GSB# 2021-1071
UNION# 21-77
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750 (Lill)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Diane L. Gee
Arbitrator
FOR THE UNION
Jason DeFraga Canadian Union of Public Employees - Local 1750 Counsel
FOR THE EMPLOYER
Brandin O’Connor Shields O’Donnell MacKillop LLP Counsel
HEARING
November 29, 2022
Decision
1At the first scheduled date in connection with this matter the Employer brought a motion to begin the hearing. The Union opposed the motion. After hearing the submissions of the parties, I issued the following oral ruling:
I begin with the established practice at the GSB; namely the first scheduled date is used for mediation and, when that fails, case management, the identification of preliminary issues, and argument on preliminary issues. The established practise at the GSB is to then adjourn.
Having regard to the length and breadth of this practice, parties appearing before the GSB are entitled to expect the practice to be honoured unless clearly put on notice that the party opposite will, on the date set, take the position the hearing should begin.
Having now had an opportunity to review the Employer’s November 14, 2022 letter I am of the view that, rather than clearly communicating to the Union its position that it would insist on the hearing proceeding today, it advised the Union that it was of the view the Union would have to proceed with its case first and, amongst other things, requested production of all documents in the possession of the Union that it intended to rely on at the hearing. The WSIB file is one such document and has not yet been produced by the Union to the Employer.
Further, I am advised that the Union’s representative spoke to Employer counsel on November 21, 2022 and advised that he did not yet have the WSIB file nor the associated medical. The Union’s representative asked about the Employer’s willingness to talk money in order to settle the matter and Employer counsel responded: “not at this point but if there was a monetary offer, to bring it to them.” There was also a discussion about having to deal with the order of proceedings.
The Union, given, the usual way in which these matters proceed, the correspondence from the Employer, the fact that the Union had not yet fulfilled the Employer’s document production request, and the content of the subsequent telephone call, arrived today not expecting the hearing to begin. From the Union’s perspective, not only would the parties engage in mediation, but failing a settlement, there would be production issues and the order of proceeding to discuss.
When it was clear the matter was not going to settle, the Employer, in an effort to conduct the litigation in an expeditious and economical fashion, asked that the hearing proceed. The Employer offered to give its opening statement and allow the Union to reserve its opening. The Employer offered that it would then call its first witness after which the matter would be adjourned. The Union would not be required to cross-examine the witness until the next date.
The Union opposes the Employer’s suggestion that the matter proceed in the manner stated above. The Union suggests that the litigation cannot begin until document production has been completed. The Union asks that the established process be followed.
There are two competing interests in this matter. The Employer’s justifiable desire to have the litigation completed as expeditiously and economically as possible is one such interest. The long-established practice, and the expectations of each party as a result of such practice, is another.
While I do not understand the Union’s opposition to the Employer’s offer to proceed first with its opening, and present its first witness with no obligation on the Union to give its opening statement or cross-examine the witness, contrary to my initial view of this matter, I find, in the absence of the Employer having clearly put the Union on notice, in advance of today, of its intention to move to commence the hearing, the established practice ought to prevail.
I make this finding given that it would be a simple matter for the Employer to achieve the economy and efficiency it seeks by clearly putting the Union on notice in advance of the set hearing date of its intention to move that the hearing begin.
I believe this decision preserves the parties’ ability to rely on the established practice but also allows a party to pursue economy and efficiency by the giving of clear advance notice.
Dated at Toronto, Ontario this 1st day of December 2022.