GSB# 2017-1422; 2017-2291; 2017-3146; 2018-1001

UNION# 2017-0310-0022; 2017-0310-0035; 2018-0310-0001; 2018-0310-0038

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Price-Morris)

Union

• and -

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

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 21, 2019

DECISION

1These matters consist of a number of grievances alleging harassment and a failure to accommodate. This decision deals solely with the Union’s motion that the Employer be ordered to produce contact information for a client of ODSP in order that the client can be contacted by the Union with a view to potentially calling her as a witness in support of one of the allegations.

2The parties argued the motion on November 21, 2019 following which I invited the parties to make further submissions in light of caselaw of the Ontario and British Columbia Human Rights Tribunals that had not been referred to during the course of the motion. I stated, if there was a desire to make further submissions, they could be made the next hearing date. Counsel for the Employer advised he wanted to make further submissions at the next hearing date and the Union responded indicating it would be fair and efficient for the Board to issue a decision “at this time. This would also maximize the ability to use our next hearing days in other ways.” The Employer responded with a number of concerns, amongst them a concern as to why, as the Union argued was necessary, the order had to be issued in advance of the grievor concluding her testimony noting that the grievor had not yet testified about the event in issue. The Union in turn responded stating it has the right to a fair opportunity to prepare its case and nothing requires the Union to wait until the grievor has testified as to the allegation for the Union to access relevant production.

3The parties dispute whether an order should be made now or after the Employer has had a chance to comment on the case law referred to above on the morning of the next day of hearing. The Union wants to have the information, and presumably speak to the client, before the grievor’s testimony is finished in chief or begins in cross. I am not persuaded such is necessary. The grievor is the one making the allegation. She can testify as to what she knows. This is not a case where a witness is about to testify in defence of an allegation and thus needs to know the allegations that are being made against them in order to respond. The evidence of the grievor can continue in the absence of the Union having spoken to the client without any unfairness resulting. In contrast, denying the Employer the right to comment on cases brought to its attention after the motion would, arguably, be unfair. Further, the allegation in issue in respect of which the Union seeks the client contact information was particularized by the Union no later than February 7, 2019 and the grievor’s testimony began on April 16, 2019. Given that the Union did not ask for the information until on or about November 21, 2019 it is not in a position to complain of the delay.

4This matter is presently scheduled to continue on December 10 and 12, 2019. Should the grievor find that she is unable to attend on either of these dates due to a medical appointment that cannot be rescheduled, she is to give as much advance notice as possible and provide some documentary evidence of the appointment attended. On December 10, 2019, I will hear any additional submissions the parties wish to make in connection with the Union’s motion for an order that the Employer produce contact information for the client. Following conclusion of the motion, the Union will conclude its examination in-chief of the grievor. The parties are directed to confirm with one another that settlement discussions will then be held during what time remains.