GSB# 2011-0580

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Sergeant)

Association

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Ms. Amanda Wojick Sack Goldblatt Mitchell LLP Barristers & Solicitors

FOR THE EMPLOYER

Heather McIvor Ministry of Government Services Labour Practice Group Counsel

CONFERENCE CALL

December 13, 2011.

Decision

1The grievance before me was filed by the Union on behalf of Ms. B. Sergeant. Ms. Sergeant works out of a Ministry office located in Kingston. Given that this case will require a number of hearing days, the Employer requests that the hearing be held in Kingston. The Union opposes this request because it wants the hearing held in Toronto. Counsel made submissions on the issue of where the hearing should be held during a conference call on December 13, 2011.

2With respect to the location of hearings, the GSB’s Rules of Procedure provides as follows:

On request of the parties, hearings shall be held where the parties agree. In the event of disagreement about the location, it shall be determined by the GSB.

3Very seldom is there a disagreement about where a grievance should be heard by the GSB. The GSB hears most matters at its Toronto location, but it often hears matters outside of Toronto, including at Kingston. As the decision of Vice-Chair Carrier in OPSEU (Barillari) and Ministry of Community and Social Services (2008), GSB No. 2006-1932 indicates, there is no absolute rule about the appropriate venue and when a disagreement about location arises, the GSB will exercise its discretion by having regard to the balance of convenience to both parties.

4In support of the Employer’s position, Employer counsel submitted that the following circumstances demonstrate that the balance of convenience favours a Kingston hearing. The Employer intends to call at least five witnesses, some of them managers. All of the witnesses and the Employer’s advisor work and reside in Kingston. The costs of bringing these individuals to Toronto will be considerable. Ms. Sergeant, the grievor, also works and resides in Kingston. The documentary material relevant to this matter is located at the Kingston offices. Having managers in Toronto for any length of time will cause a disruption to the Employer’s Kingston office. The inconvenience to the Union in having its representative and lawyer travel to Kingston will be minimal compared to the considerable inconvenience a Toronto hearing would cause the Employer.

5Union counsel referred to the following matters in support of the Union’s position. Counsel emphasized that the Union’s hearings have always been held in Toronto and that it plans its affairs on the basis of this practice. The Union representative lives in Toronto and he has other matters to attend to in the Toronto area. Union counsel resides in Toronto as well. The Union will make the necessary arrangements to ensure that Ms. Sergeant is not inconvenienced. The Employer can structure its case to minimize costs and any disruption to its operations in Kingston. The practice of holding the Union’s hearings in Toronto should not be changed unless there are exceptional reasons for doing so. The number of witnesses that the Employer intends to call and the other circumstances of this case are not exceptional so as to alter the existing practice.

6The Union places particular significance on the fact that its hearings have always been held in Toronto and that it relies on this practice in planning its affairs. However, as Employer counsel noted, there is no indication of an agreement between the Employer and the Union with respect to where hearings will be located. The fact that its hearings have always been held in Toronto may simply indicate that both parties have always found it convenient in the past to have Toronto hearings. The existence of the practice in these circumstances is not a particularly significant factor when there is a dispute over the location of a hearing. This dispute must be resolved by considering the usual factors to determine where the balance of convenience lies.

7In reviewing the circumstances of this case in light of the submissions of counsel, I am compelled to conclude the balance of convenience does favour a Kingston hearing. The Employer intends to call at least five witnesses, some of them mangers. These witnesses and the Employer’s advisor live in the Kingston area. The costs of the Union representative traveling to Kingston should be offset by Ms. Sergeant, and perhaps other Union witnesses, not coming to Toronto for the hearing. In balancing the issue of costs and the other relevant factors, a hearing in Toronto would cause considerably more inconvenience to the Employer than a Kingston hearing would cause the Union.

8For the foregoing reasons, I direct that the hearing be held in Kingston on dates to be agreed upon by the parties.