GSB#2017-0402

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Botari)

Association

• and –

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

March 7, 2019

Decision

1This is a discharge case. The Employer terminated the Complainant’s employment on the basis he claimed compensation from both the Employer and the Canadian Armed Forces for the same blocks of time during the period 2011 to 2013. The Complainant denies this allegation.

2The Association objects to the Employer calling its final witness. This decision determines that objection.

3The Association has repeatedly requested the names of the Employer’s witnesses in advance so that it might prepare for cross examination. On the last day of the hearing, the Employer finally advised the Association that it intended to call a sergeant with human resources responsibilities at CFB Borden. This was the first time the Employer clearly indicated an intention to call a witness with such responsibilities. It represented to the Association that the sergeant would be its last witness. Between that day and the next scheduled day of hearing, the Employer provided the Association with a declaration from the sergeant setting out her evidence in chief. I understand that evidence was directed to the manner in which time sheets are maintained for reservists at CFB Borden. The Association advised the Employer it would object to the evidence on the basis the sergeant had no direct knowledge of the practices at the relevant time. The Employer advised the Association that it would call instead a retired colonel, Gregory Stasyna. The Employer asserts that Colonel Stasyna has direct knowledge of the time sheet practices during the relevant period of time.

4The Association objects to the Employer calling Colonel Stasyna. The Association argues the hearing has been unduly protracted with many false starts. It has been very accommodating of the Employer, but enough is enough. Permitting the Employer to call Colonel Stasyna would further lengthen the proceedings. The Association’s cross examinations have been based on assumptions as to the witnesses the Employer intended to call. The Employer only disclosed its intention to call someone with knowledge of the time sheets as its case was concluding, and specifically represented the witness it would call was the sergeant. Since the Association was told no one other than the sergeant would be called, the Association was entitled to rely on the fact that no one with direct knowledge with respect to the time sheets would be called. Someone with knowledge of the time sheets should have been the Employer’s first witness not its last.

5While I understand the frustration of the Association, I am not persuaded by its arguments. A party has no obligation to call witnesses in any particular order. I am not persuaded that the Association has suffered any prejudice from the late disclosure by the Employer of its intention to call someone with knowledge of the time sheets. One of the first witnesses called by the Employer was a corporal who had been involved in the Canadian Armed Forces’ investigation of the Complainant. The corporal was cross examined about his knowledge of the manner in which time sheets are maintained for reservists. All of the Employer’s other witnesses to date are not members of the Canadian Armed Forces and there was no suggestion that they had any knowledge on that subject. Even if the Association had understood that Colonel Stasyna would be called, it is not apparent how it could have affected the Association’s cross examination of those witnesses.

6In the alternative, the Association seeks an order directing the Employer to provide a declaration setting out Colonel Stasyna’s evidence in chief within two weeks. The Employer indicates it is prepared to provide a declaration from Colonel Stasyna if possible, but notes that he is not within their control. Noting other commitments of its counsel, the Employer suggests an appropriate date would be the end of the first or second week of April.

7The next scheduled hearing date in this matter is May 1, 2019. There are five further dates scheduled after that, the last of which is July 10, 2019. Counsel for the Employer will then be leaving on an extended leave. One of the challenges in this matter has been striking the balance between the interests of the Complainant in having the matter determined as quickly as possible and the Employer’s choice of counsel. Having regard to this and the representations of the parties, I make the following orders:

a. By April 1, 2019, the Employer is directed to file the evidence in chief of Colonel Gregory Stasyna (the “declarant”) in the form of a declaration. This requirement may be varied only with the agreement of the Association or with leave of the Arbitrator, and subject to such additional conditions as the Arbitrator may impose.

b. The declaration 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. Documents intended to be relied upon at the hearing shall be properly identified by the declarant and shall accompany the declaration unless already filed as exhibits at the hearing. The 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.”

c. No statement in the declaration shall be considered to be in evidence until the declarant adopts it during the hearing. The Employer may then amplify the evidence in the declaration through viva voce evidence. The time spent in eliciting that evidence shall not exceed 10 minutes, or such further time as may be permitted by the Arbitrator.