GSB#2008-1490, 2008-1491, 2009-3260, 2010-1240, 2010-1369, 2010-1370, 2010-1471, 2010-1472, 2010-1473
UNION#2008-0719-0003, 2008-0719-0004, 2010-0719-0001, 2010-0719-0014, 2010-0719-0019,
2010-0719-0020, 2010-0719-0021, 2010-0719-0022, 2010-0719-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Morgan)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Jane Letton Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Susan Munn Ministry of Government Services Legal Services Branch Counsel
HEARING
December 3, 2010.
DECISION
1These grievances were scheduled to be heard together at arbitration. The parties consented to my mediating settlement efforts before the arbitration hearing began. No settlement resulted. The grievances claim, among other things, that the employer failed to accommodate an alleged disability arising out of alleged harassment by co-workers, and that the grievor is entitled to compensation in respect of a period or periods during which this disability prevented him from working. The parties agree that Articles 22.16.2 through 22.16.5 of the collective agreement do not apply and that, accordingly, decisions in this matter will have the “precedential value” contemplated by Article 22.16.7.
2Unless the parties otherwise agree, hearings on the merits in this matter will be conducted in Kenora, Ontario. Having regard to the resources that must necessarily be expended in convening and conducting such a hearing, and to the nature of the issues involved, it is important to ensure that there is a full exchange of particulars and documents in ample time before the hearing begins.
3Accordingly, each of the parties shall provide the other with full written particulars of the material facts on which it relies in these matters, in accordance with the timetable and additional requirements hereafter set out.
4Each 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 provide the employer with copies of any documents on which it may wish to rely that are in the possession, custody or power of the grievor. (These 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 what follows the party may, instead, unambiguously identify in writing the previously delivered documents on which the party intends to rely.)
5With respect to each act or omission alleged therein, each party’s written particulars must 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 unparticularized allegations of fact are not sufficient and do not constitute particulars for purposes of this order. For example, it is not sufficient or appropriate for particulars to allege that “A harassed B” without also describing with particularity the acts or omissions of “B” relied on and any circumstances or characteristics of “A” that are pertinent to the allegation that those acts or omissions of “B” amount to “harassment” of “A” in the circumstances.
6The 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 of fact 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, nor that it identify in its particulars any witness to an occurrence in question unless the presence of that particular person on that occasion is itself a material fact on which the party relies.)
7The union’s particulars shall set out the remedies it seeks in these proceedings.
8The parties’ particulars and productions shall be delivered in accordance with the following:
a) On or before Friday, February 11, 2011, the union shall deliver to the employer’s counsel its written particulars of the factual allegations on which it relies, and together with copies of any documents upon which it may wish to rely in connection with those allegations.
b) On or before Friday, March 25, 2011, 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 factual issues it intends to raise, set out the allegations of fact on which it relies, together with copies of any documents upon which it may wish to rely in connection with its allegations.
c) On or before Friday, April 15, 2011 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 it may wish to rely in connections with its reply allegations.
If the need arises, but subject to paragraph [11], these deadlines may be modified by agreement of the parties or further order of the Board.
9Without limiting the generality of the previous paragraphs, the particulars to be delivered by the union in accordance with paragraph 8 shall include particulars of any acts or omissions on which the union may wish to rely to demonstrate that the employer’s conduct constituted discrimination contrary to either Article 3 of the collective agreement or the Ontario Human Rights Code.
10Hearings in these matters are scheduled to continue in Kenora on May 25, 26 and 27, 2011. By no later than Monday, April 18, 2011, each party shall file with this Board in electronic form the particulars it has delivered to the opposite party. Failure to file particulars by that date may result in cancellation of the May hearing dates.
11A 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 at the hearing in these proceedings without leave.
12The provisions of this order with respect to production of documents do not preclude an application by either party for a further 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. For example, if the state of grievor’s health at relevant times remains in issue after the employer delivers its particulars, and copies of relevant notes of his treating physician(s) have not been provided when the particulars and productions due from the union under paragraph [8][a] were delivered, an application may then be made to compel production of such notes on appropriate terms as to the use that may be made of them. Opposed applications for any such further orders, and with respect any other pre-hearing issues, will be addressed by teleconference.
Dated at Toronto this 7th day of December 2010.