GSB# 2019-0796; 2019-0842

UNION#2019-0302-0025; 2019-0302-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Baumgartner et al)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Avril Dymond Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

November 6, 2020 and November 25, 2020 (by teleconference)

DECISION

1This group grievance has been referred to arbitration pursuant to Article 22.16.1 of the collective agreement. Attempts at mediation were unsuccessful. Article 22.16.1 contemplates the expeditious determination of grievances which cannot be settled. Having considered the representations of counsel for the parties, I make the following case management directions.

Scope of These Directions

2This grievance relates to the Employer’s attempts to locate a cash bag containing a large sum of money which had gone missing from its office. Employees in the office were told that they would be subject to search. The grievance alleges, among other things, the search violated the privacy rights of the grievors. The directions in this decision are limited to two, potentially overlapping, groups of the grievors: those who allege their physical person was improperly searched; and those who allege their personal possessions were improperly searched. Issues related to other groups of grievors are held in abeyance.

Particulars and Production

3On or before May 25, 2021, the Union shall provide the Employer with full particulars and with its production requests.

4On or before June 8, 2021, the Employer shall produce to the Union all requested production or, to the extent it objects to production, shall specifically identify the items which it objects to producing and provide a brief statement of the basis for each such objection.

Declarations

5The evidence 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.

6Declarations 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.

7Documents 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

8On or before August 13, 2021, the Union shall provide the Employer with 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 October 15, 2021, the Employer shall provide the Union with 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.

10On or before November 15, 2021, the Union shall provide the Employer with 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 Employer’s declarations which the Union could not reasonably have anticipated.

Joint Book of Declarations and Documents

11The parties shall prepare a Joint Book of Declarations and Documents containing all declarations and all documents referenced in the declarations of either party, or which are to be filed on consent. The Joint Book of Declarations and 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 Joint Book of Declarations and Documents shall be filed (i.e. sent to the Board, with a copy to the Arbitrator) at least two working days in advance of the hearing date.

Limits on Oral Evidence and Argument

12The hearing is scheduled for November 23, 2021. It shall be conducted in the manner of a consultation. All declarants must be available during the consultation to give evidence if directed to do so by the Arbitrator. Ordinarily, any such evidence will be limited to material facts which, in the Arbitrator’s opinion, appear to be in dispute or require clarification. The declaration of a declarant not available to provide such evidence may be given no weight in whole or in part as determined by the Arbitrator.

13The hearing, inclusive of any evidence, shall be completed in one day. The Arbitrator will allocate time for argument as necessary.

Preliminary Issues

14All preliminary issues, including issues with respect to the adequacy of production or declarations or scope of the declarations (including supplemental or additional declarations, if any) shall be resolved prior to the hearing. If the parties are unable to resolve any such disputes, 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 party.

15No preliminary issues, including objections as to adequacy of productions or declarations or scope of the declarations (including supplemental or additional declarations, if any), may be made at the hearing without leave of the Arbitrator.

General

16The schedule set out in this decision may only be modified with leave of the Arbitrator.

17The Arbitrator retains complete control over the procedures and may vary them as, in his opinion, circumstances warrant having regard to the objectives of Article 22.16.1 procedure.