Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2015 CanLII 8795

GSB#2010-1825, 2010-2457

UNION#2010-0517-0042, 2010-0582-0060

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Warling/Canavan)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 19, 2015

Decision

1On September 10, 2010, Mr. Terry Warling, Correctional Officer – then working at Toronto West Detention Centre – filed a grievance that alleged the Employer had violated various provisions of the Collective Agreement as a result of the manner in which the Employer applied the Attendance Support Management Program. He further alleged that the Employer had made improper use of his confidential medical information causing him considerable stress. Included in his requested redress was compensation for damages. His grievance was first heard during a “roadshow” med/arb session at TWDC.

2Vice Chair Keller was first seized with Mr. Warling’s grievance and as a result of some of the allegations regarding the Employer’s treatment of confidential information, he ordered that the matter be taken outside of the roadshow environment. He determined that it made labour relations sense to invite the parties to meet to discuss and hopefully resolve the outstanding issues.

3Prior to the meeting with the parties taking place, I heard a similar grievance which was filed by Paul Canavan on July 12 2013 in another roadshow session held at Toronto East Detention Centre. When it became apparent that Mr. Canavan’s allegations included inappropriate handling of his confidential medical information it was determined that his grievance would also be addressed at the joint meeting.

4A number of mediation sessions were scheduled and took place with both Vice Chair Keller and myself. Unfortunately a resolution was not reached. However, there was considerable discussion regarding the extent and scope of the outstanding issues.

5Following these meetings some dispute arose concerning the parties’ agreement of the scope of the matters to be litigated. A decision was written regarding the scope of the outstanding issues following a number of conference calls.

6Vice Chair Keller recently recused himself and it was agreed that I would hear and determine all of the outstanding issues.

7A further hearing date was held on January 17, 2015 and it was hoped that an overarching resolution could be agreed upon. For a variety of reasons this was not possible and accordingly the parties discussed how best to proceed. There was some disagreement between the parties in this regard and after hearing submissions I made the following oral ruling:

• The earlier decisions of Vice Chair Keller and myself regarding the freezing of the Mr. Canavan and Mr. Warling in the ASMP continue to be effect.
• The Employer shall store and retain in a locked cabinet in a locked office the medical file of both Mr. Warling and Mr. Canavan. The Employer shall allow access to the information found therein to three individuals within the institution. Those individuals will be determined by the Employer and made known to the Union. It is understood that advice might be sought from staff services with respect to the grievors’ accommodation, if any, as required.
• It should be clear that information found in HPRO regarding accommodation restrictions are not captured by this order.
• It is understood that these conditions will remain in effect until further notice or until the parties agree otherwise.
• In the Union’s submissions regarding this interim order it made clear that if its request interim order was granted it is prepared to begin litigation of Mr. Warling’s grievance.
• Accordingly, the Board is content that we will schedule hearing dates and begin to litigate the grievance of Mr. Warling.
• If any of the outstanding issues – which were set out in Vice Chair Keller’s October 30, 2013 decision – are not determined in the litigation of Mr. Warling’s grievance, the parties will continue with the litigation of the grievance of Mr. Canavan.
• Finally, if there are any outstanding broader issues that remain, litigation will take place on those issues.

8I ask the Board to contact the parties to schedule dates for this matter to be heard.