GSB#2007-0631

UNION#2007-0375-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Crowley)

Union

• and -

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

Employer

BEFORE

Belinda A. Kirkwood

Vice-Chair

FOR THE UNION

Ernest A. Schirru Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Jodi S. Gallagher Heenan Blaikie LLP Barristers and Solicitors

HEARING TELECONFERENCE

February 26, 2008. June 16, 2009, July 8, 2009 & April 13, 2010.

Decision

1On April 13, 2010, the Board brought a motion to dismiss the grievance. After hearing submissions and argument by Counsel, I granted the motion.

2It was apparent, and has been apparent, during the course of the presentation of this grievance that despite many opportunities given to the Grievor to provide particulars of her claim and documentation in support, the Grievor has not cooperated with the Union, and there is no evidence that she has any intention of co-operating with the Union to allow the Union to advance its claim before this Board in a timely manner, or even to advance its claim at all. The Grievor has chosen to advance her claim before the Human Rights Tribunal and has ignored the orders of this Board to comply with orders of production. The Grievor has been warned by Order dated July 8, 2009, that the matter would proceed, and failure to comply with the Order of the Board may result in dismissal of her claim. The Union’s hands are tied. It is unable to properly advance the grievance, and the Board has a right to have grievances brought against it resolved in a timely manner.

3By way of background to this Order:

4A grievance was filed in March 19, 2007, in which the Grievor had summarized her grievances in a letter to the Union and to the Grievance Settlement Board to include:

• 1. The Board, the Union and certain employees of the LCBO are in breach of their responsibilities as outlined under the Ontario Human Rights Code and the collective agreements and the Grievor has incurred discrimination on the basis of Disability.

• Breach of Articles 2, 4, 5, 21, 29, 30, 47, and 50 of the collective agreement; and

• Union failure to provide fair representation to the Grievor.

5At the hearing on February 26, 2008, the Grievor was represented by the Union through its counsel, Mr. Ernie Schirru, and the Board was represented by its counsel, Ms. Alison Renton. The Grievor and Mr. Mark Crowley, the Grievor’s brother, was in attendance. I was advised by Mr. Crowley that he was representing the Grievor and her interest. Although Mr. Crowley had no standing and no order was made with respect to his standing, Mr. Crowley was allowed to expand on the presentation made by Mr. Schirru.

6As a result of that hearing, an Order was made on March 13, 2008, ordering the Union to advise the Board, which claims and remedies it was seeking to advance by no later than April 25, 2008, and to provide particulars of its claim by no later than May 26, 2008. This Order has not been complied with.

7On June 16, 2009, the hearing continued by conference call, with Mr. Schirru acting for the Union and Ms. Jodi Gallagher, acting for the Board. I was advised that the Grievor had filed claims under the Human Rights Code in the fall of 2008, and that the Board had asked that the proceedings before the Human Rights Tribunal be deferred until such time as the grievances before the Grievance Settlement Board have been dealt with. Further, that the Grievor had until June 30, 2009 to re-file her claim if she wished to proceed before the Human Rights Tribunal.

8The Board was prepared to not proceed on June 16, 2009, and was prepared to adjourn the hearing until such time as it could be confirmed that the Grievor was re-filing her claim before the Human Rights Tribunal. The Board, however, wished to set out a timetable so that it could prepare for the presentation of its case before the Grievance Settlement Board.

9I was advised by the Union that Mr. Crowley, speaking for the Grievor, had advised the Union that the Grievor would not co-operate with the Union until the Human Rights claim had reached its conclusion. Ms. Crowley and her brother were of the view that the Grievance Settlement Board was the inappropriate forum, but had asked the Union to seek an adjournment of the matter until the Human Rights Tribunal had made a decision on the jurisdiction of the matters or had reached its decision on the merits.

10The matter was adjourned until July 8, 2009, to allow the parties to determine if the Grievor was going to pursue her complaint before the Human Rights Tribunal. On July 8, 2009, the hearing continued by conference call.

11Again Ms. Crowley, and Mr. Crowley on her behalf, failed to participate in the proceedings and have failed to provide the Union with the particulars as previously ordered, so as to allow the Union to properly represent Ms. Crowley and to allow the Board to know what case it had to meet.

12An Order was made on July 8, 2009, at which time a further schedule for particulars was granted, and the hearing was scheduled for November 18, 2009, at which time the matter was to be heard, and the Board was at liberty to bring a motion to dismiss the grievance if the circumstances so warranted such a motion. The Grievor was advised that the matter would proceed, with or without her cooperation, and with or without her attendance. She was further advised that if she did not co-operate with the Union, that the Union would not be able to properly advance her claim and that the Union would run the risk that the Board may be successful in a motion to dismiss the grievance.

13I was advised on the day prior to the scheduled hearing that the matter was adjourned sine die on consent of the parties.

14On April 13, 2010, the Board brought this motion to dismiss the grievance. I am advised by the Union that notice of all proceedings and the Orders arising as a result of motions made by counsel, have been provided to the Grievor. The Union submitted that Mr. Crowley had advised the Union that due to the Grievor’s medical difficulties, which were not provided to the Union, that the Grievor was unable to proceed in both forums. The Grievor still had not provided the information required pursuant to the Orders of this Board.

15The Crown Employee’s Collective Bargaining Act and the collective agreement provide a system of resolving grievances between the parties in a timely manner. Although there can be concurrent proceedings, in different forums, the process cannot be tied up merely because the Grievor thinks, as Mr. Crowley put forward, that the Grievance Settlement Board is an inappropriate forum, and therefore fails to comply with every Order of this Board. Nor can the process be tied up and the right of the Employer to have this matter resolved until such time as the Grievor has decided that she is prepared to co-operate with the Union and comply with Orders of this Board.

16The parties, being the Union and the Board, are entitled to have their complaints dealt with in a timely manner. In this case the Union’s grievance rests entirely upon the Grievor and the evidence that she wishes to advance. Failure to provide such evidence prevents the Union from acting on her behalf. The Union has done its best to seek adjournments to allow the Grievor to have the opportunity to provide such information, and the Board has also been amenable to adjournments, provided that it was able to see progress in the advancement of the grievance. The Board is entitled to have the matter resolved in this forum. Although the Grievor refuses to provide any medical support for her present position, even accepting such a position, on its face, she has flaunted the Orders of this Board, and in light of her conduct there is no evidence that she is willing to cooperate with the Union. Accordingly, as ordered, this matter is dismissed.