GSB#2002-0840, 2002-2223, 2002-3002, 2003-3131, 2003-3132, 2003-3133

UNION#2002-0135-0007, 2002-0359-0042, 2002-0359-0045, 2002-0359-0046, 2002-0359-0044, 2002-0359-0043, 2003-0135-0001, 2003-0438-0022, 2003-0438-0023, 2003-0438-0024

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pinazza et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

• and -

Mark Keating

Third Party

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

David Wright Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

David Strang, Acting Associate Director and Suneel Bahal, Counsel Management Board Secretariat

FOR THE THIRD PARTY

Andrew F. Camman Polishuk, Camman and Steele Barristers and Solicitors

HEARING

March 24; May 28; June 28 & 29, 2004.

Decision

These proceedings concern ten different grievances filed on behalf of nine different bargaining unit employees. Each grievance impugns the conduct of Mr. Mark Keating. Mr. Keating is and, at the relevant times, was, a managerial employee of the Ministry. He is currently assigned to the Windsor Jail but was previously on site at the Rideau Correctional and Treatment Centre and, prior to that, at the Whitby Jail.

The union asserts that Mr. Keating has engaged in conduct which amounts to sexual harassment of each of the grievors (and one other non-bargaining unit individual). As a result of that conduct, the union urges the conclusion that the employer has failed to live up to its statutory and collective agreement obligations. Among the remedies being sought by the union is an order from this Board terminating Mr. Keating's employment with the Ministry. This result is said to be necessary to effect an appropriate remedy for the alleged violations. Alternatively, the union seeks an order that Mr. Keating be removed from his position as an OM16 at the Windsor Jail and be placed in another position devoid of supervisory powers over any employee. In the further alternative, the union seeks an order that Mr. Keating be reassigned to another institution.

The collective bargaining parties agreed that Mr. Keating, in view of the remedies being sought by the union, was entitled to be a party to these proceedings. And although he initially appeared on his own behalf, Mr. Keating did subsequently retain counsel who participated in these hearings on his behalf and was involved both in the procedural agreement arrived at by the parties (to be shortly described) and the legal arguments made before this Board pursuant to that agreement.

Prior to arriving at the procedural agreement, the parties made a number of efforts to resolve these matters. And although I was not advised as to the specific proposals that were exchanged and considered, the parties indicated that, while they were unable to consummate an agreement, some progress had made in that regard. Further and although perhaps for different reasons as between the three parties, a consensus emerged that were the Board to provide answers to certain discrete issues, there might be some renewed collective appetite to revisit certain settlement options.

The allegations which are at the heart of these proceedings involve nine different grievors at three different Ministry facilities and span a period well in excess of three years. There can be little doubt that should these matters need to proceed through a full and complete hearing, vast quantities of this Board's resources, not to mention those of the parties (for whom the currency of resulting expenditures will include time, money and emotional energy), will have to be consumed. Of course, such are the costs of litigation – albeit significantly magnified in the instant case given the scope of the grievances as well as the emotionally charged atmosphere which typically permeates cases of this nature. But while the parties clearly recognize that the difficulties attendant with litigation do not provide a basis for its evasion, they have also, wisely in my view, elected to adopt an initial procedure which may (or, admittedly, may not) save all concerned the significant costs associated with a full hearing.

To this end, the union has prepared a comprehensive Statement of Evidence which (including its supplementary materials) comprises well in excess of 40 pages of particulars said to support its allegations. For the purposes of this decision only, the parties have agreed to accept the facts asserted in the union's Statement of Evidence as true and provable.

Based on those assumed facts, the union asserts that the remedial response(s) it seeks are appropriate and asks me to so find.

The employer advanced two principal arguments. First, although it conceded that this Board does have the remedial authority to direct that the employer move Mr. Keating from his current position and/or insure that he not supervise particular employees, a strenuous argument was advanced challenging the Board's jurisdiction to direct that Mr. Keating be disciplined or discharged from his employment. In any event and even if the Board does have the authority to order the draconian remedies sought by the union, this is not an appropriate case for such a response.

For his part, Mr. Keating raised yet another issue. It was asserted that, even accepting all of the union's asserted evidence as true and provable, it does not establish conduct which constitutes sexual harassment within the meaning of the collective agreement or the Human Rights Code. Whatever else may be said about the impugned conduct (and it was candidly conceded that at least some of the conduct complained of was inappropriate), if it does not constitute sexual harassment, there is no foundation for any of the grievances which are all grounded in Article 22.10 of the collective agreement, a series of articles which deal with sexual harassment and, inter alia, provide employees with the right to freedom from it in the workplace. Thus, Mr. Keating advances something akin to a non-suit motion or, perhaps more accurately, a no prima facie case motion in relation to the facts asserted by the union. In support of that position, counsel thoroughly and painstakingly reviewed all of the asserted evidence with a view to persuading me that the impugned conduct did not amount to sexual harassment.

Further, while Mr. Keating (although occasionally and incidentally referring to the employer's argument with approval) did not take great issue with the Board's jurisdiction to grant the remedies sought, he argued strenuously that even if his conduct did constitute sexual harassment, the remedies sought by the union were inappropriate.

In response to Mr. Keating's submissions, the employer conceded that some of Mr. Keating's conduct actually did or might well be found to constitute sexual harassment. Regardless of that, it renewed its submission that however the conduct is characterized, it does not merit the remedial response urged by the union.

Thus, there are three issues with which this decision deals:

1. Do the facts asserted by the union fail to disclose a prima facie case to establish that (at least some of) Mr. Keating's conduct constitutes sexual harassment?

2. If not, does this Board possess the jurisdiction to provide the remedial response urged by the union?

3. If so, are or might (all or some of) the remedies sought by the union be appropriate?

Before proceeding to deal with these issues, a number of comments are in order.

This decision, for reasons which I shall now outline, will undoubtedly fail to disclose the rigour, care and attention all counsel devoted to the issues decided herein. I have already indicated that the union's Statement of Evidence was thorough and comprehensive. In addition, counsel each prepared legal memoranda of their arguments. These were shared between the parties prior to the oral hearing. Similarly, the voluminous authorities which were referred to were shared between the parties and filed with the Board in advance of the commencement of the hearing. And finally, counsel were thorough and rigorous in the oral presentations of their arguments, which consumed the better part of two days of hearing time. Each of the parties, through their respective presentations, made it clear that there are important issues at stake in this case – both from the perspective of the challenging legal issues which were engaged and, as important, for the practical consequences the adjudication of this matter will have on its participants. The case raises important issues which were treated with the sombre and profound attention they merit.

However, notwithstanding the significant care and energy invested in the presentations of all counsel, I have determined to be somewhat economical in most portions of these reasons, certainly to the extent that this decision is not a final one.

I have chosen this route for a number of reasons but chiefly because, in the context described earlier of how and why the parties entered into the procedural agreement which has resulted in this award, I believe it would be inconsistent with the parties' shared goals if this decision were, in any way, to be seen to impair their ability to fairly litigate the case and, perhaps more importantly, again given the context, to inhibit their capacity to meaningfully negotiate an acceptable resolution of the matter in view of the conclusions herein. I am also satisfied that this approach is consistent with the submissions of counsel generally (both in open hearing and in private sessions held in the matter) and certainly not inconsistent with the views of any one of them.

The chief exception to this approach is with respect to the jurisdictional issue. This is a distinct legal question whose determination, unlike the other issues enumerated herein, does not depend chiefly or at all upon the assessment (assumed or otherwise) of the conduct of any of the participants. In that context, and again consistent with the submissions of counsel, I am satisfied that providing my full reasons with respect to this issue is unlikely to result in any of the undesirable consequences adverted to earlier.

I turn now to the three questions before me.

Do the union's "pleadings" fail to disclose a prima facie case of "sexual harassment"?

As already indicated, the parties were exceedingly thorough in their legal and factual arguments in all aspects of the case. The legal context of the concept of sexual harassment and whether and how the facts asserted by the union might (or not) fit within those parameters were canvassed at length.

I was referred to sources and authorities ranging from the relevant collective agreement, the Ontario Human Rights Code, the Canada Labour Code and decisions of disparate administrative tribunals and courts up to the highest authority in the land.

Among the cases referred to were Aragona v. Elegant Lamp Co. Ltd (1982) 1982 CanLII 4879 (ON HRT), 3 C.H.R.R. D/1109 (Ratushny); Bailey v. Anmore (1992) 1992 CanLII 14253 (BC HRT), 19 C.H.R.R. D/369; Wigg v. Harrison [1999] N.S.H.R.B.I.D. No. 2 (Trainor); Rathlou v. Melnychuk (c.o.b. "Parksville 1-Hr Photo) [1996] B.C.C.H.R.D. No. 44 (Mahil); Yorke v. Cyprus Pizza [1985] B.C.C.H.R.D. No. 3 (Wilson); Singh v. Canada (Canadian Human Rights Commission) (re Canada Post Corp.) [2000] F.C.J. No. 940 (Fed. Ct.) (Reed); and, of course, the seminal pronouncements of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 as well numerous scholarly works.

I will not review the facts asserted by the union. They are contained in specific documents familiar to the parties. I will do no more than provide my conclusion to the specific question (and no other) which is presented to me.

The union argues that the asserted facts and all of the relevant events detailed therein amount to sexual harassment. The employer conceded that, at least some of the events adverted to do or might well be found to amount to sexual harassment. Mr. Keating asserts that none of the events as described in the union's asserted facts can possibly give rise to any conclusion that the impugned conduct amounts to sexual harassment.

I am not persuaded that it is impossible to arrive at the conclusion that (at least some of) Mr. Keating's conduct amounted to sexual harassment and I must, therefore, decline to allow his motion that these grievances be dismissed on that basis.

For the sake of clarity, I will repeat what I have and have not decided. I have not decided that any or all of Mr. Keating's conduct does or does not amount to sexual harassment – that determination may have to await further proceedings in this matter. What I have decided – and to put the matter somewhat colloquially – perhaps all that I have decided is that the union's case (again, based on its pleadings) is not so weak as would cause me to dismiss it at this stage.

The no prima facie case motion brought on behalf of Mr. Keating is hereby dismissed.

Does the Grievance Settlement Board have the jurisdiction to grant the remedies sought by the union?

For the purposes of clarity, it will be useful to be precise about the parameters of the issue joined between the parties under this heading.

As already noted, counsel for Mr. Keating did not participate actively in this aspect of the case, preferring to focus his attention on the other two issues before me. And while the employer took a clear position that the union's principal remedial goal – i.e. the termination of Mr. Keating's employment with the Ministry – is beyond the jurisdiction of this Board, that objection did not apply equally, or at all, to the union's alternative proposals for remedy.

In its alternative position, the union submitted that Mr. Keating be removed from his OM16 position at the Windsor Jail and be placed in another position devoid of supervisory powers over any employee. And in its final alternative, the union seeks to have Mr. Keating removed from his position at the Windsor Jail and placed in another institution.

For its part, the employer acknowledged that, in appropriate circumstances, this Board has the authority to direct that a managerial employee be transferred and/or be precluded, by order of this Board, from exercising supervisory functions in relation to particular employees. Indeed, the employer pointed to and endorsed the response of this Board in Anderson, 3842/92 (Stewart) – where the Board directed that a supervisor who had engaged in sexual harassment be removed from his supervisory position in the particular work environment – as a "proper exercise of this Board's jurisdiction".

While there may not be a complete identity as between the alternative remedies sought by the union and the acknowledgements of the employer as to this Board's remedial authority, I am satisfied that any differences between the parties may simply be semantic but, in any event, do not amount to jurisdictional issues.

Thus, I am satisfied that there is no issue or, at a minimum, no real jurisdictional dispute between the parties as to this Board's authority to grant the alternative remedies sought by the union.

There is, of course, a clear jurisdictional issue which has been joined between the (collective bargaining) parties. To the extent that the union's primary remedy seeks to have Mr. Keating removed from his employment with the Ministry, the employer asserts that such a remedial response is beyond this Board's jurisdictional capacity. To put it perhaps more directly, the employer contends that this Board does not have the authority to direct the discipline or discharge of managerial employees.

The issue raised in this case is not novel, although the employer asserts that there has been a sufficiently significant change to the legal and legislative context to warrant a fresh evaluation of the Board's jurisprudence.

Undoubtedly the fulcrum which positions the discussion of this issue is found in this Board's decision in Howe/Dalton/Loach, 3155/92 et al (Dissanayake), a decision which therefore merits close attention.

In that case, the parties asked the Board to determine, in a preliminary fashion, the following question:

Does the Grievance Settlement Board have jurisdiction to direct the employer to take any specific disciplinary action against a member of management, as a remedy in a sexual harassment/discrimination case?

The employer in that case (as it does now before me) argued that under the terms of the Public Service Act, the authority to discipline public servants lies with the Deputy Minister or his designate not with this Board. Reliance was also placed on the fact that exclusive managerial functions were, under (since revoked) terms of the Crown Employees Collective Bargaining Act, equally beyond the jurisdiction of this Board. The discharge of a managerial employee must be viewed as "punitive" simply by virtue of the impact it would have on the person being discharged – and while its legitimate inquiries may lead to a review of discipline imposed by the employer in various contexts, the Board does not have the authority to initiate the punishment of managerial (or other) employees. Finally, the spectre of "double jeopardy" was invoked – in that case (as in the one before me), some discipline (short of discharge) had already been imposed by the employer. To have this Board now impose further and more severe discipline would be to unfairly subject the affected manager to double jeopardy.

The union's position in the Howe/Dalton/Loach case was relatively simple. It relied on the well-established proposition that the existence of a right implies, indeed, requires the availability of a remedy for its vindication. In that regard, the Board was referred to the Divisional Court's affirmation of that proposition in the specific context of this Board's remedial arsenal (OPSEU and Carol Berry v. Ontario (Ministry of Community and Social Services) (1986), 15 O.A.C. 15). Simply put, this Board must have the remedial latitude necessary to repair a violation of the collective agreement in order to fulfil its mandate.

In assessing the competing positions put before it, the Board reformulated the question in the following fashion:

…whether the employees' right to grieve and the statutory mandate of this Board to decide all grievances finally and efficiently must yield to the reservation of the management functions to the employer or the corresponding restriction on the Board's jurisdiction?

Forging a novel and interesting linkage between jurisdiction and remedy, the Board offered the following (at page 20):

... in our view, whether a particular remedial order is absolutely necessary to finally and effectively remedy a grievance is directly linked to the question of whether the Board has jurisdiction to grant that order. If the grievor can be redressed without such an order, the granting of such an order will not be "necessarily incidental" to the employees' right to grieve and the Board's statutory duty to finally decide grievances, as contemplated by the courts. It would rather be an incursion by the Board into the prohibited zone of management rights. Similarly, if such an order is not absolutely necessary to remedy the grievance, it takes the flavour of punitive action as opposed to remedial action. In other words, it is the necessity of a particular order to remedy a grievance, which makes it a remedial order within the Board's powers rather than an unauthorized exercise of management functions or punitive action.

The Board then summarized its conclusion as follows (at page 22):

... if based on all of the evidence the Board concludes that it is absolutely necessary to direct the employer to take specific disciplinary action against a member of management, in order to remedy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the Board's jurisdiction. The fact that such an order may have the incidental result of penalizing the member of management, and of encroaching into areas reserved to the employer as exclusive management rights, does not mean that the Board must decline to exercise its authority to remedy a violation of the collective agreement found to exist.

The other side of the coin is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a punitive direction which will be beyond the jurisdiction of the Board.

The arguments and positions placed before the Board in the Howe/Dalton/Loach case were renewed and augmented before me.

The union reminded us that at least since the decision in Courtenay 912/88 (Wilson), this Board has consistently affirmed its jurisdiction, in the appropriate case and circumstances, to direct the type of remedy here advocated (in addition to the Courtney, Anderson and Howe/Dalton/Loach cases, supra, see also Smith/McKinnon 545/94 et al. (Finley) and Naumenko 613/94 (Mikus)) And, of course, we were also reminded of the oft-cited decision of this Board in Blake 1276/87 (Shime), a case which has promoted adjudicative consistency at this Board by imbuing its decisions with significant precedential value, not to be trifled with but for exceptional circumstances. And finally, following the decision in the Howe/Dalton/Loach case some arbitral authority has now emerged in the private sector to support the union's position regarding the availability of the remedy sought (see Re Tenaquip Ltd. and Teamsters Canada, Local 419 (2002), 2002 CanLII 79054 (ON LA), 112 L.A. C. (4th) 60 (E. Newman) and National Steel Car Ltd. v. United Steelworkers of America, Local 7135, [1988] O.L.A.A. No. 446 (Brunner)).

The employer began by acknowledging this Board's infrequent though consistent affirmation of its remedial authority. It was quick to point out, however, that despite these pronouncements, the power to discharge a managerial employee in a case of sexual harassment is one which this Board has never actually exercised.

Among the arguments relied on by the employer are the following.

Where the Grievance Settlement Board is asked to exercise the jurisdiction to dismiss a managerial employee, the necessary granting of independent third party status to the potentially affected manager hinders the process of adjudication which is one designed to determine the rights of the collective bargaining parties not those of managers. Any difficulties the union or individual grievors may have with the conduct of individual managers should be dealt with in the usual fashion: the union must raise the issue with the employer who, in turn, must exercise its management functions and prerogatives. The union should not be permitted to seek the intervention of this Board to initiate disciplinary proceedings against managers.

The employer also pointed to what might be described as issues of procedural fairness from the perspective of the affected manager. Related to this concern is the relatively recent legislative change concerning the composition of this Board. Prior to amendments in 1993, the Chair and Vice-Chairs of this Board were simply appointed by the Lieutenant Governor in Council. And while that continues to be the case, the statutory process now envisioned by section 47 of the Crown Employees Collective Bargaining Act contemplates (though does not absolutely require) the agreement of the employer and all participating trade unions in the selection of the Chair and Vice-Chairs of this Board. It is suggested that this is now a process which more closely mirrors that routinely followed in labour arbitration outside the public service. The process is one designed for and "owned" by the institutional collective bargaining parties – it is not one which has been established to govern or protect the rights of affected managers. There is, however, such a process in place. Whether at common law or under the terms of the Public Service Act (and the regulations thereunder), a managerial employee facing discharge has access to an adjudicative process designed to safeguard his rights. To have those rights determined instead by this Board, even with the full participation rights which must be afforded to the affected manager, is to deprive him of his statutory and common law protections.

It is perhaps a variation on this concern which gives rise to the spectre of double jeopardy raised by the employer. The principal point, however, (and this speaks to the essence of the employer's concern) is that the discipline and discharge of managerial employees is, not only by virtue of established labour relations conventions, but by the specific application of section 22 of the Public Service Act, a function reserved to the Deputy Minister. The legislation does not contemplate that bargaining unit employees, trade unions or this Board have any specific role to play in the initiation of that function. Should this Board permit that to occur, it is not difficult to envision unfortunate scenarios which may approach or cross the border of procedural fairness.

For example, in a case where the employer and a manager have already agreed and implemented a disciplinary penalty – the manager ought not to be required to face potential double jeopardy in circumstances where a bargaining unit employee and their union are of the view that the discipline imposed was insufficient. Other undesirable scenarios also readily emerge and need not be restricted to managerial employees. Where a bargaining unit employee, their union and the employer agree on the imposition of a disciplinary penalty, ought another employee, perhaps in a different bargaining unit, be permitted, through access to this Board, to seek to increase the settled sanction or replace it with dismissal?

Finally, the employer also buttressed its argument by referring to the decision of the Supreme Court of Canada in Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 and other cases which have followed in its wake (see Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; London Life Insurance Co. v. Dubreuil Bros. Employees Association (2000), 2000 CanLII 5757 (ON CA), 49 O.R. (3d) 766 (Ont. C.A.).

Essentially, in its effort to summarize the law as it has evolved from the Weber case, the employer advocates an "exclusive jurisdiction model" to support its view that any exclusive jurisdiction with respect to the discipline or dismissal of managerial employees must be respected and cannot be seen to reside in this Board.

The first question I must decide is whether the kind of exceptional circumstances contemplated (but not specifically defined) in the Blake decision exist so as to warrant a fresh look at the Board's jurisprudence.

It is not clear to me that any "exceptional circumstances" exist which warrant a reassessment of the Board's jurisprudence. I note first of all that the Board in the Blake case specifically rejected the "manifest error" theory as too lax a standard to warrant interfering with settled Board jurisprudence. In that context and while the Board declined to specifically enumerate the ingredients of "exceptional circumstances", it clearly placed the onus on the party seeking review to establish those exceptional circumstances. One can only conclude that circumstances which truly, clearly and unambiguously merit the description of exceptional are the type contemplated by the Board.

What then does the employer identify as amounting to the exceptional circumstances required for this Board to revisit its prior rulings? We were pointed to certain changes in both the legislative and legal context since the Board's decision in the Howe/Dalton/Loach case.

On the legislative front, the employer points to changes in the composition and, more specifically, the method of appointment of adjudicators at this Board. I am not satisfied that this legislative change is one which either requires or warrants this Board to re-evaluate its prior rulings on the question before me. (Indeed, the Board might have been inclined to take official notice that this aspect of the legislative change may amount, to some extent, to little more than a codification of past practice. In any event, as far as OIC appointments of Vice-Chairs are concerned, even the predecessor legislation required the Lieutenant Governor in Council to solicit and consider the views of each bargaining agent while retaining the ultimate authority to appoint, an authority which continues to be reserved to the Lieutenant Governor in Council under the current scheme.)

It is difficult to see how this relatively marginal legislative change is one that gives rise to the opportunity or necessity for this Board to reassess its jurisprudence on the point before me.

Even more significant, however, when one assesses the profile of this Board both before and after the 1993 amendments, a similar result obtains. Indeed, when one considers some of the specific reflections of this Board in the Blake case – obviously written prior to the legislative change upon which the employer now relies – it is difficult to see how these observations (at page 8 of the decision) are any less applicable today:

But the Grievance Settlement Board is one entity – it is not a series of separately constituted boards of arbitration. Under Section 20 (1) of The Crown Employees Collective Bargaining Act there is "a Grievance Settlement Board" – that is, one Board [see now Section 7(3) which requires arbitration of differences by the Grievance Settlement Board and section 46 under which the Grievance Settlement Board described in the Blake decision is "continued"]. Under Section 20 (4) the Grievance Settlement Board may sit in two [or more] panels and under Section 20 (6) a decision of the majority of a panel is "the decision" of the Grievance Settlement Board [see now sections 49 and 50 which, despite certain procedural innovations, make it clear that resulting decisions continue to be decisions of the "Board" and not those of ad hoc arbitrators].

Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages the multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the caseload.

I am not persuaded that the legislative changes referred to by the employer support the conclusion consequently urged.

The legal developments pointed to are the decision of the Supreme Court in Weber and the resulting jurisprudence which has examined the sometimes competing roles of the Courts and administrative tribunals and, indeed, the question of competing, overlapping or exclusive jurisdiction as between various administrative tribunals.

For reasons upon which I shall elaborate only very briefly below, I am not persuaded that the wave of jurisprudence and interest which has clearly been the legacy of the Weber decision constitutes the "exceptional circumstances" which would require or warrant this Board to reassess its prior decisions.

Thus, in view of the well-established principles of institutional identity and consistency which underlie this Board's long applied practice set out in Blake, I am not persuaded that the Board ought to reconsider or depart from its prior decisions on the issue now before me.

I am satisfied that, in the appropriate case and where it is absolutely necessary to effect a meaningful remedy, this Board's authority includes directing the employer to terminate the employment of a manager who has engaged in sexual harassment. It is not necessary to elaborate or otherwise articulate with any precision what circumstances would amount to the "appropriate case" for the exercise of this jurisdiction. The question before me now is whether this Board possesses that remedial jurisdiction in the appropriate case. I am satisfied that it does.

Notwithstanding this conclusion and largely out of deference to counsel who made elaborate and thoughtful presentations which merit some comment, I am prepared to reflect briefly on and amplify the reasoning in the Howe/Dalton/Loach case with a view to indicating why, even if the Board were to now reassess its decision on the issue, the result might well be no different. I offer this skeletal view of the reasoning which might apply.

En route to answering the jurisdictional question it is perhaps useful to pose and consider the policy question – it can be formulated, most simply, as follows. To what extent, if at all, should this Board be involved in the discipline and discharge of managerial employees? The simplest answer is: as little as possible. And there is no doubt that, at least empirically, this Board has succeeded in that objective: for while the remedial jurisdiction has been theoretically confirmed, it has yet to be actually exercised.

That empirical reality flows, no doubt to some extent, from the manner in which the Board has chosen to describe the remedial authority it possesses and, in particular, the fashion in which it has linked its jurisdiction to remedial necessity. The Board's jurisdiction is said to exist, not as some free-floating proxy for the normal exercise of managerial functions, but only in the rare cases where its exercise is absolutely necessary to effect an appropriate remedy.

There are, without doubt, a myriad of reasons why this Board's involvement in the discipline or discharge of managerial employees is something to be avoided. The employer's arguments in this case have touched on many if not all – some predicated on the integrity of the arbitration process, some on the legitimate concerns of the employer and others on the fairness to the affected managerial employee.

But if all of those concerns are conceived to constitute some kind of irresistible force, the object which is its target remains immovable.

This Board is charged, both by statute and by the collective agreement, with the task of providing the final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration or alleged violation of the collective agreement.

There is no issue that, under the terms of the collective agreement and statute, the employer is obliged to insure that the workplace is free from sexual harassment. Where this obligation has been breached and where it can be established that the removal or termination of the perpetrator(s) of the sexual harassment is absolutely necessary in order to effect a remedy and to vindicate, preserve and insure the collective agreement right, it might well be suggested that a failure by this Board to effect that remedy would amount to reviewable jurisdictional error.

Indeed, while many of the doomsday scenarios posited by the employer (some of which were reviewed earlier in this decision) undoubtedly cause potential concern, casting the issue in the manner of the preceding paragraph perhaps gives rise to competing disquieting scenarios: e.g. ought the employer, by virtue of the expedient of imposing insufficient discipline on a managerial employee who has engaged in sexual harassment, be permitted to thereby preclude the union from vindicating collective agreement rights because the discipline of managers is not/should not be the subject of Grievance Settlement Board proceedings?

From a policy perspective there is no lack of concerns which militate against the involvement of this Board in the discipline of managerial employees. However, it is important to recall that such involvement is not the primary function of this Board in any circumstance. And while the reasoning it has adopted may at times be reminiscent of pre-Charter constitutional analysis, this Board's involvement in such discipline is not the pith and substance of the Board's functioning even in a case where managers may have engaged in sexual harassment. It is, rather, an incidental (and to date, theoretical) result of the Board effecting the remedies which are integral to its chief and fundamental purpose of resolving differences under the collective agreement.

And while the Board's potential exercise of this remedial jurisdiction no doubt remains somewhat troubling and problematic, the parties should be comforted by the Board's institutionalized restraint. The manner in which the Board has conceived of its jurisdiction has insured that the floodgates have actually remained securely closed only to be potentially opened ever so slightly in the rare and exceptional case where remedial integrity so necessitates.

Finally, to return from the context of normative policy closer to the perspective of legal jurisdictional issues, neither is it clear that the Weber decision and its progeny relied upon by the employer necessitate a different result.

In the London Life case the matter at hand and the consequent involvement of the third party insurer was found simply to not emerge from the collective agreement. And in the Regina Police case there was a clearer (though perhaps still somewhat ambiguous) dividing line between the jurisdiction of the two administrative tribunals in question.

In the case before me one can accept that, presumptively, questions relating to the discipline or discharge of a managerial employee are properly within the realm of the statutory tribunal or court charged with such issues and not before this Board. Equally clear, however, is that this Board is charged with resolving differences between the collective bargaining parties. Where such a resolution requires and can only be achieved through the removal of that managerial employee from his employment, that is a result this Board may be required to effect even if it incidentally trenches on areas presumptively within the jurisdiction of other bodies.

In other words, even otherwise accepting the exclusive jurisdiction model advocated by the employer, one cannot employ it to simply ignore this Board's exclusive jurisdiction to resolve all differences which arise under the collective agreement.

These reasons suggest that, even if it were to effectively reconsider its ruling in Howe/Dalton/Loach, the Board's ultimate conclusion might well remain unchanged.

Having regard to all of the foregoing, I am satisfied that all of the remedies sought by the union in this case are potentially within the jurisdictional arsenal of this Board.

Are or might the remedies sought be appropriate?

In answering the final question before me and for the reasons already discussed, I shall return to the more economical style used earlier in this decision.

Having considered the facts asserted and the submissions of the parties, I am not persuaded that the principal remedy sought by the union, i.e. that the employer be ordered to remove Mr. Keating from his employment with the Ministry, is absolutely necessary in order to effect an appropriate remedy. On the other hand, I am satisfied that the facts asserted by the union, if established, and of course subject to other evidence which might be part of the proceedings, are such that the alternative remedies sought by the union – i.e. that Mr. Keating be removed from his position as an OM16 at the Windsor Jail and be placed in another position devoid of supervisory powers over any employee or that he be reassigned to another institution – are remedies which might be appropriate in the circumstances of this case.

Summary

The answers to the questions put before me are as follows:

1. Do the facts asserted by the union fail to disclose a prima facie case to establish that (at least some of) Mr. Keating's conduct constitutes sexual harassment?

-No.

2. If not, does this Board possess the jurisdiction to provide the remedial response urged by the union?

-Yes.

3. If so, are or might (all or some of) the remedies sought by the union be appropriate?

a. With respect to the primary remedy – No.

b. With respect to the alternative remedies – They might be.

Dated at Toronto this 9th day of August 2004.