GSB# 2690/96; 0711/98; 1543/01

UNION# 97D318, 97D319, 97D320, 98A656, 98A657, 98A658, 02A112, 02A113, 02A114, 02A115, 02A116, 02A117, 02A118, 02A119, 02A120, 02A121, 02A122, 02A123, 02A124, 02A125, 02A126, 02A127, 02A128, 02A129, 02A130, 02A131, 02A132, 02A133

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ross)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

John Brewin Barrister and Solicitor Ryder Wright Blair & Doyle

FOR THE EMPLOYER

Christopher Jodhan Counsel Management Board Secretariat

HEARING

March 28, 2003.

DECISION

A number of ongoing pre-hearing production and other procedural matters were dealt with in relation to the 28 grievances before me. The Employer raised five distinct issues. The Union, in turn, raised a production issue. Some of the issues raised were resolved or, at least deferred at the hearing; others require my ruling. I shall catalogue and, where necessary, deal with and rule on each of these in turn.

1. ISSUES RAISED BY THE EMPLOYER

a. General Sufficiency of the Union’s Particulars

In response to the particulars previously filed by the Union, the Employer had made some specific requests for further particulars. The Union has recently responded. The Employer merely noted that, once it had completed its review of that response, it reserved the right, if necessary, to make further requests or to raise the matter with the Board.

b. Specific Insufficiency of the Union’s Particulars:

Item B of the Union’s Book of Particulars

This issue pertains to GSB File No. 0711/98, which is comprised of three grievances.

The full text of the statement of grievance in the first of the three grievances (OPSEU File No. 98A656) reads as follows:

I grieve that the employer has violated Article 10 of the collective agreement and any other agreement or legislation relative to this case.

The settlement desired is:

To include but not be limited to full redress.

The wording of the next two grievances (OPSEU Files 98A657 and 98A658) is identical with respect to the settlement desired and the statement of grievance except the reference to Article 10 of the collective agreement is changed to Articles 41.2 and 3 respectively.

It is perhaps not surprising that with this less than fulsome description of the nature of the labour relations difficulty purported to be identified by any of these grievances (now some five years old), the Employer has sought particulars with respect to these grievances. It appears, however, that it is not only the Employer who is suffering as a result of the patent failure of these grievances, as filed, to afford even the remotest clue as to their subject matter or the facts giving rise to the complaints. It seems that the grievor is equally unable to recall what these grievances were about.

Despite the Employer’s ongoing request for particulars of these grievances, despite the general and specific directions of this Board in its decisions dated September 25, 2002 and December 6, 2002, no such particulars have been provided. The Union now submits that the grievor “can not now recall any details of the grievances without some assistance for her memory”. As a consequence, the Union seeks, as a precondition to it being required to file particulars of the grievances, that the Employer be required to review its files to unearth any material which may provide information about “the general substance” of the grievances. Armed with that aide-memoire the grievor has apparently expressed the view that she will then be able to remember sufficient detail to instruct the Union on the particulars of the grievances.

While Union counsel is to be commended for a valiant effort in adverse circumstances, I simply find myself unable to accede to the Union’s request proffered, as it was, by way of a defense to the Employer’s request that the grievances be dismissed.

To accede to the Union’s request would, in my view, be tantamount to requiring the Employer to provide particulars to the Union of the Union’s own grievances. And while fans of irony might enjoy such a spectacle, I doubt that even they would endorse its propriety.

This is not a case where the Union seeks the production of some known or reasonably anticipated document surreptitiously hidden in the Employer’s files. This is a case where the grievor is unable to demonstrate any recollection of the barest detail, the vaguest outline of the parameters of these grievances. Without commenting further on the obvious lack of importance or significance of these grievances to the grievor as evidenced by the apparent total disappearance of any recollection of any events remotely connected to them, I am simply not prepared to take any steps to bolster or otherwise aid in the salvaging of material which appears very comfortably buried.

The Union has failed to provide the barest details of the facts or issues pertinent to these grievances. It has failed, despite numerous opportunities, to respond positively to the multiple requests of the Employer and orders of this Board.

In view of the above, I hereby direct that these three grievances (i.e. those which comprise GSB File No. 0711/98) be dismissed.

c. Whether Certain Grievances Have Been

Properly Referred to This Board

The Employer raised a question as to whether certain grievances (i.e. OPSEU File Nos. 02A117, 02A125 and 02A129) were properly referred to this Board in a timely fashion. The genesis of this concern may reside in the fact that 2 of the grievances which are the subject of these proceedings were (perhaps inadvertently) excluded from a Union book which was assembled to gather all of the relevant grievances together. In any event, as the immediate dismissal of the three grievances in question would have little impact, if any, on the scope of the evidence which would likely have to be heard in relation to the remaining grievances, the Employer agreed to defer this motion to final argument.

I also indicated to the parties that I would make inquiries as to the date(s) upon which the impugned grievances were referred to this Board. Although I have not myself reviewed the main GSB files, I am advised by GSB staff who have that the 3 grievances in question were referred to this Board on January 22, 2002 along with and at the same time as the other 19 grievances which, together with the 3 in question, comprise GSB File No. 1543/01.

I trust that this information may be of assistance to the Employer and that we will be advised in the event there is any issue or concern extant under this heading.

d. Whether Certain Grievances Alleging Unjust

Discipline Ought to be Dismissed

The Employer asserted that some half-dozen of the grievances being dealt with in these proceedings ought to be dismissed as inarbitrable. In each of these cases the grievances complain of improper discipline. However, according to the Employer in none of these grievances was any discipline imposed and neither does the Employer have any intention in relying on the events which are the subject of these grievances for any disciplinary purpose. In those circumstances, the Employer asks that these grievances be dismissed.

The Union did not seriously dispute the assertion that alleged improper discipline was at the centre of these grievances. In those circumstances it would seem that if no discipline was imposed there may be a dubious basis for these grievances. The Union asserts, however, that discipline – which it notes does not necessarily always manifest in readily recognizable forms – was, in fact, imposed in each of these cases.

The parties agreed, however, to defer any further consideration of this issue until the next day of hearing.

e. Whether Certain Portions of the Union’s

Particulars Ought to be Struck

The Employer seeks to have certain portions of the Union’s particulars struck. Six paragraphs of particulars (i.e. paras 1.2.4.1.1; 1.2.4.1.2; 1.2.4.1.3; 1.3.2; 1.3.3.2; and 1.3.3.3), are the subject of this motion.

It is not necessary for me to review the substance of these allegations in any great detail in order to dispose of the Employer’s motion. An examination of their vintage will largely suffice. Five of the impugned paragraphs deal with events said to have occurred “in the early 90s”; the sixth with events dating to 1984. The earliest of the grievances before me are dated October 1996; the most recent are dated September 2001. Indeed, as a result of the dismissal of the grievances under (b) above, all of the grievances before me have been filed on one of the two mentioned dates. And, furthermore, the allegations in question are specifically relied upon by the Union in support of the grievances dated 2001.Thus, in terms of the allegations contained in the impugned paragraphs, we are considering events which predate the grievances by periods ranging anywhere from 11 to 17 years.

In these circumstances, I can simply see no fair or reasonable basis upon which to permit the Union to call or rely on evidence of events of such vintage. While an argument might be advanced in some cases about the necessity to establish or negate actual prejudice before determining whether to permit evidence which significantly predates the filing of a grievance, the quantum of delay in this case is simply and utterly breathtaking. It was not suggested that any of the particularized events was ever the subject of any grievance and neither was there any suggestion that any remedial response would be sought in relation to these events. And finally, there was no suggestion that these allegations are in any way central, in any fashion, to the Union’s ultimate claim.

All of this, of course, begs the question as to what possible probative value evidence of these events can have to these proceedings. The answer is, very little. Indeed and perhaps again unfairly invoking the gods of irony, it might be the Employer who would ultimately benefit from this evidence. For, to the extent the Union might otherwise wish to establish patterns of improper Employer conduct, calling evidence of (up to) 16 year gaps in such conduct might not be the most convincing approach. In that context, for example, I find the suggestion (in para 1.3.2 0f the Union’s pleadings) that the Superintendent had in his mind in 2001 an intense antipathy to the grievor because, in 1984, he had refused to allow her to call the police about an apparent attempted theft of her car to be evidence whose likely ultimate probative value is so negligible that its absence is extremely unlikely to have any impact on my ability to determine the grievances. It certainly does not merit the parties expending the requisite effort to prepare and present evidence about events whose age can be measured not in months or years, but in decades.

The temporal gap between the events described in the impugned portions of the pleadings and the events which give rise to the grievances is so vast that I am prepared to accept, certainly in the absence of any proof or serious contention to the contrary, that significant prejudice would result from requiring the Employer to prepare to meet the case set out in those pleadings, To the extent I might have otherwise had any hesitation in that conclusion (and I have none), the negligible probative value of the evidence in question reinforces any conclusion to exclude it.

The offending paragraphs are hereby struck from the Union’s pleadings, No evidence will be heard in relation to them.

2. The Union’s Issue – Further Production Requests

The Union sought the further production of documents notably in the form of WSIB reports, Doctor’s reports and certain occurrence reports. The Union had also been seeking the production of documents relating to Item B of its particulars. This latter point is now overtaken by the dismissal of those grievances as set out in 1(b) above.

With respect to the other outstanding requests, Employer counsel undertook to have a review performed of the Employer’s file with a view to identifying and producing documents the Employer accepts are relevant to these proceedings, at least within the context of the Union’s particulars.

The Union indicated that it was content with that undertaking but reserved the right to revisit this issue in the event that it was unsatisfied with the Employer’s efforts in that regard.

Summary

For the reasons set out above, the three grievances which comprise GSB File No. 0711/ 98 are dismissed. The following paragraphs

1.2.4.1.1;

1.2.4.1.2;

1.2.4.1.3;

1.3.2;

1.3.3.2 and

1.3.3.3;

are hereby struck from the Union’s pleadings.

Hearing in this matter will continue as previously scheduled on April 9, 2003.

Dated at Toronto this 2nd day of April 2003.