Daniel Harris

The parties engaged in mediation but were unable to reach a settlement.

The Arbitrator set continuation dates for the hearing and established a timetable for the exchange of documents, particulars, and will-say statements in lieu of viva voce evidence in chief.

The Employer brought a pre-hearing motion to dismiss a group grievance for failing to make out a prima facie case.

The grievance alleged that the Employer acted unfairly by finalizing a clerk job competition one day before a warehouse worker job competition, which resulted in the successful clerk gaining greater seniority than the warehouse workers despite the warehouse workers having significantly more casual seniority.

The Arbitrator found that the Union's legal theory—that management decisions must be made fairly—was reasonable and that the asserted facts, if true, established a prima facie case of unfairness.

The Employer's motion was dismissed.

The Union filed a grievance alleging the Employer violated the collective agreement by failing to consult the Union's Occupational Stress Injuries Sub-committee before implementing a redesigned training program for correctional officer recruits.

The Arbitrator dismissed the grievance, finding that the collective agreement provisions regarding training and occupational stress injuries applied only to bargaining unit employees, not to pre-employment recruits.

The Arbitrator also rejected the Union's argument that the Employer was estopped from implementing the program without Union input, as there was no clear and unequivocal representation by the Employer that the Sub-committee's mandate extended to non-employees.

In an ongoing arbitration regarding allegations of workplace discrimination and harassment, the employer brought a motion to disallow the union from calling three proposed witnesses in reply.

The employer argued the witnesses were not present during the specific incident that led to the grievor's suspension and their evidence would be irrelevant or improper similar-fact evidence.

The arbitrator dismissed the employer's motion, finding that the employer had previously led general evidence regarding the office environment and the grievor's interactions, thereby opening the door.

The arbitrator held that a liberal approach to admissibility is appropriate in complex harassment cases, and the proposed evidence constituted proper reply evidence.

The arbitrator issued a production order requiring the disclosure of the grievor's medical records, long-term disability file from Desjardins Insurance, correspondence regarding a civil claim and settlement, and the group benefit file from Canada Life.

The documents were deemed arguably relevant to the proceeding and were ordered to be produced subject to confidentiality undertakings and claims of privilege.

The Grievance Settlement Board issued a procedural decision clarifying the order of proceedings for multiple grievances filed by the union.

The Board confirmed that the 2013 and subsequent grievances would not be heard together with the 2021 and 2022 grievances.

For the older matters, the union will proceed first on issues where it bears the onus, followed by the employer's response and evidence on disciplinary matters where the employer bears the onus, subject to normal rules regarding reply evidence.

The parties sought procedural directions regarding the hearing of two grievances filed by the union on behalf of the grievor.

The arbitrator directed that the two grievances be heard together but not consolidated.

Directions were given that the employer would call its case first, the parties would exchange documents and explore an agreed statement of facts, and the evidence would be limited to events between July 12, 2021, and March 14, 2022.

The Union sought document production in a grievance arbitration.

On consent, the Arbitrator ordered the Employer to make its best efforts to provide all arguably relevant documents created between January 1, 2019, and January 25, 2022, relating to specific curriculum training, as well as emails and documents in the possession of a retired employee.

During a grievance arbitration, the Union objected to the Employer calling viva voce evidence from a police officer who witnessed an exchange between the grievor and a co-worker.

The Union argued the evidence was irrelevant because the grievor had already received a non-culpable letter of counsel for the incident, which sealed the facts.

The Arbitrator dismissed the objection, finding the evidence admissible as it was relevant to the Union's allegations of a discriminatory and harassing course of conduct by the Employer, and did not offend the rule in Browne v. Dunn.

The Union filed grievances regarding the eligibility of Correctional Officers for meal allowances while escorting inmates in the community.

The parties agreed to submit four questions to the Arbitrator to establish a framework for resolving the grievances.

The Arbitrator determined that day and night shifts should be treated the same, employees must purchase a meal and travel beyond 24 kilometres to be eligible, and employees are entitled to one meal allowance for an eight-hour shift and two meal allowances for a twelve-hour shift.

In an ongoing arbitration, the Arbitrator previously directed the Employer to call viva voce evidence regarding its efforts to comply with a production order for staff emails.

The Employer called two witnesses who testified about their efforts to restore data tapes and search mailboxes.

The Arbitrator found that the Employer made its best efforts to comply with the order to uncover what existed, noting that some data was only available due to an unrelated litigation hold.

The cross-examination of the witness was directed to commence on the next scheduled hearing day.

The Grievance Settlement Board issued procedural orders ahead of a hearing.

The orders included the exclusion of witnesses, strict confidentiality and limited use of produced documents, and the provision of American Sign Language interpretation at the hearing.

The Union filed grievances claiming the Employer violated the collective agreement regarding meal allowance and overtime provisions for employees at Maplehurst Correctional Centre.

The parties agreed to proceed on the single issue of whether employees assigned to escort duty who work through their unpaid meal break are entitled to straight time or overtime pay.

The Arbitrator found that employees are entitled to the overtime rate for the normally unpaid meal break time, in addition to the one-hour compensation for the missed meal break, as any time worked over scheduled hours is overtime.

The grievances were granted and the Employer was directed to pay the applicable overtime rate.

The Union sought to retract its withdrawal of a grievance concerning escort training for Correctional Officers.

The local Union President had signed a withdrawal form after being informed by the Employer that training was up to date, but quickly realized he lacked full knowledge of the grievance's scope and historical context.

The Employer argued the withdrawal was binding.

The Arbitrator held that while withdrawn grievances generally cannot be revived, an exception exists for inadvertence or mistake.

Finding that the local President made an inadvertent error and immediately communicated it without causing detriment to the Employer, the Arbitrator rescinded the withdrawal and relisted the matter for hearing.

The union grieved on behalf of the employee regarding his ability to perform the duties of his home position.

Following a hearing and review of medical documentation, including two Independent Medical Examinations, the arbitrator found that the grievor was unable to perform the duties of his home position from May 19, 2016, to July 20, 2020.

The arbitrator made no finding regarding the grievor's ability to perform duties after July 20, 2020, and remitted the issue of compensation back to the parties for resolution.

The grievor, a seasonal warehouse worker, was discharged for five alleged infractions: picking without a safety lanyard, sitting on a control arm while travelling, urinating in a tunnel vehicle, using an electronic device, and driving unsafely in the parking lot.

The arbitrator found that the grievor did commit safety violations by not wearing his lanyard and operating the vehicle unsafely, and used his cell phone contrary to rules.

However, the arbitrator concluded the grievor did not intentionally urinate in the vehicle, but rather suffered from a medical condition causing incontinence, though he failed to report or clean it up.

The allegation of unsafe driving was dismissed due to lack of positive identification.

The arbitrator determined that discharge was an excessive response and substituted three one-week suspensions and a letter of reprimand.

In a grievance arbitration concerning alleged breaches of a community escort agreement, the Grievance Settlement Board ordered the Union to provide particulars of the grievances, including specific dates and shifts at issue, along with relevant document production within 90 days.

The Employer was ordered to provide its responses within 90 days of receiving the Union's particulars and production.

The parties sought a consent order from the Grievance Settlement Board regarding the assignment of community escorts for incarcerated offenders.

The Arbitrator issued a consent order clarifying that the Employer must utilize Classified Correctional Officers before Fixed-Term officers, cannot bypass protocol to assign the same staff continuously, cannot hire Police Services when Correctional Staff are available, and must assign duties to officers with the lowest number of community escort hours, subject to operational needs.

The Union alleged that the Employer breached a Memorandum of Settlement (MOS) when the grievor's application for an internal position was allegedly tainted by discrimination and bad faith.

The MOS provided the grievor with access to the restricted database for nine months.

The Union argued there was an implied term in the MOS that the grievor would be considered fairly and without discrimination.

The Arbitrator held that the Employer fulfilled its obligations under the MOS by providing access to the database and instructions on how to apply.

The Arbitrator concluded there was no breach of the MOS and that the Board lacked jurisdiction to hear the merits of the discrimination allegations, as they fell outside the ambit of the MOS.

In an interim decision regarding a workplace grievance, the Grievance Settlement Board ordered the Employer to produce video surveillance footage from the Ottawa Carleton Detention Centre.

The production was subject to strict conditions, including that the video be examined at a neutral location, not be copied or distributed, and be returned at the conclusion of the proceedings due to safety, security, and privacy concerns.