GSB# 2003-3442, 2005-0722, 2005-1480

UNION# 2003-0456-0001, 2005-0456-0001, 2005-0456-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Richard L. Jackson

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Meredith Brown Counsel Ministry of Government and Consumer Services

HEARING

October 11, 2006; March 27, 2007 and January 4, 2008.

Decision

This is a preliminary award dealing with the procedural question of which party should present its evidence first in a case involving the Sir James Whitney School for the deaf, located in Belleville. The issue the Union is grieving is a change in the employment status of a number of night-duty counsellors in the students’ residences from Classified, Schedule A to Unclassified, Seasonal employees. Given the time element, with our next hearing date scheduled for early March, this will be a brief decision.

The originating need for the change, according to the Employer, was the 1991 changeover from a residential week of seven days to one of five days, which obviously required fewer total hours of night-duty residential counsellor work. As a result of the reduction of the live-in week from seven to five days, the Employer began replacing Classified, Schedule A Residential Counsellors – doing so gradually, as they resigned or retired – with Seasonal employees, and it is this shift from Classified to Seasonal status that the Union grieves.

This case started out with two days of hearings devoted solely to the Employer’s preliminary objection that the GSB was without jurisdiction to hear this case, on three different bases that are not relevant here. On the basis of those two days of hearings on the jurisdictional issue, including a brief oral agreed statement of fact, my sense of what had actually happened by way of changes was very simple:

• Up to 1991, with students residing at the School seven days per week, each of four Schedule A Residential Counsellors worked five 10-hour shifts in each of four student residences. They thus worked a 50-hour week but only for the duration of the School year.

• With the move to a five-day residence week, the Employer gradually changed to a system whereby four Seasonal, Non-Classified, Residential Counsellors each worked four 10-hour shifts in one of the four residences, with the fifth night in each of the residences being covered by a fifth Seasonal Residential Counsellor who worked one 10-hour shift in each of the four residences. They thus worked a 40-hour week.

As I worked through the jurisdictional arguments, however, a number of questions of fact arose. I put these to the parties, which, in turn, generated an exchange of e-mails. As a result, it became increasingly clear that the factual situation was much more complex than I had thought at first, and indeed, I was no longer completely confident that the parties actually did agree on the facts. It thus became evident that the jurisdictional question could not be decided without my first hearing the merits, in order to determine exactly what the employer, in fact, had done and, indeed, what the Union was grieving. This, then, brings us to the procedural issue of which party should present its evidence first.

In support of their positions, counsel provided a number of decisions, from both the GSB and the private sector, for my assistance. While this award, in the interests of time, does not go through these in detail, I did consider them, as well as the excellent arguments of counsel. Suffice it to say that the Union argues that, as a matter of efficiency and convenience, the Employer should proceed first since it is in possession of all of the facts, while the Employer takes the opposite position: the Union should proceed first and must bear the onus.

Counsel for the Employer argued the basic principle that “he who asserts must prove”. I agree, and requiring the Employer to lead its evidence first may seem to go counter to that principle in that the Union does not start by setting out for the respondent the case it has to meet. But, as the case law and common sense both make clear, there is no absolute and immutable rule with respect to the connection between order and onus; order does not necessarily follow onus. There are numerous decisions on record where, for the sake of fairness or efficiency or both, one party is asked to proceed first while the other party still bears the onus.

In my view, this is such a case. The events in question run from 1991 through to 2003, and they concern multiple decisions with respect to complex staffing and scheduling systems, all set in the context of a unique work environment. While the Union no doubt has much of the information required to clarify the facts, there can be no question that, having made the decisions in question, the Employer, with its resources and files, is in a far better position to do this. Thus, simply as a matter of efficiency, it makes most sense for the Employer to proceed first with its evidence.

I want to make it clear that this decision explicitly decouples order and onus, and does not absolve the Union of its responsibility to satisfy that onus. Given this fact, not to mention its right of calling reply evidence, this procedure should not create any unfairness for the Employer. On the other hand, it should bring about a much more expeditious and efficient hearing.

Thus, the Employer is directed to proceed first with its evidence when we reconvene, but with the Union still bearing the onus of proof. Once the evidence and arguments have been heard and the facts determined, I will of course put my mind first to the question of jurisdiction. Should I decide that I have proper jurisdiction, I will proceed to consider the merits.

Dated at Toronto this 17th day of January, 2008.