HomeMy WebLinkAbout2017-1422.Price-Morris.19-11-28 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# 2017-1422; 2017-2291; 2017-3146; 2018-1001
UNION# 2017-0310-0022; 2017-0310-0035; 2018-0310-0001; 2018-0310-0038
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Price-Morris) Union
- and -
The Crown in Right of Ontario
(Ministry of Children, Community and Social Services) Employer
BEFORE
Diane L. Gee
Arbitrator
FOR THE UNION
Andrew Mindszenthy
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Andrew Lynes
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 21, 2019
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DECISION
[1] These matters consist of a number of grievances alleging harassment and a
failure to accommodate. This decision deals solely with the Union’s motion that
the Employer be ordered to produce contact information for a client of ODSP in
order that the client can be contacted by the Union with a view to potentially
calling her as a witness in support of one of the allegations.
[2] The parties argued the motion on November 21, 2019 following which I invited
the parties to make further submissions in light of caselaw of the Ontario and
British Columbia Human Rights Tribunals that had not been referred to during the
course of the motion. I stated, if there was a desire to make further submissions,
they could be made the next hearing date. Counsel for the Employer advised he
wanted to make further submissions at the next hearing date and the Union
responded indicating it would be fair and efficient for the Board to issue a
decision “at this time. This would also maximize the ability to use our next
hearing days in other ways.” The Employer responded with a number of
concerns, amongst them a concern as to why, as the Union argued was
necessary, the order had to be issued in advance of the grievor concluding her
testimony noting that the grievor had not yet testified about the event in issue.
The Union in turn responded stating it has the right to a fair opportunity to
prepare its case and nothing requires the Union to wait until the grievor has
testified as to the allegation for the Union to access relevant production.
[3] The parties dispute whether an order should be made now or after the Employer
has had a chance to comment on the case law referred to above on the morning
of the next day of hearing. The Union wants to have the information, and
presumably speak to the client, before the grievor’s testimony is finished in chief
or begins in cross. I am not persuaded such is necessary. The grievor is the
one making the allegation. She can testify as to what she knows. This is not a
case where a witness is about to testify in defence of an allegation and thus
needs to know the allegations that are being made against them in order to
respond. The evidence of the grievor can continue in the absence of the Union
having spoken to the client without any unfairness resulting. In contrast, denying
the Employer the right to comment on cases brought to its attention after the
motion would, arguably, be unfair. Further, the allegation in issue in respect of
which the Union seeks the client contact information was particularized by the
Union no later than February 7, 2019 and the grievor’s testimony began on April
16, 2019. Given that the Union did not ask for the information until on or about
November 21, 2019 it is not in a position to complain of the delay.
[4] This matter is presently scheduled to continue on December 10 and 12, 2019.
Should the grievor find that she is unable to attend on either of these dates due
to a medical appointment that cannot be rescheduled, she is to give as much
advance notice as possible and provide some documentary evidence of the
appointment attended. On December 10, 2019, I will hear any additional
submissions the parties wish to make in connection with the Union’s motion for
-3-
an order that the Employer produce contact information for the client. Following
conclusion of the motion, the Union will conclude its examination in-chief of the
grievor. The parties are directed to confirm with one another that settlement
discussions will then be held during what time remains.
Dated at Toronto, Ontario this 28th day of November, 2019.
“Diane L. Gee”
______________________
Diane L. Gee, Arbitrator