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HomeMy WebLinkAbout2014-3302.Lupiani.18-05-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219; 2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845; 2017-1846 UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012; 2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542- 0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lupiani) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Susan Munn Treasury Board Secretariat Legal Services Branch Counsel HEARING May 2, 2018 -2- DECISION [1] The Board is seized with some 16 grievances filed by Ms. Nancy Lupiani (“grievor”). The parties, with the Board’s intervention on occasion, are dealing still with preliminary and process issues. When the Board convened on May 2, 2018 the parties requested that the Board rule on two preliminary issues. [2] First, the employer objects to parts of the particulars the union has filed with respect to three grievances filed in 2017. [3] Second, the employer has objected to production of some documents requested by the union. The union takes the position that it is entitled to full production as per its request. [4] In making the rulings that follow I have considered the submissions of counsel on each of the matters in dispute, as well as legal principles, particularly those established in arbitral jurisprudence. PARTICULARS Grievance Procedure Privilege [5] Paragraphs 28, 29, 31, 32, 33 and 48 are objected to on the grounds that the union is not entitled to rely on the facts asserted therein because they are protected by the grievance procedure privilege. [6] The Board finds that the assertions in the paragraphs are about communications or positions taken, either during the grievance procedure or during mediation at the Grievance Settlement Board. The assertions were, if not directly, at least generally related to the grievances being dealt with. Therefore, they are privileged. The employer’s objection is upheld, and evidence relating to the assertions in the paragraphs in question is not permissible. -3- Abuse of Process [7] The employer objects to the admission of evidence relating to assertions made in paragraphs 14, 15, 16, 18, 30, 34 and 43 of the union’s particulars. It is argued that the three grievances in question were filed in August 2017 and the grievor filed a “will say” statement in December 2017. The “will say” statement includes all of the assertions made in the paragraphs of the union’s particulars. The employer argues that the union’s attempt to recast the same assertions in the particulars at this late stage is an abuse of process, and should not be permitted. [8] I find that in the absence any assertion of prejudice to the employer, or delay or other detriment to the process, there is no legal or rational basis to preclude the union from making the assertions which are relevant to the grievances. The employer’s objection is dismissed. Similar Fact Evidence [9] The employer objects to the assertion in paragraph 45 of the particulars on the basis, inter alia, that it amounts to reliance on similar fact evidence. I agree with the union that the rule against similar fact evidence does not apply in the particular circumstances. [10] However, the employer’s request to strike paragraph 45 is granted for other reasons. That paragraph does nothing more than make a bald assertion in relation to the motivation for discipline imposed on another employee. It is totally lacking in particulars. More importantly, even if that flaw is addressed by provision of additional particulars, to be of any relevance to this proceeding, the Board will in effect have to determine the legitimacy – i.e. whether there was just cause – of the letter of reprimand issued to the other employee. Considering the relative relevance and potential weight, and the prospect of in effect conducting an arbitration with regard to discipline imposed on another employee, which may potentially be the subject of a grievance and arbitration, I exercise my discretion to disallow evidence in that regard. -4- Production [11] The union agrees that the employer has already made substantial production. The union has not specified what specific documents, or even what types of documents are missing. The broad request for further unspecified production is a fishing expedition which is not permissible considering also that the request casts a wide net of unspecified documents which would entail significant costs and effort on the part of the employer, the union’s request for an order for production, as presently drafted, is denied. Dated at Toronto, Ontario this 7th day of May, 2018. “Nimal Dissanayake” ________________________ Nimal Dissanayake, Arbitrator