GSB# 2016-0135; 2016-0265; 2016-0690; 2016-1216; 2016-1356; 2016-1357; 2016-1358; 2016-1359; 2016-1364; 2016-1365; 2016-1366; 2016-1367; 2016-1368; 2016-1440; 2016-1509; 2016-1510; 2016-1531; 2016-1532; 2016-1720;

2016-1911

UNION# 2016-0229-0002; 2016-0229-0004; 2016-0229-0008; 2016-0229-0012; 2016-0229-0022; 2016-0229-0023; 2016-0229-0024; 2016-0229-0025; 2016-0229-0017; 2016-0229-0018; 2016-0229-0019; 2016-0229-0020; 2016-0229-0021; 2016-0229-0027; 2016-0229-0029; 2016-0229-0030; 2016-0229-0031; 2016-0229-0032; 2016-0229-0037;

2016-0229-0039

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cody et al)

Union

• and -

The Crown in Right of Ontario (The Ministry of the Solicitor General)

Employer

BEFORE

Jasbir Parmar

Arbitrator

FOR THE UNION

Christopher Bryden (Counsel) Ryder Wright Blair & Holmes LLP

David Ragni (Counsel) Koskie Minsky LLP

FOR THE EMPLOYER

George Parris (Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

November 19, 2019 (by teleconference)

Interim Decision

1There are two distinct Union parties in the present case, represented by two separate counsel. Mr. Cody, Mr. Durocher, and Mr. Wong are, together, one party, and Mr. MacDonald is the other. When I am referring to the first group of individuals as a group, I will use the term “the Cody Group”. This will apply to all of the decisions that will be issued in this matter.

2This decision addresses a number of preliminary issues:

a) An accommodation request by the Cody Group with respect to the hearing procedures;

b) A request for production by the Cody Group from the Employer; and

c) A motion to consolidate certain grievances by the Cody Group.

a) Accommodation Request

3A request for accommodation of the hearing procedures was first initiated by letter from counsel for the Cody Group by letter dated February 28, 2019, enclosing certain medical documentation, and stating that the Cody Group requested to “be accommodated during these proceedings in a manner consistent with and in compliance with these medical notes”.

4The accommodation request was discussed during a conference call with all counsel on March 4, 2019. Pursuant to that discussion, the Board issued an interim decision, dated March 6, 2019. Therein counsel for the Cody Group was directed to advise, amongst other things, as “to the specific accommodation being requested on behalf of each specific grievor”. The purpose of such direction was to ensure that there was clarity as to what was being sought, so that the other parties and the Board could consider and respond to the request in an informed manner.

5Further to that direction, on March 22, 2019, counsel for the Cody Group wrote to the Board advising the following:

i) The Accommodations Sought

Based on the medical documents provided, the three Cody et al Grievors have directed me to request the following accommodations for the GSB proceedings:

1. That the hearing proceed in a larger location with multiple exits.

2. Uniformed police presence during the proceedings.

3. A mandatory hand-held metal detector scan of all personnel entering the vicinity or building where the hearing will be, and for the metal detector to be used after any breaks or recesses and prior to the proceedings resuming.

4. An order and precautions to be put in place to ensure that the Cody et al Grievors will not be left alone with Mr. MacDonald at any time within the vicinity of the proceedings.

6At the hearing scheduled for March 25, 2019, case management issues, including the accommodation request, were discussed (only counsel were present). I inquired of counsel for the Cody Group whether there were any other accommodations being sought, and was advised he was instructed only to seek those identified. Since counsel for Mr. MacDonald and counsel for the Employer had not had an opportunity to consult with their clients about the specific accommodation requested, I indicated they were to advise as to their position by April 12, 2019.

7On April 12, 2019, counsel for Mr. MacDonald wrote to the Board and advised that it was Mr. MacDonald’s position that a basis for accommodation had not been established through the medical documentation submitted. He also requested an opportunity to challenge the medical documentation, asking that the authors of the medical documentation be required to provide viva voce evidence.

8Similarly, on April 12, 2019, counsel for the Employer wrote to the Board and advised that it was the Employer’s position that the medical documentation did not properly substantiate the need for accommodation. That said, counsel for the Employer noted that the Employer had no objection to the hearing process being structured such that the Cody Group could participate via video or teleconference.

9On April 12, 2019, counsel for the Cody Group also wrote to the Board. He indicated a concern with engaging in a lengthy process to address the accommodation issue. Specifically, he stated as follows:

We would note however our concern with the prospect of calling the medical practitioners to testify regarding the accommodations being sought. If Mr. MacDonald’s position (as articulated by his OPSEU counsel) is accepted… we will have to wait many months and utilize valuable GSB hearing time hearing from medical practitioners on a procedural issue, rather than dealing with the merits of the case. There are likely better alternatives to this means of proceeding.

We wish to make further submissions and arguments on this particular issue, and per the Board’s Order of March 6 we understand we will be afforded a further opportunity in that regard.

10In a decision dated May 13, 2019, I stated that the “proper method for resolution of the accommodation issue must still be determined and it may well include viva voce evidence.” I indicated, however, that I would delay addressing that issue until after September 15, 2019, in light of my determination to grant Mr. MacDonald’s request for an adjournment for a period of time (given the pending criminal trial) and the fact that there may be bail conditions placed on Mr. MacDonald that may impact the issue.

11Accordingly, a teleconference was convened on November 19, 2019 to address the issue of the proper method of resolving the accommodation issue. At that time, counsel for the Cody Group made submissions about why the medical documents should be accepted on their face as supporting the accommodation request.

12Counsel for MacDonald meanwhile rejected that notion, submitting that the documentation did not in fact establish a medical disability for each of the individuals in the Cody Group, was unclear as to the actual restrictions which flowed from such medical disability where one was indicated, and was internally inconsistent in a manner which suggested the doctors did not really understand the judicial nature of the GSB process.

13Counsel for the Employer echoed those submissions in asserting a need to challenge the medical, particularly in light of the extraordinary nature of the request. He noted that individuals with disabilities are entitled to suitable accommodation, but the medical documents raised a concern that the nature of the request was really a reflection of the Cody Group’s preferred or ideal method of proceeding. He also raised concerns about the Board’s jurisdiction to even grant the various items listed in the request. One such example is whether the Board has the jurisdiction to require other individuals (those not part of this specific matter) who are entering the building where the proceeding is held to subject themselves to metal detector scans.

14In my view, the concerns raised by counsel for MacDonald and counsel for the Employer about whether the medical documentation substantiates the request for accommodation are genuine and reasonable concerns. For example, in one note written by Mr. Cody’s doctor, the doctor states that Mr. Cody should not have any visual or verbal contact with Mr. MacDonald because it could adversely affect his mental and physical well-being, but then goes on to say Mr. Cody can have such contact with Mr. MacDonald in a court of law if a judge is presiding. There is no explanation of how the judge makes a difference, a short-coming of significance since it certainly is not self-evident. Another example is a note written by Mr. Durocher’s doctor. Therein he states that Mr. Durocher should not be required to attend at the GSB at the same time and location as Mr. MacDonald because it will severely and significantly increase Mr. Durocher’s PTSD symptoms. However, there is nothing to indicate the doctor is aware that Mr. Durocher attended at the same time and location at the court in respect of the criminal proceedings. Those are just two of many other points where the medical documentation is less than clear on its face.

15While counsel for the Cody Group submitted that the doctors should not be required to provide viva voce evidence because it would lead to additional cost and delay, as well as disruption of the practice of those medical practitioners, there was no suggestion of an alternative method that would enable the other parties to have their concerns about the medical documentation fairly addressed. It was only submitted that I should simply accept the medical documents on their face as being sufficient to grant the accommodation requested. I have determined that such a conclusion is not appropriate given the nature and quality of the documents, the genuine and legitimate concerns identified by the other parties, and the extraordinary nature of the specific accommodations requested. In light of that, it would be a violation of the principles of natural justice to deny the other parties an opportunity to challenge documentary evidence where such evidence was being used to make significant decisions, even if those decisions are about procedural matters.

16That said, I observe there is another matter that touches upon the appropriate hearing procedures in this case. Mr. MacDonald is presently subject to a three-year common law peace bond, commencing August 13, 2019. The terms of the peace bond require that Mr. MacDonald have no contact, direct or indirect, with the Cody Group, nor be within 100 metres of any place he knows them to reside, work or be, except “for the purpose of preparing for and attending at grievance proceedings, in accordance with the rules and directions as established by Chair or his designate.”

17It was acknowledged by all counsel during the teleconference that the Board has a broad jurisdiction to determine its own procedure, including determining the specific format of the proceeding. Such jurisdiction includes determining whether the hearing will be held in person, in writing, or some alternative method.

18In light of the peace bond, I have determined that this matter shall proceed in a manner which does not require the Cody Group to attend in person except for the purpose of testifying. I emphasize that this is not a direction that they cannot be present; only that they are not required to, and if they wish, may elect to not attend in person. They are to advise the Board by December 9, 2019, through their counsel, if they will be participating in person.

19If any of the member of the Cody Group elects to not participate through personal attendance at the hearing, arrangements will be made for him to participate via video conferencing from another location. Recesses will be granted as appropriate to allow counsel for the Cody Group to consult and obtain instructions. When any of the Cody Group who have indicated they will not be participating in person are testifying, Mr. MacDonald will participate via video conferencing from another location. Again, appropriate recesses will be granted.

20This process should not be interpreted as reflecting any determination by the Board that there is an actual risk posed by Mr. MacDonald to any one attending at the arbitration hearing. It is simply a process designed to acknowledge the existence of the peace bond.

21Returning to the accommodation request, it appears to be premised on the Cody Group being required to attend at the same location as Mr. MacDonald during the arbitration proceeding in order to participate. Given my determination above, there is no such requirement. Accordingly, the request is moot, and need not be determined.

b) Production

22As discussed during the teleconference, the Employer is ordered to produce the following by December 6, 2019:

i) all emails, notes, documentation or correspondence of any kind related to any WDHP or respectful workplace complaints made by the Cody Group or other Ministry Staff at any time related to Mr. MacDonald since January 1, 2007;

ii) all internal correspondence related to medical accommodations and scheduling changes made at the institution in response to the complaints made by the Cody Group prior to the end of 2018; and

iii) a copy of Mr. MacDonald’s entire personnel file, redacted to remove unnecessary personal information, subject to an undertaking by counsel for Cody et al that he will maintain only one copy of the file.

23The Employer is also ordered to produce by January 17, 2020 all internal correspondence related to other accommodations made at the institution in response to complaints by the made by the Cody Group.

c) Consolidation

24I confirm the parties have agreed to have the following grievances heard together with grievances that already form part of this proceeding: 2017-0229-0028 and 2017-0229-0064.