GSB#1001/99; 1002/99; 1224/99; 1357/99; 1565/99; 1566/99; 1567/99; 1820/99; 2019/99

UNION#99B854; 99B855; 99E121; 99D119; 99D120; 99D121; 99D122; 99D203; 99D204; 99D205; 00D113; 00A154; 00A155; 00A156; 00A157; 00A158; 00A159

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pickett/McCormick/Holden)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

March 18, 2003.

Interim Order

1This matter came on for hearing on March 18, 2003 at which time the following order was given orally.

2The employer makes application to dismiss portions of the instant grievances or, in the alternative, to preclude the union from calling evidence of certain allegations of fact because of the union’s failure sufficiently to particularize the facts upon which it relies. In the further alternative, it seeks an order for particulars.

3The areas of concern may be summarized as being allegations of discrimination, harassment and a poisoned work environment prior to May 23, 1999, being the date on which the central allegations relating to the treatment of inmate “C” occurred.

4At the heart of the employer’s concern is the lack of specificity of the facts set out in §17 of the union’s Statement of Particulars dated November 8, 2001, which reads as follows:

17. The actions of the management described in paragraphs 9 to 15 were in part motivated by a discriminatory attitude towards Mr. Pickett. Mr. Pickett suffers from a form of cerebral palsy. It causes him to noticeably limp. In the early stages of his employment at Metro East he experienced significant hazing from staff, including supervisors. He was led to believe that many supervisors did not think he was capable of performing his duties in the institution. This discriminatory attitude was a factor in the discipline that was set aside by the panel chaired by William Kaplan. In fact, Mr. Pickett proved to be an excellent correction officer. After his reinstatement, Mr. Pickett continued to experience negative attitudes from representatives of the employer. Others who were members of the classes set out in Article 3.1 of the Collective Agreement and the Ontario Human Rights Code, also experienced discrimination at the institution, discrimination that management did not deal with effectively. There was also evident bias against those who exercised their rights to grieve or otherwise challenge management.

5The form of particulars contemplated by the Grievance Settlement Board is set out in Ross and the Ministry of Correctional Services, 2002, GSB #2690/96 et al. at page one as follows:

Having regard to those submissions and the positions of the parties, the Board hereby directs that the union provide particulars of the facts on which it and the grievor rely, specifically with respect to grievances alleging discrimination, unfair treatment or other generalized allegations. These written particulars are to include not merely legal conclusions but, in addition, the facts which the union and the grievor assert support any such conclusions and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant factor, with what motivation.

6The reference in §17 to “The actions of the management described in Paragraphs 9 to 15 …” is to a series of factual allegations that largely meet the form of particulars expected by the Board. The balance of §17 does not, on its face, conform to those expectations.

7The employer communicated its demand for further particulars to the union by letter dated November 20, 2001. The matter of particulars came to a head a year later on the last day of hearing in this matter, being November 22, 2002. At the close of that day, the union was about to call evidence of the disputed areas of §17. Counsel for the employer undertook to review the particulars furnished to that date and request further particulars if so advised. Shortly thereafter, counsel for the employer renewed its request of November 20, 2001. The union provided a form of further particulars on March 5, 2003. Unsatisfied with that response, the employer brings this application.

8These proceedings have been quite protracted. The central incident took place in May 1999. Although the request for particulars is long standing, it should be noted that there were no hearing days between November 19, 2001 and November 18, 2002. Illness and other disruptions resulted in a number of lost hearing dates. In the circumstances, it would be inappropriate to dismiss portions of the grievances or preclude the calling of specific evidence. Of first importance is to hear the dispute between the parties. Fairness requires that the union be given an opportunity to call its case, and that the employer know the case it has to meet.

9As in Simon et al and the Ministry of Correctional Services, 2001, GSB #1390/00 and Ross (supra), the allegations here include discrimination, harassment and a poisoned work environment. Such allegations often require a broad scope of evidence. However, as in Klonowski et al and Ministry of Finance, 2002, GSB # 1799/99, claims of discrimination should not be developed as the case proceeds, but should be particularized in a crisp and clear fashion.

10Accordingly, the union is ordered to provide particulars of the facts upon which it intends to rely in the form set out in Ross above. Such particulars are to be delivered to the employer on or before March 21, 2003 and shall directly respond to the employer’s request dated November 20, 2001.