GSB# 2017-0054; 2017-0055; 2017-0085; 2017-0118; 2017-0227; 2017-0560

UNION# 2017-0546-0002; 2017-0546-0003; 2017-0586-0012; 2017-0596-0006; 2017-0542-0002; 2017-0534-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Solomon Smith et al)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

January 26, 2018

DECISION

1These grievances have been referred to arbitration pursuant to Article 22.16 of the collective agreement. They all relate to the conduct of the same job competition. Attempts at mediation were unsuccessful. Article 22.16 contemplates the expeditious determination of grievances which cannot be settled. Having considered the representations of counsel for the parties, I make the following case management directions.

Initial Production

2On or before February 26, 2018, the Employer shall produce to the Union the following with respect to the job competition in question:

(a) copies of the written tests, interview notes and anything else used in the course or for the purposes of arriving at the raw scores of the following individuals: candidates 1, 4, 32 and 40 as ranked on the Competition Summary by raw score; each of the Grievors.

(b) the questions initially intended for use in the testing and interview process and those ultimately used.

Declarations

3The evidence in chief of the parties shall take the form of declarations. The declarations shall set out all the material facts upon which a party intends to rely. Subject to what follows, declarations are admissible into evidence without the need of calling a declarant as a witness.

4Declarations 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.”

5Documents 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.

Filing of Declarations and Representations

6By March 26, 2018, the Union shall file full written representations which shall include: a statement of all issues which the Union intends to raise; the remedies it seeks; and full particulars in support of its positions. The Union’s representations shall be accompanied by declarations from each of the Grievors and from each of its other intended witnesses. The grievance of any Grievor for whom the Union does not file a declaration is subject to being dismissed without further inquiry.

7By April 23, 2018, the Employer shall file full written representations which shall include: a statement of the Employer’s position with respect to all issues and remedial requests raised by the Union; a statement of any additional issues which the Employer intends to raise; and full particulars in support of its positions. The Employer’s representations shall be accompanied by declarations from each of its intended witnesses.

8By May 14, 2018, the Union shall request production of any additional documents from the Employer.

9By May 28, 2018, the Employer shall provide copies of the additional documents requested or, to the extent that it does, a brief statement of the basis on which it resists production.

10By June 11, 2018, the Union 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 Employer’s declarations which the Union could not have anticipated.

11The dates set out in this decision may be changed upon the agreement of the parties or by order of the Arbitrator.

Limits on Oral Evidence and Argument

12The opening for each party shall not exceed 5 minutes.

13Each party may cross-examine any declarant of a declaration filed by another party. The total time spent by a party in cross-examinations shall not exceed 30 minutes per grievance.

14The time spent by a party in re-examination of one of its declarants shall not exceed 5 minutes per declarant cross-examined.

15A party which intends to 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 party. 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.

16The Union’s final argument shall not exceed 25 minutes in total. The Employer’s argument in response shall not exceed 30 minutes. The Union’s reply shall not exceed 5 minutes.

17Time spent by a party making an objection is considered to be part of the time for its case.

18Time limits may only be extended by leave of the Arbitrator.

Preliminary Issues:

19Where 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 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 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 un-redacted 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 supplemental or additional declarations, if any), or production of documents may be made at the hearing without leave of the Arbitrator.