GSB#2013-1552, 2013-1553, 2013-1554, 2013-1591, 2013-1592, 2013-1593,

2013-1594, 2013-1595, 2013-1596, 2013-1597, 2013-1598, 2012-3030, 2012-3031, 2012-3032,

2012-3033

UNION# 2013-0440-0001; 2013-0440-0002; 2013-0440-0003; 2013-0440-0004; 2013-0440-0005;

2013-0440-0006; 2013-0440-0007; 2013-0440-0008; 2013-0440-0009; 2013-0440-0010;

2013-0440-0011, 2012-0440-0006, 2012-0440-0007, 2012-0440-0008, 2012-0440-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moore et al)

Union

• and -

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

Employer

BEFORE

Marilyn Nairn

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Thomas Ayers Ministry of Government Services Legal Services Branch Counsel

Suneel Bahal Ministry of Government Services Legal Services Branch Senior Counsel

HEARING

July 11, 2014

DECISION

1This decision deals with a preliminary motion brought by the employer to have the grievances of three individuals heard together. Alternately, the employer seeks to have the ‘discipline’ grievances of these three individuals heard together while the remaining grievances of Dale Moore be deferred pending that outcome.

2Mr. Moore has filed eleven grievances. The hearing of those grievances has been scheduled before this Vice-Chair and dates are booked. Ryan Portwine and Robert MacNaull have each filed two grievances. Those grievances have been referred to the Board but have not as yet been scheduled. All three grievors are Correctional Officers. Following an alleged use-of-force incident at the St. Lawrence Valley Correctional and Treatment Centre/Brockville Jail on January 23, 2011 and the ensuing investigation, all three grievors were disciplined.

3In support of its motion, the employer filed copies of the grievances and letters of discipline with respect to each grievor. A six-day suspension was imposed on Mr. Portwine on June 29, 2012. Two grievances were filed on his behalf on July 21, 2012. Those grievances assert that discipline was imposed in “an unfair manner” and that there was an “unreasonable delay from management in the investigative and disciplinary process”. A fifteen-day suspension was imposed on Mr. MacNaull on July 4, 2012. On July 30, 2012 a grievance alleging unreasonable delay in the investigative and disciplinary process was filed on his behalf. On October 2, 2012 a second grievance alleging that discipline was imposed in “an unfair manner” was filed.

4Mr. Moore’s employment was terminated a year later, by letter dated July 3, 2013. It would appear that following the alleged incident in 2011, Mr. Moore was off work for a period of time. Three grievances were filed on July 9, 2013, alleging that the employer had violated the collective agreement by terminating his employment without just cause, by abusing its management rights, and by discriminating against Mr. Moore by reason of his disability. Eight further grievances were filed on July 30, 2013 alleging that the employer had violated the collective agreement and certain statutes by discriminating against him by reason of the alleged disproportionate application of discipline; by delaying in providing him with a safety plan; by violating his privacy; by failing to provide a healthy and safe work environment; by breaching confidentiality and failing to keep him safe; by creating a poisoned work environment; by acting in bad faith in regards to his return to work following his WSIB claim; and by engaging in reprisals against the grievor allegedly due to his need for accommodation.

5It was the position of the employer that six of Mr. Moore’s grievances were related to the alleged use-of-force incident and ensuing investigation, as were the grievances of Mr. Portwine and Mr. MacNaull. The Board has broad discretionary authority to hear matters together, argued the employer, commonly exercised to avoid the potential for conflicting findings of fact and to maintain the efficiency of the Board’s processes. It noted that the Board’s Rules of Procedure expressly contemplate this outcome for those reasons. It argued that, in order for the Board to exercise its discretion in this regard, only a low threshold was required. Because the grievances share issues of fact and likely share issues of law, the employer argued, this was an appropriate

situation for hearing the grievances together in order to avoid the possibility of conflicting findings. It noted that a probability or certainty of conflicting findings was not the test. That very real possibility existed in these cases, argued the employer, as Mr. Portwine and Mr. MacNaull had allegedly made admissions with respect to the use-of-force incident that ran counter to the position, taken by the union on behalf of Mr. Moore, that his actions were justified. In addition, argued the employer, as the alleged use-of-force incident and ensuing investigation was central to the grievances, hearing that substantial amount of evidence only once, rather than three times, would result in more efficient use of the Board’s resources.

6In support of its position the employer relied on the decisions in Crown in Right of Ontario (Go Transit) v. ATU (DiSchiavi et al), GSB File #2008-3061 et al, decision of Vice-Chair Mikus dated April 21, 2009; Crown in Right of Ontario (CSCS) v. OPSEU (Upson), GSB File #2009-0405 et al, decision of Vice-Chair Harris dated August 8, 2013; Crown in Right of Ontario (CSCS) v. OPSEU (McClelland/Ward), GSB File #2006-2524 et al, decision of Vice-Chair Briggs dated October 17, 2013; Crown in Right of Ontario (CSCS) v. OPSEU (Smith), GSB File #545/94, decision of a panel chaired by Vice-Chair Kaplan dated January 17, 1995; and Crown in Right of Ontario (LCBO) v. Ontario Liquor Control Boards Employees’ Union (Policy), GSB File #2001-0557 et al, decision of Vice-Chair Dissanayake dated January 2, 2004.

7The union argued that the Board’s earlier decision of June 30, 2014 noted that Mr. Portwine and Mr. MacNaull had no interest in the outcome of Mr. Moore’s grievances. The union asserted that the legal issues regarding Mr. Moore’s grievances are specific to him. The union noted the process whereby the parties met in Joint File Review and agreed that all of Mr. Moore’s grievances would be heard together and scheduled before this Vice-Chair. The employer, noted the union, was aware of Mr. Portwine and Mr. MacNaull’s grievances at that time. The employer is now, argued the union, attempting to resile from that agreement as to how these matters should proceed, whether by seeking to defer certain of Mr. Moore’s grievances or by seeking to now add the grievances of Mr. Portwine and Mr. MacNaull. Mr. Moore and the union are entitled to have a final disposition of all of his issues, argued the union, and would be prejudiced should some matters be severed.

8That interest in having a final disposition with respect to all of his grievances also speaks to why the other grievances should not be heard with those of Mr. Moore, argued the union. The union accepted that the Board has a broad discretion regarding procedural matters including issues of whether to hear matters together and/or consecutively as outlined by employer counsel. However, argued the union, it remained necessary to review the particular circumstances, both legal and practical, including what was fair in the circumstances, whether efficiency will actually be accomplished, whether there will be an overlap in evidence, and the actual nature of the factual, legal, and remedial issues.

9Although in a broad sense the parties were the same, argued the union, the grievors were different. The legal issues were also not the same, argued the union. Whether the employer had cause for discipline is specific to each grievor and each case stands on its own, argued the union, and has distinct remedial issues. These are not group grievances, noted the union.

10The employer has asserted the potential for conflicting outcomes, noted the union, and must thereby expect conflicting evidence as between the grievors. One would have to assume, argued the union, that such gives rise to credibility issues, issues that would normally be assisted by use of a witness exclusion order. However, argued the union, as an issue of natural justice, grievors are entitled to be present throughout the hearing of all evidence relating to their grievances. How does one reconcile that natural justice issue with a concern regarding the quality of the evidence, asked the union. That issue does not arise if the matters are not heard together, argued the union.

11The union argued that hearing these matters together will prolong the hearing causing delay, and will give rise to procedural issues not otherwise present. If there is a potential conflict between the positions of the grievors as asserted by the employer, argued the union, each will be entitled to his own representation, resulting in each having full rights to examine and cross-examine witnesses and make submissions. That cannot, the union asserted, result in a more efficient and/or expedient hearing.

12Further, argued the union, there would be an inappropriate easing of the employer onus to establish cause if these matters were heard together. In order to meet its onus, argued the union, the employer must call evidence in its case in chief to support its actions. The employer could wait, argued the union, and rely on the opportunity to cross-examine Mr. Portwine and Mr. MacNaull in support of its case against Mr. Moore, knowing that those individuals would have to testify in support of their grievances, rather than calling that evidence as part of its case in chief.

13The union acknowledged that there will be some overlap of evidence, although it noted that Mr. Moore’s grievances go beyond the alleged use-of-force incident and investigation into areas where the other grievors have no interest. Are those grievors and their representatives entitled to hear all of the evidence, for example, relating to Mr. Moore’s accommodation issues, asked the union. Such intrusion on Mr. Moore’s privacy rights, asserted the union, would be highly prejudicial.

14The union reiterated that Mr. Portwine and Mr. MacNaull have no interest at all in any of Mr. Moore’s grievances. It further reiterated the delay that would be occasioned by the addition of independent representatives. Furthermore, noted the union, delay was particularly prejudicial to Mr. Moore as his employment had been terminated, while the other grievors remain employed. Finally, the union asserted that there was little likelihood of inconsistent findings, as those findings will relate to each individual’s conduct.

15In support of its position, the union relied on the decisions in Black Bird Holdings Ltd., [1997] O.L.R.D. No. 2984, decision of Vice-Chair Surdykowski dated September 8, 1997; Crown in Right of Ontario (CSCS) v. OPSEU (Samsone), [2006] O.G.S.B.A. No. 100 (Harris); and Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Brennus), [1997] O.L.A.A. No. 685 (Thorne).

16In reply, the employer accepted that it bears the onus with respect to the discipline issues. It indicated that it would be calling Mr. Portwine and Mr. MacNaull as part of its case in chief, regardless of whether the grievances were ordered heard together or not. No natural justice issue arose, argued the employer, as any need for an exclusion order was merely speculative at this point. There is no privacy right requiring protection, argued the employer, as proceedings are public in any event. Once particulars have been received, the parties can reach agreement regarding the calling of evidence, argued the employer, so as to avoid the need for the additional grievors and/or their representatives to be present for matters clearly unrelated to the discipline issues (although this concern supported the employer’s alternative position that certain of Mr. Moore’s grievances be deferred). Rulings may also be made during the proceedings, noted the employer, regarding any sensitive issues, including the right to be present. The employer objected to any suggestion that the Joint File Review process somehow committed the parties to a particular result with respect to the consolidation of cases or the hearing of matters together. Finally, the employer stressed that at the root of the grievances lay the essential question of what occurred between an inmate and the three grievors on January 23, 2011 and what occurred in the aftermath. Credibility issues will likely arise whether the grievances are heard together or separately, noted the employer. The potential for inconsistent findings is uppermost in this case, argued the employer. Greater delay will be occasioned, argued the employer, by hearing the evidence regarding the alleged incident and ensuing investigation three times, rather than once. Any prejudice to Mr. Moore arising from any delay caused by hearing the matters together can be appropriately dealt with through remedy, argued the employer.

17All of Mr. Moore’s grievances relate to events or issues arising from the alleged use-of-force incident and its aftermath, that latter not restricted solely to the employer’s investigation. Although the grievances challenging the employer’s decision to terminate Mr. Moore’s employment are key, it appears that accommodation and other issues arose after the alleged use-of-force incident and prior to that decision being taken. It is certainly by no means clear that they are not relevant or related to the ‘discipline’ grievances. I am therefore disinclined to defer the hearing of some of Mr. Moore’s grievances pending the outcome of others.

18There is no dispute between the parties that the Board has a broad discretion regarding procedural matters and that the Board’s Rules of Procedure expressly contemplate the Board hearing matters together when circumstances warrant. The caselaw uniformly speaks to the interest in avoiding conflicting findings of fact and the efficient use of Board’s resources where there is overlap in issues of fact and/or law.

19The employer is correct in asserting that at the root of all of the ‘discipline’ grievances lies the essential question of what occurred between an inmate and the three grievors on January 23, 2011 and what occurred in the aftermath. The reasons for discipline include alleged inadequacies in the reporting of the incident, also involving the three grievors. It is also apparent from a review of the letters of discipline that the employer based its disciplinary decisions on factual conclusions that in some respects accepted a version of events put forward by Mr. Portwine and/or Mr. MacNaull but disputed by Mr. Moore, leading to both a divergence of interests between those individuals and potential credibility issues.

20In the normal course it would be entirely appropriate to hear these matters together. Mr. Portwine and Mr. MacNaull have an interest in Mr. Moore’s discipline grievances. As noted in the decision of June 30, 2014, it is not a third party interest. It is one directly related to the outcome of their grievances. The primary issue is whether the employer had cause to discipline the grievors. While that legal issue applies to each grievor independently, it stands to be determined based on the same events. It is the case that, in order to determine each individual’s grievances, it would be necessary to hear the evidence surrounding the alleged incident and the investigation. That represents a significant overlap in evidence. It would make no sense to hear that evidence three times in three separate proceedings, for reasons of avoiding potentially conflicting findings of fact and the efficient use of Board’s resources. Is there anything here that would warrant a departure from that conclusion?

21Joint File Review is an administrative process whereby representatives of the parties meet with Board staff for purposes of scheduling hearings. It cannot be taken as producing an agreement between the parties with respect to matters of procedure that are unalterable by the Board in the course of a hearing, should circumstances warrant.

22The fact that the employer has advised that it will call Mr. Portwine and Mr. MacNaull as part of its case in chief addresses the union’s concern regarding any arguable easing of the employer onus to establish cause. It may also assist in managing concerns regarding the quality of evidence. And, given that there is no property in a witness, no issue arises concerning the propriety of the hearing of Mr. Portwine’s or MacNaull’s grievances.

23Certain of Mr. Moore’s grievances relate to issues in which Mr. Portwine and Mr. MacNaull have no interest. Hearing grievances together would normally warrant the attendance of all grievors in the hearing room throughout the proceedings. While the Board is often sensitive to the disclosure of certain information such as personal medical information, there is no protected privacy right in grievance arbitration proceedings. The Board may manage this concern, as well as lingering concerns regarding the quality of evidence, by making procedural rulings as required during the proceedings, and without giving rise to issues of natural justice (see, for example, Toronto Transit Commission, supra.).

24There is no doubt that hearing all of these grievances together will act to lengthen these proceedings, particularly should the grievors’ interests conflict, requiring their separate representation and participation. I am also concerned that dates have already been set for the hearing of Mr. Moore’s grievances that may be unavailable to any such independent representative. It is also possible that, were Mr. Moore’s grievances to proceed and be determined, there may be no need to have full hearings with respect to Mr. Portwine’s and Mr. MacNaull’s grievances. However, speculation cannot ground a decision as to how to proceed. I am persuaded that it would be more efficient to hear these matters together than to hear them separately, given the overlap in evidence concerning the main issues. Although such may occasion delay in the hearing of Mr. Moore’s grievances, that may be addressed remedially as required. Hearing these matters together will also avoid the possibility of conflicting findings of fact with respect to the same alleged circumstances, a result enhancing the broader integrity of the Board’s proceedings. Certain issues as noted above may need to be addressed as the hearing proceeds.

25Having regard to all of the above, I hereby direct that the grievances of Mr. Portwine dated July 21, 2012 and the grievances of Mr. MacNaull dated July 30, 2012 and October 2, 2012 be heard together with the grievances of Mr. Moore. The union is hereby directed to advise the Board by no later than Friday, August 1, 2014 as to how it intends to proceed with respect to the representation of each of the grievors. Once advised, issues of scheduling may be addressed as required.