GSB#2010-0007, 2010-0029

UNION#2010-0542-0010, 2010-0542-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Amurao)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING

May 3, 2012.

DECISION

1The grievance before me alleges that the grievor, Ms. Fidela Amurao, who was employed with the Family Responsibility Office of the Ministry of Community and Social Services, was terminated without just cause.

2Ms. Sheila Riddell, Union Counsel, now appears before me, with the Grievor in attendance seeking to withdraw the grievance on a "without prejudice" basis, in particular, with respect to her rights pursuant to the Ontario Human Rights Code. The Grievor had filed a complaint with the Human Rights Tribunal in 2010 following both her termination and the filing of her grievance here.

3In response to the filing of that complaint, the Employer brought a Motion that this Board assume jurisdiction and consider all aspects of the Grievor's unjust dismissal complaint including any matters arising pursuant to the Ontario Human Rights Code as identified in Ms. Amurao's application to that Tribunal. The Union did not oppose that Motion and took no position for or against the Employer's request.

4In the circumstances, on August 11, 2011, I granted the Employer's Motion and concluded that this "Board will be obliged to consider the Employer's conduct and the Grievor's termination in the context of potential violations of the Ontario Human Rights Code. I conclude that this is an appropriate forum to address those issues."

5In that decision I also directed the Union to provide particulars of the Employer conduct which the Grievor alleged to have been discriminatory contrary to the Ontario Human Rights Code.

6Subsequently, in a response to a further Motion by the Employer, another decision was rendered on March 9, 2012 directing disclosure of documents by the Grievor with respect to real estate transactions and in particular mortgage applications in which she was involved in 2008.

7In that decision the Grievor was directed to produce all relevant documents on or before March 23, 2012. Furthermore, a timeline of that same date, March 23, 2012 was established for the identification of the particulars which had been ordered in the decision of August 2011.

8Several Hearing days had been scheduled for April, May and later in 2012 in order to deal with the merits of the case. However, on or about April 5th the Union, through Ms. Riddell, moved to adjourn the April and May hearing dates on the basis that:

1. The Grievor would be unable to attend due to medical reasons; and
2. Due to the loss of a significant family member in February.

9The adjournment was opposed by the Employer on the basis that the existing medical note had not yet been produced nor was it, as described, adequate to support the adjournment of this case.

10I subsequently confirmed my oral decision of April 5th as follows:

"I ruled orally that there was as yet insufficient information available upon which to grant the adjournment. The motion was declined on the understanding that the Union would produce further medical information on or before Friday, April 13th. In the event the information is not produced by then and/or is insufficient to elicit the Employer's consent, the request to adjourn could be addressed at the next scheduled hearing day in April (April 23rd)."

11On April 23rd proceedings convened as scheduled. However, two preliminary issues were still alive at that time:

1. The productions directed in my earlier decisions had yet to be satisfied by the Grievor;
2. The Union renewed its request for an adjournment of the remaining April and May dates in support of which the Union produced further medical explanations from the Grievor's personal physician.

In the circumstances there were a total of three medical notes by the Physician introduced by the Union as follows:

1. The first identified but not produced prior to my oral ruling on April 5th was dated February 16th, 2012 and read as follows: "Patient seen for medical reason not able to attend mediation meeting";
2. The second was dated April 10, 2012 and read as follows: "Patient not able to attend arbitration. She is on bereavement leave as her grandmother passed away recently. She is under increased mental stress, mood is down, not able to concentrate, no appetite, complaining of insomnia, lack initiative. She is still going through the grieving process."
3. The third report was provided in response to a detailed request from Ms. Riddell to the Physician. The redacted version of the Physician's April 19th reply reads as follows:

"Based on your description regarding Ms. Amurao's grievance arbitration:

1. Ms. Amurao is medically unable to participate in any of the arbitration dates (April 23, 30, May 3, 10).
2. Patient is presently _____, not able to communicate properly, anxious, stressed from preparing for her claims and complains of insomnia requiring medication. She is being treated for her ___medication.
3. I don't see any way she can be accommodated in order to attend the above mentioned arbitration dates.
4. With regards to the latter dates, May 3 and May 10, patient is not likely to improve due to the ___ and all the pressure she has right now."

12The doctor's report was, as indicated, a response to Union counsel's letter of enquiry. Amongst other things the letter identified hearing dates scheduled for April 23rd and 30th as well as for May 3rd and May 10th but none others. It also described the process as "upsetting" in itself and that Ms. Amurao herself might be required to testify as early as April 30th. It made no mention, nor did the Physician's report, of grief respecting the passing of the Grievor's relative in February.

13With respect to the documents not yet produced by the Grievor, no further order or ruling was pursued in as much as Union counsel volunteered to seek out the required documentation herself failing which a subpoena would be requisitioned.

14As to the adjournment request, it was allowed with respect to the remaining April 30th date. However, it was not granted for the May 3rd or subsequent dates for several reasons:

1. As to the note respecting the passing of Ms. Amurao's grandmother, it was unclear if it was also being relied upon when produced at the April 23 hearing. In any event, Ms. Amurao had left the Philippines and her grandmother as a 9 year old child and had not returned there for her grandmother's funeral. In the circumstances, it was doubtful, in my view, that her grief would, over two months later, still be an incapacitating factor with respect to these proceedings.
2. With respect to the April 19th redacted Doctor's reply to Ms. Riddell's letter of inquiry, it was, in my view, unreliable since it implied that Ms. Amurao might be indefinitely incapacitated from participating in these proceedings even with medication, and gave no timeline as to when that might change. Furthermore, the doctor did not explain precisely what is meant by "unable to participate". Her attendances and conduct up to and including April 23rd (and again on May 3rd itself) have been inconsistent with an inability to understand proceedings or give instructions to counsel.
3. The doctor separated the May dates from those in April and indicated that he was unsure and speculating that the Grievor was "not likely to improve due to...all the pressure she has right now". To adjourn beyond April was, in my view, not warranted by this opinion.
4. The Physician explained that the stress and symptoms identified were induced by participation in the arbitration process itself. It was my view that these are normal reactions experienced by most direct participants in such legal proceedings. While I was sympathetic to Ms. Amurao's plight, I was not satisfied that, with proper medication if required, she would be unable to participate as she had in the past at or before the scheduled May 3rd date (10 days later). Indeed, as it turned out she was present and appeared to be competent to deal effectively with the process at that time.
5. There was no reference in the doctor's report as to what might have changed since August 2011 to now incapacitate Ms. Amurao from effectively participating in these proceedings as she had done from their inception.
6. The letter to the Physician suggested that Ms. Amurao might be required to testify as early as April 30th; however, given the detailed and extensive evidence the employer would be required to provide, it was doubtful that Ms. Amurao would be called upon for several months let alone during April or May.
7. In brief, I concluded that the doctor's report was unreliable to disqualify Ms. Amurao from these proceedings beyond the end of April, 2012.
8. I, therefore, adjourned the matter until the May 3rd date at which time Ms. Amurao did appear for the presentation of the instant request to withdraw.

15In the circumstances, a few days before the May 3rd hearing day, Union counsel on behalf of Ms. Amurao sought to withdraw this grievance without prejudice to Ms. Amurao's rights to pursue her complaint before the Human Rights Tribunal. The Employer opposed that the withdrawal be granted on a "without prejudice" basis and the issue was presented before me by counsel in the presence of the Grievor on the scheduled May 3rd hearing date.

16On behalf of the Grievor, Ms. Riddell submitted that the withdrawal without prejudice to the Grievor's Human Rights Complaint should be endorsed by this Board regardless of the reasons for the withdrawal. Be that as it may, underlying that request was the Grievor's concern that an adjournment of these proceedings was not granted when she felt unfit to participate. Accordingly, the withdrawal should not be construed as an abuse of process. Furthermore, it would be inappropriate for this Board to characterize the withdrawal as being on a "with prejudice" basis.

17For the Employer, Ms. Jennifer Richards took the position that the withdrawal at this stage in proceedings especially with a view to pursuing the matter before the Human Right Tribunal was tantamount to an abuse of process. At this stage, the Vice Chair had ruled and assumed jurisdiction over the Human Rights issues arising with respect to Ms. Amurao's termination. Furthermore, the Human Rights Tribunal, in mid 2011, had deferred its consideration of the Grievor's complaint to proceedings before this Board. To attempt now, in 2012, months after those decisions had been rendered, to cherry pick forums and avoid proceedings before this Board is in itself an abuse of process. Although there has been no evidence introduced as yet on the merits, several preliminary matters have been determined, and, continued delay by way of failure to comply with the existing production order will be exacerbated by the change of forum. Those delays are prejudicial to the Employer whose key witness has already retired from service and continues to appear at proceedings under subpoena of the Board. In all the circumstances, there must be consequences to the withdrawal and, in this case, the appropriate consequence is that the Grievor and Union ought not to be permitted to withdraw without the caveat that the withdrawal is "with prejudice".

18In support of their respective positions counsel referred to the following authorities:

1. Re Reliacare Inc. (Maitland Manor Health Care Centre) and Service Employees Union, Local 210 (1991) 20 L.A.C. (4th) 171 (Dissanayake)
2. Re Verspeeten Cartage Ltd. and Teamsters, Local 141 (Burtch) (2001) , 103 L.A.C. (4th) 174 (Davie)
3. Re Canadian Red Cross Blood Transfusion Service and Ontario Nurses Association (1981) , 30 L.A.C. (2d) 23 (Shime).
4. Health Labour Relations Association of British Columbia (Grace Hospital) and Hospital Employees Union, Local 180 (1985) , 20 L.A.C. (3d) 247 (Kelleher);
5. Re Canadian Niagara Hotels Inc. and U.N.I.T.E. H.E.R.E. (Spasic) (2008), 168 L.A.C. (4th) 429 (Herman);
6. Bilt Rite Upholstering Co. Ltd. and United Steelworkers, Local 32 U.D. (1990) , 9 L.A.C. (4th) 361 (Barrett);
7. Surrey Memorial Hospital v. Hospital Employees' Union (Rose Grievance) (2005), , 141 L.A.C. (4th) 278 (Taylor).

DISCUSSION AND DECISION

19The authorities cited indicated that only in rare circumstances was a withdrawal by a grieving party not permitted. For instance, where the evidence or case of the opposing party had been substantially introduced an arbitrator might, rather than allowing withdrawal, dismiss the grievance as unsuccessful. However, aside from those rare circumstances, the ability or entitlement to withdraw has generally been recognized in almost all cases. On the other hand, I found no authority to support the suggestion that I should endorse the withdrawal on either a "with prejudice" or, with one exception, on a "without prejudice" basis. The exception, related to an award issued by Arbitrator Dissanayake in the Reliacare Inc. case. At page 177 of that decision he states that:

"In my opinion, the party initiating a grievance is entitled to withdraw that grievance, either unconditionally or on a without prejudice basis. This is so whether or not, as here, the grievance had become moot for all practical purposes. The other party cannot insist that unless the grievance is withdrawn unconditionally, the hearing must proceed."

20Notwithstanding that view, at page 178 Arbitrator Dissanayake disposes of the matter as follows:

"To summarize my disposition of this matter, the union is entitled to withdraw the grievance and take the position that the withdrawal was without prejudice. It is on record that the employer does not agree that the withdrawal was without prejudice. If the issue comes up during a future proceeding, it will be up to that board of arbitration to determine whether the union was entitled to withdraw this grievance without prejudice and if so what that means in the particular circumstances of the matter before it."

21Accordingly, in spite of his expressed opinion that it was open to a union to withdraw "without prejudice", his award did not stipulate or confirm that it was indeed without prejudice such that the employer would also be bound by that finding. Rather, he properly left the determination of the consequences of the withdrawal to be decided in any future proceeding before another tribunal. In any event, it is my view that the analysis provided by Arbitrator Davie in the Verspeeten Cartage Ltd. award is preferable to that of Mr. Dissanayake.

22Although the facts before Ms. Davie were somewhat different than those here, the issues were almost identical. A number of preliminary issues had been presented and there was a simultaneous proceeding instigated at the Canada Labour Relations Board. The submissions of counsel with respect to the withdrawal of the grievance and arbitration before her were similar to those now before me except in that case the employer additionally sought a ruling that the grievance be dismissed as if the merits of the case had been heard and determined. I have considered that decision and am of the view that it is substantially correct in its analysis and findings. Accordingly, I have quoted much of it in detail below including Ms. Davie's references to the decision of Mr. Dissanayake in the Reliacare award:

In our view, the awards referred to by both parties indicate that a Board of Arbitration has jurisdiction to determine whether or not to accept a Union's request to withdraw a grievance referred to it, with our without the imposition of terms. In this case, a necessary corollary to that jurisdiction is the power to refuse to accept the Union's request to withdraw the grievance and continue to adjudicate and render a decision upon the preliminary matters which were argued before us on November 8, 2011. Having determined that we have the jurisdiction to do so, the question becomes whether we ought to exercise that jurisdiction in a particular fashion. Should we permit the Union's withdrawal "without prejudice" or should we decide the preliminary matters? In our view that is a matter of discretion, specific to the facts of each case, and dependent largely upon the timing of the Union's request, together with the circumstances surrounding the Union's request to withdraw "without prejudice". To the extent that arbitrator Dissanayake in Re Reliacare, supra, suggests at p. 177 that "the party initiating a grievance is entitled to withdraw that grievance, either unconditionally or on a without prejudice basis" we respectfully disagree. In circumstances such as those before us, where the grievance has been referred to arbitration, a hearing has commenced, and preliminary issues have been argued before a Board of Arbitration constituted pursuant to the provisions of the collective agreement, it is for the Board of Arbitration to determine whether or not it will accede to the Union's request, and exercise its discretion in favour of a Union which seeks to withdraw the grievances "without prejudice". In the present circumstances, where the grievances have been referred to arbitration and certain preliminary matters have been argued, although not yet determined, and in the face of the employer's objection, it is not open to the Union, or the party initiating the grievances, to unilaterally withdraw the grievances "without prejudice"…

We do not accept Employer counsel's submissions that the Union's request to withdraw the grievance is an abuse of process. Although Employer counsel cites the time and expense involved in being forced to proceed to arbitration, as noted in Re Scott Maritimes Ltd., supra, at p. 331: "that is the usual result in arbitration cases, regardless of success or failure". Under the terms of the collective agreement the Union has the right to file grievances and proceed to arbitration. The time and expense associated with the exercise of that right which are borne by the Employer party to the collective agreement do not amount to "prejudice" to the Employer as that term is commonly understood in the labour arbitration context. In the circumstances of this case, the Union's request to withdraw the grievances notwithstanding the Employer's expenditure of time and expense is also not an "abuse of process" within the meaning of the Canada Labour Code.

However, permitting the Union to simply withdraw these grievances "without prejudice" and without comment from the Board could perhaps result in prejudice to the Employer or an abuse of process in the future. For example, it would clearly be an abuse of the arbitration process if the Union were permitted to withdraw these grievances without prejudice, and thereafter sought to refile the same or substantially similar grievances, dealing with the same fact situation and seeking the same or substantially similar relief, and then seek to have those grievances heard and determined by a different Board of Arbitration on the basis that the earlier grievances had been withdrawn "without prejudice". (See for example Canadian Labour Arbitration, Brown & Beatty (3rd ed.) at 2:3230 and the cases referred to therein.)

We agree with the preponderant and prevailing authority which indicates that a Union's decision to withdraw grievances from arbitration once a Board of Arbitration has been constituted and a hearing has commenced is not without consequences. In our view, the Union cannot seek to avoid those consequences by unilaterally indicating that its withdrawal is "without prejudice".

Acceptance of a principle that consequences attach to a withdrawal of the grievances at this stage of the proceedings however does not equate with the Employer's position that the grievances should instead be dismissed, and that such dismissal is, in effect, tantamount to an adjudicated finding on the merits. Whether or not that result should follow depends on the specific circumstances of the case and, as noted earlier, in particular the timing and factual circumstances surrounding the Union's request to withdraw the grievances from arbitration…

It is apparent from the correspondence that the real issue between the parties is the effect or consequences which the Union's request to withdraw the grievances "without prejudice" at this stage of these proceedings should have on the proceedings before the Canada Board. In our view the Employer should not be denied the right to make submissions on that matter to the Canada Board. If we were simply to permit the Union to withdraw "without prejudice" the Employer could, perhaps, be precluded from raising the issue or making submissions to the Canada Board.

In our view the Canada Board is the appropriate tribunal to determine the effect or consequences of the Union's request to withdraw. In dealing with that issue, the Canada Board should not be constrained by any terms or conditions which this Arbitration Board might make with respect to that withdrawal, such as a condition that the grievances are withdrawn "without prejudice".

We therefore decline the Union's request to withdraw the grievances "without prejudice" and record merely that this Board of Arbitration has granted the Union's request to withdraw these grievances from arbitration. In so doing we leave for the parties to raise, and for the Canada Board to determine, the effect or consequences which the withdrawal has on the proceedings before that tribunal. Any issues relating to res judicata or estoppel, if raised, are best left to the determination of the Canada Board. We note parenthetically, and as obiter dicta, that, even if we had acceded to the Employer's alternative request to dismiss the grievances, it would still be within the jurisdiction of the Canada Board to determine the effect or consequences of such dismissal on the proceedings before it…

In the result we will permit the Union to withdraw the grievances. The withdrawal, as a simple withdrawal, and without qualifying condition that it is "without prejudice", will leave it open to the parties to argue, if necessary, at some future point in time, before another tribunal, the effect of the withdrawal. It is clear that in this case the parties disagree on the effect or consequences which should flow from our decision to permit the Union to withdraw."

23As indicated earlier, I agree with Ms. Davie's analysis. I too am of the view that a dismissal as if on the merits, if at all warranted, would be premature at this stage of proceedings before me. Nor would it be appropriate for this board to designate the withdrawal as being "with prejudice". As in the case before Ms. Davie, only preliminary issues have been ruled upon or dealt with. Similarly, it is my view that the withdrawal itself cannot be construed as an abuse of process before this Board. That is not to say that another tribunal faced with substantially the same matter at a future time might well take a different view. Indeed, such a tribunal would be faced with the prospect of determining whether or not the Grievor was engaged in forum shopping and, if so, the consequences, if any, to follow.

24In any event, taking into consideration the submissions of the parties, the status of this matter, and the authorities, it is my view that the Grievor, Ms. Amurao, is entitled to withdraw her grievance at this time neither "with" nor "without prejudice"; it is simply a withdrawal. An attempt to bring it on again in some way before this tribunal would presumably be viewed as inappropriate. However, other tribunals such as The Ontario Human Rights Tribunal may take a different view should the matter properly come before them.

25In all the circumstances, the grievance and all issues concerning the Grievor's termination which were before me are hereby considered and confirmed as withdrawn by the Union and Grievor.