GSB# 2019-1633; 2020-2399; 2022-12123

UNION# G-82-19-SOW; G-018-20-SOW; G-143-19-SOW

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Toppin)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Andrea Wobick Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

March 1 and 15, 2023 by (conference call)

Decision

1This matter concerns Grievances #082-19-SOW, #143-19-SOW and #018-20-SOW. The hearing was originally scheduled to commence on April 6, 2022 but adjourned, for reasons not material to this decision, to January 26, 2023. The January 26, 2023, date was adjourned due to the Union not having provided the Employer with pre-hearing document production.

2At the time of adjourning the January 26, 2023 date, the parties agreed that the Employer would be provided with particulars and all arguably relevant documents in the Union’s and Grievor’s possession, power or control by February 15, 2023, including but not limited to the following:

1. Facts the Union will advance that would not reasonably be known by Metrolinx, including the facts that the Union will rely on to support any claim for a violation of the Human Rights Code.

2. Particulars of the Union’s expected evidence regarding grievance #082-19-SOW.

3. Arguably relevant documents in respect of other employment the grievor held for the period of time that Metrolinx alleges that the Grievor “failed to attend work” as per the termination letter of January 23, 2020.

4. All arguably relevant documents in the Union’s and grievor’s possession, including emails and recordings.

5. If a medical condition is now being asserted:

(a) disclosure of all arguably relevant clinical notes and records of any doctor or other health professional seen by or treating the grievor in respect of the condition; and

(b) disclosure of any arguably relevant records maintained by Oncidium and Metrolinx’ Health and Wellness department.

6. Particulars of the grievor’s mitigation since termination.

3The above disclosure was not provided to the Employer by February 15, 2023. As a result, the Employer requested that a conference call be convened. That conference call was held on March 1, 2023. A further conference call was convened on March 15, 2023. The Union advised the reason for having failed to produce the documents as agreed is that the Grievor has not responded to its attempts to contact him. The Employer sought an order for the production of the documents listed in paragraph 2 above as well additional particulars and documents. The additional particulars and documents sought by the Employer are particulars and arguably relevant documents in respect of other employment that the grievor held on June 7, 2019, July 25, 2019 and, in addition to the documents the Union agreed to produce in respect of periods of time that Metrolinx alleges Grievor was late for work and “failed to attend work” as per the termination letter of January 23, 2020, particulars thereof. The Union objected to the Employer’s request.

4It is my determination that it is appropriate to Order the Union to produce the documents set out in paragraph 2 as well as the additional particulars and documents sought by the Employer during our conference call. I hereby order the Union to provide to the Employer, no later than March 24, 2023, with the exception of the documents at subparagraph 5 which must be obtained from third parties, the following:

1. Facts the Union will advance that would not reasonably be known by Metrolinx, including the facts that the Union will rely on to support any claim for a violation of the Human Rights Code.

2. Particulars of the Union’s expected evidence regarding grievance #082-19-SOW.

3. Particulars and arguably relevant documents in respect of other employment that the grievor held on June 7, 2019, July 25, 2019 and for the periods of time that Metrolinx will advise that the Grievor was late for work and “failed to attend work” as per the termination letter of January 23, 2020

4. All arguably relevant documents in the Union’s and grievor’s possession, including emails and recordings.

5. If a medical condition is now being asserted:

(a) disclosure of all arguably relevant clinical notes and records of any doctor or other health professional seen by or treating the grievor in respect of the condition; and

(b) disclosure of any arguably relevant records maintained by Oncidium and Metrolinx’ Health and Wellness department.

6. Particulars of the grievor’s mitigation since termination.

5The Grievor is hereby ordered to contact the Union immediately, and in the absence of compelling circumstances that prevent him from doing so, to forthwith take all steps reasonably required to facilitate the disclosure described in paragraph 4(5) above, including the execution of any consents required for disclosure from third parties.

6In the absence of compelling circumstances that prevent him from doing so, communicated to the Union in advance, the Grievor is ordered to attend at arbitration on the next day of hearing, which is March 31, 2023.