GSB#2008-3994

UNION#2008-0205-0161

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Deprophetis)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Danny Kastner Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

George Parris Ministry of Government Services Counsel

HEARING

March 16 and March 17, 2010.

Decision

1The Board is seized with a grievance dated November 28, 2008 filed by Mr. Steven Deprophetis, who is employed by the Ministry of Labour as an Employment Standards Officer. For purposes of this decision, it is not necessary to review the detailed statement of grievance, other than to note that the grievance alleges harassment and discrimination.

2At the commencement of the hearing on February 11, 2010, employer counsel advised the Board that although he was not satisfied that the union had fully particularized its case, he had agreed with union counsel that the union can “fill in the particulars” through the testimony of the grievor, and therefore, the hearing could proceed.

3Opening statements were received, and the union commenced its case by calling the grievor. At the end of the day union counsel advised that the examination-in-chief of the grievor was complete, except that he reserved the right to examine the grievor further, following disclosure of some information he was waiting for from the employer.

4When the hearing resumed on March 16, 2010, employer counsel moved that the grievance be dismissed on the grounds that the particulars provided by the union, as supplemented by the testimony of the grievor, do not disclose a prima facie violation of the collective agreement or the Ontario Human Rights Code. This motion was argued on March 16 and 17 of 2010.

5Employer counsel proceeded to argue that the particulars nor the testimony of the grievor in-chief, even if accepted as true, could not possibly amount to a violation of either the collective agreement or any statute. Union counsel’s primary response was that the employer’s motion was in effect a non-suit motion, and that since the union had not closed its evidence yet, it was premature. He urged the Board to deny the motion on that basis alone.

6In the alternative, union counsel submitted that if the Board disagrees that the motion was premature, the Board should treat the motion as a motion for non-suit. He advised that for that purpose the union would not be putting the employer to an election, and went on to argue that applying the arbitral principles relating to non-suit motions, the employer’s motion should be denied. It was his view that the union’s evidence does establish a prima facie case for the employer to meet.

7In reply, employer counsel disagreed that the motion was premature. He emphasized that this was not a non-suit motion. Rather, it was a motion based on the failure of the particulars to support a prima facie violation. Since all of the particulars were in, the motion was not premature. Indeed, he submitted that if the instant motion is denied, the employer should be free to bring a non-suit motion at the closing of the union’s case.

8It is important to note the stage of the proceeding at which the instant motion was brought. Opening statements had been completed. The union had commenced leading its evidence. Its first witness was on the stand and his examination-in-chief was yet to be completed. While union counsel had indicated during his opening statement that he did not at the time contemplate calling any witnesses besides the grievor, employer counsel conceded that the union may call further witnesses if it decides to do so.

9In the circumstances, I find that the motion must fail. If the motion is viewed as a motion for dismissal due to the inadequacy of the particulars, as the employer characterizes it, then it is simply too late. Such a motion should have been brought prior to the commencement of the union’s evidence. The employer is not entitled to make such a motion in the middle of the union’s case.

10On the other hand, if the motion is viewed as a non-suit motion, as the union contends, it clearly is premature. Such a motion may be made only after the closing of the union’s case. Therefore, in either case the motion is untimely.

11I find no reason, having denied the instant motion, to deny the employer’s usual entitlement to move for non-suit at the end of the union’s case, if it decides to do so with appropriate notice to the union.

12In light of the foregoing disposition, it is unnecessary to review the detailed submissions of the respective counsel, as to whether or not the particulars disclose a prima facie violation.

The hearing shall continue on days fixed by the Registrar. I remain seized with this matter.