GSB# 2002-0127, 2002-0572, 2002-1022, 2002-1023, 2002-1346, 2002-1417, 2002-2181, 2002-2414, 2003-0069, 2003-0070, 2003-0071, 2003-0072, 2003-0073, 2003-3840, 2003-3841, 2003-3842, 2003-3843

UNION# 02C290, 02C702, 02A743, 2002-0530-0018, 2002-0530-0017, 2002-0530-0029, 02D244, 2002-0530-0041, 2002-0530-0060, 2002-0530-0074, 2002-0530-0076, 2002-0530-0077, 2002-0530-0075, 2003-0530-0016, 2003-0530-0017, 2003-0530-0018, 2003-0530-0019, 2003-0530-0020, 2004-0530-0001, 2004-0530-0002, 2004-0530-0003, 2004-0530-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Persaud)

Grievor

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Ferina Murji Counsel Management Board Secretariat

HEARING

March 29, 2004.

ORDER

1The grievor filed a number of grievances that were scheduled for hearing before me. After the first hearing date, counsel exchanged particulars. This order addresses matters that arose thereafter, on the second hearing date.

2Employer counsel raised issues with respect to the timeliness of some of the grievances and the arbitrability of others. After discussion of those issues it was agreed that such of those issues as remain following that discussion can be dealt with following the hearing of evidence (if any) with to those issues and evidence with respect to the merits of the grievances.

3Counsel for the union sought production from the employer of various sorts of documents. All but one of his requests were resolved in the course of the hearing by agreement of counsel.

4The one production issue not resolved by agreement of counsel concerned the union’s demand for all documents relating to the circumstances that in which the employer had adjusted the work hours of certain named bargaining unit employees at their request. This was said to be relevant to grievances in which the grievor complains of the employer’s failure to adjust her work hours in accordance with her request. The union alleges that the grievor had a medical condition that amounted to a disability within the meaning of the Ontario Human Rights Code (“the Code”), and that the adjusted hours were needed in order to accommodate that disability. The union says that employer’s refusal to adjust her hours of work is therefore a breach of her rights under both the Code and Article 3 of the collective agreement. The employer’s position on those grievances is that when the grievor requested the adjustment to her working hours she did not provide any medical information or opinion to the effect that she had a disability that required that, or any, accommodation and, further, that in fact she had no disability for which such an accommodation was needed.

5Evidence of how others were treated with respect to work hours would not assist in determining whether the grievor had a disability at the relevant times, nor whether she had adequately informed the employer that she needed the adjustment in hours of work in order to accommodate a disability. Indeed, the union does not allege that the other employees’ adjustments of hours about which it seeks production were either sought or provided as accommodation of disability. Information about whether and how other employees’ hours were adjusted at their request might have been relevant if it was the employer’s position that adjusting the grievors’ hours of work as she requested would have caused it undue hardship, within the meaning of subsection 17(2) of the Ontario Human Rights Code. The employer does not take that position, however.

6Accordingly, it was apparent that the information sought would not be relevant to any issue before me, and I dismissed the request that the employer be ordered to produce it.

7Some of the grievances before me allege that the grievor was treated in a discriminatory manner on the basis of race or ethnicity, contrary to Article 3 of the collective agreement. The particulars provided by the union identify in general terms the acts or omissions complained of as constituting adverse treatment of the grievor. They do not, however, identify any acts or omissions by the employer or anyone acting on its behalf on which the union may rely to demonstrate discriminatory motivation or effect.

8I confirm the direction I gave orally at hearing that the union shall provide the employer with written particulars of any acts or omissions on which it may rely in these proceedings to demonstrate that the employer’s actions were discriminatory in motivation or effect, and shall produce any document in the possession, custody or power of either the union or the grievor on which the union may wish rely in proving that the adverse treatment complained of amounts to discrimination on a prohibited ground.

9The employer shall respond to those additional particulars in writing, identifying allegations with which it agrees, the allegations with which it disagrees and, as to he latter, the allegations of facts on which it relies. The employer shall also provide the union with copies of all documents in its possession, custody or power on which it may wish to rely in response to the allegations in the particulars delivered by the union pursuant to paragraph 8 hereof.

10The union shall deliver its particulars and copies of documents to the employer by the close of business May 31, 2004. The employer shall deliver its particulars and copies of documents to the union by the close of business June 30, 2004. Each party shall file with the GSB a copy of the particulars it delivers, within one week after delivery to the opposite party.

11The parties may vary any deadline specified in this order by written agreement.

12A party who fails to produce a document or provide particulars of an allegation in accordance with this order may be precluded from introducing that document or testimony about that allegation into evidence.

13The provisions of this order with respect to production of documents (other than paragraph 6) do not preclude an application by either party for an order requiring the production of additional documents.

14I note that at the hearing of March 29, 2004, the union formally withdrew the grievances in Board files 2002-1022 and 2002-1417.

15The parties agreed that grievances in Board files 2003-3840, 2003-3841, 2003-3842, and 2003-3843 should be added to the grievances to be heard by me.

16The parties further agreed that the grievances that remain before me should be heard in two separate sets of hearings, as follows:

a) the grievances in Board files 2002-0127, 2002-2414, 2003-0071, 2003-0072, 2003-0073, 2003-3840, 2003-3841, 2003-3842 and 2003-3843 will be heard together in one set of hearings scheduled for October 12 and 22 and November 2 and 3, 2004; and,

b) the grievances in Board files 2002-0572, 2002-1023, 2002-1346, 2002-2181, 2003-0069 and 2003-0070 will be heard together in another set of hearings scheduled for November 17, 18 and 30 and December 1, 2004.