GSB# 2016-0473; 2016-1897; 2016-2205; 2017-0263; 2017-0264

UNION# 2016-0504-0007; 2016-0504-0008;

2016-0504-0010; 2017-0504-0001; 2017-0504-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Di Matteo)

Union

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

Janice Johnston

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

October 24, 2018; February 15, May 8, 14, 2019; July 22, 2020; January 15, 2021

Decision

1This matter commenced in 2017 before Arbitrator Felicity Briggs. As she tragically passed away very suddenly, I agreed to assume carriage of this case. It has been a very difficult and challenging one. On January 15, 2021 I heard the submissions of counsel as to whether this matter should be dismissed for:

i) abuse of process;

ii) and total disregard on the part of the Grievor to comply with any of my interim orders dated May 15, 2019, May 29, 2019, and July 22, 2020.

The Facts

2The saga that leads us to where we are now started with a decision dated May 15, 2018 by Arbitrator Briggs. She wrote as follows:

Decision

1This Board has before it a number of grievances filed by Ms. Lilianna DiMatteo that include allegations of harassment and unjust dismissal. A matter has arisen subsequent to our first day of hearing that necessitates this order.

2It is of some assistance if some history is set out. Prior to our first day of hearing, the Union requested - on behalf of the Grievor - that she be allowed to attend the hearings into this matter by way of teleconference. Given that our first day was being utilized only for the purposes of opening statements and case management, the Employer agreed in a quickly scheduled teleconference – without prejudice – to allow the Grievor to attend the April 24, 2018, hearing day via teleconference. However, the Employer made clear on our first day that it objected strenuously to the Grievor’s failure to attend the hearing in person – particularly given the nature of the dispute. After hearing arguments in this regard, I reserved my decision.

3The only medical note that I have seen to date stated that the Grievor was unable to attend our April 24, 2018 hearing day due to “medical reasons.” In attempting to determine how this matter should proceed I then notified the parties on April 25, 2018, that more medical information was required.

4A further teleconference was held in this regard wherein this Board instructed the Union that further medical information was required in order to make a decision regarding the Employer’s motion to deny the Grievor’s request to attend the hearing by way of teleconference. During that discussion I asked Union counsel, Mr. Hannigan, to contact the Grievor’s physician and ask for further information. I made clear that although I do not need to know the Grievor’s diagnosis, the phrase “medical reasons” is insufficient information in order for this Board to determine the Employer’s motion to deny the Grievor’s request. We also discussed that given the Union is putting its evidence forward first and the Grievor is to be the first witness, the requested medical information was needed without delay. I made clear that the hearing cannot continue until a decision is made regarding the Grievor’s attendance at the hearing.

5On May 8, 2018 Mr. Hannigan sent an email requesting another teleconference to discuss a problem with the requested information.

6At the conference call held on May 14, 2018, Mr. Hannigan informed counsel for the Employer, Mr. Huang, and the Board that he had drafted questions for the Grievor’s physician to answer. Mr. Hannigan told the Board and Mr. Huang that the Grievor refused to consent to this information being provided by her physician at the request of Union counsel. As I understand Mr. Hannigan, the Grievor was of the view that the questions should be from the Employer, not Union counsel.

7To be quite clear, it is this Board requesting further information – not the Employer. Failure to provide the information will oblige me to uphold the Employer’s motion that the Grievor be ordered to attend in person because what little information I have seen to date is for April 24, 2018 only. Having said that, even if the medical note was not restricted to that single day, the information provided was insufficient.

8It is worth noting that on the first day of hearing that the Employer stated that it is most concerned that the Grievor attend the hearings in person due to the nature of this dispute. Amongst other things, the Grievor has alleged harassment from various employer representatives. Mr. Huang suggested that because credibility will be a major issue in this matter, the Employer, those accused of harassment and this Board should be able to see the Grievor at all times during the course of litigation. Mr. Huang also stated during one of our teleconferences that the Employer is at a loss to understand why the Grievor cannot attend at the hearing given that the Union has stated that Ms. Di Matteo is fit to return to work. I understand that view and in order to determine whether to set aside the Board’s normal practice of having people attend in person at the hearing, I need further medical information.

3Arbitrator Briggs wrote a second decision dated June 4, 2018 which again dealt with the request by the Grievor to participate via teleconference. In that decision, she determined that she would allow the Grievor to participate via teleconference. Although the medical documentation provided was quite limited, Arbitrator Briggs concluded that it was sufficient. The relevant portions of the award read as follows:

Decision

3In an effort to determine this matter, this Board requested further medical information. On May 15, 2018, a decision was issued ordering the Union and the Grievor to provide further medical information in this regard.

4On May 22, 2018, Mr. Hannigan provided to Mr. Huang and the Board an electronic copy of a note from the Grievor’s family physician. The note stated, “The above needed to attend the proceedings via teleconferencing on 24/4/18 due to medical illness. This non-attendance is meant to continue beyond April 24/18 due to her anxieties and unable to speak in front of people. These restrictions are indefinite.”

5A conference call was then arranged to allow counsel to make any further comments regarding the Grievor’s request to attend the hearing via tele-conference. The Employer’s view had not changed after reviewing the requested medical note. It was of the view that – given the nature of the issues in dispute in these proceedings – the Grievor should be ordered to attend in person. The Union urged that the Grievor be accommodated as set out by her physician.

6On May 30, 2018, the Board convened a teleconference and provided an oral ruling. As promised, this is a short written decision setting out the ruling.

7After much consideration I am prepared to grant the Grievor’s request to attend the hearing via teleconference. While I fully understand the Employer’s concerns regarding a full and fair hearing for all, the Grievor has provided medical documentation establishing a sufficient medical need for accommodation by way of her attending the hearing via teleconference.

8During the teleconference with the parties, discussion took place to ensure – to the extent possible – that the Grievor has all of the documents in her possession that will be touched upon in this matter so that the hearing can proceed without undue delays.

9Notwithstanding my finding at this time, it may happen that this decision will need to be revisited given the complicated issues in this matter.

4As I noted at the outset, Arbitrator Briggs passed away suddenly and I assumed carriage of this matter. My first day of hearing on the case was on October 24, 2018. At that time, I updated the Grievor as to the process we would be following, introduced myself and indicated that we had agreed to pick up the case where it had left off under Arbitrator Briggs. I indicated to the Grievor that today we had agreed that both counsel would provide a summary of what had taken place so far in the case. I told the Grievor that her evidence in chief had been completed and that on the next hearing day Counsel for the Ministry would commence his cross examination.

5During this initial day of hearing, which was very brief, the Grievor was at times quite rude. She interrupted me mid-sentence on several occasions. She seemed to have trouble hearing me on occasion and demanded in a loud, belligerent voice that I “speak up” or indicated that “I can’t hear you” in a very irritated tone.

6The case continued on February 15, 2019 and again on May 8, 2019. The behaviour of the Grievor on May 8^th was intolerable. She was argumentative, rude and refused to answer questions put to her in cross-examination by counsel for the employer, even when I directed her to do so. I eventually felt I had no choice but to stop the proceedings.

7On May 15, 2019, I issued an Interim Decision. The relevant portion reads as follows:

[3]…We have had two hearing days in this matter in which the Grievor has participated via teleconference. On the last day of hearing, May 8, 2019 the Grievor was being cross-examined. She was very argumentative, abrupt and rude. She constantly questioned the need to answer what she was being asked and often initially refused to answer. Despite being repeatedly told to answer the questions being asked she was very difficult. She frequently challenged counsel for the employer in a very loud voice. On a couple of occasions, she launched into a tirade and refused to listen to what was being said to her. It is apparent to me that she either does not understand that she is participating in a legal proceeding or does not care. In any event her behaviour is completely inappropriate and unacceptable.

4In her June 4th decision Arbitrator Briggs noted that the decision to allow the Grievor to participate via teleconference may need to be revisited. That time has arrived as clearly the current process is not feasible.

5The medical documentation provided is almost a year old. Assuming it is still relevant and accurate, the basis for the need to participate by teleconference appears to be “due to her anxieties and unable to speak in front of people”. Therefore, to accommodate the Grievor, she will be able to continue to participate via teleconference and will not be required to appear in person at the hearing. However, she is directed to attend at the union’s office located on Victoria Park Avenue and participate via teleconference in the company of her counsel. She has attended there before to meet with her counsel. The exact address is: 2550 Victoria Park Ave., Suite 400, Toronto, ON, M2J 5A9. The telephone number is 1-844-845-5394. Arrangements have been made for her to sit privately with her counsel in Room #1.

6This matter is scheduled to continue on Thursday, May 23, 2019. The employer and I will be attending at the Grievance Settlement Board. The Grievor is directed to attend at the union’s office on May 23rd at 9:30 a.m. The hearing will commence at 10 a.m. and counsel for the employer shall resume his cross-examination of the Grievor at that time.

8The decision to have the Grievor attend at the union’s office was made in consultation with counsel. The hope in doing so was that union counsel would be able to keep her focused and ensure that she answered the questions she was being asked. It was also hoped that she would stop arguing with employer counsel and myself. On several occasions during the hearing when she refused to answer questions and I instructed her to do so, she still maintained, “I do not have to answer that.” Both counsel agreed that attending at the union’s office with her counsel fit within her restrictions as we understood them at the time, as her anxieties speaking in front of people, referred to her employer and members of the management team.

9The Grievor refused to attend at the Union’s office. On May 18, 2019 she provided the following medical note from her family doctor: “The above patient is unable to do teleconferencing or videoconferencing and is unable to leave her home to attend meetings. She can only be interviewed in her own home due to medical reasons.” Clearly the Grievor’s doctor was not given accurate information by the Grievor. An arbitration hearing to determine her employment status is neither a “meeting,” nor is it an “interview”. It is a legal proceeding with serious consequences. It is not clear to me what the Grievor told her doctor. Based on her behaviour, which I have had the opportunity to observe in a limited fashion via teleconference, she seemed to have an understanding of the process. She just wanted to control the way she participated in it.

10A conference call with counsel was held. Counsel for the employer asked that I dismiss the grievance as now it appeared that the Grievor was unable to participate via teleconference or videoconference or leave her home to attend at the union’s office. One option we discussed was subpoenaing the doctor to try to figure out what the Grievor’s restrictions were. After a couple of teleconferences with counsel, I issued another short Interim Decision. The direction referred to in paragraph three is to attend at the union’s office. The relevant portions read as follows:

3The Grievor provided counsel for the union with a short, handwritten note from her family doctor which indicated that the Grievor was unable to comply with the direction set out above. Accordingly, counsel for the employer is unable to complete his cross-examination of the Grievor. This case is a legal proceeding in which some of the main issues before me are whether or not the employer had failed in any duty to accommodate the Grievor under the Human Rights Code, whether the employer harassed the Grievor and whether the Grievor had abandoned her position when she refused to return to work. In order to ensure a full and fair hearing on this issue, employer counsel must be provided with the opportunity to cross-examine the Grievor.

4Therefore, after consulting with the parties and hearing their submissions I have determined that it is appropriate to adjourn this matter for a period of six months or until the Grievor is fit to attend at the union’s offices and comply with the direction set out earlier in this award. In the event that the Grievor cannot continue in the proceedings within the next six months, the parties will be afforded the opportunity to make submissions as to whether or not the grievances should be dismissed.

11On November 18, 2019, a conference call was held with counsel. At that time, union counsel indicated that Ms. Di Matteo wished to proceed with her hearing via teleconference as before. I indicated that I was not prepared to have her participate on her own via teleconference and that I expected her to attend and be cross-examined via teleconference from the union’s office with counsel present to ensure she answered the questions she was asked and conducted herself appropriately as she had been directed to do. I was very clear with union counsel, as I had been all along, and he did not disagree that if there was a medical reason why she could not do so, she needed to provide clear medical documentation in support of that fact.

12We discussed that if she was going to get some sort of medical documentation indicating that she could not comply with my order, it had to be made clear to the doctor that we were dealing with a formal legal proceeding, not some sort of “interview” and that we were not asking the Grievor to consent to an “in-person” cross-examination at the union’s office, but merely to participate via teleconference with her counsel present. We discussed the fact that employer counsel had been extraordinarily patient and that this could not go on forever. It was our understanding that the Grievor was not housebound at this point. Despite being repeatedly told not to do so, the Grievor contacted me directly by email on several occasions and demanded that her grievances be scheduled for hearing.

13The Grievor did not obtain additional medical documentation and continued to refuse to attend at the union’s office. In February 2020, the employer requested the opportunity to make the motion to dismiss the grievances for an abuse of process. Due to scheduling conflicts, we were unable to schedule the motion to be heard until July 22, 2020.

14On July 22, 2020 the hearing was convened and the parties informed me of two updates. The parties were in the middle of settlement discussions (which unfortunately were not successful) and the Grievor had a new family doctor who had referred her to a specialist. She had seen the specialist the previous week. Given the involvement of two new doctors, employer counsel reluctantly agreed to give the Grievor one last opportunity to obtain a clear medical opinion as to why she was unable to attend and be cross-examined via teleconference at the union’s office with counsel present. After hearing the submissions of counsel, I directed the two counsel to draft a letter to be given to the doctors, outlining specific questions to be answered to provide us with the information we required to be able to accommodate the Grievor.

15I then issued the following decision:

1At today’s hearing in this matter I gave the following oral direction to the parties:

After hearing the submissions of counsel I hereby direct the parties as follows:

1. Counsel are directed to confer and agree upon a letter to be sent as soon as possible to the Grievor’s family doctor and a letter to be sent to the specialist seen by the Grievor on July 16, 2020. If the parties are unable to agree on the questions to be asked or the content of the letters, I will remain seized to assist them if necessary.

2. Once there is agreement on the letters, they are to be sent to me via email. I will then do an order directing the doctors to respond to the questions and issues raised in the letters and append the letters to the order. The doctors’ response to the letter shall be sent to union counsel.

3. Upon receipt of the responses from the two doctors, I will confer with counsel to determine the appropriate next steps in this case. The employer has specifically requested that it be afforded the opportunity to make submissions as to whether or not the grievances should be dismissed. I agree with this request and will grant both parties the right to make submissions as to whether or not the grievances should be dismissed.

16On August 5, 2020 counsel for the employer sent a draft of the letter to counsel for the union for review. He forwarded it to the Grievor for her review.

17On September 17, 2020 I had a conference call with counsel. At that time, union counsel told me that he forwarded the letter to the Grievor for her review and when he returned from vacation, he found out that she took it to her family doctor without his involvement and had obtained a note. I am not going to set this note out because it is not helpful, is fairly lengthy and I would like to respect the Grievor’s privacy.

18However, what is clear from the medical note is that the doctor appears to be under the impression that Ms. Di Matteo is being asked to attend either at the GSB or the union’s office, for an in-person cross-examination. Clearly, that is not what we are asking and if Ms. Di Matteo had cooperated and waited for the questions to be finalized before she took them to her doctor, that might have been made clear. Since I never saw the final document (as it wasn’t finalized before she took it) I do not know how the questions were framed. Had I been able to review them I might have been able to clarify the questions.

19Union counsel also informed us that although the Grievor had a copy of a report from the specialist, she was refusing to provide a copy of it to him as she was taking the position it contained factual inaccuracies. He indicated that if he was unsuccessful in obtaining it from her that I may need to direct her to provide it.

20On December 16, 2020 I had yet another conference call with counsel. Union counsel provided us with a copy of the specialist’s report which was dated July 16, 2020, as well as a lengthy document prepared by the Grievor setting out how and why she disagreed with the report. Counsel informed us that the Grievor did not provide it sooner because she was engaging in efforts to have what she believed were inaccuracies corrected by the Specialist, who declined to make changes. It appears she recorded the appointment with the doctor.

21The report did not address any of the information sought by the union and employer in the August 5, 2020 draft letter as the report was prepared before the letter had been created. The report is of no assistance to me as it did not speak to the Grievor’s ability to attend at the union office with her counsel and be cross-examined via teleconference or conference call.

22We had one final conference call on December 21, 2020 and agreed to argue the motion to dismiss for abuse of process and the motion for non-compliance on the part of the Grievor with any of my interim orders on January 15, 2021.

Submissions

23Both counsel referred me to jurisprudence in support of their arguments. I am not going to set out their legal arguments in any detail but will refer to the cases I found the most helpful. I have carefully considered the arguments put forward by both counsel and the caselaw referred to by each in coming to the decision I have reached in this case.

24Counsel for the employer started his submissions by pointing out that we are almost five years out from when the Grievor was last in the workplace. He noted that I began hearing this case more than two years ago and that we were still early in what will be a lengthy cross-examination. He suggested that given the Grievor’s flagrant disregard for my instructions, there’s no reasonable prospect this case can ever proceed in a timely manner or in a way that is procedurally fair to the employer. He argued that alternatively, even if the Grievor’s inability to attend the union’s office for cross-examination was legitimate and justified and she had to proceed without counsel present, the proceeding still could not continue via teleconference the way it had before. As I had indicated in my previous orders, it was simply not feasible to continue in that fashion.

25In support of his legal argument, employer counsel referred me to:

Ontario (Ministry of Transportation) and OPSEU (Randolph), Re, 2015 CarswellOnt 17395, [2015] O.G.S.B.A. No. 158, 125 C.L.A.S. 55, 264 L.A.C. (4th) 422; Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175, 2000 CanLII 50165 (ON LA), 2000 CarswellOnt 5849, [2000] O.L.A.A. No. 33, 59 C.L.A.S. 134, 87 L.A.C. (4th) 154; National-Standard Co. of Canada Ltd. v. C.A.W., Local 1917, 1994 CanLII 18625 (ON LA), 1994 CarswellOnt 1248, [1994] O.L.A.A. No. 37, 34 C.L.A.S. 307, 39 L.A.C. (4th) 228; Beacon Hill Lodges Inc. v. O.N.A. 1990 CanLII 12755 (ON LA), 1990 CarswellOnt 4146, 15 L.A.C. (4th) 323, 20 C.L.A.S. 233; Serco DES Inc. and USW, Local 9511 (Bartley), Re, 2014 CarswellOnt 1151, [2014] O.L.A.A. No. 27, 117 C.L.A.S. 252, 241 L.A.C. (4th) 194; Wellington Catholic District School Board and Canadian Union of Public Employees, Local 256.01, 2017 CanLII 10794 (ON LA); Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2011 CarswellBC 2534, [2011] B.C.C.A.A.A. No. 118, [2012] B.C.W.L.D. 979, 108 C.L.A.S. 89.

26Although I did read all of the cases counsel referred to and considered his argument, I am not going to set it all out. One of the cases that counsel referred to was the Budget Car Rentals Case. He suggested that just as in our case, the Grievor in this case refused to comply with the directions of the Arbitrator. He pointed out that our situation is far worse than the situation in this case, as I have given the Grievor many chances and have been more than reasonable with her. In the Budget Car Rentals Case the Arbitrator commented as follows:

13. … I made an interim order adjourning the proceedings and requiring the Grievor to provide the reasons for his nonattendance at the December 13, 1999, scheduled hearing date. I also ordered the Grievor to produce certain documents relevant to the hearing and the issues in dispute. Logic dictates that, if arbitrators have the power to make these types of orders, there must also be authority to enforce the orders made. Arbitral jurisprudence indicates that as part and parcel of the authority to enforce, an arbitrator has jurisdiction to dismiss a grievance where there has been noncompliance with an order. Thus, a grievance may be dismissed or held to be inarbitrable under the "abuse of process" rubric, where a party fails to produce documents or matters ordered to be produced by an arbitrator (Re. Thompson Products (1970), 1970 CanLII 1593 (ON LA), 22 L.A.C. 85 (Roberts); Re. National Standard Company of Canada (1994), 1994 CanLII 18625 (ON LA), 39 L.A.C. (4th) 228 (Palmer)), or where a Grievor refuses to participate in the grievance/arbitration process, or refuses to otherwise accept the authority of the arbitrator or arbitration process (Re. Beacon Hill Lodges Inc. (1990), 1990 CanLII 12755 (ON LA), 15 L.A.C. (4th) 323 (Craven)).

14. In my view, an arbitrator should not lightly dismiss a grievance by reason of any "abuse of process," and outright dismissal of a grievance by reason of an alleged abuse of process should only occur in the clearest cases. In exercising the jurisdiction or discretion to dismiss a grievance by reason of an abuse of process however, it must also be remembered that the grievance and arbitration process was established to settle employment related disputes in a relatively expeditious and inexpensive manner. Within this context, it is reasonable to expect that the Grievor, who is a party to that process, cooperate with reasonable requests made of him by his union, attend and participate in the hearing set up to deal with his grievance, and comply with the directions or orders of the arbitrator. In this case, the Grievor's failure to attend, and his subsequent failure to comply with the order made in the interim award, has resulted in additional time and expense, to both the Union and the Employer.

27Employer counsel also referred to the Serco DES Inc Case. In this case, the Arbitrator concluded that the failure of a Grievor to comply with an interim order of the Arbitrator must have consequences. The Arbitrator put it this way:

55. Arbitrators are not infallible. Their decisions on matters affecting important issues between the parties are subject to legitimate disagreement by people acting reasonably as well as to the review authority of the civil courts. But the integrity of the arbitration process, whether under s. 50or the general provisions of the LRA, requires that all parties respect the arbitrator's procedural and evidentiary rulings made before or in the course of a hearing, even when they disagree, without which an effective dispute resolution process is not sustainable. To permit a party to deliberately disregard the arbitrator's interim orders without tangible consequences, would in my opinion so seriously undermine the integrity of the dispute resolution process contemplated under a collective agreement and the LRA, to authorize in appropriate circumstances the extraordinary remedy of allowing or extinguishing the grievance against the interests of the offending party, as the case may be. Such circumstances in present context include the creation by the offending party of an unjustifiable impasse to the balanced and fair hearing of the merits of the dispute.

Disposition

56. On the materials before me, I find that the Grievor has created a circumstance of unjustifiable impasse to the balanced and fair hearing of the Union's grievances, constituting an abuse of process for which he is solely responsible, and which in my opinion cannot be adequately remedied by measures short of the summary denial of his claims.

57. Consequently, but with regret given the important issues presented by the merits of the grievances before me, I have concluded the appropriate sanction for the Grievor's deliberate defiance of my interim production order and the frustration to the fair adjudication of the grievances as a result, is to grant the Employer's motion, and thus hereby dismiss the Union's grievances #1115 and #1116.

28Counsel for the Employer argued that in applying the law to the facts in our case, the only appropriate remedy was to dismiss the grievance. The dismissal should be based on an abuse of process. The employer has a right to cross-examination and a full and fair hearing. It is clear that proceeding via teleconference, as we did before, is simply not an option. He pointed out that I had already decided this in my decisions dated May 15, 2019 and May 29, 2019. The process was not feasible due to the Grievor’s constant interruptions, arguments and refusal to comply with my instructions.

29Counsel stressed that my decision was to allow the Grievor to continue via teleconference, already a significant accommodation, but that she must do so at her union office in the presence of her union counsel. He pointed out that I made it clear to her that the failure to do so could result in the dismissal of her grievance on several occasions. The Grievor has consistently refused to comply with my orders, providing conflicting medical information sometimes indicating she was not able to participate via teleconference and sometimes indicating she could, but not at her union office, without any clarification as to why she could not do so, other than some vague allusion to stress. To resolve this, I ordered a process to get clarification from the Grievor’s GP and specialist. The Grievor again disregarded instructions for no clear reason and delayed the process another 6 months.

30The Grievor has been given numerous chances during these proceedings and she simply refuses to comply with any directions. There is no way this proceeding can proceed in a fair manner now. For these reasons, counsel asked me to dismiss this grievance for an abuse of process, or alternatively, because there is no reasonable expectation of this grievance ever proceeding.

31Union counsel pointed out that dismissing the Grievor’s grievances for an abuse of process was an extraordinary remedy and one which has serious consequences. The grievances in this case raise allegations of discrimination and harassment and one of them deals with the termination of her employment. No one disputes that the Grievor is ill. Counsel suggested that the Grievor is not ignoring me or disrespecting me although he conceded that the procedure set out in the July 2020 decision was not followed.

32The world has changed due to the COVID-19 pandemic and the common platform utilized for hearings as a result is video conference. He pointed out that in our current situation, it would not be possible for him to attend at the union office with the Grievor as the union’s offices are closed. He suggested that the Grievor is willing to proceed via videoconference. He also advised me that the Grievor’s sister is available to provide support to her during the proceedings.

33In support of his position, counsel for the union referred me to:

Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175, 2000 CanLII 50165 (ON LA), 2000 Carswell Ont 5849, [2000] O.L.A.A. No. 33, 59 C.L.A.S. 134, 87 L.A.C. (4th) 154; Hamilton-Wentworth Catholic District School Board and OECTA (Hicks), Re, 2014 Carswell Ont 10293, 119 C.L.A.S. 339; Ontario (Minister of Community, Family & Children's Services) v. Crown Employees Grievance Settlement Board 2006 Carswell Ont 3832, 2006 C.L.L.C. 220-041, 2006 CanLII 21173 (ON CA), [2006] O.J. No. 2517, 142 C.R.R. (2d) 226, 151 L.A.C. (4th) 129, 213 O.A.C. 169, 268 D.L.R. (4th) 594, 51 Admin. L.R. (4th) 114, 81 O.R. (3d) 419; Ontario (Ministry of Attorney General) and OPSEU (Hunt), Re, 2010 Carswell Ont 11753, [2010] O.G.S.B.A. No. 149, 102 C.L.A.S. 272 ( the “Hunt Case”); Ontario (Ministry of Transportation) and OPSEU (Niyonkuru), Re, 2013 CarswellOnt 17441, 117 C.L.A.S. 156; OPSEU and Ontario (Liquor Control Board of Ontario) (Cupskey), Re, 2020 CarswellOnt 3710, 143 C.L.A.S. 138; Peel Regional Paramedic Services and OPSEU, Local 277 (Reed), Re, 2018 CarswellOnt 7918, 136 C.L.A.S. 45; Serco DES Inc. and USW, Local 9511 (Bartley), Re, 2014 CarswellOnt 1151, [2014] O.L.A.A. No. 27, 117 C.L.A.S. 252, 241 L.A.C. (4th) 194.

34Just as I did with the employer, in setting out union counsel’s argument, I am only going to refer to a couple of the cases relied upon by him in his argument, although I did read them all. Counsel relied upon the comments of Arbitrator Abramsky in the Hunt Case where she noted:

26. In this case, the facts do not reveal any abuse of process, or deliberate flouting of the Board's order or the arbitration process. On the contrary, the Union made substantial efforts to comply. The scope of what it was required to do — in sheer numbers of individuals and the information sought which covered almost seven years — was enormous. The original 45 days was a very tight time period to start with and the extension sought to May 17th, was quite brief. The Union learned, as it proceeded, that gathering the required information was very difficult because of the manner in which transcript work was compensated — by the page instead of by time. This resulted in a lack of time records, which in turn, created difficulties to comply with the Board's order for particulars.

35Counsel suggested that the Grievor in our case had also not engaged in any “deliberate flouting” of the Board’s orders. He pointed out that she has attended all hearings and has not sought any adjournments.

36Union counsel also referred to the Serco DES Inc Case but he referenced paragraph 14 where the Arbitrator noted, “These cases support the principles that: (a) an arbitrator has authority to allow or dismiss a grievance without a hearing on the merits in response to a party's non-compliance with a clear production or other valid procedural or evidentiary order;(b) provided such non-compliance is shown to arise out of a deliberate disregard for the arbitrator's order”. He suggested that the Grievor had not deliberately disregarded any of my orders.

37Counsel for the union took the position that the Grievor did not comply with my directions because she was following her doctor’s orders. The most recent medical note indicates that she can participate via video conference. He suggested that if I feel that the medical note is insufficient that I should order an IME. In the alternative, he argues that I should not dismiss the termination grievance as the employer bears the onus of proof with regard to it.

38In reply, counsel for the employer argued that the issue of onus was not relevant to the motion before me.

39With regard to the fact that the Grievor is ill, the employer does not dispute this. However, what is in dispute is how her illness affects her ability to participate in this arbitration proceeding. That is the crux of it. In seeking accommodation, she has the duty to provide medical documentation that clearly establishes her limitations and restrictions. In this case, her family doctor is merely parroting her requests and provides no reasons. That is what led to the decision to attempt to get information from a specialist.

40Counsel disagreed strongly with the assertion that the Grievor acted in good faith. In his view, she deliberately and intentionally disregarded my orders and instructions. She did not provide the letter to the specialist, which had been agreed upon by counsel, thereby denying that critical information to the parties and more importantly to me. She tried to control the process by forcing me to have to rely upon the note from her family doctor from August 2020 when it was clear from the July 2020 order that I had determined that the time had come to get accurate medical information as to exactly what were the accommodations required by the Grievor. We still do not have that information.

41Employer counsel stressed that the issue is not the Grievor’s ability to participate via video conference. He requested that I not forget precisely why the hearing was adjourned in May 2018. The hearing was adjourned because of the Grievor’s deliberate disregard for my verbal instructions and her conduct during the hearing. The issue is her ability to control herself during cross-examination. Why should you accept union counsel’s assertion that she will be fine to proceed via video conference when she has not demonstrated since we adjourned in 2018 that she is prepared to comply with my directions? Counsel also spoke of giving her one more chance and getting an IME. The time for that has passed and why at this point should we think she would cooperate when she never does?

Decision

42I have set out the facts at length at the start of this award. I do not propose to repeat them. Suffice to say that the facts in my view speak loudly and clearly and demonstrate a total unwillingness on the part of the Grievor to accept my authority. She will not comply with my directions and orders. She simply will not cooperate and her conduct has continued for more than two years.

43Counsel for the union stressed in his submissions that the Grievor was fit to participate via video hearing and that was really our only option as in-person hearings were no longer feasible. With all respect to counsel that is not the point. The Grievor has always been willing to participate via teleconference or now perhaps video conference. That is exactly what she wants. However, the issue is that when she has done so in the past, she has demonstrated a complete and total lack of respect for the process, counsel for the employer and myself in my role as an adjudicator who is attempting to ensure a fair and reasonable hearing.

44These proceedings were adjourned in May 2018. Since that time, the Grievor has not cooperated at all. She has failed to comply with every procedural order I have made in circumstances which can only be seen to amount to a deliberate attempt to thwart the arbitration process. She wants to participate via teleconference or video conference from her home. One of the doctor’s notes references the fact that she has been working as a crossing guard. Clearly, she is able to be out and about. Absolutely no legitimate reason, medical or otherwise, has ever been provided to justify her blatant refusal to attend at the union’s office with her counsel and be cross-examined via teleconference or video conference from that location. I have never suggested that the cross examination would be in-person at the union’s office. I have always been very clear that myself and employer counsel and his client would attend at the Grievance Settlement Board and the Grievor and her counsel would participate via teleconference from another location.

45The fact that the union’s office is currently closed is in my view irrelevant. Given our schedules, were we to look at dates to set this matter down for hearing we would likely be looking at late 2021 or 2022. I can only hope things will be returning to normal by then.

46Union counsel suggested that the conduct of the Grievor did not amount to a, “deliberate flouting of the Board's order or the arbitration process,” as noted by Arbitrator Abramsky in the Hunt Case. I have to disagree. The conduct of the Grievor is intentional, deliberate and manipulative. The cases also speak of conduct which amounts to, “noncompliance with an order,” or where a Grievor, “refuses to accept the authority of the arbitrator,” as conduct which justifies the dismissal of a grievance for an abuse of process. Both are true in this case.

47I feel that the conduct of the Grievor in this case has left me no choice. I am not prepared to simply pick up where we left off. Given she has not been willing to comply with my directions, I have no reason to expect that her conduct will be any different in the hearing. I anticipate that she will continue to be rude, obstreperous and refuse to do what I ask her to do in the hearing just as she has refused to comply with my written directions. The Grievor in this case has been given plenty of opportunities to comply with my directions and allow us to get on with her case. She refuses to do so and simply will not cooperate.

48For all of these reasons, I hereby grant the employers motion and the grievances are dismissed for an abuse of process and a total disregard on the part of the Grievor to comply with any of my interim orders dated May 15, 2019, May 29, 2019, and July 22, 2020.