GSB#2015-2492, 2015-2513

UNION#2015-0219-0009, 2015-0219-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wellwood et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

Rebecca Glass Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

November 1, 2016

Decision

1These are related grievances. Accordingly, they have been set down to be heard together.

2The interests of Beckels and the group of individuals in the grievance of Wellwood et al are, to some extent, adverse. For this reason, while the Union is a party to both grievances, it has retained counsel from separate law firms to represent it in relation to the two grievances. For ease of reference in this decision, I will treat the Union as if it were two different parties: Union (Beckels) and Union (Group).

3The grievances have been referred to arbitration pursuant to Article 22.16 of the collective agreement. Attempts at mediation were unsuccessful. A conference call was held for the purposes of case management. Among the reasons for doing this is the fact that the grievors, collectively, comprise or comprised the entire staff of a kitchen operated by the Employer and it is not possible to have them all in attendance at the hearing without seriously compromising the Employer’s operations. Having considered the representations of counsel for all parties, I made the following directions¹.

Production

4By November 9, 2016, any party seeking production of further documents from another party shall send a letter to that party identifying the documents sought.

5By November 25, 2016, any party receiving a request to produce further documents shall provide copies of all such documents in its possession or control or state its objection to doing so in writing. If a party objects to producing a particular document, in whole or in part, it shall briefly indicate the nature of the document and the basis for the objection. To the extent that a party objects to producing only parts of a document, a redacted version of the document shall be produced.

Grounds

6By November 25, 2016 counsel for the Employer shall advise counsel for the Union (Beckels) of all grounds relied upon by the Employer for the purposes of the discipline imposed on Beckels which is the subject of her grievance.

Declarations

7The evidence in chief of the parties shall take the form of declarations, which may be augmented by brief oral evidence from declarants with respect to the impact of the events on the individuals involved. The declarations shall set out all of the material facts upon which a party intends to rely, except that they may, but are not required to, include all facts relied upon with respect to impact. Subject to what follows, declarations are admissible into evidence without the need of calling a declarant as a witness.

8Declarations may contain statements based on information and belief in addition to statements based on personal knowledge of the declarant. When a statement is based on information and belief, the declaration shall so indicate and give the source. Statements which are based on information and belief may be given less or no weight, as determined by the Arbitrator. Each declaration shall be signed by the declarant and will contain the following statement: “This declaration was prepared by me or under my instruction and I hereby confirm its accuracy.”

9Documents intended to be relied upon at the hearing shall be properly identified by a declarant and accompany a declaration unless filed on consent of the parties.

10To the extent that a party intends to lead oral evidence from a declarant with respect to impact not particularized in the declaration, the declaration shall also include a brief “willsay” with respect to such evidence. “Willsay” portions of declarations will be clearly identified. “Willsay" portions will be given no weight if the declarant is not called as a witness.

11By December 9, 2016, counsel for the Union (Group) shall file declarations from each of its intended witnesses.

12By January 6, 2017, counsel for the Union (Beckels) shall file declarations from each of its intended witnesses.

13By January 25, 2017, counsel for the Employer shall file declarations from each of its intended witnesses.

14By February 8, 2017, counsel for the Union (Group) shall file any supplemental or additional declarations upon which it intends to rely. Any such declarations will be limited to additional facts which reply to the facts set out in the other parties’ declarations which the Union (Group) could not have anticipated.

15By February 22, 2017, counsel for the Union (Beckels) shall file any supplemental or additional declarations upon which it intends to rely. Any such declarations will be limited to additional facts which reply to the facts set out in the other parties’ declarations which the Union (Beckels) could not have anticipated.

Limits on Oral Evidence

16Following the exchange of declarations, counsel shall confer for the purposes of seeking to minimize the number of declarants who must attend at the hearing to give oral evidence. If necessary, counsel have the right to make submissions to the Vice-Chair in advance of the hearing and directions from the Vice-Chair.

17Each party shall have no more than 60 minutes in total for all oral evidence in chief it wishes to lead from its declarants.

18Each party may cross-examine any declarant of a declaration filed by another party. The average time spent by a party in cross-examination of a declarant shall not exceed 30 minutes per declaration filed. Time which a party does not use for cross-examination of one declarant may be banked and used for examination of another declarant.

19The average time spent by a party in re-examination of one of its declarants shall not exceed 5 minutes per declarant cross-examined. Time which a party does not use for re-examination of one declarant may be banked and used for re-examination of another declarant.

20A party which intends to examine or cross-examine the declarant of a declaration at the hearing shall, at least 15 calendar days before the first date of the hearing, give notice of that intention to the other parties. The party which submitted the declaration shall be responsible for ensuring the declarant’s attendance at the hearing. If such a declarant does not attend, no weight will be given to the declaration filed on behalf of that declarant.

21Time spent by a party making an objection is considered to be part of the time for its case.

22Time limits may only be extended by leave of the Arbitrator.

Preliminary Issues:

23Where a party anticipates that it will seek more time for cross-examination, it shall raise the issue prior to the hearing. All issues with respect to the adequacy of declarations or scope of the declarations (including any supplemental or additional declarations, if any) or production shall also be resolved prior to the hearing. If the parties are unable to resolve any disputes about the adequacy of declarations or scope of the declarations (including any supplemental or additional declarations, if any) or production of documents following the completion of the exchange of declarations, or if a party is seeking more time for the cross-examination of witnesses, a pre-hearing conference call will be scheduled on the request of a party to hear submissions and decide the issue. Where the dispute relates to the production of a document, an unredacted copy of the document shall be filed with the Arbitrator in advance of the conference call, along with a copy of any redacted version of the document which has been provided to the other parties. No objections as to adequacy of declarations or scope of the declarations (including any supplemental or additional declarations, if any), or production of documents may be made at the hearing without leave of the Arbitrator.

Procedure at hearing:

24At the hearing, the evidence and argument shall be presented as follows:

A. The Union (Group) shall submit into evidence its declarations and produce any of its declarants who will be giving oral evidence. The Employer shall conduct any cross-examination of the Union (Group)’s declarants first; the Union (Beckels) will conduct any cross-examination of those declarants second.

B. The Union (Beckels) shall submit into evidence its declarations and produce any of its declarants who will be giving oral evidence. The Employer shall conduct any cross-examination of the Union (Beckels)’ declarants first; the Union (Group) will conduct any cross-examination of those declarants second.

C. The Employer shall submit into evidence its declarations and produce any of its declarants who will be giving oral evidence. The Union (Group) shall conduct any cross-examination of the Employer’s declarants first; the Union (Beckels) will conduct any cross-examination of those declarants second.

D. When any cross-examinations and re-examinations of the declarants are concluded, the parties may, with leave of the Arbitrator, adduce any proper reply evidence.

E. Final argument will be in the following order: Union (Group), Employer, Union (Beckels), Employer, Union (Group). Each party shall have one hour and 45 minutes in total for its argument in chief and in reply. The parties shall exchange highlighted copies of the cases upon which they intend in advance of final argument. Each party shall be limited to five cases.

Footnotes

1. 1This hearing procedure is inspired by the “summary trial” process set out in Rule 76.12 of the Ontario Rules of Civil Procedure. A summary trial may be ordered in any civil action to which the “Simplified Procedure” applies. In short, the Simplified Procedure applies to claims for $100,000 or less. The time limits specified in this procedure for oral evidence and argument, while tight, are significantly more generous than those set out in Rule 76.12.