PSGB# P-2023-03349

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Buckley

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

None appearing

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 17, 2024

DECISION

1At the time of this application, the Complainant, Mr. Buckley, was a Sergeant employed by the Employer at the Toronto South Detention Centre. This decision deals with the Employer’s motion to dismiss this application as abandoned. I will also comment on the Employer’s lack of compliance with its undertakings and procedural obligations.

2In its interim decision dated July 3, 2024 in this matter, the Board’s ruling included the following key elements:

a) The Employer’s preliminary objection regarding the Board’s jurisdiction to decide on Mr. Buckley’s complaints about a series of previous events and communications that allegedly happened between April 22, 2021 and September 23, 2023 was upheld.

b) The Employer’s preliminary objections regarding the Board’s jurisdiction to hear the merits of the application regarding an 8-hour disciplinary suspension dated October 23, 2023 (“the Suspension”) was dismissed.

c) The previously-established date for the Employer to provide disclosure of arguably relevant documents to Mr. Buckley regarding the Suspension was extended from July 5 to July 10. The other dates set for disclosure of relevant documents by Mr. Buckley (July 12) and the hearings on the merits starting July 17, as previously agreed by the parties and confirmed in the Board’s directions, remained in place.

d) In addition, having regard for his silence since the Case Management Meeting (“CMM”) in which all parties had participated on April 18, 2024, Mr. Buckley was directed to confirm in writing by July 12 whether or not he intended to proceed with his application regarding the remaining Suspension issue and thus would appear at the hearing scheduled for July 17. There was no reason to believe that he was not in receipt of the Board’s correspondence and he had not provided any change of contact information since attending the CMM.

3Mr. Buckley failed to comply with the latter order to confirm his intentions. He also failed to appear at the hearing of July 17. The Board stood down the hearing for about 30 minutes, but he still failed to appear.

4The Employer therefore renewed its request that the application be dismissed as abandoned.

5In response to my questions, counsel for the Employer disclosed that it had not complied with its obligation to provide documentary disclosure to Mr. Buckley by July 10 (2 days in advance of his deadline to confirm his intentions). The documentary disclosure process had been agreed upon during the CMM, with the date for the Employer’s disclosure being extended by the interim decision. The rationale given for this failure by the Employer was Mr. Buckley’s continuing silence and the work involved in providing disclosure. The date for Mr. Buckley’s confirmation of intentions had, however, been purposely set to follow the Employer’s disclosures.

6After standing down for about 30 minutes, I made the following oral ruling.

7Before dealing with the motion to dismiss, the Board expresses its concern about the Employer’s failure to provide documentary disclosure to Mr. Buckley regarding the Suspension matter. This is something the Employer undertook to do during the CMM, by July 5. It was confirmed in the Board’s Direction issued on April 19, the day after the CMM. The date for the required disclosures was extended to July 10, by the interim decision. Thus, the Employer has not only failed to comply with its undertaking, it has failed to comply with the Board’s express orders.

8Mr. Buckley’s silence does not justify the Employer’s failure to fulfill undertakings or comply with Board orders. Not only does this fail to respect the Board’s decisions, such non-compliance could in other circumstances undermine the due process to which any complainant before the Board is entitled. Had Mr. Buckley appeared before the Board today, he would certainly have been entitled to an adjournment at the very least, and perhaps other relief. The Board takes a very dim view of a party’s failure to fulfill undertakings or to comply with its orders. It is especially concerning when a party is represented by counsel.

9That said, I have concluded that the Employer’s abject failure has been rendered moot by Mr. Buckley’s abandonment of his application. He has been silent since the CMM. He has not complied with the Board’s order in the interim decision to confirm by July 12 whether or not he intended to proceed with his application. That decision stated, “Should he fail to so confirm his intention to proceed, the Employer may renew its request that the application be dismissed as abandoned.” Mr. Buckley also has not objected or commented in any way on the Employer’s lack of documentary disclosure.

10Mr. Buckley also failed to appear at the hearing, without explanation, even with the Board’s delaying the hearing for 30 minutes.

11In these circumstances, I can only conclude that Mr. Buckley has abandoned the application. It is therefore dismissed. The remaining hearing dates are cancelled.