Ontario Public Service Employees Union (Dubuc) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49511

GSB#2010-0490

UNION#2010-0453-0008

Under

Before

BETWEEN

Ontario Public Service Employees Union (Dubuc)

Union

and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING CONFERENCE CALL

June 14, 2011. June 27, 2011.

1On March 3, 2010, a grievance was filed by the grievor, Stephane Dubuc, alleging that he had been disciplined without cause. This was based on a letter of reprimand that had been issued to him by his employer, the Office of the Fire Marshal, on the same date. On June 11, 2011, four days before the hearing in this matter, the letter of reprimand was rescinded by the Employer and a letter of counsel was substituted, backdated to March 3, 2010. On this basis, the Employer has moved to dismiss the grievance, contending the matter has become moot. The Union opposes the Employer’s motion. This Decision addresses whether the issues raised in the grievance have become moot.

Facts

2For the purposes of the Employer’s motion, the parties agreed to proceed based on facts as outlined in the parties’ opening statements and the documentary evidence.

3On June 25, 2009, the Employer received an email from the Ottawa Fire Services (OFS) outlining a number of complaints concerning the conduct of the grievor. The grievor was notified of this complaint on September 16, 2009. The Employer conducted a detailed investigation which included interviews with seven members from the OFS and the grievor’s supervisor. The grievor provided a detailed response to the allegations on December 10, 2009. On December 15, 2009, the grievor, along with his union representative, met with management to discuss the investigation.

4In early January 2010, the grievor was temporarily removed from active investigations and the on-call rotation, and assigned to administrative duties and report writing.

5On March 3, 2010, a formal letter of discipline was issued to the grievor. The letter outlined the allegations, and concluded that the allegations “have been substantiated.” The letter then states:

In determining the appropriate penalty in this matter, I have considered the nature and gravity of each of the allegations, your employment record and the manner in which you dealt with each allegation. It is unacceptable for you to communicate with any Stakeholder in a manner that is disrespectful or unprofessional. The Office of the Fire Marshal cannot condone or tolerate this type of behavior. As such, it is my decision to issue a formal letter of reprimand in this instance. Failure to correct this behavior in the future will result in further disciplinary action up to and including dismissal.

6In addition, the letter required the grievor to attend two days of training, noting that the Office of the Fire Marshal “provides support in the form of education, training and coaching opportunities.”

7The grievor took part in the required training and on March 19, 2010, he was again assigned to conduct fire investigations and resume the on-call rotation, except with the OFS. That was delayed pending “an opportunity to meet with the Ottawa Fire Services to establish a Memorandum of Understanding and protocols…” The parties’ dispute the meaning of this email and whether the results of the investigation (and the discipline imposed on the grievor) were conveyed to the OFS. The grievor resumed working with the OFS in May 2010.

8As noted, the grievor filed a grievance concerning the letter of reprimand on March 3, 2010 alleging that he had been “disciplined without cause.” As a remedy, he asked to have “all records of discipline measure …be removed from all files held by the Ministry” and “to be made whole.” At the second stage meeting, the issue of damages for loss of reputation was raised by the Union.

9On June 11, 2011, the Employer rescinded the March 3, 2010 letter of reprimand and substituted a letter of counsel, backdated to March 3, 2010. The letter of counsel was far more gentle in tone and its stated intent was “to clarify expectations as to your performance and conduct in the workplace and is not disciplinary in any way.” It still concluded that his “communication with stakeholders was disrespectful and unprofessional” and that as a representative of the Office of the Fire Marshal, “you have a responsibility to uphold the reputation and credibility of this office.” It continued: “In future, you are expected to be more mindful of this responsibility when interacting with stakeholders.” The letter noted that it would not be placed in the grievor’s corporate file. It also included the two days of training, again noting that the “office of the Fire Marshall provides support in the form of education, training and coaching opportunities.”

Positions of the Parties

10The parties’ agreed that the applicable law concerning mootness is based on Re Borowski v. Canada (Attorney-General) (1989), 1989 CanLII 123 (SCC), 1 S.C.R. 342, 57 D.L.R. (4th) 231 (S.C.C.). They disagree, however, whether a “live controversy” still exists.

11The Employer contends that with the removal of the letter of reprimand, there is no longer a “live controversy” to decide. It submits that the basis of the grievance – the disciplinary letter of reprimand – has been withdrawn and a non-disciplinary letter of counsel has been issued instead, over which the Board has no jurisdiction. In support, it cites to Re OPSEU (Fitzgerald) and Ministry of Correctional Services (1989) GSB No. 1489/88 (Samuels) and Re OPSEU (Black) and Ministry of Revenue (1990), GSB No. 885/90 (Dissanayake Vice Chair).

12The Employer further asserts that the grievor’s claim for damages for alleged loss of reputation and mental distress cannot remain where the basis of the claim has become moot. It submits that there must be a “hook” into the collective agreement for such damages to be entertained, and that without the disciplinary “hook” of a letter of reprimand, the grievor’s claim for damages must be dismissed. Without the discipline, it submits, there is nothing left for the Board to decide.

13In support, the Employer cites to Re Borowski, supra; Re Donna Lee Jones and Ministry of Correctional Services (1995), PSGB No. P/0009/92 (Willes); Re OPSEU (Union Grievance) and Ontario Realty Corporation/Management Board Secretariate (1998), GSB No. 2024/97 (Abramsky). The Employer also asserts that this Board should encourage the parties to resolve their disputes and that no useful purpose would be served by continuing the hearing.

14The Union asserts that the grievance is not moot. It contends that the letter of counsel is still disciplinary as it was “intended to punish or chastise the employee for failure to perform properly”, citing Re Hamblin, GSB 63 and 68/82 (Samuels) quoted in Re OPSEU (Fitzgerald), supra at p. 3. This is self-evident, it asserts, based on the content of the letter. The Union also contends that half the discipline imposed on the grievor – the two days of mandatory training – remains in the letter of counsel, and thus remains a “live issue.”

15The Union further contends that the fact that the Employer withdrew the letter of reprimand on June 11, 2011 does not negate the fact that it issued it in March 2010, or the consequences that followed, including the damage allegedly caused to the grievor’s reputation and the mental distress allegedly caused by the investigation and the imposition of the letter of reprimand. These alleged damages, it asserts, flowed from the Employer’s actions at the time and were not eliminated by the Employer’s subsequent removal of the letter. These issues, it asserts, remain “live controversies.” In support, the Union cites to Re OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services/Ministry of Children and Youth Services (2010), 196 L.A.C. (4th) 409 (Abramsky); Re OPSEU (Ferraro et al.) and Ministry of Community and Social Services (2007), GSB No. 2000-1200 (Mikus): Re OPSEU (Union Grievance) and Ministry of Correctional Services (2002), GSB No. 0973/01 (Abramsky). The Union urges the Board to proceed with caution in a case of mootness due to the Employer’s action, as stated in Re OPSEU (Union Grievance) and Ontario Realty Corporation, supra at pp. 15-16.

16In reply, the Employer asserts that the Board has recognized that letters of counsel may be corrective in nature, without then becoming “disciplinary.” It also asserts that the training was remedial in nature and not disciplinary.

Reasons for Decision

17Having carefully considered the facts, the parties’ arguments and the case law provided, I conclude that the issue of the alleged unjust discipline has become moot, but that the grievor’s claim for damages for alleged loss of reputation and mental distress are still “live controversies”.

18The leading Canadian case concerning mootness is Re Borowski v. Canada (Attorney General), supra. In that case, an action was brought claiming that the therapeutic abortion provisions of the Criminal Code violated the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms. Before the case could be heard by the Supreme Court of Canada, the challenged abortion provisions were struck down by the Court in another decision, and thus “a serious issue existed as to whether the appeal was moot.” (57 D.L.R. (4th) at 235). The Court unanimously determined that the appeal was moot, and Mr. Justice Sopinka, speaking for the court, discussed the doctrine of mootness as follows, at p. 239:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties the case is said to be moot.

19The first step, according to the Court, is “to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.” If the answer is “yes”, then it must be determined if the tribunal “should exercise its discretion to hear the case.” (57 D.L.R. (4th) at 239). In this case, the Union stated that it was not relying on this second part of Borowski – that the Board should exercise its discretion to hear this case, but was instead, contending that the dispute has not “disappeared.”

20In Borowski, the Court determined that there was “no longer a live controversy or concrete dispute as the substratum of Mr. Borowski’s appeal has disappeared.” (Id. at 242). The basis of the appeal – that certain sections of the Criminal Code were unconstitutional – was moot because the disputed provisions had already been struck down in another case and thus “the raison d’etre of the action has disappeared.” (Id.).

21Based on the facts, as presented, I conclude that there is no longer a “live controversy” concerning the letter of discipline. The discipline has been rescinded and a letter of counsel has been imposed. In Re OPSEU (Black), supra at p. 6, the Board stated:

It is common ground that this grievance is arbitrable only if the memorandum in question can properly be characterized as “discipline.” This Board, while granted jurisdiction over disciplinary matters, has no overall power of review of management interaction with its employees.

22In the Black case, a letter of counsel was issued in regard to an incident in which the grievor “refused to follow an instruction given to you by your manager…” The letter then reviewed the discussion that took place in a meeting to review what had occurred and noted that while accepting the grievor’s explanation, management “emphasized the seriousness of what you had done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action will be taken. …” When the grievor raised concerns about the letter, management stated that it was non-disciplinary and was intended to confirm what had been discussed. In testimony at the hearing, the grievor’s manager stated that he “wanted to ensure that the grievor understood what was expected of him in the future” and that the memo was “intended to confirm the discussion for the grievor’s guidance” and that “it was not intended to be disciplinary.”

23The Board concluded that this memo was not disciplinary and did not punish the grievor for his conduct. Instead, it “expressed concerns about his conduct” and “explained to him that he should not engage in similar conduct in the future.” (Re OPSEU (Black), supra at p. 7). It also warned him that any future incident would be considered insubordination and subject to discipline. The Board held that this did “not make the meeting or the memorandum disciplinary in nature.” Important to the Board was the fact that the memo was not placed in the grievor’s personnel file and was stated to be non-disciplinary. The Board acknowledged that some employees might not like verbal or written communication by supervisors about their conduct or performance, but held that the “Employer does have the right to correct employees through guidance, counselling or even warning without engaging in disciplinary action.”

24As in Re OPSEU (Black), supra, with the letter of reprimand rescinded, the issue of the Board’s jurisdiction – at least in part – rests on whether the letter of counsel may be considered to be disciplinary. My review of the letter of counsel establishes that the letter is not disciplinary. First, on its face, the letter states that it is non-disciplinary and will not be placed into the grievor’s corporate file. As stated in Re OPSEU (Fitzgerald), supra at p. 3: “[O]nce the Ministry says clearly that the memorandum is not disciplinary, then it is not disciplinary.” Further, the stated purpose of the letter was “to clarify expectations as to your performance and conduct in the workplace.” The letter clearly does conclude that the grievor’s communication with stakeholders was disrespectful and unprofessional and that, in the future, he was expected to be more mindful of his responsibilities in regard to interacting with stakeholders. This, however, is very similar to the letter in Re OPSEU (Black), supra. It is an attempt to correct performance – not through formal discipline, but through guidance and counselling. It does not establish that the grievor has been “disciplined” but only that he “was told that certain conduct is unacceptable.” Re OPSEU (Fitzgerald), supra at p. 3.

25In terms of the required training, which was maintained in the letter of counsel, I conclude that such training is also not “discipline.” Although training was imposed in the original letter of reprimand, it clearly was separate from the “discipline” part of the letter. It was, at the time as well as in the letter of counsel, part of the Ministry’s attempt to provide education, training and coaching opportunities to address the grievor’s communication with stakeholders. The training was remedial, not disciplinary. The training may well have felt like “punishment” to the grievor, but its purpose was not to punish or chastise, but to educate.

26I conclude, however, that the grievor’s claim for alleged damages is not moot. The claim for alleged damages for loss of reputation and mental distress stem from the original investigation and discipline. The fact that the Employer subsequently rescinded the discipline does not eliminate the alleged impact of its action, which occurred at the time. Whether the grievor can, in fact, establish such losses is a different question. Right now, the issue is whether that claim is still a “live controversy”. I conclude that it is.

27In Re OPSEU (Union Grievance) and Ministry of Correctional Services, supra, the Union challenged the Employer’s requirement that employees at the Toronto Jail produce a medical certificate of illness based on suspected group abuse of sick leave, rather than individual suspicion of abuse. The Union sought a cease and desist order, a declaration and “[a]ny other remedy that the Board sees fit.” Before the hearing, management announced that it ceased application of that policy. Then, at the first day of hearing, the Employer acknowledged that its practice violated the collective agreement and that all employees who lost pay as a result would be reimbursed. The Employer then took the position that the grievance was moot. As of the date of the hearing, however, the issue of compensation had not been fully resolved, and the grievance, in part on this basis, was found not to be moot.

28Similarly, in Re OPSEU (Ferraro et al.), supra, a grievance was filed concerning the assignment of responsibilities. Through an agreement of the parties, the position in question was eventually reclassified. The Employer argued that the grievance was therefore moot, but the Board disagreed, ruling in part that because “the parties expressly agreed to disagree on the issue of retroactive compensation, if any, for new classifications that were created by settlement” that issue “continues to be a live controversy between the parties.”

29In this case, although the underlying issue (the letter of discipline) has been rendered moot by the Employer’s rescission of the discipline, the grievor’s claim for damages flowing from that original discipline has not been resolved. In the words of the Court in Re Borowski, supra, a decision on that issue will resolve some controversy which affects the rights of the parties. There is still a “live controversy” concerning alleged damages which affects the rights of the parties.

30In so ruling, I do not agree with the Employer that because it rescinded the discipline there is no longer a “hook” into the collective agreement for the Board to have jurisdiction over the alleged damages to the grievor in the context of this case. Without question, there originally was a “hook” into the collective agreement – formal discipline had been issued and the grievor challenged that discipline as being without just cause. The alleged damages flow directly from the imposition of that discipline.

As noted in Re OPSEU (Union Grievance), supra at pp. 15-16:

Some caution … is clearly warranted because of the control the employer has to alter the circumstances upon which a grievance is founded and thereby avoid a decision on the merits. ….[T]here may be times when, despite a substantial change in circumstances the grievor or union has a continuing interest in a determination of the grievance…. Each case must be decided on its particular facts. …

In my view, this is a case where the grievor has a continuing interest in a determination of whether he has suffered any damages as a result of the Employer’s actions. Neither that interest, nor his claim, was extinguished when the Employer rescinded the original discipline.

31Finally, I want to distinguish the case of Re Donna Lee Jones, supra. In that case the grievor was issued a letter of reprimand which she grieved. Her grievance sought removal of the letter, a letter of apology and monetary damages for “stress, grief and personal suffering…” By the time of the hearing, more than three years had passed and the letter had been removed from her personnel file. The Employer argued that the PSGB had no jurisdiction because the case was moot, and further that the Board had no jurisdiction to award those types of remedies. Without addressing the latter issue, the Board determined that the grievance was moot because the letter had been removed from the grievor’s record.

32Counsel for the Union in the instant case noted that the law had substantially changed with respect to the issue of damages since the issuance of that decision in 1995. I agree. Accordingly, I do not conclude that the decision in Re Donna Lee Jones, supra, is determinative, nor does it require dismissal of the instant grievance.

Conclusion:

For all of the foregoing reasons, I conclude:

The grievance as it relates to the discipline imposed on the grievor is moot.
The grievance as it relates to the alleged damages for loss of reputation and mental distress is not moot.
I remain seized.

Dated at Toronto this 6th day of July 2011.