Ontario Public Service Employees Union v Ontario (Crown in Right), 2013 OGSB minicounsel 87

GSB#2011-3309, 2011-3310

UNION#2011-0523-0002, 2011-0523-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Beaman/Hearn)

Union

• and -

The Crown in Right of Ontario (Ontario Place Corporation)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Leslie Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Services Legal Services Branch Counsel

HEARING

May 2 & 6, 2013.

Decision

1The grievors both worked as group sales representatives for Ontario Place Corporation, and both received surplus notices in November 2012. The grievors allege that the surplus notices were motivated by bad faith and discrimination.

2The parties engaged in an exchange of documents and particulars prior to the first hearing day in this matter. The employer provided notice to the union of an intention to seek a ruling at the outset of the hearing that there was no prima facie case identified by the grievances. This decision deals solely with the ‘no prima facie case’ motion.

3The test for a motion of no prima facie case was articulated as follows by Vice-Chair Dissanayake in Re Couture et al, 2008-3329, at paragraph 6:

“[A] prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.”

4Vice-Chair Gray provided a somewhat memorable commentary on the issue of the test for a non-suit in a case involving allegations of discrimination in Re Gauntlett, 2006-0659, at paragraph 33, stating:

“The test, then, is only whether discriminatory motivation is a possible explanation of the behaviour described in evidence, having regard to all of that evidence, not whether it is the only possible explanation or the most probable of the possible explanations or more probable than the sum of all of the probabilities of all other possible explanations or whatever the appropriate test may be when it comes time to weigh the evidence.”

5The parties requested a ‘bottom line’ decision on the issue. Indeed, as is the case with motions for non-suit, it would not be appropriate to provide commentary on the reasons for determination of the motion where the motion is dismissed.

6After considering the submissions of the parties, as well as the authorities provided, it is my conclusion that the employer’s motion should be dismissed. This case will continue on the dates previously agreed between the parties.