GSB# 2020-2537

UNION# 2021-0368-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ryall)

Union

• and -

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

Employer

BEFORE

Michael Lynk

Arbitrator

FOR THE UNION

Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Counsel

HEARING

October 19, 2022

Preliminary Decision

1On 29 February 2020, Ms. Julie Ryall, a Registered Nurse, filed a four page occurrence report with her Employer, the Ministry of the Solicitor General. In the report, she alleged that a Staff Sergeant at the provincial correctional institute where they both worked – the Central East Correctional Centre in Lindsay, Ontario – had yelled at her earlier that day and had also put his hands on her shoulders without her consent. This encounter occurred during an incident involving an inmate who had injured himself, apparently intentionally, in the course of requesting assistance with a painful tooth.

2Ms. Ryall subsequently made a complaint under the Employer’s Respectful Workplace Policy (RWP) regarding the Staff Sergeant’ actions. In January 2021, the RWP complaint was found to be out of scope.

3On 12 January 2021, Ms. Ryall’s Union filed a grievance on her behalf, alleging that the employer had “violated Article 2, 3, 22, employers [sic] policies, any other article or case law” arising from the February 2020 incident. The grievance then explained its factual basis: “On February 29, 2020, a manager at Central East Correctional Centre acted inappropriately when he yelled at me on the phone then came down to where I was working and put his hands on me.”

4On 12 October 2022, counsel for the Union provided counsel for the Employer with a nine page letter which included particulars of the Union’s position on the allegations in the 2021 grievance in advance of the forthcoming arbitration hearing into this matter.

5This preliminary decision addresses the request by the Employer for an order directing the Union to provide the Employer with additional particulars regarding the Ryall grievance. Specifically, the Employer is requesting the Union to provide particulars with respect to:

(i) The duration and the results of the actual physical contact between the Staff Sergeant and Ms. Ryall; and

(ii) When did the Staff Sergeant yell at Ms. Ryall? And what did he allegedly yell at her?

The Employer’s Position

6Counsel for the Employer argued that the Employer is entitled to know precisely what occurred during the incident on 29 February 2020 as part of the pre-hearing exchange of particulars. Specifically, he submits that this includes how long the Staff Sergeant allegedly placed his hands on Ms. Ryall’s shoulders as part of the alleged “physical assault” and what were the consequences resulting from this. As well, he is asking for further and better particulars with respect to what was allegedly “yelled” at Ms. Ryall by the Staff Sergeant, and exactly when this occurred.

7Counsel maintained that the Employer should not have to wait until its cross-examination of the grievor to discover the alleged material facts that the Union is relying on. Arbitration should not be litigation by ambush. Knowing the material facts before the start of the hearing would allow the Employer to be best placed to make full answer and defence for itself and its Staff Sergeant against a serious workplace allegation. It is also consistent with the requirements of natural justice.

8The Employer relied upon the following caselaw: Healthcare Office Professional Employees, Local 2220 (United Brotherhood of Carpenters and Joiners of America) v Alta Vista Retirement Community (Kibret Grievance), [2018] OLAA No. 44 ( Tremayne); OPSEU (Gates) v Ontario, 2007 CanLII 6892 (ON GSB) ; R v Kormos, [1998] O.J. No. 485; Copland v Commodore Business Machines Ltd (1985), 1985 CanLII 2190 (ON HCJ), 52 OR (2d) 586.

The Union’s Position

9Counsel for the Union submitted that it had provided particulars to the Employer over the past weeks and months, and the information and material facts provided were more than bare-bones allegations. The particulars forwarded to the Employer by the Union have put it in a position to understand the nature of the case being alleged against it, and to be able to prepare its defence accordingly. The Employer knows from the occurrence report, the grievance and the particulars that Ms. Ryall is alleging that the Staff Sergeant placed his hands on her shoulders, which was unwelcomed, and he yelled at her on the phone. Particulars do not require a microscopic detailing of every aspect of the allegation. To require more than what has been provided would be unduly technical in the labour arbitration context.

10The Union provided the following caselaw: Brown & Beatty, Canadian Labour Arbitration (5th ed.), chap. 3.8; K-Bro Linen Systems Inc. v TC, Local 847 (0018) (2015), 2019 CanLII 12521 (ON GSB), 262 LAC (4th) 425 (Luborsky); OPSEU (Gareau) v Ontario, 2005 CanLII 55222 (ON GSB) (Abramsky); B.C. Transit v Independent Canadian Transit Union, Local 1 (1996), 1996 CanLII 20388 (BC LA), 58 LAC (4th) 372 (Larson).

The Arbitral Law on Particulars

11I have carefully reviewed the caselaw and authorities provided to me by both counsel. From the caselaw, I derive the following principles that are to be taken into consideration when assessing a request for further and better particulars in the arbitral context:

(i) Labour arbitration is not the same legal process as a criminal proceeding or a civil action. It is intended to be more informal, less technical and less procedural than judicial adjudication, in order to achieve its purpose of providing efficient hearings and fair results within the industrial relations context. Accordingly, a grievance is not the equivalent of a statement of claim, and particulars are not meant to be formal pleadings.

(ii) While full disclosure of particulars is a standard requirement in labour arbitration, this must be understood as providing enough material facts to sufficiently describe each issue in dispute. No industrial relations party should be blind-sided at a hearing by the deficient disclosure of particulars, but nor should a party expect to be provided with every detailed fact of a case through particulars. The purpose of particulars in labour arbitration is the identification and understanding of the issues involved, not the complete revelation of the expected evidence. The arbitration hearing itself is the proper place for the full airing of the evidence.

(iii) Particulars consist of the “who, what, where, when and how” of the facts of an alleged violation of the collective agreement. This is to permit the parties, in the appropriate circumstances of each grievance, to know the case being alleged against them in sufficient detail so that they can prepare an appropriate answer and defense in preparation for the upcoming hearing.

(iv) The expectations for the quantity and the content of the particulars to be produced in an arbitral context is contextual. The more complex the case, or the more serious the allegations, it may well be that a greater degree of particulars should be required to be released to the other party in order to sufficiently describe the issues in dispute.

(v) Particulars of an allegation should be formalized and provided well in advance of the arbitration hearing.

Ruling and Reasons

12In this present case, Ms. Ryall has alleged that the Staff Sergeant had yelled at her, and a short time later placed his hands on her shoulders without her consent. In its particulars that it has provided to the Employer, the Union has identified the time of the two alleged incidents (around midday on 29 February 2020), the context of the two incidents (the alleged yelling occurred during a telephone call and the alleged hands-on-the-shoulders occurred at or near the Unit 8 Sub-Control Centre in the Correctional Centre) and it has provided some contextual details (a summary description of both the telephone call and the conversation during the purported hands-on-the-shoulders incident).

13I am satisfied that, taken together, the particulars already provided by the Union are sufficiently detailed and sufficiently contextual to enable the Employer to appreciate and understand the allegations against it and to be able to prepare its answer and defence as it approaches the arbitration hearing. I do not see any prejudice that would be suffered by the Employer in denying this request for the stated particulars. It will have a full opportunity to cross-examine Ms. Ryall and any other relevant witnesses that the Union might call, including asking questions respecting the purported telephone conversation and the alleged hands-on-the-shoulder incident. The revelation of the finer points of these two allegations properly belongs in the hearing process.

14Accordingly, for these reasons, I have denied the Employer’s request for additional particulars.

15I wish to thank both counsel for their effective advocacy, which made the writing of this preliminary decision that much easier.