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Home My WebLink About1995-1694.Monk et al.07-01-10 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 1995-1694, 1995-0267,1995-1556,1996-1814,1996-1814, 1996-1814, 1996-1143, 1996-1143,2000-0416,2001-0458,2004-1443, 2005-2428,2005-2430,2005-2433,2005-2441, 2005-2676, 2005-2677, 2005-2678, 2005-2679, 2005-2751, 2005-2752, 2005-2767, 2005-2819, 2005-2820,2005-2821,2005-2822,2005-2823, 2005-2824, 2005-2825, 2005-2826, 2005-2827, 2005-2828, 2005-2829, 2005-2830, 2005-2831, 2005-2832,2005-2833,2005-2834,2005-2835, 2005-2836, 2005-2837, 2005-2838, 2005-2839, 2005-2840, 2005-2841, 2005-2842, 2005-2843, 2005-2844, 2005-2845, 2005-2846, 2005-2847, 2005-2848, 2005-2849, 2005-2850, 2005-2851, 2005-2852, 2005-2853, 2005-2854, 2005-2855, 2005-2856,2005-2857,2005-2858,2005-2859, 2005-2860, 2005-2861, 2005-2862, 2005-2863, 2005-2864, 2005-2865, 2005-2866, 2005-2867, 2005-2868,2005-2869,2005-2870,2005-2871, 2005-2888, 2005-2947, 2005-2948, 2005-2949, 2005-2950, 2005-2951, 2005-2982, 2005-2983, 2005-2984,2005-2985,2005-2986,2005-3024, 2005-3025, 2005-3026, 2005-3229, 2005-3309, 2005-3310, 2005-3311, 2005-3312, 2005-3313, 2005-3314, 2005-3315, 2005-3316, 2005-3317, 2005-3318, 2005-3319, 2005-3320, 2005-3321, 2005-3322, 2005-3323, 2005-3324, 2005-3325, 2005-3326, 2005-3327, 2005-3328, 2005-3329, 2005-3330, 2005-3331, 2005-3332, 2005-3333, 2005-3334, 2005-3335, 2005-3336, 2005-3337, 2005-3338,2005-3339,2005-3340,2005-3341, 2005-3342, 2005-3343, 2005-3344, 2005-3345, 2005-3346, 2005-3481, 2005-3482, 2005-3702, 2005-3703, 2005-3730 UNION# 1995-0255-0001, 1995-0521-0023, 1995-0252-0002, 1996-0255-0005, 1996-0255-0006, 1996-0255-0007, 1996-0255-0001, 1996-0255-0001, 1999-0411-0031, 01A644, 2004-0234-0393, 2005-0234-0278, 2005-0234-0280, 2005-0234-0283, 2005-0234-0291, 2005-0234-0356,2005-0234-0357, 2005-0234-0358, 2005-0234-0359, 2005-0234-0483, 2005-0234-0484, 2005-0234-0490, 2005-0234-0492, 2005-0234-0494,2005-0234-0495, 2005-0234-0496, 2005-0234-0497, 2005-0234-0498, 2005-0234-0499, 2005-0234-0500, 2005-0234-0501, 2005-0234-0502,2005-0234-0503, 2005-0234-0504, 2005-0234-0505, 2005-0234-0506, 2005-0234-0507, 2005-0234-0508, 2005-0234-0509, 2005-0234-0510, 2005-0234-0511, 2005-0234-0512, 2005-0234-0513, 2005-0234-0514, 2005-0234-0515, 2005-0234-0516, 2005-0234-0517, 2005-0234-0518, 2005-0234-0519, 2005-0234-0520, 2005-0234-0521, 2005-0234-0522, 2005-0234-0523, 2005-0234-0524, 2005-0234-0525, 2005-0234-0526,2005-0234-0527, 2005-0234-0528, 2005-0234-0529, 2005-0234-0530, 2005-0234-0531, 2005-0234-0532, 2005-0234-0533, 2005-0234-0534,2005-0234-0535, 2005-0234-0536, 2005-0234-0537, 2005-0234-0538, 2005-0234-0539, 2005-0234-0540, 2005-0234-0541, 2005-0234-0542,2005-0234-0543, 2005-0234-0544, 2005-0234-0545, 2005-0234-0491, 2005-0234-0563, 2005-0234-0564, 2005-0234-0565, 2005-0234-0566,2005-0234-0567, 2005-0234-0584, 2005-0234-0585, 2005-0234-0586, 2005-0234-0587, 2005-0234-0588, 2005-0234-0596, 2005-0234-0597,2005-0234-0598, 2005-0234-0667, 2005-0234-0680, 2005-0234-0681, 2005-0234-0682, 2005-0234-0683, 2005-0234-0684, 2005-0234-0685,2005-0234-0686, 2005-0234-0687, 2005-0234-0688, 2005-0234-0689, 2005-0234-0690, 2005-0234-0691, 2005-0234-0692, 2005-0234-0693,2005-0234-0694, 2005-0234-0695, 2005-0234-0696, 2005-0234-0697, 2005-0234-0698, 2005-0234-0699, 2005-0234-0700, 2005-0234-0701,2005-0234-0702, 2005-0234-0703, 2005-0234-0704, 2005-0234-0705, 2005-0234-0706, 2005-0234-0707, 2005-0234-0708, 2005-0234-0709, 2006-0234-0012, 2006-0234-0013, 2006-0234-0014, 2006-0234-0015, 2006-0234-0016, 2006-0234-0017, 2006-0234-0018, 2006-0234-0019,2006-0234-0023, 2006-0234-0024, 2005-0234-0713, 2006-0234-0040, 2006-0234-0053 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Monk et al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer 2 BEFORE Owen V. Gray Vice-Chair David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE UNION Meredith Brown Counsel Ministry of Government Services FOR THE EMPLOYER December 13, 2006. HEARING Decision [1] These proceedings concern a number of gnevances about alleged exposure of employees of correctional institutions to tobacco smoke. The grievances were filed at various times between 1990 and 2006. In June 2006 they were scheduled for hearing on December 13, 2006. On that date the list of grievances properly before me was in dispute, or at least uncertain: it appears that some of the grievances that the union originally believed were outstanding and scheduled for hearing before me may have been withdrawn, settled, decided or otherwise disposed of some years ago. The parties' counsel have undertaken to sort that out with each other and the Board. [2] Union counsel acknowledged at hearing that the union would have to provide written particulars of each of the grievances before any further steps could be taken in these proceedings, and said that he and the union would need until the end of April 2007 to do that. [3] There may be a challenge to the arbitrability of some or all of these grievances on one or more of several grounds, including that they were untimely filed or when filed made claims or raised issues that are within the exclusive jurisdiction of tribunals established under the Workplace Safety and Insurance Act or its predecessor, the Workers' Compensation Act, or have already determined by one of those tribunals or have been withdrawn or settled by the union or determined by previous decisions of this Board. The 3 employer cannot say which gnevances are challenged on which grounds without first having particulars of the allegations on which the union says each grievance is based. [4] After written particulars of each grievance have been delivered by the union, it will be necessary for the employer to identify the grievances it challenges, the basis for each challenge and the allegations of fact on which it relies upon in support of each challenge. Employer counsel has said she would need until the end of June 2007 to do that. [5] If the union disputes any of the allegations of fact relied upon by the employer in support of any preliminary objection, or if the employer disputes any allegations of fact relied upon the union in support of a request that I extend any time limit on which the employer relies as an objection to arbitrability, then there may have to be an exchange of particulars and productions of some sort in connection with those disputed issues of fact before those preliminary objections and any related requests for extension of time limits can be heard. [6] For each grievance that survives a preliminary objection or is not the subject of one, each party will have to give the other production (by provision of copies or otherwise) of any document (written or electronic) in its possession, custody or power (and, as to the union, any document in the possession, custody or power of any grievor) on which it may wish to rely in a hearing of the grievance on the merits. [7] Without the information to be provided pursuant to paragraphs [2] and [4], it is premature to determine whether the procedure contemplated in paragraph [5] will be needed or how and when hearings on preliminary matters will proceed or any other detail of the process by which the preliminary matters will be addressed. Those issues will be revisited in a hearing to be held on the earliest possible date after those first two steps are completed. Similarly, until it is apparent whether any of the grievances will be proceeding to hearing on the merits, it is premature to provide for the delivery by the employer of particulars on the merits or the timing of the exchange of productions or any other detail of the process by which hearings on the merits will proceed. [8] Accordingly, I direct that the union provide the employer with written particulars of each of the grievances it considers to be properly before me, including for each grievance the relief sought for the grievor and the allegations of fact on which the union will rely in 4 support of its claim for that relief. Those particulars are to be delivered to employer counsel before the close of business Monday, April 30, 2007. If the union fails to provide particulars of an allegation in accordance with this direction it may not thereafter introduce evidence about that allegation in its case in chief on the merits without the agreement of the other party or leave of the Board. [9] I further direct that the employer provide a written particulars of any preliminary objection it intends to make with respect to any of the grievances identified in the union's particulars, setting out for each grievance in respect of which it raises such an objection the grounds on which the objection is based (without argument) and the allegations of fact relied on in support of the objection. Those particulars are to be delivered to union counsel before the close of business Friday, June 29, 2007. If the employer fails to provide particulars of an allegation of fact in accordance with this direction it may not introduce evidence about that allegation in its case in chief on the preliminary objection without the agreement of the other party or leave of the Board. [10] With respect to each act or omission alleged in its particulars aforesaid, each party must state what it says was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to the employer, the union or any other organization. Conclusory statements based on unparticularized allegations of fact are not sufficient, and do not constitute particulars for purposes of the last sentence of each of paragraphs [8] and [9]. [11] The union's allegations of fact with respect to a gnevance should be sufficiently comprehensive that it would be unnecessary for it to call any evidence in support of that grievance at a hearing on the merits if the employer were to admit that all of those allegations of fact were true. [12] The employer's allegations of fact with respect to a preliminary issue should be sufficiently comprehensive that it would be unnecessary for it to call any evidence in support of that preliminary objection if the union were to admit that all of those allegations of fact were true. [13] It is not necessary for particulars to include a description of the evidence by which the party will seek to prove any of the allegations of fact set out. It is not necessary to identify in 5 the particulars any witness to any event in question unless the presence of that particular person at that event is a material fact on which the party relies. [14] The deadlines set out in this order may be altered or extended by agreement of the parties. Dated at Toronto this 10th day of January, 2007. ~v Vice-Chair