GSB#2008-2097

UNION#2008-0510-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sharpe)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Don Martin Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Counsel

HEARING

March 6, 2009.

Decision

1Having attempted unsuccessfully to arrive at a mediated settlement in this matter, the parties agree that they should exchange particulars and productions prior to the arbitration of this dispute. On consent, I order as follows.

2Each 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. The union’s particulars shall also set out the remedies that it seeks in these proceedings.

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 unidentified or 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 anticipated witness testimony or other 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 a material fact on which the party relies.

4Without limiting the generality of the foregoing, the particulars provided by the union shall include particulars of any acts or omissions on which it relies to demonstrate that the alleged conduct of those acting on behalf of the employer was intended by them to discriminate, or resulted in discrimination, on a ground prohibited by Article 3 of the collective agreement or by the Ontario Human Rights Code.

5Each 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}. 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, for purposes of what follows the party may, instead, unambiguously identify in writing the previously delivered documents on which the party intends to rely.

6In addition to the foregoing, the employer shall provide the union with copies of all documents in its possession, custody or power relating to the timing of and reasons for the decision to match the grievor to a position in North York, the timing of clearance and posting of job competitions HLC774/07, HLC472/07 and HLC177/08, and the timing of the decisions on successful candidates and the timing of acceptance of offers in those competitions.

Timetable and additional requirements

7The parties’ particulars and productions shall be delivered in accordance with the following:

a) On or before May 22, 2009, the employer shall deliver to the union’s representative copies of the documents specifically identified in paragraph [6] above.

b) On or before June 19, 2009, the union shall deliver to the employer’s counsel its written particulars of the allegations of fact on which it relies, and together with copies of any documents upon which it may wish to rely.

c) On or before July 24, 2009, the employer shall deliver to the union’s representative written particulars that explicitly identify 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, set 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 August 14, 2009, 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.

8These deadlines may be modified by agreement of the parties or further order of the Board.

Other

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.