GSB#2005-1443, 2005-3884

UNION#2005-0530-0022, 2005-0530-0077

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tardiel et al)

Union

• and -

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

Employer

BEFORE

Christopher J. Albertyn

Vice-Chair

FOR THE UNION

David Wright, Ryder Wright Blair & Holmes LLP, Barristers & Solicitors Jim Paul Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Melissa Nixon & Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

February 19 and May 27, 2010.

Decision

1This decision concerns an individual grievance heard pursuant to the agreement of the parties under the procedures of Article 22.16 of the collective agreement. The Grievor claims substantial damages and other relief as a result of various incidents at the Toronto Jail during the period 2005 to 2008, including his being referred to in certain anonymous hate mail. This decision addresses the request by the Grievor to withdraw his grievance.

2The parties agreed upon a comprehensive procedure to address the grievances of those who received hate mail or who experienced racism, discrimination or harassment as contemplated under the Ontario Human Rights Code, or who worked in a poisoned work environment, while employed at the Toronto Jail during the period 2005 to 2008. This grievance was addressed under that procedure. Systemic remedies were addressed collectively by the Employer and the Union on behalf of all of the many affected grievors. The agreed procedure and the systemic remedies are more fully described in the companion decision to this. The Grievor in this case, Mr. Cox, benefited from the systemic remedies determined as appropriate by the parties.

3Mr. Cox himself was given the opportunity to make a private statement and he was not subjected to cross-examination. Accommodation arrangements had been made for him before he made his private statement. These were adjusted to meet his circumstances once his needs were explained in the private session. An endeavour was then made to mediate his damages claim, which failed. The parties then argued what damages and other relief the Grievor was entitled to receive.

4Between the first and second day of argument on Mr. Cox’s grievance, Mr. Cox gave notice to the parties that he sought to withdraw his grievance. A separate request was made to me by Mr. Cox’s personally appointed solicitors. A scheduled hearing, on April 26, 2010, was postponed because the request came shortly before, and the Union wished to consider Mr. Cox’s request. The Employer opposed the request. After consideration, the Union decided not to withdraw Mr. Cox’s grievance. As a result, both the Union and the Ministry declined to accept Mr. Cox’s request to withdraw his grievance. The Union proceeded to argue on Mr. Cox’s behalf for relief under his grievance.

5The request to withdraw was argued before me by counsel for the Employer and for the Union, opposing Mr. Cox’s request. I declined to give standing to Mr. Cox’s personal solicitors, although they were permitted to sit in as an observer.

6The basis of the Grievor’s request to withdraw his grievance is that he has lost faith in the ability of this process to provide meaningful remedies. He wishes to have his claims adjudicated by the Human Rights Tribunal of Ontario (HRTO).

7As Employer and Union counsel argue, a grievor has no standing in an arbitration proceeding under the collective agreement. The Union has carriage of the grievance and it is for the Union to decide whether to proceed with the grievance. It has chosen to do so in this case.

8As both parties contend, the Grievor’s request comes very late in the process. It is at the end of nearly two years of fashioning appropriate systemic remedies for the Toronto Jail, and at a well advanced stage in the consideration of Mr. Cox’s grievance.

9As Employer counsel argues, the Grievor is trying to forum shop. He thinks he may obtain a better result from HRTO. Employer counsel argues that this is an abuse of process and that an individual, if he had carriage of his grievance, has no entitlement to forum shop once a process has been seriously undertaken and advanced, as has occurred here. Employer counsel points to the considerable investment by the parties in the workplace restoration process of which this case is a part. The parties have spent a lot of time and money thus far. There have been a series of orders to accomplish the organizational objectives to which the parties have committed themselves. The parties have tried to address every concern raised by the various constituent groups within the workforce at the Toronto Jail, especially those dealing with discrimination, harassment and conflict resolution. The Grievor’s general requests for systemic relief have been addressed by the parties on a collective basis through the process they chose to use.

10Employer counsel submits it is too late in the process to seek to withdraw the grievance without prejudice in order to pursue the same issues, in search of the same remedies, in a different forum.

11Employer counsel refers to the following cases as authority for not permitting the withdrawal of the grievance where the case has advanced to a hearing or where forum shopping is the purpose: Great Atlantic & Pacific Co. of CanadaLtd. And R.W.D.S.U., Loc. 414, Re (1991), 1991 CanLII 13490 (ON LA), 22 L.A.C. (4th) 72 (M. Picher), [1991] O.L.A.A. No. 107; OPSEU (Armes) and The Crown in Right of Ontario (Ministry of Health) Halton-Mississauga Ambulance, GSB No.123/93 of August 17, 2004 (Kaplan). In Guelph General Hospital and O.N.A., Re (1992), 1992 CanLII 14449 (ON LA), 25 L.A.C. (4th) 260 (Burkett), [1992] O.L.A.A. No. 48, the board of arbitration said this, at ¶¶4-5:

4. … there are strong policy reasons for not permitting such a unilateral withdrawal. If either party is permitted to unilaterally withdraw a grievance after the completion of the hearing, thereby avoiding the risk of loss on the facts relied upon, there is a twofold negative policy implication. First, the effect is to lessen the incentive to settle prior to the hearing thereby running counter to the statutory preference for two-party settlement where possible. Secondly, the effect is to prevent the issuance of an award that might provide a definitive interpretation of the contract language at issue thereby sowing the seeds for future conflict in respect of that issue either in the administration of the agreement or in the negotiation of its renewal.

5 Having regard to the foregoing I find that, once the parties decide to proceed to arbitration and have been put to the time and expense of a hearing, it is too late to unilaterally withdraw the grievance. …

12Union counsel refers to Ontario Public Service Employees Union v. Ontario (Ministry of Municipal Affairs and Housing) (Ross Grievance), 2009 CanLII 15413 (Gray). That decision, relying on Noël v. Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, makes clear that the trade union, as the exclusive bargaining agent of the employees in the bargaining unit, has carriage of every grievance. The decision refers to Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2008 CanLII 32795 (ON G.S.B.) (Lynk), which affirms that a union has exclusive carriage of a grievance. By implication, an individual cannot withdraw a grievance if the union with carriage of the grievance refuses, as is the case here.

13In Jamal v. Crown Employees Grievance Settlement Board, 2006 CanLII 45942 (ON S.C.D.C.), the Divisional Court made clear that an individual has no right of standing to process a grievance:

5The jurisdiction of the GSB is restricted to resolving and/or arbitrating grievances arising from differences and disputes between the “parties” to a collective agreement, that is, the union and the employer (see s.7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c.38. The Divisional Court in Smith v. Ontario Public Service Employees Union, [2003] O.J. No. 2139 at paragraph 9, held that a member of the bargaining unit represented by OPSEU does not have standing in his or her own right to process a grievance respecting employment. Only the union may do so. …

14Accordingly, my jurisdiction is restricted to disputes between the Union and the Employer. They decide what grievances proceed and which are withdrawn. They have decided not to withdraw this grievance. In these circumstances, the Grievor is bound by their decision. He has no independent standing to withdraw.

15What is more important, though, is the advanced stage of the process when the request to withdraw was made. The Grievor participated fully in the process – in its systemic and its individual aspects – until very late in the hearing of his grievance.

16The process has also worked to the Grievor’s advantage in that it is being adjudicated on a best case standard because he has not been subject to cross-examination and his allegations are treated as being true. Further, there is no need for him to withdraw because human rights statutes and principles are being adjudicated as part this grievance, just as would occur before the HRTO.

17While the Union does not concede that the Employer has achieved all of the systemic remedies that the Union considers necessary, the Union does accept that the process undertaken since 2008 has progressed and made advances. The orders obtained from the Board are systemic orders that apply also as remedies to Mr. Cox’s grievance.

18Union counsel points out that Mr. Cox wants the criminal investigation of the letters to be pursued. The matter remains with the police, but the status of the investigation, the appropriateness of it, and the extent of it, remain live issues between the parties that the Union continues to address. The task remains incomplete, although one being pursued by the Employer. Union counsel submits it would be inappropriate for this, and other incomplete systemic issues, which the Union is addressing through this process, to be taken to another forum.

19The parties have made a considerable investment in a process to remedy the wrongs at the Toronto Jail over the past several years. They have made much progress in doing so. In counsel’s words, we are now at the end stages of that process, including with respect to Mr. Cox’s grievance, and it would be wasteful and duplicative to start the process afresh before a different tribunal with the same adjudicative powers.

20In these circumstances, since systemic remedies form part of the relief required for the resolution of Mr. Cox’s grievance, it would be disruptive to have his grievance hived off and dealt with separately, rather than as part of the general process of resolving all of the grievances that arose out of the poisoned work environment during the period 2005 until 2008.

21In the circumstances, I deny Mr. Cox’s request to withdraw his grievance.