GSB#2005-1363
UNION#2005-0549-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Hepplestone)
Union
- and -
The Crown in Right of Ontario (Ontario Science Centre)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Ed Holmes Counsel Ryder Wright Blair & Holmes LLP
FOR THE EMPLOYER
Paul Meier Counsel Ministry of Government Services
HEARING
May 1, 2006, February 1 & 2, 2007
Decision
The grievor alleges that he was improperly surplused.
The union has indicated that there is a multiplicity of positions, which the grievor could have assumed rather than being laid off. The employer asserted that the union ought to be limited to pursuing a single position on behalf of the grievor. Without resolving that dispute, the parties agreed that, for the initial phase of these proceedings, the union would identify a single position for which it asserts the grievor was qualified. It has done so and the employer contests the grievor’s capability to meet the minimal requirements of that position. The crux of the issue at this stage of these proceedings is whether the grievor meets the basic requirements of the position.
At the conclusion of the Union’s evidence on the issue, the employer moved for a non-suit. The union consented to the motion being argued without any need for the employer to be put to its election.
There was no dispute between the parties as to this Board’s general approach to non-suit motions. Both parties referred to the decision of the Board in Re Whan et al. 2003-3446 (Dissanayake) in which the following was outlined (at page 2 et seq.):
The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.
In the context of the foregoing and having considered the evidence, the authorities cited and the submissions of the parties, I am satisfied that, without commenting on its quality, reliability or credibility, some evidence exists to support the union’s claim.
The employer’s non-suit motion is hereby dismissed.
Dated at Toronto, this 8th day of February, 2007.