GSB# 2003-0187

UNION# 2003-0154-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Waraich)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

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

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

November 22, 2004.

Decision

At the hearing of November 22, 2004, counsel for the Employer asked for the issuance of an order to prohibit the Union from leading evidence related in any way to events predating a Memorandum of Settlement agreed to by the parties on June 7, 2002. This preliminary motion relating to the admissibility of evidence was opposed by the Union. The parties presented their arguments with respect to the motion and asked that I provide a ruling on same prior to the commencement of a hearing on the merits of the dispute.

This proceeding was initiated by a grievance dated March 25, 2003 filed by Mr. Terry Waraich, an Occupational Health and Safety Officer II working for the Ministry of Labour in Windsor, Ontario. The grievance reads, in part:

"STATEMENT OF GRIEVANCE

I grieve that the management of the Ministry of Labour has and continues to violate the collective agreement. Reference to Article 3 - Discrimination - Health and Safety - Ontario Human Rights Code - Ministry of Labour Statement of Principles and Policies – Differential treatment and by creating a poisoned work environment, but not limited to the above.

SETTLEMENT DESIRED

Full redress. Cease and desist the above practices. To be compensated for the above violations and appropriate monies for the above violations due to duress.

(Exhibit #1)

The grievor filed two (2) earlier grievances dated April 17, 2001 and October 11, 2001. They were filed in this proceeding as exhibits #2 and #3, respectively. The grievances read, in part:

"STATEMENT OF GRIEVANCE

Employer contravened article 3 - no discrimination of collective agreements.

SETTLEMENT DESIRED

Full redressal of the grievance including

(i) A written apology from the Acting District Manager and

(ii) Sensitivity Training for the Acting District Manager. "

(Exhibit #2)

-and-

"STATEMENT OF GRIEVANCE

I was denied travel expenses to have a medical form filled out from my doctor in London, Ontario after being directed to do so by the District Manager.

SETTLEMENT DESIRED

That I be fully compensated for time and travel expenses."

(Exhibit #3)

A hearing was scheduled in Windsor, Ontario on June 7, 2002 before this Vice-Chair relating to the grievances of April 17, 2001 and October 11, 2001. At the hearing, the parties were able to negotiate a settlement. The material part of the Memorandum of Settlement dated June 7, 2002 reads:

"In respect of grievances dated April 17/01 (GSB#375/01) and October 11/01 (GSB#1566/01), the parties hereby agree to the following as full and final settlement of the above captioned grievances, without precedent or prejudice, as follows:

1. With respect to the independent medical examination, it is agreed that the Employer will provide three (3) names of medical practitioners to the grievor. The grievor will respond with his choice of the medical practitioner within ten (10) calendar days of being provided with the list. The Employer will then advise the grievor of the date of the examination and will provide the questions to the examining medical practitioner. The Employer will provide the questions to the grievor ten (10) calendar days in advance of the scheduled appointment. The Employer will reimburse any mileage costs or will provide the use of a Government vehicle to attend the examination and will ensure that the grievor receives full wages for the day in question. It is understood that the grievor will sign a waiver authorizing the release of information regarding accommodation requirements or a prognois (sic.) to the Employer.

2. The Employer agrees to pay the grievor one hundred and fifty dollars ($150.00) to resolve the grievance dated October 11/01 (GSB#1566/01).

3. A letter is to be provided to the Grievor from the manager. (See Attached)

4. The Grievor and OPSEU agree to withdraw these grievances. Dated this 7th day of June, 2002. "

(Exhibit #4)

The letter referenced in paragraph #3 of the Memorandum of Settlement, reads:

"June 7, 2002

T. Waraich

Windsor District Office

Windsor, Ontario

Dear Terry:

I regret that you feel that you were discriminated against.

As District Manager in Windsor, I will continue to endeavour to ensure there is no practice of discrimination in the Windsor District Office.

Yours truly,

Judith Cragg

District Manager-Windsor"

Another hearing was scheduled in Windsor, Ontario before this Vice-Chair on February 26, 2004. At that time, the parties by way of a Memorandum of Settlement resolved a further grievance filed by the grievor on June 24, 2003. They also expressly provided in the settlement that "the grievance dated March 25, 2003 still remains and is not resolved by this settlement".

Counsel for the Employer observed that the grievances of April 17, 2001 (Exhibit #2) and March 25, 2003 (Exhibit #1) both allege discrimination on the part of the Employer. From his perspective, the Union is attempting to use evidence relating to the earlier grievance to support the current grievance. Counsel suggested that this intent is apparent from a reading of the particulars supplied by the Union. More specifically, he argued that the Union wishes to rely on events which predate the Memorandum of Settlement of June 7, 2002 in order to establish that Ms. Judith Cragg, the District Manager, discriminated against the grievor. It was his submission, simply put, that the Union should not be permitted to do so for the reasons set out below.

Counsel for the Employer emphasized that the Memorandum of Settlement of June 7, 2002 expressly states that the terms contained therein constitute "full and final settlement of the above captioned grievances" and that the grievor and the Union agreed to withdraw same. On his analysis, the Union in the instant case may ask me to make adverse findings against Ms. Cragg in respect of events which led to the grievance of April 17, 2001. As noted above, that grievance alleged discrimination on the part of the Employer and sought remedies against Ms. Cragg. It was the thrust of counsel's submission that evidence underlying a grievance which has been settled should not be admitted in support of a later grievance. He argued, in substance, that it is improper for the Union to use the events which gave rise to the April, 2001 grievance, which was subsequently settled, to support the current grievance of March 25, 2003. Counsel asserted that a prohibition against such usage should apply regardless of whether the settled grievance was the grievance of the grievor or some other employee. I was referred to the following authorities: Re Hotel-Dieu Grace Hospital and Ontario Nurses' Association (1997), 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (Picher); OPSEU (Dale et al.) and Ministry of Health and Long-Term Care, GSB No. 0783/00, 1314/00, 0883/01 (Abramsky).

In Re Hotel-Dieu Grace Hospital, the Board of Arbitration addressed a number of preliminary objections raised by the Employer as to the permissible scope of evidence. In that instance, the Union sought to introduce evidence of events, which occurred in the six (6) year period prior to the filing of the grievance, for purposes of establishing a pattern of racial discrimination in the Hospital over a substantial number of years. The Union also wished to adduce evidence relating to another nurse, Ms. Pat Prima, whose grievance and human rights complaint alleging discrimination were settled. The Employer opposed both of the Union's requests. The Board observed that in a case like the one before it, it was important "to strike a fair balance between the concerns of both parties". It ultimately determined that evidence be limited to a period commencing three (3) years prior to the date the grievance was filed. Additionally, the Board decided against hearing any evidence concerning the complaints of Ms. Prima. The award reads as follows on this latter point:

"We have similar concerns with respect to allowing evidence to be adduced with respect to the treatment of nurse Prima, to the extent that her human rights complaint was fully settled on a without prejudice basis. We must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement".

(pages 166-167)

-and-

"Further, we do not consider it appropriate to admit evidence concerning the events which gave rise to the complaint of nurse Prima, to the extent that that matter, including a companion grievance filed by the Union, was resolved on a without prejudice basis. "

(page 167)

Counsel for the Employer asked that I adopt a similar approach to the evidence surrounding the grievances of April 17, 2001 and October 11, 2001 which, as noted previously, were resolved by a Memorandum of Settlement dated June 7, 2002.

In Dale et al., the Grievance Settlement Board addressed a total of six (6) grievances, one (1) dated July 3, 1998, another dated November 2, 2000 and four (4) other grievances filed in 2001. The issue before the Board related to the admissibility of evidence concerning seventeen (17) other grievances filed in 1996 which the parties later settled in March, 1999. The Union sought to rely on the facts and circumstances underlying these earlier grievances to support its allegation that the actions taken by the Employer in the cases before the Board were based on anti-union animus. The Employer objected to the introduction of such evidence on the basis that the matters had been fully and finally settled by the parties. The preamble to the Minutes of Settlement stated that it was in "full and final settlement of all matters in dispute without prejudice or precedent, and without any admission of liability or culpability of any of the parties....." Paragraph #5 of the Minutes of Settlement provided, as follows:

"All parties to these Minutes of Settlement agree that all matters in dispute between them raised in the grievances have been resolved and no further actions respecting these matters will be taken under the common law, the collective agreement, statute or otherwise".

The Union in Dale et al., as here, argued that it was not attempting to relitigate the earlier grievances which were settled and also stressed that it was not seeking a remedy in relation to those grievances. Instead, it was attempting to lead evidence of the Employer's past actions to establish a continuity of conduct indicative of anti-union animus. The Union in Dale et al. relied on the jurisprudence of the Ontario Labour Relations Board relating to unfair labour practice proceedings. The relevant jurisprudence indicates that although no remedy may be sought for unfair labour practice matters that have been settled or withdrawn, evidence about them is admissible for the limited purpose of establishing a pattern of unlawful activity: see Craftline Industries Limited, (1977) OLRB Rep. April 246; Comstock Funeral Home Ltd., (1981) OLRB Rep. Dec. 1755.

Vice-Chair R.H. Abramsky in Dale et al. observed that the Grievance Settlement Board "has long recognized the critical importance of settlements and their enforcement" (page 8). She referenced the following comments found at pages 8-9 in Landry-King, GSB No. 1593/84 (Knopf) as to the effect to be given to final settlements reached between the parties:

"The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the Settlement".

Vice-Chair Abramsky then continued, as follows:

"Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. As the Board held in OPSEU (Pitirri) and Ministry of Correctional Services, supra at p.12:

'With respect to those (grievances) covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances that have been resolved by their terms will not reappear in some different guise'…."

(page 8)

Vice-Chair Abramsky noted that the jurisprudence of the Ontario Labour Relations Board, referred to above, does permit evidence concerning settled or withdrawn complaints to be admitted for the limited purpose of establishing a pattern of unlawful activity. She found, however, that the jurisprudence was inapplicable to the grievances before her for the following reasons:

(i) At the time the 1996 grievances were settled in March of 1999, the grievance of July 3, 1998 had already been filed. The latter grievance was not a fresh complaint arising after the settlement or a subsequent development. Rather, at the time of the settlement, it was an existing and ongoing grievance. In her judgment, the underlying premise of the jurisprudence of the Ontario Labour Relations Board did not apply when the conduct complained of existed at the time of the settlement;

(ii) Vice-Chair Abramsky gave a broad interpretation to paragraph #5 of the Minutes of Settlement. She concluded that the language contained therein precluded the Union from relying on the matters which led to the settled grievances to support the 1998 grievance. In this regard, she considered it material that the latter grievance had been filed prior to the 1999 settlement. The award reads as follows on this point:

"By consenting to a 'full and final' settlement and agreeing that 'no further actions respecting these matters will be taken…', the Union cannot now rely on those settled matters to support a grievance that existed at the time these matters were settled. There is no evidence that anything was said to the employer to the effect that, despite the settlement, the facts underlying the settled grievances would be used to establish anti-union animus in relation to the 1998 grievance. Indeed, it would be tantamount to bad faith to settle a matter but plan to rely on the facts which underlie it to support an existing grievance."

(page 11)

iii) Vice-Chair Abramsky similarly determined that the settled 1996 grievances could not be used by the Union to support the November 2000 and 2001 grievances even though they arose after the settlement and would, therefore, arguably be captured by the rationale of the Ontario Labour Relations Board jurisprudence. This determination was premised, primarily, on the fact that there was a passage of a substantial period of time between the conduct which led to the 1996 grievances and the filing of the 2000 and 2001 grievances.

Vice-Chair Abramsky next considered the Re Hotel-Dieu Grace Hospital award referenced above. It is clear that she accepted the balancing of interests approach articulated in that case. She concluded as follows after applying this approach to the facts before her:

"The events of 1996 occurred more than four years before the November 2000 grievance before me and the probative value of that evidence, given the passage of so many years, is relatively limited.

On the other hand, the prospect of opening this hearing to the 17 matters which arose in 1996 and were settled in 1999, after a lengthy hearing on those same issues, gives this Board "serious pause, both from an equitable and a procedural standpoint." Procedurally, it would very significantly lengthen the hearing. From an equitable standpoint, requiring the Employer, who believed that these 17 matters were fully and finally settled as of March 1999, to re-defend these matters at this late date would be inequitable and prejudicial. Considering the competing interests involved, the balance of interests favours not admitting the evidence concerning the 1996 settled grievances.

I also note that the Board in Hotel-Dieu Grace Hospital found it inappropriate to admit evidence concerning the events which gave rise to the complaint of another employee, "to the extent that that matter, including a companion grievance filed by the Union, was resolved on a without prejudice basis." (p.3). The Board stated that "(w)e must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement." (p.2) Although the settled matters in this case concern the grievors rather than another employee, the same concerns are present in this case."

(page 15)

It is material, in my judgment, that Vice-Chair Abramsky shared the concern expressed in Re Hotel-Dieu Grace Hospital that acceptance of the Union's position could involve her in making adverse findings against the Employer in respect of an issue or issues that had been previously settled. I note that she had such concern even though, unlike the situation in Re Hotel-Dieu Grace Hospital, the settled matters involved the grievors rather than some other employee.

Counsel for the Union asserted that the grievor experienced discriminatory and differential treatment, primarily linked to an accommodation he required for a medical condition, from the outset of Ms. Cragg's appointment as District Manager in September, 2000. He further asserted that this treatment continued until Ms. Cragg left the position in August, 2003. It was counsel's submission that the evidence of events over this entire period is relevant, as such evidence will disclose a pattern of discrimination against the grievor. He also argued that it would be unfair to limit the Union's right to present evidence about the entire period in issue as many, if not most, of the events complained of were connected to the grievor's on-going need to be accommodated. Counsel suggested that given this causal link, it would be counter productive to establish an artificial cut-off date vis-à-vis the admissibility of evidence. From his perspective, the Employer would not be prejudiced by an order permitting the Union to adduce evidence about its treatment of the grievor between 2000 and 2003.

Counsel for the Union submitted that the Memorandum of Settlement of June 7, 2002 was breached by the Employer in two (2) respects. First, the Employer, and Ms. Cragg specifically, violated the settlement in the manner in which she communicated with, and the information she forwarded to, the doctor selected for the independent medical exam. Second, that while Ms. Cragg undertook in the attached letter "to endeavour to ensure there is no practice of discrimination in the Windsor District Office", the pattern of discrimination against the grievor by the District Manager continued. Counsel argued that these violations of the Memorandum of Settlement serve to distinguish this case from the facts existing in the awards relied on by the Employer. Ultimately, he submitted that these violations entitled the Union to go behind the settlement and to examine the facts and circumstances which led to the filing of the grievances of April 17, 2001 and October 11, 2001. Counsel noted that the Union was not seeking a remedy for the events prior to June 7, 2002. Rather, it sought relief for events occurring after that date. He observed, however, that evidence of what occurred prior to June 7, 2002 would provide a context to better understand what occurred after.

The Union relies on the awards in OPSEU (Mirosolin) and Ministry of the Attorney General, GSB No. 2054/90 (Verity) and OPSEU (Akbar Maghsoudi) and Ministry of Transportation, GSB No. 0988/97 (Leighton).

In Mirosolin, the grievance dated August 3, 1990 claimed discrimination from alleged differential treatment on the basis of race contrary to Article A of the collective agreement. Article A was then a new contractual provision which came into effect on June 15, 1990. The parties agreed that the Board's jurisdiction under Article A was limited to the period June 15, 1990 to the date of filing of the grievance on August 3, 1990. They disagreed, however, on the scope of the evidence the panel should hear. The Employer sought to limit the introduction of evidence to the period between June 15th and August 3, 1990 given there was no jurisdiction to grant a remedy for events outside that period. In contrast, the Union sought to introduce three (3) categories of evidence going back as far as 1986. The Union acknowledged that no remedy was being claimed prior to June 15, 1990. Its counsel contended that the panel should hear the background evidence in light of the lengthy history of friction, complaints, alleged management inaction and harassment in order to properly understand the events being grieved.

The Board in Mirosolin ruled that the Employer's preliminary objection was without merit. It relied on section 20(8) of the Crown Employees Collective Bargaining Act (now section 48(1)) which provided the Grievance Settlement Board with the statutory authority to determine its own practice and procedure by giving "full opportunity to the parties....to present their evidence and to make their submissions". The Board determined that it had a wide latitude to hear evidence and to thereafter assess the weight, if any, to be accorded to such evidence. The Board adopted the approach reflected in the following excerpt from the award in OPSEU (A. Taylor-Baptist) and Ministry of Correctional Services, GSB No. 163/87 (Kennedy):

"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. If we were to accept Mr. Benedict’s objection that evidence be limited to events occurring no earlier than 20 days prior to the grievance, we would in substance exclude the greater proportion of evidence that is heard in numerous cases by this board on a day-to-day basis."

(pages 4-5)

In Akbar Maghsoudi, the grievor's position as a Senior Research Technician 5 was declared surplus on July 2, 1997. The grievor filed a grievance on the following day in which he alleged that the decision to declare him surplus was a violation of articles 3 and 20 of the collective agreement, as it constituted discrimination on the basis of race and Union activity. It was the Union's position that the surplus notice was a culminating incident in a pattern of discrimination against the grievor that began in 1979. The Union conceded that it was not seeking remedies back to 1979.

The Employer raised a preliminary motion to dismiss the grievance on three (3) grounds. First, the grievance was untimely. Second, the doctrine of estoppel barred the hearing of the grievance and, lastly, the Board had no jurisdiction to review the enforceability of an alleged promise of a promotion to a new position. Counsel for the Employer in Akbar Maghsoudi argued that the grievor should not be permitted to grieve about events in three (3) time periods subsequent to 1979. These were as follows:

i) events between 1979 and 1988 which had been the subject matter of a complaint to the Ontario Public Service Labour Relations Tribunal. The complaints against the Employer and the Union were dismissed by the Tribunal in 1988 because of the delay in bringing them;

ii) events between 1989 and 1993 relating to seventeen (17) allegations which were investigated under the Workplace Discrimination and Harassment Policy. While two (2) of the allegations were substantiated, the investigator found no evidence of discrimination; and

iii) events between 1993 and 1995 relating to an alleged promise by senior management to put the grievor into a higher position.

In substance, it was the Employer's position that the grievor was out of time to grieve the events related to all of the above periods.

Vice-Chair D.J.D. Leighton found that the grievance of July 3, 1997 was timely. She determined that the evidence in respect of the period 1979 to 1988 was admissible to prove the alleged pattern of discrimination. She further determined that the evidence in respect of the period 1989 to 1993, relating to the matters investigated under the Workplace Discrimination and Harassment Policy, was similarly admissible as no remedy was being sought for any discrimination during that period. The Vice-Chair permitted the Union to advance the evidence to, again, show the alleged pattern of discrimination. Ultimately, the Union was not restricted to post 1995 evidence.

In reply, counsel for the Employer denied that the Memorandum of Settlement had been breached. He suggested that even if it had been contravened, the proper course for the Union was to file a timely grievance alleging breach of the terms of settlement. Counsel also disputed the Union's suggestion that June 7, 2002 was an arbitrary date for purposes of limiting the evidence. From his perspective, that date was simply a consequence flowing from the Memorandum of Settlement. He argued that the Union could have reserved a right in the settlement to rely on earlier events. Lastly, counsel submitted that the awards relied on by the Union are distinguishable from the present dispute, as neither involved an attempt to lead evidence about grievances that had been settled.

I accept that in cases where a pattern of discrimination is alleged, some scope may be allowed for the admission of evidence in respect of circumstances and events predating the time limit provisions of the collective agreement. While past events may no longer entitle an employee to file a new grievance or to seek a remedy in respect of same, the examination of such prior events may establish the context for better assessing the circumstances and events surrounding matters which have been grieved in a timely fashion. The awards in Re Hotel-Dieu Grace Hospital and in Dale et al. make it clear that in establishing limits relating to the extent of the evidence, a Board of Arbitration or the Grievance Settlement Board must endeavour to strike a fair balance between the concerns of both parties.

To repeat, the settled grievances were filed on April 17, 2001 and October 11, 2001. Paragraph #13 of the Union's Statement of Particulars states that "a large motivating cause behind the grievances filed in 2001" was Ms. Cragg's refusal to accept the grievor's disability and consequent accommodation, her repeated demands for medical documentation and her continuing efforts to terminate the accommodation. The Memorandum of Settlement which encompassed the above-mentioned grievances was executed by the parties at a hearing of June 7, 2002. The grievance now before this Vice-Chair was subsequently filed on March 25, 2003. As I understand the Union's position, it seeks in this proceeding to present evidence going back to 2000 and, more particularly, to the time at which Ms. Cragg assumed the position of District Manager in September, 2000. In substance, the Union wants to lead evidence in respect of a period of approximately two and a-half (2 1/2) years. In contrast, the Employer wishes to prohibit the introduction of evidence pertaining to events prior to June 7, 2002.

The period in respect of which the Union seeks to lead evidence is less, in terms of length of time, than the periods permitted in Re Hotel-Dieu Grace Hospital; Mirosolin; and Akbar Maghsoudi. Additionally, the Union seeks to adduce evidence underlying only two (2) grievances, rather than seventeen (17), as was the case in Dale et al. As a consequence, it is unlikely that the hearing would be significantly lengthened by a ruling in the Union's favour. Notwithstanding the above, I find that the overriding consideration, in this instance, is the fact that the parties agreed to a full and final settlement of the grievances of April 17, 2001 and October 11, 2001 through the Memorandum of Settlement executed on June 7, 2002. I have no doubt that the parties intended to fully and finally resolve these disputes and to take appropriate steps that would hopefully result in the development of a more productive, and less acrimonious, employer-employee relationship. Unfortunately, the latter did not occur. Nevertheless, I share the concerns expressed in Re Hotel-Dieu Grace Hospital and Dale et al. with respect to the consequences which could potentially follow from a decision in the Union's favour. More specifically, this Vice-Chair could be called upon to make adverse findings against the Employer in respect of its treatment of the grievor when that very issue has been the subject of a mutual settlement. I, too, am most reluctant to proceed down that road, as I believe that it could serve to undermine the parties' confidence in final settlements and their legitimate expectation that settled matters will not reappear in some different guise. I accept the concerns articulated by Vice-Chair Abramsky in Dale et al. on this point. I am likewise disinclined to apply the jurisprudence of the Ontario Labour Relations Board to the circumstances existing in this case.

I recognize that the Memorandum of Settlement dated June 7, 2002 did not contain a provision like paragraph #5 of the Minutes of Settlement in Dale et al. It is clear, from a reading of the latter award, that Vice-Chair Abramsky did not premise her decision in respect of the November 2000 and 2001 grievances solely on the wording of paragraph #5. It would appear that her conclusion on that aspect of the case was also based on the substantial passage of time and on a balancing of the interests in accordance with the approach taken in Re Hotel-Dieu Grace Hospital.

After fully considering the submissions of both parties, I find that the Union should be precluded from presenting evidence about the facts and circumstances underlying the settled grievances of April 17, 2001 and October 11, 2001. I am satisfied that the Union, however, is entitled to lead relevant evidence about events occurring in the period October 11, 2001 to March 25, 2003. I note from a reading of the Union's Statement of Particulars that it does not intend to rely on many events in the period from October 11, 2001 to June 7, 2002 to support the grievance. Indeed, the vast majority of events referenced in the Statement of Particulars occurred after the execution of the Memorandum of Settlement. I further note that the Union asserts that the Employer breached the terms of the settlement. That assertion has not persuaded me to permit the Union to go behind the Memorandum of Settlement and to hear evidence about the circumstances surrounding the settled grievances. The Union is entitled, however, to lead evidence that the settlement was breached and that such breach was part of a long pattern of discrimination, as alleged.

I have attempted, in the circumstances of this case, to balance the interests of the parties. I have accepted the Employer's objection to the extent that I am not prepared to receive evidence about the events and circumstances underlying the settled grievances of April 17, 2001 and October 11, 2001. As mentioned earlier, I have reached that conclusion, in large part, to ensure and promote the sanctity of final settlements. While the Union is prohibited from leading evidence about the above grievances, I am satisfied that it continues to have sufficient opportunity to establish the pattern of discrimination that it alleges occurred in respect of this grievor. If the parties experience any difficulty in preparing their respective cases as a consequence of this interim award, such difficulty can be addressed at, or prior to, the hearing on the merits.

To be clear, this interim award relates exclusively to the extent of evidence which can be led with respect to the grievance of March 25, 2003. The parties will later have the opportunity to make representations as to what remedy, if any, flows from the evidence led during the course of the hearing on the merits of the grievance.

Dated at Toronto, Ontario this 7th day of January, 2005.