GSB#1665/98, 0336/99, 0311/00, 0312/00, 0313/00

UNION#99B072, 99B073, 99B507, 00A384, 00A385, 00A386

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Gareh)

Grievor

-and-

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

Employer

BEFORE Richard Brown Vice-Chair

FOR THE UNION Steve Wahl, Counsel Koskie Minsky Barristers and Solicitors

FOR THE EMPLOYER Len Marvy, Sr. Counsel Meredith Brown, Counsel Management Board Secretariat

HEARING June 16, July 6, Aug. 23, Sept. 11, Nov. 15 & 16, Dec. 20 & 21, 2000; Oct. 29 & 30, Nov. 8, 9 & 29, Dec. 6, 13, 14 & 19, 2001; Jan. 10, 11 & 17, July 3, 4, 10 & 15, 2002.

DECISION

Debbie Gareh is an unclassified court reporter. Six grievances by her were consolidated and heard together by agreement of the parties:

1. The first grievance is dated November 10, 1998 and states:

I grieve a violation of article 3, 9.1, 31.11.1, 31.15 specifically but not exclusively. The employer is acting in bad faith, differential treatment, harassment in work assignments. I feel that my workplace is a poisoned environment.

2. The second grievance is dated March 17, 1999 and states:

I grieve a violation of article 3, 9.1. The employer has acted in bad faith. I continue to be harassed. My manager has created a poisoned work environment and continues to by resorting to an assault on me.

3. The third grievance is dated March 28, 2000 and states:

I grieve that the memo dated March 8, 2000 from Susan Mignardi is totally inaccurate and untrue and again a continuation of harassment, discrimination and also intimidation. Art. 3 & 21.

4. The fourth grievance is also dated March 28, 2000 and states:

I grieve that I have been disciplined without just cause in that I was replaced as court reporter in the court that I was assigned to and a continuing violation of article 3.

5. The fifth grievance is dated April 10, 2000 and states:

I grieve that I have been disciplined without just cause in a letter dated March 28, 2000. This letter contains slanderous and malicious statements and is not a true representation of discussions that occurred March 9 & 20/2000. Art. 21 & 3 exclusively but not specifically.

6. The sixth grievance is dated June 15, 2000 and states:

Pursuant to my serving a step 1 in discussions with Susan Mignardi, Manager of Court Reporters, in her office on the 3rd floor at 2:05 p.m. on Monday, June 5, 2000 in that I alleged that unfairness & discrimination & a continuing poisoned work environment is still being condoned in our office. I specifically but not exclusively grieve R. v. Parnum being heard in front of Ewaschuk J. which is a long trial that is being reported by Courtney Middleton & shared with Crystal Deisting, two reporters who I submit are ‘favourites” on the staff and who have an inordinate amount of long, lucrative trials in the courthouse. I grieve articles 3& 21 and any other articles that are applicable to discrimination, unfairness in workplace, poisoned work environment.

The alleged contraventions of the collective agreement identified by union counsel fall into five categories: (1) a violation of article 31.15 based on the employer’s refusal to convert the grievor to classified status; (2) religious discrimination contrary to article 3.1; (3) harassment on grounds other than religion constituting a violation of article 31.11.1 dealing with health and safety; (4) discipline without just cause contrary to article 21.1; and (5) a violation of an implied duty to ensure a fair and reasonable distribution of opportunities to earn income from transcript production--a duty asserted by the union and denied by the employer. The grievor also alleges she was slandered by the memo, dated March 28, 2000 to her from Susan Mignardi. As slander is verbal whereas libel is written, I will treat this allegation as dealing with libel not slander.

I

At the conclusion of the union’s case, counsel for the employer made a motion for a non-suit. Counsel for the union did not object to this motion being entertained while the employer retained the option of leading evidence if the motion was denied. The parties agree my task in ruling on a motion for non-suit is not to determine whether the union has proven its case on the balance of probabilities, at least not in the way I would make that sort of determination after both sides had closed their cases. There is also agreement that at this stage in the proceedings the credibility of the union’s witnesses should not be scrutinized and all inferences reasonably supported by direct evidence should be made in favour of the union and grievor. However, the parties disagree on two points. The first is what weight should be given to the testimony of a witness on a point about which he or she has provided contradictory accounts. The second is how much evidence the union needs to have adduced in order to defeat the motion for non-suit. Union counsel contends all that is required is “some” evidence of probative value, whereas counsel for the employer contends there must be “sufficient” evidence.

The standard of “sufficient” evidence was adopted by the Ontario Court of Appeal in Hall v. Pemberton (1974), 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438, page 439, where the Court quoted with approval the following passage from Parfitt v. Lawless (1872), 41 L.J.P.&M. 68:

I conceive, therefore, that in discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue. (pages 72; emphasis added)

The only reasonable interpretation of “sufficient to support the issue” is adequate to allow a jury to rule in favour of the party resisting the non-suit.

In other words, a judge ruling on a non-suit motion in a jury trial, assuming witnesses to be credible and making all reasonable inferences in favour of the party resisting the non-suit, must determine whether the evidence is “sufficient” in the sense that it could lead a properly instructed jury to rule in favour of that party.

The standard of “sufficient” evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985) 1985 CanLII 2248 (ON CA), 56 O.R. (2d) 160:

In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her: Hall v. Pemberton ... (page 167; emphasis added)

In advocating a lower standard of “some evidence,” counsel for the union relies upon the decision of the Divisional Court in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit brought by the union in that case. The Court wrote:

The Board began by setting out its understanding of a non-suit. While it held that a prima facie case had not been made out, its reasons make it clear that it believed a prima facie case had to be established on the balance of probabilities. This is, of course, incorrect. .... The standard of proof on a non-suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer.

A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a question of law. Sopinka, The Trial of An Action, p. 124 (Butterworths).

The “normal way” in a civil action would be on the balance of probabilities. Where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not. (emphasis added)

The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff.” Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim” to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant cases.

In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

Counsel for the employer contends no weight should be given to the evidence of a witness on a point about which he or she has provided contradictory accounts. Counsel referred me to the decision of the British Columbia Court of Appeal in Fenton v. Baldo [2001] B.C.J. No. 250, a case involving a pedestrian struck by a motor vehicle. The crucial issue was how far the car driven by the defendant was behind the one in front of him, an expert having testified the defendant could have avoided the accident if this space was 19 metres or more. The driver of the front car estimated the distance between the two vehicles as being as little as 9 meters. He also estimated the interval between them as being as much as three seconds at a speed of fifty kilometres per hour, an estimate which indicated a space of 38 metres. Upholding the decision of the trial judge granting a motion for non-suit, the Court of Appeal wrote:

As can be seen from the chart, the evidence relating to this crucial distance varies from 9.1 to 38.4 metres. Accordingly, there is evidence that he [the defendant] could not have avoided the accident and evidence that he could have avoided the accident. There is no evidence as to which of these two alternatives is the correct one.

I am of the opinion that by a proper application of the principles concerning a no-evidence motion, that if one determines there is no evidence to be found to support which of two propositions is the correct one, then there is no evidence that is fit to go to the jury. (paragraphs 35 and 36).

Faced with contradictory evidence supporting each of the only two legally relevant possibilities about the distance between the cars--i.e. less than 19 metres and 19 metres or more--the Court of Appeal concluded there was no evidence supporting the plaintiff’s contention that the distance was great enough that the accident could have been avoided. I accept this as being the correct approach to a contradiction in the testimony of a witness.

II

The grievor claims her status as an employee should be converted from unclassified to classified. Article 31.15.1 sets out two criteria for the conversion of a position from classified to unclassified: (1) the same work has been performed by an employee in the unclassified service for a period of at least two years; and (2) the employer has determined there is a continuing need for that work to be performed on a full-time basis. When a position is converted to classified status, there is a third criterion, found in article 31.15.2, which an unclassified employee must meet before she is entitled to claim that position as a classified employee: he or she must have been in the position for at least two years.

I limit my analysis to this third criterion. In the normal course of events, it is satisfied by an employee working full-time hours for two years and receiving an hourly wage for the time worked. This is something Ms. Gareh has not done. Union counsel contends time worked at an hourly wage is not all that should be considered in the instant case. I was urged also to take into account: (1) hours for which the grievor was denied paid standby duty; (2) hours for which the union alleges she should have been paid an hourly wage for transcribing at home; and (3) all time spent by her transcribing evidence at home, even if she was not entitled to be paid an hourly wage for this work.

The union’s argument about conversion reflects the two types of work performed by court reporters and the two types of remuneration received by them. They are paid an hourly wage by the Ministry as employer. In addition, when a reporter produces a transcript at the request of a party to a legal proceeding, or anyone else, the reporter is paid by the party placing the order, with the amount charged per page of transcript being fixed by tariff in most, if not all, circumstances. When a transcript is ordered by a judge or by the provincial crown, the Ministry pays for it. Reporters also receive payment for transcripts from defence counsel, the federal crown and civil litigants among others.

Reporters are paid an hourly wage not only when they are in court but also when they are on standby duty at the courthouse. Ms. Gareh contends she did not receive a fair share of standby assignments. In particular, she testified her request for standby duty was denied on four occasions in 1994 (March 24, April 8 and 18, and June 27), five times in 1995 (October 25, November 26 and 30, and December 19 and 22), and once in 1996 (April 10). Faced in cross-examination with the assertion that the employer capped the number of people on standby before 1998, the grievor replied that Penny Stewart, then manager of court reporting, would say she had a budget. The grievor went on to say: “You could get standby even prior to 98 if you requested it, but not me.”

In cross-examination, Ms. Gareh conceded since 1998 unclassified reporters have been allowed standby whenever they were not assigned court. Asked during examination-in-chief about a “standby issue” on November 6, 1998, she replied merely: “I was upset and went home.” The grievor testified that, when her court finished at 1:30 p.m. on March 20, 2000, Marc Jones, the group leader, said he didn’t need her on standby and she “could sign out” if she “wanted to.” According to the grievor, she elected to remain at work until 3:45. There is no evidence that Ms. Gareh was ever denied standby duty in 1998 or subsequent years.

As to years preceding 1998, Ms. Gareh’s complaint is that she got fewer hours of standby duty than other reporters. The union introduced into evidence court schedules listing who was assigned to standby during each of nine weeks: five in 1994, three in 1995, and one in 1996. Similar documents were not provided for the vast majority of the period between 1994 and 1997. The grievor’s name does not appear on any of the nine weekly standby lists provided. Nonetheless, her testimony that she was “consistently denied” standby is contradicted by her admission that she was on standby for November 26 and 27, 1997 and may have been on standby for April 29 and June 27, 1994. This contradiction coupled with the absence of standby lists for most of the period in question means there is no reliable evidence as to how often the grievor was assigned to standby. In addition, there is no evidence as to how often other reporters were on standby during most of this period. There is evidence that certain reporters were assigned to standby on certain days during nine weeks when the grievor had no such assignments, but there is not sufficient evidence to demonstrate the grievor worked fewer standby hours than others during the period from 1994 to 1997.

Ms. Gareh also claims she was denied paid transcribing weeks--i.e. time out of court spent transcribing evidence and paid at an hourly rate--which were granted to other reporters. The grievor identified a number of occasions when she stayed at home to transcribe without receiving an hourly wage. Ms. Gareh testified she transcribed the evidence for the Terceira case for the seven weeks commencing September 26 and October 3, 10 and 17, November 21 and 28, and December 5, 1994. According to the grievor, for six weeks from April 23 until June 8, 1998, she was at home transcribing the evidence for the Bernardo and Osborne cases. Ms. Gareh also testified she transcribed at home on April 11, 12 and 13, 1999.

The grievor testified reporters, both classified and unclassified, used to be routinely granted paid transcribing weeks, free of all other duties, when necessary to catch up on a transcript backlog. However, she conceded the employer’s general practice has changed so that a reporter with a transcript backlog is now assigned to standby duty in the court house for a week or so. A reporter on standby is assigned to reporting duties in court if some unexpected need arises. Ms. Gareh equivocated as to when this change in practice occurred. During examination-in-chief, she first said it happened before Penny Stewart’s tenure as manager--i.e. sometime before 1994. The grievor then corrected herself and said this change happened when Ms. Stewart left--i.e. 1996. Finally, the grievor said transcribing weeks were available until two years ago--i.e. 1998. In cross-examination, Ms. Gareh conceded she could not recall whether the change occurred before or after 1994. Janice Manna, a classified reporter called as a witness by the union, testified transcribing weeks were eliminated in 1992 or 1993. Given the grievor’s contradictory evidence and her admitted uncertainty, the only reliable evidence is Janice Manna’s testimony indicating that the general practice of granting paid transcribing weeks ended before 1994.

Ms. Gareh named a few unclassified reporters whom she contends have gotten transcribing weeks in recent years. Asked in cross-examination about the basis for this contention, the grievor said it is based on what she had “heard” and on seeing these reporters transcribing in their offices. As the grievor conceded reporters transcribe in their offices while on standby duty, what she saw offers no proof that the reporters in question had been granted transcribing weeks. This leaves no reliable evidence--i.e. no evidence other than uncorroborated hearsay--that such weeks have ever been granted since 1994.

The foregoing analysis leads me to conclude the union has not established a prima facie case that the grievor was wrongfully denied standby duty or paid transcribing weeks. In the alternative, even if she should have been granted standby duty or transcribing weeks on the occasions she claims one or the other was denied, she would still not be entitled to conversion. In this scenario, the number of hours of work attributed to her in the employer’s records would have to be adjusted by adding the hours wrongfully withheld. Such an adjustment would still leave the grievor without “full-time” hours in any single year, let alone in two successive years. Article 31.15.2 defines “full-time” to mean either 1,732.75 or 1,912 “straight-time hours as applicable”. From 1994 to 1999, the grievor’s recorded hours of work ranged from a low of 773.75 to a high of 1233.25 annually. Based upon her testimony, the adjustment for any year would be approximately 38 days or 300 hours. The adjusted total for each and every year would fall short of 1,732.75.

Counsel for the union also argued time spent by a reporter transcribing evidence at home counts for the purpose of conversion, even if he or she is not entitled to an hourly wage for this work. I reject this interpretation of article 31.15 because much transcript is produced at the request of third parties and paid for by them, without any involvement on the part of the employer. In the alternative, even if all hours devoted to the production of transcript did count for the purpose of conversion, the evidence adduced about the time spent by the grievor transcribing would not support her claim to be converted. The only evidence is that recounted above which reflects insufficient hours to satisfy the contractual definition of “full-time” work.

Union counsel’s final argument about conversion is that the grievor should be credited with hours worked by an “agency reporter” assigned to replace her. I need not consider the legal basis for this argument because it lacks an evidentiary foundation sufficient to ground a claim for conversion. The grievor was asked during examination-in-chief whether agency reporters worked when she was laid off from December 20, 1994 to January 5, 1995, and she replied: “I don’t know.” She did testify about being replaced by an agency reporter on April 26, 1999 from the start of court that day until the morning break. This is the only evidence indicating the grievor was replaced by an agency reporter and the time involved is insignificant.

In summary, the union has not established a prima facie that the grievor is entitled to the status of a classified employee.

III

Ms. Gareh also complains of discrimination on the ground of religion. In union counsel’s summary of the evidence, he cited a number of incidents as proof of discrimination based upon the grievor’s Jewish faith. I will consider the allegation of religious discrimination in two stages; first by examining each of the incidents cited for any indication of discrimination; and then by reviewing all of them together to determine whether there is a pattern of discrimination.

The first incident is the grievor’s layoff in late August and early September of 1994. The union objects not to the layoff itself but rather to its timing. The grievor testified she was laid off for the weeks commencing August 22 and 29 and September 5, whereas she would have preferred to have been off for the weeks commencing August 29 and September 5 and 12. According to the grievor, Penny Stewart initially told her she would be laid off for the month of August, and she responded by asking for the layoff to be delayed so as to include “the beginning of September for the Jewish holidays and the first day of school.” There is no evidence that the grievor specifically requested to be laid off during the second week of September as well as the first. In her testimony, Ms. Gareh mentioned “a Jewish holiday” in first week but she made no reference to Yom Kippur, which fell in the second. In particular, the grievor did not mention discussing Yom Kippur with Ms. Stewart. Ms. Gareh did testify she would have preferred to be at home during the second week of September because it was the second week of school for her daughters. Viewed in isolation, this testimony does not establish a prima facie case of discrimination because there is no evidence the grievor specifically requested to be laid off during the second week of September for religious reasons.

The union also relies upon a remark about Jews allegedly made to the grievor by Valerie Boyce, a classified reporter, on August 31, 1998. Ms. Gareh testified that, during a discussion about speed walking at lunch time, she indicated an interest in taking part and Ms. Boyce replied another employee also wanted to participate but she was Jewish and “Jews don’t make good athletes.” According to the grievor, a few days later she reported this comment to Neil Porteus, the then group leader with whom Ms. Boyce shared an office, and on September 14 she reported it to Deborah Paulseth, then Director of Court Services.

For the purpose of the non-suit, I must assume the comment was made by Ms. Boyce and reported to management as the grievor testified. If the employer did not respond appropriately to a complaint about a religious slur by a fellow worker, a finding of religious discrimination might result.

In coming to this conclusion, I have not overlooked the two cases cited by the employer in relation to this incident: Wei Fu v. Ministry of Solicitor General, [1985] C.H.R.R. D/2797; and Parsonage v. Canadian Tire Corp. (1991), 1995 CanLII 18170 (ON HRT), 28 C.H.R.R. D/42. The racial slur in Wei Fu was “not directed at Mr. Fu or made to him” (page D/2812), whereas the alleged comment in this case was made to Ms. Gareh. In Parsonage, the Board of Inquiry concluded “a single and insulting joke ... does not constitute a violation of the Human Rights Code’’ (page D/55). However, in that case a manager investigated the allegation of a racial slur by speaking to the person alleged to have made it and to those sitting at the lunch table where it was allegedly made, all of whom denied the allegation. The decision in Parsonage leaves open the possibility that the Code would be violated by an employer who failed to take action in response to a complaint about a single discriminatory comment. As knowledge about management’s response resides with the employer, the union cannot be faulted for offering no evidence on this matter in the instant case. This analysis leads me to conclude the evidence before me establishes a prima case of discrimination on this occasion.

Evidence was also led about a discriminatory remark allegedly made by Neil Porteus and reported to the grievor by Karen Model, another reporter. Ms. Gareh testified that on September 2, 1998 Ms. Model telephoned her to say Mr. Porteus had made a comment about the grievor behaving like a spoiled Jewish girl who lived in Forest Hill and suggesting she was a JAP (i.e. Jewish American Princess) although he had not used that word. When the grievor testified about her conversation with Ms. Model, counsel for the employer objected to the admission of this hearsay evidence, and I ruled that uncorroborated hearsay evidence was not sufficient to prove Mr. Porteus had made the comments attributed to him. According to Ms. Gareh, two days after the phone call from Ms. Model, she confronted Mr. Porteus and told him to stop ‘bad-mouthing” and “defaming” her, and he did not deny engaging in these activities. As the grievor’s testimony about this conversation contains no indication that she specifically accused Mr. Porteus of making an anti-Semitic comment, any failure on his part to deny her accusations would fall short of corroborating the hearsay evidence about him making such a comment. Accordingly, there is no reliable evidence that he made the remark alleged.

The union further objects to the grievor’s work assignment on the second day of Rosh Hashanah in 1998. Ms. Gareh testified this religious holiday fell on September 21 and 22, that she did not work on the 21st, but that as a reformed Jew she worked on the 22nd. According to the grievor, when she reported for duty that day Mr. Porteus said he was “surprised” to see her. Counsel for the union contends Ms. Porteus should have known that Ms. Gareh would be at work on the 22nd, because her written request for leave was for the 21st only and that request had been approved on the 15th by Ira Greenland, the then manager of court reporters. Counsel submitted the grievor was discriminated against by being put on standby on the 22nd rather than being assigned to court. However, Ms. Gareh testified she was unsure as to whether the day was spent on standby or in court. Given her testimony on this point, I conclude there is no evidence of religious discrimination on this occasion when it is viewed in isolation.

Ms. Gareh testified she was denied unpaid leave on April 1, 1999, which was part of the Jewish Passover. Her testimony about being thrown out of Ms. Greenland’s office on March 3, 1999 is set out below. In the aftermath of this incident, the grievor was on paid leave until Wednesday, March 31. She did not work on Thursday, April 1 and was not paid for that day. The courts were closed for the Easter weekend on both Friday, April 2 and Monday, April 5 and the grievor returned to work on Tuesday, April 6. Her contemporaneous notes indicate she informed Lou Bartucci, then the manager in charge of the court house, that she wanted to stay at home until after Easter and Passover, and he later instructed her to return to work on April 1. Counsel for the union submits the employer’s refusal to pay the grievor for the Jewish holiday on April 1 is discrimination of the grounds of religion. However, the grievor testified she would have been at work that day if she had been “healthy.” As Ms. Gareh attributed her absence from work to poor health rather than her faith, there is nothing to suggest the denial of pay for April 1 amounted to discrimination on the ground of religion. In other words, there is no evidence of religious discrimination on this occasion viewed in isolation.

Ms. Gareh testified that on Monday, May 17, 1999 Mr. Porteus offered her a jury trial which was expected to continue throughout a period when she was scheduled to be absent from work and which included the religious holiday Shavuot. Susan Mignardi, then manager of court reporters, had approved the grievor’s written request to be on vacation from Thursday, May 20 to Tuesday May 25, a request which indicated this period included Shavuot. In examination-in-chief, the grievor testified her impending absence prevented her from accepting the trial, because she would not be present to read evidence to the jury. Counsel for the union argued Mr. Porteus offered the grievor a long trial at this time because he expected her to decline it or he intended to remove her from it when she went on vacation. In my view, there is no evidence of religious discrimination on this occasion viewed in isolation. There is nothing to indicate that Mr. Porteus saw the grievor’s vacation request or knew from some other source that a Jewish Holiday fell during the week in question. Also significant is the grievor’s testimony that upon returning from vacation she was assigned to a trial requiring transcript and that she may not have wanted to work on the days leading up to her vacation.

The union contends that on Yom Kippur in 1999 Mr. Porteus struck a deal with counsel on the Trans America case for the grievor to provide “dirty copy” transcript at a rate of 55 cents per page. No transcript was ordered because she was not willing to provide it at this rate. Counsel for the union submitted Mr. Porteus intentionally made a deal adverse to the grievor on Monday, September 20 when she was absent from work observing Yom Kippur. The grievor testified plaintiff’s counsel told her Mr. Porteus had negotiated a rate of 55 cents on her behalf. As this evidence is hearsay and totally uncorroborated, it could not be relied upon to prove the alleged deal. I also note, even if the alleged deal was struck, there is no evidence whatsoever of this having occurred on Monday, September 20th, rather than on Thursday September 16, when the grievor testified she was initially assigned to the trial, or on Friday, September 17. In short, there is no evidence of religious discrimination on this occasion viewed in isolation.

I have already concluded the union has established a prima facie case of discrimination in relation to the anti-Semitic comment attributed to Valerie Boyce. With respect to each of the remaining incidents viewed in isolation, the analysis set out above demonstrates the allegation of religious discrimination is supported in some instances by no evidence and in the remaining instances by no reliable evidence--i.e. no evidence other than uncorroborated hearsay. In the absence of any reliable evidence concerning these incidents, there is not a prima facie case showing a pattern of discrimination.

IV

Union counsel contends the collective agreement places the employer under an implied duty of “fairness and reasonableness” which requires it to ensure an equitable distribution among reporters of court assignments generating transcript income. In response, counsel for the employer submits management’s only obligation in distributing such work is to act in good faith.

Counsel for the union relies upon the decision of the Supreme Court of Canada in Winnipeg Teachers’ Association No. 1 of the Manitoba Teachers’ Society v. Winnipeg School Division No. 1 (1975), 1975 CanLII 181 (SCC), 59 D.L.R. (3d) 228. In the minority judgement in that case Mr. Justice Laskin wrote:

Contract relations of the kind in existence here must surely be governed by standards of reasonableness in assessing the degree to which an employer or supervisor may call for the performance of duties which are not expressly spelled out. They must be related to the enterprise and be seen as fair to the employee and in furtherance of the principal duties to which he is committed. (page 235)

Based upon this reasoning, the minority went on to conclude the collective agreement imposed upon teachers an implied duty to provide noon-hour supervision. The majority judgement reached the same result for different reasons, relying upon a provision relating to noon-hour supervision contained in the Code of Rules and Regulations for the School Division to which the collective agreement referred. As the majority made no mention of fairness or reasonableness, this case adds nothing to the law relating to an implied duty to act fairly and reasonably.

Union counsel also referred me to the judgement of the Court of Appeal in Municipality of Metropolitan Toronto and Canadian Union of Public Employees (1990), 1990 CanLII 6974 (ON CA), 69 D.L.R. (4th) 268. This decision is the most recent in a trilogy of cases decided by the Court and is best understood when viewed in the context of the other two.

In the first case of the trilogy, Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Assoc. (1981), 1981 CanLII 1689 (ON CA), 124 D.L.R. (3d) 684, the grievors were the only employees in their classification who were not invited to participate in an annual inventory, which provided an opportunity to earn extra income. They were excluded because their supervisor did not like their attitude, even though it did not affect their ability to perform the task at hand. The assignment of inventory work was not specifically addressed by the collective agreement, and the employer argued the management rights clause granted it an unfettered discretion to select employees for this work. The arbitrator allowed the grievance because the grievors had been singled out for special treatment on grounds not reasonably related to the management of the employer’s enterprise. This award was quashed by the Court of Appeal, which wrote:

Having regard to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a term that the management rights clause will be applied fairly and without discrimination. If such a term were to be implied, it would mean that every decision of management made under the exclusive authority of the management rights clause would be liable to challenge on the grounds that it was exercised unfairly or discriminatorily. ...

In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise circumscribed by the express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement. (page 687)

In short, the employer was not under an implied duty to act reasonably when assigning inventory work because nothing in the collective agreement circumscribed management’s rights in making an assignment of this sort.

The subject of an implied duty to act reasonably was next considered by the Court of Appeal in Council of Printing Industries of Canada and Toronto Printing Pressmen & Assistants’ Union (1983), 1983 CanLII 1638 (ON CA), 149 D.L.R. (3d) 53. In that case, article 22 of the collective agreement stated “the employer shall permanently classify thirty-four employees” but the agreement said nothing about the process for selecting those to be granted permanent classification. According to other provisions in the contract, permanently classified employees would enjoy almost complete immunity from layoff, whereas the rest of the workforce was vulnerable to layoff in reverse order of seniority. The net effect of these provisions was that the permanent classification of any particular employee would enhance his or her job security at the expense of employees who had greater seniority. In other words, the selection of one person to be permanently classified would reduce the protection against layoff afforded to others by the contractual provisions relating to seniority. A board of arbitration held the employer was under an implied duty to act reasonably in choosing employees for permanent classification under article 22, because such a duty was necessary to harmonize the discretion conferred upon the employer by this article with the seniority rights of employees. The Court of Appeal sustained the board’s award saying: “In our view the interpretation placed upon art. 22 by the board in light of the whole collective agreement was “one it could reasonably bear” (page 60).

The existence of a duty to act reasonably in the first case of the trilogy but not the second can be explained by an important factual distinction. The employer’s decision not to assign inventory work to the grievors in Metropolitan Toronto Board of Commissioners of Police did not adversely affect a right arising from any provision in the collective agreement. Management’s rights were unfettered because no conflicting contractual entitlements were at stake. In contrast, the employer in Council of Printing Industries was obliged to act reasonably when choosing employees for permanent classification because this choice impinged upon seniority rights conferred by the collective agreement.

This distinction was highlighted by the Court of Appeal in the final case of the trilogy, Municipality of Metropolitan Toronto. There the employer promulgated a rule requiring ambulance drivers to utilize warning lights and sirens when responding to all emergency calls. As anyone who disobeyed this promulgation was subject to discipline, the union challenged the rule as violating a contractual prohibition against discipline without “reasonable cause”. The employer responded to this challenge by contending the management rights clause gave it the right to establish rules. Relying upon the contractual protection against discipline enjoyed by employees, a board of arbitration determined the employer’s authority to promulgate rules was circumscribed by an obligation to act reasonably, and the board went on to strike down the rule on the ground it was unreasonable. This award was upheld by the Court of Appeal. Noting that the rejection of an implied duty of fairness in Metropolitan Toronto Board of Commissioners of Police rested upon the fact that the impugned exercise of management rights in that case was not “circumscribed by express provisions” of the collective agreement, the Court went on to say:

It would seem this was exactly the loophole used by this Court in Council of Printing Industries, supra, to find a duty to act reasonably. The arbitrator’s use of Article 3.02 [prohibiting an exercise of management rights inconsistent with the rest of the agreement] and the “reasonable cause for discipline” provision in Article 3.01(ii) is of a similar character. In neither of these cases was the provision relied on entirely explicit. However, it does not seem patently unreasonable to view the collective agreement in a holistic manner, where even management rights may be circumscribed in order to avoid negating or unduly limiting the scope of other provisions. (page 286; emphasis added)

How do these decisions of the Court of Appeal apply to the case at hand? The employer would be under a duty to act fairly in distributing trial assignments with the potential to produce transcript income if, and only if, the denial of this work had the effect of “negating or unduly limiting” rights conferred upon employees by “other provisions” in the collective agreement.

Counsel for the union contends depriving an unclassified employee, such as the grievor, of opportunities to produce transcript would negatively affect her right to be converted to classified status under article 31.15. One of the criteria for conversion under this article is that the employee must have worked full-time for at least two years. I have already ruled that time spent transcribing evidence at home, without entitlement to an hourly wage, does not count for the purpose of conversion. The only hours that count for this purpose are those for which an employee is entitled to be paid at an hourly rate. There is no correlation between the number of such hours worked by an employee and the opportunity he or she has to earn transcript income: a reporter assigned to a single trial lasting one hundred days and generating a huge amount of transcript is paid for the same number of hours as is a reporter assigned to fifty cases of two days each which require no transcript. As only time paid at an hourly rate counts for the purpose of conversion, and as there is no correlation between such hours and transcript income, the denial of an opportunity to earn income from transcript does not negatively affect the right to be converted.

The assignment of reporters to trails with the potential for transcript is in general analogous to the distribution of inventory work in Metropolitan Toronto Board of Commissioners of Police. Just as the collective agreement there gave employees no claim to inventory work, the agreement here contains no reference to transcript production. The withholding of inventory work did not derogate from any contractual right in that case, and the denial of an opportunity to earn transcript income entails no derogation from any such right in this case. Unlike the impugned management decisions in Municipality of Metropolitan Toronto and Council of Printing Industries, the distribution of trials with a potential for transcript production as a rule has no adverse affect on either the seniority rights of employees or their contractual protection against discipline.

There may be one exception to this rule. I consider below whether the contractual prohibition against discipline without just cause, found in article 21.1, fetters management’s rights in assigning work in the particular context of an employee being removed from an assignment for disciplinary reasons. In the absence of such discipline, management is not under any contractual obligation to act fairly or reasonably in distributing work assignments which provide an opportunity to earn income from transcript.

Absent discipline, the distribution of this sort of work is analogous to the distribution of overtime in the sense that neither type of distribution affects rights arising from other contractual provisions. As noted by union counsel, the collective agreement specifically addresses the apportioning of overtime in article OAD8.2.1:

In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all of its operational requirements are met.

The existence of this article does not assist the union in the instant case. To achieve an equitable distribution of trials requiring transcript, the union would have to negotiate a provision about trial assignments analogous to the overtime article.

V

The union contends the grievor has been the victim of harassment by management which produced a poisoned work environment and caused a deterioration in her relations with other reporters. The testimony and documents relating to this allegation are reviewed in this section of my decision. In subsequent sections, I will consider how this evidence bears upon the union’s allegations that the employer acted in bad faith in distributing work and also endangered the grievor’s health.

A summary of the evidence prepared by union counsel cites numerous incidents of alleged harassment occurring between 1994 and 2000. The union relies upon four incidents in 1994. Ms. Gareh testified that on Thursday, March 10, while at home transcribing, she received a call from Penny Stewart about her contract as an unclassified employee which would expire on March 31. The grievor stated: “She [Ms. Stewart] demanded that I run down to the courthouse” to sign a new contract “or I would not be renewed.” According to a contemporaneous note made by the grievor, the phone call occurred at 1:00 p.m. and the contact was signed at 5:00 p.m. The second incident related to the grievor’s assignment to travel to Ghana to take commission evidence. Ms. Gareh testified on April 28 or 29 she received a telephone call from Mark Cullen, crown counsel with the Department of Justice, saying that Penny Stewart “had called human resources at 720 Bay to try to bump you” from this assignment. This uncorroborated hearsay is the only evidence about Ms. Stewart’s involvement in this assignment. The grievor did make the trip to Ghana in the end. The third incident occurred at a retirement party held shortly after that trip. Ms. Gareh testified: “I believe Neil Porteus was there. Penny [Stewart] was there. They were as cold as ice to me.” The grievor went on to say they did not speak to her and were “rude” in their “body language.” Ms. Gareh testified she was laid off from December 20, 1994 until January 5, 1995 but classified reporters were not. In cross-examination the grievor conceded not knowing whether other reporters who held unclassified positions like hers were laid off as she was.

Evidence was led about two incidents in 1995. Ms. Gareh testified that on November 10, Ms. Stewart suggested the grievor was placed in “conflict of interest” by her company, Anshan Reporting Services, and asked her to provide a written statement about the company. Anshan employed reporters who recorded legal proceedings such as examinations for discovery at the company’s leased premises and elsewhere. According to the grievor, she did not comply with Ms. Stewart’s initial request or with a second one made by her on November 15. Ms. Gareh testified that on December 21 Ms. Stewart wrongly asserted that the grievor’s hourly rate was $15.50, leading her to fear that she “would be bumped down.” As things turned out, her hourly rate remained unchanged.

The union relies upon three occurrences in January and February of 1996 and a series of events later that year relating to Anshan Reporting. Ms. Gareh testified that in January Mr. Justice Watt asked for her to be assigned as his permanent reporter and that Ms. Stewart declined to do so, citing the grievor’s transcript backlog as the reason. According to the grievor, she had no more transcript outstanding than anyone else and was not then the subject of any court order to expedite the production of transcript. Ms. Gareh also testified that in February Ms. Stewart removed her from a trial requiring daily transcript, saying other reporters would not work with her. According to the grievor, she spoke to two of these reporters, and one said she could not keep up with her while the other said he would not work with her but gave no reason. Counsel for the union suggested that Ms. Stewart failed to keep an appointment with the grievor on February 22, but the grievor was less than certain, testifying: “I don’t think it [the meeting] went ahead.”

As to Anshan Reporting, Ms. Gareh testified that on April 15, 1996 Ms. Stewart and Mr. Hall, then the manager in charge of the court house, met with her to discuss her company and her dealings with Juanita Eggens who was employed by the company as well as working at the courthouse. According to the grievor, both managers refused to disclose the subject of the meeting in advance, and they proceeded to address their concerns despite her objection to them doing so in the absence of her union representative or lawyer. Ms. Gareh retained counsel to deal with this matter. According to the grievor, Ms. Stewart objected to the involvement of a lawyer, cancelled a meeting which he had arranged, and again requested a written submission from the grievor dealing with conflict of interest. A letter from the lawyer to the employer, dated May 6, asserted that Ms. Eggens was no longer an employee of Anshan and that there was no conflict of interest. Mr. Hall conceded the absence of any conflict in a letter dated June 12.

In short, the matter of a conflict of interest relating to Ms. Gareh’s company was dropped by the employer in June of 1996 soon after the grievor’s lawyer provided the written statement which was first requested by Ms. Stewart in November of 1995. Counsel for the union suggested the grievor was treated differently than other reporters with their own companies, but there is no evidence as to what inquiries the employer made of these reporters, nor is there any evidence to indicate their companies, like Anshan Reporting Services, provided services other than the transcription of evidence recorded at the courthouse.

Ms. Gareh testified that in the fall of 1997 Ms. Greenland assigned her to an AIDS trial requiring real-time transcript, before Mr. Justice Ground, but then cancelled this assignment before the trial started, saying the trial judge had asked for her to be removed based on information he had received from Mr. Justice Borins. According to the grievor, she spoke to both of these judges and each denied making any complaint about her.

The frequency of incidents of alleged harassment increased markedly in 1998. Counsel’s summary refers to incidents on April 27 and May 15, but my review of the evidence disclosed nothing relating to these occurrences.

Ms. Gareh testified that on June 8, 1998 Ms. Greenland removed her from the Canso Insurance case before Madame Justice McDonald, a trial requiring transcript, with the manager saying the judge had lost confidence in the grievor. She also testified her request for time off from June 15 to 19, 1998, to get her children ready for camp, was denied by Ms. Greenland who said she was short of reporters. According to the grievor, on November 9 she asked Mr. Porteus where she had been assigned for the day and he told her to look at the assignment list. The grievor said she was “cordial” and he was “rude.” According to the grievor, on December 1, she arrived early and asked Mr. Porteus for the sign-in sheet and he answered in a “snarky tone” that it was not out yet. She testified that the next day another reporter who used to be friendly, Clair Humphries, gave her a “complete cold shoulder.”

Ms. Gareh also described her encounter with Juanita Eggens at the sign-in desk on November 17, 1998:

I asked if she received my message at home about her back orders. I was always calm with her. I said it with sugar on my tongue. She ran out of there and ran into Greenland’s office and said I was harassing her.”

According to Ms. Gareh, on November 26 Ms. Greenland told her not to talk to Juanita Eggens anymore and the grievor denied doing so. She asked to see a written complaint, but Ms. Greenland did not produce one and threatened to call security. The grievor also stated in examination-in-chief: “I think she even pushed me out [of her office] with her shoulders.” Ms. Gareh’s contemporaneous note states she was “summoned” from the office by Ms. Greenland but refused to leave. As to what the manager did then, Ms. Gareh wrote: “She intimidated and walked right up to me as if to push me out of her office. I just stayed there and told her I wanted the piece of paper.” There is nothing in the note to indicate the grievor actually was pushed. Asked in re-examination about this note, Ms. Gareh said the word “summoned” was used to mean “pushed”.

The union also relies upon the refusal of Mr. Porteus and Ms. Greenland to assign the grievor to long trials in the fall of 1998. On September 9, Ms. Greenland informed the grievor that she would not be given the Royal Bank trial because she had not completed the transcript for the Bernardo and Gayle cases. According to the grievor, she told Ms. Greenland, in the presence of Mr. Porteus, that her part of the Bernardo transcript was complete and she was waiting for her partner on that case, Joanne Anderson, to transcribe her part. As to the Gayle transcript, the grievor testified she told Ms. Greenland that it was complete except for a ten-page ruling by the judge which already had been submitted to him for review.

The date of the completion of the Gayle transcript is not a matter of controversy: a certificate of completion was filed on September 16. There is a dispute as to when the grievor finished her part of the Bernardo transcript. According to her, in September she told not only Ira Greenland but also Lou Bartucci and Debra Paulseth that it was finished. The grievor testified it had been completed in August. On December 10, the grievor filed a certificate of completion which stated: “D. Gareh’s portions have been completed as of Oct. 31/1998. As of Dec. 10/98 still awaiting Joanne Anderson’s portions.” Asked in cross-examination why she had not filed a certificate of this sort earlier, the grievor said she did not want to get Ms. Anderson in trouble. In a letter to Mr. Justice Lasage, dated March 4, 1999, Ms. Gareh again asserted her portion of the Bernardo transcript “was completed by October of 1998. A certificate of completion for the entire Bernardo transcript, including Ms. Anderson’s part, was filed in January of 1999. As noted by union counsel, the “New Criminal Appeal Rules” issued by the Ministry on July 23, 1993 state: “In those cases where the transcript for a case involves more than one reporter, ... only one certificate of completion signifying ... completion of the whole of the transcript ... should be filed” (page 5; emphasis added).

Ms. Gareh testified that whenever she requested assignment to a long trial during the fall of 1998, her request was denied on the grounds that she had not completed the Bernardo transcript. She alleges such a request was denied on the following occasions: (1) by Mr. Porteus on November 9 in relation to the Minchella case; (2) by Ms. Greenland on or about November 23 in relation to a six-week trial; and (3) again by Ms. Greenland on November 26 in relation to the Dawson trial.

Incidents related to the Bernardo transcript continued into 1999. The grievor testified about a televised press conference held by Chief Justice McMurtry on Wednesday, January 6. She did not see the press conference but a number of people told her the Chief Justice had said that transcription of the evidence for the Bernardo case took three years. Counsel for the union argued the employer deliberately provided inaccurate information to the Chief Justice in order to damage the reputation of the grievor. The grievor testified the last order for any portion of the Bernardo transcript, placed with her or her partner, was dated December 30, 1997, just over one year before their transcript was completed. However, she did not say when the first order was placed. The grievor and her partner reported most of the Bernardo trial, but other reporters were also involved at the beginning, and there is no evidence as to how long they took to produce their transcript Pat Campbell, an unclassified reporter, testified a newspaper article about the press conference was on the table outside Mr. Porteus’ office where she signed in the next day. According to Ms. Campbell, when she asked Mr. Porteus if “this was going to put our jobs in jeopardy,” he suggested she speak to Ms. Gareh. Ms. Campbell testified about “confronting” the grievor but offered no details of their conversation. Ms. Gareh testified Ms. Campbell accused her of “being the reason the government is getting rid of court reporters.” According to the grievor, on Monday, January 11 Julie Hunt, also a reporter, yelled at her about not doing the Bernardo transcript sooner. Ms. Gareh testified that on January 27 she asked Mr. Porteus when she would be assigned to a long trial and he replied: “You take three years to get your transcripts out.” According to the grievor, she said that was not true and he replied: “Then a year it takes you.” She testified they were both yelling and the conversation ended with him slamming a door.

There were also incidents in 1999 not directly related to the Bernardo transcript. Ms. Gareh testified that on January 25 Ms. Greenland directed her to prepare a transcript of the jury charge in the McKee case and told her to bill for it on an invoice for personal services, but refused to say who had ordered the transcript. The grievor complained that she was never paid for this work, but in cross-examination she admitted not submitting an invoice.

There were three incidents in 1999 about steno pads. Ms. Gareh testified she normally used two or three pads per day. According to the grievor, on February 15 she took six steno pads for a couple of days and received a “lecture” from Ms. Greenland about taking more than one, and the next day Mr. Porteus suggested she usually took too many pads. In cross-examination, the grievor conceded being told by Ms. Greenland that steno pads were in short supply at the time. Ms. Gareh also testified that on June 3 she again had six pads for the next two days, Mr. Porteus accused her of having too many, and she reported this “harassment” to Ms. Mignardi.

On Wednesday, March 3, 1999, the grievor deposited in the office for pick-up by counsel a copy of her transcript for the Terceira case and an invoice for $550. Later that day she returned to the office to find the transcript gone and no cheque by way payment. In response to the grievor’s inquiries, the secretary told her to see Ms. Greenland. During examination-in-chief, the grievor gave the following account of what happened when she approached her manager:

I followed her into justices’ reception. I wanted the secretaries and everyone to hear. I said where is it. I need my $550. I was yelling and shaking. She’s six foot one. She said enough from you young lady, sign out right now. I followed her into her office down the hall. I was wild. She goes behind her desk and won’t talk to me. I had book bag on one shoulder and purse on the other. She said get out of here or I’m going to call security. I said I needed the money. She said she would call security. I said fine but give me the money. She goes to pick up the phone, she puts it back, comes around the desk and grabs my left arm and right wrist. My face is in her breast. I said let go of me, what are your doing. She would not let go of me. She twisted me and pushed me back and threw me out. I almost hit the door which was ajar. I landed on the floor.

In cross-examination, Ms. Gareh conceded Ms. Greenland said two or three times that said she would call security if the grievor did not leave. A contemporaneous note made by Ms. Gareh states she was “physically put out” of the office but offers no details of how this transpired.

Ms. Gareh testified that the next day she was “sore on the left side, had shooting pains, and was bruised on the arm and wrist. The grievor remained at home on paid leave from March 4 to March 31 with the approval of Lou Bartucci. On March 12, she met with Mr. Bartucci and John Conti, human resource manager at the courthouse. She testified that during the course of this meeting Mr. Bartucci said she might be charged with fraud and Mr. Conti shouted at her.

On April 8, 1999 Ms. Gareh arrived for work at 9:50 but recorded her arrival as 9:30 on the sign-in sheet and Mr. Porteus commented on the twenty-minute discrepancy. She testified he “harassed” her by saying she would have gotten a better assignment if she had arrived on time. According to the grievor, she skipped her break that day to make up for arriving late. On April 19, Ms. Mignardi spoke to Ms. Gareh about not recording the correct sign-in time on the 8th. The grievor described this as more “harassment” and testified she told Ms. Mignardi that she felt “singled out” by Mr. Porteus because other reporters often arrived at 9:45 or 9:50 and signed in for 9:30. This matter was again addressed at a meeting on April 27 attended by Ms. Mignardi, Mr. Bartucci, a union representative and the grievor, a meeting which she characterized as yet more “harassment.” Ms. Gareh conceded she was not disciplined for what happened on April 8 and “probably” was paid for the twenty minutes in dispute.

Susan Mignardi replaced Eya Greenland as manager of court reporters on April 13, 1999. Ms. Gareh testified Neil Porteus ignored her when he introduced other reporters to their new manager and she had to introduce herself. However, a contemporaneous note made by the grievor states: “Met new supervisor, Susan, introduced by Neil.”

On April 26, 1999, Ms. Gareh was again late for work. She testified about arriving at 10:08, having already called Mr. Porteus to say she would not be on time. Testifying she had not been allowed to join her assigned trial until the “morning” break, with the result that she lost transcript income, the grievor suggested the court proceeding should have been delayed until she arrived.

The grievor testified that on August 12, 1999 she received a chain letter through the mail at her home address. A copy of the letter, introduced into evidence, describes some recipients dying or experiencing other types of misfortune and others having good fortune, depending upon whether they forwarded the letter as instructed. Ms. Gareh contends the address on the outside of letter is written in Mr. Porteus’ hand. The union elected not to lead expert evidence in support of this claim.

Also entered into evidence is a note saying, “Debbie, we have to know where you are” and signed “Neil”. Ms. Gareh testified the signature belongs to Mr. Porteus and the note was stuck to the time sheet for reporters on August 25, 1999. According to the grievor, at 11:00 that day she told Marc Jones, who was in the group leader’s office, that she was going to the library, and she saw this “humiliating” note upon her return.

Ms. Gareh testified that on November 18, 1999 she asked Marc Jones, the then group leader, to be removed from the Trans America case, a long trial which turned out not to require daily transcript as had been expected. According to the grievor, Mr. Jones stated he had been instructed “not to interfere” with her court assignment and he acknowledged having no similar instructions for other reporters.

Ms. Gareh gave other testimony about the way people looked at her or behaved towards her in 1999. According to the grievor, Mr. Porteus gave her “dirty looks” on June 2 and 3, Valerie Boyce “glared” at her on October 19 and Lou Bartucci gave her a “not very nice look” on October 25 and a “cold stare” on December 24. According to Ms. Gareh, on July 22, 1999 Marcey McPherson, a reporter whose desk is next to hers, yelled at her: “What are you talking about my life for.” The grievor reported this incident to Ms. Mignardi and that afternoon the two of them “went looking for office space” but did not find anything suitable. Ms. Gareh testified that on October 18 John Goddard, also a reporter, ran down the escalator, stopped on the step behind her, and stayed there “breathing down” her neck. She recounted an incident on December 29 when she asked a small favour of Arnell Williams, a reporter, and was told: “Fuck off bitch.” Asked if she had any explanation for that attitude, the grievor replied in the negative, testifying it was “just the whole attitude in the office.”

Ms. Gareh testified that on January 5, 2000, Courtney Middleton, a reporter, passed her making a clicking sound, like a gun going off, and gesturing as if she was pulling a trigger. According to the grievor, she reported this incident to Ms. Mignardi. Ms. Gareh testified that on Tuesday March 7 Ms. Mignardi objected to her going on vacation during the following week, even though the manager had signed an approval for this leave in December of 1999. The grievor testified she had felt harassed but conceded Ms. Mignardi may have forgotten the approval. The vacation took place as scheduled.

The union also objects to the employer’s dealings with Ms. Gareh in relation to the events of February 14 and March 8, 2000. The grievor testified that on February 14 the proceeding to which she was assigned ended at 10:10 a.m., she remained in the courtroom until 11:20 and then told Marc Jones, group leader that day, that she was going to the library. According to the grievor, at 12:55 p.m. she went home for lunch and there received a phone call at 1:40 from Susan Mignardi who “yelled” at her for being at home and told her not to bother coming back to work even though she offered to return by 2:15. The grievor testified she actually returned to the courthouse by 2:30. She was docked pay for two hours and received the following memo, dated March 8, from Ms. Mignardi:

This is to confirm our conversation of March 7, 2000 concerning the procedures for signing in and out at the workplace. Specifically, we discussed the incident on February 14, 2000, whereby you recorded your sign in time and sign out times as 9.30 a.m. and 4:30 p.m. respectively when in fact you left the workplace prior to 4.30 p.m. In fact, I contacted you by telephone at your residence at 2:00 p.m.

As we discussed, on February 14, 2000, when your initial court assignment ended you clearly indicated to me that you had informed Marc Jones, the Group Leader, at approximately 10:30 a.m. that your court assignment had ended and that you were available in the workplace in case your services were required for court. At approximately 12:20 p.m., you were needed to cover your assigned court but you could not be located by Marc Jones, who looked for you in the reception area and your desk area.

Later on February 14, 2000, when Marc Jones required you to work in another court commencing at approximately 1:45 p.m. you could not be located in either the reception area or in the area of your desk. I successfully contacted you at 2:00 p.m. on that day by telephone at your residence. You stated that you could return to the Court House by 2:40 p.m. I indicated that was not acceptable and that your attendance was no longer needed that day.

The consequence of your leaving the workplace without permission was that two other reporters had to be located at short notice to cover the two courts in question. Had we not been able to locate these other reporters your unauthorized absence could have resulted in courts being delayed or canceled. Further, it was entirely inappropriate for you to record your sign-out time as 4:30 p.m. when in fact you were clearly not at the workplace at 2:00 p.m. when I contacted you at home. It is for this reason that your time sheet for that day has been adjusted to show 2:00 p.m. as your sign-out time. As discussed, in future, all sign-in and sign out times recorded by you must accurately reflect the hours that you have actually worked. If you have to leave the workplace for any reason, you are to notify the Group Leader or me directly.

Should you have any questions about the procedures for signing in and signing out or other administrative concerns relating to your employment, please feel free to bring them to my attention.

Ms. Gareh testified she read this memo on March 8 and was upset by it because was entitled to go home for lunch and because Ms. Mignardi had misrepresented both the time of her call and the time when the grievor indicated she could be back at work. According to the grievor, she returned to work on the Walker trial after reading the memo but “was breaking down” and “could not make a proper record” for “about thirty minutes”. On March 9, Ms. Mignardi told Ms. Gareh that Mr. Justice Laforme had asked that she be removed from the Walker trial. Ms. Gareh asked to speak to the judge and Ms. Mignardi said she would inquire whether he wished to meet with the grievor. The grievor testified that the next day she wrote to the judge asking whether he would meet with her to discuss his concerns.

Ms. Gareh continued to work on the Walker trial on Thursday, March 9 and Friday, March 10, producing daily transcript. She was on vacation during the week commencing Monday, March 13. During the week of March 20, instead of returning to the Walker trial, the grievor was assigned to summary conviction appeals before Mr. Justice Gans, an assignment which generated no transcript.

Ms. Gareh subsequently received the following memo, dated March 28, from Ms. Mignardi:

This memorandum is to confirm the substance of our discussions on March 9 and 20, 2000 concerning my decision to remove you as court reporter in the above-noted trial.

As I explained to you in our meeting on March 9, 2000, the presiding judge had advised me that you did not appear able to take down the record with sufficient speed to be able to keep up with the proceedings in court. His Honour further advised me that you had to interrupt the proceedings more frequently than is normally the case due to your inability to initially capture on record the substance of the proceedings.

When I asked you in our March 9 meeting if you had difficulty in taking the record, you indicated that you had not had any difficulty and that you had not interrupted the proceedings on a frequent basis to clarify the record. However, His Honour advised me that this was in fact the case, and, as a result, I indicated that I would be removing you from the trial. As you are aware, upon return from your vacation on Monday, March 20, 2000 you were assigned to another trial.

During our March 9, 2000 meeting, you expressed an interest in speaking directly with the judge concerning this matter. I responded to you that I would contact the judge to determine whether he wished me to provide any further details to you regarding your performance as court reporter in that trial, and that I would let you know whether the judge would be agreeable to meeting with you. You proceeded after our discussion on March 9, 2000, and without my knowledge, to contact the judge verbally and speak with the judge directly.

Under the circumstances, it was inappropriate for you to approach the judge directly on this matter. The final decision to assign or reassign a court reporter to be reporter of record is one that rests with Ministry management and not with the judiciary. While concerns of the court may be one of the factors taken into consideration by management in making such decisions, ultimately it is up to management to make a final determination. In future, I expect you to discuss assignment issues with me directly. Should you have any concerns or questions in that regard, please feel free to approach me for a meeting at a mutually convenient time.

Contesting the accuracy of this memo, the grievor testified that she had not contracted the judge verbally and that she had admitted to Ms. Mignardi having trouble recording the evidence on March 8 because witnesses had “strong accents” and the judge failed to “control” the pace of the proceedings.

VI

Was Ms. Gareh the victim of bad faith by management in the allocation of trials with the potential of transcript income? Counsel for the employer contends that to prove this allegation the union would have to show both that the grievor received less than a proportionate share of this work and that such lack of proportion was caused by bad faith on the part of management rather than by some legitimate factor. I agree. In determining whether the union has established a prima facie case that this is what happened, I will bear in mind the evidence of alleged harassment recounted above and other evidence reviewed in this section.

To determine whether the grievor received less than a proportionate share of work with the potential of generating transcript income, I must compare her experience throughout the period in question with that of other reporters able and willing to do the this sort of work. The record in this case does not permit a comparison of the amount of transcript income earned by the grievor with the amount earned by other reporters. The employer created a document showing the amount of transcript income received from the Ministry by each reporter. As the union objected to the admission of such data during the presentation of its case, I will ignore this document in deciding the non-suit motion. There is no central repository of data about transcript income from sources other than the Ministry. The union led evidence as to how much the grievor earned from such sources but did not call any other reporters to testify about their earnings.

There is evidence of the number of days worked on long trials by the grievor and by other reporters whom she alleges received more than a fair share of such assignments, and the parties agree there is a direct correlation between the length of a trial and the probability it will result in transcript being ordered. The union produced briefs for 35 cases showing which reporters were assigned to each case and how many days were worked by each of them. Counsel for the union prepared a table summarizing this data. Employer counsel disputed some of the information in this table, but for present purposes I will assume it accurately reflects the contents of the briefs, as nothing turns on the alleged discrepancies. The table indicates that in all but a few cases one reporter did the entire trial or the lion’s share of it. Where additional reporters were assigned to one of these trials, their assignments typically lasted only a day or two. In analyzing the table, I have passed over any assignment of five days or less. For assignments of longer duration, I have computed the total number of days worked on the 35 cases by each of the 29 reporters with such assignments. Eleven reporters each worked 50 days or less, six worked between 51 and 100, and ten worked between 101 and 200. That leaves only two reporters who worked on these long trials for a total of more than 200 days: Gary Oliver with 203 days; and Karen Woon Sam with 350 days.

Ms. Gareh was not assigned for more than five days to any of the thirty-five cases surveyed by the union, but she did spend substantial time on some trials that lasted twenty days or more. The grievor testified her assignment to the Bernardo trial lasted from May 31 to September 7, 1995, a period which includes 69 weekdays excluding statutory holidays. She also testified about spending 20 to 22 days on the Gayle trial in the fall of 1995, 101 days on the Osborne trial in 1996 and 1997, and 30 to 35 days on the Canso Insurance trial in 1997 and 1998. All of these cases generated income from transcript. The grievor also worked on the Trans America case in 1999, but it yielded no such income because she and counsel were unable to agree on a rate for “dirty copy.” The Trans America case cannot be overlooked when comparing the grievor with other reporters, because there is no evidence that transcript income resulted from most of the assignments reflected in the union’s table dealing with the others. The grievor testified that her assignment to Trans America began on September 21 and ended on November 26, but that the trial did not proceed during the first week of November. Excluding that week and statutory holidays, there were 43 weekdays between the commencement of her assignment and its completion. In summary, the grievor’s testimony indicates she spent between 258 and 265 days on assignments lasting 20 days or more. For the purpose of comparison, I will use the lower figure of 258. (This number does not include time spent on the Techform and Walker cases, which generated transcript income, because the evidence does not indicate how long these trials lasted.)

How does the number of days worked by Ms. Gareh on long trials compare with the numbers for other reporters reflected in the union’s table? The grievor’s figure of 258 is exceeded only by the figure of 350 for Karen Woon Sam who spent 332 days on a single case. The figure of 258 days for the grievor exceeds the figure for all other reporters. A majority of the twenty-nine reporters have 100 days or less.

This analysis does not conclusively demonstrate that the grievor placed second among reporters in assignments to long trials. The foregoing comparison would be imperfect to the extent, if any, that the cases summarized in the union’s table do not include all assignments of more than five days on trials lasting more than 20 days. Nonetheless, the union bears the onus of establishing a prima facie case that the employer acted in bad faith in distributing work among reporters, and in determining whether this onus has been discharged I cannot ignore the only comparative data before me.

Evidence also was led about a method of selecting reporters for long trials by drawing a name from a cookie jar. On April 27, Susan Mignardi posted a memo listing reporters “who have not participated in a long trial since January 2000 who have expressed an interest in doing so.” The memo names 17 reporters including the grievor and indicates that the selection of a reporter from among those named would be done “randomly” The memo goes on to say: “If your name is not on the list and you think it should be, please let me know.”

Ms. Gareh testified Sue Crandall was assigned to a long trial in the Edwards case on May 12 even though her name does not appear on the list posted on April 27. According to the grievor, she asked Ms. Mignardi about this and was told Ms. Crandall had submitted an e-mail asking to have her name added to the list. In the absence of any evidence indicating she had already done a long trial since January of 2000, there is nothing to suggest her name should not have been on the list.

Ms. Gareh also testified that on or about May 12, 2000 Courtney Middleton was assigned to a long trial in the Parnum case and that, when she took a week off, Crystal Deisting replaced her. (Both of their names are on the list posted by Ms. Mignardi on April 27.) Ms. Gareh’s most recent grievance objects to the assignment of the Parnum trial to these two reporters on the ground they are “favourites” of management.

The grievor testified that Ms. Middleton “consistently” worked with Justice Ewaschuk whose court “always” produced transcript because he did murder trials, but the evidence contains no indication as to the duration of the association between this judge and reporter. Other than Ms. Middleton’s assignment to the Parnun case, the length of which is not disclosed by the evidence, the only long-trial assignment for Ms. Middleton specifically mentioned by the grievor is a five-week trial ending in April of 1999. Ms. Middleton did not work on any of the 35 long trials listed in the union’s table. According to this table, Ms. Deisting spent more than five days on each of four trials for a total of 102 days. The only other evidence about Ms. Deisting’s assignments is the grievor’s testimony that she regularly sat with Justice McCombs.

Ms. Gareh also testified each of several other reporters regularly worked with a particular judge, but there is no evidence about the nature or duration of their trial assignments which would indicate what potential their work had to generate transcript.

In summary, the evidence does not permit me to compare the income from transcript earned by the grievor with that earned by other reporters. The number of days worked by the grievor on long trials exceeds the corresponding number for all but one of 29 reporters included in the union’s table of long cases. The evidence does indicate that the 258 days worked by the grievor is less than the 350 worked by Karen Woon Sam who spent 332 days on a single trial. While this trial could have been shared among a number of reporters, as were several others listed in the union’s table, the grievor testified experience on a case enhances the quality of reporting by allowing a reporter to build up a “dictionary.” This enhancement would be a legitimate consideration for management when assigning trials and could explain Ms. Woon Sam’s very lengthy assignment to one case. Weighing all of the evidence recounted above, I conclude the union has failed to establish a prima facie case that the grievor received less than a proportionate share of desirable assignments as a result of bad faith on the part of management.

VII

The health and safety of unclassified employees is addressed in article 31.11.1 of the collective agreement which states:

The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. (emphasis added)

The union’s allegation that management failed to make “reasonable provisions for the health and safety” of the grievor rest in part upon the evidence relating to harassment and work assignments recounted above. The union also relies and upon letters from two doctors who have treated her.

A letter dated September 3, 1999 from Dr. Michael Weinstock, the grievor’s family doctor, states:

I am writing this medical report to you concerning Ms. Debbie Gareh.

This is also to inform you that I am licensed to practice by the College of Physicians and Surgeons of Ontario.

I began to treat Ms. Gareh in March 1994 and she continues to be my patient.

In reviewing my notes, I found that the first complaints of stress related to her working condition goes back to April 1996.

She complained to me of harassment by her supervisors. She complained that her workload was being reduced compared to the amount of work that she had previously been given. Her previous workload was well within her capabilities.

She felt 'shut-out' of the system.

When she tried to get an explanation for the cutback in her work, she was ignored.

As this situation began to peak in the latter part of 1998 and into 1999, Mrs. Gareh became very depressed. She couldn't concentrate and spent a lot of time at home, avoiding any social contact. She withdrew from her own family.

She would call me or come to see me and would start to cry when discussing her situation.

Her situation was compounded by a severe reduction in her income and her savings were depleted at a rapid rate. This financial pressure only served to increase her depression.

I saw her on March 4, 1999 She related that she had been assaulted the day before. She was grabbed by her arm and she was pushed into the hall.

At this visit, I made note of an abrasion on her right upper arm, and a bruise over her left (medial) wrist. She was tender to palpation over a painful area of her left upper chest.

She called me on March 8, 1999 complaining of spasm over her left chest wall and left breast region. She was crying while discussing the situation.

She returned on March 15, 1999. She had ongoing soreness and tenderness of her left upper chest wall. Her left buttock and left rib cage was sore. She had a new bruise over her left knee that appeared 2 days after her visit of March 4, 1999.

I felt that her injuries were compatible with the assault as she described it to me.

Debbie had sought psychiatric help at a walk-in clinic in the midst of the difficulties in March 1999. Coincidentally, she saw a colleague of mine, Dr. Jonathan Rootenberg whom I called and asked him to continue to treat her.

I saw her last on May 19, 1999 for an assessment of an injured left thumb that was unrelated to this problem.

MEDICAL- OPINION

It is my opinion that Debbie has been suffering from reactive depression and stress related to the ongoing harassment that she described to me.

She indicated that her workload was being reduced and she was frustrated and upset because there were no responses to her inquiries.

Her condition was aggravated by a seriously deteriorating financial situation.

The second letter, dated September 7, 1999 is from the grievor’s psychiatrist, Dr. Jonathan Rootenberg. It states:

I am writing in response to your letter dated August 26, 1999, asking me to detail my involvement as her psychiatrist.

Ms. Anshan-Gareh is a 44 year old caucasian woman who was referred to me by her family physician Dr. Michael Weinstock, for assessment and monitoring of her depressive symptoms. I first met with her on March 12, 1999, and have been meeting with her biweekly since that time, and continue to do so.

She indicated that she had been working as a court reporter for the Attorney General for approximately 20 years. Ms. Gareh complained that her work situation had been steadily worsening since approximately 1993, coincident with a particular male supervisor moving to her office; she felt that there were some anti-Semitic comments directed towards her at her place of work, and believed that she was "passed over" for many favorable assignments in favour of many of her less-experienced colleagues, despite her sterling performance record. She described the workplace as a "warzone" and found herself becoming increasingly frustrated and depressed - this was exacerbated by marked financial stress, compounded by being given short-term assignments, not the longer, more lucrative trials that she expected to receive, based on her track record and seniority.

The most traumatic event at work reportedly occurred on March 3, 1999, when Ms. Gareh stated that she was assaulted by a female manager in the courthouse:

I came out of the justice's reception on the 3rd floor and saw 'Eya' in the hallway, she was talking to a secretary. Then she stopped and went to walk away. I asked her for a transcript back, she walked away and I said, 'do you want to be charged with theft?' I wanted my envelope back. She's 6 feet tall and quite intimidating; I followed her back to her office and she said 'get out of my office now'. She tried to close the door on me and I kept my foot there and she couldn't close it; she said she'd call security and I said, 'fine, but give me my envelope back'. She was on the phone. I walked to her desk and thought I saw my transcript there. She put down the phone and grabbed me and used excessive force and threw me out of the office.

Since the above incident, Ms. Gareh stated that she has experienced physical discomfort, but more problematically has had recurrent nightmares, flashbacks to this encounter, impaired sleep, hypervigilance, and increased preoccupation with this event. She had characteristic neurovegetative symptoms of depression, specifically markedly depressed mood, suicidal ideation, frequent crying episodes, impaired appetite and sleep, anhedonia (loss of interest in pleasurable activities), very low energy, and low self-esteem. She also noticed a profound decrease in her social activities, and became more withdrawn and apathetic.

Due to the acuity of the above symptoms, it was recommended to her that she start antidepressant medication and she was reluctant initially, then agreed to do so. She was started on Manerax (Moclobemide), beginning at 75 mg per day, then gradually titrating upwards to her current dose of 375 mg per day. She has begun to demonstrate improvement in her neurovegetative symptoms, but still appears noticeably affected by the traumatic event of March 3, 1999, and is struggling to cope at work (after some time off work, she returned on April 6, 1999).

In my psychiatric opinion, this lady's acute depressive symptoms were exacerbated by her difficult work environment, and certainly by the physical confrontation with her female supervisor on March 3, 1999, resulting in post-traumatic symptoms that have not fully abated at this time. She appears to be a very proficient court reporter based on available information and seems to greatly enjoy working in this arena; however, the steadily worsening environment over the last 5-6 years has played a significant role in triggering her depressive symptoms, in my opinion.

I plan to continue meeting with her regularly, every one to two weeks, to monitor her symptoms, make any adjustments in her medication if warranted, and continue with supportive and insight-oriented psychotherapy. She appears highly motivated to improve her condition and resume her previous high level of functioning. She attends all scheduled appointments without fail.

Thank you for asking me to provide a summary of my involvement with this very pleasant lady.

Did the employer contravene article 31.11.1? In answering this question, I begin with the grievor’s allegation that she was assaulted by Ms. Greenland on November 26, 1998. The union has failed to establish a prima facie case in relation to this incident because Ms. Gareh’s testimony that she was “pushed” out of the manager’s office is directly contradicted by the grievor’s contemporaneous note stating she was “summoned” from the office.

Ms. Gareh also alleges she was assaulted by Ms. Greenland on March 3, 1999. Employer counsel contends his client would have no legal liability for a single incident of assault by a manager. I do not agree. The employer acts through its managers and is liable for conduct by one of them, whether intentional or negligent, which endangers an employee. The grievor admits shouting and refusing to leave the manager’s office, but she claims Ms. Greenland was the first to use physical force. An incident of the sort described would amount to a breach of management’s obligation, under article 31.11.1, “to make reasonable provisions for the safety and health” of the grievor. As there is no contradiction in the evidence about the second alleged assault, I conclude the union has established a prima facie case that a health and safety violation occurred on this occasion.

Allegations of assault aside, the union contends the employer impaired Ms. Gareh’s psychological health by subjecting her to harassment and an unfair distribution of work. For the purpose of the non-suit motion, employer counsel does not dispute that the grievor suffered from depression and stress during the relevant period, but counsel contends there is no evidence that her psychological condition was caused by anything that happened at work.

The medical opinions provided by the grievor’s two doctors demonstrate that her psychological state could have been caused by the workplace conditions which she described to them, but the conditions recounted in their letters differ significantly from those revealed by the evidence at hand. The opinion of both doctors rests in part upon the grievor’s allegation that work was not distributed fairly, but the union has not established a prima facie case that there was an unfair distribution. Both medical letters refer to harassment by one or more supervisors, but the doctors provide no details of any harassing conduct described to them by the grievor, so I am unable to determine whether the alleged harassment upon which their opinions are based accords with the evidence adduced before me. The alleged assault on March 3 is the only specific incident mentioned by the doctors, and I already have concluded there is a prima facie case concerning this allegation. As to the remaining allegations of harassment, I conclude proof of the facts alleged would not constitute a failure on the part of management “to make reasonable provisions for the health and safety” of the grievor.

VIII

The grievor contends the memos she received from Ms. Mignardi, dated March 8 and 28, 2000, constitute discipline without just cause. Employer counsel stipulated that these memos were not intended as discipline and form no part of the grievor’s disciplinary record. Given this stipulation, there is no need for the union to pursue this element of the grievances. I have already considered the union’s argument that these memos are part of a pattern of bad faith conduct on the part of management. The contention that the March 28 memo is libellous is considered below.

In this section of my decision, I will address the grievor’s contention that she was disciplined without just cause by being removed from a trial in March of 2000. For the purpose of the non-suit motion, my only task is to determine whether the union has established a prima case that the grievor was disciplined. If discipline occurred, the employer would bear the burden of proving just cause for it.

As recounted above, Ms. Gareh was removed from the Walker trial because of a complaint by Mr. Justice Laforme about her reporting. She testified this trial required daily transcript. According to the grievor, the Walker trial continued after March 20, the date when she was reassigned to summary conviction appeals which generated no transcript. This evidence indicates the grievor suffered a financial loss as a result of being reassigned.

The reassignment of an employee to lower-paid work because of inferior performance is viewed by arbitrators as a form of discipline. The long-standing arbitral consensus is that such reassignments are disciplinary, although there are two schools of thought as to whether this is an acceptable form of discipline, as illustrated by the following passage from Brown and Beatty’s, Canadian Labour Arbitration:

A second technique by which employees who persist in inadequate and unacceptable work habits may be induced to adhere to the norms of the plant is to assign them to lower rated and less critical jobs until they have demonstrated a willingness and ability to adequately discharge the assigned duties in their former positions. Initially, some arbitrators were of the view that unless the collective agreement specifically referred to such powers, demoting an employee was not a proper form of discipline because it was said to abridge seniority rights and because of its indefinite effect. However, in more recent awards, where the employee has shown his unsuitability, incompetence, or inability to do the job in question the vast majority of arbitrators have come to accept the demotion or transfer of an employee as a legitimate form of discipline ...

After some reasonable period of time, which necessarily will vary with the facts of each case, the employer will be expected to reassess the suitability of the grievor for his former position. (at 7:3544)

When Brown and Beatty speak of a “lower rated” job, they mean one with a lower wage or salary. In the instant case, the reassignment of the grievor had no impact on her hourly rate, but it did deprive her of income from transcript. For the purpose of determining whether she was disciplined, I view this as a formal distinction without any substantive difference. The loss of transcript income was a financial penalty and therefore disciplinary. In short, the union has established a prima facie case of discipline.

IX

The union alleges Ms. Gareh was libeled by Ms. Mignardi’s memo of March 28, 2000. The libel is said to reside in allegedly false accusations that the grievor denied having difficulty recording testimony in court on March 8 and that she spoke to Justice Laforme after being told not to do so. As noted by employer counsel, there is no evidence that this memo was published in the sense that Ms. Mignardi sent it to anyone other than the grievor. For this reason alone, the union has failed to establish a prima facie case of libel.

X

I have concluded: (1) the union has established a prima facie case in relation to the anti-Semitic comment allegedly made on August 31, 1998; (2) the union has established a prima facie case in relation to the assault allegedly committed on March 3, 1999; (3) the union has established a prima facie case that the grievor was disciplined in relation to the incident of March 8, 2000; but (4) the union has not established a prima facie case in relation to any of the other alleged violations of the collective agreement.

Dated at Toronto this 16th day of September, 2002.