GSB#2010-2489

UNION#2010-0432-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cabana)

Union

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Katherine Ferreira and Anne Cumming Koskie Minsky LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

HEARING DATES SUBMISSIONS

November 23, 2011, January 30 & May 18, 2012. September 19 and October 12, 2012.

Decision

1In July of 2009 Angela Cabana filed a grievance that alleged she was been harassed in the workplace. According to the grievor, this harassment took place over a substantial period of time. It was alleged that the harassment she experienced had two elements. The first was that the Employer failed to provide her with work that is congruent with her skills and ability despite her repeated requests for change. The second aspect of harassment was the ill treatment she received at the hands of her managers and her co-workers. The grievor alleged that she was “relentlessly bullied” and demeaned over a sustained period with the full knowledge of the Employer. It was contended that this treatment was intended to cause her to leave the workplace. During opening statements, the Union underscored that the Employer failed to protect the grievor from the ill treatment of both her managers and her co-workers.

2Additionally, the grievor was absent for a considerable period of time on sick leave as the result of this treatment according to the Union. By way of remedy the Union requested that the grievor should be made whole for any monies lost as the result of this leave and further, damages should be awarded as the result of the harm caused by the harassment.

3The Employer opted to have a very brief opening statement at the commencement of the proceedings. It is sufficient to say that the allegations were denied. The Employer stated that it had no part in and no knowledge of bullying or demeaning conduct against the grievor. Further, it urged that it had no responsibility for the grievor’s sick leave. Accordingly, no remedy should be ordered.

4The hearings into this matter have commenced and the grievor has been testifying on her own behalf. Prior to the last day of hearing, the Union put the Employer on notice that it would bring a motion before this Board. It was the Union’s position that the “effect of the tort of ‘intrusion upon seclusion’ as contemplated in Jones v Tsige (2012 ONCA 32)”, is significant to the disposition of this grievance.

5This notice was set out in a letter dated March 7, 2012. In order to understand the basis of the Union’s position, it is helpful to set out the substance of this letter. It stated:

You will recall that the Union provided particulars of its case in September of 2011. These particulars include an account of an incident that occurred in, approximately, February lf 2010 while Ms. Cabana (“Cabana”) was on leave from work. Shortly before Cabana was due to return, her colleague Bonnie Sweet (“Sweet”) accessed Cabana’s Employment Insurance (“E.I.”) file. Sweet accessed this file while at work and used the Employer’s computer do to so. Sweet showed Cabana’s E.I. information to at least one other colleague, Clair Lesage (“Lesage”). Sweet suggested to Lesage that the E.I. information indicated that Cabana was about to run out of benefits and that the closure of benefits was the reason Cabana had decided to return to work.

It is the Union’s position that Sweet’s accessing of Cabana’s E.I. records constituted 1) an unauthorized intrusion which was 2) highly offensive to the reasonable person 3) the matter intruded upon was private, and finally 4) the intrusion caused anguished and suffering.

The four criteria provided above must be met in order to make out a cause of action for intrusion upon seclusion. (see paragraph 56 of Jones v. Tsige, supra). It is the Union’s position that the accessing and dissemination of private and confidential information as described above meets the criteria identified in Jones v Tsige.

The Employer bears vicarious liability in respect of this tort. Vicarious liability is – as the Supreme Court has found “a theory that holds one person responsible for the misconduct of another because of the relationship between them” (See comment of Major J. in 671122 Ontario Ltd. V. Sagaz Industries Canada Inc. (2001), 2001 SCC 59, 204 D.L.R. (4th) 542 (S.C.C.) reconsideration refused (2001), 10 C.C.L.T. (3d) 292 (S.C.C. at 551 [D.L.R.]).

The Court in Bazely v. Curry 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 [Bazely] set out a two-part approach to determining whether and when vicarious liability should be imposed on an employer. First, the Court must determine if there are precedents that hold vicarious liability should be imposed in the circumstances. In the event that there are no precedents, the Court will look at whether the wrongful act can be sufficiently connected to the conduct authorized by the employer or principal.

As the tort “intrusion upon seclusion” was only introduced recently there are no obvious precedents. We therefore look to the second aspect of the test, i.e., whether the wrongful act can be sufficiently connected to conduct authorized by the employer to warrant employer liability.

As you know, Cabana filed her grievance prior to the improper review of her E.I. records by her colleague. It is our position that the harassment suffered by Cabana was of a continuing nature as is evidenced by (among other things) Sweet’s behavior as outlined above. It is our position, further, that the fact that the harassment was of a continuing nature demonstrates that the employer permitted of a workplace in environment which such improper behaviors were tolerated and even encouraged. The fact that a grievance was filed in regards to such behaviors did not put an end to them. Then the harassment continued even after Cabana filed her grievance demonstrates a “sufficient connection” between (in this case) Sweet’s wrongful acts and the milieu in which Cabana worked wherein harmful and harassing behaviors were permitted and effectively authorized by the employer.

Employers may be vicariously liable for the torts of employees committed during the course of their employment. Employees’ tortious conduct may include acts condoned by employers in which case the employer bears vicarious liability for the conduct of their employees even when the wrongdoer was acting in contravention of employer policy and expectation. It is the Union’s position that the Employer condoned the tortious actions described. The Union also takes the position that a denial of control over the wrongdoer when the wrongdoer was engaged in a tortious course of action does not constitute a complete defense. Employers may be found vicariously liable or employers whose employees have effectively abused their powers, as is the case in the matter at hand.

6The Union informed the Employer that it would be putting forward an interim motion to this Board regarding its jurisdiction to find the Employer vicariously liable for the “intrusion upon seclusion” suffered by the grievor.

7A day was spent hearing submissions in this regard. For the purposes of this decision, it is sufficient to say that the Union’s argument was more fulsome that is set out in its above letter and included submissions regarding the effect of Freedom of Information and Protection and Privacy Act, RSO 1990, Chapter F.31.

8It was not made clear by the Union why it thought this matter of jurisdiction had to be decided at this point in the proceedings. The Employer suggested that an interim decision might be necessary for the purposes of third party notice.

9The Employer also provided comprehensive submissions. Suffice it to say that the Employer strongly disagreed with the Union’s view that this Board could and should take jurisdiction over the matter of Employer vicarious liability. Simply put, it was urged that there is no direct or inferential link in the collective agreement that contemplates Employer responsibility for the conduct between two individuals in the workplace.

10One of the Employer’s arguments was regarding the affect of Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services) and OPSEU (Monk) GSB#1995/1694 (Gray).

11As of the day of hearing held to hear submissions on this motion, Re Monk was awaiting a decision from divisional court. It was agreed to await that decision and the parties would make further submissions.

12Once released, further written submissions were made over a period of time. Shortly thereafter the Employer notified the Board that Leave to Appeal the Divisional Court decision was granted and a date for hearing is yet to be scheduled. At that point, the Employer sought leave to withdraw its arguments regarding the applicability of Re Monk upon the matter at hand.

13After much consideration of this matter, I have decided that I will reserve on the matter of this Board’s jurisdiction to determine whether the Employer is vicariously liable for the conduct of Ms. Sweet and/or others.

14No argument was proffered that would lead me to find that a decision on this matter is needed at this point in the proceedings. Neither party suggested that the scope of the allegations or facts upon which the allegations are based would be affected by this ruling. Indeed, the Union has been clear from the outset that it is seeking damages for harassment of the grievor by her co-workers and managers. It noted in its opening statement that it intends to introduce this evidence and there was no suggestion from the Employer that the evidence is improper or inadmissible.

15The Union’s request regarding jurisdiction is significant and of considerable importance to both parties. I am of the view that there is much benefit to reserve a decision on this matter until the conclusion of the evidence.

16Further, I am not convinced that the matter of third party notice would be affected by a ruling at this time. The Union is asking the Board to find that it has the jurisdiction to find the Employer vicariously liable. It was not asking this Board to make an award of damages against any individual employee.

17Leaving this determination until the end of the evidence will allow the parties the opportunity to ask the Board to consider the affect, if any, of Re Monk. Hopefully a decision from the Court of Appeal will be known by that time.

18Accordingly, I reserve my decision on this matter. The parties will address the matter again at the conclusion of the evidence in their final submissions. The hearings will continue on the dates already scheduled.