Numéro de sentence arbitrale 20-003

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Award Date:	2020-04-13
Arbitre:	Brownlee, D. Voir les prix par Brownlee, D.
Municipalité:	Brantford Voir les prix а partir de Brantford
Région:	South West Voir les prix а partir de South West
Classifications:	Associations, Procedural Issues
Plaignant:	J. Emmons, Complainant
Comparutions:	C. Jones and L. Pearce, for the Association, pour l'Association J. Emmons and E. Emmons, for the Complainant, pour l'employeur
Longueur:	20 pp
Référence conventions collective	Art. 10.04
Référence législative	Police Services Act, s. 124(3); Statutory Powers and Procedures Act, ss. 2, 3, 5, 8, 9, 12, 15, 16, 23 and 25

Sommaire

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Associations   Duty of fair representation - Association entering into settlement with employer concerning top-up for employees in receipt of WSIB and CPP Disability benefits - Complainant an employee affected by settlement - Complainant alleged association breached its duty of fair representation in resolving dispute with employer - Complainant and association requesting procedural orders in advance of hearing on the merits - Orders issued accordingly - Interim award.

Procedural Issues   Duty of fair representation complaint - Complaint concerned settlement reached by association and employer respecting top-up for employees in receipt of WSIB and CPP Disability benefits - Complainant and association requesting procedural orders in advance of hearing on the merits - Orders issued accordingly - Interim award.

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Réalités

Mr. Jeffrey Emmons filed a duty of fair representation (DFR) complaint against the association. Pursuant to s. 124(3) of the Police Services Act, the arbitrator was appointed to hear his complaint. The grievance alleged that in reaching a settlement with the employer which affected the complainant, the association acted in a manner that was arbitrary, discriminatory or in bad faith. Hearings under the Police Services Act were governed by the Statutory Powers and Procedures Act. Prior to calling evidence, the complainant requested a number of procedural orders in advance of the hearing on the merits. The association requested that the arbitrator issue directions to the parties for the conduct of the hearing. Both parties agreed that the hearing should not be recorded. This interim award dealt with these procedural matters. The background to the dispute was the issue of top-up. Article 10.04 of the collective agreement required the employer to pay top-up to members in receipt of WSIB benefits to the amount of net pay from regular salary. In an interest award, issued on July 25, 2017 by Arbitrator Trachuk, the top-up provisions were amended. Subsequently, an implementation dispute arose between the parties. The dispute was referred back to Arbitrator Trachuk, who issued a supplementary award in which she indicated that the board might need to take into account the tax consequences for employees in receipt of CPP disability benefits, in order to ensure that those employees received the appropriate amount of top-up. The complainant was an affected employee. He filed a grievance in January 2019 about the quantum of his top-up. The employer denied his grievance on the basis that the parties were continuing to explore the matter. The parties did resolve the matter and recorded their agreement in Minutes of Settlement. The complainant then brought his DFR complaint.

Argument

The complainant requested: an abuse of process order; an order for disclosure of a confidential Memorandum of Settlement (MOS) between the complainant and the employer resolving a prior human rights complaint; disclosure of an accounting report prepared for the employer together with supporting documents; that a summons be issued to various persons; an order affirming that the character of the association was an issue in the proceeding; an order that the hearing be open to the public. The association sought directions regarding the conduct of the hearing.

# de sentence arbirale

1) In accordance with the parties’ agreement, no participant would be permitted to record the hearing. 2) While the parties obviously had different characterizations of the documents they intended to rely on, the arbitrator did not view this as a basis for issuing an abuse of process declaration. 3) The prior MOS was clearly relevant to one of the issues before the arbitrator. Accordingly, the arbitrator ordered that it be produced for the sole purpose of the hearing, with confidentiality to be maintained. 4) Some documents requested by the complainant had already been produced, such as financial breakdowns. The association did not have a copy of the accountant’s report. Accordingly, the request for further production of documents from the association was denied. 5) The requests for summonses to witnesses were all denied, because either the proposed evidence was not relevant to issues in dispute, or it was otherwise available through witness testimony and documents. 6) Section 8 of the SPPA addressed situations where the character of a party was an issue in the proceeding. The arbitrator determined that s. 8 had no application in this dispute; it was unnecessary for her to issue any orders regarding the character of the association. 7) In accordance with s. 9 of the SPPA, the hearing was open to the public. 8) The parties had already made extensive opening statements addressing their positions. Nevertheless, the arbitrator ruled that they would be permitted to make brief supplemental opening statements, as long as these were not repetitive. 9) In accordance with the association’s suggestion, the arbitrator issued some directions regarding conduct of the hearing: witness lists and will-say statements were to be exchanged; the complainant would proceed first; absent objection by the other party, documents would be admitted into evidence without the need for authentication; witnesses were to be called only where their proposed evidence was relevant and necessary.

Autorités cité

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