John Brewin

During a hearing for discipline grievances, the Union produced an audio recording of a fact-finding meeting after the Employer's witness had completed her examination-in-chief but before cross-examination.

The Employer requested to reopen the examination-in-chief and prepare the witness using the recording.

On consent of the Union, the Arbitrator directed that Employer counsel could play the recording for the witness and prepare her for the continuation of her examination-in-chief, consistent with the Law Society's Rules of Professional Conduct regarding communication with witnesses.

In an ongoing arbitration, the Union produced redacted notes, claiming privilege over the redacted portions.

The Employer sought production of the unredacted notes to challenge the privilege claim.

As a first step, the Arbitrator directed the Union to produce the unredacted notes to Employer counsel only, to allow counsel to review the redacted parts and determine whether a dispute over privilege was necessary.

The Employer brought a motion to adjourn scheduled hearing dates on the basis that the grievor had provided a medical certificate stating he was unable to work due to severe work-related stress.

The Employer argued that if the grievor could not attend work, he could not endure the stress of a hearing.

The Union provided a subsequent medical certificate confirming the grievor was capable of attending the hearings despite being unable to perform his official duties.

The Arbitrator dismissed the adjournment request, finding the updated medical certificate provided an adequate basis to conclude the grievor was medically fit to attend the hearings.

In a grievance arbitration concerning a 20-day suspension and subsequent termination, the arbitrator ruled on outstanding document production requests from both the union and the employer.

The employer was ordered to produce cell phone records, daily time sheets, and a photograph, while the union was ordered to produce an unredacted letter, original screen shots, notes, and original audio files.

Both parties were directed to comply by September 6, 2017.

The Union requested interim orders imposing terms and conditions on the grievor's return to work following the Employer's decision to rescind his termination and reinstate him to the Bailiff Department.

The Union alleged a poisoned work environment and sought protections against further harassment and discrimination.

The Arbitrator dismissed the request, finding it inappropriate to assume the truth of the contested allegations at this stage of the proceeding and concluding that any concerns could be adequately addressed at the end of the proceeding or through new grievances.

During a grievance arbitration concerning multiple discipline grievances, a procedural issue arose regarding the disclosure of an audio recording made by the grievor during a meeting.

The arbitrator directed the union to produce the recording to the employer's counsel forthwith, subject to strict conditions limiting its further disclosure to specific employer representatives for the purpose of seeking instructions.

In a grievance arbitration concerning multiple suspensions and the termination of the grievor's employment, the parties disputed the production of various documents.

The Vice-Chair of the Grievance Settlement Board reviewed the outstanding disclosure requests, applying the test of arguable relevance.

The Board issued directions ordering the production of certain occurrence reports, emails, and performance appraisals, while confirming that other requested documents either did not exist or were not arguably relevant to the issues in dispute.

During a conference call regarding outstanding production issues in a series of discipline and termination grievances, the Vice-Chair canvassed the parties on scheduling additional hearing dates and engaging in further settlement discussions.

After speaking with counsel separately, the Vice-Chair determined that sufficient movement had occurred to warrant further mediation.

The Vice-Chair directed that previously scheduled hearing dates be converted to mediation days and scheduled additional hearing dates for 2018.

The Union filed grievances alleging the Employer failed to address workplace harassment and bullying against the grievor, seeking compensatory damages for mental distress.

The Employer brought a preliminary motion arguing the Grievance Settlement Board lacked jurisdiction to award such damages because the grievor's mental distress constituted an injury compensable under the Workplace Safety and Insurance Act (WSIA).

Relying on previous WSIAT decisions that found the WSIA's restrictions on mental stress claims unconstitutional, the Vice-Chair agreed that the grievor's claim for mental distress resulting from workplace harassment was a compensable injury under the WSIA.

Consequently, the Board upheld the Employer's preliminary objection, ruling it had no jurisdiction to award the requested damages.

The union filed a policy grievance concerning the interpretation of 'gross pay' in the collective agreement.

Following representations and agreements between the parties, the arbitrator issued a declaration.

The arbitrator found that 'gross pay' includes payments for Sunday work, authorized holiday work, acting for the store manager, night shift work, and overtime, with the interpretation taking effect on February 1, 2017.

The Grievance Settlement Board issued a supplementary decision regarding the interpretation of a Memorandum of Agreement on compressed work weeks at the Elgin Middlesex Detention Centre.

The Union sought clarification on whether the Employer was required to backfill positions when a Correctional Officer was absent for a portion of their shift, and whether accommodated officers counted towards the 147 required positions.

The Board held that the Employer must make reasonable efforts to backfill significant absences, but not short, last-minute absences.

The Board also clarified that accommodated officers count towards the 147 positions only if they are working in a Correctional Officer position.

The union requested disclosure of the grievor's Ministry notebook in the context of a dismissal grievance.

Following communications between the parties, they jointly requested a consent order.

The Grievance Settlement Board ordered the employer to disclose the notebook, subject to redactions for relevance and confidentiality, and restricted its use to the present litigation.

The union filed a policy grievance alleging the employer failed to deduct union dues for apprentices.

The employer brought a preliminary motion to dismiss the grievance based on the doctrines of laches and abandonment, noting that apprentices had been excluded from the bargaining unit for approximately 50 years without union objection.

The arbitrator found that while the failure to deduct dues constituted a continuing grievance, the union's 50-year delay amounted to acquiescence.

Furthermore, the significant passage of time caused detriment to the employer, as it would be unable to proffer evidence or witnesses from historical bargaining sessions.

The preliminary motion was granted and the grievance was dismissed.

The employer brought a motion to strike certain particulars provided by the union in relation to individual grievances filed by six correctional officers who were trapped in a room due to a computer malfunction.

The employer argued the particulars constituted an undue expansion of the original grievances.

The Grievance Settlement Board partially granted the motion, striking particulars that alleged general risks of forcible confinement and risks to inmates, as they were not inherent in the original individual grievances, while allowing evidence of such risks to be led at the remedial phase if relevant to the impact on the grievors.

The Grievor, a seasonal Golf Course Technician, alleged that the Employer failed to accommodate her medical restrictions and discriminated against her on the basis of disability and gender when it did not reinstate her for the 2010 season.

The Grievor had permanent medical restrictions against using vibrating machinery due to back, neck, and shoulder injuries.

The Grievance Settlement Board found that the Employer had accommodated her in previous seasons but that the permanent restriction applied to all vibrating equipment on the golf course.

The Board concluded that the Grievor could no longer perform the essential duties of her position without significant risk to her health and that the Employer did not violate the collective agreement or the Human Rights Code.

The grievance was dismissed.

The grievor, a surplus employee, filed a grievance alleging the employer improperly failed to assign her to the vacant position of Service Order Fulfillment Analyst (SOFA) via the Targeted Direct Assignment process under the collective agreement.

The employer determined she was not entry level qualified for the position.

The arbitrator found that the SOFA position is a highly technical role requiring expert knowledge of computers and active directories, which the grievor did not possess.

The grievance was denied as the grievor did not meet the entry level qualifications for the targeted direct assignment.

The Grievance Settlement Board issued a procedural ruling on the order of proceedings in a grievance alleging termination without just cause and discrimination.

The employer bore the onus on the termination issue, while the union bore the onus on the discrimination allegations.

The union sought to sever the discrimination issues to be heard first, while the employer sought to bifurcate the termination issue to be heard first.

The Vice-Chair rejected both positions and ordered that all issues be heard together without bifurcation.

The employer was directed to proceed first with its evidence on termination, followed by the union's response and evidence on discrimination, followed by reply evidence.

During a grievance arbitration regarding the termination of a Youth Officer for alleged excessive use of force, the employer sought to introduce a transcript of the youth's interview with an investigator for the truth of its contents.

The youth had been summonsed but failed to attend the hearing.

The arbitrator held that the transcript was hearsay and did not meet the Supreme Court of Canada's test for necessity and threshold reliability under Khelawon.

The transcript was ruled admissible only to show the basis of the employer's decision-making, not for the truth of its contents.

The grievor, a 65-year-old male Court Clerk and Registrar, filed a grievance alleging discrimination on the basis of age and gender after not being scheduled for assignments in Family Court.

The employer maintained that assignments were based on operational needs, skills, and abilities, and that the grievor lacked the required skills and had refused further training.

The Grievance Settlement Board found no objective evidence to support the grievor's subjective belief of discrimination.

The evidence showed that male employees were not assigned fewer hours overall and that age was not a factor in scheduling.

The grievance was dismissed.

The Grievance Settlement Board heard representations from the union and the employer regarding proceeding with a scheduled hearing.

The Board ordered the hearing scheduled for June 3, 2015, to be adjourned to October 19, 2015.