GSB# 2013-2633

UNION# 2013-0164-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cupskey)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Jasbir Parmar

Arbitrator

FOR THE UNION

Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

TELECONFERENCE

February 28, 2020

Decision

INTRODUCTION

1This decision addresses a motion for dismissal by the Employer, and a motion for adjournment by the Union.

2The history of this matter is outlined in detail in two earlier decisions. For the sake of convenience, I will set out the history in a summary fashion.

3In August 2013, the Grievor filed a grievance alleging improper denial of a posted position. The Grievor, a part-time warehouse worker, sought to obtain a full-time position in the same classification. The Grievor was denied the posted position due to his attendance record. The Grievor alleges his attendance is impacted by a mental health disability, and that the denial was therefore discriminatory.

4On August 23, 2018, the Board held a mediation, which the Grievor attended. Unfortunately, the matter was not resolved. It was then set down for arbitration, for hearing on November 8, 2019. Without giving advance notice, the Grievor did not attend the hearing but instead attended work. The Employer indicated it wished to make a motion to dismiss on the basis of the non-attendance. However, I declined to hear the motion and adjourned the matter, indicating the Grievor would have the opportunity to explain the non-attendance, and provide medical documentation if the explanation involved a medical reason. Subsequently, the Union, not the Grievor, provided an explanation based on information provided to it by the Grievor. The explanation referenced a “mood disorder”. The medical documentation provided was a brief note from his doctor, Dr. Chawla, which stated the grievor had “multiple medical problems” and was not fit to attend the hearing. A medical requisition form for an MRI accompanied the note.

5Upon receipt of that medical documentation and the explanation provided by the Union on the Grievor’s behalf, the Employer then made a motion to dismiss. The Union, on the other hand, made a motion to adjourn sine die until the Grievor was fit to attend. In a decision dated November 27, 2019, I determined it was not appropriate to grant either motion at the time, on the basis that additional medical information needed to be obtained, directing certain steps the Union and the Grievor were required to follow in that respect.

6Subsequently, the Union provided me with a letter from Dr. Chawla, dated February 12, 2020.

We are in receipt of your fax dated January 21, 2020 requesting further details about Mr. Cupskey’s condition from his family doctor.

You have requested his family doctor to answer specific question. I will answer these questions in the order you have asked them.

a) Is the Grievor able at the present time to attend for the legal proceeding?

The answer is no.

b) If the answer to question (a) is no, what is the nature of the medical condition (not the diagnosis) which prevents him from doing so, and what are the specific restrictions flowing form that condition which bar his attendance?

Mr. Adam Cupskey is a very nervous person and gets scared in the presence of people with authority and would not be able to answer correctly under pressure.

c) If the answer to question (a) is no, is it possible at the present time for the Grievor to attend for the legal proceeding if some form of accommodation is provided? If so, what are the specific restrictions flowing from his medical condition which require accommodation?

It would be mentally challenging for him to be a reliable witness, for the above reasons, maybe he can sign an affidavit with the help of legal counsel.

d) If the answer to question (a) is no, is it anticipated the Grievor will be able to attend, with or without accommodation, at some point in the future? If so, what is that anticipated date?

I have known Adam Cupskey for over 15 years. It is my opinion that he would be unable to do so as he has problems focusing and concentrating with no particular predictable fashion. He may be ok at time and may behave entirely differently a few minutes later.

e) On November 8, 2019, the Grievor was scheduled to attend at the legal proceeding. He did not attend. Rather, he attended at work on that same date to perform his job duties as a warehouse worker. Are you aware of any medical explanation specific to the Grievor’s health on that date that would render him unable to attend the legal proceeding but be fit to perform his job duties.

Insecurity as mentioned above. He felt more secure and comfortable with less pressure to go to work in familiar surroundings.

I sincerely hope that this information would help you since I do not have the permission to go in to detail of his clinical diagnosis.

7Based on the recent medical information, the Union seeks an adjournment sine die. The Union acknowledged that it could not proceed in this case without the Grievor attending and giving evidence as a witness. This acknowledgment is a reflection of the reality that the legal onus in a job posting case lies with the Union; that the legal onus to establish the existence of a disability also lies with the Union; and that the Union will have to proceed first with its evidence and witnesses in this case. The Union submitted that an adjournment should be granted until the Grievor’s condition improves, and advised that the Grievor was going to speak to his doctor about a referral to a psychologist.

8The Employer opposed the Union’s motion, and renewed its motion to dismiss the grievance. In addition to relying on its earlier submissions on this issue, the Employer submits there is no basis to adjourn given there is no indication the Grievor’s condition will change. Furthermore, the Employer submits that, regardless of the reasons for the Grievor’s inability to proceed with hearing, it is an abuse of process and a denial of natural justice to the Employer to adjourn a matter indefinitely when there is no basis to conclude the situation will change.

9In addition to the authorities cited on these issues in the November 2019 conference call in this matter, the parties also cited the following: Biondic v. Intact Financial Corp., [2017] O.H.R.T.D. No. 86; Budget Car Rentals Toronto Ltd. – and – UFCW, Local 175 (Botan Grievance), 2000 O.L.A.A. 33 (Davie); OLBEU (Kevin Gamble) – and – Crown in Right of Ontario (LCBO), GSB#1635/96; OPSEU – and – Ontario (MCSCS), 2018 O.G.S.B.A. 106; Toronto District School Board – and – CUPE, L4400, 2010 CarswellOnt 11664 (O’Neill); Pepsi-Cola Canada Ltd. – and – Teamster, Local 938, 1999 CarswellNat 3325 (Carrier); Hospital Employees’ Union – and - Fraser Health Authority (Surrey Memorial Hospital Site), 2002 CarswellBC 4285 (Dorsey); Sunnybrook Health Sciences Centre – and – ONA (Armes), 2010 CarswellOnt 11716 (Stout); and Hamilton (City) – and – ATU, Local 107, 2008 CarswellOnt 10456 (Chauvin).

ANALYSIS

10I have determined that there is no basis to grant the Union’s request for an adjournment. In reaching this conclusion, I have given regard to the relevant factors to consider in granting an adjournment as outlined in OPSEU – and – Ontario (Ministry of Transportation), [2015] O.G.S.B.A. No. 158: the nature of the grievance, the timing of the request, the reason for the request, the length of the requested adjournment, and the prejudicial effect of granting or not granting the request. I have also considered the possibility that the conduct of this proceeding may have to account for a medical disability, and for that reason the Grievor has been given two opportunities to present medical evidence to the Board to establish the existence of a disability that may require accommodation.

11I have concerns that Dr. Chawla’s letter does not establish the Grievor has a mental health disability. Rather, it indicates the Grievor is a “very nervous person”, “gets scared”, and has “insecurity”. Even if I were to accept, as suggested by the Union, that Dr. Chawla may have been referencing these as symptoms of a mental health disability that exists while trying to avoid going “in to detail of [the Grievor’s] clinical diagnosis”, there is no basis to conclude that there is any accommodation, short of undue hardship, that would enable the Grievor to participate. The only suggestion the doctor had was that the Grievor could provide an affidavit. However, the Employer has a fundamental right, consistent with the principles of natural justice, to cross-examine the Grievor and challenge any evidence presented by him. Thus, the Grievor would still have to testify as a witness even if he presented an affidavit.

12While the Union suggested that the adjournment itself would be the accommodation, an opportunity for the Grievor’s condition to improve, perhaps through seeing a psychologist, the conclusion that there is any practical value to an adjournment is directly contradicted by the medical evidence before me. Dr. Chawla has treated the Grievor for over fifteen years, and is therefore in a good position to comment on the Grievor’s prognosis. He has expressed the unequivocal opinion that there is no likelihood of any change sufficient to enable the Grievor to participate in this proceeding. As such, there is no reasonable basis to conclude that an adjournment would lead to the Grievor eventually being able to participate in the future.

13The Employer has made submissions that this grievance should be dismissed because the Grievor has not been compliant with this Board’s directions and has not conducted himself appropriately in the course of this proceeding. I have not addressed those submissions, because in the circumstances of this case I do not find it necessary to do so. I refer to Biondic v. Intact Financial Corp., supra. In that case, the Tribunal noted that lengthy delay can constitute an abuse of process to the administration of justice. In doing so, the Tribunal noted that in determining whether it would be inappropriate for a proceeding to continue is not dependent on a finding that a party’s conduct is due to culpable factors. Rather, the focus is on the impact of that conduct on the proceeding. In the present case, even if I were to accept that the Grievor has a medical disability which impacts his ability to attend and that he is not to be faulted for that, the reality is that, based on the medical evidence, there is no reasonable prospect that this matter can ever proceed.

14This is a job posting grievance. As such, this is not a matter that, if dismissed, will result in the Grievor losing his livelihood. Furthermore, dismissal of the grievance will not prevent the Grievor from seeking a full-time position in the future. In addition, the events at issue in the grievance are already over six years old, with 18 months of that time having passed since the matter was first set down for mediation. It is generally acknowledged that delay of this length prejudices a responding party, given the reality of fading memories and relevant witnesses becoming unavailable. The Employer advises that some individuals connected to this matter have already left the Employer’s organization over these past several years. A further delay, until some unknown and unforeseeable point in the future, would only increase that prejudice. Lastly, there is no rationale objective in adjourning the matter since there is no basis to conclude this matter can proceed at any point in the foreseeable future.

DISPOSITION

15The Union’s motion for an adjournment is denied. The grievance is dismissed.