GSB#2012-0934

UNION#2012-0453-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Taylor)

Union

• and -

The Crown in Right of Ontario (St. Lawrence Parks Commission)

Employer

BEFORE

Jules Bloch

Vice-Chair

FOR THE UNION

Adrienne Lei Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING CONFERENCE CALLS

April 5, 2013 May 22, July 25, November 25, 2013, February 12, 2014

Decision

1I was appointed to hear the grievance of Patrick Taylor. The hearing was held in Kingston Ontario on April 5, 2013. The parties agreed I had jurisdiction to hear this matter.

2On April 5, 2013, the parties executed a Memorandum of Settlement (“Mos”), which directed the reassessment of the qualifications and abilities of the Grievor and the incumbent for the blacksmith position. Pursuant to the terms of the settlement, the parties jointly agreed to evaluators.

3The Grievance Settlement Board (“GSB” or “the Board”) convened a telephone conference call on February 12, 2014 at 4:00 pm. The conference call was held to deal with an issue of actual bias or apprehension of bias raised by the Employer against an evaluator chosen by the parties for his expertise in historical blacksmithing.

4The parties agree that this is a Med/Arb and that this decision has no precedential value.

5In arriving at my conclusions, I have reviewed all of the submissions and the case law presented by the parties. In rendering my decisions, I have not reproduced the parties’ arguments or the case law citations.

6The evaluation procedure was agreed to in a MoS dated April 5, 2013. The parties agreed that L.D. Johnston be appointed blacksmith evaluator. Mr. Johnston issued his evaluation on October 2, 2013.

7Mr. Johnston is not a professional evaluator. He is a professional blacksmith, Gunsmith and Restoration Consultant. His evaluation of the candidates is unusual. He breaks down their individual abilities in great detail. He finds Mark Garvock, the successful applicant in the original job posting, to be completely wanting in most aspects of historical blacksmithing.

8What makes Mr. Johnston’s evaluation unusual is his running commentary throughout the evaluation report. He dissects the evaluatees’ strengths and weaknesses and then offers, what he perceives to be, helpful commentary. Parts of the commentary could be described as demeaning.

9The St. Lawrence Parks Commission (“the Commission” or “the Employer”) asserts that I should find actual bias in the evaluation of Mark Garvock. In the alternative, the Commission submits that I should find that the evaluator, Mr. Johnston displayed an apprehension of bias against Mr. Garvock. In either case, I should, in the Commission’s view, declare the historical blacksmith evaluation to be of no value, and direct the parties to have someone else perform the historical blacksmith evaluation.

Actual Bias

10The Commission’s actual bias allegations stem from what the commission states is the state of mind of the evaluator. The commission asserts that because Mr. Johnston concluded that Mr. Garvock had, “very little experience or knowledge in this field”; “no background as a farrier”; and that Mr. Garvock was a “low skill journeyman”, he is biased.

11To find actual bias, there must be evidence of the evaluator forming a global impression of a candidate positive or negative based on a characteristic or other information that may bias you. (AMAPCEO (Alderson) v. Ontario, GSB#2006-1007).

12Context is very important when looking at actual bias. Mr. Johnston is a historical blacksmith. He was chosen to evaluate the candidates precisely because of his experience as a historical blacksmith.

13Mr. Johnston uses inappropriate language to explain his findings. There are some very unfortunate and unnecessary comments made about Mr. Garvock by Mr. Johnston. Mr. Johnston finds that Mr. Garvock is wanting in many areas of historical blacksmithing. Mr. Johnston does not express himself well, however, explaining Mr. Garvock’s abilities, after testing, in an inappropriate manner does not change the obvious problems that Mr. Garvock demonstrated through the written and practical testing.

14While it is true that Mr. Johnston has great experience in historical blacksmithing and he has an opinion about the type of blacksmith that is necessary to work at a historical site, he has not demonstrated actual bias. I find that Mr. Johnston’s comments and his view of the candidates was made after he had performed the tests and not before. The conclusions Mr. Johnston arrives at are not biased, rather they are conclusions he reaches based on the facts he finds during the testing. The Commission has not demonstrated to the Board, what preconceived animus or improper predisposition Mr. Johnston has against Mr. Garvock.

Apprehension of Bias

15I adopt the test of Apprehension of bias from the decision Parker v. Canada (Deputy Minister of Indian and Northern Affairs), 2010 PSST 21 (Archibald) at paragraph 52:

Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complaint?

16The test is an objective test from the vantage point of a reasonably informed bystander. In this case, the parties agreed to a historical blacksmith to do the evaluation. By choosing a historical blacksmith to perform the evaluations the parties have consented to someone who has a definite perspective on blacksmithing. In effect, the parties have agreed to a historical orientation and approach to be used in the evaluation. This is not an apprehension of bias issue.

17It is unfortunate that Mr. Johnston used inappropriate language in explaining his conclusions, however, that does not change the findings in the evaluation. The Employer has not raised any objection to the actual testing; the objection is to the running commentary found throughout the evaluation. This does not change the fact that, based on the practical test and the written test, that Mr. Garvock’s skills as an historical blacksmith are not as good as Mr. Taylor’s historical blacksmith skills.

18All of the Employer’s assertions that the evaluator displayed an apprehension of bias have to do with the written communication of the results and not the testing itself. The Commission has not raised any issue about the actual testing.

19The evaluator was chosen precisely for his historical approach to the evaluation. In asking me to conclude that the evaluator displayed an apprehension of bias, the Commission is relying on the evaluator’s approach to the evaluation and the conclusions he reached after the testing. The parties sanctioned the evaluator’s approach when they agreed that a historical blacksmith would conduct the evaluation.

20The test results speak for themselves. Looking at the marking scheme of the written portion of the test and the description of the practical test, one cannot discern any form of bias, rather you find strong opinions based on a through evaluation. I find that the evaluation of Mr. Garvock and Mr. Taylor by Mr. Johnston was performed without any form of bias.

21Mr. Johnston’s written comments are not the type of comments that one expects to find in an evaluation, however, their existence does not point to actual bias or an apprehension of bias, but rather conclusions found on the basis of the various completed tests. In sum, I find there is neither actual bias nor an apprehension of bias on the part of the evaluator Mr. Johnston.

22Although I find that Mr. Johnston conducted his task without bias or an apprehension of bias, I find that some of the comments made in describing the evaluation of both Mr. Garvock and Mr. Taylor to be inappropriate. To remedy the issue of inappropriate comments, I direct the Employer to identify to the Union the offending comments that it wishes to have expunged from the record. If the Union is not in accord with expunging the offending comments that the Employer wants expunged, the Board will canvass the parties for dates for a teleconference which will allow the Board to determine which comments stay on the record and which comments are expunged.

23I am seized of the application, interpretation and implementation of this decision.