GSB#2003-1881

UNION#2003-0999-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Brien)

Union

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Labour Practice Group Counsel

HEARING

October 20, 2010.

Decision

1This decision addresses a preliminary motion argued on October 20, 2010 to dismiss Cheryl O’Brien’s grievance dated July 18, 2003, alleging, inter alia, certain human rights violations. The parties agreed that I issue a ‘bottom line’ decision by October 28 so that the hearing could continue on November 3 and 4.

2The employer argued that after the grievance was referred to the Board, no action was taken to further it until May 2008. No adequate reason has been given for the delay and therefore the grievance should be dismissed as abandoned, in employer counsel’s submission.

3The union argued that throughout this time period Ms. O’Brien was receiving LTD and was too ill to proceed with the case. Counsel submitted that the employer had not shown any prejudice. He urged that I should exercise my discretion, given the medical evidence and deny the motion. He also maintained that the employer had waived its right to make this motion by not raising it at the earliest opportunity in 2008 when the case was scheduled for hearing.

4Having carefully considered the submissions of the parties I have decided that this motion must be denied. The delay is considerable. However, given the nature of the case and the medical evidence adduced to explain the delay, I am persuaded that it would be wrong in all the circumstances to deny the grievor a hearing on the merits of her complaint. There was no evidence of actual prejudice provided by the employer. In balancing the interests of both parties I am convinced that equity favours the union in this case.

5The employer made three motions to me in this case on October 20, 2010. There was an agreement that the second motion would continue on November 3, 2010, when the case resumes. The third motion is regarding the scope of the evidence that should be permitted and I have concluded that this motion should be decided after I hear full submissions on the outstanding motion.