P-2005-2315
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mark Keating
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Andrew Camman Polishuk Camman & Steele Barristers and Solicitors
FOR THE EMPLOYER
Fateh Salim Counsel Ministry of Government Services
CONFERENCE CALL
May 31, 2007.
Decision
This decision deals with the employer’s request for an order for production and further particulars from the grievor, who has grieved his discharge from his position as Operational Manager at the Windsor Jail.
The referral of his grievance to this Board is accompanied by a list of particulars, which, in summary, indicate that the grievor’s defense is based on the fact that the events which lead to a criminal charge against him occurred outside of the workplace and the assertion that they were not an interference with the grievor’s 22 years of employment with the Ministry. Further, the particulars recite that he provided the Ministry investigator the details of the charge against him, that the complainant in the criminal matter was know personally to him, and that she had no connection to the workplace. These facts are accompanied by denials that he has committed a breach of trust, brought disrespect to the Ministry or done anything that amounts to just cause for termination.
At the time the employer investigated the incident, the grievor’s criminal trial had not taken place, and he declined to answer certain questions on the advice of his criminal lawyer. He has since been acquitted of the criminal charge, and employer counsel is looking for further particulars of the grievor’s theory of the case, such as his explanation for his behaviour on the night he was charged.
Counsel for the grievor indicated he would provide the one document he had that he was relying on. As to particulars, he argued that the details given in the grievance were adequate particulars in the context of a grievance proceeding, and he did not think it was appropriate to order further particulars until the end of the employer’s case, as it might undermine the burden of proof which is squarely on the employer. In support of that proposition he relied on Central Park Lodges and SEIU, Local 210 (Rice) 2001 CanLII 62023 (ON LA), 2001, 95 L.A.C. (4th) 192 (Etherington). One of the cases relied on by employer counsel,
Toronto District School Board and CUPE, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime) is a decision in which Arbitrator Shime disagreed with the finding in the Central Park Lodges case that production by the Union might undermine the “placement of the burden of proof on the employer”, as well as the order made by Arbitrator Etherington delaying production until the start of the union’s case. Counsel for the grievor distinguishes this case on the basis that it was not dealing with an accusation of criminal or quasi-criminal behaviour.
Employer counsel also referred to the following jurisprudence for the proposition that arbitrators regularly order production and particulars:
From the PSGB: Chyczij and Ministry of Labour, P-2002-0003 (O'Neil), dated June 20, 2005 and P-2000-0017 (Maeots), dated September 28, 2001; Mously and Ministry of Correctional Services, P-2001-0002 (Leighton) date November 28. 2001; Laird and Ministry of Community Safety and Correctional Services, P-2003-0799 (O'Neil) dated April 30, 2004; Morrison and Human Rights Commission, P-1994-0037 (Lynk) dated October 18, 1996 and P-1994-0037 (Willes), dated December 21, 1995.
From the GSB: OPSEU (Jones) and Ministry of Community Safety and Correctional Services, 2005-2769 (Tims), dated December 22, 2006; OPSEU (Samaroo) and Ministry of the Solicitor General and Correctional Services 1994-0491, (Gray), dated June 16, 1999; OLBEU (Koonings) and Liquor Control Board of Ontario 2003-3101 (Gray) February 17, 2006.
From other jurisprudence: Ottawa-Carleton Public Employees' Union, Local503 v. Ottawa (City) (Smoley Grievance) (Roach) [2006] O.L.A.A. No. 747; Windsor Casino Ltd. And National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 444 (Graziano Grievance) (Crljenica) [2004] O.L.A.A. 708.
Having reviewed the documents, case law and arguments in this matter, it is my view that the grievor has provided sufficient particulars in that the material filed appears to disclose the basic facts on which the grievor intends to rely. I am not persuaded that I should compel disclosure of evidence that might be brought in response to the employer’s case, nor of planned cross-examination or argument.
In all the circumstances of this case, the following are the Board’s directions in response to the employer’s motion:
Counsel for the grievor is to produce forthwith to counsel for the employer the one document on which he currently intends to rely. If, after hearing the employer’s case, or any portion of it, there are additional documents on which he intends to rely, he is to produce them to the employer as soon as possible prior to the commencement of the evidence on behalf of the grievor.
If, after hearing the employer’s case, there are additional facts on which the grievor intends to rely, he is to provide particulars of them to employer counsel as soon as possible prior to the commencement of the evidence on behalf of the grievor. It is appropriate to note that the timing of any exculpatory explanation to the employer will be an appropriate factor to take into account on the issue of any remedy that might be awarded to the grievor. As well, witnesses are to be put on notice, at the latest during their cross-examination, of any contradictory evidence that is planned so that they might have an opportunity to offer an explanation.
Reply evidence will be available to the employer to deal with matters newly raised in the grievor’s defence, as well as other appropriate responses to whatever evidence is called by the grievor.
The matter will reconvene on the scheduled date of July 11, 2007.
Dated at Toronto this 22nd day of June, 2007