GSB#2011-0902

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 (Grievor)

Association

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Counsel

FOR THE EMPLOYER

Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 4, 2015

Decision

1The issue immediately before me is the Employer’s Motion to adjourn proceedings pending the results of an Independent Medical Examination to determine the capacity of Mr. J.S., the Complainant, to participate in the hearing in circumstances where he is now subject to continuing cross-examination by the lawyer for the Employer. During the most recent day of hearing the health and composure of Mr. J.S. appeared to have significantly deteriorated to such an extent that his health may be in severe jeopardy should the matter continue.

THE BACKGROUND

2The central issue before me involved several grievances file by AMAPCEO on behalf of Mr. J.S., an Employee of the Ministry of Labour. The complaints alleged, among other things, that Mr. J.S. was harassed and discriminated against by the Employer and, in particular, by his direct managers such that he became ill and suffered personal injury and financial losses.

3That matter proceeded through numerous days of hearing, most of which were devoted to Examination in Chief of Mr. J.S. However, on October 9^th of 2014 Mr. J.S. attended for his first day of cross-examination by Employer counsel. When it appeared that Mr. J.S.’s composure and health had deteriorated over lunch the matter was adjourned. AMAPCEO counsel, Mr. James McDonald, then sought and obtained an opinion from a psychologist who had been treating Mr. J.S. concerning his views as to the Complainant’s capacity to continue with the hearing in the circumstances where he was then subject to cross-examination by the lawyer for the Employer.

4The opinion dated October 21, 2014 did not recommend discontinuance at that time; rather, the psychologist provided the following advice:

“.....his condition has deteriorated, but certainly discontinuing with the arbitration process would only serve to complicate and further regress his condition. It is my opinion that accommodations should be made and that the process should continue.”

5The accommodations recommended related to alterations in the upcoming schedule of hearings and adjustments to shorten the usual schedule of those hearing days. While those recommendations were not adopted as written, the Parties did agree to some such changes which were implemented to accommodate Mr. J.S. Thereafter, scheduled proceedings which normally ran from approximately 10:00 A.M. to 4:30 P.M. with an intervening lunch hour were conducted as follows:

November 9, 2014 – 10:00 A.M. to approximately 3:00 P.M.

November 27, 2014 – 10:00 A.M. to approximately 2:45 P.M.

February 25, 2015 – 9:00 A.M. to approximately 1:40 P.M.

May 28, 2015 - 10:00 A.M. to approximately 3:30 P.M.

Lunch breaks were taken for various durations on those days.

6June 4, 2015 was the most recent hearing day and it was the events of that day, against the background I have outlined, which led to the Motion now before me. Proceedings began at about 10:00 A.M. with Mr. Robert Fredericks, Employer Counsel, continuing with cross-examination of Mr. J.S. A 10-15 minute rest break had been taken at or about 11:30 A.M.

7At or about 12:00 noon, while fair and legitimate questions were being addressed to him concerning possible inconsistencies in the evidence, Mr. J.S. became visibly agitated and antagonistic. While Mr. J.S. appeared to regain his composure over the lunch hour, he was unable to sustain an even temperament for the duration of the session. On at least a couple of occasions it was necessary to direct him to answer the question posed and refrain from meandering. Later, when presented by counsel with another scenario for his explanation, Mr. J.S. “lost it”, closed the material before him and suggested that he was through for the day as was the hearing. He intended, he said, to get another medical report to support his wishes to have a 9:00 A.M. start to proceedings and shorter days going forward. On being corrected with respect to the day’s proceedings, Mr. J.S. continued only briefly to respond to further questions put to him. When a further difficult issue was put to him for explanation, he failed to respond whatsoever either initially or when the question was addressed a second time. At that juncture the proceeding was brought to a close.

DECISION

8In the circumstances, as noted, Mr. Fredericks for the Employer sought a direction that Mr. J.S. attend for an I.M.E. Mr. McDonald opposed that Motion. Since the issue had arisen spontaneously during the course of proceedings, I have decided that the Motion itself be adjourned and, if necessary, brought on again with fulsome argument on the next scheduled hearing day. In the meantime, an AMAPCEO representative, likely in the person of Mr. Mark Bonaparte, is directed to discuss with Mr. J.S. the concerns of Counsel and the Vice Chair and to encourage him to personally volunteer to participate in an I.M.E. The purpose of the investigation will be to determine his ability to carry on with these proceedings without injury to his health.

9Assuming Mr. J.S. is amenable to that process, I leave it to the Parties to agree upon the details of the I.M.E. including the identity of the physician, information to be provided, the nature of the opinion sought etc. I, of course, retain jurisdiction to assist or determine those details should the Parties be unable to reach agreement.