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HomeMy WebLinkAbout2019-1995.Jackson.21-04-26 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# 2019-1995; 2019-2941; 2020-1545 UNION#2019-0290-0012; 2020-0290-0004; 2020-0290-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jackson) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Iliad Nazhad Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 17, 2021 -2- DECISION Introduction [1] The Union and Employer have agreed that I will hear three individual grievances filed by Ms. Jackson together. The first, dated May 12, 2019 alleges breaches of Articles 2, 3 and 22 of the Collective Agreement. In a decision dated September 15, 2021, I concluded this grievance is not untimely and that, understood in context, it alleges a violation of Article 21, and more specifically that two 15-day suspensions that the Employer imposed on the grievor lacked just and sufficient cause. The second, dated January 10, 2020, alleges discrimination and harassment, contrary to Articles 2, 3, the Human Rights Code, and the Respectful Workplace Policy. The third, dated February 10, 2020 alleges a violation of articles 2, 3, and 22.10.1. All of the grievances refer to all other Acts, laws, legislation, policies and procedures that may be applicable. The Union states that, without limiting its challenge to just cause for the discipline, the central issue linking the grievances is a pattern of discrimination against and harassment of the grievor in the workplace. [2] At a case management teleconference on October 15, 2020 the parties agreed as follows: The Employer will provide production and particulars with respect to the 2019 grievance by December 11, 2020. The Union will provide production and particulars in response, and also in relation to the 2020 grievances, by January 29, 2021. The Employer will provide its position on the Union’s request to consolidate the 2019 grievance and the 2020 grievances, identify any preliminary objections to the 2020 grievances, and identify any objections to providing particulars and production in relation to the 2020 grievances by February 12, 2020. The Employer will make best efforts, subject to any objections made by February 12, 2020, to provide particulars and production in relation to the 2020 grievances by March 10, 2020. The Board will schedule a hearing by conference call for March 17, 2021 at 10 am to deal with the Union’s consolidation request and any preliminary issues raised by the Employer in accordance with this schedule. The parties tentatively agree to proceed with a hearing of the 2019 grievance on April 12, 2021 regardless of whether the Union’s consolidation request is upheld, on the understanding that if it is upheld in a decision after that date they may make amended opening statements. -3- [3] Further to this agreement, the Union provided a Statement of Particulars to the Employer. The Employer responded by letter dated February 16, 2021, taking the position that numerous paragraphs of the Statement should be struck from it on the grounds that they were insufficient, irrelevant, or failed to disclose a prima facie breach of the Collective Agreement. [4] A hearing took place on March 17, 2021. At that time the Employer presented a motion to strike numerous elements of the Union’s Statement of Particulars, and the Union brought a motion for an order directing the Employer to disclose additional documents and other information. [5] The Union states that all of its particulars are relevant to each of the three grievances and takes the position that they are sufficient. Arguments of the Parties [6] The Employer began with general submissions on the Collective Agreement requirements governing disclosure of particulars and the Board’s interpretation and application of them. It then made detailed submissions with respect to many specific paragraphs and sentences contained in the Statement of Particulars. I will summarize the Employer’s general submissions here and address its submissions on specific parts of the Statement below. [7] The Employer directs my attention to Article 22.14.4 of the Collective Agreement, which commits the Union to principles of full disclosure of issues in dispute as alleged by a grievance, and to Article 22.14.5 in which the parties agree that at the earliest stage of the grievance procedure either party is entitled on request to receive from the other full disclosure. The Employer notes that in giving effect to these commitments the Board has the authority to dismiss a grievance or to strike particulars where full disclosure is not provided: OPSEU (Gates et al) and Ministry of Health and Long-Term Care (January 22, 2007), GSB No. 2005-3003 et al (Dissanayake); OPSEU (Singh) and Ministry of Community Safety and Correctional Services (July 6, 2005), GSB No. 2001-1070 et al (Abramsky); OPSEU (Morsi) and Ministry of Finance (October 31, 2008), GSB No. 2006-2863 (Devins); OPSEU (Sparkes) and Ministry of the Solicitor General (December 5, 2019), GSB No.2012-3928 (Misra); OPSEU (Assenov) and Ministry of Finance (May 13, 2020), GSB No. 2016-2838 (Devins). The Employer submits that the purpose of these provisions is to ensure order and expeditious adjudications, to avoid unnecessary costs and delays, and to narrow the issues in dispute so as to enable the parties to reduce the number of witnesses that may need to be called. It emphasizes that in order for it to prepare its defence or consider whether to admit allegations, particulars of them have to be known in advance of a hearing. [8] This requires, the Employer maintains, that particulars be sufficient that the other party can understand and respond to the case that it has to meet, and that if the other party admitted them this would establish a breach of the Collective Agreement: Gates, supra, at para 7. With respect to the level of detail required, -4- the Employer directs my attention to the difference between the grievances that were allowed to proceed and those that were dismissed in Singh, supra. [9] Further, the Employer submits, where allegations contained in a statement of particulars do not amount, even if accepted as true, to a collective agreement violation, they can be struck so as to avoid unnecessary costs and delay: Sparkes, supra at paras 79 and 80. [10] Finally, the Employer contends that only relevant particulars can be considered in these proceedings, and that particulars that are irrelevant to the grievances can and should be struck: Sparkes, para 81. The Employer notes that Article 2 of the Collective Agreement sets out management rights, and does not provide a free- standing basis for a grievance: OPSEU (Jones et al) and Ministry of Labour (April 13, 2010), GSB No. 2006-1204 (Abramsky). In this case, the Employer contends, particulars must therefore be relevant to the discrimination and harassment claims made by the grievances. [11] The Employer maintains that its motion to strike should be addressed prior to the Union’s motion for particulars because the scope of required disclosure must be determined in light of the particulars of grievances that are properly before the Board. [12] In addition to the decisions cited above, the Employer refers to OPSEU (Morsi) and Ministry of Finance (August 27, 2008), GSB No. 2006-2863 (Devins); OPSEU (Botosh) and Ministry of the Attorney-General (February 20, 2018), GSB No. 2014-1088; 2014-1089; 2014-1238 (Abramsky); OPSEU (Tone) and Ontario (Ministry of Solicitor General & Correctional Services), GSB Nos.1996-2693, etc…, September 22, 2000 (Dissanayake), 2000 CanLII 20479 (ON GSB); OPSEU (Union Grievance) and Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2003-3766, May 31, 2006 (Briggs), 2006 CanLII 31463 (ON GSB); OPSEU (Union Grievance) and Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2003-3766, March 31, 2004 (Mikus), 2004 CanLII 55354 (ON GSB); OPSEU (Patterson) v. Ontario (Ministry of Children and Youth Services), GSB Nos. 2003- 1588, etc…., April 23, 2007 (Abramsky); OPSEU (Sin) v. Liquor Control Board of Ontario, GSB No. 2005-3601, July 24, 2007 (Dissanayake). [13] The Union responds that it has met the specificity requirements of full disclosure. It urges me to look at the complete document in relation to the legal requirements for proving a course of discrimination and harassment. It submits that it is not appropriate to take a microscopic view of particulars, that it serves no purpose to break the grievor’s narrative up into pieces. It maintains that the grievor has provided significant detail, and that the level of detail sought by the Employer is unreasonable in the circumstances. The Union points out that the grievor is alleging harassment and discrimination, that such conduct can be situational or passive, and that it is experienced over a period of time, so that determining whether there has been harassment or discrimination requires a close look at all -5- the evidence in context. The Union argues that what the Employer is seeking is in effect a will-say that will outline all of the possible evidence. [14] The Union maintains further that the standard for particulars is arguable relevance, and that matters of relevance should be determined at a hearing. The Union submits that Board members have refused to make determinations of relevance before hearing testimony because the relevance of allegations and evidence is best determined in context: OPSEU (Louis) v Ministry of Training Colleges and Universities 2019, GSB 2016-0806 (Gee); OPSEU (Lunan) v Ministry of Labour 2015, GSB 2013-0513 (Leighton). [15] The Union also notes that the grievor faces a number of difficulties in producing particulars. First, she does not have access to her own emails, making access to documents difficult. Further, the grievor is facing mental health challenges of which the Employer is aware. Finally, the Employer has not complied with the Union’s disclosure requests, so that the grievor does not have access to information that she requested in order to particularize her grievance. [16] The Union submits that the Employer is in effect seeking to deny the grievor the ability to present her case. The Union urges that in the circumstances I should not take a line-by-line approach to examining allegations of a course of conduct, though it does offer some responses to the Employer’s specific arguments on elements of the Statement. I will consider these responses below. [17] The Unions asks that the motion be dismissed. In the alternative, the Union submits, it would be appropriate to order further and better particulars. [18] In addition to the decisions cited above, the Union refers to OPSEU (O’Brien) v Ministry of Community Safety and Correctional Services 2011, GSB 2003-1881 (Leighton); OPSEU (Fortin) v Ministry of Finance GSB 2017, 2013-2473, (Luborsky); OPSEU (Simon et al) v Ministry of Correctional Services 2011, GSB 1390/00, (Mikus); OPSEU (Koonings) v Liquor Control Board of Ontario 2006, GSB 2003-3101, (Gray); OPSEU (Tone) v Ministry of the Solicitor General and Correctional Services 2000, GSB 2693/96 (Dissanayake). [19] In reply, the Employer argues that its requests to strike particulars are consistent with the approach of the Board in earlier decisions such as Assenov, and that there is no need for a further deadline in this case. The Employer notes that the Union’s position is not that it needs time to provide an updated set of particulars but rather that its particulars are sufficient. [20] The Employer also clarifies that it is not asking for a line-by-line approach to assessing the sufficiency of particulars and recognizes that it is appropriate to assess sufficiency in context. It maintains however that in a lot of instances the Statement of Particulars does not provide sufficient context to understand its allegations without a significant amount of guesswork. -6- [21] The parties also made submissions with respect to the Union’s motion for further disclosure. For the reasons set out below I have decided to address that motion and those submissions, to the extent necessary, in a separate decision to follow. Decision [22] The Employer provides three grounds for its motion. First, the Employer maintains that many of elements of the Statement are not sufficiently particularized to enable it to respond to the grievance. Second, it contends that some parts of the Statement allege facts that, even if admitted, could not establish any breach of the Collective Agreement alleged by the Union. Third, in a similar but distinct vein, it argues that many elements of the Statement are not relevant to the grievances. [23] Before considering the specific elements of the Statement of Particulars that are the subject of the Employer’s motion, I will briefly outline principles in this Board’s decisions with respect to the sufficiency of particulars, and the extent to which it is appropriate to consider relevance or arguable relevance on a motion to strike them. Striking Particulars for Insufficiency [24] The parties have agreed in Article 22.14.5 of the Collective Agreement to provide full disclosure to each other at the earliest stage of the grievance procedure. In interpreting and applying this longstanding provision, the Board has repeatedly stressed the need for pre-hearing disclosure of sufficient particulars to enable parties to know the case that they have to meet. The following often-cited passage from Arbitrator Herlich’s decision in Re Ross, 2096/96, quoted in Gates at page 3, summarizes this requirement: Written particulars are to include not merely legal conclusions, but in addition the facts which the union and the grievor assert support any such conclusion and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent that motivation may be a relevant fact, with what motivation. See also Sparkes, para 21; Assenov, para 4. [25] The purpose of requirements to disclose particulars is to ensure that proceedings are both efficient and fair. Parties have responsibilities to be forthcoming about the bases for their claims. As the Board explained in Singh, supra at page 17: …Arbitration is a legal process which provides rights to all of the parties, including the employer. The employer has the right to know, in advance, the case it has to meet…. As Chair Carter stated… “all grievors, regardless of whether they retain legal counsel, are expected to take responsibility for the carriage of their grievance by providing the basic particulars underlying their grievance …”. -7- [26] Failure to meet these responsibilities can result in particulars being struck, with the result that a party may not call evidence with respect to the allegations in question, or in the dismissal of a grievance: Singh; Assenov; Sparkes. In Singh, Arbitrator Abramsky dismissed a discrimination grievance with respect to which the Union and the grievor provided only the names of individuals who he alleged had been treated differently than him with respect to work assignments, but not the specific assignments or areas and dates of the assignments. Arbitrator Abramsky reasoned that because the Collective Agreement requires full disclosure at the earliest stage of the grievance procedure, the Employer need not wait until a hearing to obtain it or extensively search its records over an unspecified period of time. She concluded on page 8 of the decision that the Union was required “to name the individuals who benefitted and those who did not from the application of the Employer’s policy, the dates of each occurrence upon which they alleged that the policy was broken, and the particulars regarding which rules and how the rules were broken in each case”. She noted that to allow otherwise would undermine the goal of an efficient hearing where everyone would know before the hearing exactly what the case was about. See Singh, at pages 7 to 9. I agree with the Employer that Singh is instructive as to the extent of information required in disclosure of particulars. [27] On the other hand, the obligation to disclose particulars does not require that a grievor describe all of the evidence upon which she intends to rely. This would lead to needless delay and disputation prior to hearings. As the board said in OPSEU (Duffy et al.) v. Ontario (Community Safety and Correctional Services), 2008 CanLII 9602 (ON GSB), cited with approval at paragraph 22 of Sparkes: It is not necessary for a party to include in its written particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out. It is not necessary for a party to identify in its particulars any witness to any occurrence in question, unless the presence of that particular person on that occasion is a material fact on which the party relies. [28] The Union points out that the grievor is alleging discrimination based on race, gender and mental health condition, and that discrimination can often be subtle, arising passively out of inaction as well as through decision-making processes that she would not be aware of. It maintains that the extent of particulars demanded by the Employer is unreasonable given the nature of the grievor’s allegations. [29] I will address below the extent of particulars required with respect to specific allegations. But I note here that with the exception of the grievor’s allegations of inconsistent and discriminatory approach to discipline, notably in paragraphs 8, 24, 76 and 94, and allegations of lack of career advancement due to discrimination in paragraphs 98 and 107, none of what is alleged in the Statement would have been the result of decision-making or other actions of which the grievor would not have been aware. -8- [30] I also note that to demonstrate prima facie discrimination with respect to such decisions the grievor simply bears the burden of proving that she experienced adverse impacts and that her race, gender or a mental health-related disability was a factor in those impacts. At this stage of the proceedings, she is not necessarily required to make allegations as to the particular reasons for Employer action or inaction towards her, or towards other employees. She need only allege facts that could permit an inference that race, gender or disability was a factor in decisions to discipline her or to discipline her more harshly than others, and to deny her career opportunities that were afforded to others. She might, for example, simply allege on the basis of some concrete and particularized examples that there was different treatment of essentially similar misconduct or of equally qualified candidates that disparately impacted her, in a context where she had been otherwise disadvantaged on the basis of race, gender or disability. Making such allegations would not require access to employer decision-making prior to disclosure. It would simply require presenting allegations of specific instances of differential treatment of similar misconduct or of similarly qualified candidates. [31] Finally, I note that the Board has repeatedly insisted on sufficient particulars of claims of discrimination, as it would in other types of case. As the Board stated in Singh, at page 8: It is not for the employer to guess the specifics of the alleged differential treatment, or to try to figure it out. Nor is it required to wait for the grievor’s evidence on examination-in-chief to learn the basis of the grievor’s claim of differential treatment. This statement was recently endorsed again by the Board in Sparkes, at para 24. It entails that when a claim of discrimination is made, there must be some basis for it within the knowledge of the grievor and the union, and that this basis must be disclosed to the employer upon request: Patterson, at pages 3-4. [32] The Union maintains that the employer has failed to disclose emails and rationales for decisions concerning the grievor that it has requested, and that it cannot be expected to provide further particulars in the absence of such disclosure. However, this argument places the cart before the horse. The grievor and the Union cannot make an unparticularized claim and then seek to find a basis for that claim by demanding disclosure of evidence: Patterson, at pages 3-4. The Union and the grievor must state and particularize a claim that the Employer breached the collective agreement prior to demanding disclosure of evidence arguably relevant to that claim. This is so notwithstanding that it is sometimes difficult to ascertain the reasons for employer decisions made about other employees: Patterson, at pages 3-4. [33] Finally, the Union asks that I take into account that the grievor has faced mental health experiences, to the knowledge of the Employer. While Employer does not deny this, the Union provided no further information at the hearing with respect to how the grievor’s mental health experiences may have affected her ability to provide disclosure of particulars of her allegations. In my view, an extension of -9- time might be considered in these circumstances, rather than a departure from well-established Board procedures based on longstanding collective agreement terms designed to ensure a hearing process that is both efficient and fair. Lack of Relevance or Arguable Relevance of Particulars [34] The Employer submits, citing Sparkes, that particulars which, even if accepted as true, could not amount to or serve to demonstrate a collective agreement breach should be struck in the interests of expeditious dispute resolution. [35] The Employer also maintains, on the basis of statements by Arbitrator Misra in Sparkes, at paragraph 81, that only relevant particulars can be considered, so that particulars that are not relevant to the grievances can and should be struck. It goes on to object to numerous particulars on the basis that they are not relevant. [36] These two formulations of the Employer’s arguments present distinct bases for objecting to the Union’s particulars. A set of particulars that, even if accepted as true, could not possibly amount to or serve to demonstrate a collective agreement violation would fail a test of arguable relevance, in the sense that there is no arguable basis upon which to conclude that it may be probative of any of the grounds for the grievance. This is not the same thing as determining relevance. The difference matters at this stage of the proceedings. [37] I accept that sets of particulars that on their face cannot serve to demonstrate a breach of the Collective Agreement can be struck, for the reasons discussed by Arbitrator Misra in Sparkes: [78] Having reviewed paras. 11 to 25, I agree with the Employer that these particulars should be struck. They do not relate in any manner to the December 2012 grievance (which I have not dismissed). While the Union may assert that the “three year rule” may be applicable when considering harassment and bullying grievances that may have been filed much later, nothing in these particulars, even if accepted as true and provable, would demonstrate that the Employer had acted in a manner that amounted to harassment or bullying. [79] One of the Grievor’s issues was with Ms. Holloway’s fitness to do the Volunteer Coordinator job in the Grievor’s absence: that is not a matter over which a bargaining unit employee has any authority, and as such, even if paras. 11 to 14 were taken as true and provable, it is a management right to decide who will fill in for an absent employee, subject only to any restrictions in the collective agreement. No such collective agreement restriction has been asserted, either in the grievance or in the particulars. [80] Paras. 16 to 21 of the particulars recount the Grievor’s claims about what Ms. Holloway was doing following the Grievor’s return to work in early April 2012. The Grievor claims that Ms. Holloway kept doing some of the duties that the Grievor believed should have come back to her; that in the Grievor’s absence Ms. Holloway had destroyed a number of volunteer tags and replaced them with new tags; and, -10- the Grievor took issue with the manner in which Ms. Holloway had changed how she did the Volunteer Coordinator job. Paras. 22 to 24 of the particulars outline that the Grievor took her concerns to management, and that Mr. Roth sent out a memo to advise everyone that the Grievor was back in her Volunteer Coordinator role. Nothing in these particulars, taken as true and provable, would support a finding that the Employer was bullying or harassing the Grievor in any way. [81] It would be a waste of the parties’ and the Board’s resources to allow the calling of evidence regarding matters that are tangential to a proceeding, and which would serve no purpose in the decision-making process. While I appreciate that it may have assisted the Grievor in her recollection of events to have outlined in her recitation of her particulars a detailed history of all of her concerns over the years, only particulars relevant to the grievances that are before me can be considered in this proceeding. Paragraphs 11 to 25 are hereby struck from the Union’s particulars, and any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. [Emphases added.] [38] At paragraph 78 Arbitrator Misra finds that nothing in the particulars, even if accepted as true and provable, would demonstrate that the Employer had violated the collective agreement. In paragraph 79 she finds that a set of particulars failed to assert a breach of rights found in the collective agreement. In paragraph 81 she characterizes the set of particulars in question as “tangential” to the proceedings. Arbitrator Misra’s statement in paragraph 81 that “only particulars that are relevant to the grievances can be considered” must be read in this context. In my view, it simply indicates that she considered it appropriate to strike sets of particulars that taken together, could not possibly serve to demonstrate a violation of the collective agreement. [39] As the Union points out, this Board has with good reason taken a cautious approach to making determinations of relevance prior to a hearing. This reluctance appears to me to be based on an understanding that the relevance of particular alleged facts is generally best determined when they can be placed in the context of a developing factual record. The potential relevance or irrelevance of particular allegations of fact to demonstrating a collective agreement breach may only become apparent upon consideration of what they could demonstrate in combination or in context of other alleged facts, directly or by inference. Conversely, particular allegations of fact may demonstrate little on their own, but may provide context that sheds light on what other alleged fact may prove. As a result, considering motions to strike specific allegations of fact on the basis of relevance could involve more varied, contextual and detailed considerations than simply determining whether a set of particulars cannot possibly serve to demonstrate a collective agreement violation. [40] In Lunan, Arbitrator Leighton considered a motion by an Employer to exclude evidence on the basis that it was not material to the grievance as plead. She declined to do so, reasoning that at paragraph 3 that: -11- … it would not be appropriate to exclude this evidence at this time, without fully appreciating its content and the context so as to properly assess whether it is relevant. I am of the view that it is more appropriate to do this during the hearing on the merits of the case. The effect of striking particulars on a preliminary motion is the same as that of excluding evidence. Accordingly, the guidance in Lunan is relevant to the case at hand. Similarly, in Louis, Arbitrator Gee observed (at paragraph 15) in response to a motion to strike particulars of contextual facts intended to explain or characterize events giving rise to a grievance, that: Where the particulars refer to events outside of the allegations that fall within the scope of the grievance, that are interconnected with allegations that are within the scope of the grievance, those out of scope events may be made relevant because they explain, characterise or contextualise the events within scope. The fact that evidence of such out of scope events is admissible does not bring the out of scope events within the scope of the grievance, it simply means that evidence of the event, in so far as it explains, characterises or contextualises the events within scope, and thereby assists in proving or disproving an issue in dispute, is relevant. Where a particular provides such context, a determination as to its relevance may, as Union counsel argues, be best addressed during the hearing itself or at the end of the case. [Emphasis added.] [41] Such considerations would apply with greater force where the particulars in question do not simply provide context but rather purport to state the basis for the grievance itself. [42] I also note that a hearing provides parties with an opportunity to efficiently respond to relevance objections, by attempting to elicit from witnesses further evidence establishing the relevance of matters in issue. Conversely, considering preliminary objections based on relevance risks delaying rather than speeding up proceedings. It may require detailed argument and decisions concerning the context in which alleged facts should be considered, all before the production of a factual record has even started. It may also lead to multiple iterations of particulars, since fairness may require an opportunity to provide further particulars to establish the relevance of those subject to objection. [43] Accordingly, I will confine myself at this stage to considering whether, even if accepted as true, particulars could not possibly serve to demonstrate a breach of the Collective Agreement alleged in one of the grievances. I emphasize that where I decline at this stage to strike particulars on grounds of relevance, my rulings should not be interpreted as recognizing the relevance of particular allegations of fact. That is an issue that may be raised and decided at a hearing. [44] I will turn now to the specifics of the Employer’s motion. The Specifics of the Motion -12- [45] The grievor alleges a course of conduct spanning about three years. Not surprisingly, the Statement of Particulars is lengthy. But the sheer number of events identified in the Statement of Particulars does not in itself relieve the Union and the grievor of the obligation to provide the required level of information with respect to each one. The Union and the grievor have in many instances clearly not met this obligation. [46] Paragraphs 1 to 25 of the Statement of Particulars are placed under the heading “Background”. The Union submits that they serve to provide context that helps to characterize the events described later in the document. [47] The Employer contends that paragraphs 3 and 4 should be struck because their relevance is not made clear. These paragraphs allege that the population of detainees at the Roy McMurtry Youth Centre (RMYC) has certain age and racial characteristics. The Employer maintains that the grievances are not about the composition of the youth population. The Union submits them as context. The Employer has not demonstrated that this information is not arguably relevant as context. I decline to strike these particulars. [48] Paragraph 8 says that the Employer has condoned conduct for which the grievor was disciplined and sets out four general reasons why this is allegedly so. The Employer maintains that paragraph 8 is not sufficiently particularized. Paragraph 8 essentially says that discipline is handled differently depending on the Youth Services Officer (YSO) involved, that bullying and harassment towards staff is tolerated, and that staff gambling is tolerated in particular units of RMYC. But it provides no particular examples of any such conduct, except to say that one officer who in the grievor’s view used excessive force on a detainee was not disciplined for doing so and that this is an example of how discipline is handled differently depending on the YSO involved. There are no further particulars of that incident in the Statement. Taken on its own, paragraph 8 clearly provides insufficient particulars. In the context of the Statement as a whole, it frames the potential relevance of somewhat more detailed particulars that follow. Paragraph 8 may remain as it is, but the Union may only call evidence in support of this paragraph’s allegations to the extent it provides other sufficient particulars in support of them. [49] The Employer maintains that paragraphs 10 to 17 are not relevant. The paragraphs in question speak to the grievor’s approach to dealing with youth, and what she alleges is support for that approach found in various public reports on RMYC. Later in the Statement the grievor alleges that her colleagues and managers have criticized her approach to handling youth in what forms, in her view, a pattern of bullying and harassment. Further, some of the discipline imposed on Ms. Jackson appears to have been in response to activities that she organized for youth. It is possible that paragraphs 10 to 17 may provide context to those allegations. The Employer has not demonstrated that this information is not arguably relevant. -13- [50] The Employer submits that the particulars in paragraphs 18 and 19 are insufficient. The two paragraphs contain broad allegations that Ms. Jackson was targeted for employing a relationship custody model of youth security and that she was discriminated against on the basis of her race, gender, and disability. I agree that, taken on their own, these statements clearly provide insufficient particulars. Nonetheless, in the context of the Statement as a whole, they frame the potential relevance of more detailed particulars that follow. These paragraphs may remain as they are, but the Union may only call evidence in support of their allegations to the extent it provides other sufficient particulars of them. [51] The Employer maintains that paragraphs 21 and 22 also provide insufficient particulars. They deal with communications between Ms. Jackson and her superiors. Paragraph 21 alleges that Ms. Jackson attempted raise concerns with Acting Deputy Danielle Theriault but was referred back to Youth Services Manager (YSM) Ricketts. Paragraph 29 alleges that YSM Ricketts did like Ms. Jackson and targeted her for micromanagement and harassment. Paragraph 21 indicates that Ms. Jackson’s concerns were “issues with the toxicity of her work environment”. However, paragraph 21 does not indicate how or where Ms. Jackson attempted to raise her concerns with Acting Deputy Theriault and provides no information regarding when, except to say that this was in 2018. These particulars are not sufficient. Further information is required with respect to how, when and where these attempts to communicate were made, including approximate dates or at least times of year, and an approximate number of attempts. [52] Paragraph 22 states that “[a]round 2017 to 2019, Ms. Jackson was also unsuccessful arranging a meeting with director Bradley Hoover”, without providing further information. Its particulars are not sufficient. Further information is required with respect to how, when and where these attempts to communicate were made, including approximate dates or at least times of year, and an approximate number of attempts. [53] The Employer maintains that Paragraph 23 fails to particularize behaviour that could lead to a conclusion that Ms. Jackson was subject to harassment. Paragraph 23 states, in essence, that when Ms. Jackson returned from parental leave in 2017, she was assigned duties “away from recreation duties”, despite her having worked over two years in secondment as a recreation officer, from 2013 to 2016. The Employer points out that it is entitled to assign staff and that secondments are by definition time limited. This may well be true. But it is nonetheless possible that a re-assignment following a secondment could form part of a pattern of harassment. It depends on the reasons for the assignment. That said, as the Employer also points out, Paragraph 23 says nothing about who took Ms. Jackson off of the recreation assignment. These further particulars are required. -14- [54] In Paragraph 24 the Statement sets out in general terms Ms. Jackson’s beliefs that she has been treated differently with regards to the discipline imposed upon her because she is a woman and is black. It also sets out in general terms her allegation that she would have been treated differently if she were not struggling with mental health issues, and that she should have been treated differently than she was because the Employer ought to have known about those issues. I agree with the Employer that paragraph 24 provides insufficient particulars. Nonetheless, in the context of the Statement as a whole, the allegations in paragraph 24 frame the potential relevance of more detailed particulars that follow. Paragraph 24 may remain as it is, but the Union may only call evidence in support of this paragraph’s allegations to the extent that it provides other sufficient particulars in support of them. [55] The Employer submits that paragraph 28 provides insufficient particulars. Paragraph 28 alleges in general terms that “the harassment and discrimination in the workplace intensified around March 2017”. It provides no particulars with respect to who intensified the harassment and discrimination or how. Neither do subsequent paragraphs in any evident way. Paragraph 28 is plainly insufficient. [56] The Employer submits that paragraph 29 should be struck for insufficiency. Paragraph 29 contains a general allegation that harassment and discrimination became an almost daily occurrence for Ms. Jackson by around September, 2017. The specific allegations in support of this contention are that (1) YSM Ricketts and YSM Brown were actively trying to have Ms. Jackson moved from unit 3B, (2) that they targeted her for micromanagement and other harassment because they did not like her, and (3) that they twisted her words and tried to get other staff to document and write-up Ms. Jackson for misconduct. This is not sufficient. The Statement should indicate what acts of micro-management, harassment or other targeting Ms. Jackson allegedly experienced, indicating what was done, when, where, how and by whom. [57] Paragraphs 30 to 32 present information about an incident in which Ms. Jackson alleges that she was directed not to write up a behaviour report about a young person who was involved in an altercation. Ms. Jackson alleges that this young person later gave her “a difficult time on Unit 3B”, and that this is the same young person later involved in an incident for which she was disciplined for failing to impose quiet time. The Employer maintains that paragraphs 30 and 31 are not relevant. I find that they could provide contextual information relevant to Ms. Jackson’s position that the discipline was without just cause, and that it is premature to decide upon the relevance of this information. The Employer also submits that these paragraphs fail to provide sufficient particulars. Except as follows, I disagree. I find that these particulars are generally sufficient, if only barely so. But the following additional information is required. The Union and the grievor should provide particulars of whether she spoke with her Manager YSM Heshmet about the incident in question, and if so, when, where, and in general terms what she said to him and YSM Heshmet said in response, and -15- what the Statement means in saying that the young person in question gave Ms. Jackson “a difficult time”. [58] Paragraphs 33 to 37 describe difficulties that Ms. Jackson alleges she experienced in her work relationship with Mr. Tennyson Brown. The Employer submits that paragraphs 33 and 35 do not provide sufficient particulars. I agree. Paragraph 33 simply states that “From 2017 to 2018, Ms. Jackson was also having difficulties with Mr. Tennyson Brown, who had advised that he does not like Ms. Jackson.” Without further information, this is plainly insufficient. [59] Paragraph 35 alleges that in early 2018 all of the managers in unit 3B and a named social worker made a joke of an issue that gave rise to a disagreement between three colleagues including Mr. Tennyson Brown, and a made a joke of Ms. Jackson. The paragraph provides no information about the issue in question or Ms. Jackson’s connection to it, and no information with respect to how her colleagues allegedly made a joke of her. The paragraph goes on to allege that during that time Mr. Tennyson Brown “made threats about Ms. Jackson’s job and job security” but provides no further information about this. Paragraph 35 is not sufficient. [60] Paragraphs 38 to 44 present a set of allegations that Ms. Jackson’s colleagues isolated and harassed her because of her relationship approach to her youth custody and programming duties. The Employer submits that the grievor is simply trying to get into a dispute with the Employer about her approach to her work, that the Employer’s approach to custody and programming is not relevant to the grievance, and that it is the prerogative of senior management to set that approach. I agree that a mere disagreement over approach to custody and programming could not prove discrimination or harassment and that the relative merits of different approaches to such matters lie outside of the scope of these proceedings. But what I understand Ms. Jackson to be saying in these paragraphs is that the manner in which this dispute was handled was isolating, demeaning and harassing. Such allegations could be relevant to grievances. I decline to strike them. [61] The Employer also maintains that paragraphs 39, 43 and 44 fail to provide sufficient particulars. I agree with respect to paragraph 39. Paragraph 39 alleges that two of Ms. Jackson’s colleagues would “frequently” belittle her while they were touring her unit, but provides only one example, and does not indicate when it happened beyond indicating that it was “during the 2018 period”. Paragraph 43 describes an incident in September 2018 in which Ms. Jackson sought approval to reward young persons in custody with burritos for assisting with painting and cleaning the jail. It alleges that in the course of denying this request one YSM yelled at her while another laughed at her. In find that there are sufficient particulars of this incident to enable the Employer to respond. Paragraph 44 alleges that after this incident YSM Ricketts approved a pizza party and staff brought in burritos for the whole unit. Again, I find that there is sufficient information to enable the Employer to respond. -16- [62] The Employer asks that Paragraph 45 be struck for lack of relevance and for insufficiency. Paragraph 45 states that “Other staff were also being harassed around this time at unit 3b”. The time in question, indicated in the previous paragraph, is September 2018. The second sentence of paragraph 45 alleges that YSO Hamilton was moved from unit 3B after filing a complaint related to harassment on the unit. There is no other information in paragraph 45, or anywhere else in the Statement with respect to who the other staff were, or when or how they were harassed. While evidence of harassment of other colleagues may be relevant to demonstrating the likelihood that Ms. Jackson experienced harassment, the particulars in paragraph 45 are plainly insufficient. [63] The Employer contends that the last sentence of paragraph 46 provides insufficient particulars. I agree. In that sentence Ms. Jackson alleges that YSM Theriault was trying to get her fired in or around October 2018 to November 2018. The Statement provides no particulars in support of this general allegation. It is plainly insufficient. [64] Paragraphs 47 to 49 describe failed attempts by Ms. Jackson to meet with other staff to discuss the workplace, leading to her experiencing further isolation. Paragraph 47 is essentially an unparticularized allegation that meetings did not occur, and is plainly insufficient on its own. However, I take paragraphs 48 and 49 to be providing the specifics of the allegation in paragraph 47. Paragraph 48 provides some details of how co-workers allegedly refused to meet with Ms. Jackson. The Employer points out that there is no allegation that management was aware of or participated in these actions. It is however possible the management should have been aware of these actions. It would be premature at this stage to conclude that these allegations have no arguable relevance. Paragraph 49 alleges that Ms. Jackson attempted to meet with Deputy Theriault around this time and that her requests were denied. The Employer says that it is not clear when or why the requests were denied. I take the time in question to be November 2018, the time of the events in paragraph 48. I find that paragraph 49 provides the Employer with enough particulars to be in a position to respond. [65] In paragraphs 51 and 52 Ms. Jackson describes a January 25, 2019 direction from management transferring her to another unit at RMYC effective February 11, 2019. Ms. Jackson alleges that sending her to the unit in question was a form of targeting, was dangerous, and was a form of double discipline. The Employer submits that these allegations are not relevant and should be struck because management has the right to reassign a YSO and there is no indication that the reassignment constituted a form of discipline. But the issue raised by the grievance is not whether management has the right to reassign, but whether it exercised those rights in a discriminatory manner. While on their face these particulars may not demonstrate any particular motivation, it is possible that in the context of evidence of other particularized allegations an inference of improper motivation could be drawn. It is premature at this stage to determine whether the allegations made in these paragraphs can be proven. What matters is that the Employer has enough information to respond to them. -17- [66] In paragraph 57 the grievor details allegations that during January 25, 2019 and May 6, 2019 meetings her Union representative was only present by telephone call. The Employer submits that this information is irrelevant to the grievance. I agree that it cannot be of assistance in determining whether the grievance should be upheld. Nowhere in any of the grievances or in the Statement of Particulars does the Union or the grievor allege that her representation rights under the collective agreement were breached. Paragraph 57 is struck. [67] In paragraph 59 Ms. Jackson provides information about a conversation that she had with a colleague on her last weekend shift before May 6, 2019 in which that colleague said to her that she hears other staff say bad things about Ms. Jackson. Ms. Jackson alleges that her colleague also told her that she had once been involved in a safety breach but had not been subject to discipline for it. The Employer submits that these particulars are not sufficient. I agree that if this information is provided as particulars not of the conversation but rather of allegations that colleagues spoke ill of Ms. Jackson and the Employer failed to discipline a breach of safety procedures, they are plainly insufficient. [68] Paragraph 60 provides information on which YSOs were on overtime shifts on days relating to incidents which resulted in discipline of Ms. Jackson. The Employer argues that this information is irrelevant. In my view it is possible that this information may provide context to other evidence. It would be premature to preclude the calling of this evidence at this stage. [69] Paragraphs 61 to 65 purport to provide information about a youth involved in an incident for which Ms. Jackson was subject to discipline. This information includes the age of the youth, that he was enrolled in a college program, that he was allegedly dangerous and had an individualized plan, that Ms. Jackson and other staff had documented concerns about this youth, and staffing levels in the unit in which they kept him in custody. The Employer submits that this information is not relevant to determining whether the grievor let the youth run a program during quiet time, which is why, in the Employer’s submission, she was disciplined. I agree that it is not evident at this stage of the proceedings how such allegations might be relevant to determining whether there was just cause for discipline. But for the reasons outlined above, it is premature to rule on such matters. [70] In paragraph 66 Ms. Jackson and the Union allege that two colleagues of Ms. Jackson were present on October 25, 2018 when she allowed the youth in question to run a program during quiet time, and saw no problem with it. Paragraph 66 goes on to state in its second sentence that “Clinical and Social Workers at the RMYC can also confirm that quiet time is frequently occupied by other activities”. It provides no further particulars in support of this statement. The Employer contends that these statements are not relevant to the grievances. In my view it is premature to decide that question. It is possible that this information would demonstrate inconsistent application of employer rules, for example. The Employer also contends that the allegations in the second -18- sentence of paragraph 66 are insufficiently particularized. I agree. They are plainly insufficient. [71] I agree with the Employer that paragraph 68 is insufficiently particularized. The paragraph simply says that on the weekend before Ms. Jackson was suspended two colleagues “were making new rules about the running programs without manager approval”. It is impossible to understand from this paragraph what the two colleagues were doing and what possible relevance this might have to the grievances. This is not sufficient to enable the Employer to respond. [72] I also agree with the Employer that paragraph 69 is insufficient. It describes an alleged conversation about “the program” without saying which program it refers to and when the conversation took place. [73] For similar reasons I agree with the Employer that paragraph 71 is insufficient. It alleges that certain staff “brag about viewing video footage at the RMYC despite the video being confidential and only for management staff”. It provides no information on when these actions allegedly took place or how they might be related to any aspect of the subject matters of the grievance. [74] In paragraphs 74 to 76 the Statement alleges that bringing sauces into the workplace is condoned by the Employer. The Employer maintains that these paragraphs provide insufficient particulars. I agree that paragraph 76 is insufficient. It provides no information on what kinds of sauce other officers allegedly brought in, when, and how the employer would have known. [75] The Employer submits that paragraph 77 is irrelevant to the grievance and should therefore be struck. Paragraph 77 alleges that two colleagues left Ms. Jackson and another colleague alone on her unit on the day that she was disciplined in connection with the hot sauce incident, leaving the area understaffed. The paragraph provides no further information. It is difficult to see how this information, even if true, would have any bearing on the issues raised by the grievance. Nonetheless, the Employer has not demonstrated that it could not be probative of a pattern of discrimination or harassment. It would be premature at this stage to strike it. [76] In paragraph 78 the Statement alleges that in two other units of RMYC youth detainees “receive hot sauce”, and have “food, games and movies that are not approved by the RMYC facility”. The paragraph goes on to provide one example of a YSO said to bring youth “lots of these types of entertainment”. The paragraph provides no information on when any of this happened, what food or other things where involved, and on whether the Employer knew or ought to have known about any of this. I agree with the Employer’s objection that these particulars are not sufficient. [77] In paragraph 79 the Statement quotes from a 2013 Report indicating that staff will sometimes bring food and movies and create programs for youth. The -19- Employer maintains that this is not relevant. I agree that its relevance is not evident, at least at that this stage of the proceedings. But it would be premature to make a relevance determination. Proof of these allegations may provide context for interpreting more directly probative evidence. [78] In paragraph 80 the Statement sets out Ms. Jackson’s belief that if she were white, and the detainees were white, and the sauce was an equivalent sauce traditionally associated with white people, that the treatment she received from her employer may have been less onerous. The Employer objects that it cannot respond to this statement because it fails to provide any examples of equivalent conduct treated differently. I do not think that this paragraph needs to be struck. It simply states Ms. Jackson’s beliefs in a way that frames many of the particulars. It provides no basis upon which to call evidence beyond what she believes because it makes no other allegations of fact. Whether Ms. Jackson’s beliefs are supported by evidence can be the subject of argument at a hearing. The Employer will have an opportunity to respond to this statement at that time. [79] In paragraphs 81 to 83 the Statement makes a number of allegations about the views and actions of YSOs at RMYC in regards to playing music and use of internet. Paragraph 83 also alleges that a colleague who wrote up a report on actions of Ms. Brown said that she was sympathetic to her and felt that she was being mistreated at the workplace. The employer argues that none of this information is relevant to whether there was just cause for discipline. But even if it is not, it may be relevant to determining whether there was a pattern of discrimination. For the reasons outlined above I have concluded that it would be appropriate to determine the relevance of this information, if necessary, at a hearing. [80] The Employer maintains that paragraph 82 is insufficiently particularized because it fails to provide any time frame, frequency or details about the alleged playing of music or internet use. I agree. [81] In paragraph 84 the Statement sets out Ms. Jackson’s beliefs that the Employer’s disciplinary action against her in relation to playing music would have been less onerous if she and the music in question were white. The Employer contends that this paragraph is insufficient because it provides no counter-examples. I decline to strike this paragraph. I will treat it as a statement of a set of conclusions that Ms. Jackson has drawn and would like the Board to draw, rather than as allegations of material facts. As with paragraph 80, paragraph 84 cannot serve as a basis upon which to call evidence of matters not particularized elsewhere. The Employer will have an opportunity to respond in argument at the hearing. [82] In paragraph 85 the Statement alleges, without saying more, that “YSM Theriault and YSM Bradley generally had issues with programing that some of the youth at the RMYC enjoyed, and more specifically they had concerns with the Black -20- Entertainment Channel.” The Employer’s contention that this statement is not sufficiently particularized is correct. [83] In paragraph 93 the Statement names another YSO, says that this YSO does not like Ms. Jackson, and then says that it is unclear what the workplace contribution of that YSO was. The paragraph offers no further information. The Employer points out that these opinions have no bearing on the subject matter of the grievance. I agree. The particulars provide no information on the role of this YSO in any matter related to the grievance. The YSO’s workplace contribution has no bearing on this case. Paragraph 93 is struck. [84] The first sentence of paragraph 94, like paragraphs 80 and 84, states Ms. Jackson’s beliefs. It says that she believes that the matters for which she was disciplined are treated inconsistently at RMYC, and that she was targeted for her status as a black female, and because she is dealing with mental health vulnerabilities. The Employer again points out that such statements provide no details, and simply state Ms. Jackson’s beliefs. Again, I decline to strike this kind of statement, but note that it provides no basis upon which to call evidence of matters not particularized elsewhere. [85] Paragraph 97 states, without providing any further information, that “The impact of the employer’s conduct from 2017 onward, has resulted in the deterioration of Ms. Jackson’s mental health.” The Employer objects that this statement fails to specify both the impacts and the conduct in question. It is apparent to me that read in context the conduct in question is the conduct set out in the Statement of Particulars. On the other hand, the Employer is entitled to further information on the alleged deterioration of Ms. Jackson’s mental health. [86] Paragraphs 98 and 107 set out claims in general terms that the Employer has prevented Ms. Jackson from advancing her career at RMYC, that she has the skills, qualifications and experience for consideration for a management position, and that the Employer’s lack of consideration of her is due to discrimination on the basis of race. They are insufficient on their own, but paragraphs 99 to 106 provide some further information on the particular allegations supporting these claims. The Employer contends that these paragraphs also fail to provide sufficient particulars. To the extent described below, I agree. [87] Paragraph 99 fails to specify which training, mentorship and shadow opportunities Ms. Jackson was denied, when and by whom. There is no information on any requests for such opportunities or on Employer responses. [88] Paragraph 100 fails to say when YSM Ricketts refused from provide a positive reference letter for Ms. Jackson or in connection with which manager posting. [89] Paragraphs 101 and 102 allege that Ms. Jackson did not receive interviews for positions but do not specify what positions Ms. Jackson applied for, to whom she applied and when. -21- [90] Paragraph 104 states that in November 2017 Ms. Jackson applied for a Mentor position but was unfairly denied. It provides no information whatsoever in support of the unfairness claim. Paragraph 104 also states that Ms. Jackson applied for a Program Officer and Manager position in 2018 but provides no further information on the postings, not even what month or time of year they were posted in, nor does it indicate to whom she applied. [91] Paragraph 105 alleges that two other less senior colleagues, and four other colleagues and were promoted to management positions while Ms. Jackson was overlooked for such positions, but provides no information on the positions, when they were posted, and whether Ms. Jackson applied for them. [92] Paragraph 106 alleges that five colleagues of Ms. Jackson were given job opportunities whereas Ms. Jackson did not receive an interview, but fails to state which opportunities, when they were posted, or whether Ms. Jackson applied for them. [93] Paragraph 106 also makes allegations that one of those colleagues was known to sleep on their shift, and that another was accused of racism towards youth before becoming a manager, which providing any further details whatsoever with respect to these allegations. [94] I also note that none of the allegations regarding job postings provides any information that would enable a comparison between Ms. Jackson and the candidates who were interviewed or eventually hired, or any information on the racial composition of any of these groups. Remedy [95] I turn to the question of whether to strike insufficient particulars or allow the Union and the grievor an opportunity to provide further and better ones. [96] Where particulars are struck, no evidence may be called in support of their allegations. The effect is to deny a party the opportunity to prove part of its case. In some cases, like this one, the result may be that a party is prevented from seeking to proving much of what grievance alleges, in effect dismissing important aspects of it. In Gates, Arbitrator Dissanayake observed that dismissal of a grievance for failure to provide sufficient particulars is an extraordinary remedy, but one which may appropriate in light of the interests of the parties in timely proceedings, especially where the failure is in the face of an earlier Board order. (See Gates, at page 5.). Arbitrator Abramsky made similar observations in Singh, at page 6. [97] The Employer emphasizes that it is not seeking to have the grievances dismissed, and in support of its position that the passages in question should be struck refers me to the Assenov and Sparkes decisions. The Assenov decision is relatively brief and provides no information on proceedings leading up to the -22- motion to strike. In Sparkes, Arbitrator Misra reviewed both the Gates and the Morsi decisions, noting that in each case the Union and the grievor had failed to comply with a Board order, and noting that in Morsi there had been protracted discussions between the parties of particulars before the grievances were dismissed. (See Sparkes, at paragraphs 20 to 26.) Arbitrator Misra also noted at paragraphs 6 to 12 that on the facts of the Sparkes case there had been repeated requests for particulars, a Board order, and extensions of time before the Employer returned to the Board to ask that particulars be struck. Taken together, earlier Board decisions suggest that extensively striking particulars may be appropriate where it is required to ensure an efficient and fair hearing, especially where an earlier Board order has not been complied with, but that the need for such a step should be carefully considered. [98] I am troubled by the Union and grievor’s failure to provide sufficient particulars of so many of the allegations contained in the Statement. The requirements of Article 22.14.5 have been clearly articulated in Board decisions for many years. The schedule for disclosure agreed between the Employer and the Union provided ample time for producing the Union’s particulars. Despite this, the particulars provided in the Statement are in many instances quite clearly insufficient. On the other hand, the Union indicates, and the Employer does not contest, that the grievor has had mental health experiences that have posed challenges to her production of particulars. I have concluded, with some reluctance, that the Union and the grievor should have one further opportunity to provide better particulars. Disposition [99] Paragraphs 57 and 93 are struck. [100] I direct the Union and the grievor to provide further and better particulars to the extent required to correct the insufficiencies identified above. [101] The parties are to seek a mutually agreeable deadline for the production of further particulars. Either party may contact me at any time to schedule a conference call to set deadline. The next hearing date in this matter is scheduled for June 15, 2021. In the absence of a compelling justification, or agreement between the parties, the deadline will not result in an adjournment of that hearing. Following the deadline, any particulars that remain insufficient will be struck unless there is a compelling justification for not doing so. [102] As the Employer contends, the scope of required disclosure is defined by what is arguably relevant to the allegations contained in the grievance, and in order to determine arguable relevance, the grievance must first be sufficiently defined: Koonings, para 19. In this case much of the disclosure sought by the Union relates to allegations that have not been sufficiently particularized. I am also mindful of the need to transmit this decision to the parties promptly so that they -23- may respond to it in a timely manner. A decision on the Union’s motion for further disclosure, to the extent that it remains necessary, will follow this one. Dated at Toronto, Ontario this 26th day of April, 2021. “Kevin Banks” ______________________ Kevin Banks, Arbitrator