Ontario Public Service Employees Union (Gardiner et al) v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 52049

GSB# 2018-1201; 2018-1202

OPSEU# 2018-5112-0090; 2018-5112-0091

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gardiner et al)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

July 2, 2020 (via teleconference)

INTERIM DECISION

1This matter involves the termination grievance of Luke Gardiner. The hearings into this grievance are scheduled to resume on July 13, 2020. The employer seeks an adjournment of the July 13 hearing, but the union opposes the motion. This decision deals solely with the employer’s motion for adjournment.

2The employer sought adjournment of the July 13 hearing on the basis that it was prepared to schedule a replacement date on September 24, 2020, which would be less than two weeks after the last scheduled hearing date for this case. The employer argued that this would result in minimal delay to the end of the case.

3The employer asserted that it would be difficult to make use of the July 13 hearing date because the employer’s reply witness is no longer an employee of the Ministry, and the employer was required to make special arrangements in order for the witness to review materials as part of his preparation for testifying. The employer asserted this would be difficult in normal circumstances, but that, given the extra complication of the Covid-19 restrictions, it was not realistic that the employer would be able to prepare the witness in a meaningful way prior to July 13.

4The union argued that it would not be appropriate to adjourn this case, given that it is a termination case and that the grievor has been out of work and living with the uncertainty of the arbitration process for a considerable period of time. The union pointed out that the September date agreed to previously was a back-up date in case the hearing did not conclude in August, as the parties expected and, therefore, adjourning the July 13 date would result in the conclusion of the case being delayed by a month, not one or two weeks.

5After considering the submissions of the parties, it is my conclusion that the adjournment should be granted. I note first that there have been previous issues with respect to scheduling and both parties have been very cooperative in agreeing to the earliest dates possible. Thus, there is no evidence that the employer request for an adjournment was part of a pattern of delay associated with this case. It is also significant that the parties are available for a replacement date that is within two weeks of the last day scheduled for this matter. Third, I take at face value the logistical difficulties described by employer counsel, and it is my view that those factors would likely result in less than optimal use of the July 13 date. This means that it is more likely than not that the parties would be required to use the previously scheduled date in September. Finally, even if that were not the case, the delay to the conclusion of the case caused by an adjournment will be approximately one month. This is not a period of time that is extraordinary, given the complications described by employer counsel and the additional problems associated with the pandemic.

6As a result, the hearing on July 13, 2020 is adjourned, and September 24, 2020 will be substituted as the “third” date, should it be required.