15 total
Employer ordered to produce complainant-witness communications subject to strict confidentiality conditions.
In a discharge grievance, the union sought production of certain documents.
The arbitrator ordered the employer to produce all communications between the complainant and any other witnesses or potential witnesses, including two individuals on a bus on February 4, 2024.
The production was made subject to strict confidentiality conditions, including redaction of identifying information and destruction of documents at the conclusion of the proceedings.
Union's request to have three related grievances heard together granted due to factual and legal overlap.
The Union requested that three grievances relating to the assignment and dispatching of mobile station ambassadors be heard together.
The Employer opposed the request, arguing they should be heard consecutively.
The Arbitrator granted the Union's request, finding sufficient overlap in the legal and factual issues, witnesses, and evidence to justify hearing the matters together.
The Arbitrator concluded that proceeding in this manner would be more efficient and would not prejudice the Employer.
Briefing note and emails involving in-house counsel regarding cannabis policy held protected by solicitor-client privilege.
In an ongoing arbitration regarding the reasonableness of the Employer's Fitness for Duty Policy following the legalization of cannabis, the Union sought production of a Senior Management Team briefing note and related email exchanges.
The Employer claimed these documents were exempt from disclosure based on solicitor-client privilege.
The Arbitrator found that the briefing note, co-authored by in-house legal counsel, and the email exchanges, which sought legal advice regarding a potential ban on recreational cannabis use, were protected by solicitor-client privilege.
The Arbitrator also rejected the Union's argument that the Employer had waived privilege by failing to identify the documents earlier in the proceedings.
The documents were ordered not to be produced.
Employer ordered to produce policy drafts and make submissions on expert report sequencing.
In a policy grievance challenging the employer's absolute prohibition on off-duty cannabis use for safety-sensitive positions, the union sought an order limiting the employer's evidence due to an alleged failure to provide full particulars.
The arbitrator declined to make an order limiting evidence at this stage, noting the union could object at the hearing.
The arbitrator directed the employer to provide written submissions on why it should not be ordered to file its expert report before the union.
The arbitrator also ordered the employer to produce drafts of the impugned policy provisions, finding them arguably relevant to the policy's reasonableness, subject to any claim of solicitor-client privilege.
Union directed to proceed first in grievance challenging cannabis policy; medical records to be vetted by Union counsel.
The Union filed policy and individual grievances challenging the Employer's amended Fitness for Duty Policy, which prohibited all recreational use of cannabis for employees in safety-sensitive positions and required disclosure of medical cannabis prescriptions.
In an interim decision, the arbitrator addressed the order of proceeding and production of medical records.
The arbitrator directed the Union to proceed first, as it bore the legal onus to establish its allegations of unreasonableness and discrimination, and there was no compelling reason to depart from the usual order.
Regarding production, the arbitrator ordered third-party health providers to disclose the grievors' files to Union counsel first to vet for arguably relevant material relating to cannabis use, with the Employer to bear the costs of disclosure from its occupational health management providers.
Grievance partially upheld; Project Officer position drawn into bargaining unit due to substantially similar duties.
The union filed a policy grievance arguing that seven newly created positions should be included in the bargaining unit.
The Board found it was functus officio regarding the union's argument on the scope of the recognition clause, as that issue had been previously decided.
On the alternative argument that the positions performed bargaining unit work, the Board examined the Customer Care Coordinator (CCC) and Project Officer (PO) positions.
The Board dismissed the grievance regarding the CCC position, finding its core functions differed significantly from the Station Attendant position.
However, the Board upheld the grievance regarding the PO position, finding its duties were substantially similar to the bargaining unit Project Coordinator position, thereby drawing it into the bargaining unit.
Order varied to extend deadlines for witness particulars due to Covid-19; in-person hearing cancelled.
The Employer requested a variance of a previous order requiring the provision of witness particulars, citing obstacles arising from the Covid-19 health crisis.
The Arbitrator granted the request, setting new deadlines for the Employer to provide witness names and anticipated evidence relevant to its request for damages in lieu of reinstatement.
The Arbitrator also confirmed that the hearing scheduled for April 8 and 9, 2020, could not proceed in person due to the pandemic, and scheduled a further conference call to determine whether the hearing would proceed remotely or be adjourned.
Employer ordered to disclose workplace investigation files subject to strict confidentiality conditions.
In a termination grievance arising from two workplace investigations into the grievor's conduct, the union sought disclosure of the investigation files.
The arbitrator ordered the employer to disclose the investigation reports and any documents collected or created as part of the investigations into complaints from two individuals.
The disclosure was made subject to strict confidentiality conditions, including that the documents only be used for the arbitration and not be shared electronically.
Union's late allegations of discrimination and whistleblowing ruled an improper expansion of the original grievance.
The employer brought a preliminary motion challenging three allegations raised by the union on the eve of arbitration—that the grievor had completed his probationary period, and that his termination violated the Human Rights Code and the Public Service of Ontario Act.
The employer argued these allegations constituted an improper expansion of the original grievance, which only alleged the termination was untimely, unjust, without cause, and/or too severe.
The Arbitrator agreed, finding that the new allegations were not inherent in the original grievance and had not been raised during the grievance process, thereby depriving the employer of the opportunity to investigate and resolve them.
The allegations were ruled not arbitrable.
Employer violated collective agreement by issuing black shirts instead of grey; replacement ordered.
The union filed a policy grievance alleging the employer violated the collective agreement by issuing black shirts and ties to Transit Security Officers instead of the required grey shirts and navy blue ties.
The arbitrator declared the issuance of black shirts a violation of the collective agreement and ordered the employer to provide replacement grey shirts at the next uniform issue.
The arbitrator remained seized of the issue regarding the black ties due to the employer's allegation of delay.
Union's request to recall employer witnesses to cross-examine on newly discovered document denied.
The union requested that the Grievance Settlement Board order the employer to recall two witnesses who had already completed their testimony.
The union argued that the witnesses had given contradictory testimony in a separate proceeding before a different arbitrator regarding their use of an internal document to determine whether positions were excluded from the bargaining unit.
The employer opposed the request, arguing that the document related only to statutory exclusions for confidential duties, which was not the basis of the union's claim.
The Arbitrator dismissed the union's request, finding that the witnesses' prior testimony was not strictly contradictory and that recalling them for cross-examination on the document would not serve a useful purpose, as the union's claim relied on similarity to existing bargaining unit positions rather than statutory exclusions.
Employer's renewed request to bifurcate proceedings to hear preliminary legal argument denied.
The employer requested to bifurcate the proceeding to hear a preliminary legal argument regarding the scope of the bargaining unit.
The Grievance Settlement Board had previously denied a similar request.
The employer argued that changed circumstances, specifically particulars provided by the union and the filing of two new policy grievances, warranted reconsideration.
The Board declined to exercise its discretion to bifurcate, citing policy concerns about halting proceedings midstream for reconsideration based on changed circumstances, and finding that the criteria for bifurcation were not substantially met as a favorable decision for the employer would not dispose of the entire grievance.
Motion to bifurcate proceeding denied; preliminary issue would not dispose of grievance or save time.
The employer brought a preliminary motion to bifurcate the proceeding, arguing that the Board should first determine its motion that the Board was functus officio regarding the scope of the bargaining unit before hearing the merits of the grievance relating to the inclusion/exclusion of seven specific positions.
The union opposed bifurcation.
The Board reviewed the arbitral jurisprudence on bifurcation and concluded that while the preliminary issue was separate and distinct from the merits, bifurcating the proceeding would not result in any saving of time or resources, nor would it dispose of the entire grievance.
The Board declined to exercise its discretion to bifurcate the proceeding and directed that all issues be heard together.
Arbitrator's rectification of collective agreement upheld, but order to draft new language set aside as unreasonable.
The applicant employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.
The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.
The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.
The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.
However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.
Board interprets recognition clause as classification-based but rectifies agreement to remove mistaken office and technical exclusion.
The union filed a policy grievance alleging the employer failed to recognize certain positions as falling within the bargaining unit.
The parties asked the Board to interpret the recognition clause.
The Board held that the recognition clause did not create an 'all employee' bargaining unit, but was limited to the classifications specified in the schedules or developed under article 9.
However, the Board found that the general exclusion of 'office and technical staff' was inserted by mistake during drafting and did not reflect the parties' agreement.
The Board applied the doctrine of rectification to remove the general exclusion of office and technical staff from the collective agreement.
