HomeMy WebLinkAbout2005-3698.Samsone.09-09-08 Decision
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GSB#2005-3698, 2005-3699 GSB#2005-3698, 2005-3699
UNION#2006-0582-0001, 2006-0582-0002 UNION#2006-0582-0001, 2006-0582-0002
IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION
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THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT
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THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD
BETWEENBETWEEN
Ontario Public Service Employees Union
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(Samsone)
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Ken Petryshen
FOR THE UNION
Jorge Hurtado
Cavalluzzo Hayes Shilton McIntyre &
Cornish LLP
Counsel
FOR THE EMPLOYER
Paul Meier
Ministry of Government Services
Counsel
Conference CallAugust 19, 2009.
DECISION
[1]The Union requested that this proceeding, scheduled to continue on August 21,
2009, be adjourned sine die. Since the Employer opposed the adjournment, I entertained
submissions from counsel during a conference call on August 19, 2009, as to whether the hearing
should be adjourned and, if adjourned, on what basis. In a bottom line decision dated August 20,
2009, I granted the Union?s request to adjourn the hearing scheduled for August 21, 2009, but I
was not prepared to adjourn the hearing sine die. Instead, I directed that the hearing would
continue on Friday, November 13, 2009, and I indicated that I would set out what issues will be
addressed at that hearing. My reasons for the August 20, 2009 decision are as follows.
[2]I have two ongoing proceedings before me involving Mr. R. Samsone. In a previous
decision I have referred to this proceeding as the threat case and the other proceeding as the tools
case. The parties in these proceedings are represented by different counsel. In previous
decisions with respect to these proceedings, I described how Mr. Samsone?s conduct made it
impossible to hold a hearing. In a decision dated July 29, 2009, I set out for the record what took
place during hearings in this matter and, in particular, what occurred on July 22, 2009, when Mr.
Samsone, among other things, made threats directed at the Union and the Employer. Because of
Mr. Samsone?s conduct during the threat case on July 22, 2009, the Union requested that a
hearing scheduled for August 10, 2009 in the tools case, be adjourned sine die. In essence,
Union counsel submitted that it made no sense to hold the hearing on August 10, 2009, when it
was more than likely that Mr. Samsone would repeat the conduct that he exhibited on July 22,
2009. For reasons set out in a decision dated August 18, 2009, I did adjourn the hearing
scheduled for August 10, 2009. I agreed that Mr. Samsone would likely continue to act on
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August 10, 2009, in a manner that would make it impossible to hold a hearing and that it was
unrealistic to take a wait and see approach in these circumstances. However, I did not adjourn
the proceeding sine die, since I concluded that it would be inappropriate to adjourn the
proceeding for an indefinite period. I directed that the hearing would proceed on November 3,
2009.
[3] The Union based its request to adjourn August 21, 2009, on the same grounds it had
requested the adjournment of August 10, 2009, in the tools case. My reasons for agreeing to
adjourn August 21, 2009 and for not agreeing to adjourn the proceeding sine die are the same
ones I relied on for adjourning August 10, 2009, which are set out in the decision dated August
18, 2009. I adopt those reasons here. The one difference in this case is that Employer counsel
requested that the case be completed by written argument if August 21, 2009, was adjourned.
The difficulty with this proposal is that the Union wants Mr. Samsone to testify at this stage with
respect to one facet of the proceeding. I was not prepared to direct the parties to complete the
case by written submissions when the facts for one aspect of the case have not been determined.
[4] As I noted in the decision dated August 18, 2009, the threat case arises from two
grievances signed by Mr. Samsone. The Employer has raised a number of objections concerning
the arbitrability of the grievances. Its objections include assertions that the matters raised in Mr.
Samsone?s grievances are res judicata and that the filing of the grievances amount to an abuse of
process. The Employer also claims that the grievances were not filed properly and are untimely.
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A number of documents have been filed on consent and the Employer relies only on the
documentary evidence for the factual context of its objections. Counsel have agreed on more
than one occasion, including during the conference call, that the facts relevant to the res judicata
and abuse of process claims are limited to what is reflected in the documentary material. More
specifically, Union counsel has indicated that he is not calling anyone to testify, including Mr.
Samsone, in relation to those claims, and that any witness he intends to call will testify only
about the objections relating to the processing of the grievances and timeliness. Accordingly, the
hearing scheduled for November 13, 2009, will be limited to entertaining the submissions of
counsel on the res judicata and abuse of process claims made by the Employer. Whether it will
be necessary to inquire into the other arbitrability objections made by the Employer will depend
on whether the Employer is successful on the res judicata and abuse of process claims.
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Dated at Toronto this 8 day of September 2009.
Ken Petryshen, Vice-Chair