GSB# 2002-2124, 2002-3017

UNION# 2002-0119-0043, 2002-0119-0044

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lariviere)

Union

• and -

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

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

June 29, 2006.

Interim Decision

This interim decision relates to an issue which arose during the hearing on June 29, 2006.

The union had closed its evidence. The employer called Ms. Laurie Snow, among others, during its case in chief. During cross-examination, union counsel referred to the testimony of one of its witnesses, Mr. Christopher Cleave to the effect that he was aware that Ms. Snow had approached the Superintendent Mr. Harry Bartz to relay complaints on behalf of other casual female officers about “rough play-fighting” by Mr. Steve Moore, and asked if she denied that. She replied that she did deny that, and stated that the only time she had approached Mr. Bartz about Mr. Moore was when she accompanied Mr. Cleave to a meeting which Mr. Cleave himself wanted relating to an incident between himself and Mr. Moore. Then the following exchange occurred:

Q. So you deny going to Mr. Bartz on behalf of female staff?

A. Absolutely

Q. Mr. Cleave also testified that other full-time COs such as Ray Lavareau and Dave Parsons were upset with you because you approached Mr. Bartz to complain about Steve Moore – were you aware they were upset?

A. Not at all.

Q. Did either discuss that with you?

A. No. Never. They can’t discuss what isn’t there.

Q. Ever encounter difficulty working with those COs?

A. No.

Q. Any idea what that evidence was about those two officers?

A. Honestly no. I’ve worked a lot with those two. I never heard a complaint.

Following a regular recess, union counsel advised that he had attempted to contact Mr. Lavareau and Mr. Parsons during the recess, but had not been able to contact Mr. Parsons, and that while he did get Mr. Lavareau, he had not been able to get the information he needed to his satisfaction, to be able to cross-examine Ms. Snow. Therefore he requested that the hearing be adjourned in order to enable him to do so. The employer objected and took the position that the union ought to have been aware that Ms. Snow would be denying Mr. Cleave’s assertion that Mr. Lavareau and Mr. Parsons had expressed their displeasure to Ms. Snow, about her going to Mr. Bartz about Mr. Moore’s rough-housing, and that counsel had indicated to Mr. Cleave during cross-examination that Ms. Snow would be so denying. The union’s position was that it had no indication that Ms. Snow would be denying the evidence in question.

I determined that I would be making a ruling based on my notes of the evidence, whether the union could reasonably have known that Ms. Snow would be denying that the two officers were upset with her on the grounds that she had complained to the superintendent about Mr. Moore. Rather than waste the day by adjourning the hearing at that time, I directed that Ms. Snow’s cross-examination and re-examination be completed in all other respects and that, if necessary the witness could be recalled for further cross-examination, depending on my ruling. The employer requested that my ruling be made in writing.

Having carefully reviewed my notes, I find that the union ought not be allowed to recall Ms. Snow for further cross-examination. Based on my notes, I conclude that it was made clear repeatedly that Ms. Snow would deny ever making complaints to Mr. Bartz about Mr. Moore, on behalf of casual officers.

Mr. Cleave, under cross-examination, had testified that Mr. Bartz had summoned him to his office and asked him whether he had any issues with Mr. Moore’s play fighting, and that since Ms. Snow, who was the union representative for casual employees, had gone in to see Mr. Bartz shortly before that he knew that she had made complaints to Mr. Bartz about Mr. Moore. When the employer’s counsel put to him that he had no idea what Ms. Snow may have told Mr. Bartz when she met with him, Mr. Cleave agreed but added that it was not an unreasonable deduction that it was about Mr. Moore.

At that point, the employer’s counsel asked, “What if Ms. Snow says no?”, Mr. Cleave replied: “I know she did, because Ray Lavareau and David Parsons were upset about that. She went to Mr. Bartz about issues. One was about Steve Moore. Those two were full-time officers. Their mood was –if you have a problem with someone, you tell that person – not go to the superintendent.” Then the employer’s counsel put it, “Ms. Snow will say that she did not canvass issues about Steve Moore. That in your case, it was you who went to her about your thumb injury”.

Based on the cross-examination of Mr. Cleave, it was made clear that, except the one time at Mr. Cleave’s own request, Ms. Snow had not approached Mr. Bartz to complain about Mr. Moore on anyone’s behalf. It therefore, should have been obvious that Ms. Snow would not be agreeing that Mr. Lavareau and Mr. parsons were upset with her for complaining to Mr. Bartz about Mr. Moore, since she was denying she did that in the first place.

For all of these reasons, the union will not be permitted to recall Ms. Snow for any further cross-examination.

Dated this 30^th day of June 2006 at Toronto, Ontario