GSB# 2006-1853, 2006-2086, 2006-2389, 2006-2391, 2006-2392, 2007-0218, 2007-0644

UNION# 2006-0599-0007, 2006-0599-0010, 2006-0546-0053, 2006-0546-0055, 2006-0546-0056, 2006-0340-0021, 2006-0340-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Colin et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Mr. Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Omar Shahab Counsel Ministry of Government and Consumer Services

HEARING

April 8, 2008.

Decision

1I am told that six of the seven grievances before me in these proceedings – the grievances in Board Files 2006-2086 (Colin, Frank), 2006-2389 (Findlayter, Amos), 2006-2391 (Shah, Zafar), 2006-2392 (Audho, Yateesh), 2007-0218 (Sharma, Harish) and 2007-0644 (Sharma, Anil) – all concern the outcome of competitions that were conducted together to fill a number of TA4 positions in various of the Ministry’s offices. The parties have agreed that the six competition grievances will be heard together.

2The seventh grievance – Board File 2006-1853 – is an earlier grievance by Frank Colin, one of the grievors in the six competition grievances. Although it does not concern that competition, it raises issues about the adequacy of the Ministry’s efforts to accommodate his disability in the workplace and his competition grievance raises issues about the adequacy of the Ministry’s efforts to accommodate his disability in the conduct of the competition. Thus, they will likely have some factual issues in common.

3To minimize the duplication of evidence about the factual issues that Mr. Colin’s grievances have in common and avoid burdening the hearing of the six competition grievances with evidence relevant only to the other grievance, the parties have agreed that the hearing of the grievance in Board File 2006-1853 will be deferred until after the hearing of the other six is completed. To the extent that evidence heard in relation to Mr. Frank’s competition grievance is relevant to the other, deferred grievance, it will be taken as having been heard by me for purposes of both grievances. Any of the witnesses who give such evidence may be recalled by either party during the hearing of the deferred grievance to be examined or cross-examined, as the case may be, about matters on which they could not have been so questioned during the hearing of the competition grievances – that is, issues of fact relevant in the deferred grievance but not in the competition grievances.

4In what follows I confirm directions given orally at the hearing on April 8, 2008.

5The employer shall produce to union counsel the competition files for the job competitions in issue. Production may be made by delivering copies, or by making originals available for inspection and copying by counsel or his agent at a reasonable place at reasonable times, or by a combination of those methods of production. If any question arises about what documents are part of “the competition files” for purposes of this direction, it may be addressed in a teleconference at the request of counsel for either party.

6Each of the parties shall thereafter provide the other with full written particulars of the allegations of fact on which it relies in these matters, together with copies of any documents in its possession, custody or power (and, in the case of the union, any document in the possession, custody or power of any of the grievors) on which that party may wish to rely in these proceedings.

7With respect to each of the acts and omissions alleged therein, each party’s written particulars shall indicate what was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out in a party’s particulars (exclusive of any conclusory statements or argument) should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit that all of the allegations of fact therein were true. It is not necessary for a party to include in its particulars a description of the evidence by which it will seek to prove the facts alleged. It is not necessary for a party to identify in its particulars any witness to an event in question, unless the presence of that person is a material fact on which the party relies.

8The union’s particulars shall also set out the remedies it seeks with respect to each of the grievances.

9The employer’s particulars shall specifically identify the allegations in the union’s particulars with which it agrees and the allegations with which it disagrees and, as to each allegation with which it disagrees, shall set out the version of the facts on which it relies in that regard.

10In the event that the employer’s particulars raise issues not addressed in the particulars delivered initially by the union, the union may deliver to employer counsel particulars of any additional allegations of fact on which it intends to rely in connection with those new issues and shall provide copies of any additional documents in its possession, power or control (or in the possession, custody or control of any of the grievors) on which it may wish to rely with respect to those reply allegations.

11The deadlines for compliance with these directions are as follows:

a) The employer shall produce the competition files on or before May 9, 2008.

b) The union shall deliver its particulars and copies of the documents on which it may wish to rely on or before July 11, 2008.

c) The employer shall deliver its particulars and copies of the documents on which it may wish to rely on or before September 12, 2008.

d) Delivery of the union’s reply particulars, if any, and copies of the documents on which it may wish to rely in reply, if any, shall be made on or before October 3, 2008.

These deadlines may be modified by agreement of the parties or by further order, bearing in mind that the hearing of the competition grievances is now scheduled to continue on October 20, 2008.

12A party who fails to produce a document or provide particulars of an allegation in accordance with this order may not introduce that document or testimony about that allegation into evidence in these proceedings without leave.

13The provisions of this order do not preclude an application by either party for further directions with respect to particulars or production of documents.

14The parties bear a joint obligation to identify and give adequate notice of these proceedings to every employee whose rights might be adversely affected if any permutation or combination of the remedies sought by the union in the competition grievances is granted. Although the content of the notice was not discussed at the hearing on April 8, 2008, I might be concerned if such notice did not include, at very least, copies of this order and of the particulars delivered by the union pursuant to paragraph [11] b) above.