Bram Herlich

The parties entered into a Memorandum of Agreement (MOA) to resolve issues pertaining to the quantification of damages for salary and credit adjustments.

The MOA required the employer to pay the amounts owing within 60 days.

The employer failed to make the payments within the specified timeframe.

The arbitrator directed the employer to pay the amounts owing within 90 days of the award, along with the agreed daily interest that commenced on the 61st day following the signing of the MOA.

The union alleged that the employer breached a 2007 settlement agreement by failing to deliver job postings to the grievor's home by courier on three occasions.

The grievor, who had been on long-term disability for nearly 20 years, claimed $70,000 in damages for stress.

The arbitrator found that the employer had fulfilled its delivery obligations by sending the packages via courier, and the risk of non-receipt fell on the grievor when she failed to answer the door or retrieve the packages from the depot.

The grievance was dismissed, and the arbitrator imposed procedural requirements for any future similar claims.

The union requested that the complainant be permitted to testify via videoconference based on existing medical documentation, or alternatively, that the hearing be adjourned to allow for further medical evidence to be filed.

The arbitrator denied the request for videoconference testimony on the current record but granted a brief adjournment to provide the complainant one final opportunity to produce medical evidence supporting her claimed inability to testify in person.

The employer brought preliminary motions to dismiss three grievances related to job competitions on the grounds that they failed to establish a prima facie case of discrimination and were untimely.

The arbitrator found that the union's pleadings, which only alleged the grievor's membership in protected classes and his lack of success in the competitions, failed to establish a nexus between the two, and thus did not disclose a prima facie case of discrimination.

The arbitrator also found the grievances, filed between one and five and one-half years after the competitions, were untimely.

Applying the established factors, the arbitrator declined to exercise discretion to extend the time limits and dismissed the grievances.

In a discharge grievance, the union advanced positive allegations that the employer defamed the grievor in seven instances.

The employer brought a preliminary motion to dismiss five of these instances on the grounds that they failed to disclose a prima facie case, were protected by absolute or partial privilege, or constituted an improper expansion of the grievance.

The arbitrator granted the employer's motion in its entirety, issuing a bottom-line decision dismissing the five defamation allegations due to inadequate particulars, application of privilege, and improper expansion of the grievance.

The parties encountered difficulties regarding pre-hearing production of documents.

The arbitrator made several oral orders, confirmed in this decision, directing the union and grievor to produce documents they intend to rely on, directing the employer to make inquiries regarding specific documents including a Mutual Aid Report and training materials, and directing the union to file full particulars of any defamation claim.

The union sought an order for the Office of the Chief Coroner to produce investigation statements relating to a fire at Place Mont Roc that resulted in two fatalities.

Neither the employer nor the Coroner opposed the production.

The Arbitrator ordered the Coroner to produce the requested documents, subject to standard confidentiality conditions restricting their use to the instant proceeding.

In a grievance arbitration under the Crown Employees Collective Bargaining Act, the Arbitrator issued procedural directions.

The Union and the grievor were directed to provide full and complete particulars of the grievances to the Employer by October 12, 2018.

The Employer was directed to advise the Union of any preliminary objections by November 9, 2018, ahead of the scheduled continuation of the hearing on November 30, 2018.

The union sought an order directing the Ontario Provincial Police (OPP) to produce its investigation file regarding a fire at Place Mont Roc.

The employer did not oppose production, reserving its right to object to relevance and admissibility.

The OPP agreed to produce the entire file, subject to redactions for law enforcement or third-party interests, estimating a six-month timeline due to volume.

The arbitrator directed the OPP to produce the file and remained seized of any issues relating to production.

The parties sought clarification on the implementation of a prior award regarding inmate escorts.

The union argued that when only one Correctional Officer (CO) is available for an escort, the employer must assign that CO alongside a police officer.

The arbitrator held that the employer is not required to form a mixed crew of COs and police officers when there are insufficient COs available, as the employer retains discretion to make alternate arrangements in such circumstances.

The parties were engaged in a process to address remedial questions following an earlier arbitration award.

The Association requested the production of certain employer records to facilitate this process.

The Arbitrator directed the Employer to provide an accounting of all monies paid and credits used or accrued by the complainant for the period between August 14, 2010, and March 18, 2014.

The parties agreed to a process for the production of certain documents.

The Arbitrator issued a confidentiality order directing that any documents produced be disclosed only to the parties and used solely for the purposes of the instant proceedings.

The parties entered into a Memorandum of Settlement regarding the potential inclusion of 375 excluded positions into the bargaining unit.

The union selected 375 positions from a list of 8,000 provided by the employer.

Subsequently, the employer disclosed that approximately 32 of the selected positions had been eliminated, become vacant, or were otherwise problematic.

The union sought to select replacement positions to maintain the 375 count.

The arbitrator held that the list of disputed positions crystallized on the date the union made its selection.

The union was permitted to select replacements only for positions that became unavailable prior to its selection date, but not for those that changed due to the normal ebb and flow of the workplace after the selection was made.

The union renewed its request for the production of documents held by the Office of the Fire Marshall, which had previously been denied due to an ongoing OPP investigation.

On consent of the parties, including the OPP, the Grievance Settlement Board ordered the documents produced forthwith, subject to strict confidentiality conditions limiting access to counsel and one instructing client, and requiring any such documents marked as exhibits to be sealed.

The employer brought a motion to dismiss a grievance for failing to disclose a prima facie case.

The grievance alleged that a manager's harsh tone and aggressive manner constituted harassment, discrimination, and a reprisal for trade union activity.

The Vice-Chair found that while the grievance standing alone would fail to disclose a violation, it could proceed because the union intended to establish a pattern of repeated impropriety by the employer across multiple grievances.

The motion to dismiss was denied.

In a dispute over a 10-day suspension, the Grievance Settlement Board previously ordered the employer to produce the contents of a WDHP file, subject to certain redactions.

Following further submissions, the Board directed the employer to provide unredacted copies of the documents, with the condition that the Association restrict access to the formerly redacted portions to its counsel and one designated Association representative.

The employer brought preliminary motions to dismiss twelve of eighteen grievances filed by the union on behalf of the grievor, alleging harassment, bullying, and discrimination.

The employer argued that the grievances failed to establish a prima facie case.

The Vice-Chair reviewed the grievances and particulars, finding that six of the grievances lacked sufficient objective facts to support the allegations or were moot, and dismissed them without a hearing.

The remaining six grievances, which overlapped with disciplinary matters, were allowed to proceed to a hearing on the merits.

The union sought production of documents in the employer's possession.

The employer acknowledged relevance but notified the Ontario Provincial Police (OPP) because the documents formed part of an ongoing criminal investigation.

The OPP opposed production, arguing it could compromise the investigation into potential arson and criminal negligence causing death.

Applying the Wagg test, the Grievance Settlement Board declined to order production at this time to protect the integrity of the ongoing investigation, but allowed the union to renew its request in six months or if circumstances materially change.

The union grieved the discharge of a Fire Inspector, alleging it was without just cause and a reprisal for exercising rights under the Occupational Health and Safety Act.

The union sought to adduce evidence of events dating back over a decade to establish a pattern of improper conduct.

The employer raised a preliminary objection, arguing the evidence should be limited to events occurring within three years of the grievance, relying on the Board's 'rule of thumb'.

The Board upheld the employer's objection, finding no reason to depart from the three-year rule and noting that many of the older events had already been the subject of prior complaints and settlements.

The Board restricted the evidence to events within three years of the grievance, with a limited exception allowing reliance on the documents establishing the prior settlements.

The union grieved the employer's treatment of the local union president, who was suspended with pay for three months pending an investigation into vague allegations of bullying and harassment.

The union alleged the employer's actions, including the suspension, the initiation of a formal investigation, and the removal of a posting from the union bulletin board, were motivated by anti-union animus.

The Grievance Settlement Board found that the employer acted in bad faith, deliberately provoked the union, and used the investigation process to improperly target the union president.

The Board declared violations of the collective agreement and the Labour Relations Act, ordered the removal of a non-disciplinary letter from the grievor's file, directed a workplace posting, and awarded $25,000 in compensatory damages.