GSB#2015-1990; 2015-1991

UNION# G-41-15-COR; G-40-15-COR

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union – Local 1587 (Policy)

Union

• and -

The Crown in Right of Ontario (Metrolinx – GO Transit)

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Richard Charney Norton Rose Fulbright Counsel

TELECONFERENCE

March 21, 2018

DECISION

1The Amalgamated Transit Union, Local 1587, represents a bargaining unit of employees of GO Transit. GO Transit, Union Pearson Express and PRESTO are operated by Metrolinx. The grievances before me claim that the Union’s bargaining rights in relation to GO Transit extend to Union Pearson Express and PRESTO. The parties entered into an agreement regarding the hearing procedure (“the Agreement”), the terms of which are reproduced below. We are at the stage of the proceedings where Phase 1 of the evidence has been completed. The Employer indicated an intention to bring a summary judgment motion at this juncture and the Union objected to the Employer’s ability to do so. This matter was addressed in a conference call on March 21, 2018, at which time I requested written submissions on the issue. The written submissions were completed on May 11, 2018.

2A number of arguments were advanced in support of the Union’s objection to the ability of Metrolinx to bring the summary judgment motion. One argument is that the bringing of such a motion is in contravention of the terms of the Agreement. It is the position of the Employer that the Agreement does not contemplate such a prohibition. Moreover, Mr. Charney emphasized that the Employer had indicated in its opening statement that it reserved the right to seek to have the grievances dismissed at the conclusion of the evidence adduced in the first phase of the proceedings.

3The terms of the Agreement are as follows:

1. GSB File No. 2015-1991 (“Union Pearson” or “UPX”) and GSB File No. 2015-1990 (“Presto”) (together “the Grievances”) shall be heard together by the GSB but not consolidated.

2. The Grievances shall be heard by GSB Chair Susan L. Stewart.

3. There is no dispute as to the filing or referral of the Grievances, nor is there any dispute as to the GSB’s jurisdiction to hear and adjudicate the Grievances.

4. A pre-hearing exchange of documents and particulars shall proceed in the following manner:

(a) Metrolinx shall provide a brief preliminary summary of the heads of argument it will rely on in support of its position that ATU Local 1587 does not hold bargaining rights for the UPX and Presto positions on or before September 7, 2016. This is subject to Metrolinx advising that it cannot provide such a preliminary summary in advance of ATU Local 1587’s particulars.

(b) ATU Local 1587 shall provide particulars and documents in support of its positions on or before September 30, 2016. This shall include particulars of the positions it claims bargaining rights for, to the extent it is able to prior to production. At the same time it will make any document production or particulars requests it has for Metrolinx.

(c) Metrolinx shall provide particulars and documents in support or before November 15, 2016.

(d) ATU Local 1587 shall provide any reply particulars and documents in support of its positions on or before December 15, 2016.

(e) These dates are subject to normal exigencies and may be altered by the agreement of the parties.

(f) Should the parties disagree with respect to the adequacy of production or particulars, they shall request that the GSB schedule a conference call with Chair Stewart.

5. Hearing dates shall be scheduled to commence not earlier than January 23, 2016. The parties will initially schedule 15 days and monitor progress as the matter proceeds.

6. The hearing shall proceed in the following phases, with ATU Local 1587 proceeding first in each phase:

(a) Both parties shall make opening statements covering all phases of the litigation;

(b) Both parties will lead evidence with respect to the scope of bargaining rights held by ATU Local 1587;

(c) Both parties will lead evidence with respect to whether the challenged UPX positions are covered by the bargaining rights held by ATU Local 1587;

(d) Both parties will lead evidence with respect to whether the challenged Presto positions are covered by the bargaining rights held by ATU Local 1587;

(e) Both parties will make legal argument on all issues.

7. This is not intended to create watertight compartments for the phases set out above, rather to facilitate an efficient and common sense approach to the litigation. The parties will discuss and consult with respect to any efficiencies or common sense solutions which could apply in the circumstances.

8. Neither party has waived their right to object to specific evidence on the basis that it is not permitted by the rules of evidence.

9. There will be a single hearing, and as such, evidence from one phase can be relied upon in another.

4The Union’s submissions emphasized that the Agreement specifically provides that “watertight compartments” for the phases were not contemplated, that evidence from one phase could be used in another and that legal argument with respect to all issues would occur at the conclusion of the case. The Union advised that it planned to call evidence at each phase “along practical rather than legalistic lines”. It advised of its intention to “call evidence regarding the similarity and functional integration of the work performed by “GO” employees and PRESTO and UPX employees” in support of its position that: “… this evidence is relevant to the determination of whether Metrolinx “operational divisions” Presto and UPX are paper constructs rather than separate legal entities unaffected by Local 1587’s bargaining rights”. It was submitted that this evidence is relevant to the fundamental issue of the scope of the Union’s bargaining rights and that the Union relied on the terms of the Agreement in determining that there would be no prejudice associated with calling this evidence following the first phase of the proceedings. Mr. Ardron acknowledged that Mr. Charney made reference to the possibility of a dispositive motion being brought at the end of phase 1, however he noted that the Union was clear in responding that it would object to such a motion if it were to be pursued by the Employer.

5In the Employer’s submissions it was emphasized that the saving of resources is a matter of significance for the parties as well as for the GSB. It was argued that the position advanced by the Union with respect to its ability to adduce evidence in all phases is an unreasonably literal interpretation of the Agreement. It was noted that the phases described in the Agreement constitute a deviation from the normal procedure in that the Union is not required to call all of its evidence before the Employer calls evidence and that witnesses could be called to attend the hearing more than once. It was submitted that the parties could not have contemplated such potential inefficiencies unless there were greater efficiencies to be gained, such as the ability of the parties to make arguments after each phase. With respect to the Union’s emphasis on the term of the Agreement that provides that the phases are not intended to create watertight compartments, Mr. Charney noted that the term indicates that its purpose is to “facilitate an efficient and common sense approach to the litigation”. In his submission, it is efficient to have the parties address the scope of bargaining rights beyond GO Transit as a threshold issue, potentially obviating the need for further proceedings, and that the Employer’s position is therefore consistent with the purpose of that provision. Regarding the Union’s reliance on paragraph 9 relating to the potential for evidence called in one phase to be relied on in another, Mr. Charney argued that this provision reflected an agreement that evidence called in prior phases could be considered in relation to determinations in later phases. In his submission, if the parties could wait until subsequent phases to call evidence relevant to the first phase, the provision relating to the order of the evidence would have no effect.

6I do agree with Mr. Charney that the saving of resources is a matter of significance. I also agree with Mr. Ardron as to the fundamental importance of giving a full and fair opportunity for a party to present its case. In the context of these principles, the determination here turns on the interpretation to be given to the terms of the Agreement. In reviewing and considering those provisions, it is my conclusion that the provisions read together as a whole are consistent with the interpretation advanced by the Union. There is nothing inherently inefficient in a process whereby evidentiary matters are dealt with in sequence. Moreover, the plain language of the Agreement, with its contemplation of argument “on all issues” at the final stage, its recognition that ”watertight compartments’” for each phase was not intended and its further provision that evidence in one phase can be relied on in another, support the interpretation urged upon me by the Union. Accordingly, I accept the Union’s position that the terms of the Agreement preclude the Employer from pursuing its motion for summary judgement at this stage.

7I turn now to an issue of production that was previously argued by the parties, a decision on which was held in abeyance pending the potential need to address the foregoing matter. The Employer produced job descriptions for bargaining unit GO Transit positions and the positions that the Union has characterized as comparable in PRESTO and UP Express, with the caveat that there may be discrepancies between the job descriptions and the actual duties of the positions, given events such as the evolution of duties over time. The Union seeks an order requiring Metrolinx to specify all instances in which the actual duties differ from the duties as set out in the job descriptions provided. Metrolinx opposes such an order.

8In his submission on this motion, Mr. Ardron characterized the documents provided as business records and submitted that where a party disputes such a record, it is incumbent on that party to explain why. Mr. Ardron made reference to Article 9 of the Collective Agreement which relates to the job classification process and in particular, Article 9.22, which imposes a responsibility on the part of the Employer in relation to the content of and modification of job descriptions, including amendments, arguing that this provision supports its position that Metrolinx should be required to provide the information requested. Mr. Ardron also noted that this issue arose in connection with a similar matter in another proceeding before this Board, wherein Metrolinx voluntarily provided the information requested. Mr. Ardron also referred me to Ottawa (City) v. Ottawa-Carleton Public Employees Union, Local 503 and Civic Institute of Professional Personnel, [2006] O.L.A.A. No. 792 (Goodfellow) where, in dealing with a large number of bargaining unit scope grievances, the board ordered the advance provision of particulars where any party intended to rely on matters not contained in the job descriptions or to contradict anything contained in the job descriptions. In Mr. Ardron’s submission, such an order would expedite the proceedings, allowing the parties to focus on matters in dispute, while the lack of such an order was likely to prolong proceedings, with the potential for unnecessary evidence-in-chief and unnecessary reply evidence. He argued that the order requested would not require the Employer to provide any information that it would not ultimately have to provide, in accordance with its obligation to provide notice to a witness of an intention to adduce contradictory evidence. Mr. Ardron further noted that information relating to job functions at UP Express and PRESTO is not readily available to the Union, unlike such information in relation to GO Transit.

9Mr. Charney noted that the Union’s request relates to approximately 88 positions. He took issue with the timing of the request as well as its validity. Mr. Charney noted that in the other proceeding where Metrolinx provided updated information, the information related to only two positions. He submitted that the order requested would require the Employer to engage in an extensive research and interview process that is not in accordance with the principles of proportionality. Most fundamentally, however, he argued that the parties are engaged in an adversarial process and that it would be inappropriate to order the Employer to engage in the gathering of evidence to present to the Union for the purpose of establishing the evidentiary foundation for the Union’s case. That, in his submission, is beyond the proper scope of production. Mr. Charney relied on a number of authorities in support of his position.

10In my view, the request in issue is not untimely. However, I agree with the Employer that it would be inappropriate for me to make the order requested. The fact that Metrolinx voluntarily produced documents in relation to two positions in another proceeding cannot properly prejudice it in connection with this proceeding. While Article 9 of the Collective Agreement refers to an obligation on the part of the Employer in relation to the amendment or modification of job descriptions, I am not persuaded that this provision contemplates the production sought here, particularly in relation to UP Express and PRESTO. As previously noted, position descriptions in UP Express and PRESTO for positions that the Union argues are similar to those in GO Transit have been provided. I agree with Mr. Charney’s observation that it is one thing for the Employer to provide existing business records but entirely another to require the Employer to engage in the substantial research and reporting endeavour sought here. I am furthermore unable to accept Mr. Ardron’s submission that the character of these records as business records should compel me to accept the Union’s position on this motion. Mr. Ardron is properly entitled to existing records and he has received them. The fact that evolving facts may render business records no longer precisely accurate is not a basis to compel creation and production of updated records. The approach taken in City of Ottawa, supra, supports the Union’s position, however as Mr. Charney pointed out, that case involved a process that the parties to the grievance had agreed to, which was subsequently revisited upon the intervention of a third party. While the search for and production of the information that Mr. Ardron seeks might well provide assistance to the Union in the preparation of its case, this is, as Mr. Charney emphasized, an adversarial proceeding. Moreover, I agree with Mr. Charney that any concerns relating to expedition are speculative at this point. I have no doubt that the parties will continue in their efforts to expedite this proceeding.

11For the foregoing reasons, I am not prepared to grant the Union’s requested production order. This matter will proceed on dates set by the Registrar in consultation with the parties.