Ontario Public Service Employees Union (Morgan) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 100933

GSB#2008-1490, 2008-1491, 2009-3260, 2010-1240, 2010-1369, 2010-1370, 2010-1471, 2010-1472, 2010-1473

UNION#2008-0719-0003, 2008-0719-0004, 2010-0719-0001, 2010-0719-0014, 2010-0719-0019,

2010-0719-0020, 2010-0719-0021, 2010-0719-0022, 2010-0719-0023

Under

Before

BETWEEN

Ontario Public Service Employees Union (Morgan)

Union

and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

Susan Munn Ministry of Government Services Labour Practice Group Counsel

March 11 and 29, 2011.

1The grievor works at the Kenora jail. The grievances before me claim, among other things, that the employer failed to accommodate an alleged disability caused or aggravated by alleged harassment by two co-workers, one male and one female (referred to here as "the alleged harassers"), created a poisoned work environment by allowing the harassment to continue, failed to pay short term sick benefits in respect of a period or periods during which he was unable to work due to illness and unjustly suspended him for claiming short term sickness benefits. Remedies sought include top-up for all periods on sick leave, return of vacation credits used to cover absences for which sick leave was denied, a direction that the grievor not be scheduled with the alleged harassers, and $10,000 in damages for mental distress and failure to accommodate.

2In my decision of December 7, 2010, I noted that hearings on the merits in this matter would have to be conducted in Kenora, Ontario, and that having regard to the resources that must necessarily be expended in convening and conducting such a hearing, and to the nature of the issues involved, it was important to ensure that there was a full exchange of particulars and documents in ample time before the hearing began. That decision provided for an exchange of particulars and documents, and directed that¹

[5] With respect to each act or omission alleged therein, each party's written particulars must state what it says was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. Conclusory statements based on unparticularized allegations of fact are not sufficient and do not constitute particulars for purposes of this order. For example, it is not sufficient or appropriate for particulars to allege that ["B harassed A"] without also describing with particularity the acts or omissions of "B" relied on and any circumstances or characteristics of "A" that are pertinent to the allegation that those acts or omissions of "B" amount to "harassment" of "A" in the circumstances.

[11] A party who fails to produce a document or to provide particulars of an allegation in accordance with this order may not introduce that document or present evidence about that allegation at the hearing in these proceedings without leave.

The decision adopted the parties' agreed upon schedule for delivery of particulars: the union was to deliver its particulars on or before February 11th, the employer was to deliver its particulars by March 25th, and the union was to deliver it reply particulars, if any, by April 15th. On that basis, the hearing was scheduled to proceed in Kenora on May 25, 26 and 27, 2011.

3The union did not deliver its particulars by February 11, 2011. It sought but did not obtain the employer's agreement to an extension of that deadline. This led to a hearing by teleconference on March 11, 2011, to deal with that request and a request from the employer that the May 25th hearing date be cancelled.

4In correspondence leading up to the March 11th hearing union counsel explained that it had not delivered particulars or otherwise complied with the decision of December 7, 2010, because it had not been able to obtain the grievor's doctor's file. It had delivered a release and request for the file to the doctor's office in late January 2011, but the doctor's assistant had responded that the doctor was away until April 2011.

5In the hearing of March 11, 2011, I directed orally that the union was to deliver its particulars² and documents, other than any particulars or documents that it could not provide without the doctor's file, by March 25th, in accordance with the provisions of the decision of December 7, 2010. Other issues then outstanding, including adjusted delivery dates for the employer's particulars and the union's reply particulars, the employer's request to cancel the first of the May hearing dates, and the question whether and how use could be made of the May hearing dates, were deferred until after the delivery of those particulars. A further hearing by teleconference was scheduled for March 29, 2011.

6The particulars delivered by the union on March 24, 2011 did not comply with the requirements set out in paragraph 5 of the decision of December 7, 2010. I will not identify here all of the deficiencies that were reviewed with counsel in the teleconference of March 29, 2011. The major difficulty was that the observations in that paragraph about bald, conclusory assertions were almost entirely ignored in the description that the union provided of the alleged harassers' alleged "harassment" and of what the grievor allegedly told the employer about it. The particulars delivered included the following statements:

From September 2003 onwards the Grievor has been harassed by [the alleged harassers]. From 2003 until 2009 the Grievor was a casual officer and so did not always work alongside [the alleged harassers] and so decided that as he did not want to be labeled [sic] a "whiner", "tattle tale" or "rat" not to bring this to the attention of management.

In late January/early February 2009, the Grievor was in the Duty Desk area of the jail and [the male alleged harasser] made derogatory and belittling comments about the Grievor's parenting and that [sic] his child was "a waste". The Grievor became so angry about these comments that he came close to "punching" [the male alleged harasser]. The Grievor recognized that this would be a highly inappropriate response and did not engage in any physical altercation with [the male alleged harasser].

On February 3, 2009 the Grievor became very distressed about the encounter noted in paragraph 4 and went home. At this point he considered filing a Workplace Discrimination and Harassment Policy complaint; however, he chose not to out of fear of being labeled [sic] a rat.

On February 4, 2009 the Grievor attended his physician, [Dr. D], who placed him on a leave, to be reassessed March 11, 2009. The Grievor took the letter (Appendix 1) to A. Superintendent Steve Walker and explained to him the situation, without naming [the alleged harassers] and that he had become so upset that he nearly assaulted [the alleged harasser referred to in para 4]. Mr. Walker referred him to the Employee Assistance Program ("EAP") and did not inquire as to the identity of the employee. The Grievor used the services of the EAP and began seeing [Ms. M], a social worker, for counselling.

The Grievor continued to be harassed by [the alleged harassers]; however, he endured it as he was hoping that with the closing of the Young Offender Unit and the opening of the Female Unit would result in scheduling changes that would result in him being scheduled opposite [the alleged harassers]. However, this did not occur and so the harassment continued.

December 8, 2009 the Grievor discussed with Mr. Walker the harassment he was experiencing with 2 co-workers, [the alleged harassers] and requested to be accommodated through a schedule change. Mr. Walker suggested he try to switch schedules with a co-worker this [sic] was unsuccessful. (Appendix 3a)

On December 29, 2009 – the Grievor again reiterated his request for accommodation to Mr. Walker and disclosed that as a result of the harassment from the 2 co-workers there were negative impacts on his health. (Appendix 3d)

August 15, 2010 the Grievor returns to work on regular schedule against medical advice and he continues to experience harassment from the [the alleged harassers].

The Grievor is unaware of any investigation or fact-finding undertaken by the Employer with regards to the harassment by [the alleged harassers] despite the Employer being aware of the Grievor's concerns about their behaviour.

(emphasis added) Apart from the reference to the alleged male harassers having referred to the grievor's child as "a waste," the "derogatory and belittling comments" referred to in paragraph 4, the "situation" referred to in paragraph 6 and the harassment referred to in paragraphs 2, 9, 10, 14, 46 and 47 were not particularized in those or any of the other paragraphs of the union's particulars.

7The union alleges that the employer was put on notice of allegations of misconduct that the employer ought to have investigated, and that its failure to do so made it responsible for an alleged "poisoned work environment." Yet despite the Board's very clear direction about how allegations of harassment must be particularized, the union did not set out what the grievor claims that the alleged harassers actually said or did (apart from the male alleged harasser's having made the "waste" comment), nor what he claims he told management that the alleged harassers had done. This is obviously problematic for delivery of particulars by the employer, since it cannot know from this the case to which it must respond. It is also problematic for the conduct of an orderly and efficient hearing of the union's claims in this regard and, indeed, begs the question whether these aspects of the grievances should be entertained at all.

8It may be that the union can rectify these serious defects in its particulars once union counsel has the benefit of the doctor's file and certain documents in the possession of the employer. It should therefore have one last opportunity to deliver proper particulars, on the clear understanding that thereafter attempts at hearing to introduce evidence in support of allegations that remain unparticularized will not be permitted except, perhaps, in very exceptional circumstances.

9Accordingly, in the hearing of March 29th I ordered, and hereby confirm, that the union may deliver fresh, amended particulars, provided it does so by Friday May 13, 2011.

10During the hearing of March 29th employer counsel agreed that the employer would produce certain documents to union counsel on or before Tuesday, April 12, 2011. The agreed upon description of the documents to be so produced is:

a) The overtime allocation records for July 11 and 12, 2008 as well as HPRO data for those days regarding the grievor and the individual(s) who received overtime shifts at the Kenora jail on those days.

b) From file(s) maintained at the Kenora jail on the grievor: any record of discipline, any sick notes submitted in or after 2009, and any record of his absences in or after 2009.

c) Any and all documents of any kind whatsoever in the possession, custody or power of the employer that are, or relate to, communications in or after 2009 that were from, with or about the grievor concerning the grievor's scheduling, health or absences from work or alleged conflict between the grievor and [the male alleged harasser] and/or [the female alleged harasser].

The documents to be produced do not, of course, include any that are privileged.

11During the hearing of March 29th I also determined that, in all the circumstances, the hearing previously scheduled for May 25, 26 and 27 in Kenora should be rescheduled for May 26 and 27 in Toronto, and should be limited to dealing with any issue concerning the scope of the hearing, hearing the grievor's examination-in-chief and so much of his cross-examination as can be completed in that time, and determining a deadline for delivery of the employer's particulars, the union's reply particulars and the medical reports of any doctors on whose expert testimony either party may wish to rely.

12The cancellation of May 25th hearing date flows from the fact that Superintendant Walker, the employer counsel's adviser and the person most familiar with these grievances from the employer's perspective, will be at a hearing in Thunder Bay on May 25th and, thus, unavailable to advise and instruct counsel in this matter on that day. Given the extraordinary indulgences that the union been afforded – twice, now – with respect to the pre-hearing obligations it assumed in this matter in early December, I did not consider it necessary enquire into why Mr. Walker's conflict was not known, or raised, by the employer at the December hearing or shortly thereafter.

13As for the change in venue, because the union's particulars will not be closed until May 13th there is no possibility of completing the parties' exchange of particulars and productions before the hearing starts in May. The prospect of wasted hearing time is, thus, substantially increased. Further, the Board has no assurance that by then each of the grievor's claims will have been either properly particularized or withdrawn. There may be argument about the scope of the case to be heard. The hearing of the grievor's testimony-in-chief may be interrupted by arguments about its proper scope and content. His examination-in-chief may proceed in a way that makes it necessary for some or all of his cross-examination to be deferred until unexpected matters are investigated. These are possibilities in every hearing. Given the history of this matter, however, and particularly the union's late delivery of astonishingly incomplete particulars, they seem much more probable than usual in this case.

14Only five people will be needed for the hearing of the grievor's testimony: myself, the two counsel, Mr. Walker and the grievor. The first three are all based in Toronto. The other two are based in Kenora, but one of those two will be in Thunder Bay, and in practical terms part way to Toronto, on the day before the May hearing dates. In all these circumstances, including the uncertainties and potential inefficiencies to which I have referred, it makes no sense to me to impose on the parties the cost of transporting three of the five needed participants from Toronto to Kenora, and accommodating all three there, rather than the cost of moving to Toronto one participant from Kenora and one from Thunder Bay and accommodating the two here, for the hearing of the grievor's testimony.

15I note that two other issues remain outstanding in relation to the particulars to be delivered by the union in this matter.

16The union particulars delivered March 24th contained no particulars of the claims in Board File 2009-3260. Union counsel's covering letter stated that

The Union has withdrawn 2009-3260/2010-0719-0001 (the group grievance) from this process and it has been referred to Joint File Review.

It is not apparent to me how the union can do that without either the employer's agreement or an order of this Board. Employer counsel advises that that is under consideration, but is not yet the subject of agreement. Unless in the meantime the employer agrees (or, on application by the union, I order), that Board File #2009-3260 not be heard together with the other matters before me, particulars of the allegations on which the union relies in that matter will have to be delivered in accordance with this and my earlier orders.

17Union counsel's covering letter of March 24th also stated that the union was requesting the employer's consent to consolidate a further grievance – OPSEU #2011-0719-0020 – with the grievances before me in these proceedings. Employer counsel advises that that is also under consideration, but is not yet the subject of agreement. If the employer does agree (or, on application by the union, I order) that that grievance be consolidated with the ones before me, particulars of the allegations on which the union relies in connection with that grievance will have to be delivered in accordance with this and my earlier orders.

18Finally, I note the parties have agreed that August 23, 24 and 25, 2011, are convenient for them for continued hearings in Kenora, and that those dates have been scheduled accordingly. If the union intends to call the grievor's doctor and/or social worker at all in this matter, I would expect to hear their testimony at that time. Further, I expect the union to ascertain whether there is any difficulty with that, and promptly raise it with the Board, as soon as possible after the doctor returns in April from his extended absence.

Dated at Toronto this 4th day of April 2011.

Footnotes

The bracketed text in paragraph 5 of the decision of December 7, 2010 actually read "A harassed B." It will be apparent from the balance of the sentence in which that phrase appears, and union counsel has acknowledged that it was apparent to her, that "A" and "B" were reversed in that phrase and that what was meant is what now appears in brackets in this quote.
Shortly after that teleconference I clarified that the particulars that the union was to deliver at first instance did not include allegations relevant only to its dispute of the employer's claim that the discipline in issue was justified, but an allegation of fact on which the union relies in support of other claims for relief (the state of the grievor's health during a period for which he claims sick pay or during which he says he should have been accommodated, for example) must be included in its initial particulars even though it may also be relied upon in response to the employer's attempt to justify the suspension. I also observed that none of this changes the fact that the employer bears the burden of proof with respect to justification of the discipline.