GSB# 1999-1744, 2001-0664, 2001-1761, 2001-1884, 2002-1226, 2002-1733, 2002-2275, 2002-2296, 2002-2374, 2002-2399, 2002-2544, 2003-2922, 2003-2923, 2003-2924

UNION# 1999-0467-0013, 2001-0467-0006, 2002-0467-0004, 2002-0467-0012, 2002-0467-0007, 2002-0467-0010, 2002-0467-0009, 2002-0467-0008, 2002-0467-0006, 2002-0467-0093, 2002-0467-0094, 2002-0467-0095, 2002-0467-0096, 2002-0467-0097, 2002-0467-0099, 2002-0467-0103, 2002-0467-0137, 2002-0467-0138, 2002-0467-0140, 2002-0467-0139, 2002-0467-0141, 2002-0467-0142, 2003-0467-0045, 2003-0467-0046, 2003-0467-0047

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Caron)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Joseph Carrier

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Benjamin Parry Counsel Management Board Secretariat

HEARING

January 20, May 17 & July 5, 2004.

Interim Order

The Employer has requested that I dismiss a series of grievances filed by Mr. Jonathon Caron without proceeding with a hearing on the merits of those grievances. That request, which I will hereafter refer to as a "motion" was precipitated by two factors:

1. The failure of the Grievor to provide particulars with respect to each of the various grievances on or before June 21^st as previously agreed upon by counsel;

2. Failure of the Grievor to appear for a hearing on July 5, 2004.

As an alternative to the motion to dismiss, the Employer takes the position that, if the grievances are adjourned, they be adjourned on reasonable conditions including recognition that the delay from July 5^th onwards was precipitated by the Grievor. Liability, if any, should not accrue to the Employer for the period occasioned by the delay.

The Background

This matter was originally scheduled for hearing on January 20, 2004. The proceedings involved in excess of 35 grievances filed by the Grievor, the earliest of which appears to have arisen in 1999. However, that grievance stands alone, the balance of the grievances being filed in 2001 and 2002. In any event, the proceedings commenced on January 20, 2004 and the parties met with the Vice-Chair in the hopes of finding a mediated resolution. A review of the outstanding matters made it clear that not included as a matter before the Vice-Chair was, amongst other things, the Grievor's termination. The Parties met again on May 17, 2004 at which time a further effort was made to resolve all outstanding matters including the Grievor's termination. The parties had agreed that the Vice-Chair could deal with that issue in mediation but there was no agreement or order, up to that time, that it be consolidated for the purposes of arbitration. At the conclusion of the May 17^th proceeding, counsel had agreed that they would exchange particulars on or before June 21, 2004 so that they would be in a better position prior to the next scheduled date of hearing, July 5, 2004 to deal with any preliminary issues such as:

1. consolidation of other outstanding grievances including the Grievor's termination;

2. the onus on the merits and an assessment as to which party should proceed first;

3. discussions or submissions with respect to the sufficiency of particulars.

In addition to the foregoing it is important to note that the Registrar of the Grievance Settlement Board distributed notice of proceedings respecting both the May 17^th and July 5^th dates on or about Thursday, February 19^th, 2004.

As might be imagined, the Employer had, prior to the consolidation of the Grievor's termination, little to provide in the way of disclosure or particulars. Notwithstanding that, on June 21, 2004 the Employer did provide the Union with an indexed series of documents by way of disclosure. None of that has been shared with the Vice-Chair up to the present time nor has there been any challenge by the Union as to the adequacy of sufficiency of that disclosure. In the letter which accompanied the disclosure document, Mr. Parry for the Employer noted that he had yet to receive any documentation or particulars from the Union with respect to the matters then in issue. That letter set the stage for the issue now before me. It reads as follows:

"Pursuant to the Parties discussions with Vice-Chair J. Carrier at the hearing dated May 17, 2004 please find the attached documents with an accompanying index.

The Employer reserves the right to provide further documents to the Grievance Settlement Board and the Union should additional documents come to our attention before or during the hearing.

On May 17, 2004 the Parties agreed to provide full disclosure and particulars for each grievance on or before June 21, 2004. That date was identified in order to provide the Parties with sufficient time to identify any preliminary issues and prepare for the July 5, 2004 hearing date. The Employer has not received any disclosure or particulars as of today and, as a result, will be seeking to dismiss the grievances currently before the Board at the July 5, 2004 hearing. In addition, the Union has not identified whether or not it will be seeking to consolidate the Grievor's grievance of his termination.

Finally, on July 5, 2004 the Employer will be taking the position that it should not be prejudiced by any delay resulting from the Union's failure to provide particulars. For greater clarity, in the event that there is any liability on the Employer (which is not admitted and denied) the Employer will not be liable for any monies, including interest after July 5, 2004, caused by this delay."

When the matter reconvened on July 5, 2004, there had not yet been a response to the request for particulars and, more importantly, the Grievor did not appear at the hearing. During the course of discussions between counsel and the Vice-Chair, Mr. Roland, counsel for the Union, was able to contact the Grievor. He then relayed the following information:

4. He himself was unaware that the Grievor was ill until he attempted to contact him that morning. The Grievor advised him that he had been sick for a week and continued to be unwell such that he could not attend proceedings that morning. Mr. Roland did not inquire into the nature of the illness due to his own sensitivity to privacy concerns.

5. The Grievor had e-mailed Mr. Roland's office on July 1^st to inquire concerning the following:

(a) to confirm the date of the July hearing; and

(b) to discern whether or not his attendance would be required.

As luck would have it Mr. Roland's office was closed through the long weekend commencing Thursday, July 1^st until the Sunday July 4^th, accordingly, Mr. Roland was unaware of that e-mail until the morning of these proceedings. In any event, on speaking with the Grievor the latter expressed his dismay that Mr. Roland's office had not responded to his e-mail and that he had the mistaken understanding that his presence would not be required since the Parties would be dealing with matters of process only. Additionally, Mr. Roland indicated that the Grievor had indeed e-mailed some information concerning the required particulars but that his office had been unable to open the attachment to the e-mail. There was no information provided as to when the Grievor sent the e-mail containing the attachments to Mr. Roland or as to why the problem could not have been corrected on or before June 21^st, the date by which particulars were to have been exchanged.

The Argument and the Decision The Employer submitted several cases in each of which a Vice-Chair of the Grievance Settlement Board had dismissed grievances due to the failure of a Grievor to appear at a hearing of the Board; however, in the first of those cases, Martin, G.S.B. File No. 0733/01, 0734/01 (Bloch) the grievor had not only failed to appear on a previous occasion but the parties had entered into a Memorandum of Agreement to the effect that the grievor's failure to appear in the future would result in a dismissal of the grievances. The second case involving the grievor Slusarchuk, G.S.B. File Nos. 1936/95 et seq. (O.V. Gray), the Vice-Chair had issued an earlier order when the grievor had failed to appear for previous proceedings. The order stipulated amongst other things that "her failure to attend…, barring exceptional circumstances, would be grounds to dismiss the matter". The third case decided by Vice-Chair Barry Fisher involving the grievor Van Laere in G.S.B. File No. 951/92, was dismissed without any earlier failure by the grievor to attend a hearing. However, in that case the union was unable to provide any explanation whatsoever for the grievor's absence and, more importantly, the grievance concerned an allegation of unjust discipline. The Vice-Chair dismissed the grievance only "upon the express undertaking by the employer to the Board that the events of the day in question namely April 2, 1992 were not intended to be disciplinary at the time nor would be relied upon in future proceedings as disciplinary…". In the circumstances, it is my view that none of those cases are of assistance in determining whether or not this series of grievances should be dismissed for the Grievor's failure to appear on July 5^th.

I have considered the information provided by counsel as well as their submissions and arguments and conclude that this is not a case in which dismissal for the Grievor's failure to appear would be appropriate. In the case before me, the Grievor had appeared on two previous occasions and had not indicated in any way that he did not intend to co-operate with the Union in the preparation or presentation of his case nor did he show any reluctance to participate in proceedings. While there may be some doubt as to the legitimacy of the reasons he gave to Mr. Roland for his failure to attend on July 5^th, extending to him the benefit of the doubt, he might have been somewhat confused concerning the process; this is especially so since, behind the scenes, counsel were continuing in their efforts to resolve all outstanding matters including his termination. Although the Grievor's termination was not officially before me as at the July 5^th date, I understand that some of the issues involved in those grievances which were before me will be relevant to the termination issue if as and when it does proceed. Therefore, dismissal of the earlier grievances would likely prejudice the termination grievance. Finally, I am not satisfied that the Grievor's failure to appear reflected a refusal to attorn to the jurisdiction of the Grievance Settlement Board. (In this regard see Re Toronto (City) and CUPE, Loc. 79 (Warner) (1998) 1998 CanLII 30076 (ON LA), 73 L.A.C. (4^th) 412 (Craven). On the other hand, the circumstances do merit the imposition of some strictures on the Grievor's future conduct. I will deal with those later in this Award.

This brings me to the second basis upon which the Employer sought to have the grievances dismissed. That aspect of the motion was premised on the Grievor's failure to provide particulars in a timely fashion. Again, there had been no previous order of the Board that particulars be provided; however, the agreement of counsel to exchange particulars on or before June 21^st was clear and unambiguous. The explanation for the failure to provide those particulars as undertaken is again questionable. E-mail as a form of communication is simply one of a vast array of methods which are available in today's world. The Grievor could easily have remedied that failure. In the circumstances, that aspect of the Grievor's explanation is less than satisfactory, especially since the particulars were still unavailable on the July 5 hearing day. Notwithstanding that, since counsel were during the same time frame engaged in settlement discussions, I am satisfied that the Grievor might have misunderstood the urgency and the need for him to provide those particulars in a timely fashion. There is little precedent for a decision to dismiss for want of particulars except where there has been failure to comply with an order of the Board and, but for those particulars, the case could have proceeded. [(see Klonowski et al G.S.B. no. 1799/99 et seq. (Fisher)]. Since that is not the situation before me, I will not dismiss the grievances on the basis only of the failure to particularize at or before June 21^st. However, the responsibility for failure to do so and the delay occasioned from that failure lies directly at the Grievor's doorstep. The Employer, in the circumstances, ought not to suffer any liability for the consequences of that delay. I have attempted to take that matter into consideration in my final Order which is set out below.

The Decision and Order In addition to those grievances which were before me up and including July 5, 2004, the Parties agreed on that date to consolidate with those matters three other grievances including the Grievor's discharge. Those matters are represented by OPSEU Nos: 0045-October 16/03; 0046-October 4/03; 0047-October 4/03.

For the reasons set out above, the Union is ordered to provide to the Employer particulars as to the facts and issues in dispute before me including those additional grievances noted above and which I hereby confirm as consolidated with those previously before me. Those particulars need not include "will say" statements from the Grievor; however they shall set out the nature of the conduct of the Employer which is grieved as well as the Party or Parties engaging in that conduct together with the date and time of that conduct. As to a time frame for those particulars, most of that information ought already to have been in Mr. Roland's hands. However, since none of that information has been shared either with Employer counsel or with the Vice-Chair up to the present time, it is unclear as to whether or not it includes the information I have ordered and as to whether it is in presentable form. In the circumstances, I will allow three weeks from the date of release of this Award for the Union to provide that information to the Employer. Accordingly, the Union is hereby directed to provide those particulars within three weeks of the date of the release of this Award.

In addition to the foregoing, it is my order and direction that the Grievor's failure to attend any future proceeding of this Board, barring exceptional circumstances, will be grounds for dismissal of all matters then before me.

Finally, as I have indicated earlier in this Award, this matter has been delayed as a consequence of the Grievor's failure to provide to Union counsel in a timely fashion those particulars which were to be conveyed to the Employer on or before June 21^st. Additionally, the Grievor's failure to appear on July 5^th resulted in further delay of these proceedings. In the circumstance, it is my Order and Direction that in the event of any finding in favour of the Grievor at the conclusion of the proceedings on the merits of the subject grievances, any damages to which he might otherwise be entitled will be adjusted to reflect the delays during the proceedings attributable to his conduct.

For the reasons set out above the motion to dismiss by the Employer is not successful. The request for adjournment by the Union succeeds subject to the conditions I have set out above.

DATED at Toronto this 16^th day of September, 2004.