GSB# 2002-2157, 2003-1260

UNION# 2002-0362-0004, 2002-0362-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Labadie)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Richard L. Jackson

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Yasmeena Mohamed, Senior Counsel George Parris, Counsel Ministry of Government Services

HEARING

April 15, 21 & 22; May 5 &12; June 15 & 16, November 24 & 25; December 5 & 12, 2005; January 4; March 6, 2006.

Decision

This is a fuller version of my ruling on the employer’s request for an adjournment of the hearing dates of March 6 and 7 and, possibly, April 10, a proposal opposed by the union. At the parties’ request and for obvious reasons of necessity, I made an oral ruling after the parties’ submissions on March 6.

The purpose for the requested adjournment was to give the employer an opportunity to have the sealing order on the Labadie family-law file lifted or amended so that the Report of the Children’s Lawyer’s investigation into the Labadie family situation (hereinafter referred to as “the Report”) could be relied upon in this arbitration. The union had argued, in a motion on December 12, 2005, that I should not allow this Report into evidence. In an interim award, dated January 9, 2006, I agreed with the union’s motion, given that the investigation into the Labadie family situation and Report had been ordered by the presiding family-court judge and was now part of a legally sealed file of that case. My award stated that “unless the employer can get the sealing order lifted pursuant to Section 6 (1) of the Courts of Justice Act or by appealing to Judge Olah (who had issued the sealing order), the Report may not be entered into evidence.”

The Ministry acted on this directive and had two court dates set for its request to be heard. Mr. Labadie asked that both dates be adjourned to allow him to find a lawyer to represent him at the hearing on the matter. The employer agreed, and a further date, March 2, was set. Again, Mr. Labadie requested an adjournment, to which the employer agreed but this time only subject to the union’s agreeing to adjourn the previously scheduled arbitration hearing dates of March 6 and 7. The union refused. All of this brought us to arguments on the employer’s motion to adjourn those dates, which I heard on March 6.

The principal thrust of the employer’s logic was that, in order to be in a position to present a proper and full account of its reasoning and decision-making in the termination of the grievor, it must be able to adduce the Report of the Children’s Lawyer and, therefore, should be given a proper opportunity to avail itself of the qualifier I included in my interim award – namely, appeal to the court to lift or modify its sealing order or in some other way allow the contents of the Report into the public forum of this arbitration. Counsel for the employer argued that the Report had had an impact both on the direction of the investigation into Mr. Labadie and the decision to terminate him and, thus, was an integral element in the employer’s case. The employer also argued that it was unfair that twice accommodating Mr. Labadie’s requests to adjourn court dates to deal with its request to open the file – hence delaying the court’s decision on the matter – should now become a basis to deny its request for an adjournment of the arbitration.

The union argued that, given that the employer had known since September of 2004 that the union would object to the entering of the Report, it should have acted before this and, since it had not done so, was now the “author of its own misfortunes”. Second, for a variety of reasons, including delay, the fact that the Ministry of Natural Resources is not likely to be considered by the court to be a party “affected by” the sealing order (and, thus, not entitled, under s 27.14(1) of the Rules of Civil Procedure, to obtain a variance of the sealing order), and the principle of “deemed undertaking”, the appeal to the court was unlikely to succeed in any event and, therefore, any delay for this purpose would serve no useful purpose. Finally, and as context for all of the foregoing reasons, this is a discharge case: Mr. Labadie has been out of his job for a long time and should not be made to suffer further delay for something that the employer should have anticipated long ago and that is unlikely to succeed in any event.

In ruling on the employer’s request, I balanced the prejudice to the grievor of granting the employer’s motion against the prejudice to the employer of refusing it. After doing so, I agreed to the employer’s request for an adjournment of March 6 and 7 and, if necessary, April 10, for the following reasons. First, I concluded that, as a practical matter, the adjournment of these dates was not likely to mean a substantial delay in finishing this case. The parties did not finish their submissions on the motion for adjournment until 2:15 in the afternoon; thus, the date of March 6 was already gone. Counsel for the employer stated that, in the event that I ruled against his motion, he would request a late start on March 7 to re-prepare his witness (in light of not being able to refer to the contents of the Report), a request to which I would have agreed. Thus, March 7 would have been a partial day. Assuming, then, that the situation has still not been resolved by our next scheduled hearing date, April 10, agreeing to the employer’s request would mean a net loss of perhaps slightly more than one and a half hearing days.

A net loss of about one and a half hearing days must be viewed in the context of a case that began on April 15, 2005, that has already taken twelve hearing days, in which we have not finished the employer’s evidence – nor even reached the actual decision to terminate the grievor – and we have not yet heard from either of the principal witnesses for the two parties, much less had the argument phase. Furthermore, at this point, only three dates had been scheduled after April 10 (July 17, August 18, and September 5), obviously not enough time to conclude this case. Whatever happened with respect to the employer’s request for adjournment, then, we were going to require additional hearing dates in the fall and, possibly, into the winter. Losing a day and a half in March and April will have little effect in the ultimate length of the hearing, so the actual prejudice to Mr. Labadie, taken in the context of a long, complex case, is minimal. The fact that, immediately after my oral ruling, we set six new dates, beginning with October 24 and ending with December 14, reinforces my sense that the delay will not have been material.

With respect to prejudice to the employer if their request for adjournment was not granted, I considered the following. This is a highly unusual situation it now finds itself in: it used a document, obtained properly and in good faith, as part of the decision-making process that led to the termination of the grievor; now, however, because of the sealing order and my interim award, it sees itself in a position where it may not be able to tell the whole story. That would be a prejudice, both to the employer and to the process, and the employer deserves a proper opportunity to, literally, “have its day in court” on the matter. It hasn’t yet had that opportunity because it agreed to Mr. Labadie’s two requests for adjournments. Counsel for the union may be correct in his argument that the employer’s petition is likely to be turned down, but that is not for me to judge, just as it was not for me to break the judge’s sealing order and allow the Report’s contents into a public process and forum.

As to the union’s argument that the employer brought about its own misfortunes by virtue of having known about the union’s objection and having done nothing about it, I agree, to a degree. However, this situation – a document being legally acquired, used in decision-making, and only afterwards becoming legally unavailable – was highly unusual, as evidenced by the fact that neither party was able to cite any case directly on point in arguing the union’s motion that the Report should not be allowed. I can at least understand the employer’s not fully anticipating that a document it claims to be so integral to its decision-making might actually not be allowed into evidence. Finally, I am mindful that Mr. Labadie himself has contributed to the delay by virtue of requesting the adjournment of two court dates, to which the Ministry agreed. The aggregate responsibility for delay is thus to some extent a shared one.

In light of these complex reasons for delay, given the highly unusual problem confronting the employer in having a document on which it relied in its decision-making process subsequently placed out of bounds, and bearing in mind the fact that the actual delay to finishing the case in granting the adjournment will not be material, I granted the employer’s request for an adjournment.

Dated at Toronto, this 7^th^ day of April, 2006.