HomeMy WebLinkAbout2015-3255.Schultheis.19-03-01 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# 2015-3255; 2015-3263
UNION# 2015-0411-0044; 2016-0411-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Schultheis) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
Tatiana Wacyk
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
TELECONFERENCE February 26, 2019
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DECISION
PROCEDURAL RULING
The Issue
[1] The initial scheduling of this case has been disrupted, as the first two scheduled
days of hearing were adjourned on consent of the parties. The Union has
indicated that as a result, it may be necessary to interrupt the Grievor’s testimony
in order to accommodate the pre-arranged evidence of her family physician.
[2] In support of its right to do so, the Union relied on: Ontario Public Service
Employees Union (Johnston) and The Crown in Right of Ontario (Ministry of
Attorney General), 2011 CarswellOnt 7811, 107 C.L.A.S. 257; Ontario Public
Service Employees Union (Nitsotolis) and The Crown in Right of Ontario (Ministry
of Government Services), 2013 CarswellOnt 16624, 116 C.L.A.S. 346, 239
L.A.C. (4th) 24; Ontario Public Service Employees Union (Schultheis) and The
Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services) 2018 CarswellOnt 5109, 135 C.L.A.S. 48; Ontario Public Service
Employees Union (Press) and The Crown in Right of Ontario (Ministry of Health
and Long-Term Care) 2004 CanLII 55404 (ON GSB); Ontario (Science Centre)
and AMAPCEO (Mar), Re 2010 CarswellOnt 11654, 101 C.L.A.S. 210.
[3] The Employer maintains this will be prejudicial to it, in that the Employer will not
be able to engage in cross-examination of the Grievor’s family physician as fully
or effectively as it would if the Grievor’s evidence were completed.
[4] The Employer further submits this risks having to recall the family physician if the
interruption, in effect, results in the Grievor “splitting her case” - potentially
interfering again with the family physician’s practice.
[5] In support of its position, the Employer relied on: Ontario Public Service
Employees Union (White) and The Crown in Right of Ontario (Ministry of
Community and Social Services) (1998) (Dissanayake); and, Ontario Public
Service Employees Union (Vangou) and The Crown in Right of Ontario (Ministry
of Transportation), 2004 CanLII 55331 (ON GSB).
Ruling
[6] There is no dispute the Board has wide discretion in procedural matters. Nor is
there any dispute that discretion must be exercised in a manner that is fair to all
parties.
[7] The difficulty of arranging the attendance of physicians at hearings is well known,
and regard must also be given to minimizing the disruption to their practices and
their patients’ appointments. This often results in a need to predict hearing
schedules which are notoriously unpredictable, in order to provide physicians
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with as much notice as is reasonably possible regarding when their attendance
will be required.
[8] In any event, as pointed out by the Union, in the absence of a compelling reason,
the Board is reluctant to dictate how parties are to present their case. That being
the case, it is open to the Union, if it so wished, to call the Grievor’s physician as
its first witness.
[9] Having considered the parties’ submissions, I am not persuaded the possible
interruption of the Grievor’s testimony in order to accommodate the pre-arranged
attendance of her family physician is prejudicial to the Employer.
[10] Accordingly, if necessary, the Union may interrupt the Grievor’s testimony in
order to accommodate the pre-arranged evidence of her family physician.
[11] If any resulting prejudice to the Employer can be demonstrated at that time, we
can address that issue in due course.
Dated at Toronto, Ontario this 1st day of March, 2019.
“Tatiana Wacyk”
___________________
Tatiana Wacyk, Arbitrator