GSB#2012-0599

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 (Horne)

Association

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

James McDonald and Kelly Doctor Sack Goldblatt Mitchell Barristers and Solicitors

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Services Labour Practice Group Counsel

HEARING

October 12, 2012.

Decision

1The board is seized with a dispute filed by Ms. Christine Horne, which in essence alleges that the employer had contravened article 27 of the collective agreement by declaring her position of Quality Assurance Analyst surplus, and then failing to identify a direct assignment or a bump for her.

2In advance of the hearing, the parties engaged in discussions in an attempt to agree upon a Hearing Procedure Protocol” (“draft protocol”). The instant hearing was convened to deal with one aspect of disclosure about which the parties remained in disagreement. The parties agreed that the Board should rule on that issue in dispute.

3To put the disputed provision into context, it is useful to highlight the key features of the draft protocol. Its preamble provides that the terms agreed to are without precedent and prejudice to on-going discussions between the parties about a general disclosure protocol, and to any position the parties my take in any other proceeding. The parties have agreed to bifurcate the hearing into two phases. The first phase would relate to the employer’s search for direct assignments and bumps during the pre-notice period and the period up to the end of the third month in the surplus notice period, i.e. until May 3, 2012. It envisages that following the first phase of the hearing, the Board would render a decision as to whether the employer contravened the collective agreement by not identifying a direct assignment or a bump for Ms. Horne in that period. If the Board so finds, the dispute will be upheld and that would end the proceeding.

4If, however, no violation is found in the period up to May 3, 2012, the Board would continue with the second phase of the hearing and determine whether the employer contravened the collective agreement subsequent to May 3, 2012. In the second phase, the parties would be entitled to rely on evidence led in the first phase of the hearing. The only disagreement between the parties in this regard is whether the Association should be required to file a separate dispute with regard to Ms. Horne’s recall rights. The Board was not called upon to decide that dispute at this time.

5In paragraph 4 of the draft protocol the employer has undertaken certain disclosure obligations. The Association advised the Board that the disclosure provided by the employer to date substantially complies with the obligations envisaged in paragraph 4. Following a review of the employer’s disclosure and other information available to it, the draft protocol permits the Association to request further disclosure from the employer. If it makes such a request, the Association is required to provide a brief rationale as to why it does not already have sufficient disclosure. If the employer objects to the Association’s request for additional disclosure, that dispute may be referred to the Board for determination.

6The next substantive step in the protocol is set out in paragraph 8 as follows:

8. Within a reasonable time after receipt of the initial disclosure and any supplementary disclosure as discussed above, AMAPCEO will provide the Employer with:

(a) a list of all of the positions that are being contested at this stage of the Dispute;

(b) with respect to each of the positions identified, an explanation of why AMAPCEO asserts that the failure of the Employer to assign Horne to the position was a breach of either Article 27.8 or 27.9 including a succinct summary as to why Horne was eligible to be assigned to the position; and

(c) full and proper particulars of every other allegation, if any, that AMAPCEO intends to rely upon in support of its position that the Employer breached the provisions of the Collective Agreement.

7It is significant that all of the provisions in the draft protocol are agreed to by the parties, except for paragraph 9. Paragraph 9 provides:

Within a reasonable time after receipt of this information from AMAPCEO, the Employer will provide a succinct summary as to why Horne was not eligible to be assigned to the position(s) identified by AMAPCEO. Any objection by the Employer to the delivery of this succinct summary with respect to a particular position(s) will be referred to Vice Chair Nimal Dissanayake for determination.

The board is called upon to decide whether or not the protocol should include paragraph 9 as set out above. The Association wants that provision included. The employer objects to its inclusion.

8The Board notes that the Association also agreed, on a without precedent and prejudice basis, that since the employer had provided substantial disclosure, it was in a position to, and would, proceed first with the evidence in this proceeding. Counsel further accepted that the Association bears the burden of proof.

9Counsel for the Association submitted that all that it seeks in paragraph 9 is that once the employer receives from it a final list of all positions it has identified, (with a summary explanation as to why it says that Ms. Horne was eligible for each contested position), as contemplated in paragraph 8, that the employer provide a summary of any additional reasons it intends to rely on, as to why Ms. Horne is not eligible for the positions identified by the Association. Counsel argued that knowledge of all reasons relied upon by the employer would enable the Association to come to the hearing prepared with all of the evidence it deems necessary to be able to respond. That would allow the hearing to proceed in an efficient and expeditious manner. On the contrary, if additional reasons the employer relies on to support its contention that Ms. Horne is not eligible for a position surfaces for the first time through the employer’s cross-examination of Association witnesses, the Association would be forced to seek an adjournment in order to prepare additional evidence or witnesses to respond to those additional reasons.

10Employer counsel reviewed the production it had already made, and the extent of the information available to the Association. He pointed out that in Ms. Horne’s dispute form, a number of positions are identified as possible direct assignments or bumps for her. He submitted that the onus is on the Association to establish that Ms. Horne was qualified and eligible for those positions. The effect of paragraph 9, he submits, is to require the employer to state, before the Association has proven anything, why Ms. Horne is not eligible for the positions in question.

11Reviewing the correspondence exchanged between the parties to date, counsel submitted that the Association has not provided any particulars as to why it alleges that the employer had denied Ms. Horne her collective agreement rights with respect to direct assignments or bumps. Given the volume of information available to it, the Association is in a position to assert that Ms. Horne is eligible for specific identified positions and to explain why she is so eligible. Employer counsel submitted that to date the Association has provided no such disclosure. Employer counsel argued that if the Association did due diligence, it would have reviewed the employer’s production and identified any positions it claims the employer had failed to consider as suitable direct assignments and bumps for Ms. Horne, and provided particulars as to why Ms. Horne was eligible for such positions. Instead, it expects the responding party to explain why Ms. Horne is not eligible for the position. Counsel submitted that amounts to “flipping the onus to the employer”. That is not a reasonable demand from the party that is grieving. Citing case law, counsel submitted that until the grieving party has established at least a prima facie entitlement to a direct assignment or bump to a position, there is no case for the employer to answer. Since the Association bears the onus, the Association should be required to put in its case. To be able to do so, the Association does not need to know what the employer’s defense would be.

12Employer counsel pointed out that paragraph 9 commences by requiring the employer “to provide a succinct summary as to why Horne was not eligible …” The starting point is, therefore, the respondent taking a position as to why the grieving party is wrong. That, submitted counsel makes no sense because it is the grieving party that has the onus.

13In the alternative, employer counsel submitted that the obligation on the employer contemplated in paragraph 9 is premature. He argued that at this point “no one knows” what the union’s particulars will be, how many positions it will identify and what reasons it will rely on to claim eligibility. Counsel submitted that in the circumstances there is no way for the employer to decide what, if any, additional reasons it may have for taking a contrary position. Counsel submitted that, in the circumstances, if the Board is inclined to give credence to the Association’s position, the appropriate decision would be to allow the Association to make its demand with reasons as contemplated in the protocol, and if the employer’s response is deemed by the Association to be unsatisfactory, to allow it to put that for a ruling by the Board.

14It appears to the Board that the disagreement about paragraph 9 stems from confusion about the very different concepts of the onus or burden of proof on the one hand and disclosure on the other. Perhaps, the employer was misled by the terminology used by Association counsel, when he submitted that “the Association is entitled to know the case it has to meet before calling its evidence”. Employer counsel argued, quite correctly, that the employer does not have to put forward any case, and that it is the Association as the grieving party that has the onus of proving its case. However, a disclosure protocol, regardless of its provisions, has no impact on who bears the onus. There is no disagreement here as to where the onus lies. The Association clearly conceded that it bears the onus. Indeed, Association counsel stated that at the end of its case, the employer would be entitled, if it deems appropriate, to move for non-suit. Therefore, the issue of onus is irrelevant to the instant disagreement.

15The purpose of disclosure is to permit the parties to prepare their respective cases in advance of the hearing. Disclosure is generally encouraged by arbitrators because it facilitates a more efficient and orderly hearing. These parties have formally recognized that by stating in article 15.1 of the collective agreement to the effect, “The parties further acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions”. It is commendable that the parties, in keeping with that statement of intent, have attempted to agree upon a protocol for disclosure. Indeed, they have reached agreement on a protocol except for paragraph 9.

16The parties are agreed that the Board has a discretion with regard to the nature and the extent of disclosure to be required. In exercising that discretion the considerations are practical rather than legal. (See, Re Thermal Ceramics, (1993), 1993 CanLII 16811 (ON LA), 32 L.A.C. (4th) 375 (Gray). Moreover, the arbitrator must balance the desirability and value of disclosure with any countervailing interests such as prejudice to one party, confidentiality concerns or unduly onerous burden in terms of time, effort or expense. (See, Re Stelco Inc. (Hilton Works), (1994) 1994 CanLII 18600 (ON LA), 42 L.A.C. (4th) 270 (Dissanayake).

17By undertaking efforts to agree on a disclosure protocol, it is safe to assume that the parties are of the mutual view that disclosure will be beneficial in this case. The Board does not find anything in the disputed paragraph that should reasonably cause a concern for the employer. The Board has already clearly stated that the protocol would have no bearing whatsoever on the onus issue. If one were to look at the actual status of disclosure made to date and assess its progress in accordance with the terms of the draft protocol, it appears that the employer has substantially complied with its obligation in paragraph 4. The disclosure process, it appears, has not progressed beyond that at this time. The employer asserted, and the Association did not dispute, that the Association has not to date reviewed the employer’s disclosure and fulfilled its obligations as contemplated in paragraph 8. Therefore, if the employer is required to make the additional disclosure envisaged in paragraph 9 at this stage, the Board agrees that it would be unreasonable. The employer would be then expected, as employer counsel suggested, to start the process by providing its position first as to why Ms. Horne is not eligible to positions. The employer’s concerns would then be justified. However, that is not the process contemplated by the protocol if paragraph 9 is included. The employer’s obligations under paragraph 9 are not triggered until the Association has complied with its obligations under paragraph 8. The employer’s obligation is to respond under paragraph 9 “Within a reasonable time after receipt of this information from AMAPCEO”. “This information” clearly is a reference to the information the Association is required to provide in the preceding paragraph.

18For the same reasons, the prematurity argument of the employer is also misplaced. It is true, that at this point the employer does not know the Association’s information as to how many positions it would identify and what reasons it would advance. However, that should not cause any concern for the employer because it does not have to act pursuant to paragraph 9 until it has received that information. If having reviewed the Association’s information, the employer has any objection, it is not required to comply with paragraph 9. It is entitled to refer the matter to the Board for determination. For example, if the Association lays claim to hundreds of positions on behalf of Ms. Horne, and the employer is of the view that compliance with paragraph 9 is too onerous or unreasonable, it may refer that concern to the Board. That protection is built into the language in paragraph 9. The submissions of the employer and its concerns, in the Board’s view, are premised on a misunderstanding of when its obligations under paragraph 9 would arise. To be clear, they arise after, and only after, the Association has provided disclosure under paragraph 8. Paragraph 9, therefore, is not the starting point for disclosure as the employer believes. Rather, it is the very last step in the process.

19In conclusion, the Board concludes that paragraph 9 would be beneficial for the parties and would permit a more efficient hearing process. The Board does not find any prejudice or valid concern on the part of the employer, which would make paragraph 9 unreasonable or unfair. Therefore, it is ordered that paragraph 9 be included in the protocol which is agreed upon in all other respects.

20The Board remains seized with all outstanding matters pertaining to the instant dispute.