GSB# 2019-1164

UNION# G-71-19-BOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Kay)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Michelle Flaherty

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel (Counsel) Kelly Brennan (Student-at-Law) Hicks Morley Hamilton Stewart Storie LLP

HEARING

June 23, 2021

Interim Decision

1The Grievor’s employment was terminated on June 3, 2019. The Union has grieved the termination.

2This Interim Decision addresses the Employer’s motion to dismiss the grievance for abuse of process, because the Grievor failed to comply with the Board’s Interim Decision, dated April 14, 2021. The Union submits that the grievance should not be dismissed at this stage and that the Grievor should be given a further opportunity to comply with the Interim Decision.

3The Board convened a videoconference hearing on June 23, 2021, to address the Employer’s motion to dismiss. I heard submissions from counsel for the Employer and counsel for the Union. The Grievor attended the hearing and, at his request, he was given an opportunity to make brief submissions.

4For the reasons set out below, I have decided not to dismiss the grievance at this time. However, the Grievor is required to comply with this Interim Decision by July 7, 2021. Importantly, the Grievor’s continued failure to comply with the Board’s orders will result in the dismissal of the grievance.

Interim Award of April 14, 2021

5The hearing in this matter commenced on April 14, 2021. Counsel for the parties made submissions on case management issues, including documents held by the Crown and Police relating to the Grievor’s alleged harassment of certain individuals (“Documents”).

6I issued an Interim Decision on April 14, 2021, in which I concluded that the Documents are arguably relevant and that their disclosure is required for the adjudication of this grievance. The Interim Decision directed the Union and the Grievor to take reasonable steps to facilitate the production of the Documents by June 1, 2021.

Did the Grievor Fail to Comply with the Interim Decision?

7Documents submitted by the parties show that the Union has made every effort to comply with the Interim Decision and to facilitate production of the Documents. The Union has been in frequent communication with the Grievor and has repeatedly urged him to comply with the Interim Decision. For example, the Union provided the Grievor with a copy of the Interim Decision of April 14, 2021 and the consent forms required to obtain the Documents. The Union also repeatedly advised the Grievor of his obligation to comply with the Interim Decision and the possible consequences of failing to do so.

8Despite this, the Grievor has refused to facilitate the production of the Documents. At the hearing on June 23, 2021, the Grievor described the steps he took in response to the Interim Decision. He referred to extensive correspondence, which he sent to the Union and its counsel, in which he expressed disagreement with the Interim Decision or disputed his obligation to comply with it at this time.

9Based on submissions made on June 23, 2021, I understand that the Grievor now intends to partially comply with the Interim Decision. To summarize briefly, the Grievor has two ongoing objections:

a. He objects to signing the consent forms before arrangements for an Independent Medical Examination (“IME”) are addressed by the Union to his satisfaction.

b. He objects to signing one of the consent forms because it relates to information that has or would be provided by a neighbour. There is no dispute between the parties that the information addressed by the consent form in question is arguably relevant and contemplated by the Interim Decision.

10The Grievor is required to comply with orders of the Board. He is not excused from compliance because he disagrees with the Board’s orders or because he believes the Union should take other steps beforehand.

11The Grievor has not taken any steps to facilitate disclosure of the Documents. On this basis, I find that he failed to comply with the Interim Decision of April 14, 2021.

Should the Grievance be Dismissed?

12There is no dispute that an arbitrator has jurisdiction to dismiss a grievance where there has been noncompliance with an order. The cases relied on by both parties support this proposition: see Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175, 2000 CanLII 50165 (ON LA), 2000 CarswellOnt 5849 (Davie) at para. 12; Baycrest Centre for Geriatric Care and ONA (Pavlovych), Re, 2021 CarswellOnt 6801 (Gedalof); ATU, Local 113 and Toronto Transit Commission, Re, 2018 CarswellOnt 3853 (Shime); Serco DES Inc. and USW, Local 9511 (Bartley), Re, 2014 CarswellOnt 1151 (Luborsky); Hamilton-Wentworth Catholic District School Board and OECTA (Hicks), Re 2014 CarswellOnt 10293, 119 C.L.A.S. 339 (Tacon).

13Failure to comply with an arbitral order is a serious matter, which will have serious consequences. In this case, it is significant that the Grievor appears to have chosen not to comply with the Interim Decision, although he had clear knowledge of the order and was advised of the possible consequences of noncompliance.

14That said, however, the power to dismiss a grievance for abuse of process cannot be exercised lightly, particularly where the grievance engages important issues like termination. Among the factors to be considered is whether other, less extreme measures could fairly remedy the Grievor’s non-compliance.

15The Grievor’s non-compliance with the Interim Decision is very troubling. In the circumstances of this case, however, it is appropriate to give him a final opportunity to comply with the Board’s orders.

The Grievor must Comply with the Following Orders

16On or about May 13, 2021, Counsel for the Union forwarded a series of consent forms to the Grievor. The Grievor is directed to sign all the consent forms and provide them to Union counsel by July 7, 2021.

17To be clear, this order and the July 7, 2021 timeframe are independent of any issues related to the IME. In other words, the Grievor is required to provide all signed consent forms to Union Counsel by July 7, 2021, regardless of any ongoing issues related to the IME.

18The Grievance cannot be fairly adjudicated without production of the Documents. The Grievor’s continued failure to comply with the Board’s orders will result in the dismissal of the Grievance.