Muldoon v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2010 CanLII 52662

P-2008-2913

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Muldoon

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE COMPLAINANT

Daniel Muldoon

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Legal Service Branch Counsel

SUBMISSIONS

October 28, November 18, 2009.

Decision

1Mr. Daniel Muldoon, an OM16 at Ontario Correctional Institute, has a number of complaints before the board, which were scheduled for hearing on September 23 and 24, 2009. The complainant asked for an adjournment of those hearing days for medical reasons, which the employer opposed. The hearing proceeded on September 23, with the grievor participating by conference call. The employer also made a motion to dismiss the complaints because Mr. Muldoon had not attended at the hearing and there was no medical evidence to support his request for an adjournment, other than a “sick note” provided to the institution.

2After considering the submissions of the parties and particularly because the grievor was unrepresented and did not understand what was necessary to justify an adjournment, I suspended the decision on the adjournment and the motion to dismiss the complaints. I granted the grievor’s request to provide a medical opinion to the board that would address the reason he could not proceed with the hearing on September 23 and 24, 2009. I confirmed the oral order in writing with some detail in an order of the Board dated September 28, 2009.

3Mr. Muldoon was given until October 28, 2009 to file medical evidence with the Board to support his request for an adjournment. The Board received a letter from the complainant’s doctor on October 28, 2009 stating that Mr. Muldoon’s medical condition prevented him from being able to attend the September hearing dates. The complainant was also given the opportunity to make written submissions as to why the Board should not dismiss his complaints, which he chose to do. The Board received those submissions on October 28, 2009. Mr. Muldoon also advised the Board that he had retained counsel. However, his counsel has not notified the Board that he represents the complainant, nor did he make any submission to the Board. Counsel for the employer filed her reply argument on the motion on November 18, 2009 and submitted that the complainant’s medical evidence was inadequate and the complaints should be dismissed forthwith. She argued in the alternative that the delay in proceeding should be taken into account for the purposes of remedy, should one be ordered after the hearing on the merits.

4Having carefully considered the submissions of the parties and the medical opinion from the complainant’s doctor, I have decided to grant the complainant’s request for an adjournment and to deny the employer’s motion to dismiss the complaints without a hearing. I have the discretion to grant adjournments if to do so would be fair in all the circumstances and bearing in mind the principles of natural justice. I am persuaded that Mr. Muldoon initially believed that he had a right to an adjournment for medical reasons and that he meant no disrespect to the Board in his initial submissions on September 23. He was advised that without the employer’s agreement to the adjournment he had to provide adequate medical evidence to the Board for why he could not attend and represent himself. He subsequently provided evidence that his medical condition prevented his attending the September hearing days. Since Mr. Muldoon provided the medical evidence to support an adjournment, the employer’s motion to dismiss the complaints for failure to attend at the hearing must fail. The complainant satisfied all material requirements of the Board’s order of September 28, 2009.

5Thus, the hearing on the merits of Mr. Muldoon’s complaints should proceed when he advises the Board that he is fit to go forward. Any further hearing dates in this matter shall be set by conference call with the parties and the Board. Finally, I should note that I am of the opinion that it would be premature to make any decision on the effect of the delay on a remedy, if any, at this point in the proceeding.