GSB#2006-1932

UNION#2006-0211-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barillari)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers & Solicitors

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

August 28, 2008.

Decision

The merits of the case presently before me involve a grievance by Ms. Rosie Barillari alleging that she was “dismissed without just cause”. In a ruling date Apri110, 2008, I determined that this forum, that is, the Grievance Settlement Board, was an appropriate forum to address issues concerning the termination of Ms. Barillari including any issues which might arise relevant to the Human Rights Code of Ontario. The matter was subsequently scheduled to proceed, however, the Employer challenged the insufficiency of particulars provided by the Union with respect to its challenge to the Grievor’s termination. Accordingly, upon hearing submissions from counsel, I issued an Order on July 21, 2008 directing the Union to provide particulars as stipulated in that Order. The matter was then to proceed on August 28th, 2008. However, on what was almost the eve of that hearing, Union counsel, Mr. Tim Hannigan, contacted the Grievance Settlement Board via e-mail seeking to have established a teleconference with myself, Vice-Chair Joseph Carrier, and Employer counsel, Ms. Ferina Murji in order to pursue a request for a change of venue for these proceedings. I was unable to accommodate the request for a teleconference on August 27th. Accordingly, amongst other things, the Union pursued its request for the change of venue at the hearing on August 28th, 2008. This Award concerns the disposition of the Union’s request for a change of venue from Toronto to the Niagara area.

By way of background, the Grievor, Ms. Barillari, has attended before me here in Toronto on several occasions in the past in reference to the grievance now before me. Furthermore, Grievance Settlement Board records indicate that she had attended for other matters at the Grievance Settlement Board in Toronto before other Vice-Chairs on a multitude of occasions within the last couple of years.

On behalf of the Union, Mr. Hannigan identified the following factors to be considered in pursuance of the motion to change venue to Niagara Falls:

1. The workplace is in the Niagara area.

2. Although the Union had no immediate plans to call witnesses from that area, in the event it deems it advisable to do so in response to the Employer’s case, a Niagara area venue would be more convenient than Toronto.

3. Since the workplace is in the Niagara area, it would be more convenient to the Employer, its advisors and witnesses to have a Niagara venue.

4. The Grievor resides in Niagara Falls.

5. The Grievor’s mode of transport to Toronto on numerous occasions in the past for Grievance Settlement Board proceedings including those attendances in relationship to this matter has been by way of bus or motor coach.

6. The bus ride to and from Toronto is approximately two hours in duration and may be substantially more than that depending on road and weather conditions, in particular, during the winter season.

7. The Grievor’s travelling experience in the past led her to ask the Union to request a change of venue from Toronto to Niagara Falls.

8. Before pursuing this request on behalf of the Grievor, Mr. Hannigan sought and received a medical note from the Grievor in support of her request for a change of venue.

9. The Union reviewed the medical information provided by Ms. Barillari and was satisfied that it would support a request to move the venue closer to the Grievor’s residence, that is, it supported less travel for the Grievor.

10. Mr. Hannigan sought consent from Employer counsel to a change of venue from Toronto to Niagara Falls.

11. Ms. Ferina Murji on behalf of the Employer sought to review the medical note in order that the Employer might make an informed decision.

12. Mr. Hannigan sought the Grievor’s consent to disclosure of the medical note to the Employer. Apparently the medical note disclosed information amongst other things concerning a diagnosis which the Grievor preferred to keep confidential. It is apparently her view that any obligation with respect to disclosure in this case is trumped by her right to privacy with respect to this medical note.

13. On her instructions, Mr. Hannigan declined Ms. Murji’s request for disclosure of the medical document. There was no offer to provide the note with the diagnosis deleted or masked.

14. Ms. Barillari has suffered no new or recent injury nor has there been a recent or new diagnosis of any condition from which she might be suffering. However, the medical note discloses some clarifying information concerning some past or pre-existing condition.

15. The Grievance Settlement Board Rules of Procedure provide as follows under the heading Location of Hearings:

“On request of the parties, hearings shall be held where the parties agree. In the event of disagreement about the location, it shall be determined by the GSB.”

It is the Union’s position that the Grievor ought not to be subjected to further physical pain or an exacerbation of an existing injury. The continuation of trips to Toronto via bus to attend proceedings here will impact upon her physical health and possibly upon her quality of life. In the circumstances, it was Mr. Hannigan’s position that the balance of convenience, taking into consideration the Grievor’s medical condition, favoured a change of venue to the Niagara area. With respect to the manner in which arbitrators deal with issues of venue Mr. Hannigan referred us to a Grievance Settlement Board case between the Crown in Right of Ontario (Ministry of Health) and OPSEU (James L. Heath) before Arbitrator R. L. Verity, Q.C. released on November 18, 1982 pursuant to GSB File # 424/82. We were also referred to Re Westfair Food Ltd. and UFCW, Local 401 (Loxam) (2005), 2005 CanLII 94070 (AB GAA), 142 L.A.C. (4th) 367.

On behalf of the Employer, Ms. Ferina Murji offered the following factors for consideration:

1. There have been several days of hearing in this matter and only now and almost on the eve of what was to be the first day of hearing on the merits, this request came forward.

2. The employer has been accommodating of other needs of Ms. Barillari with respect to the hearing environment. Before this issue was raised but during the time frame leading up to this day of hearing, the Parties had discussed and agreed to make arrangements within the hearing room to accommodate another handicap of the Grievor. That this latest issue has been raised at this late date and with little or no notice whatsoever must cast doubt upon the legitimacy of the Grievor’s needs regarding an alternative venue.

3. Although the workplace is situate in the Niagara area, one of the Employer’s key witnesses resides in Toronto and another in Hamilton. Furthermore, the Employer would prefer to proceed in Toronto for its own reasons as well as to accommodate counsel herself. Ms. Murji enjoys a very young family and a change in venue to Niagara might necessitate her withdrawal from the case or accommodation requirements which would significantly impact upon the daytime hours available for proceedings in that venue.

4. Proceedings before the Grievance Settlement Board normally take place in Toronto unless there are special reasons to change that venue.

5. The balance of convenience in this case favours Toronto as the appropriate venue unless there are compelling reasons to move to Niagara.

6. There is no evidence whatsoever aside from the Grievor’s assertion and Mr. Hannigan’s assurance that Ms. Barillari suffers any medical condition whatsoever which requires a change in venue.

7. Ms. Murji argued that the Grievor must produce the medical report or note so that it may be subjected to the scrutiny of the Employer as to issues such as the credentials of the physician and the need for accommodation including the possible consequences to the Grievor if the matter were to continue in Toronto as in the past.

8. There is no assertion that there has been any change in a pre-existing condition suffered by the Grievor nor is there any assertion let alone evidence that the past attendances in Toronto have exacerbated any such pre-existing condition.

9. In all the circumstances Ms. Murji asserts that the balance of convenience favours the Toronto venue. Further, there is no medical evidence of any handicap suffered or being suffered by the Grievor which would necessitate an accommodation such as the change of venue to Niagara.

THE DECISION I have considered the relevant factors and the submissions of counsel and I am satisfied that the balance of convenience continues to favour Toronto as the appropriate venue for proceedings in this matter.

I do not propose to outline all the reasons for that determination, however, the following are the most significant:

1. Jurisprudence submitted by both counsel indicate that there is no absolute rule as to the appropriate venue. Rather, it is typically a matter which is not disputed between the Parties but, if challenged, is resolved upon a weighing up of the balance of convenience to both Parties.

2. In this case, the Employer favours the Toronto venue and indeed the needs of the Employer’s witnesses and counsel in particular favour that venue.

3. Aside from the Grievor herself, there is no person who will be inconvenienced by the Toronto venue except for unidentified and hypothetical witnesses the Union might determine are necessary at some later date in proceedings.

4. The Grievance Settlement Board itself typically schedules proceedings in Toronto, not simply for its own convenience, but for the benefit of the Parties. The expenses of maintaining offices and board rooms in Toronto is not a small one and the responsibility for that falls upon the Parties jointly. In the circumstances, Toronto is in a sense, the default venue for Board proceedings. In the event an alternative venue is selected, board room costs and travel expenses of the Board Vice-Chairs etc. must be taken into consideration. Those costs, of course, are but one of the various elements to be considered.

5. A medical condition of any person involved in proceedings which requires accommodation would likely trump other considerations in certain circumstances. Indeed, since a Grievor is entitled to participate in all aspects of his or her grievance, a medical accommodation might require an entire change of venue as requested by the Grievor in this case. However, in order for the balance of convenience to tip against other factors in favour of such a claim, the medical need for the accommodation must be clear. It is not enough, in my view, that one person, even a Grievor might be discomforted but for a change in venue. Rather, the need should be clearly established by way of some form of medical evidence which would stand up to reasonable scrutiny. In this case, the assertions of the Grievor that she requires an accommodation and the assurances of her counsel that she would benefit somehow from the change in venue are not sufficient to weigh against the other factors which favour continuation of proceedings in Toronto. While we do not doubt that Mr. Hannigan would not have advanced the request without himself being satisfied that there was some need for the change, both the Employer and the Board are entitled to assess the medical information in order to determine from their own perspectives the nature and extent of the needs of the person who seeks such an accommodation.

6. In this case, there is no basis upon which to consider a change of venue from Toronto to Niagara. The balance of convenience clearly favours Toronto. The refusal of Ms. Barillari to provide medical information in support of her request for accommodation renders that factor a nullity.

In summary, the balance of elements considered favours the continuation of the Toronto venue in this case. There is insufficient information and/or evidence available to substantiate the need for a medical accommodation for the Grievor which might otherwise tip the balance of convenience in favour of a change of venue to Niagara. In the circumstances, the Union’s motion is dismissed.

Dated at Toronto, this 23rd day of September, 2008.