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HomeMy WebLinkAbout2009-2699.Hyland.12-09-10 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#2009-2699, 2009-2700, 2009-2701, 2010-0572, 2010-0589, 2010-0590, 2010-0591, 2010-0592, 2010-0593 UNION#2009-0368-0161, 2009-0368-0162, 2009-0368-0163, 2009-0368-0202, 2010-0368-0018, 2010-0368-0019, 2010-0368-0020, 2010-0368-0021, 2010-0368-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hyland) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Kevin Dorgan, Felix Lau Ministry of Government Services Labour Practice Group Counsel HEARING September 7, 2012. - 2 - Decision [1] This proceeding involves the hearing of grievances filed by Mr. B. Hyland in which he essentially claims that the Employer has failed to properly accommodate his disability at the Central East Correctional Centre. The Union has put in its evidence and the Employer is now in the process of putting in its case. An issue has arisen about the admissibility of certain evidence during the testimony of Mr. L. Mansley, a member of management. Union counsel wishes to put two documents to Mr. Mansley during cross-examination and to ask him questions about the incidents referred to in the documents. One of the documents is an Occurrence Report dated March 12, 2011, prepared by CO Lacey. The other is an email from Mr. D. Davis to Mr. M. Bunting dated September 16, 2011. Assuming Mr. Mansley’s responses to these questions, Union counsel takes the position that the Union is entitled to call reply evidence to rebut aspects of Mr. Mansley testimony. On various grounds, Employer counsel objects to the admission of the documents and also argues that it would be improper for the Union to call the evidence Union counsel indicated it intends to call in reply. [2] Counsel made submissions on these evidentiary issues at a hearing on Friday, August 7, 2012. Both counsel recognized that I have a discretion to admit the evidence at issue but they had a different perspective as to how I should exercise that discretion in the circumstances. Having reviewed the circumstances giving rise to this dispute and the submissions of counsel, including the authorities they relied on to support their submissions, I have decided to permit the Union to put the two documents at issue and the incidents referred to therein to Mr. Mansley, subject to identification. If it elects to do so, I would also permit the Union to call reply evidence as described by Union counsel. For clarity, I note that this ruling is not a determination as to whether the evidence will have any relevance or how much weight, if - 3 - any, will be given to the evidence. Counsel, of course, will have the opportunity to make submissions on these questions during final argument. [3] The hearing of Mr. Hyland’s grievances will continue on Tuesday, September 11, 2012. Dated at Toronto this 10th day of September 2012. Ken Petryshen, Vice-Chair