IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Edwards)

Union

and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

October 11, 2005.

Order

On September 22, 2005, a witness, Mr. Donald Edwards, was duly summoned to attend an arbitration hearing before the Grievance Settlement Board (GSB or Board) on October 11, 2005. Mr. Edwards, on the advice of counsel that he need not attend because he was not a Crown employee, did not attend the hearing, or bring the documents requested of him in the summons. The Employer now seeks an Order of this Board to compel Mr. Edwards’ attendance on the next hearing date in this matter, October 24, 2005. The Union does not oppose that motion.

The Crown Employees’ Collective Bargaining Act (CECBA) provides that all differences arising from a collective agreement “relating to Crown employees” will be arbitrated by the GSB. Section 7(2) of CECBA incorporates the Ontario Labour Relations Act, 1995 R.S.O., 1995, c.1, including Section 48 (arbitration provision) except subsections (1) to (6). It includes, however, Section 48(12) of the Labour Relations Act, which provides, in relevant part, as follows:

Section 48(12) Powers of arbitrators, chair of arbitration boards, and arbitration boards.

An arbitrator or chair of an arbitration board, as the case may be, has power,

(a) …

(b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;

(d) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases;

(e) ….

Section 53 of the rules of civil procedure, likewise, provides for the summons of a witness to attend a trial and to produce documents. Section 53(7) provides for sanctions for the failure to obey a summons.

Based on the relevant statutory provisions, there can be no question that the GSB has the authority “to summon and enforce the attendance of witnesses….”, including third parties. The fact that the witness, Mr. Donald Edwards, is not a Crown employee himself is irrelevant. Since he lives in Ontario and his testimony has relevance to the issues in dispute, he may be compelled to testify. He must attend the hearing, until his attendance as a witness is no longer required. Brown and Beatty, Canadian Labour Arbitration, 3^rd Edition, at 3:3212; Re Ministry of Transportation and OPSEU (Vangou) (2005), 2005 CanLII 94094 (ON GSB), 138 L.A.C. (4^th) 58 (Dissanayake); OPSEU (Union Grievance) and Ministry of Transportation (1997), GSB No. 1344/96 (Kaplan); OPSEU (Giddings) and Liquor Control Board of Ontario (1996), GSB No. 2289/95 (Kaplan).

Mr. Edwards’ attendance at the hearing does not waive any rights that he may have to object to producing the documents that the Employer has requested. He may do so on his own behalf, or through his own counsel, if he so chooses at the next day of hearing. What he cannot do, however, is ignore the Board’s summons.

Accordingly, it is hereby ORDERED that Mr. Donald Edwards attend the hearing in the above-captioned matter, on October 24, 2005.

Issued at Toronto this 11^th day of October, 2005.

Ontario Public Service Employees Union (Edwards) v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2005 CanLII 55246

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union