GSB# 1999-1224, 1999-1565, 1999-1566, 1999-1567, 1999-2019

UNION# 99E122, 99D203, 99D204, 99D205, 00A154, 00A156, 00A155, 00A159, 00A158, 00A157

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)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and 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 24, 26, 27, 2003.

Interim Decision

The Proceedings

The union seeks to prove as part of its case that Mr. Pickett suffered damages as a result of his treatment by management, flowing from an incident on May 23, 1999. The union says that management’s actions were motivated in part by its discriminatory attitude. Mr. Pickett, who has since passed away, suffered from a physical disability. The discriminatory attitude alleged is said to be extant at the Toronto East Detention Centre, specifically, and throughout the Ministry of Correctional Service, generally.

The union seeks to have three documents entered into evidence as part of its case in the above regard:

1.) Ministry of the Solicitor General and Correctional Services Culture and Human Resources Review, Final Report (April, 1998, Coopers and Lybrand);

2.) OPSEU (Pickett) and Ministry of Health, GSB #2251/93 (W. Kaplan, January 15, 1996);

3.) McKinnon v. Ontario Ministry of Correctional Services, (Human Rights Code Board of Inquiry, N.A. Hubbard, November 29, 2002).

The union seeks a ruling on the admissibility of the documents per se and a direction as to the scope of their use.

For convenience, the documents are hereafter referred to respectively as: the Coopers and Lybrand Report, the Kaplan decision and the second McKinnon decision.

The Submissions of the Parties

The union said that the Coopers and Lybrand Report was commissioned by the employer and widely distributed. It should be accepted as expert evidence and the employer permitted to cross-examine the authors if so desired.

The union submitted that the Kaplan decision is binding both with respect to its finding of fact and law as a prior decision of this Board.

The union said that the findings of fact of the second McKinnon decision should be binding on this Board and the decision as a whole should be received in evidence and given due consideration and serious weight.

The employer submitted that these are personal, not policy grievances which must be decided on the basis of the allegations contained therein. In that regard, they allege individual contraventions of the collective agreement to which a broad inquiry into the culture of the Ministry and specifically the Toronto East Detention Centre would be irrelevant.

The employer also submitted that the use the union wishes to make of the documents is to receive them at large, an approach which is too amorphous to respond to. Further, if the union intends to invoke issue estoppel with respect to the second McKinnon decision, the preconditions are not met.

As to the Coopers and Lybrand Report, it was said to be particularly unhelpful since it is largely survey results rather than expert evidence and, in any event, would have to be tendered by its authors.

With regard to the Kaplan decision, the employer submitted that it is an authority that may be referred to in argument; it is not evidence.

In reply, the union said that the documents are admissible to establish the facts therein.

The parties relied upon the following authorities: Canadian Labour Arbitration,(Brown and Beatty, Third Edition); Evidence and Procedure in Canadian Labour Arbitration, (Gorsky, Usprich and Brandt); DevonianElectrical Services and IBEW, (1971) 1971 CanLII 1916 (AB GAA), 23 L.A.C. 358; OPSEU (Villella) v. Ministry of the Solicitor General and Correctional Services (GSB 1662/96, McKechnie, February 25, 1997); Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (C.A.); Ford Motor Company of Canada v Ontario (Human Rights Commission) [200