Re The Crown in right of Ontario (Ministry of Transportation) and Ontario Public Service Employees Union
[Indexed as: Ontario (Ministry of Transportation) and O.P.S.E.U. (Fournier), Re]
File No. 1530/93 Ontario, Crown Employees Grievance Settlement Board, W. Kaplan, Vice-Chairperson, P. Klym, F. Collict. December 28, 1994.
INTERIM AWARD concerning application for third party status. Application granted. E. McIntyre, for the union. P. Thorup, for the employer. R. Bishop and S. McCallum, intervenors, on their own behalf.
INTERIM AWARD
Introduction
This case, which has been the subject of two previous interim orders of this panel of the board, proceeded to a hearing in Thunder Bay on November 30, 1994 and December 1, 1994. At that time, the board heard detailed submissions with respect to a large number of procedural matters in dispute. After hearing these submissions, the board granted Mr. Rod Bishop and Mr. Scott McCallum third party status in these proceedings. Written reaÂsons for this decision were promised, and the following sets out the arguments of the parties, and our reasons for decision. This award also sets out the board's disposition of various procedural matters in dispute.
Third party status
This case involves allegations of discrimination and harassment. In an earlier interim award, the board directed the union to provide particulars of its claim, and the employer to provide responses to those particulars. The board was advised, prior to the exchange of these particulars, that a number of individual employÂees were likely to be named in the union particulars, and those employees were, by way of our earlier award, notified of these proceedings and of their possible right to appear. When the hearing reconvened on November 30, 1994, Mr. Rod Bishop and Mr. Scott McCallum were in attendance. To assist them in determining whether they wished to make submissions about what appearance rights, if any, they had in this case, the board directed that both Mr. Bishop and Mr. McCallum be provided with copies of the particulars which had been exchanged.
Position of the third parties
Both Mr. Bishop and Mr. McCallum were of the view, having been named in the union particulars, that they were entitled to attend to defend themselves against the allegations of the grievor and the union. Mr. McCallum advised the board that he had been exonerated in the WDHPP report and, that being the case, he was
entitled to attend in order to defend his reputation in these proceedings. Mr. Bishop took the position that this case was not simply a dispute between a union and an employer; it was a dispute with potentially serious implications for his reputation in the community He told the board about his volunteer activity, and made the submission that any finding of culpability in a claim of sexual harassment raised a real prospect of permanently damagÂing his reputation. Accordingly, in his view, he had the right to attend these proceedings and to defend himself against the grievor's and the union's claims.
Employer submissions
Employer counsel began with the observation that he was in attendance representing the employer, not Mr. Bishop or Mr. McCallum. In the representation of the employer's interest there was a possibility of conflict between the employer and Mr. Bishop and Mr. McCallum. Simply put, the employer would not necessarÂily be defending the interests of Mr. Bishop or Mr. McCallum. They
were on their own. And given that fact and the fact that the reputation of these individuals may be at stake, the employer would not object to their being accorded third party status.
Union submissions
In the union's submission, neither Mr. Bishop nor Mr. McCallum should be accorded third party status. Union counsel carefully reviewed many of the leading cases, and during the course of her argument referred to the following authorities: Re Queen ElizaÂbeth Hospital and C. U.P.E., Loc. 1156 (1988), 2 L.A.C. (4th) 281(Craven); Bradley v. Ottawa Professional Fire Fighters Assn. (1967), 63D.L.R. (2d) 376, [1967] 2 O.R. 311, 67 C.L.L.C. ¶14,043 (C.A.); Re Hoogendoorn and Greening Metal Products & ScreenÂing Equipment Co. (1967), 65D.L.R.(2d)641, [1968] S.C.R. 30, 67
C.L.L.C. ¶14,064; Re Royal Victoria Hospital and O.N.A. (unreported decision of Starkman dated April 7, 1993 [summarized 30 C.L.A.S. 355]); Re Vancouver Community College and V.M.R.E. U. (1992), 33L.A.C. (4th) 105 (McPhillips); McKenna, 103/79 (Swan); Re C.U.P.E. and O.P.E.L U., Loc. 491 (1982), 4 L.A.C.(3d)385(Swinton); Re Canada Post Corp. and P.S.A.C. (Gleeson) (1989), 8L.A.C.(4th)382(Kelleher); Re Orillia Sol-diers' Memorial Hospital and O.N.A. (1993), 34 L.A.C. (4th) 315 (Swan); Re Hamilton Civic Hospitals and O.N.A. (1994), 40 L.A.C.(4th)8(Watters); Re John Noble Home and O.N.A.,
Loc. 102 (1994), 39L.A.C.(4th)324 (Mitchnick), and Re National Arts Centre Corp. and P.S.A.C. (1981), 30L.A.C. (2d) 431(Shime).
In brief, it was the union's position that the parties to this proceeding were the union and the employer and, as a matter of policy and established practice, the board should only grant third party status in the most exceptional of circumstances. In the union's view, there was nothing exceptional about the cirÂ
cumstances presented in this case. Counsel noted that it was well established in the jurisprudence that in order to be accorded third party status, a potential third
party must show that he or she has a direct and substantial collective agreement interest at stake that may be finally deterÂmined by the remedial order of the panel. In this case, neither Mr. Bishop nor Mr. McCallum were members of the bargaining unit, and so could not be affected by any interpretation of any provision of the collective agreement. The union was taking issue with the employer's conduct in this matter, and this involved an allegation that the employer had contravened the collective agreement in so far as the grievor was concerned. Such a claim, the union submitted, did not and could not raise any third party rights. Counsel also argued that the potential third party must further demonstrate that his or her interest was not otherwise receiving
representation. In the union's view, neither Mr. Bishop nor Mr.
McCallum could meet the requirements of this test. Counsel noted that the union was on record to the effect that it was not seeking, by way of remedy, that disciplinary action be imposed upon either Mr. Bishop or Mr. McCallum, and it only made common sense, in the union's view, that the interests of these members of manageÂment would be advanced by the employer. Not only were there appropriate legal grounds to deny the requests for third party status, there were also, in the union's view, a number of practical reasons in support of this result. First, the involvement of third parties would unduly delay the proceedÂings by increasing their complexity and adding to their cost. Second, adding third parties in the circumstances of this case would set a precedent with potentially far-reaching and negative implications for the grievance arbitration process. Third, granting third party status would not contribute to a resolution of this matter as it would exacerbate and continue workplace tensions for the presence and participation of third parties could only be upsetting to the grievor and in that way prejudice the presentaÂtion of her case. Therefore, and for both the legal and practical reasons advanced in support of her submissions, union counsel requested that Mr. Bishop and Mr. McCallum be denied third party status in this case.
Decision
Having carefully considered the submissions of Mr. Bishop, Mr. McCallum and employer and union counsel, we are of the view that this is an appropriate case to depart from the usual practice of confining proceedings of this kind to the union and the employer. We are in complete agreement with the line of cases which holds that, in general, employee interests are represented by the trade union and employer interests are represented by the employer, and that only in exceptional cases should a third party be accorded status in a rights arbitration. However, in our view, this is such an exceptional case. Obviously, simply having an "interest" in a proceeding is not a sufficient basis to assert a third party status claim. It is the nature of the interest that must be examined, and that examination must take place within the context of our system of collective bargain-ing. The principle of exclusivity, for example, precludes an employee hired to replace a discharged employee from asserting a right to participate in a grievance filed by the discharged employee and his or her union taking issue with that discharge. In such a case, the union, on behalf of all of the employees in the bargaining unit, has taken a position and is asserting a claim. The incumbent may have an "interest" in the proceeding, but that
interest will not result in that individual being accorded party status. In another example, as has been noted in a great many cases, simply because an employee has an interest in the interpreÂ
tation of the language of a collective agreement, does not mean that he or she has a right to participate in a grievance with respect to it. It is for obvious reasons that boards of arbitration have narrowly circumscribed the right of employees to participate in
rights arbitrations. The interests of Mr. Bishop and Mr. McCallum must be considered in context, and when they are we find that they are
vital, they are direct, and they are compelling. In this case, the interests of Mr. Bishop and Mr. McCallum, who are not members of the bargaining unit, are far from de minimis. The outcome of these proceedings may be the issue of an award that makes findings of fact permanently damaging to Mr. Bishop's and Mr. McCallum's reputations and standing in the community. The union, as the particulars make clear, will attempt to establish its case, in part, by making and then proving certain damaging, if true, allegations against Mr. Bishop and Mr. McCallum. Even a cursory review of the particulars indicates as much. Under the heading
"Discriminatory Supervision under Mr. Bishop and Mr. McCallum" are some 26 paragraphs of particulars, many of which make allegations of misconduct. Another portion of the particulars, headed "Discrimination and Harassment with respect to Work Assignments/Training" makes further allegations, as does one
section entitled "WDHP Complaint". All told, the names of Mr. Bishop and Mr. McCallum are found more than 30 times in the 115 paragraphs of particulars filed by the union. Both Mr. Bishop and Mr. McCallum are members of manage-
ment, and one would hardly expect their interests to attract the support of the union. However, and management counsel was clear on this point, their interests in this case are not the employer's interests, and there is a real potential for a conflict of interest. The interests of Mr. Bishop and Mr. McCallum, in the unique cirÂ
cumstances of this particular case, can only receive representation by granting them the right to participate in these proceedings. The interests at stake in this case may not relate to the security of employment. Nor do they relate, in so far as Mr. Bishop and Mr. McCallum are concerned, to the interpretation of the collective agreement. But they are vital interests none the less for they relate to reputation and standing in the community. Allegations of sexual harassment, when proven, attract censure and approbation. Any person, male or female, bargaining unit member or member of
management, who has been accused of sexual harassment has a genuine and legitimate interest in defending themselves against
the charges. This does not mean that individuals so situated are entitled, as a matter of right, to third party status. However, they
are certainly entitled to notice of the proceedings, and they are further entitled to be informed of their right to apply for third party status. The fact of the matter is that many collective agreements, such as the one in issue in this case, now guarantee employees the right to be free from discrimination and sexual harassment in the workplace. When an employee alleges a violation of this right, the adjudication of that grievance cannot be conducted in a vacuum and may, in certain circumstances, require the extension of party status to others. Each case will, obviously, have to be decided on its own particular facts. This hearing is a public hearing, and the award which we will eventually issue will be a public document. This case has received attention in the media, and the presence of a reporter at our last day of hearing is suggestive that it will continue to do so. Both Mr. Bishop and Mr. McCallum wish to protect their reputations and their standing in the community. We have, of course, no idea whether the grievor's allegations are true. That finding awaits another day. In the meantime, we can only assume, in the process and for the purpose of deciding these applications for standing,
that they may not be true, and that assumption leads us to conclude that both Mr. Bishop and Mr. McCallum have a vital, direct and compelling interest to protect. And, as already noted, this interest is not the same as the employer's interest. As Professor Swinton stated in Re C.U.P.E. and O.P.E.I. U.,
supra (at p. 387):
The employer is concerned to show that it was not condoning sexual harassment by one employee against another and that it acted reasonably in response to the grievor's complaints. This may not lead it to call evidence or
ask questions which H [the alleged harasser] may want to employ to show the falsity of the allegations, and thus protect his reputation.
For these reasons, we feel that it is justifiable in a case like this — where a man is charged with sexual harassment and where the employer's interest is not co-extensive with his — to grant standing to his counsel.
For exactly these reasons, and others, we have reached the same result. Indeed, there are a number of other reasons in support of our decision. The union particulars assert, in the first sentence, that the union "reserves the right to file additional particulars as the need arises ...". Assuming that third party status was not
granted, and further allegations were made against Mr. Bishop and Mr. McCallum (which is also possible if other grievances are consolidated with this case), neither individual would be in a position to know of these new allegations or respond to them
(given our order excluding witnesses). This is yet another reason for according both individuals third party status in these proceed-ings. And while the union has asserted that it will not be seeking, by way of remedy, the imposition of any discipline on either Mr.
Bishop or Mr. McCallum, it has not yet advised the employer and the board the exact nature of the remedy sought. It is conceivable that Mr. Bishop and Mr. McCallum might be adversely affected by some remedy sought but which has not yet been announced. Another reason for according third party status in this case is that the participation of Mr. Bishop and Mr. McCallum in these proceedings may affect the outcome. They may, as a result of their submissions and participation, prove that the particulars filed by the union, in so far as they relate to them, are untrue. Moreover, there is no reason to believe that the addition of two third parties, and the circumspection of their participation rights to matters directly affecting them, will unduly delay what is generally expected to be a long and protracted proceeding. In short, there is every reason to grant Mr. Bishop and Mr. McCallum third party status, and while we are not unconcerned about the impact of doing so on the grievor, we find that we must balance the competing interests at stake, and this balancing of interests leads to only one sensible and fair result. Accordingly, and for the foregoing reasons, we direct the registrar to add Mr. Bishop and Mr. McCallum as parties to this proceeding.
Procedural directives
After hearing submissions from the parties with respect to a number of issues in dispute, the board made the following ruling. This part of the award will serve as a record of that ruling.
The documents already exchanged between the parties will be available to the third parties, and their counsel, for viewing at the premises of the employer. No copies of any of these documents can be taken.
The union and the employer will prepare a joint exhibit book. Copies of this book will be provided to the third parties. Following receipt of this book, either third party, or both, may ask the board to direct that one or more documents in the previously exchanged materials, as set out in para. 1, be included in the exhibit book.
The third parties shall, to the best of their ability, prepare and circulate to the union and the employer copies of any docuÂments which they intend to introduce as exhibits in these proceedings.
The union will provide the employer with a list of the employer's replies to its particulars with which it takes issue. Employer to respond in accordance with the board's previous interim order respecting the exchange of particulars. The employer will provide the union with a list of the union particulars with which it takes issue. Union to respond in accordance with the board's previous interim order respecting the exchange of particulars.
Third parties to provide the union and the employer with a written response to the union particulars relating to each of them. This written response to be provided by December 15, 1994.
Consistent with the board's earlier order excluding witnesses, the parties and the third parties are directed not to disclose any of the exhibits already introduced in this proceeding, i.e., the union particulars and the employer's reply thereto. The
parties and the third parties are further directed not to discuss any matter related to this case with anyone. The third parties are, obviously, entitled to share and disclose the tendered exhibits and evidence with counsel, should counsel be retained.
Employer counsel shall make a written request for the consolidation of certain outstanding grievances with those already before the board. Union counsel to reply in writing before December 15, 1994. Board to then rule on request.
If the board rules in favour of the employer, further exchange of particulars, relating to the new grievances, to follow. If this further exchange of particulars results in new allegations against the two third parties granted status in these proceed-ings, those third parties are to be given copies of those
particulars and must then reply to those particulars.
If this further exchange of particulars results in allegations against other potential third parties (excluding those potential third parties already given notice of these proceedings who failed to appear at the last scheduled date), any such potential new party shall be given notice of these proceedings and their right to attend at the next scheduled date in order to make representations about their right, if any, to participate.
Union to provide employer and board with a written stateÂment of remedy requested in advance of the next scheduled
date.
At the conclusion of the hearing, the board made one final observation which is possibly worth repeating. The board is of the
view, subject of course to the rules of evidence, that the employer's response to the grievor's allegations of harassment, including the conduct of the WDHPP investigation and the content of the WDHPP report, is material to this case. Accord-ingly, evidence relating to this investigation and the report itself are likely to be proper evidence before the board. The rationale for this observation, and it is made before we have heard any evidence about the matters in dispute, although we have reviewed the lengthy union particulars and employer reply, is that a claim of discrimination and harassment against the employer will necessarÂily involve an assessment of the employer's response to that claim, and the conduct of any subsequent investigation, as well as the content of any subsequent report, will almost certainly be material to the matter in dispute. The hearing will reconvene on the next scheduled date.
ADDE NDUM
Subsequent to the granting of our order conferring third party status on Mr. Bishop and Mr. McCallum, and after the drafting of these reasons for decision, union counsel drew the board's and the parties' attention to a recent decision of the Ontario Court of Appeal: Hurd v. Hewitt (unreported decision dated November 8, 1994 [since reported 20O.R.(2d)639, 51 A.C.W.S. (3d) 199]). I have -now had an opportunity to carefully consider this judgment which sets aside a declaration issued by a lower court judge to the effect that certain persons, whose conduct was impugned by an arbitration board in its reasons for decision, were owed a duty of fairness, and that their rights to procedural fairness had been infringed when the arbitration board failed to
accord them an opportunity to respond before making findings of misconduct against them. In his reasons for decision, Mr. Justice Carthy canvasses applicable law and concludes [at p. 652] that witnesses to a proceeding are owed no such procedural protection, and that granting such protection, and issuing such a declaration, while a "kindness" given the facts of the case before him, was nevertheÂless "a dangerous distortion to the litigation process and must, therefore, be set aside". For his part, Mr. Justice Griffiths, while concurring in the reasons of Carthy J.A., emphasizes the importance of reputation by making the following observations [at pp. 662-3]: "One would hope that where it is convenient and practical to do so, that is without unduly lengthening or complicating the process, that decision-makers generally would afford non-parties the opportuÂnity to be heard before making findings reflecting on their
character or integrity." Griffiths J.A. nevertheless concurred with Carthy J.A.'s general conclusion and held that "it would be inappropriate to hold that every decision-maker has an absolute duty in law to afford non-parties the opportunity to be heard
before making adverse findings against them". Obviously, we are bound by this decision, as we are bound by all rulings of the Court of Appeal. However, we must find that this case is distinguishable from the instant one. In Hurd v. Hewitt, the arbitration board concluded that some members of a selection committee had conspired to ensure that a university professor was
not selected in a job competition. A number of the individuals said to be involved in the conspiracy then brought an application for a declaration to the effect that their rights to procedural fairness had been breached.
These facts are, of course, quite different from those present in this case. Here the union and the grievor have alleged that certain members of management engaged in sexual harassment. Detailed particulars have been filed setting out the substance of the allegations against, among others, Mr. Bishop and Mr. McCallum.
Neither of these individuals are "witnesses" in the proceeding, although they will undoubtedly testify. Rather, both individuals were named respondents in a WDHPP complaint, are named respondents in a human rights complaint, and are also repeatedly named in the particulars filed by the union in this case. It should be pointed out that the applicants for a declaration in Hurd v. Hewitt were witnesses, not individually named respondents to allegations of misconduct, and unlike the instant case, and undoubtedly because of this difference in status, they did not, it appears, apply for standing. Very simply, this is not a situation, as
in Hurd v. Hewitt, where the arbitration board reached certain conclusions as a result of the evidence called by the parties. This situation is different because the union and the grievor have, from
the outset, identified these particular individuals, and have made serious allegations against them, and will now seek to prove the truth of those allegations. Needless to say, the union is required to do so in the discharge of its evidentiary burden for in this case it bears the onus of proof. Another distinguishing feature of the instant case is that employer counsel is on record that he will not be representing the interests of these individuals. In the normal course of events, the interests of the employer and members of management, such as in a job posting grievance, are the same. Mr. Bishop and Mr. McCallum are not mere observers to the events under review. They have been implicated in those events, as extremely serious, if true, allegations have been made against them. One of the
outcomes of these proceedings may be permanent damage to their reputation and standing in their community. Other outcomes are also conceivable. It is well established and long accepted that we have the jurisdiction to add parties to proceedings, and having heard the submissions of everyone, and for the reasons set out in the body of this award, we were in position to conclude that that
this was an appropriate case to do so.
PARTIAL DISSENT (Klym)
Having had the opportunity to carefully consider the decision of the chair and having the further benefit of the Court of Appeal decision in Hurd v. Hewitt (1994), 20 O.R.(3d) 639, 51 A.C.W.S. (3d) 199, which came to our attention after the hearing at which the oral ruling was made, I find I must dissent on the third party status issue. The union has clearly stated that they are not asking for any decision that would impact on a work assignment or any discipline regarding these two members of management. What is left for us to consider is whether any potential impact upon their personal
reputation or character, as a result of any personal acts by them (not managerial decisions), is a sufficient reason to grant them third party status. To determine this, I have reviewed the particulars filed by the union to consider any potential damage to their personal reputaÂtion if the allegations should prove to be true. The allegations against Mr. McCallum appear to be solely regarding his actions or inactions in his management capacity and not as a harasser. I do not see any allegations regarding personal misconduct regarding harassment or discrimination with respect to the grievor. The allegations against Mr. Bishop are also mainly regarding his
role in a management capacity. In my opinion, there is only one particular regarding a public comment alleged to have been made by Mr. Bishop which can be considered as being of a personal nature not related to his management role. Surely, the carrying out of their duties as members of manageÂment on behalf of the employer, or being negligent in these duties, is a matter that is in the realm of employer interest as a party to the proceeding and not that for individual supervisors to defend as third parties themselves.
The issue of whether they are delinquent in their role as supervisors is not something that should concern an arbitration board to the point of granting them third party status to defend their "management" reputations.
It would be ridiculous to grant third party status to a supervisor who may have screwed up in disciplining an employee or making an employee's work assignment and for failing to follow proper work procedures laid down by the employer. It is up to the employer to defend these actions as a party in an arbitration proceeding. What is different in this case where the allegations are essentially regarding their activities in performing their management functions?
I draw further support for my position from the Court of Appeal decision in Hurd v. Hewitt. In that case, the persons who claimed their reputations were sullied had been non-party witnesses who were not questioned regarding the issues that were found by the board to be detrimental to their reputation and character. The Court of Appeal found that no such obligation was owed to them. In our case, Mr. Bishop and Mr. McCallum are asking us to show a greater obligation to them than the obligation rejected by the Court of Appeal — they are asking for full party status to fully participate in the hearing and to bring evidence and to cross-examine witnesses. Surely, if we are to take any instructions from the Court of Appeal in the Hurd v. Hewitt case, no such rights should be accorded to them.
I agree with the comments of Mr. Justice Griffiths in his concurring comments [at pp. 652-3] where he says that: "One would hope that where it is convenient and practical to do so, that is without unduly lengthening the process, that decision-makers generally would afford non-parties the opportunity to be heard before making findings reflecting on their character or integrity." In this case, I am confident this can be done by leaving Mr. Bishop and Mr. McCallum as non-parties. Surely, any allegation against them will have to be raised in the union's evidence. Because there are numerous allegations against them as not carrying out their management responsibilities on behalf of the employer, it is difficult to contemplate that they will not be called upon to give evidence in the employer's defence. Any alleged improprieties on their part will almost certainly be put to them if the allegations are to be relied upon and they will have a full opportunity to answer them. After weighing all the matters before us and considering the Court of Appeal decision in Hurd v. Hewitt, I would not grant third party status to Mr. Bishop and Mr. McCallum.