GSB# 2001-0925, 2001-0949

UNION# 01C606, 01C621, 01C622

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Patterson)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Public Safety and Security)

Employer

BEFORE

Deborah Leighton

Vice-Chair

FOR THE UNION

Mary MacKinnon

Barrister and Solicitor

FOR THE EMPLOYER

Christopher Jodhan

Counsel

Management Board Secretariat

HEARING

October 29, 2003. Submission received November 3, 2003.

DECISION

There are three grievances before the board, two individual grievances of Julie Patterson dated July 3, 2001, alleging, inter alia, discrimination and harassment and a group grievance dated August 24, 2001 alleging discrimination of the female correctional officers of the Sault St. Marie Jail. This preliminary decision addresses the employer’s motion argued at the first day into the hearing of this matter which, essentially, seeks an order from the board limiting the scope of the evidence, particularly requiring the board to exclude evidence on allegations which are older than one year before the grievance was filed or before July 2000. The union opposes the motion to restrict the scope of the evidence and takes the position that evidence on all the particulars going back as far as 1987 should be permitted to be tendered to the board.

The parties agreed to the following facts for the purposes of the motion:

1. The grievors have each filed grievances in the past related to various issues including grievances with discrimination on their face;

2. The grievors raised their concerns both formally through grievances and informally through discussions with various management officials;

3. The grievors were unsatisfied with the actions of management in regard to their complaints and as such felt there was no point in bringing new concerns to management;

4. The grievors were also concerned about the “code” among officers that they should not “rat out” fellow officers.

Counsel for the employer argued referring specifically to particulars provided by the union that allegations referring back to incidents occurring in 1987 and through to incidents occurring in 2000 were not timely. The essence of his argument was that the employer would be prejudiced in responding to these allegations and the prejudice outweighs the probative value of such evidence. Counsel also argued that some of the allegations and the particulars put forward by the union were not relevant to the primary issue of whether or not the correctional officers had suffered discrimination or that there was a pattern of discrimination in the Sault St. Marie Jail. Finally, counsel argued that evidence regarding allegations subsequent to the filing of the grievance, should not be permitted at the hearing into this matter. Counsel relied on OPSEU (Ross) and The Crown in Right of Ontario (Ministry of Solicitor General and Correctional Services), (2003)GSB# 2690/96 et al. (Herlich); Religious Hospitallers of Hotel Dieu of St. Joseph of the Diocese of London and O.N.A. (Curtis), ( 1995) 1995 CanLII 18345 (ON LA), 47 L.A.C. 4^th 84 (Watters); Ontario Liquor Board Employee’s Union (Koonings/Froner) and The Crown and Right of Ontario (Liquor Control Board of Ontario), GSB# 3483/92 et al. (Stewart).

In summary, counsel for the union argued that the board should exercise its discretion to admit evidence of allegations of discrimination dating back to 1987. Counsel argued that the onus is on the complainants to prove discrimination and that it would prejudice the individuals not to hear all the evidence in this case. Counsel argued further that the parties before me agreed in their collective agreement that victims of sexual harassment may be more prejudiced than the employer, specifically providing that time limits do not apply as set out in Article 22.2.1, provided the complaint is made within a reasonable time. She noted that employees often hesitate to file grievances in such cases and that the code among coworkers in corrections not to “rat” out fellow officers acts as a deterrent to filing complaints. Counsel argued further that the timeliness of the evidence must be subject to a reasonableness test not a calendar. Further, counsel argued that there was no evidence of actual prejudice, that evidence had been destroyed or individuals were deceased. Given the absence of actual evidence of prejudice, the balance favours the grievors. Counsel also argued that the employer had waived the right to object to the “age” of the allegations by not raising the issue at the stage two or earlier. Counsel relied on OPSEU (Chan) and Crown in Right of Ontario (Ministry of Education), GSB# 1990/90, 2269/90; OPSEU (Ross) and Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), GSB#2690/96 et al ; Hotel Dieu Grace Hospital and O.N.A. (Bennett) 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 ; Canada Post and C.U.P.W. (Racky), (unreported, 1997) (Picher); City of Toronto and CUPE (Local 79) (Hayden), (unreported, 1996) (Devlin).

DECISION

Having carefully considered the submission of the parties I have concluded that the union’s waiver argument cannot succeed. The employer was not provided with particulars until 2003 and there was no evidence provided to the board that they had knowledge that the grievors intended to make complaints about alleged discrimination going back to as early 1987.

I am of the view that this motion is essentially about the scope of the evidence in a case alleging discrimination against female corrections officers. The employer wants the evidence limited to allegations during the period of one year prior to the date of the grievances. The union wants to be able to put evidence in that dates back to 1987.

The reasoning in the Hotel-Dieu Grace Hospital case is helpful. Arbitrator Picher said, considering the scope of evidence in a case alleging racial discrimination: “that it is important in this case to strike a fair balance between the concerns of both parties.” (supra) In that case the union wished to adduce evidence dating back to the grievor’s hire date or some six years before the grievance was filed. Arbitrator Picher noted that this was not a case where the grievor was unaware of her rights or without a reasonable basis to conclude that she was allegedly the victim of discrimination. In the case before me documents submitted to the board indicate that Ms. Patterson was well aware of her rights to file grievances of alleged discrimination as she did so in 1991, 1992, 1993 and 1994. The agreed statement of facts indicates that all of the grievors have previously filed grievances alleging discrimination and they raised the issues informally with management. There was no explanation or evidence provided for why the grievors waited so long to grieve, except that they were concerned about “ratting” on their fellow officers. This is not persuasive given the agreed statement of facts indicates that they all did complain at earlier times both by grieving and complaining informally to management. Thus, like the grievor in Hotel-Dieu Grace Hospital they were aware of their right to grieve and had a reasonable basis to conclude that they had been allegedly victims of discrimination well before July 2001.

The board in Hotel-Dieu Grace Hospital stated that it had concerns about allowing evidence of a full six years because of the volume of evidence. The concerns were equitable and procedural. However, the board also recognized the union’s need in such a case to show the pattern of discrimination.

I must strike a fair balance between the employer’s and the union’s respective interests. Given the grievors were aware of their rights, and in the absence of any evidence to justify the extreme delay in grieving the events during the period of 1987 to 1996, I have no difficulty in deciding that, in this particular case, the allegations relating back to 1987 through to 1996 are simply too old. The more difficult question is where to draw the line between 1996 and 2000. Both parties described this case as one alleging a poisoned workplace. I am therefore cognizant of the union’s need to present evidence to support a pattern of discrimination. The Hotel-Dieu Grace Hospital case allowed evidence dating back three years. After reviewing other cases put before me by the union it is clear that the Grievance Settlement Board has allowed evidence dating back three years, where the allegations related to racial harassment. In OPSEU (Chan), supra Vice-chair Dissanayake held that the “board has a wide latitude to hear and consider any evidence which it considers relevant” and he cited vice-chair Kennedy in Re Taylor-Baptist GSB 163/87 as follows:

Once the grievance is properly before us within the procedures laid down in the collective agreement, the appropriate scope of evidence is governed by the normal principles dealing with the admissibility of evidence and its relevance to the issues to be arbitrated. In the context of labour relations, matters cannot and ought not to be determined in a vacuum, and past events are customarily covered in the evidence in order to place a particular incident that is the subject matter of a grievance into its proper context in the light of the on-going employment relationship. It is immaterial that those past events can no longer form the basis of a grievance due to the time limit provisions of the collective agreement.

It is clear that the grievances are properly before me and the only issue is the scope of the evidence. Thus in balancing the interests of the union to prove its case of an alleged poisoned work place and the employer’s right to defend itself I have decided that the union may put evidence in regarding incidents of alleged discrimination as may be relevant dating back to August 1998 – a period of three years before the grievances were filed.

With regard to the employer’s request to limit evidence on allegations that it argues is not relevant, I am not in a position to decide this in a preliminary award. Without the context of the evidence, a ruling here is premature. Likewise, it is premature to make a decision on allegations (supra) arising after the grievances. As Arbitrator Watters stated in Hotel Dieu (St. Joseph) the guiding principle in post-grievance evidence is whether the evidence is relevant. I am not in a position to make a ruling on this now.

Dated at Toronto this 1^st day of December 2003.