Craig Flood

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 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 alleged that the employer breached a 2013 order for future damages for premium pay and 2015 Minutes of Settlement.

Due to the union's concerns about the accuracy of the data relied upon by the employer to calculate the monies owed, the Arbitrator ordered that the litigation continue with the employer presenting evidence first on the method of recording and storing the data.

The union will have a full opportunity to respond, and the order of evidence does not change the legal onus.

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.

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.

During a grievance arbitration regarding a five-day suspension, the Union brought an evidentiary motion seeking to test the Employer's compliance with a prior production order for emails and text messages.

The Employer initially claimed the emails could not be found, but later produced some after renewed efforts.

The Arbitrator ordered the Employer to call viva voce evidence detailing its search efforts before the cross-examination of its witness could commence, emphasizing the Board's duty to oversee compliance with its orders.

The union brought a motion for the production of documents to verify the employer's calculation of premium payments owed to the grievor pursuant to a 2013 remedial order and a 2015 settlement.

The employer argued that the 2015 settlement resolved the methodology for calculating premium pay and opposed producing documents from before 2015 or relating to certain premiums.

The arbitrator ordered the employer to produce the requested documents from 2011 onwards, finding them arguably relevant to the union's claim that the employer breached the settlement and remedial order.

The arbitrator declined to declare a breach of the settlement or appoint an auditor at this preliminary stage.

The applicant union sought judicial review of an arbitration award upholding the layoff of two unionized employees.

The union argued the arbitrator unreasonably applied the wrong standard of review by deferring to the employer's assessment of the employees' relative abilities rather than determining correctness.

The Divisional Court dismissed the application, finding the arbitrator's approach was consistent with established arbitral consensus and reasonable.

The court also rejected arguments regarding the arbitrator's delay in issuing the decision.

The union requested an order compelling the employer to make a quarterly payment due under Minutes of Settlement on or before April 29, 2019.

The employer assured the Board the payment would be made but the union sought an order because the employer had been late with three payments in 2018.

The Arbitrator, remaining seized of disputes under the settlement, ordered the employer to make the payment on or before April 29, 2019.

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.

The Grievance Settlement Board heard a preliminary motion regarding document exchange, particulars, and the scope of the grievances.

The arbitrator ordered the parties to exchange arguably relevant documents and particulars by specified dates in January 2019.

The arbitrator also ruled that if the grievances include systemic incidents of harassment or discrimination, the evidence at the hearing will be limited to three years prior to December 1, 2017.

The Union filed grievances challenging the Employer's decision to withhold pay and impose discipline on correctional officers who engaged in a work refusal at the Hamilton-Wentworth Detention Centre.

The work refusal was triggered by a missing metal electrical cover plate, which the officers feared could be weaponized.

The officers refused to work unless they were permitted to wear protective vests and a Level 2 search of the entire institution was conducted.

The Ministry of Labour determined that the officers did not have the right to refuse work under section 43 of the Occupational Health and Safety Act.

The Arbitrator agreed, finding that the danger of homemade weapons is inherent in a correctional officer's work and that the Employer's search protocol and vest policy were normal conditions of employment.

The Arbitrator also dismissed the Union's claims that the Employer's actions constituted a reprisal or a lock-out, concluding that the Employer was justified in withholding pay and imposing discipline for the unlawful work refusal.

During a grievance arbitration regarding alleged excessive discipline and workplace harassment, the employer brought an application to restrict the union from calling evidence about events that occurred after the grievances were filed.

The events involved a vacation request and the removal of newspaper articles about the grievor's previous successful discrimination litigation.

The Grievance Settlement Board dismissed the application, finding that the union had provided particulars of these events three years prior, they formed part of the narrative arc, and it was too late for the employer to object.

The Grievance Settlement Board issued a mutual document production order in a grievance alleging workplace harassment and discrimination.

The Employer and the Union were ordered to produce various documents, including medical records, investigation reports, and correspondence, subject to claims of privilege and confidentiality agreements.

In a grievance arbitration concerning a five-day suspension and allegations of harassment, two issues arose regarding document production.

The employer sought unredacted medical records of the grievor and the union's notes from interviews with coworkers, while the union sought to compel the employer to disclose the identity of any medical expert reviewing the records.

The Grievance Settlement Board held that the identity of the employer's medical expert is protected by litigation privilege.

The Board also found that the union's interview notes were not protected by litigation privilege, as their dominant purpose was preparation for an allegation meeting rather than litigation, and ordered their production at the close of the employer's case.

The Union filed five grievances in 2014 on behalf of the grievor, alleging failure to accommodate and other employment-related disputes.

The Employer objected, arguing the grievances were resolved by a comprehensive Memorandum of Settlement signed in August 2012.

The Grievance Settlement Board found that four of the grievances related to facts and circumstances known to the grievor prior to the settlement and were thus fully resolved by its terms.

The fifth grievance was dismissed on the basis of res judicata, as it attempted to re-litigate a claim already decided on its merits.

All five grievances were dismissed.

The Employer sought an adjournment of five grievances filed by the Union, arguing that a prior Memorandum of Settlement (MOS) precluded the grievances and that another Vice-Chair, who remained seized of the MOS, had exclusive jurisdiction to determine the issue.

The Grievance Settlement Board granted the adjournment for one grievance, finding it related to the implementation of the MOS, but denied the adjournment for the remaining four grievances, finding the Employer did not establish a strong arguable case that the MOS's temporal restrictions barred them.

The union grieved the denial of a second pair of orthotics for an accommodated employee and sought vacation credits for time the employee spent on long-term disability.

The Grievance Settlement Board dismissed the orthotics grievance, finding the employee did not work in a correctional institution as required by the collective agreement, and the claim was barred by a full and final release in a Memorandum of Settlement.

The Board also granted the employer's motion to dismiss the vacation credits claim, ruling it was functus officio because the claim was raised after a final and binding award on remedies had already been issued.

The Employer requested further and better particulars regarding several grievances filed by the union on behalf of the grievor.

The Grievance Settlement Board ordered a schedule for the Employer to request further particulars, for the Union to provide them, and for the Employer to identify any preliminary objections, with a hearing scheduled to address those objections.