GSB# 2005-3601

UNION# OLB001/06

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sin)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Laurie Kent Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

June 2, 2008.

Decision

The grievor Mr. Lawrence Sin unsuccessfully competed in a job posting for the position of Product Consultant. He has grieved that the employer had contravened the collective agreement. The union alleges that the employer had failed to comply with article 31.4 of the collective agreement and that the competition process, specifically the interview phase, was fatally flawed. In addition, the union claims that the grievor was discriminated against on the basis of his ethnicity.

During the examination-in-chief of the grievor, union counsel attempted to adduce testimony related to a job competition process in which the grievor had participated subsequent to the filing of the instant grievance. The employer objected to the admission of this “post-grievance” evidence. This decision determines that dispute.

The instant grievance was filed on January 5, 2006 and related to a job competition held in November 2005. The grievance form on its face makes no reference to discrimination. The allegation of discrimination was first raised during the union’s opening statement in this proceeding. In response to the employer’s request for particulars at that time, the union had relied on certain notations made by interview panel member Mr. Michael Fagan, on the grievor’s interview scoring sheet, as indicative of a bias against the grievor based on his ethnicity.

The “post-grievance” evidence in dispute relates to a subsequent job competition held in 2006 in which Mr. Fagan was again a member of the interview panel, and the grievor was a candidate. The allegation is that during the grievor’s interview, Mr. Fagan made certain statements, which the union characterizes as racial slurs.

Union counsel submitted that the evidence in question should be admitted. She pointed out that the alleged racial slurs in 1006 were made by the very same individual, who the union claims had discriminated against the grievor on the basis of ethnicity during the 2005 job competition. Counsel submitted that Mr. Fagan’s conduct in 2006 is relevant because it demonstrates that he has a bias against a particular ethnic community. The evidence will therefore shed light, and is relevant, as to what occurred during the 2005 job interview, she submitted.

Employer counsel pointed out that it was open to the grievor to grieve the 2006 job competition if he felt that the employer had contravened the collective agreement in the manner he was treated during that job competition. He had chosen not to do so. Counsel submitted that any conduct on the part of Mr. Fagan during the 2006 job competition is irrelevant in determining what occurred during the 2005 job competition. It is a collateral issue and should not be admitted. Counsel suggested that if the proposed evidence is held to be admissible, it would significantly lengthen the hearing, because the employer then would be forced to call evidence about the investigation it conducted about the 2006 racial slurs alleged by the grievor.

The test to be applied in deciding whether or not to admit subsequent event evidence was laid down by the Supreme Court of Canada in Re Compagnie minière Québec Cartier, 1995 CanLII 113 (SCC), [1995] 2 S.C.R. 1095 at para.13 as follows, per L’Heureux-Dubé J:

13. This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented.

The test set out by the court is itself very simple. If subsequent-event evidence (as the court called it) helps to shed light on the issue before the arbitrator, the evidence is admissible. The difficulty is in applying the test to particular circumstances.

One of the issues before me is whether or not Mr. Fagan entertained a bias against the grievor during the 2005 job interview because of the grievor’s ethnicity. Thus, in applying the test in Re Québec Cartier (supra), I must determine whether, evidence that Mr. Fagan made racial slurs based on the grievor’s ethnicity (if established) during the subsequent 2006 job interview, sheds light on that issue before me. I have concluded that it does.

Bias, particularly racial bias, is a state of mind. If the union successfully substantiates that Mr. Fagan entertained a bias against the grievor because of his ethnicity in 2006, it would shed light on, and therefore would be relevant, to the issue before me. That is, whether Mr. Fagan had a similar bias during the previous job interview in 2005.

In Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 (Supreme Court of Canada) a teacher had written two letters to the employer which included disturbing accusations and comments that could be viewed as veiled threats to the lives of several members of management. The Board of Arbitration was called upon to determine, inter alia, whether the employer’s disciplinary sanction of dismissal was too harsh. The Board concluded that the grievor’s conduct was only temporary and not likely to e repeated in the future, and ordered reinstatement subject to conditions.

The Supreme Court of Canada, per Cory J., noted that while the Board had concluded that the grievor’s propensity to write disturbing and threatening letters was only temporary, it had failed to consider the evidence that following his dismissal, his grievance and the referral of the grievance to arbitration, and a month and a half before the arbitration hearing was to begin, the grievor had written a third letter, which was similar to the two letters that had led to his dismissal. Cory J. observed that the third letter “continues to exhibit the same extreme views, hyperbolic comparisons and total lack of judgment”. At para. 74 Cory J. wrote:

It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal of Mr. Bhadauria. However it has been decided that such evidence can properly be considered “if it helps to shed light on the reasonableness and appropriateness of the dismissal”: Cie Miniere Quebec Cartier v. Quebec (Grievances Arbitrator), 1995 CanLII 113 (SCC), [1995] 2 S.C.R. 1095, at p. 1101. In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error for them not to do so.

In Toronto Board of Education (supra), the Court concluded that the fact that the grievor repeated his conduct following his dismissal and his grievance, helped to shed light on the issue before the Board, (i.e. whether or not the grievor’s propensity to write disturbing and the threatening letters was temporary), because the subsequent letter exhibited that the grievor continued to hold the same state of mind, i.e. extreme views, hyperbolic comparisons and lack of judgment.

I recognize that in that case the issue before the Board was the continuing state of mind of the grievor. The present case before me is different in that the issue is whether an individual’s state of mind in 2006 helps to shed light on that individual’s state of mind in 2005. In my view, racial bias is not normally a propensity or state of mind that changes from year to year. I conclude that the subsequent conduct – and therefore the state of mind that led to that conduct -, although not conclusive proof, at least “helps shed light” on the issue I am called upon to decide with respect to Mr. Fagan’s conduct during the 2005 job interview. Therefore that evidence is admissible.

The allegations relating to Mr. Fagan’s conduct in 2006, could, as employer counsel suggested, be seen as raising a collateral issue. However, where a collateral issue is relevant to the very issue before an arbitrator, it is admissible. Similarly, the fact that the admission of relevant evidence may lengthen the hearing is not a reason to not admit the same.

I wish to make it clear that nothing in this decision should be construed as suggesting that Mr. Fagan committed any of the alleged acts, in 2005 or in 2006. At this point, they are allegations and nothing more. The onus is on the union to prove those allegations.

The hearing will continue on the dates scheduled.

Dated at Toronto this 13th day of June 2008.