GSB# 2002-2964, 2002-2965, 2002-2966, 2004-2332, 2005-0944

UNION# 2003-0634-0001, 2002-0634-0005, 2002-0634-0004, 2004-0634-0003, 2005-0634-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McCormick)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Caroline V. (Nini) Jones Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Suneel Bahal Counsel Ministry of Government Services

HEARING

December 12, 2005; additional written submissions December 19 & 23, 2005.

Decision

The grievor has filed seven grievances, at least five of which are before the Board. The grievances span a three-year period, from 2002 to 2005. Three allege harassment and discrimination, including a poisoned work environment. One alleges unjust discipline. One grievance asserts a violation of privacy in that the Ministry negligently released private medical information to a third party. One alleges a violation of health and safety and reprisal, and one alleges that the grievor was forced to use her vacation credits. Exactly which five of these seven grievances are before the Board is unclear.

Due a number of circumstances, there is no Vice-Chair currently assigned to hear the merits of this matter and, as a result, arbitration dates have not yet been determined. The Union has now moved for interim relief in this proceeding, and the parties agreed that I would be seized for this motion only. In its motion for interim relief, the Union is asking that the GSB order the Employer to place the grievor on a paid leave of absence - on special or compassionate leave - until these grievances are fully and finally resolved.

A November 21, 2005 letter from the Employer triggered the Union’s motion for interim relief, although the Union had been considering this action beforehand. In that letter, the Ministry advised the grievor that she had been off work since June 13, 2005 to date without “medical documentation from your medical practitioner sufficient for the ministry to determine your fitness to perform your regular job duties or whether or not there is any workplace accommodation available to quicken your return to the workplace.” As a result, the Ministry considered her absence to be “an unauthorized leave of absence without pay effective June 15, 2005.” During that period, however, the grievor had received short-term sickness (STSP) benefits. The grievor was then notified “that you are required to return to work on December 5, 2005…” She was also advised that pursuant to Section 20 of the Public Service Act, that “a public servant who is absent form duty without official leave for a period of two weeks … may…be declared by his or her deputy minister to have abandoned his or her position….”

The grievor’s STSP benefits were exhausted in early December, and in late November she applied for long-term income protection (LTIP). At the hearing on December 12, 2005, the Ministry rescinded the November 21, 2005 letter, and withdrew its requests for independent medical examinations it had made in September and October 2005. Instead, it advised the grievor that “[e]ffective December 7, 2005, you will be placed in a leave of absence without pay pending a decision of your application for Long Term Income Protection (LTIP).”

Based on the rescission of the November 21, 2005 letter, the Employer objected to the Board’s proceeding with the motion for interim relief since there is no longer any threat to the grievor’s continued employment. It further asserts that it has received no particulars from the Union on a number of the grievances, so it is unable to address whether or not the Union has an “arguable case on the merits.” It also asserts that the requested interim relief – a special or compassionate leave- has not been requested previously by the grievor. It has therefore not been considered or denied by the Ministry and there is no grievance concerning that issue. On this basis, the Ministry asserts that there can be no basis that the Board may order the relief requested. It therefore contends that the Board lacks jurisdiction, at this time, to hear the Union’s motion for interim relief, and asserts that the Union’s motion is an abuse of process.

The Union argues that the Board’s jurisdiction rests with the grievances properly before the Board, the parties’ collective agreement and Section 48(12)(i) of the Labour Relations Act, which is incorporated into the Crown Employees Collective Bargaining Act. All of the Employer’s arguments, the Union contends, go to the merits of the motion, but not the jurisdiction of the Board to hear this matter.

The Union argues that the Ministry’s rescission of its November 21, 2005 letter does not render its motion for interim relief moot. It asserts that the letter does not prevent the Ministry from changing its mind, again, and requiring the grievor to return to work. It further argues that the rescission of the November 21, 2005 letter does not alter the jurisdiction of the Board to hear this motion.

In terms of particulars, the Union submits that particulars have been exchanged between the parties on a number of the grievances, but not all of them. It agrees that no particulars have been provided in relation to the 2004 harassment grievances, but contends that the Ministry is fully aware of the grievor’s allegations through prior mediation sessions before the GSB, with another Vice-Chair. It contends that after six mediation sessions, the Ministry cannot now assert that it does not know the case it must meet. The Union asserts that the Ministry’s contention that it does not have sufficient information about the grievances ignores the real history of the grievances. It also submits that it would be improper for the Union to be ordered to provide particulars when the Ministry failed to participate in the grievance process, as the Union alleges occurred here. The Union further argues that in light of the very low threshold required to establish an arguable case on the merits, the Ministry has ample information to rebut, should it choose to do so, the broad position of the Union that it has an arguable case on the merits. In the Union’s submission, the threshold is extremely low, requiring little more than a stated best case.

The Union questions the requirement to provide detailed particulars in a motion for interim relief. It argues that in light of the low standard required for an “arguable case on the merits”, detailed particulars are not required to make that determination, and that to require them would defeat the expeditious, and usually urgent, nature of requests for interim relief.

Should this motion be allowed to proceed, another issue arose regarding whether or not the Union may rely on a sworn affidavit from the grievor, without calling her as a witness. The Union argued that sworn affidavits have been found by the Board to be sufficient in motions for interim relief, and indeed, the Board has ruled on such motions where no evidence is presented.

While recognizing that the Board has, at times, allowed sworn statements in motions for interim relief, the Employer argues that it has done so only when there were exigent circumstances that precluded the submission of better evidence. In this case, the Employer does object to the Union’s relying on the affidavit. It argues that there is no medical evidence to suggest that the grievor is unable to testify, and it asserts that relying on the affidavit, and precluding the Employer from being able to cross-examine the grievor, would be a denial of natural justice and procedural fairness.

Decision

1. I conclude that I do have jurisdiction to hear the Union’s motion for interim relief. The Board’s jurisdiction is based on the grievances before it and Section 48(12)(i) of the Labour Relations Act. That is the source of the Board’s jurisdiction. In this case, there are five grievances before the Board and the Union has moved for interim relief, pursuant to Section 48(12)(i). As a result, this Board has jurisdiction to hear that motion. All of the Employer’s arguments go to the merits of whether or not the motion should be granted. They do not go to the Board’s jurisdiction.
2. In regard to particulars, I conclude that under the Board’s jurisprudence the parties must exchange particulars in relation to the motion for interim relief, before this matter may be heard. OPSEU (Union Grievance) and Ministry of Public Safety and Security (2003), GSB No.2113/02 (Dissanayake). In that case, the Board ordered the Union to provide the particulars it relied on to establish an arguable case on the merits in support of its application for interim relief, including when, where and by whom the alleged violation was committed. It also required the Union to provide particulars as to the circumstances it intended to rely on to establish the adverse impact it said will result, if the interim relief sought is not granted. The Employer was also ordered to provide the union with particulars of the facts it intends to rely on in response to the allegations in the Union’s particulars and the circumstances it intended to rely upon to establish the adverse impact it says will result, if the interim relief sought by the union is granted.
3. In OPSEU (Gareau) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2004-0901 (Abramsky), I followed that decision, although I concluded, on the facts, that the Union had presented sufficient particulars.
4. Under the principle of Blake et al. and Amalgamated Transit Union and Toronto Area Transit Operating Authority (1988, GSB No. 1276/87 (Shime), I am bound to follow the decision in OPSEU (Union Grievance) and Ministry of Public Safety and Security, supra. I would note, however, that I agree with the Union that there are some practical difficulties with requiring detailed particulars in a motion for interim relief, particularly when it involves a matter of some urgency. The provision of detailed particulars takes time to prepare and respond to, inevitably causing a delay in hearing the motion. It may also lead to disputes about whether or not the order for particulars has been complied with. On the other hand, the provision of particulars ensures that the issues in the interim motion may be fully and fairly litigated.
5. In this case, there has been no exchange of particulars in connection with a number of the grievances. The Union asserts that the Employer has learned about the grievances through the prior mediation sessions before the Board. Although one would expect that information would be exchanged during the mediation process – particularly six sessions – I simply have no factual basis to make that determination. I have no knowledge of when these sessions occurred, whether they predate any of the grievances, or what was discussed. There are many times, in mediation, when the focus is strictly on resolution, not the details of the grievances. Further, I am very reluctant to conclude that discussions during mediation, or the grievance procedure, are a substitute for particulars.
6. Consequently, based on OPSEU (Union Grievance), supra, the Ministry is entitled to know the case it has to meet in regard to these grievances, and be able to challenge whether the Union has an arguable case on the merits. Further, neither side knows, at this point, the circumstances that the other side will rely on to establish adverse impact. Based on OPSEU (Union Grievance), supra, these particulars are required in a motion for interim relief.
7. Accordingly, I conclude that the Union must provide particulars regarding the grievances for which no particulars have been provided as well as the adverse circumstances it submits will result if the Board does not grant the interim relief requested. OPSEU (Union Grievance), supra, case. The Employer is then to respond.
8. The Union is ordered to provide particulars to counsel for the Employer by January 6, 2006, with the Employer to respond by January 10, 2006. If these dates are unworkable, because of the Christmas/New Year’s holiday, and the consequence delay in issuing this decision, the parties are to advise me and I will address the issue through a conference call arranged by the GSB.
9. I make no comment on the standard suggested by the Union that the test for an “arguable case” is “extremely low, requiring little more than a stated best case.” That is certainly the implication of my decision in OPSEU (Clarke) and Ministry of Attorney General (2005), GSB No. 2004-3263 (Abramsky). Yet that conclusion may need to be revisited because it may be inconsistent with earlier Board cases, such as OPSEU (Moon) and Ministry of Education (2003), GSB No. 2003-2128 (Mikus) and even OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB No. 1196/97 (Dissanayake), which went beyond a “stated best case” inquiry.
10. In terms of whether the Union may rely on the affidavit of the grievor at the motion for interim relief, without calling the grievor to testify, I conclude that it may not do so. In OPSEU (Nield) and Ministry of Labour (1996), GSB No. 1471/96 (Roberts), the Board relied on the unsworn affidavit of the grievor, for a limited period, because of “the circumstances were so urgent as to make virtually impossible the submission of better evidence.” (Decision at p. 6). The Union’s request for interim relief was made on the business day before the hearing. The Board decided that “[i]t would not have been possible to call Mr. Nield and, perhaps, his partner, to give cross-examined evidence….” (Dec. p. 6-7) The second decision in OPSEU (Nield), supra, decided by Vice-Chair McKechnie, relied upon the sworn affidavits of Mr. Nield as “better” evidence to continue the interim relief. In that case, however, there was no objection to relying on such evidence.
11. In this case, there is an objection to proceeding by way of affidavit. It seems to me that affidavit evidence should only be relied upon if better evidence is unavailable, or if the parties’ agree to proceed on that basis. The right of cross-examination is basic to natural justice and procedural fairness. In this case, there is no medical evidence which states that the grievor is unable to testify, and there has been no justification presented for allowing her to submit evidence through affidavit, and not be subject to cross-examination. Accordingly, when the hearing resumes on the Union’s motion for interim relief, the Union will not be allowed to rely solely on the grievor’s affidavit.

Conclusions:

1. The Board has jurisdiction to hear the Union’s motion for interim relief. See paragraph 1 above.
2. The parties, in light of OPSEU (Union Grievance) and Ministry of Public Safety and Security, supra, must exchange particulars concerning the motion for interim relief, before this hearing may proceed. See paragraphs 2 to 7 above.
3. At the hearing on the motion for interim relief, the Union may not rely exclusively on the grievor’s affidavit, without calling the grievor to testify. See paragraphs 8 and 9 above.

Issued at Toronto this 3rd day of January 2006