GSB# 2015-0473
UNION# 2015-0313-0002
See Appendix A attached
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Kelso et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)
Employer
BEFORE
Stephen Raymond
Arbitrator
FOR THE UNION
Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Labour Practice Group Counsel
HEARING
May 9, June 9, and September 13, 2022; May 18, 2023
DECISION
1This decision deals with motions made by the Employer in a proceeding involving a claim by a number of individual grievors that the Employer violated the collective agreement when, in May 2015, it reclassified Executive Support ITSOs to SO4 from SO3. The Union asserts that the reclassification was carried out in bad faith. The Employer brings a non-suit motion and, in the alternative, a motion that the grievance be dismissed as the matter is now moot. I will address the non-suit motion first and then address the question of mootness.
2Both Counsel were in agreement on the general principles that should be considered when deciding a non-suit motion. The Union reserved the right to address the non-suit motion test if the Employer was successful in its non-suit motion. The Employer acknowledged the Union’s right to make that argument, if necessary.
3In Ontario Public Service Employees Union (Pacheco) v. Ontario (Solicitor General), 2020 CanLII 85957 (ON GSB), 2020 CanLII 38998 (ON GSB), Arbitrator Petryshen set out the general principles that this Board has adopted in determining a non-suit motion:
9There are a number of decisions of this Board which summarize the primary principles to be utilized when deciding a non-suit motion. With one addition, I adopt the following principles that are summarized in OPSEU (Whan et al.) v. Ontario (Ministry of Transportation), supra, as follows:
The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted, a written decision with reasons will follow. However, where a non-suit motion is denied, no reasons, oral or written, will be issued.
4Arbitrator Petryshen also remarked at paragraph 10 of his decision, that in addition to the above-noted principles, the determination of whether a prima facie case has been made out, the evidence must meet a minimum threshold of credibility.
5Having heard the Union’s evidence, it meets a minimum threshold of credibility. In accordance with specifically point number 7 above, the Board does not provide reasons when a non-suit motion is denied. In this matter, I am denying the non-suit motion. No reasons will be provided.
6I turn now to the issue of mootness. The motion that I dismiss these grievances was argued on the same facts as the non-suit motion. Given my decision on the non-suit and the Board’s practice not to provide reasons, I am not going to provide reasons in respect of mootness because they would be the reasons that I am not providing in respect of the non-suit motion. That said, I think it suffices to say that I agree with the Union that there is a labour relations purpose to ensuring that the Employer carries out its management functions in good faith.
7This matter will continue on the dates already scheduled.
Dated at Toronto, Ontario this 8th day of September, 2023.
APPENDIX A
GSB File Number
Grievor
Union Grievance Number
2015-0473
Kelso, Steven et al
2015-0313-0002
2015-0474
McLeod, Jeanne
2015-0313-0003
2015-0475
Bamford, David et al
2015-0340-0001
2015-0476
Botulenko, Billy
2015-0340-0002
2015-0477
Cox, Rob
2015-0340-0003
2015-0478
Delong, Kimberley
2015-0340-0004
2015-0479
Grozelle, Donald
2015-0340-0005
2015-0480
Lindo, Derek
2015-0340-0006
2015-0481
Michael, James
2015-0340-0007
2015-0482
Monteleone, Larry
2015-0340-0008
2015-0506
Davidson, Mike et al
2015-0362-0002
2015-0507
Doiron, Anne
2015-0362-0003
2015-0508
Green, Stuart
2015-0362-0004
2015-0509
Kowalski, Bogdan et al
2015-0446-0002
2015-0510
McNulty, Brian
2015-0446-0003
2015-0511
Wong, Manon
2015-0446-0004
2015-0512
Concepcion, Roland et al
2015-0533-0009
2015-0513
Davey, Julian
2015-0533-0010
2015-0514
Garcia, Paulo
2015-0533-0011
2015-0515
Gonsalves, Valentina
2015-0533-0012
2015-0516
House, Michael
2015-0533-0013
2015-0517
Innes, Michael
2015-0533-0014
2015-0518
Lau, Danny
2015-0533-0015
2015-0519
MacFadyen, Ian
2015-0533-0016
2015-0520
Moore, Rosalind
2015-0533-0017
2015-0521
Mccaffrey, Glenn
2015-0533-0018
2015-0522
Pfeffer, Dennis
2015-0533-0019
2015-0523
Rode, Steven
2015-0533-0020
2015-0524
To, Tom
2015-0533-0021
2015-0525
Blackwood, Timolin
2015-0533-0022
2015-0526
Alcock, Joseph et al
2015-0702-0004
2015-0527
Villeneuve, JoAnne
2015-0702-0005
2015-0528
Brown, Denise et al
2015-0736-0001
2015-0529
Lapensee, Patrick
2015-0736-0002
2015-0530
Sereg, Istvan
2015-0410-0001
2015-0531
Monette, Gwen
2015-0649-0006