GSB#2008-1460

UNION#2008-0499-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Thomas)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Val Patrick Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Dan Palayew Counsel Heenan Blaikie LLP Barristers and Solicitors

HEARING

November 14, 2008.

Decision

1The employer terminated the grievor’s employment on June 11, 2008, on grounds set out in its letter to him of that date. He grieved that he had been dismissed without just cause contrary to the parties’ collective agreement. The union has referred that grievance to arbitration.

2The union says that after the grievance was filed it asked the employer for particulars of the alleged grounds for termination and for production of an investigation report on which the employer apparently relied. It alleges that the employer failed to provide such particulars or production during the grievance procedure, and that the failure continued until the first hearing date in this arbitration, when employer counsel indicated a willingness to provide such particulars and production.

3Article 27(c) of the parties’ collective agreement provides:

c) (i) If requested, the Employer shall provide the Union with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedure.

(ii) If requested, the Union shall provide the Employer with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedure.

The union says that the employer’s failure to provide particulars when asked during the grievance procedure was a breach of its obligation under this provision. It takes the position that the consequence of that breach should be that this grievance be allowed and the grievor be reinstated with full compensation. As I understand it, the disposition of the grievance in this matter would be result of the employer’s being denied the right to rely in these proceedings on any of the allegations that it failed to particularize when asked to do so. The union further says that this should be the consequence whether or not the employer’s alleged failure to provide particulars in the course of the grievance procedure has caused or may have caused either it or the grievor any identifiable prejudice in these proceedings. The issues of whether there was a breach of Article 27(2)(i) and, if so, whether the consequence of the breach should be as the union contends (both of which are in dispute) are referred to hereafter as the “denial of particulars issue.”

4The parties agree that full particulars and productions should be exchanged on the merits and the denial of particulars issue before the hearing proceeds with respect to either issue. The parties agree that any issue relating to the nature or quantum of any loss the grievor may have suffered as a result of the dismissal, including any issue as to the adequacy of his efforts to mitigate that loss, should be deferred until after it is determined whether the employer is liable to compensate such loss in whole or in part. It follows that no particulars need be provided on those deferred issues at this stage.

5Each 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 provide copies of any documents on which it may wish to rely that are in the possession, custody or power of the grievor(s).

6With respect to each act or omission alleged therein, each party’s written particulars shall state what it alleges 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 and do not constitute particulars for purposes of this order. 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 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; this order does not require that the parties provide witness “will say” statements in addition to its particularized allegations of fact. 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 itself a material fact on which the party relies.

7In addition to documents on which it may rely, the employer shall also produce to the union copies of the following documents in so far as they are in its possession, custody or control:

a) any written statements given by employees who were interviewed or provided information that in any way may be arguably relevant to the allegations against or about the grievor on which the employer relies;

b) the full report prepared by Ms. Janet Naidu, and interview notes of all witnesses interviewed in connection therewith, including notes of interviews with Gary Bettincourt, Karen Bradden, Kevin Charlebois, Lydia Hallaway, Meagan Morley, Jason Naufald, Rob Porter, Andrena Skiffington, John Sykes, Holly Wright; and,

c) records of any statements made by Fran Carmichael.

8The parties’ particulars and productions shall be delivered in accordance with the following agreed-upon timetable:

a) On or before December 19, 2008, the employer shall deliver to the union’s representative written particulars of the allegations of fact on which it relies to justify the discharge, together with copies of any documents on which it may wish to rely in connection with those allegations and copies of the documents referred to in paragraph [7];

b) On or before January 30, 2009, the union shall deliver to employer counsel

i. written particulars setting out the allegations of fact on which it relies in connection with the denial of particulars issue,

ii. particulars identifying the allegations in the employer’s particulars with which it agrees, if any, and the allegations with which it disagrees and, as to the allegations with which it disagrees, any allegations of fact on which it relies in that connection along with particulars of any allegations of fact it proposes to make with respect to any other issue it proposes to raise with respect to the merits of the discharge grievance; and

iii. copies of any documents on which it may wish to rely in connection with any of the allegations it has made or responded to in the particulars referred to in subparagraphs i. and ii. of this paragraph;

c) On or before February 27, 2009, the employer shall deliver to the union’s representative

i. written particulars with respect to the denial of particulars issue, identifying the union allegations on that issue with which it agrees, if any, and the union allegations with which it disagrees and, as to the allegations with which it disagrees, the allegations of fact on which it relies in that connection along with particulars of any allegations of fact on which it will rely with respect to any other issue it proposes to raise concerning the denial of particulars issue,

ii. any additional allegations of fact on which it may wish to rely in reply on any issue of fact first raised in the union particulars referred to in subparagraph b) ii. above; and

iii. copies of any documents on which it may wish to rely in connection with the allegations first made or responded to in the particulars referred to in this paragraph; and,

d) On or before March 13, 2009, the union shall deliver to employer counsel

i. written particulars of any additional allegations of fact on which it may wish to rely in reply on any issue of fact first raised in the employer particulars referred to in paragraph c) i.; and,

ii. copies of any documents on which it may wish to rely in connection with the allegations first made or responded to in the particulars referred to in this paragraph.

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

9A party who fails to produce a document or to provide particulars of an allegation in accordance with this order may not thereafter introduce that document or present evidence about that allegation in these proceedings without leave.

10The 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.

11The hearing in this matter is scheduled to continue on April 16 and May 26 and 27, 2009. The question whether the denial of particulars issue should be heard and determined before or together with the merits is deferred until after particulars are exchanged. If the parties are unable to agree on that question, then it may be addressed in a teleconference before April 16th or, if that is not possible, at the opening of the hearing on April 16th. In the latter event, the parties should come to that hearing prepared to proceed in either manner.