GSB# 2019-0352

UNION# 2019-5112-0054

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McConnell)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Esther Song Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 9, 2020

DECISION

1This grievance relates to the termination of the Grievor’s employment. Attempts at mediation were unsuccessful. The parties made progress on preparing an Agreed Statement of Facts which it was hoped would avoid the need for most, but not all, of the evidence. A case management session was conducted. Having considered the representations of counsel for the parties, I make the following directions.

Agreed Statement of Facts

2On or before July 27, 2020, the parties shall file an Agreed Statement of Facts. The Agreed Statement of Facts may include facts which one party asserts to be relevant and true but to which the other party objects. To the extent the other party objects, the Agreed Statement of Facts shall include a brief statement of the basis and extent of the objection. The parties shall exchange all documents referenced in the Agreed Statement of Facts.

Declarations

3The evidence in chief of the parties shall take the form of declarations which, subject to the time limits below, may be supplemented by oral evidence of the declarant. The declarations, along with the uncontested facts in the Agreed Statement of Facts, shall set out all the material facts upon which a party intends to rely. The supplementary oral evidence, if any, shall not introduce new material facts. Subject to what follows, declarations are admissible into evidence without the need of calling a declarant as a witness.

4Declarations 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.” If it is not possible to obtain a declarant’s signature, an email from the declarant containing the same statement shall accompany the declaration.

5Documents intended to be relied upon at the hearing shall be properly identified by a declarant unless filed as part of the Agreed Statement of Facts or on consent of the parties.

6Each 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 unless the Arbitrator determines otherwise.

Filing of Declarations

7On or before August 7, 2020, the Employer shall file declarations from each of its intended witnesses. At the same time, the Employer shall provide the Union with copies of any additional documents referenced in its declarations.

8On or before August 27, 2020, the Union shall file declarations from each of its intended witnesses. At the same time, the Union shall provide the Employer with copies of any additional documents referenced in its declarations.

9On or before September 25, 2020, the Employer shall file any supplemental or additional declarations upon which it intends to rely. Any such declarations will be limited to additional facts which reply to the facts set out in the Union’s declarations which the Employer could not have anticipated.

Joint Book of Documents

10The parties shall prepare a joint Book of Documents containing all documents referenced in the Agreed Statement of Fact or the declarations of either party, or which are filed on consent. The Book of Documents shall be in PDF format, “tabbed” and with pages numbered sequentially. Documents to which one or the other of the parties objects shall be included but identified as in dispute. The Book of Documents shall be filed at least seven days in advance of the first day of hearing. Filing shall be by way of uploading to dropbox.

Limits on Oral Evidence and Argument

11The opening statement for each party shall not exceed 15 minutes.

12Supplementary oral evidence in chief shall be limited to 15 minutes per declarant.

13The Parties will make best efforts to ensure any cross examination of witnesses will be limited to no more than 180 minutes in total.

14The Employer’s final argument shall not exceed 120 minutes in total. The Union’s argument in response shall not exceed 150 minutes. The Employer’s reply shall not exceed 30 minutes.

15Time limits under this section may only be extended by leave of the Arbitrator.

Preliminary Issues

16All preliminary issues, including issues with respect to the adequacy of declarations or scope of the declarations (including supplemental or additional declarations, if any) or production shall be resolved prior to the hearing. If the parties are unable to resolve any such disputes 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. Where the dispute relates to the production of a document, an un-redacted copy of the document shall be filed with the Arbitrator in advance of the conference call, along with a copy of any redacted version of the document which has been provided to the other parties. No preliminary issues, including objections as to adequacy of declarations or scope of the declarations (including supplemental or additional declarations, if any), or production of documents may be made at the hearing without leave of the Arbitrator