GSB#0994/02; 0995/02; 1328/02; 2529/02; 2876/02; 2973/02; 2974/02; 2988/02; 3095/02; 3246/02

UNION# 02A737; 02A738; 02F038; 2002-0202-0001; 2002-0202-0015; 2002-0202-0016; 2002-0202-0017; 2002-0202-0018; 2002-0230-0017; 2002-0230-0001; 2002-0202-0003; 2002-0202-0002; 2002-0202-0005; 2003-0340-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cherwonogrodzky et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

April 10, 2003.

ORDER

1The grievors in these matters are tax auditors with CA, CMA or CGA designations, who allege that the employer has refused to reimburse them for membership dues necessary to maintain those professional designations. The employer’s policy is that “Payment of membership fees may be authorized when membership in an organization is beneficial to the ministry, or when required, under the provisions of the collective agreement.” The parties’ collective agreement does not expressly require reimbursement of these expenses. The union alleges, however, that it is “beneficial for the ministry” for tax auditors to have these professional designations, and that the employer’s refusals to pay the costs of these memberships violated the collective agreement because the refusals were, or were the result of, an arbitrary, discriminatory or bad faith exercise of management rights by the employer in the application of its policy.

2The employer takes the position that maintenance of a current professional designation is not a term of employment for any of the grievors, and that in those circumstances the Ministry of Finance does not reimburse its tax auditors the costs of membership in these accountancy organizations except when a form of membership is necessary in order for the employee to take educational courses that the employer requires or encourages the employee to take. It denies that the exercise of its discretion in that regard has been arbitrary, discriminatory or in bad faith. Further, it alleges that it applied its policy in the manner now complained of for a number of years without complaint by the union, and that the union is estopped by its conduct from now alleging that its exercise of that discretion in that manner is cause for any remedial response at arbitration.

Comprehensive Order for Delivery of Particulars and Productions

3At each of the hearings in this matter to date, each of the parties has complained, through counsel, of the other party’s approach to these proceedings. Employer counsel has complained, for example, that the union’s repeated introduction of what the employer characterizes as “new” allegations makes the union’s case is a moving target. Union counsel has complained, for example, that the employer has been unduly difficult about producing arguably relevant documents or identifying which of the documents relied on by the union as having been published by the employer are acknowledged to have been so published. There have also been disagreements about whether copies of documents have been provided by the union to the employer.

4I do not propose to list the complaints exhaustively, nor to assess their merits. After hearing the submissions of counsel on the question whether I should make such an order, at the hearing of April 10 I advised the parties that I would be issuing a comprehensive order for delivery of particulars and productions by both parties.

5The union shall provide the employer with written particulars of all of the allegations of fact on which it relies in this proceeding. I note that union counsel has delivered a number of letters setting out particulars, and has also provided particulars orally during hearings to date. This order requires that all of the union’s particulars be set out in a single, comprehensive document.

6Except as hereafter noted, the union shall provide the employer with copies of all documents in the possession, custody or power of the union, or of any of the grievors, on which the union may wish to rely in support of the allegations in the particulars it delivers. As for documents that the union believes it has already produced to the employer in connection with these grievances, the union need not include in its productions hereunder a further copy of such a document if instead it includes that document in a list, to be delivered with its productions, describing each such document and identifying by date the written correspondence with which a copy of the document was previously provided to the employer. The union need not deliver copies of, or list, documents already marked as exhibits in this proceeding.

7The employer shall provide the union with written particulars of the allegations of fact on which it intends to rely in these proceedings. Its particulars shall specifically identify the allegations in the union’s particulars with which it agrees and the allegations with which it disagrees and, as to each allegation with which it disagrees, set out the version of the facts on which it relies in that regard. If the employer intends to rely on allegations of fact concerning issues not raised in the union’s particulars — allegations in support of its estoppel argument, for example — it shall also set out particulars of those allegations.

8Except as noted hereafter, the employer shall provide the union with copies of all documents in the possession, custody or power of the Crown in Right of Ontario on which it may wish to rely in responding to the allegations set out in the union’s particulars or in support of the allegations in its particulars. As for documents that the employer believes it has already produced to the union in connection with these grievances, the employer need not include in its productions hereunder a further copy of such a document if instead it includes the document in a list, to be delivered with its productions, describing each such document and identifying by date the written correspondence with which a copy of the document was previously provided to the union. The employer need not include copies of, or list, documents already marked as exhibits in this proceeding.

9In the event that the employer’s particulars address issues not raised in the union particulars delivered pursuant to paragraph [5], the union shall deliver in reply particulars of any allegations of fact on which it intends to rely in connection with those new issues, and shall provide copies of any additional documents in the possession, power or control of the union, or of any of the grievors, on which it may wish to rely with respect to any such issues.

10With respect to each of the acts or omission alleged therein, each party’s particulars shall indicate what was done or not done, when, where, by what means and by whom. It is not necessary for a party to include in its particulars a description of the evidence by which it will seek to prove any of its allegations of fact. The allegations of fact in a party’s particulars should be sufficiently comprehensive that it would be unnecessary for it to call any evidence if the opposite party were to admit that all of the allegations of fact therein were true.

11The union shall deliver its particulars and productions to employer counsel by May 12, 2003. The employer shall deliver its particulars and productions to union counsel by June 9, 2003. The union shall deliver its reply particulars and productions, if any, to employer counsel by June 30, 2002.

12The parties may vary any deadline specified in this order if they advise the GSB of their agreement in writing.

13Each party shall file with the GSB a copy of the particulars it delivers, within one week after delivery of those particulars to the opposite party.

14A party who fails to produce a document or provide particulars of an allegation in accordance with this order may not introduce that document or testimony about that allegation into evidence in these proceedings without leave.

15The provisions of this order with respect to production of documents do not preclude an application by either party for an order requiring the production by the other of additional documents.

Direction With Respect To Certain Documents Sought By The Union

16There has been an ongoing issue in these proceedings about whether the employer should produce to the union any records or other documents it may have concerning the circumstances, if any, in which it has reimbursed the costs of memberships of employees of ministries other than the Ministry of Finance. I heard argument on that issue again at the hearing of April 10, and deferred my decision pending compliance by the employer with an oral direction that is confirmed in the next paragraph of this order.

17Except as hereafter noted, the employer is directed to bring to the hearing on the next hearing day all documents in the possession, power or control of the Crown in Right of Ontario that evidence the reimbursement by the employer of CA, CMA or CGA membership dues within the last five years, or which identify individuals reimbursed by name, job title at the time, Ministry, Branch and so on. The employer may, but need not, exclude from the documents produced any which relate solely to the reimbursement of individuals for whom the membership was a condition of employment, or for whom reimbursement was an entitlement under statute, regulation or collective agreement, or for whom the reimbursed membership was a prerequisite for enrolment in a course or courses that the employer required or encouraged the employee to take. If, after investigating the availability of such documents, counsel for the employer takes the position that it would be unduly onerous to require that all or some portion of the documents be collected and brought to the next hearing, he shall come to the next hearing prepared to explain and support that position in detail.

18Unless counsel are able to resolve this issue between them after employer counsel has completed the investigation aforesaid, in determining whether and to what extent the documents in question are to be produced I will take into account whatever pertinent information may result from compliance with the direction set out in the previous paragraph.