Caroline Cohen

The complainant, a Unit Sergeant, filed a complaint alleging he was suspended for seven days without just cause.

At a mediation/arbitration hearing, the parties entered into a Memorandum of Settlement resolving all matters in dispute.

At the employer's request, the Board issued the settlement as an Order of the Board.

During a grievance arbitration concerning the employer's alleged failure to accommodate the grievor's restrictions, the employer sought an order for the disclosure of the grievor's complete medical file going back to 2012.

The employer argued that the grievor's family physician had reviewed the pre-2016 file when making recommendations during the relevant 2016-2018 period.

The arbitrator dismissed the request for broad disclosure, finding that the employer's ability to cross-examine the physician was not prejudiced in the absence of the complete file.

The union was directed to disclose only a 2012 x-ray that the physician had specifically relied upon.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his duty of fair representation complaint against his union due to a 15-month delay.

The applicant argued the Board breached procedural fairness by imposing page limits, was biased, rendered an unreasonable decision, and violated his s. 15 Charter rights by applying a presumption of prejudice for delayed complaints.

The Divisional Court dismissed the application, finding the Board's procedural directions fair, the delay analysis reasonable, and the Charter claim unfounded as the presumption applies equally to all parties and does not discriminate on analogous grounds.

The complainant, a Unit Sergeant, was suspended for seven days and filed a notice of proposal to complain two days after the 14-day limitation period prescribed by O. Reg. 378/07.

The employer raised a preliminary objection that the Board lacked jurisdiction due to the late filing.

The Board dismissed the preliminary objection, finding that the mandatory time limits were suspended by O. Reg. 73/20 under the Emergency Management and Civil Protection Act due to the COVID-19 pandemic.

The Board exercised its discretion to extend the time limit, noting the lack of prejudice to the employer and the objective of expeditious resolution.

The self-represented complainant brought a motion requesting that the Vice-Chair recuse himself from the arbitration phase of a med-arb proceeding, alleging a reasonable apprehension of bias based on the Vice-Chair's conduct during the mediation phase and a subsequent case management call.

The complainant also requested permission to record the proceedings and an order that his future legal costs be paid by the employer.

The Public Service Grievance Board dismissed the recusal motion, finding that a reasonable person would understand that a mediator's assessment of case strengths and procedural rulings do not indicate prejudgment.

The Board also denied the request to record the proceedings and deferred the issue of costs to the final decision on the merits.

The grievor, a correctional officer, received a 10-day suspension for allegedly using unnecessary and excessive force (OC spray) on an inmate, failing to deploy it at a minimum distance, and being untruthful in occurrence reports.

The arbitrator found that the inmate was still actively fighting and kicking when the grievor deployed the spray, making the use of force objectively reasonable and not excessive.

The employer failed to prove the allegations regarding distance and untruthfulness.

The grievance was allowed, and the discipline was rescinded.

The Association sought pre-hearing production of documents, including an unredacted Underwriting Agreement between the Employer and Canada Life, in a grievance concerning the dismissal of an employee for allegedly submitting false benefits claims.

The Employer and Canada Life argued the redacted portions contained proprietary and irrelevant information.

The Arbitrator ordered the Employer to produce the current insurance policies and documents delineating the responsibilities and risk allocation between the Employer and Canada Life, while permitting the Employer to redact privileged or irrelevant/sensitive information provided it supplies a written description of the basis for each redaction.

The Union brought a preliminary motion to have discipline imposed on three Correctional Officers declared null and void due to the Employer's delay.

The discipline arose from an incident involving an inmate's death in November 2016, but was not imposed until September 2018.

The Arbitrator found the 22-month delay to be excessive and unreasonable.

Applying the arbitral principle that delay alone is insufficient to void discipline without prejudice, the Arbitrator examined the specific allegations.

Allegations relating to routine matters (security patrols, log book entries, and visual obstructions for two officers) were dismissed due to inherent prejudice affecting the officers' ability to recall the events.

However, allegations relating to the extraordinary event of failing to resuscitate the inmate, and failing to carry radios, were allowed to proceed as no prejudice was found.

The union sought damages for non-tangible losses, including mental distress and injury to dignity, following a previous award that found the employer failed to accommodate the grievor's ergonomic requirements.

The union proposed a range of $15,000 to $35,000, while the employer proposed $10,000 to $20,000.

The arbitrator awarded $15,000, noting that the employer's breach occurred over distinct sub-periods and that the grievor's distress was not exclusively caused by the employer's actions.

Additionally, the arbitrator ruled that the employer was entitled to deduct a prior overpayment from the settlement monies paid to the grievor under a Memorandum of Agreement, rejecting the union's technical and equitable arguments against the deduction.

The employer brought preliminary objections to three complaints filed by the complainant, arguing that one complaint was identical to a previously withdrawn complaint and sought remedies within the exclusive jurisdiction of the WSIB, and that the other two complaints failed to establish a prima facie case.

The Public Service Grievance Board allowed the motion in part, ruling that the complainant could not pursue matters covered by the withdrawn complaint or seek compensation for health impacts within the WSIB's exclusive jurisdiction.

However, the Board found that the complaints could proceed on issues not covered by the 2017 complaint and not within the WSIB's jurisdiction, and that a viable case was established regarding the employer's handling of the alleged harassment under workplace policies.

The parties entered into a Memorandum of Agreement (MOA) to resolve issues pertaining to the quantification of damages for salary and credit adjustments.

The MOA required the employer to pay the amounts owing within 60 days.

The employer failed to make the payments within the specified timeframe.

The arbitrator directed the employer to pay the amounts owing within 90 days of the award, along with the agreed daily interest that commenced on the 61st day following the signing of the MOA.

The union requested that the complainant be permitted to testify via videoconference based on existing medical documentation, or alternatively, that the hearing be adjourned to allow for further medical evidence to be filed.

The arbitrator denied the request for videoconference testimony on the current record but granted a brief adjournment to provide the complainant one final opportunity to produce medical evidence supporting her claimed inability to testify in person.

In the context of grievances alleging a failure to accommodate, a dispute arose regarding the disclosure of the grievor's medical file.

The union opposed employer counsel sharing the redacted medical file with the instructing client and an employer witness without the grievor's consent.

The arbitrator held that requiring consent for each disclosure would be unworkable and cause delay.

Balancing the grievor's privacy rights with the employer's right to defend the grievances, the arbitrator ordered that employer counsel may share the medical information with the instructing client and witness strictly for the purposes of obtaining instructions and preparing for the hearing, subject to confidentiality conditions.

The Employer brought a motion to strike portions of the Union's particulars in a grievance arbitration concerning a five-day suspension.

The Employer argued the particulars advanced allegations of general harassment and discrimination that fell outside the scope of the grievance.

The Arbitrator held that the grievance was confined to the allegation that the five-day suspension lacked just cause and constituted harassment or discrimination.

However, the Arbitrator declined to strike all the disputed particulars, finding that evidence of the grievor's stress and overwork could be relevant as mitigating circumstances, provided the events pre-dated the suspension and were not the subject of ungrieved discipline or concurrent proceedings in other forums.

The employer brought a motion arguing that certain aspects of two grievances filed by the union were untimely.

The union argued the issues were part of a continuing grievance regarding accommodation and discrimination, or alternatively, that time limits should be extended.

The arbitrator found that the specific employer decisions grieved were discrete acts subject to the 30-day time limit, not a continuing violation.

The arbitrator declined to extend the time limits under s. 48(16) of the Labour Relations Act, finding no reasonable grounds for the delay, despite the lack of prejudice to the employer.

The union filed grievances on behalf of probation and parole officers alleging that the employer violated the collective agreement, specifically the health and safety provision, by failing to provide adequate administrative support during a period of reduced staffing.

The arbitrator found that while the workload increased and created a stressful environment, the employer made reasonable efforts to replace absent staff and did not demand longer hours or threaten discipline.

The arbitrator concluded that the employer did not contravene the collective agreement and dismissed the grievances.

The defendant, the Office of the Children’s Lawyer (OCL), brought a motion for summary judgment to dismiss the plaintiff's claim for notice or payment in lieu of notice upon the expiry of her contract.

The central issues were whether the plaintiff was a dependent or independent contractor and, if dependent, whether she was entitled to notice despite a fixed-term contract.

The court found the plaintiff to be a dependent contractor, considering the 13-year continuous relationship, the integral nature of her work for the OCL, public perception, and the OCL's control, despite her OCL income averaging less than 50% of her total billings.

The court also rejected the argument that fixed-term contracts preclude notice in this context due to the repeated renewals.

The motion for summary judgment was dismissed.

The union filed a policy grievance challenging the employer's Health Information Program Guide, arguing its definition of health information was too narrow and violated PHIPA and FIPPA.

The union also objected to the employer retaining health information for 50 years and sharing it with local managers.

The arbitrator found that the employer was not providing health care, so the information collected fell under the employment exception in PHIPA.

The arbitrator upheld the employer's right to retain the information and share limited necessary details with managers, subject to clarifying the language around diagnosis disclosure and ensuring knowledgeable consent for retention.

The Arbitrator issued a procedural direction following a teleconference.

The upcoming hearing date will be used to establish undisputed material facts and mark agreed documents as exhibits, after which the matter will be adjourned to dates yet to be set.

The grievor, a caseworker, requested three days of paid Special and Compassionate Leave (SCL) under the collective agreement to deal with personal issues related to the anniversary of her brother-in-law's death.

The employer requested additional information to support the request, which the grievor refused to provide.

The employer denied the SCL request but offered vacation days instead.

The grievor later provided a doctor's note stating she needed time off to support her spouse's medical treatment, but again refused to explain the connection to her original request.

The arbitrator dismissed the grievance, finding that the employer's decision-making process was reasonable and not arbitrary, as the onus is on the employee to provide sufficient factual support for an SCL request.