GSB# 2007-2599

UNION# 2007-5107-0035

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kanagarajah)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Ernest A. Schirru Koskie Minsky LLP Barristers & Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

June 18, 2008.

Decision

1This grievance concerns the termination of the grievor’s employment for what the employer alleges was just cause. Counsel for the parties agree that before the hearing of this grievance on the merits commences there should be an exchange of particulars and production of documents in accordance with this order.

2Accordingly, each of the parties shall provide the other with full written particulars of the material facts on which it relies in this matter, in accordance with the timetable and additional requirements hereafter set out. Each party shall also provide the other with copies of any documents (and in this order “documents” means any record of information in whatever form, physical or electronic, that record may take) that are in its possession, custody or power on which that party may wish to rely in these proceedings. The union shall also produce any documents on which it may wish to rely that are in the possession, custody or power of the grievor.

3With respect to each act or omission alleged therein, each party’s written particulars shall state what it says 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 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 those allegations of fact were true. It is not necessary for a party to include in its written particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out. It is not necessary for a party to identify in its particulars any witness to an occurrence in question unless the presence of that particular person on that occasion is a material fact on which the party relies.

4The parties’ particulars and productions shall be delivered in accordance with the following:

a) On or before Friday, July 4, 2008, the Employer shall deliver to the Union’s counsel its written particulars of the factual allegations on which it relies, and together with copies of any documents in its possession, custody or power upon which it may wish to rely.

b) On or before Friday, August 1, 2008, the Union shall deliver to the Employer’s counsel written particulars that explicitly identify the allegations of fact in the Employer’s particulars that the Union does not dispute, if any, and the allegations of fact that it does dispute and, as to the allegations that it does dispute and any other issues it intends to raise, set out the allegations of fact on which the Union relies in that connection, together with copies of any documents in its or the grievor’s possession, custody or power upon which it may wish to rely. The Union’s particulars shall also state what remedies are sought in these proceedings.

c) On or before Friday, August 22, 2008 the Employer shall deliver to the Union’s counsel written particulars of any allegations of fact on which it relies with respect any issue first raised by the Union in its particulars, together with copies of any additional documents in its possession, custody or power upon which the it may wish to rely in that regard.

If the need arises, these deadlines may be modified by agreement of the parties or further order of the Board.

5In addition to any documents on which it may wish to rely, the Employer shall deliver copies of the documents hereafter described within the time and in the manner specified in paragraph 4(a) above:

(a) any and all documentation pertaining to the Grievor that is relevant to the Grievor's termination; and,

(b) any and all medical documentation in its possession, custody or power pertaining to the Grievor’s requests for accommodation.

With respect to paragraph (b), I note that the union has indicated that it will be taking the position that the employer’s handling of the grievor’s requests for accommodation is relevant to its response to the employer’s claim that it had just cause to discharge the grievor, and that the medical documentation sought is relevant to that issue.

6A party who fails to produce a document or to provide particulars of an allegation in accordance with this order may not introduce that document or present evidence about that allegation in these proceedings without leave.

7The provisions of this order with respect to production of documents do not preclude an application by either party for an order requiring the production by the other of additional documents once the issues in dispute have been defined by the exchange of particulars and documents contemplated by this order.

8I note that there is an issue concerning the relevance of certain alleged post-discharge conduct by the grievor and the production of documents evidencing or otherwise relevant to that conduct. The relevance of that conduct and those documents will depend, at least in part, on whether certain of the employer’s allegations about the grievor’s pre-discharge conduct are disputed by the union, including the employer’s allegation that grievor the would have continued to engage in conduct for which he was ultimately discharged despite any other discipline short of discharge that the employer might have been imposed. The relevance of the alleged post-discharge conduct and related documents may also depend on whether the grievor seeks reinstatement in these proceedings. Until it is apparent from its particulars what allegations the Union disputes and what remedies it seeks, it is premature to address the issues concerning post-discharge conduct. Accordingly, and notwithstanding the preceding provisions of this order, the employer is not required to particularize those allegations or produce those documents at this time. This issue may be revisited at the request of either party after the union has delivered its particulars.

9Union counsel may review with the Grievor and the Union the contents of documentation produced to him by the Employer pursuant to this order, but shall not provide the Grievor with any copies thereof. By requesting and having its counsel receive such documents, the Union undertakes on its own behalf and on behalf of the grievor that those documents will only be used by the Union, its counsel or the Grievor in connection with and for purposes of this proceeding and for no other purpose. The Union, its counsel and the grievor are ordered to abide by that undertaking and to keep the contents of all such documentation confidential except as necessary for purposes of this proceeding.

10Having regard to the nature of the issues in this proceeding, the Grievor shall not contact nor attempt to contact any employee of the Employer, or any contractor previously retained by the Employer to discuss the content of any document produced by the Employer pursuant to this order. Any such enquiries are to be made, if at all, through and by the Union and its counsel or authorized representatives.

11I note that a breach of the provisions of either of the previous two paragraphs may have serious consequences, which could include incarceration or other punishment for contempt and/or dismissal of this grievance.