Ontario Public Service Employees Union (Aitken et al) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 19290

GSB#2012-2612

UNION#2012-0248-0073

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Aitken et al)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

March 26, 2015

Decision

1I have a number of grievances before me originating from a health and safety work refusal and work stoppage that occurred at the Hamilton-Wentworth Detention Centre between August 14 and September 11, 2012. The majority of the grievances can be described as “no work, no pay” grievances; some of the grievances are individual discipline grievances. We are now at the stage in this proceeding where the Employer has completed the presentation of its evidence and the Union is about to call its evidence. With the intent of expediting the hearing of this matter, the evidence-in-chief of each witness consists of a will-say statement with counsel opposite having the opportunity to cross-examine the witness.

2On March 26, 2015, Employer counsel requested that the hearing scheduled for the following day be adjourned. In considering whether to grant the adjournment I reviewed the email chain between counsel and I spoke briefly to Ms. Ferreira and then later with Mr. Dailleboust about the circumstances relating to the request for the adjournment. I concluded that this matter could be addressed without a conference call. Late in the day I sent an email advising counsel that I was granting the Employer’s request to adjourn the hearing and that a GSB decision would soon follow. My reasons for granting the adjournment are briefly set out below.

3The Union planned to call Ms. M. MacLean as its witness on March 27, 2015.

Employer counsel received Ms. MacLean’s thirty-two page will-say statement early on the morning on March 26, 2015. Employer counsel based the Employer’s adjournment request on the fact that he and co-counsel did not have sufficient time to properly prepare for the cross-examination of Ms. MacLean on the following day. Employer counsel advised that he was at a hearing on March 26, 2015, and that his client was also not available on that day. I can appreciate that the preparation of a will-say statement can be a time consuming process. However, I was satisfied in this instance that it would have been unfair to compel the Employer to proceed on March 27, 2015, when Employer counsel had received Ms. MacLean’s will-say statement on the day before the scheduled hearing day. I can understand why Employer counsel would not have been in a position to cross-examine Ms. MacLean on March 27, 2015. It was for these reasons that I deemed it appropriate to adjourn the hearing scheduled for March 27, 2015.

4In my email to counsel on March 26, 2015, advising them of the adjournment, I also advised that I was scheduling a conference call with counsel for 10:00 a.m. on March 27, 2015, to discuss the scheduling of additional hearing dates. There are only three scheduled hearing dates remaining. The conference call with counsel took place as scheduled. We discussed some potential additional hearing dates, including a day before our next scheduled date of June 1, 2015, to replace March 27, 2015. I appreciate that counsel and the parties are making every effort to have this matter heard as expediously as possible.