GSB# 2007-2737, 2007-2738, 2007-2739, 2007-2740, 2007-2741, 2007-2742, 2007-2743, 2007-2744, 2007-2745, 2007-2746, 2007-2747, 2007-2748, 2007-2749, 2007-2750, 2007-2751, 2007-2752, 2007-2753, 2007-2754, 2007-2755, 2007-2756, 2007-2757, 2007-2758, 2007-2759, 2007-2760, 2007-2761, 2007-2762, 2007-2763, 2007-2764, 2007-2765

UNION# 2007-0517-0142, 2007-0517-0143, 2007-0517-0144, 2007-0517-0145, 2007-0517-0146, 2007-0517-0147, 2007-0517-0148, 2007-0517-0149, 2007-0517-0150, 2007-0517-0151, 2007-0517-0152, 2007-0517-0153, 2007-0517-0154, 2007-0517-0155, 2007-0517-0156, 2007-0517-0157, 2007-0517-0158, 2007-0517-0159, 2007-0517-0160, 2007-0517-0161, 2007-0517-0162, 2007-0517-0163, 2007-0517-0164, 2007-0517-0165, 2007-0517-0166, 2007-0517-0167, 2007-0517-0168, 2007-0517-0169, 2007-0517-0170

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Duffy et al.)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Simon Heath Counsel Ministry of Government and Consumer Services

TELECONFERENCE

February 7, 2008.

Decision

1Some correctional officers (“COs”) at three correctional institutions in Toronto were absent from scheduled work and claimed they were ill on one or more of October 5, 6 and 7, 2007. The employer required that they all provide medical certificates to justify their claims. In a decision dated January 17, 2008, Vice-Chair Keller found on the facts put before him that the employer had not had the right to impose that blanket requirement. He did not remain seised with the matter of remedy, which was remitted to the parties.

2The union and employer have not been able to agree on the compensation, if any, to which COs who did obtain and provide a medical certificate in response to the impugned requirement are entitled with respect to the time and money they expended in doing so. The parties have referred that dispute to me for determination.

3Counsel for the parties have agreed on a pre-hearing exchange of particulars and productions in accordance with the requirements and timetable hereafter set out.

4For each CO from whom the employer received a medical certificate in response to the requirement referred to in paragraph [1], the employer shall provide the union with

• a copy of the medical certificate,

• copies of any records showing the hours and dates of shifts worked by the CO during the seven calendar days before and the seven calendar days after the date of the certificate, and

• if the name of the CO to whom the aforesaid documents relate is not clear from those documents, any other documents in its possession, custody or power that identify the CO.

If the employer has an existing document or documents listing all the COs from whom the employer received a medical certificate in response to the requirement referred to in paragraph [1] and no privilege is claimed therefor, it shall also produce that document or those documents; if not, it is encouraged but not required to create and provide such a list to the union.

5Each party shall provide the other with full written particulars of the material facts on which it relies in this dispute and 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 respect of this dispute. The union shall also produce any documents on which it may wish to rely that are in the possession, custody or power of any employee on whose behalf it makes a remedial claim in this dispute. This direction does not require that a party deliver copies of documents that it has already copied to the other in the course of and expressly for the purpose of these proceedings: as to such documents the party may, instead, unambiguously identify in writing the previously delivered documents on which the party intends to rely.

6With 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 any occurrence in question, unless the presence of that particular person on that occasion is a material fact on which the party relies.

7Without limiting the generality of the foregoing, the particulars to be delivered by the union shall identify by name each CO on whose behalf it makes a remedial claim in this dispute, and for each such CO shall identify

• the GSB File number of the grievance under which the claim is made,

• the date, starting time, duration in time and nature of activities of each period of time for which compensation for time spent is claimed for that CO, and

• the date incurred, nature and amount of each expense for which compensation or reimbursement is claimed for that CO.

The documents produced by the union shall include any notes, receipts or other documents in the possession, custody or control of any such CO on which the union may wish to rely in connection with any allegation of fact of the sort referred to in the previous sentence. The union shall also provide copies of the grievances referred to in the first bullet point above.

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

a) On or before March 7, 2008, the employer shall delivery to union counsel the documents referred to in paragraph [4] above.

b) On or before April 7, 2008, the union shall deliver to the employer’s counsel its written particulars of the factual allegations on which it relies, copies of the documents referred to in paragraph [7] and any other documents upon which it may wish to rely.

c) On or before May 5, 2008, the employer shall deliver to the union’s counsel its written particulars, explicitly identifying the allegations of fact in the union’s particulars that the employer 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, setting out the allegations of fact on which it relies in that connection, together with copies of any documents upon which it may wish to rely.

d) On or before May 26, 2008 the union shall deliver to the employer’s counsel written particulars of any allegations of fact on which it relies with respect any issue first raised by the employer in its particulars, together with copies of any additional documents upon which the union 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.

9A 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.

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 once the issues in dispute have been defined by the exchange of particulars and documents contemplated by this order.