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 Senior Counsel

TELECONFERENCE

May 24, 2018

DECISION

1I am hearing a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. We are at a stage in the proceeding where the Employer is calling its evidence. It is likely that the testimony of a Manager will be completed soon and the Employer intends to call a few more witnesses before closing its case in chief. An issue has arisen regarding the recalling of three employees who had been called by the Employer to testify. I heard from counsel on the recall issue during a conference call held on May 24, 2018.

2During the course of this proceeding, the parties have addressed a number of disclosure issues, primarily related to the production of documents. The parties agreed to address these issues without delaying the calling of witnesses. Without setting out the agreement of the parties in detail, I note that counsel agreed that the Union could request the recall of an Employer witness for the purpose of dealing with matters covered in documents that were produced after the witness had testified. With respect to three Employer witnesses who had testified last year, Union counsel advised that he had likely completed his cross-examination, subject to his right to request the recall of the witness if the subsequent production necessitated further cross-examination. With at least two of the witnesses, Employer counsel may have questions for them in re-direct. It appears that there are no longer any outstanding production issues. For the purpose of organizing the presentation of the Employer's case, Employer counsel has requested that the Union advise him if the Union wants to have any of the three witnesses recalled. The Union has responded by indicating that it will decide on whether it wants any of the three witnesses recalled only after the Employer presents the rest of its case in chief. The Employer has requested that I direct the Union to indicate now whether it wants any of the three witnesses recalled so that their testimony can be completed in a timely fashion and because of its view that it has the right to decide when and in what order to call its witnesses. On this last point, Employer counsel relied on the Association of Management, Administrative and Professional Crown Employees of Ontario (Mar et al) v. The Crown in Right of Ontario (Ontario Science Centre), 2010 CanLII 28620 (ON GSB).

3Having considered the submissions, I am satisfied that it is reasonable in the circumstances for the Union to decide now whether it wants any of the three witnesses to be recalled. Having received the relevant documents, the Union is now in a position to decide whether it has any further cross-examination of these witnesses and to complete its cross-examination in a timely manner. To defer the decision on the recall of the witnesses until the Employer has called the rest of its case is not consistent with the purpose of the agreement on the recall of witnesses and it unduly restricts the Employer's right to call its case as it sees fit. As a general matter, delay in the completion of the testimony of a witness should be avoided if possible.

4I appreciate that the Union may need some time to determine whether the subsequent production of documents will require further cross-examination of the witnesses who were subject to recall. I therefore direct the Union to advise the Employer by no later than June 15, 2018, as to the witnesses it wants recalled for further cross-examination due to the subsequent production of documents. After June 15, 2018, the Employer can decide to recall a particular witness consistent with its right to organize the presentation of its case.

Dated at Toronto, Ontario this 28th day of May 2018.

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