Kevin Banks

The Employer brought a motion to strike portions of the Union's Statement of Particulars in a grievance arbitration, arguing that allegations dating back to 2011 violated the Board's 'three-year rule'.

The Union argued the rule breached natural justice or, alternatively, that exceptions should apply due to the grievor's fear of reprisal.

The Arbitrator upheld the validity of the three-year rule, finding it consistent with natural justice and the expedited arbitration process.

The Arbitrator struck the particulars relating to the alleged 2011 co-worker prank and subsequent ostracization due to the extreme delay and prejudice to the Employer.

However, the Arbitrator allowed evidence regarding the supervisor's 2011 response to the prank, finding it relevant to establishing the origins of the alleged recent pattern of harassment.

The Grievance Settlement Board issued a consent order directing the employer to produce documents to the union.

The ordered production included correspondence, notes, and investigation reports regarding a complaint against the grievor, as well as documents and the investigation report concerning the grievor's WDHP complaint against the complainant.

The order was made without prejudice to future production requests.

The Employer moved to strike portions of two union grievances concerning health and safety issues at a correctional facility, arguing issue estoppel and collateral attack.

The grievances arose after correctional officers initiated work refusals due to inmates possessing makeshift weapons.

Ministry of Labour inspectors had investigated the work refusals, determined there was no right to refuse, and declined to issue orders.

The Arbitrator found that the inspectors' decisions finally determined the health and safety issues under the Occupational Health and Safety Act.

Allowing the grievances to proceed on those issues would constitute an impermissible collateral attack on the inspectors' decisions.

The Employer's motion was allowed.

The Employer brought a motion to dismiss the grievance on the basis that the grievor failed to comply with a Board order requiring her to provide sufficient medical documentation explaining her non-attendance at a scheduled hearing.

The grievor had provided a medical note stating she suffered from chronic pain, which the Employer argued was insufficient to explain her absence.

At the motion hearing, the grievor testified that she experienced an acute episode of excruciating pain that prevented her from attending or notifying her counsel.

The Arbitrator found the grievor's testimony credible and concluded that her conduct did not reflect a complete disregard for the proceedings, despite her inattention to the specific requirements of the Board's order.

The motion to dismiss was denied.

The grievor failed to attend the scheduled video conference hearing.

The Union representative advised that the grievor's contact information appeared invalid and that she was reportedly out of the country.

The hearing was adjourned at the Union's request.

The arbitrator directed the grievor to provide reasons for her non-attendance by a specified date, failing which the grievances may be dismissed.

The union filed a grievance alleging that the employer discriminated against and failed to accommodate a casual customer service representative by not offering her a modified premium shift on November 11, 2022, given her medical restriction against working past 4:00 p.m.

The arbitrator issued a without-precedent decision reminding the employer of its responsibilities and obligations under the Collective Agreement and the Human Rights Code with respect to the duty to accommodate.

The parties agreed on consent to an order regarding the disclosure of the grievor's medical file.

The Union and the Grievor are required to produce all arguably relevant medical records, subject to strict confidentiality conditions limiting disclosure to Employer counsel, specific instructing clients, and necessary witnesses, solely for the purpose of the arbitration.

The parties consented to an order amending a previous decision to require the employer to produce an investigation report and related materials to the union.

The arbitrator ordered the production subject to strict confidentiality conditions, including restrictions on copying, forwarding, and use of the documents solely for the purpose of the arbitration.

The parties consented to an order directing the Employer to produce an Investigation Report and related materials to the Union.

The arbitrator ordered the production subject to strict confidentiality conditions, including restrictions on copying, electronic distribution, and use of the documents solely for the purpose of the arbitration.

The Employer brought a motion to dismiss the grievance after the grievor failed to attend a scheduled hearing and subsequently failed to provide medical documentation supporting her claim of a torn rotator cuff.

The arbitrator found the grievor's explanation insufficient on its face but declined to dismiss the grievance, instead ordering the Union to provide proper medical documentation verifying the absence within 30 days.

The parties consented to an order directing the Employer to produce an Investigation Report, appendices, and non-privileged materials to the Union.

The arbitrator ordered the production subject to strict confidentiality conditions, including restrictions on copying, forwarding, and sharing the documents, and requirements to delete electronic copies at the conclusion of the hearing.

The Union filed a grievance alleging that the Employer systemically discriminated against the grievor, a racialized woman, on the basis of race by denying her temporary acting assignments that represented career development opportunities.

The Employer brought a non-suit motion, arguing the Union's evidence was insufficient to succeed.

The Arbitrator granted the non-suit motion, finding that even assuming the Union's evidence was true and drawing all reasonable inferences in its favour, the evidence did not support a conclusion on a balance of probabilities that the grievor's race was a factor in the Employer's decisions to place a non-racialized employee in the acting positions.

The grievor failed to attend the scheduled grievance arbitration hearing.

The arbitrator ordered the grievor to provide a sufficient written explanation for her non-attendance by a specified date.

The employer reserved the right to seek dismissal of the grievance depending on whether an explanation is provided and its sufficiency.

The union was also ordered to provide full particulars of the grievance prior to any subsequent hearing dates.

During an arbitration hearing, the employer objected to the admission of certain evidence contained in will-say statements disclosed by the union.

The arbitrator excluded portions of the grievor's will-say that related to allegations previously adjudicated by the board, finding that admitting them would allow relitigation of decided issues.

The arbitrator also excluded portions of will-say statements from two other employees that described their own experiences, as those experiences were not part of the grievance's particulars and would require the board to make findings of discrimination against employees who had not filed grievances.

Hearsay evidence within the admitted portions was allowed subject to weight.

The Employer brought a motion to dismiss two of three grievances filed by the Union on behalf of the Grievor for being untimely, and a motion to strike certain particulars from the Union's Statement of Particulars for insufficiency or lack of relevance.

The Union brought a motion for an order directing the Employer to disclose documents related to the Grievor's transfers.

The Arbitrator dismissed the two grievances as they were filed well beyond the 30-day time limit without sufficient explanation to warrant an extension.

The Arbitrator struck several paragraphs from the Statement of Particulars for failing to provide sufficient detail or for lacking arguable relevance to the remaining grievance, while allowing others to remain.

Finally, the Arbitrator ordered the Employer to disclose the requested transfer documents, finding them arguably relevant to the Grievor's claims of a toxic work environment and targeted discipline.

The Employer brought a motion to strike certain particulars and to dismiss a grievance alleging systemic discrimination and nepotism in the denial of career development opportunities.

The Arbitrator struck two paragraphs on the basis of issue estoppel, as they related to staffing actions decided in an earlier grievance.

However, the Arbitrator declined to strike post-grievance allegations, finding them arguably probative of a pattern of discrimination.

The motion to dismiss for failing to disclose a prima facie case was also denied, as the alleged facts, if proven, were capable of supporting an inference that race was a factor in the Employer's decisions.

The union filed a policy grievance regarding whether the term 'regular salary' in Article 41.3 of the collective agreement includes across-the-board salary increases and special adjustments from an interest arbitration award.

The employer argued that the salary should be fixed at the time the employee goes on WSIB benefits.

The arbitrator held that the ordinary meaning of 'regular salary' includes negotiated wage adjustments, as there was no express language fixing the value indefinitely, unlike other provisions in the agreement.

The grievance was allowed.

In a grievance arbitration concerning unjust discipline and harassment, the Union requested the production of specific documents and records.

The Employer resisted, arguing the requests were a 'fishing expedition' and not arguably relevant.

The Arbitrator applied the arguable relevance test, noting that production may be premature if issues are not clearly defined by particularized allegations.

The Arbitrator ordered the production of certain documents related to the discipline imposed on the grievor and the treatment of a specific youth person, but denied or narrowed other requests that were overbroad or lacked a sufficient probative nexus to the particularized allegations.

The Employer brought a motion to strike numerous elements of the Union's Statement of Particulars regarding grievances alleging discrimination, harassment, and unjust discipline of a Youth Services Officer.

The Employer argued the particulars were insufficient, irrelevant, or failed to disclose a prima facie breach of the Collective Agreement.

The Arbitrator struck two paragraphs for irrelevance and found several others insufficiently particularized, but declined to strike them entirely, instead ordering the Union to provide further and better particulars to enable the Employer to know the case it has to meet.

In a grievance arbitration before the Grievance Settlement Board, the arbitrator issued a procedural order directing the employer to provide particulars of its position regarding the top-up of WSIB benefits.

The employer was also ordered to deliver any arguably relevant documents by a specified date to facilitate the next hearing.