GSB# 2003-1461

UNION# 2003-0329-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Press)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ed Holmes Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

June 1, 2004.

Decision

The grievor, Keith Press, filed a grievance dated May 16, 2003 alleging a violation of Article 9.1 and any other relevant articles of the collective agreement and any legislation that might apply. He asked as a remedy that the Board order he be returned to his previous ward, if desired, with full compensation, a guarantee of future career opportunities, an apology from his immediate supervisor and the removal of that supervisor from his position of Nurse Manager for incompetence.

The grievance arises from allegations of client abuse at the Oak Ridge Division of the Mental Health Care Penetanguishene. The grievor is a registered nurse at the facility and was the subject of a formal investigation into these allegations of abuse. He claims the investigation was improper on several grounds and takes the position that the ensuing psychological, social and emotional trauma he suffered as a result of that improper investigation not only violated the collective agreement but also gave rise to claims for damages for the tortuous conduct of the Employer.

During the first day of hearing, the Employer raised some preliminary matters related to process and asked the Board for an order respecting those issues. First, the Employer asked the Board to order these proceedings be bifurcated into a hearing on the liability, if any, and then on the remedy that follows if the Union succeeds on the merits. While it is common to leave the issue of damages until after a finding on the merits, it is usually done on agreement of the parties. In this case Mr. Baker, counsel for the Employer, took the position that medical evidence relating to the consequences of a breach of the agreement could be avoided if the Employer succeeds on the merits, thereby saving the Board and the parties the expense of the hearings and the cost of the expert witness’ testimony. Mr. Baker also submitted that the Union’s claim for damages under the tort heading of negligence was newly raised and the Employer was not prepared to respond to it at that time.

Mr. Holmes, counsel for the Union, took the position that it would be disadvantaged if it were ordered to limit its evidence as suggested by the Employer. The issue before this Board concerns a breach of the Health and Safety provisions of the collective agreement. In order to establish the effect on the grievor’s health of that breach, the Union will be required to call expert medical evidence. The charges against the grievor that led to this investigation are very serious and the Union should have the broadest leeway to present its case. The merits of the case are entwined with the remedy to such an extent that separating them will be difficult and not necessarily an efficient use of the parties’ time.

I am not prepared to make the order requested by the Employer. While I agree that some aspects of remedy are more efficiently dealt with at the conclusion of the hearing, including mitigation and losses, it is up to counsel to determine how to present its case. If the Union feels it must present the medical evidence to prove its case, that is its decision to make. We are at the commencement of a possible 8 day case and there will be sufficient time for the Employer to consider its position with respect to the remedies ultimately sought by the Union.

Another issue raised by Mr. Baker concerned the calling of evidence. The Union has apparently made arrangements with the grievor’s specialist to attend and give evidence on the next day of hearing. The greivor has begun his examination-in-chief and we will have to interrupt his evidence to hear the physician. Mr. Baker asked the Board to instruct the Union to delay his testimony because not all of the exchange of particulars has been completed, which will place the Employer at a disadvantage. Again, I am not persuaded I should make such an order. It is up to the parties to determine what case it has to meet and how to present that case. If the Union has made arrangements for the specialist to cancel his appointments for the day and travel from Brockville to attend the hearing, there is no compelling reason for me to interfere with its decision. The last time we met in June there was agreement to exchange information prior to the next day of hearing in November. Apparently the Union provided some particulars in October and the Employer responded just prior to the hearing with a request for specific information from the grievor’s treating physicians. There has been sufficient time for the parties to have fulfilled their obligations and have provided each other with the particulars it intends to rely on during its case and of their respective positions. If additional information should come to light during the hearing, the Board will hear argument about an adjournment.

DECISION

The hearing will reconvene on December 15^th with the testimony of Dr. Hector. In the meantime the Union will ensure that the Employer has received the clinical notes of Dr. Hector so that it will be in a position the cross-examine him. The Employer’s concerns about cross-examining the grievor without this information will have been addressed by the time he resumes his evidence.

Dated at Toronto this 8^th day of December, 2004.