GSB#2002-2375, 2004-1217, 2005-2232, 2005-2768, 2006-0421, 2006-0632

UNION#2002-0411-0038, 2004-0411-0071, 2005-0411-0080, 2005-0411-0081,

2006-0446-0001, 2006-0446-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranger)

Union

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Don Eady Paliare Roland Rosenberg Rothstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Ministry of Government Services Legal Services Branch Senior Counsel

Paul Meier Ministry of Government Services Legal Services Branch Counsel

HEARING

February 11, 2011.

Decision

INTRODUCTION

1On January 18, 2010 the board released the decision on the merits of Robert Ranger’s grievances upholding both his complaint that he had suffered discrimination and harassment at the Ottawa Carleton Detention Centre (OCDC) and that the employer had failed in its duty to accommodate him, when he became ill as result of the harassment and discrimination. Since that date the parties have worked diligently to resolve the outstanding issues on remedy. To further that end they entered an agreement on November 12, 2010 (the “November Agreement”) that outlined a procedure for dealing with the outstanding remedial issues. The parties agreed to include all Mr. Ranger’s outstanding grievances to the date of this agreement. Included on that list is a grievance filed February 16, 2006, seeking to set aside minutes of settlement executed in 1998 (the 98 MOS) because the employer had failed in the years after the settlement to provide him with a workplace free of discrimination and harassment. This is an interim decision on the employer’s motion to dismiss Mr. Ranger’s February 16, 2006 grievance and to exclude evidence of events which occurred during the grievor’s employment at L’Orignal Jail in 1996 and 1997.

2The November Agreement also provided that instead of tendering viva voce evidence on the issue of remedy, the parties would prepare statutory declarations to be filed with the board to supplement the record on the merits of the case. The grievor’s statutory declaration includes references to occurrences when he worked at L’Orignal Jail, which were the subject matter of the 98 MOS and predate the events of the January 18, 2010 decision.

3The employer seeks to have the February 16 2006 grievance dismissed and objects to the inclusion of the L’Orignal evidence in the statutory declaration on three grounds: 1) the grievance is untimely, having been filed eight years after the execution of the 98 MOS; 2) the evidence is barred by the 1998 MOS, which settled all matters and complaints arising out of the grievor’s employment at L’Orignal; 3) the issue of whether this evidence is admissible was decided by the board in a decision dated July 29, 2005, which held that the evidence of these events was not admissible.

4Counsel for the employer argued that any one of these objections should prevent the grievance going forward and the information being included in the statutory declaration. He noted further that the board could only hear the evidence of the events that occurred at L’Orignal if it granted the 2006 grievance. The grievance seeks to have the 1998 MOS set aside on the grounds that the employer failed to provide a safe workplace free of harassment and discrimination after the signing of the agreement. There is a further reason to preclude the grievance, in counsel’s submission. The behaviour which is complained about after the 98 MOS is the subject matter of the grievances decided on January 18, 2010.

5Counsel for the union relies on the language of the November Agreement wherein the parties agreed to a process to resolve the outstanding remedial issues flowing from the January 18, 2010 decision. Counsel submitted that the parties were attempting to find a sensible way to put all of the grievances that the grievor had made up to the signing of this agreement before the board for decision without calling many witnesses and unnecessarily prolonging the hearing. He argued that the parties decided to put all of the issues before me and this is why the union included a description of events occurring at L’Orignal in Mr. Ranger’s statutory declaration. Counsel emphasized that the purpose of deciding on this procedure was to resolve all outstanding claims for the grievor.

6Counsel for the union noted that the parties were aware of the 1998 MOS and my decision in 2005 when they made the agreement in November 2010. Further, counsel argued that not all of the evidence of events at L’Orignal should be excluded. The union submitted that an IIU investigation substantiated the grievor’s complaints at L’Orignal. Counsel said if the union is successful withstanding the employer’s motion here he will seek disclosure of the IIU reports on the grievor’s complaints made during his employment at L’Orignal. Counsel argued that this evidence is probative of what damages I ought to award in the circumstances of this case.

7Thus, counsel relied on the November Agreement which provides that all of the outstanding claims and grievances are to be before me. He argued that I should hear all of the evidence and give it whatever weight it is due at the end of the day.

DECISION

8The central issue before me is whether the union should be permitted to tender evidence of events which occurred at L’Orignal in 1996 and 1997, which were the subject matter of minutes of settlement signed in 1998 and which this board held was not admissible in an interim decision dated July 2005. The union supports its claim to be allowed to submit this evidence on the strength of the February 16, 2006 grievance and the November 2010 Agreement between the parties, which provides in part at paragraph 9:

The parties agree and jointly submit that for the purposes of this proceeding, the GSB shall exercise its full authority in finally and fully determining any and all outstanding claims, grievances, disputes, complaints, actions and causes of action concerning the Grievor up to the date of the signing of this Agreement, including its decision and the above- noted Grievances.

The purpose of this agreement was to expedite the hearing into the remedies of this case and to determine any and all outstanding claims, grievances, and disputes that the grievor has up to the date of the signing of the November Agreement. On the basis of a grievance challenging the 98 MOS, filed in February 2006, some eight years after the agreement, the union argues that it is reasonable to submit evidence of events that occurred at L’Orignal, which predates the 98 MOS.

9Having carefully considered the submissions of the parties I have decided to dismiss the February 16, 2006 grievance and not to allow the information relating to these events to be included in the grievor’s statutory declaration for three main reasons. First, the February 16, 2006 grievance is not timely. Second, the events at L’Orignal, which the union wishes to rely on now, in the remedial phase of this hearing, are the subject matter of the 98 MOS. Third, this evidence was excluded by an order of this board in July 2005.

10The February 16, 2006 grievance is certainly not timely, having been filed some eight years after the settlement and many years after the events at OCDC. There is no evidence before me as to the reason for the delay. There is ample evidence that the grievor was aware of his right to grieve generally. Moreover, the complaint alleges that the MOS was breached because the grievor was not provided with a workplace free of discrimination and harassment at OCDC. These are the very events that were grieved in 2002 and are the subject of one of the complaints decided February 18, 2010. Thus, the grievor could have included the allegations in his 2002 grievance, that these subsequent events were a breach of the 98 MOS, but he failed to do so. Thus even on a generous interpretation the grievance is four years late with no excuse for the delay.

11More importantly, I have decided that in essence the union is seeking to introduce the evidence of events at L’Orignal for the very same purpose that they sought to tender the evidence on the merits of this case back in 2005. Counsel for the union submitted that this evidence was probative of what damages I should award in the circumstances at the end of the day. This was the position argued by the union and rejected in my 2005 interim decision. In 2005 the union argued that it did not

...seek to introduce this evidence for the purposes of proving the merit of the grievances before the board. Thus the proposed evidence is tendered only to provide proof of the extent of the harm suffered by the grievor and as basis for the argument for remedial entitlements. (at p.3)

In 2005 counsel for the union argued that the board should make an exception to the general principle that evidence which is the subject matter of minutes of settlement is not generally admissible.

12In my 2005 interim decision I rejected the union’s argument and granted the employer’s motion to exclude evidence of the grievor’s complaints at L’Orignal before the date of December 8, 1997, the date of the grievance. In making this decision I relied in part on the clear language of the 98 MOS: clause 2 of the MOS provides as follows:

The parties agree that these Minutes of Settlement and any consideration are deemed to be no admission of liability whatsoever, on the part of the Crown, nor will these Minutes and/or the underlying facts ever be referred to in any other administrative, quasi-judicial or legal proceeding.

In rejecting the union’s argument to admit the L’Orignal evidence I held as follows:

I have come to the conclusion that it would be inequitable and prejudicial to the employer in this case to defend the allegations of discrimination and harassment with regard to L’Orignal Jail so long after they have occurred, but primarily because they were the subject of Minutes of Settlement. The parties to Minutes of Settlement must be able to rely on the terms which they have negotiated in good faith. Further, it would not be fair to require an employer to preserve evidence indefinitely to defend itself against the possibility of having to refute allegations, which were the subject of Minutes of Settlement.

In support of the current motion employer counsel argued that it would be inequitable and prejudicial to allow the L’Orignal evidence now. He submitted that the November Agreement was never intended to allow the union to revisit matters that were settled or the subject matter of a decision of this board. I agree. I am satisfied that the language of paragraph 9 of the November Agreement does not support the union’s submission here that it should be able to rely on evidence of events which occurred fifteen years ago and which were never admitted by the employer. It would be inequitable and prejudicial to the employer to allow this evidence now.

13The reasons for excluding this evidence in 2005 are as applicable today. It is a fundamental principle of the board that without some significant reason to make an exception, once a complaint has been fully and finally settled, the settlement will be upheld. The principle, referred to as the recognition of the sanctity of settlements is essential to labour relations between the parties. This board will not countenance a settled complaint coming back in another guise. The February 16, 2006 grievance is an attempt to bring back the L’Orignal grievances in another guise and seek additional compensation. The grievor received compensation in the 98 MOS. Therefore, for the same reasons enunciated in my 2005 decision the evidence must not be admitted.

14The third reason for granting the employer’s motion here on the admissibility of this evidence needs no explanation: the decision in 2005 clearly decided the issue and the February 16, 2006 grievance does not change the outcome.

15One final issue must be addressed. The union made a special request for Mr. Ranger to be permitted to make a ten minute statement to the board regarding the impact of the grievances on him. Counsel suggested that the statement be made after the union’s argument in chief on damages. Counsel for the employer noted that the request was exceptional and in effect this would allow the grievor a third opportunity to speak to the adverse impact of the events at OCDC and the aftermath on him. He asked that I stipulate a time limit and direct the grievor to address only events that occurred at OCDC and after that, if I decided it was appropriate. I have decided to allow the union’s request here. Mr. Ranger shall be provided with ten minutes to address the board on the impact of his grievances after his counsel has made his submissions in chief on remedy. Mr. Ranger must restrict his comments to events that were the subject matter of his 2002 and 2005 grievances.

16Thus, for the reasons above the February 16, 2006 grievance is hereby dismissed and paragraphs 11 to 90 in the grievor’s statutory declaration must be struck from the grievor’s statutory declaration. I note for the record that this decision does not affect the evidence on the record on the merits of the case. The union may rely on anything on the record of the case to make its submissions on remedy.