P-2002-0003

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Chyczij

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Ron Chyczij

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

January 25, 2005, followed by written submissions completed March 31, 2005.

Decision

This decision deals with the employer’s preliminary motion that the grievance filed by Ron Chyczij, dealing with tuition assistance requests from 2000 and 2001, should be dismissed for delay, or for failure to provide full particulars.

Facts and Argument

The grievance was filed on December 24, 2001, and referred to the Public Service Grievance Board (referred to below as the Board or the PSGB) on January 7, 2003. The statement of material facts submitted to the Board details the history of the grievor’s application in April 2000 and March 2001 for staff development funds. The grievance followed the employer’s negative response in December 2001. The Applicant contended that the decision was flawed, breached Management Policy or the past practice of the OPS, the Ministry of Labour and/or the Pay Equity Commission. Further it was said that the employer acted in bad faith and/or in an arbitrary or discriminatory manner, treating the grievor inequitably.

No objection is taken to any time lapse related to the filing of the grievance. It is the amount of time that has transpired since it was first listed for hearing that is contentious.

Four hearing dates have been scheduled, three of which were adjourned. The hearing date was first set for January 23, 2003. The grievor requested an adjournment and the employer consented. A second hearing date was set for less than six months later, June 3, 2003, but the grievor was on medical leave, and that hearing date was adjourned. The third hearing date was scheduled for November 26, 2003, another six months later. As the grievor was still on medical leave, the employer consented to the adjournment of that date as well. Unfortunately, after the November 26, 2003 date, the Board was unable to immediately offer new dates for hearing because of the timing of the issuance of Orders in Council of members of the Board. There is no evidence before me which would suggest that either party unduly delayed the scheduling of the matter once the Board was in a position to offer dates.

There have been considerable exchanges between the parties about disclosure and particulars. At the internal grievance hearing, the grievor requested disclosure of certain documents and records; the employer’s position was that the documents were not relevant, and that they had no authority to release them. On August 21, 2002, then counsel for the employer wrote the grievor asking for full particulars to be provided “at your earliest convenience in order to allow adequate time to prepare for the hearing date scheduled on January 23, 2003.“ A follow-up letter was sent on November 29, 2002 asking again for all material relating to the matter, along with full particulars and disclosure of documentation upon which the grievor intended to rely by December 23, 2002, in default of which the employer indicated it might ask for interim relief from the Boars.

In letters dated December 27, 2002 and April 17, 2003, the grievor renewed his requests for disclosure. After the first hearing date was adjourned on consent, the employer wrote the grievor on April 30, 2003 acknowledging receipt of the Form 1A and the grievor’s request for disclosure of documentation. Employer counsel noted that the grievor had not provided full particulars, and stated that without same, he could not effectively respond to the grievor’s allegations, or complete a Form 1B. Further, it was noted that much of what the grievor had requested was available as a matter of public record, but that in any event, his request was overly broad. Further, employer counsel gave notice that “in the absence of particulars and/or an alleged breach of the Public Service Act, it may bring a preliminary motion to dismiss without a hearing on the merits”. The employer also wrote the Board on May 26, 2003, after the confirmation that the June 3 hearing date was being adjourned, asking that a teleconference be scheduled to hear the employer’s motion to dismiss if full particulars and disclosure of documentation was not provided at least forty days prior to the next hearing date. The next hearing date of November 26, 2003 was adjourned on consent because of the grievor’s continuing medical leave, and the proposed motion was not pursued at that time.

Notice was then given in June 2004 that the matter was to resume on January 25, 2005. Employer counsel wrote the grievor once again on July 20, 2004 articulating his concern about the cost of any future cancellations of hearing dates and the ongoing lack of provision of full particulars and disclosure. In that letter the employer also asked for full particulars and disclosure of documentation intended to be relied upon by December15, 2004, in default of which they would seek dismissal. This was repeated in a letter of November 17, 2004. December 15 came and went with no further provision of particulars to the employer by the grievor.

On December 17, 2004 the grievor wrote the Board seeking a postponement of the January 25, 2005 date due to unforeseen circumstances. The details set out in the letter are as follows:

I have served as an international observer for the presidential elections in Ukraine during rounds 1 and 2 of the voting. As you may be aware, a special unexpected round 3 was called due to massive falsification of results and other electoral violations.

Since I was involved in various aspects of this monitoring mission since early on, I have been asked to participate as an observer and team leader for round 3. Consequently, I will be residing in Ukraine till 17 January 2005 so that I may complete mission objectives, including the requirement to write reports and recommendations. This will not allow me sufficient time to subpoena witnesses or otherwise prepare for the scheduled hearing on 25 January 2005. Accordingly, I am seeking a postponement to a future date convenient to the parties.

The employer wrote to the Board on December 24, communicating its refusal to consent, and asking instead that the matter be dismissed due to the lengthy delay and clear failure to provide full particulars. The letter recited the history of the matter, and asked that the matter be dismissed on the grounds that sufficient particulars had not been provided. It was submitted that the employer was increasingly prejudiced by the repeated adjournments and lack of particulars.

When the matter came on for hearing on January 25, 2005, the Board was faced with two competing motions. The employer requested dismissal on the grounds set out above, while the grievor asked for an extension of time to prepare and for disclosure from the employer, without which he said he was not in a position to provided further particulars. He indicated he had just returned from Ukraine the night before, was jet-lagged and needed time to respond. After hearing the employer’s submissions on the motion to dismiss, I granted the grievor time to answer the employer’s motion in writing.

The employer relied on case law dealing with delay in filing grievances, such as Edwards and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB#P/0049/01, application for judicial review dismissed January 8, 2004 (Divisional Court file No. 1389), OPSEU and The Crown in Right of Ontario (Ministry of Northern Development and Mines) GSB #2002-0243, -0244 and –1243, OPSEU and The Crown in Right of Ontario (Ministry of Correctional Services) GSB #2001-1122 , Laird and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB#P/2003/0799.

As to particulars, employer counsel relied on Gardiner and The Crown in Right of Ontario (Management Board Secretariat) PSGB#P/2003-0951 re and Giannou and The Crown in Right of Ontario (Management Board Secretariat) PSGB#P/570/96. The Giannou decision was the subject of an application for judicial review, which was granted by the Divisional Court. However, the Board’s order was restored when the decision of the Divisional Court was quashed by the Court of Appeal in an endorsement dated August 24, 1999. The Court of Appeal found that the Divisional Court had erred in granting the application for judicial review because there had been no finding of a denial of natural justice, and because the Board found that if the facts alleged were proven they would not constitute grounds for a grievance. Employer counsel argued that this decision defeats the idea that a Board order is required before a matter can be dismissed for failure to provide full particulars. It is the employer’s position that to accept the idea that a Board order was required would only encourage further abuse of the Board’s procedures as parties could simply ignore their obligations without fear of repercussion until the Board issues an order when the jurisprudence does not support such a notion. Counsel underlines that the employer put the grievor on notice multiple times that it might make a motion if he did not provide sufficient particulars.

The grievor’s written submissions were to the effect that the employer had not made a sufficient case for dismissal, nor had it given any meaningful explanation as to how its case had been prejudiced by delay. Further it was asserted that the Employer contributed to the delay, starting with the fact that it took twenty months to respond to the first request for tuition assistance. Then, the internal grievance hearing, which should have been held within thirty days of the filing of the grievance on December 24, 2001, was not held until March 6, 2002. The grievor submits that he should not be held responsible for those delays, the ones attributable to his sick leave, or the ones attributable to the Board’s inability to set a date directly after the November, 2003 adjournment.

As to the issue of particulars, the Grievor contends that he has complied with the Board’s rules in completing Form 1A, and notes there are no specific rules regarding particulars or other Board guidelines regarding the subject. As such, the grievor maintains that there is no requirement to provide particulars in the absence of a Board ruling to do so. More basically, the grievor maintains that no further particulars are required in that sufficient information has been provided.

The grievor also notes that he has received no disclosure from the employer, despite his requests since 2002. He provided copies of his requests for disclosure dated December 27, 2002 and April 17, 2003. The grievor maintains that all the information requested is at least arguably relevant.

The grievor submitted that dismissing the matter without an order for particulars would be contrary to the purpose and intent of the grievance and arbitration procedures in not allowing the dispute to be resolved on the merits. Further, he argued that in an informal proceeding, and without a finding by the Board that the Form 1A is lacking in particulars, there is insufficient basis to dismiss for lack of particularity. He distinguished this case from a number of the authorities cited by the employer, as there had been no order from the Board for particulars.

Employer counsel’s reply submissions argued that the grievor had failed to provide a rational explanation for the protracted delay in this matter. As well, although the employer does not rely on the grievor’s periods of illness which were approximately six months in 2003, it takes the position that this does not excuse the remaining time periods. Employer counsel notes that if the delay was due to disagreement with the employer’s position on disclosure, the grievor could have written to the Board two years ago to resolve the issue. Further, the grievor did not respond to the letters from the employer when the matter was rescheduled again in June 2004. Edwards and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB#P/0049/01 is cited for the proposition that where the employer has been very clear in its correspondence with the employee and the employee simply fails to respond, it can be held against the employee. As to the lack of a sufficient explanation, due diligence, and lengthy elapsed time, counsel cited OPSEU and The Crown in Right of Ontario (Ministry of Correctional Services) (Grievances of St. Jean et al.) GSB #2001-1122 and OPSEU and The Crown in Right of Ontario (Ministry of Northern Development and Mines) (Grievances of Smith) GSB #2002-0243 et al.

In sum, the employer’s position is that the grievor has not explained the long periods of delay, has done nothing to advance this proceeding in an appropriate manner, nor to properly set out the basis for his grievance, despite being an experienced litigant before the Board. Further, employer counsel argued the Board’s case law has been clear that the employer does not have to prove specific prejudice for delay to be held against a grievor, and that the grievor was not sufficiently diligent in the pursuit of his grievance, without sufficient explanation. As well, it is argued that the Board should take into consideration that this is not a matter as serious as a dismissal, and should not tolerate the delay to date.

Should the matter be dismissed for delay?

In considering the jurisprudence on delay cited above, it is notable that most of it concerns delay in filing a grievance, either before or after the grievor became aware of the facts giving rise to the grievance. Here, the grievance was filed soon after the employer’s negative response to the grievor’s request for tuition assistance. Thus, the employer was on notice early on of the grievor’s dissatisfaction with its answer. These facts make the case before me distinguishable from those in the authorities filed which deal with delay in filing a grievance. More germane is the general arbitral jurisprudence on adjournments and laches or excessive delay, which seeks to strike a balance between expedition and finality on the one hand and the fair resolution of the merits of disputes on the other. The decision in each case is a matter for the discretion of the adjudicator after considering who is responsible for the delay, whether there is a reasonable explanation for it, and its effect in terms of prejudice to the other party. Where the delay is not attributable to the grievor’s conduct, it is not usually appropriate to dismiss.

Starting with the question of whether the grievor is responsible for the delay, the delay in scheduling this matter may conveniently be discussed in two periods, the time up to the end of the grievor’s medical leave, and the time since then. The first adjournment was on consent, and it is not argued that the delay was excessive at that point. The second and third adjournments were also uncontested, due to the grievor’s medical leave. As the employer is not suggesting that the period of medical leave be counted against the grievor, it is the time after the November 26, 2003 hearing date which is most in question for deciding if the delay is attributable to the grievor’s conduct. In that respect, there is no evidence that the grievor is responsible for the delay in rescheduling the hearing in the period immediately following the November 28, 2002 date. The only evidence on the subject indicates that administrative problems with the timing of the issuance of Orders-in-Council for the Board were responsible for some of the delay. Thus the responsibility is at least mixed for the delay between November 28, 2002 and January 25, 2005, and thus cannot be counted solely against the grievor. Although the grievor once again asked for an adjournment of the January 25 hearing date, that request was not granted, and instead the day was used for submissions on the preliminary motions. Thus, although the total time elapsed would be relevant in evaluating the effects of the delay on the parties’ ability to present their cases, and the appropriateness of any remedy, there is insufficient evidence before me on which to find that the more recent delays in scheduling the grievance are the grievor’s responsibility. In the result, although the employer’s frustration at the delay is entirely understandable, it is my determination that it is not appropriate to dismiss for delay in getting the matter set down for hearing.

Should the matter be dismissed for failure to provide particulars?

The background to this portion of the motion involves the correspondence described above in which the employer was seeking particulars, while the grievor was seeking disclosure. It is appropriate to note that the complaint as filed with the Board is not totally devoid of particulars; there are seven paragraphs of material facts. What the employer is concerned about is what is missing from that statement, as set out specifically in the letter from employer counsel dated April 30, 2003. In that letter, employer counsel acknowledged the grievor’s request for disclosure, but took the position that he first needed further particulars. Counsel articulated what the grievor had not provided as follows:

Specifically, you have not provided particulars regarding:

1. Any alleged breach of the Public Service Act?

2. The basis on which the denial of the application for Staff Development was flawed?

3. What policies directives, guidelines, objectives, position papers, or past practices of the Pay Equity Commission or the Ministry of Labour have been breached and the basis on which they were breached?

4. The basis on which the employer is alleged to have acted in a manner which is inequitable, arbitrary, discriminatory or in bad faith?

Without this further information, the employer remains unable to effectively respond to your allegations, as well as the Form 1A. Therefore, we are again requesting full particulars as set out above so that we can complete a Form 1B and respond appropriately to your request for disclosure.

That letter closes with the employer putting the grievor on notice that, given the absence of particulars and/or an alleged breach of the Public Service Act in this matter, it may bring a preliminary motion to dismiss this matter without a hearing on the merits. The grievor never responded to that letter. In his submissions in response to the employer’s motion, the grievor characterizes the employer’s demand for particulars as “a case of the employer wanting it both ways”. He is of the view that the employer has enough particulars, and that without the disclosure he is seeking, he is unable to provide further particulars. Further, it appears that the grievor was under the impression that he was entitled to disclosure from the employer and/or an order from the Board before he was required to provide particulars.

The correspondence between the parties represents a kind of stalemate, where each side wanted something from the other that it was not getting. Either side could have come to the Board for an order at any time to break the impasse. The question is whether it is the grievor who was solely responsible for the delay. The grievor’s failure to respond to the employer’s letters asking for particulars is particularly troublesome, and he could have brought the matter to a head at any time by asking the Board for an order for the disclosure he felt was necessary in order to provide any further particulars. Nonetheless, and although the jurisprudence indicates an order will not always be necessary, there is no set rule one way or the other, which the grievor could have been aware of in advance. It is a question of discretion in each set of facts. As well, although employer counsel was very clear in his request for particulars, he had indicated a motion was being considered as early as November 29, 2002 and yet the Board was not actually requested to make a ruling until late 2004. These circumstances, although very unfortunate, do not amount to a situation where the responsibility is so clearly on the grievor that his grievance should be dismissed.

Instead, it is my view that it is appropriate to clarify, as in Gardner, cited above, that the grievor must provide particulars so that his requests for disclosure can be assessed for relevancy. As the statement of grievance in the Form 1A now stands, all one can tell is that the grievor is unhappy that he did not receive a timely answer to his request for tuition assistance, and that when he did, the response was negative. Further, there is no clear statement of what the grievor is seeking as remedy.

The starting point for what must be contained in a grievance is s. 34(1) and (4) of The Public Service Act as follows:

34. (1) A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).

(4) The grievance must set out the reasons for the person’s complaint about the working condition or term of employment. O. Reg. 168/96, s. 6 (1).

The essential elements of a grievance in this system are that an eligible employee be aggrieved about a working condition or term of his or her employment. The formal requirement is that the grievance set out the reasons for the person’s complaint about the working condition or term of employment. The purpose of these provisions is obviously to put the other side on notice of what the case is about. The Board’s jurisprudence makes clear that particulars may be ordered when the statement of grievance or the Form 1A before the Board is insufficient to put the other side on notice of what the case is about. If the parties do not know in advance what the case is about, it is not conducive to a fair or expeditious hearing.

For the reasons set out above, it is my view that it is appropriate to direct the grievor to provide further particulars to the employer, through its counsel, and to the Board, by July 11, 2005. In order to put the employer, and the Board, on notice as to the basis for his complaint, he must identify the term or condition of employment he is complaining about, i.e. he must state what term or condition of his employment he says entitles him to tuition assistance, and in what way it was breached. As to each of his allegations, including that the denial of tuition assistance was unfair, discriminatory and inequitable, he must state the reasons for that complaint. For example, the allegations of discriminatory treatment suggest that the grievor is of the view that there is some baseline or standard for granting tuition assistance in respect of which he was treated differentially in a negative way, or for some improper reason. The grievor must clearly state what the standard is and who it is that he says breached it, in what way, and on what date or dates. Further, the grievor is directed to answer the questions posed by employer counsel in his letter of April 30, 2003, and set out above. He is further directed to state what it is that he is seeking as remedy for his complaint.

Once the grievor has provided particulars, the employer is to reply in writing to his request for disclosure, indicating which portions of the material it is willing to disclose, and which it is not, by August 1, 2005, along with any requests the employer may have for disclosure from the grievor.

If the grievor does not provide further particulars by July 11, 2005, or such other date on which the parties may agree or the Board may order, or if there are further issues to be dealt with after the receipt of particulars, the Board should be contacted without delay to arrange a teleconference to hear the parties’ submissions on any remaining preliminary issues. In the meantime, the Registrar will contact the parties to find an early date to list this matter for hearing on the merits.

Dated at Toronto this 20th day of June, 2005