GSB#1994-0232

UNION#94D367

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sidhu)

Union

• and -

The Crown in Right of Ontario (Ministry of Agriculture, Food, and Rural Affairs)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Brian Loewen Ministry of Government Services Legal Services Branch Counsel

HEARING

November 13 & 24, 2009, April 6, 2010, December 17, 2010.

Decision

1This case was resolved some eight years ago. The grievor (not for the first time) asserts that the employer has failed to live up to the obligations of the settlement.

2The terms of the initial settlement, dated March 26, 2003, were confidential and involved two grievors. It is not necessary for me to set out the settlement in full. For our current purposes it is sufficient to note that it provided (in paragraph 5):

The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical / Job Mart, or there [sic] substitutes or replacements, delivered to the Grievor[’]s home promptly upon issue, commencing from the date of the execution of this settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 and 8 positions to which she may choose to apply.

3At the time of the settlement, the grievor was off work on long term disability, a status she has maintained up to and including the most recent hearing in this matter. Indeed, it was agreed that the grievor was currently and for the foreseeable future, unable to actively return (with or without accommodation) to any position within the bargaining unit. But while that state of affairs may have been as true at the time of the initial settlement as it is now, the parties, nonetheless, agreed to include the above paragraph in their settlement.

4There were some difficulties in the implementation of the parties’ agreement and the matter was the subject of hearing by way of teleconference on two occasions in 2003. Some four years later the matter was brought on for a more formal hearing by the union which alleged the employer had breached its obligations under the terms of the paragraph reproduced above (and subject to the parties’ discussions in the course of the 2 teleconferences held earlier).

5The result of that hearing was a further Memorandum of Settlement, dated October 5, 2007 which, in turn, resulted in an Order of this Board, dated October 17, 2007 in which (a portion of) the parties’ agreement was reproduced. The new relevant paragraph included the terms of the paragraph set out earlier with the addition of one further sentence (that addition is highlighted):

The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical / Job Mart, or there [sic] substitutes or replacements, delivered to the Grievor[’]s home promptly upon issue, commencing from the date of the execution of this settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 and 8 positions to which she may choose to apply. The Employer agrees to provide hard copies of the above by Courier to the Grievor[‘]s home.

6The parties were directed by the Board Order to comply with the terms of the above paragraph.

7It appears that it took little time for the grievor to again raise issues regarding the employer’s compliance with the settlement (as amended). The matter was back on for hearing before me less than a year later, commencing on November 12, 2008.

8On that day the parties made some (unsuccessful) efforts to once again resolve the matter. The employer sought and the union agreed to provide full particulars in support of its claim(s). In addition, the employer expressed its view that this matter could not be properly disposed of in the union’s favour without certain medical evidence, perhaps for dual purposes. First, the employer asserted that, given its understanding that the grievor could not, currently or in the near future, return to work, there was no purpose to be served by its continuing obligation to provide, with actual delivery by courier, documents to the grievor regarding job opportunities. And, in the absence of any medical evidence of current ability or prognosis, the parties’ agreement ought to be amended to relieve the employer of an onerous ongoing weekly obligation to courier documents to the grievor when no labour relations purpose would be served by that delivery. (I have already noted that, ultimately, the grievor’s current and prospective inability to return to work became an agreed fact between the parties.)

9The employer also asserted that, at least to the extent that the grievor was seeking damages for pain and suffering or mental distress, any such claim should be supported by medical evidence.

10The matter then came back on for hearing on November 13, 2009. At that time the union filed a brief letter from the grievor’s psychiatrist. In the face of that report, the employer again asserted that further medical information would be required to establish or clarify any claim for damages in the nature of pain and suffering or emotional distress arising out of the employer’s alleged breach. It was in the face of that continuing position that the parties agreed that the grievor was totally disabled since at least October 2007 (the date of the Board Order referred to above), continues to be so, and is unable, currently or in the immediate future, to return to work in any position. The union, however, agreed to facilitate the production of further medical information.

11In the interim, and subject to the treatment of any medical evidence and the need for any further viva voce evidence from the grievor, we heard her testimony and cross-examination.

12The matter was next scheduled to continue on April 6, 2010. At that time, the medical evidence (the union having provided the employer with further medical reports) continued to be a matter of some dispute between the parties. Having considered their submissions in that regard, I issued a decision dated April 13, 2010, the material portions of which provided as follows:

The union has provided the employer with medical reports upon which it may rely in these proceedings.

The employer has indicated that, should the union be seeking to rely on these reports, the physician who prepared them ought to be made available for cross-examination. In addition, the physician’s clinical notes in respect of the grievor, for the period October 2007 to the present, as well as any other documents upon which the physician relied in preparing his reports of November 2007 and March 15, 2010 ought to be produced in advance of the hearing.

In the circumstances, should the union intend to rely on these reports, it is hereby directed to facilitate the attendance of the physician for cross-examination and the production of the notes and documents referred to above.

13The matter was next scheduled to continue on December 17, 2010. At that time, the union advised that it would not be seeking to rely on any of the medical evidence previously filed with the Board or provided to the employer. The parties indicated they had no further evidence to call and proceeded to final argument.

14In addition to the grievor’s viva voce evidence, a number of exhibits were filed. These included documentation prepared initially by the employer’s courier. These documents were filed on the initial hearing day in November 2008. They span October 2007 (the date of the Board’s order incorporating the parties’ agreement to courier delivery) to April 2008. The specific selection of the end date by the employer, who prepared and filed these materials, was not expressly articulated; it may bear some temporal relationship to the union seeking to list the matter for hearing. However, it was not until a year after the filing of those documents that the grievor testified before this Board. Her evidence adverted to asserted employer failures from October 2007 up to and including November 2009. Neither the grievor nor the employer provided any documentary evidence whatsoever to establish or negate any alleged failure of the employer to comply with its settlement obligations during the May 2008 to November 2009 period.

15There was no dispute that, at least by and large, under the terms of the parties agreement, the materials in question, given their frequency of issuance, were required to be forwarded to the grievor on a weekly basis. Based on the documentary evidence and subject perhaps to some variation, the employer has been retaining a courier to deliver the materials to the grievor’s home on a weekly basis. However, if the grievor is not available to accept delivery, it appears that the courier (has perhaps been instructed) to leave a note at the grievor’s residence advising that the materials are available for pick up at the courier’s depot. The documentation spanning October 2007 to April 2008 shows that roughly half of the deliveries effected were received at the grievor’s home and the other half were picked up by the grievor. There was no objection, in principle, to this aspect of the delivery scheme. The complaint centers on allegations of non-delivery, late delivery or delivery of incomplete materials.

16The grievor testified that the timely delivery of these materials was extremely important to her, she viewed the settlement paragraph in question as the “only sense of job security” the employer was willing to provide. (The grievor took every opportunity to return to her apparently ongoing sense of grievance with respect to the events which gave rise to the initial settlement in 2003 – that, of course, is of no relevance to these proceedings – indeed, as will be clear, dissatisfaction with the terms of a settlement – regardless of which party may feel it – is not material to these proceedings). She also testified that the failure to provide these documents (or to provide them on time) had a major impact on her emotional well being. Indeed, the union is seeking damages in the amount of $70,000, based upon the asserted psychological impact and mental harm caused to the grievor by the employer’s alleged breach.

17However, despite the asserted extreme importance of the delivery of job vacancy information about positions she was not fit to assume, the grievor apparently felt no need to keep any records whatsoever, either before or after the union sought to list this matter for hearing. So while we had documentary evidence from the employer to provide a context for any claims during the October 2007 to April 2008 period, any evidence related to alleged violations of the settlement from May 2008 to November 2009 were based exclusively on the grievor’s viva voce evidence, entirely unsupported by any documentary or other evidence.

18In that context, the extent of the grievor’s evidence in relation to the non-documented period was a request for the employer to “confirm” because she was not certain but believed that she was missing (some unspecified number of) September 2009 deliveries (she offered the confusing juxtaposition of indicating her records showed nothing, i.e. no deliveries, with her acknowledgement that she had no records; that there were 2 weeks with no delivery in July 2009; and that she thought she missed a couple of weeks in February and March 2009 as well.

19As indicated, the employer did not provide any of the “confirmation” the grievor sought. Indeed, there was some sparring between counsel as to who bore or had met what evidentiary burden in this and some other contexts.

20It may well have facilitated my task had the employer provided similar documentation to that tendered in relation to the earlier period. And I also accept that its failure to so might ultimately be fatal on the liability issue if the union’s evidence had been sufficient to establish a prima-facie case thereby shifting the evidentiary onus. I am entirely unpersuaded, however, that the grievor’s evidence rises to even that minimal standard. I find it curious in the extreme that, even after these proceedings had commenced, the grievor felt no apparent need to in any fashion document the employer’s asserted breaches which were said to be having such a significant impact on her mental and emotional well being. Rather, she tendered evidence which was, by her own admission, tentative and speculative. And while it was ultimately tied to specific months it was still lacking in any substantive particularity and afforded little confidence in its reliability

21In short, I am unable to conclude that the employer breached its settlement obligations during what I have described as the non-documented period.

22It does, however, appear that the employer was, to some extent, remiss in meeting its obligations during the documented period. The period comprises 27 weeks; 23 deliveries are recorded.

23In virtually all weeks where delivery was effected at the grievor’s home, that occurred on the Monday. Where the delivery was effected at the courier depot, that occurred later in the week and, on two occasions, the following Monday. Of course, part of the delay, if it can properly be described as such, is a function of the grievor having been unavailable to accept delivery at her home and whatever subsequent time she may have taken to attend at the courier depot. Even accepting the grievor’s generalized, non-specific and undocumented evidence that she would attend at the courier depot “promptly”, I see no difficulties with respect to the manner or timing of delivery during or in reference to the weeks where delivery actually occurred.

24I am less than certain that (again, in the absence of any sort of supporting documentation) the grievor’s mere assertion of an event which took place some two years prior to her testimony (particularly where these deliveries are a weekly event) is sufficient to establish the claim that, on a single occasion, the grievor received information regarding only open (rather than open and closed) positions. Even if I were so persuaded, this variation would frankly need to be much more serious to even attain the status of de minimus.

25I am left with the discrepancy between the number of weeks (27) in the documented period and the number of documented deliveries (23) in those weeks. It appears that deliveries may not have been made in 4 weeks of the period. Two of those weeks appear to have occurred at the start of the period immediately following the Board order incorporating the parties’ agreement to courier delivery. The other two weeks were in December 2007, including the week between Christmas and New Years. The employer asserted (in its cross-examination of the grievor) and the grievor allowed such might well be the case, that there is a hiatus over the holiday period (although, I note, highlighting one of the other spots where counsel sparred over evidentiary onus, that no further formal proof of the assertion was provided).

26It therefore appears that on at least 2 and at most 4 occasions, the employer failed to deliver the materials it was required to under the terms of the settlement. The evidence the grievor gave covered a period in excess of 2 years and would have given rise to well over a hundred individual courier deliveries, 2-4 of which appear to have not been fully effected.

27I must therefore conclude that the employer was, indeed, in breach of its obligations under the terms of the parties’ settlement and this Board’s award. However, if this breach (in view of the employer’s compliance in the vast majority of instances) is more than technical or de minimus, it is only barely so.

28What then of the remedy? I have already declared the breach and, for the reasons that follow, I am satisfied that is a sufficient response to the employer’s dereliction in the circumstances of this case.

29The employer asked that it be relieved of any future or ongoing obligation to provide the grievor with weekly courier delivery of the documents in question.

30There are many bases the employer points to in support of its assertion that there is no labour relations purpose to be served by the fulfillment of the obligation of courier delivery. It is undisputed that the grievor is currently and, at least for the immediate future, unable to return to work. So long as that circumstance obtains, the employer argues, there is no practical purpose served by keeping her apprised of vacancies in positions to which she is unfit to return to active duty. Further, even if there is some rationale/need for continuing to provide the information, there are much more efficient, reliable and inexpensive means of achieving that result short of requiring weekly courier deliveries. The employer warns that experience with this grievor demonstrates that maintenance of the current obligation will be little more than a roadmap to future litigation.

31I have great sympathy for the concerns expressed by the employer. I, too, have great difficulty articulating a cogent labour relations purpose to be served by continuing to provide the grievor with courier delivery of documents which may provide her with negligible benefit and which may (treading here for a moment on another point of evidentiary contention between the parties), in any event, be readily available to her through other means. But, however elusive any objective labour relations rationale for the inclusion of the term in the parties’ settlement may be, the fact remains that it is clearly there – indeed, it was a specific result of the parties’ explicit agreement to amend their original settlement.

32It has never been the function of this Board to provide relief to grievors, unions or the employer from what time may have revealed to be an improvident settlement. Indeed, the sanctity of settlements is fundamental to the proper operation of the labour relations system. It is therefore not surprising that the employer was unable to provide any authority (from this Board or elsewhere) to support the intervention it asked this Board to make. Even if this Board has the authority to intervene and alter the terms of the parties’ settlements (a point I need say nothing more about) it would undoubtedly require the most extreme and egregious circumstances of the type this case does not make out.

33However, while I am declining to grant the employer’s requested intervention, neither am I persuaded that the employer’s violation of the terms of the settlement/Board Order warrants any remedy beyond a declaration.

34The first and primary guiding principal of any remedial response is to put the aggrieved party, inasmuch as possible, in the same position they would have been in but for the breach. In the context of this case, it is simply not possible to rewrite history so as to retroactively provide the grievor with the documents in question. That task is beyond even this Board’s ample panoply of remedial resources. We must therefore ask what the grievor has lost, what she has suffered as a consequence of the employer’s breach. The answer must be: very little.

35First, it is clear that she suffered no concrete economic loss – none was claimed. Similarly, while it may be appropriate, at least in theory, to suggest that she lost the opportunity to make use of the information that was not provided, that mere assertion with nothing more does not generate an entitlement to damages. Things might have been different had the grievor been able to identify a posted position that she was prevented from applying for (and, to some extent perhaps, even apart from any ultimate chances of success in the competition) because of the non-delivery of the materials. No such position was identified.

36In terms of the actual impact on the grievor of the employer’s breach, I am left with the claim advanced for the psychological impact and mental harm said to have been occasioned by the employer’s breach. The grievor testified that the settlement term was very important to her – that may truly reflect her subjective sentiment, but it does not alter the fact that I remain at pains to articulate a rational and cogent labour relations purpose to be served by the requirement to furnish this information to the grievor on an ongoing basis, certainly so long as there is no prospect of her ability to return to work. Similarly, and in the absence of any medical or other evidence to support the claim beyond the grievor’s bald assertion, and given the objective counter-intuitiveness of such a conclusion, I am not persuaded that she suffered significant psychological or emotional damage as a result of the employer’s minor breach. Frankly, the grievor’s claim that being deprived of the materials on 2-4 occasions out of over 100 (and despite an inability to establish any other prejudice suffered as a result) caused her such distress that a payment of $70,000 in damages is required as compensation strains the limits of even the incredible.

37Finally, I have considered the union’s submission (perhaps its most meritorious one) that safeguarding the integrity of the settlement process necessitates a remedial response. Although no remedy was sought for the union (as opposed to the grievor), I believe this line of argument (particularly where no remediable harm to the grievor is occasioned by the breach) addresses the union’s interest, perhaps distinct from that of the grievor. However, I am of the view that any such remedial response is unwarranted and, at least, premature.

38It was curious that both parties relied, for very different reasons, on the difficulties the initial and subsequent settlement have generated. The employer pointed to this to support its claim that any ongoing obligation will simply be a guarantee of future litigation. For its part, the union pointed to what it described as the employer’s longstanding and repeated failures to comply as warranting a remedial response. While the parties may well have encountered difficulties in the implementation and administration of the terms of their settlement(s), until the instant proceedings, they have been able (sometimes with the aid of a consent Board order) to resolve those difficulties on their own and through agreement. The instant decision is the first time there has been any finding by this Board that the employer has breached the terms of the settlement. And when the precise nature of that breach is examined, it is only marginally more than a technical and de minimus breach.

39What the future holds for these parties and the grievor is in their hands. They are, of course, free to negotiate further modifications to their agreements. In the absence of so doing, the employer’s belief that the grievor will allege further breaches at the slightest perceived provocation may condition its care in complying with the terms of the settlement. And should further breaches be alleged by the grievor, the union will undoubtedly assess the nature of the interest requiring protection and whether it warrants the expenditure of scarce funds, time and resources.

40The grievance is hereby allowed. I have declared that the employer has breached the terms of the settlement/Board Order. No other remedy will issue.