GSB# 2017-1169; 2017-1245; 2017-1791

UNION# 2017-5112-0185; 2017-5112-0191; 2017-5112-0228

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gell)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

John Brewin / Manprit Singh Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 1, 2019

DECISION

1This is a referral of three grievances under Article 22.16 of the collective agreement between the parties.

2The grievances arise from a local Compressed Workweek Agreement (“CWWA”) entered into by the parties on December 17, 2013 with respect to the Toronto South Detention Centre.

3The parties agree the relevant period of time is July 1, 2017 to March 4, 2018.

4Article 22.16 provides for the resolution of grievances “in an expeditious and informal manner”. Decisions reached are of no precedential value unless the parties agree otherwise. The mediator/arbitrator is to endeavour to assist the parties in settling the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16 empowers the mediator/arbitrator to “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”.

5Attempts to resolve this matter through mediation were unsuccessful.

6Having considered the representations of the parties, I make the following case management directions.

Initial Production

7On or before March 29, 2019, the Union shall finalize its production requests to the Employer.

8On or before April 30, 2019, the Employer shall produce to the Union the documents which it has requested or, to the extent the Employer objects to producing a document in whole or in part, briefly state its reasons for each such objection.

Declarations

9The evidence in chief of the parties shall take the form of declarations. The declarations shall set out all the material facts upon which a party intends to rely. Subject to what follows, declarations are admissible into evidence without the need of calling a declarant as a witness.

10Declarations may contain statements based on information and belief in addition to statements based on personal knowledge of the declarant. When a statement is based on information and belief, the declaration shall so indicate and give the source. Statements which are based on information and belief may be given less or no weight, as determined by the Arbitrator. Each declaration shall be signed by the declarant and will contain the following statement: “This declaration was prepared by me or under my instruction and I hereby confirm its accuracy.”

11Documents intended to be relied upon at the hearing shall be properly identified by a declarant unless filed on consent of the parties.

Filing of Declarations and Representations

12On or before May 30, 2019, the Union shall file full written representations which shall include: a statement of all issues which the Union intends to raise; the remedies it seeks; and full particulars in support of its positions. This shall include full particulars with respect to the accommodation the Union states could have been provided to the Grievor in the Health Care Unit to enable him to work his regular hours within fewer shifts and full particulars of any evidence on which it relies in response to the Employer’s jurisdictional argument. The Union’s representations shall be accompanied by declarations from each of its intended witnesses and the documents on which it intends to rely.

13On or before June 28, 2019, the Employer shall file full written representations which shall include: a statement of its position with respect to all issues raised and all remedies sought by the Union; a statement of any additional issues which it intends to raise; and full particulars in support of its positions. The Employer’s representations shall be accompanied by declarations from each of its intended witnesses and the documents on which it intends to rely.

14On or before July 5, 2019, the Union shall file any supplemental or additional declarations upon which it intends to rely together with any additional requests for production arising from the Employer’s full written representations and filed declarations referred to in Paragraph 13.

Limits on Oral Evidence and Argument

15The arbitration hearing is scheduled for August 29, 2019. Time allocation will be applied. Each party shall have three hours in total. Time spent leading evidence, cross examining, making objections and making final argument shall all be considered to be part of each party’s allocated time.

16Each party may cross-examine any declarant of a declaration filed by the other party. A party which intends to cross-examine the declarant of a declaration at the hearing shall, at least 14 calendar days before the first date of the hearing, give notice of that intention to the other party. The party which submitted the declaration shall be responsible for ensuring the declarant’s attendance at the hearing. If such a declarant does not attend, no weight will be given to the declaration filed on behalf of that declarant.

17Time limits under this section may only be extended by leave of the Arbitrator.

Preliminary Issues

18All issues with respect to the adequacy of declarations or scope of the declarations (including supplemental or additional declarations, if any) or production shall also be resolved prior to the hearing. If the parties are unable to resolve any disputes about the adequacy of declarations or scope of the declarations (including supplemental or additional declarations, if any) or production of documents following the completion of the exchange of declarations, a pre-hearing conference call will be scheduled on the request of a party to hear submissions and decide the issue.