GSB# 2019-2537

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Noorani)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Owen V. Gray

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock (Counsel) Kelly Doctor (Counsel) Goldblatt Partners LLP

FOR THE EMPLOYER

Caroline Cohen (Counsel) Jackson Lund (Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

March 28, 2022 (by submissions)

Decision

1On January 21, 2022, Mr. Adam Adamczyk was duly served with a summons to attend an arbitration hearing to be held by video conference in this matter on March 21 and May 6, 2022. The hearing convened and proceeded by video conference on March 21, 2022, but Mr. Adamczyk did not join the video conference at any time that day. The Employer now seeks an Order compelling Mr. Adamczyk to attend by video conference on the next hearing date in this matter, May 6, 2022. The Association does not oppose that motion. For reasons that follow, I grant the order sought.

2This is an arbitration under the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended (“the CECBA”). I was appointed mediator-arbitrator in this matter on February 24, 2020, under Part V of the CECBA. After attempts at mediation and hearings to address certain preliminary issue, a hearing on the merits was scheduled for a series of dates beginning March 21, 2022.

3Subject to certain modifications and exceptions not relevant here, section 2 of the CECBA incorporates the Ontario Labour Relations Act, 1995 S.O. 1995, c.1, Sched. A., as amended, (“the LRA”), including subsections 48(12)(d) and (i):

An arbitrator or chair of an arbitration board, as the case may be, has power,

(d) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases;

and

(i) to make interim orders concerning procedural matters;

4It is evident that Mr. Adamczyk would have evidence relevant to the issues in the matter as outlined in the particulars exchanged by the parties. The employer has filed with me a copy of the summons to Mr. Adamczyk requiring his attendance in an identified video conference on March 21 and May 6, 2022, and an affidavit of a process server that the summons and conduct money were served on Mr. Adamczyk on January 21, 2022.

5I understand from Employer counsel that she sent Mr. Adamczyk an email message about his default after it occurred, and that he has responded saying that he had been ill and had forgotten about the summons. There are no particulars of the illness sufficient to excuse his default, nor does forgetfulness excuse it.

6Mr. Adamczyk was obliged by law to comply with the summons, and failed to do so. I adopt the observations of Arbitrator Surdykowski in Giffin Sheet Metal Co. 1999, CarswellOnt 7077, [1999] O.L.A.A. No. 728, 57 C.L.A.S. 364 at paragraph 13:

Section 48 of the Labour Relations Act, 1995 provides arbitrators with the tools required to make the labour arbitration process work, the hard way if necessary. Specific to this cas[e], an arbitrator has the power to summon and enforce the attendance of witnesses and the production of documents in the same way that a Court does, and to make such procedural directions as may be required in the interests of justice (clauses 48(12)(d) and (i)). This means that arbitrators can issue Summonses or orders to compel witnesses to attend an arbitration hearing and to bring with them documents that are arguably relevant to the matters in issue. If a person properly served with such a Summons or order ignores it or fails to comply without lawful excuse, and it appears that that person’s attendance is necessary in the interests of justice, an arbitrator has the power to issue a warrant requiring the police to arrest that person and bring him/her before the arbitrator. Also or in the alternative, a person who fails to comply with a Summons or other order of an arbitrator without lawful excuse may find themselves the subject of contempt proceedings in the same way as for contempt of Court, and upon conviction may be punished by fine or imprisonment. I am pleased to say that such drastic action is rarely necessary in this Province. On the other hand, while I was a Vice-Chair of the OLRB sitting as an arbitrator under section 133 of the Act, I had occasion to issue several arrest warrants in order to compel the attendance of reluctant witnesses.

7Employer counsel does not ask that I issue a warrant for the arrest of Mr. Adamczyk at this point, but only that I issue an Order compelling him to attend the next hearing on May 6, 2022, by joining on that date the video conference identified in the original summons.

8I hereby Order and Direct that Adam Adamczyk attend the hearing in this matter on May 6, 2022, by joining at or before 10 a.m. that day the videoconference detailed in the aforesaid summons and in the Board’s Notice of Proceeding with respect to the hearing. The Employer shall cause copies of this Order, that summons and that Notice of Proceeding to be personally served on Mr. Adamczyk.

9As I hope Mr. Adamczyk will appreciate from the foregoing, more serious consequences may ensue if he fails to attend a second time. If he encounters any difficulty joining the videoconference, he should immediately contact Employer Counsel, for whom it appears he has contact information.