GSB# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219; 2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845; 2017-1846

UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012; 2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542-0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lupiani)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 1, 2018

DECISION

1On July 18 and 19, 2017, the Board convened to deal with a number of variously dated grievances (“original grievance”) filed by Ms. Nancy Lupiani (“Grievor”). The parties engaged in discussions, a number of process issues were dealt with, and continuation dates were fixed. When the Board next reconvened on March 1, 2018, the parties advised that the parties had agreed to consolidate three grievances recently filed (“new grievances”) by the grievor, with the original grievances. As a result the Board is now seized with some 16 grievances, including the three new grievances. The parties are in agreement that I am properly seized with all of the grievances.

2The parties have raised two issues that need to be addressed. First, employer counsel requested that the Board issue an order setting out the following:

• That the parties had agreed to consolidate the new grievances with the original grievances.

• That the Grievance Settlement Board has jurisdiction to deal with human rights issues raised in the grievances.

• That I would be dealing with all issues in the grievances, including human rights issues.

3Union counsel opposed the issuance of such an order, taking the position that in the absence of a dispute between the parties that has to be ruled upon by the Board, such an order would be unnecessary and inappropriate. He argued that the requested order has nothing to do with the instant proceeding, but is sought only to buttress the employer’s position in a proceeding before the Human Rights Tribunal of Ontario relating to a complaint by the grievor.

4I agree with union counsel. No issue has been raised by either party as to the agreement to consolidate all grievances or the scope of the Board’s jurisdiction. In the absence of any dispute or disagreement that needs to be determined before the instant hearing can proceed, the Board declines to make the order requested.

5The second issue raised is about the manner in which the consolidated grievances would be dealt with. The employer takes the position that all of the grievances should be dealt with concurrently because the central issue in all of the grievances is the alleged harassment, discrimination etc. of the grievor by three named individuals. Counsel argued that there would be significant overlap in the evidence between the original grievances and the new grievances subsequently consolidated.

6Union counsel argued that the Board should first hear and determine the original grievances. Once a decision is issued in relation to those, the Board should hear and determine the new grievances. Counsel conceded that there would be overlap in the evidence, but suggested that repetition of testimony could be avoided by the Board directing that evidence in the first proceeding would also apply in the hearing relating to the new grievances. He suggested that there is a “nice dividing line”, because the allegations in the original grievances relate to the period up to the end of 2016, while the new grievances are about alleged violations in 2017.

7Both parties agreed that the Board has a broad discretion in determining whether grievances should be heard concurrently or consecutively. Union counsel stated that a will say statement by the grievor was produced to the employer on December 21, 2017. That statement is intended to be part of the grievor’s testimony in chief in relation to the original grievances, to be supplemented by additional viva voce evidence. Counsel had considered himself prohibited by the ethics regulations from discussing the content of that will say statement with the grievor, once it was produced to employer counsel. The union would be relying on that will say statement in relation to the new grievances also. He pointed out that he had not yet filed particulars with regard to the new grievances. Without the ability to discuss with the grievor the evidence adduced through the will say statement, he would be significantly disadvantaged in preparing for arbitration of the new grievances. If the Board decides to hear the grievances concurrently, he requested that an order be issued permitting him to discuss with the grievor the contents of the will say statement, as they relate to the new grievances.

8Union counsel conceded that the new grievances deal with the “same types of issues” as in the original grievances. The three individuals named in the original grievances, also are named in the allegations raised in the new grievances. However, while there is overlap, the extent of that overlap in the evidence is not clear.

9Counsel also argued that if the Board decides to hear all of the grievances concurrently, it may result in the adjournment of at least the next scheduled hearing date of April 10, 2018, to allow for the exchange of particulars and production in relation to the new grievances. That would not be efficient.

10Counsel submitted that the greatest concern about hearing all grievances concurrently is the grievor’s desire to “get the hearing started”. Counsel pointed out that much time has passed since the referral of the original grievances to arbitration. Several hearing dates were used by the parties, discussing possible settlement and then dealing with evidentiary and process issues in preparation for commencement of the hearing. Now much of that preliminary work has been completed, including the preparation and production of the will say statement by the grievor. Therefore, the grievor is very eager to get started with the hearing on the original grievances. Counsel assured that the union has no intention of relitigating issues decided by the Board in relation to the original grievances, if the new grievances are heard following the issuance of its decision.

11In reply, employer counsel submitted that the potential loss of one or two hearing dates is not a reason to hear grievances with overlapping issues and evidence separately. If union counsel is concerned about commencing the hearing before completion of particulars and production in relation to the new grievances, but is also concerned about adjourning any scheduled hearing dates, the parties should discuss and devise ways of expediting the proceeding to the extent possible. The Board is also capable of making orders as the hearing progresses, to expedite the hearing.

12Employer counsel submitted that to the extent that the union’s concerns about potential delay have some justification, those are far outweighed by the concerns relating to the result of hearing related and overlapping grievances consecutively. As an example, she pointed to the scenario where the Board upholds some or all of the original grievances, and awards a remedy including damages. The union has not stated that it is willing to give up its request for an award of damages in the event the new grievances are successful. It would be impossible for the Board to decide the quantum of damages to be awarded a second time for employer conduct which had already been taken into account in the award of damages in its first decision.

13In relation to union counsel’s concern about his ethical and professional obligation, counsel submitted that at this point the will say statement has merely been provided to employer counsel. The employer has not yet agreed that it can go in as drafted. Moreover, the grievor has not yet adopted the will say statement under oath. Therefore, at least until that happens, its contents would not constitute “evidence of the grievor”. Therefore, there would be no prohibition on counsel discussing its content with the grievor. In any event, given union counsel’s concerns, employer counsel stated that if the Board decides that the grievances would be heard concurrently, the employer would agree that union counsel may, in preparing for arbitration of the new grievances, discuss the content of the will say statement as it relates to the new grievances.

14Having considered the respective positions of the parties, the Board determines that all of the grievances should be heard concurrently. The allegations in the new grievances are, for most part, a continuum of the same type of allegations in the original grievances. Therefore, there will be significant overlap in the evidence. Where there is significant overlap in the evidence, grievances should be separated and heard consecutively only if the Board is convinced that significant efficiency would be gained by doing so, or that a concurrent hearing would result in a party being unfairly disadvantaged. The Board does not find that to be the case here. I am of the view that all of the production, particulars and process issues relating to all of the grievances should be resolved, by agreement, or in the absence of agreement by ruling of the Board, before the commencement of the hearing. To do otherwise would result in the hearing being interrupted from time to time to deal with those issues as they arise. That, in my view, would be very disruptive, and would lead to confusion, inefficiency and delay.

15I understand the concern of the grievor and the union about adjourning hearing dates to complete preliminary and process matters. Adjournment of scheduled hearing dates is never a good thing. However, in my view, in this case that would be the lesser of the evils. Overall, what matters is not when the hearing starts, but when it gets completed. As of now, according to my records, the last scheduled hearing date for this proceeding is September 28, 2018. If one or two dates are adjourned upfront, replacement dates can be scheduled without difficulty, if not prior to that date, at least in October or November 2018. On the other hand, if additional continuation dates become necessary mid-way into the hearing as procedural/process disputes arise from time to time as the hearing proceeds, dates will likely be not available until much later, and the completion of the hearing would be significantly delayed.

16Whether or not union counsel’s ethical concerns are well founded, it is not uncommon for counsel to agree in particular circumstances, that despite the ethical rules, counsel may discuss evidence given by a witness with that witness. In the instant matter employer counsel’s agreement addresses the concern union counsel has about his ability to prepare for the arbitration of the new grievances. Employer counsel did not oppose the issuance of a Board order that union counsel may, in preparation for arbitration, discuss with the grievor the contents of her will say statement as it relates to the new grievances. The Board hereby orders that union counsel may do so.

17The hearing will continue on the terms set out herein. I remain seized for that purpose.