GSB#2021-0526

UNION#2021-0623-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Strong)

Union

• and -

The Crown in Right of Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Rebecca Jones Counsel Ryder Wright Blair Holmes LLP Barristers & Solicitors

FOR THE EMPLOYER

Sean White Counsel Treasury Board Secretariat Labour Practice Group

HEARING

February 28, 2022 (Conference Call by Video Conference)

Interim Decision

1A grievance alleging failure to accommodate filed by Mr. Jeremy Strong (“grievor”) was scheduled to be heard on February 8, 2022. When the Board convened union counsel advised that on the afternoon of February 7, 2022, the grievor informed that he would not be able to attend hearing on February 8th because he had to attend Family Court that day for a matter in which he was a party. The union sought an adjournment of the Board hearing.

2Employer counsel advised that the grievor had recently sought, also with short notice, an adjournment of another unrelated grievance he had filed, which was scheduled before a different GSB arbitrator. In that case the employer did not oppose, and the adjournment was granted. Counsel expressed concern about the request to adjourn the instant matter since this was the second time within a short period that the grievor had done this.

3Having heard the respective positions of the parties, I orally granted the adjournment, subject to the following order:

a) The union and the grievor shall provide to employer counsel sufficient documentary evidence to substantiate that the grievor had a court date on February 8, 2022.

b) The union may redact from the document any confidential or personal information not relevant to the order in (a) above.

c) Employer counsel undertook not to share the documentation provided with anyone, including his clients.

4When the Board convened on February 28, 2022 by video-conference, employer counsel presented to the Board the documentation received pursuant to the Board’s order, and took the position that they were insufficient. Counsel sought a written order for production of better documentation. Union counsel submitted that the documentation provided to the employer provides sufficient information on the employer’s concern, that is, that the grievor had a court hearing which led him to request the adjournment of the Board hearing.

5In a decision dated June 24, 2021, Re ATU, L.1887 (Kay) and Metrolinx, 2019-1164, (Flaherty), the Board at paragraphs 10-15 wrote:

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

6At paragraph 18, the Board concluded: “The 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”.

7Thus, the arbitral jurisprudence, including from this Board, is clear that failure to comply with board orders is a serious matter, and will have serious consequences. However, as the Board observed, the authority to dismiss a grievance is not to be exercised lightly. Thus, the Ontario Court of Appeal in Ontario (Ministry of Community, Family and Children’s Services) v. Ontario Grievance Settlement Board 2006 CanLII 21173 (ON CA), [2006] 151 L.A.C. (4th) 129, has held that dismissal of a grievance for failure to produce documents is appropriate only in circumstances amounting to deliberate mala fides attempt to thwart the arbitration process and situations of deliberate disregard of orders for production. The employer in the instant matter did not seek the dismissal of the grievance. It only sought an order for production of additional information.

8I am satisfied that the grievor has made a good faith effort to comply with the Board’s direction. He has substantiated that he had a Family Court matter scheduled on the same day as the Board hearing. The information lacking to address the employer’s concern is about (1) when the grievor became aware of the conflict, and (2) an explanation as to why he did not, or could not, advise earlier than February 7, 2022, of his inability to attend the Board hearing on February 8, 2022. The employer’s concern ought to be shared by all parties appearing before the Board, because last minute cancellation of hearings on the request of a person whose attendance is required, in the absence of compelling reason, results in inefficiency and waste of the time and resources, and results in unnecessary financial costs to the Board as well as the parties. It inconveniences everyone involved in the proceeding.

9The requested order should be issued. The grievor is hereby ordered to provide in writing, to the best of his ability, the information described in paragraph 8 above, no later than March 31, 2022, or other date that the parties may agree upon.

10The Board remains seized with the grievance.