to allow hIm to find a lawyer to represent hIm at the heanng on the matter The employer agreed, and a further date, March 2, was set. AgaIn, Mr LabadIe requested an adjournment, to whIch the employer agreed but thIS tIme only subject to the umon's agreeIng to adjourn the prevIOusly scheduled arbItratIOn heanng dates of March 6 and 7 The umon refused. All of thIS brought us to arguments on the employer's motIOn to adjourn those dates, whIch I heard on March 6 The pnncIpal thrust of the employer's lOgIC was that, In order to be In a posItIOn to present a proper and full account of ItS reasomng and decIsIOn-makIng In the termInatIOn of the gnevor It must be able to adduce the Report of the ChIldren's Lawyer and, therefore, should be gIven a proper opportumty to avaIl Itself of the qualIfier I Included In my Intenm award - namely appeal to the court to 11ft or modIfy ItS sealIng order or In some other way allow the contents of the Report Into the publIc forum of thIS arbItratIOn. Counsel for the employer argued that the Report 3 had had an Impact both on the dIrectIOn of the InVestIgatIOn Into Mr LabadIe and the decIsIOn to termInate hIm and, thus, was an Integral element In the employer's case The employer also argued that It was unfair that tWIce accommodatIng Mr LabadIe's requests to adjourn court dates to deal wIth ItS request to open the file - hence delaYIng the court's decIsIOn on the matter- should now become a basIs to deny ItS request for an adjournment of the arbItratIOn. The umon argued that, gIven that the employer had known SInce September of 2004 that the umon would object to the entenng of the Report, It should have acted before thIS and, SInce It had not done so was now the "author of ItS own mIsfortunes" Second, for a vanety of reasons, IncludIng delay the fact that the Mimstry of Natural Resources IS not lIkely to be consIdered by the court to be a party "affected by" the sealIng order (and, thus, not entItled, under s 27 14(1) of the Rules of CIvIl Procedure, to obtaIn a vanance of the sealIng order) and the pnncIple of "deemed undertakIng" the appeal to the court was unlIkely to succeed In any event and, therefore any delay for thIS purpose would serve no useful purpose FInally and as context for all of the foregoIng reasons, thIS IS a dIscharge case Mr LabadIe has been out of hIS job for a long tIme and should not be made to suffer further delay for somethIng that the employer should have antIcIpated long ago and that IS unlIkely to succeed In any event. In rulIng on the employer's request, I balanced the prejUdICe to the gnevor of grantIng the employer's motIOn agaInst the prejUdICe to the employer of refUSIng It. After dOIng so I agreed to the employer's request for an adjournment of March 6 and 7 and, If necessary Apnll0 for the follOWIng reasons FIrst, I concluded that, as a practIcal matter the adjournment of these dates was not lIkely to mean a substantIal delay In fimshIng thIS case The partIes dId not fimsh theIr submIssIOns on the motIOn for adjournment untIl 2 15 In the afternoon, thus, the date of March 6 was already gone Counsel for the employer stated that, In the event that I ruled agaInst hIS motIOn, he would request a late start on March 7 to re-prepare hIS wItness (in lIght of not beIng able to refer to the contents of the Report) a request to whIch I would have agreed. Thus, March 7 would have been a partIal day AssumIng, then, that the sItuatIOn has stIll not been resolved by our next scheduled heanng date Apnll0 agreeIng to the employer's request would mean a net loss of perhaps slIghtly more than one and a half heanng days A net loss of about one and a half heanng days must be vIewed In the context of a case that began on Apnl 15 2005 that has already taken twelve heanng days, In whIch we have not 4 fimshed the employer's eVIdence - nor even reached the actual decIsIOn to termInate the gnevor - and we have not yet heard from eIther of the pnncIpal wItnesses for the two partIes, much less had the argument phase Furthermore, at thIS pOInt, only three dates had been scheduled after Apnl 10 (July 17 August 18 and September 5) ObvIOusly not enough tIme to conclude thIS case Whatever happened wIth respect to the employer's request for adjournment, then, we were gOIng to reqUIre addItIOnal heanng dates In the fall and, possIbly Into the WInter LOSIng a day and a half In March and Apnl wIll have lIttle effect In the ultImate length of the heanng, so the actual prejUdICe to Mr LabadIe, taken In the context of a long, complex case IS mImmal The fact that, ImmedIately after my oral rulIng, we set SIX new dates, begInmng wIth October 24 and endIng wIth December 14 reInforces my sense that the delay wIll not have been matenal With respect to prejUdICe to the employer If theIr request for adjournment was not granted, I consIdered the folloWIng. ThIS IS a hIghly unusual sItuatIOn It now finds Itself In It used a document, obtaIned properly and In good faith, as part of the decIsIOn-makIng process that led to the termInatIOn of the gnevor now however because of the sealIng order and my Intenm award, It sees Itself In a posItIOn where It may not be able to tell the whole story That would be a prejUdICe, both to the employer and to the process, and the employer deserves a proper opportumty to lIterally "have ItS day In court" on the matter It hasn't yet had that opportumty because It agreed to Mr LabadIe's two requests for adjournments Counsel for the umon may be correct In hIS argument that the employer's petItIOn IS lIkely to be turned down, but that IS not for me to judge, just as It was not for me to break the judge's sealIng order and allow the Report's contents Into a publIc process and forum As to the umon' s argument that the employer brought about ItS own mIsfortunes by vIrtue of havIng known about the umon's ObjectIOn and havIng done nothIng about It, I agree, to a degree However thIS sItuatIOn - a document beIng legally acqUIred, used In decIsIOn-makIng, and only afteffiards becomIng legally unavaIlable - was hIghly unusual, as eVIdenced by the fact that neIther party was able to cIte any case dIrectly on pOInt In arguIng the umon's motIOn that the Report should not be allowed. I can at least understand the employer's not fully antIcIpatIng that a document It claims to be so Integral to ItS decIsIOn-makIng mIght actually not be allowed Into eVIdence FInally I am mIndful that Mr LabadIe hImself has contnbuted to the delay by vIrtue of requestIng the adjournment of two court dates, to whIch the Mimstry agreed. The aggregate responsIbIlIty for delay IS thus to some extent a shared one 5 In lIght of these complex reasons for delay gIven the hIghly unusual problem confrontIng the employer In havIng a document on whIch It relIed In Its decIsIOn-makIng process subsequently placed out of bounds, and beanng In mInd the fact that the actual delay to fimshIng the case In grantIng the adjournment wIll not be matenal, I granted the employer's request for an adj ournment. Dated at Toronto thIS ih day of Apnl, 2006 "