GSB#1981-0407
UNION#2008-0407-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Ross)
Union
- and -
The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Felix Lau
Ministry of Government Services Counsel
HEARING
August 26 and September 2, 2009.
DECISION
1These proceedings arise out of a request by the union that the Grievance Settlement Board convene a further hearing in this file to deal with claims about matters with which the union says the Board remained seised following the two decisions made by the Board (differently constituted) in this matter in 1983.
2In a decision dated April 29, 2009, I ordered that the union provide particulars in writing of the remedies it claims in these reconvened proceedings and of the material facts on which it relies in support of those claims, and that the employer then provide particulars in writing of its objections to the Board’s entertaining the claims set out in the union’s particulars, including particulars of any material facts on which it relied in support of those objections.
3The parties exchanged particulars as ordered. The order did not require that the union respond to the particulars of the employer’s preliminary objections prior to the hearing. It did not either advise the employer that it disputed certain of the employer’s allegations, nor that its response to the preliminary objections would rely on allegations of fact not previously particularized.
4It emerged at the resumed hearing that for purposes of the employer’s preliminary objections each of the parties relies on allegations of fact disputed by the other. These disputed facts include allegations by the union about the procedure followed by the original panel in coming to the second of its two decisions in 1983 and about other alleged events during the ensuing 25 years, allegations on which it evidently does not rely in connection with the claims about which it was required to deliver particulars. Given the nature of the allegations and the time frame to which they relate, it is best that these allegations be fully particularized before the parties attempt to establish or refute them. Employer counsel indicated that in that event he wished to deliver amended particulars.
5Accordingly, on September 2, 2009 I ordered that
a) On or before 5 p.m. Wednesday, September 30, 2009, the employer shall deliver to the union’s counsel amended particulars of its preliminary objections and of the allegations of fact on which it relies in support of those objections, together with copies of any documents in its possession, custody or power upon which it may wish to rely in support of those objections. In addition to the aforesaid documents, in view of representations by the grievor that copies of the exhibits from the 1983 hearings were once in the possession of the Ministry of the Attorney-General, the employer shall also provide to union counsel by that date copies of any copies of the exhibits from the 1983 hearings in this matter that may still be in the possession, custody or power of the Crown in Right of Ontario.
b) On or before 5 p.m. Wednesday, October 28, 2009, the union shall deliver to the employer’s counsel written particulars that explicitly identify the allegations of fact in the employer’s particulars that the union does not dispute, if any, and the allegations of fact that it does dispute and, as to the employer allegations that it does dispute and any other issues it intends to raise with respect to the preliminary objections, set out particulars of the allegations of fact on which it relies, together with copies of any documents in the possession, custody or power of either the union or the grievor upon which the union may wish to rely with respect to the preliminary objections.
c) On or before Wednesday, November 18, 2009, the employer shall deliver to the union’s counsel written particulars of any allegations of fact on which it relies with respect any issue first raised by the union in its aforesaid particulars, together with copies of any additional documents in its possession, custody or power upon which the employer 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.
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 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 with respect to the preliminary objections if the opposite party were to admit that all of those allegations were true for purposes of those objections. 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 may 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.
7A 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 connection with the preliminary objections, without leave.
8These directions do 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 paragraph [5] the party may, instead of providing further copies, unambiguously identify in writing the previously delivered documents on which the party intends to rely.
9The 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. Either party may request a telephone conference with respect to that or any other matter relating to the hearing of the preliminary issues prior to the scheduled continuation dates.
Dated at Toronto this 9th day of September, 2009.