GSB#2010-2654
UNION#2010-0234-0283
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pacheco)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel
TELECONFERENCE
September 11, 2017
DECISION
1I have before me a number of discipline grievances filed by Mr. J. Pacheco. The hearing of evidence relating to these grievances commenced on November 18, 2016, and we are at the stage of the proceeding where the Employer is still presenting its case in chief.
2On February 24, 2017, the Employer called Ms. T. Frankovitch as a witness. She testified during her examination-in-chief about her role in a fact finding meeting held on February 12, 2016. Mr. Pacheco was present at the fact finding meeting. Ms. Frankovitch’s examination-in-chief was completed on February 24, 2017, but cross-examination has not yet commenced. Subsequent to the completion of her examination-in-chief, the Union produced an audio recording of the fact finding meeting made by Mr. Pacheco on his phone. Ms. Frankovitch will be recalled to testify on September 12, 2017. Employer counsel has requested that he be provided with the opportunity to reopen his examination-in-chief of this witness. Before the witness is recalled to testify, Employer counsel intends to let Ms. Frankovitch hear the relevant audio recording and to prepare her for the continuation of her examination-in-chief as if the Employer had received the audio recording in a timely manner before the witness had commenced her examination-in-chief. Union counsel has agreed that Employer counsel can play the audio recording for Ms. Frankovitch and that he can prep her as if he had received the audio recording before her testimony had commenced. As the Arbitrator in this proceeding, I direct that Employer counsel can proceed in this manner with the witness so that he can complete his examination-in chief. In particular, and consistent with the view I expressed during a conference call with counsel held on September 11, 2017, I direct that Employer counsel can communicate with Ms. Frankovitch and prepare her for the continuation of her examination-in-chief as it relates to the subject of the relevant audio recording. I provide this direction in light of The Law Society of Upper Canada’s Rules of Professional Conduct, particularly Section 5.4 which deals with communication with witnesses giving evidence.
3I note that counsel have agreed that the relevant audio recording will be entered as an exhibit on consent, subject to the outstanding issue about its authenticity.
Dated at Toronto, Ontario this 12th day of September 2017.
Appendix A
GSB Number
OPSEU File Number
2012-0727
2012-0234-0066
2013-3214
2013-0234-0359
2014-0350
2014-0234-0061
2014-3305
2014-0234-0458
2014-3846
2014-0234-0508
2014-4854
2015-0234-0030
2015-0390
2015-0234-0058
2015-0494
2015-0234-0069
2015-0495
2015-0234-0070
2015-0496
2015-0234-0071
2015-0913
2015-0234-0085
2015-0914
2015-0234-0086
2015-0915
2015-0234-0087
2015-0916
2015-0234-0088
2015-1310
2015-0234-0108
2015-1311
2015-0234-0109
2015-1312
2015-0234-0110
2015-1313
2015-0234-0111
2015-1314
2015-0234-0112
2015-1315
2015-0234-0113
2015-1316
2015-0234-0114
2015-1317
2015-0234-0115
2015-1318
2015-0234-0116
2015-1319
2015-0234-0117
2015-1320
2015-0234-0118
2015-1321
2015-0234-0119