GSB#2012-3997, 2012-3998, 2012-3999, 2012-4000, 2012-4001, 2012-4002, 2012-4003, 2012-4004

UNION#2013-0234-0001, 2013-0234-0002, 2013-0234-0003, 2013-0234-0004, 2013-0234-0005, 2013-0234-0006, 2013-0234-0007, 2013-0234-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Liantzakis)

Union

• and -

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

Employer

BEFORE

Mary Lou Tims

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 10, 2014

Decision

1The grievor, Ms. Tracy Liantzakis, filed eight grievances, each dated January 8, 2013.

2They allege as follows:

OPSEU Grievance # 2013-0234-0001 (“Grievance “#1”):

I grieve that my Employer has violated the Collective Agreement and the W.D.H.P. Policy for failing to properly investigate and conclude to date a complaint reported to the Employer.

OPSEU Grievance # 2013-0234-0002 (“Grievance #2”):

I grieve that my Employer has violated the Collective Agreement by failing to ensure that all Ministry Vehicles were properly serviced and in proper working condition at the Vanier Centre before being issued for staff use (as per the direction of the Provincial Occupational Health and Safety direction also). The result of this serious Employer breach/negligence has/is causing me continued serious damage to my health, increased suffering, complications and medical procedures (including the upcoming months).

OPSEU Grievance # 2013-0234-0003 (“Grievance #3”):

I grieve that my Employer has violated the Collective Agreement by failing to establish and maintain policies, procedures, and practices to ensure the safety and well being of all its employees, which has recently resulted/caused serious and permanent medical conditions that have resulted in permanent disabilities to this grievor.

OPSEU Grievance # 2013-0234-0004 (“Grievance #4”):

I grieve that my Employer has violated the Collective Agreement; particularly article 22.10.1.

OPSEU Grievance # 2013-0234-0005 (“Grievance #5”):

I grieve that my Employer has violated the Collective Agreement by failing to establish and maintain a procedure ensuring that all Managers are committed to work together on joint initiatives that further support diversity in the workplace.

OPSEU Grievance # 2013-0234-0006 (“Grievance #6”):

I grieve that my Employer has violated the Collective Agreement by failing to establish and maintain a procedure that apply (sic) equally to all employees who are subject to the Collective Agreement.

OPSEU Grievance # 2013-0234-0007 (“Grievance #7”):

I grieve that my Employer has violated the Collective Agreement by failing to establish and maintain a procedure for the prompt and equitable handling of grievances and disputes for all employees who are subject to the Collective Agreement.

OPSEU Grievance # 2013-0234-0008 (“Grievance #8”):

I grieve that my Employer has violated the Collective Agreement by failing to establish and maintain satisfaction (sic) working conditions and terms of employment for all employees who are subject to the Collective Agreements.

3Counsel advised that the grievor filed an earlier grievance dated December 18, 2008 (“the 2008 grievance”) alleging that the Employer failed to make reasonable provision for her health and safety after she suffered a workplace injury on March 17, 2006. That matter came before Vice-Chair Petryshen and the Employer objected that the 2008 grievance was untimely and inarbitrable. The parties filed the Board’s November 22, 2011 decision in OPSEU (Liantzakis) and Ministry of Community Safety and Correctional Services (2011) GSB No. 2008-3252 (“the 2011 decision”) upholding the Employer’s objection and dismissing the grievance. Employer Counsel suggested and Union Counsel accepted that I am bound by the conclusions drawn by the Board therein.

4Vice-Chair Petryshen set out the facts giving rise to the 2008 grievance as follows:

Ms. Liantzakis began her employment as a Youth Officer (“YO”) in 1990. It was while performing duties as a YO at the Invictus Youth Centre (“IYC”) that she sustained an injury on March 17, 2006. . . . Ms. Liantzakis and other staff were required to move an uncooperative and aggressive female youth offender from her unit to segregation. This involved transporting the youth offender by van from her cottage unit to the segregation unit located in the main building. Ms. Liantzakis and another YO had hands on the youth offender as they approached the van. The youth offender entered the back of the van first, followed by Ms. Liantzakis. Then someone closed the van door. Although there were at least three YOs and an operational manager outside the van, Ms. Liantzakis was the only YO in the van with the youth offender, contrary to policy. The youth offender again became aggressive and assaulted Ms. Liantzakis. She defended herself and attempted to get control of the youth offender. Her colleagues observed what was taking place but were unable to enter the van to assist her immediately because the van door lock was faulty. Ms. Liantzakis was in the back of the van with the youth offender for no more than 1 1/2 minutes before other YOs entered the van to assist. . . . Ms. Liantzakis became aware of pain and swelling in her left hand as she walked back to her work location. She reported the injury to the Operational Manager. Following his instructions, she saw the nurse at the institution. She then left the workplace before the completion of her shift. Ms. Liantzakis has not returned to work for the Employer subsequent to sustaining her workplace injury on March 17, 2006. (para 6)

5The Board noted that the Union “focussed” on three matters in the earlier proceedings:

One is that Ms. Liantzakis was the only YO in the van with a youth offender contrary to policy when there was an operational manager present. The second is that there was a failure to keep the door lock on a Ministry vehicle in proper working condition…. The third matter the Union relies on is that the Employer knew about the faulty door lock on this particular van, but made no effort to fix the lock. (para 8)

6The Board determined that the time for filing the 2008 grievance began to run on March 17, 2006, the date upon which the grievor sustained a workplace injury. There was thus a delay of approximately two years and nine months in filing the 2008 grievance. Having considered the evidence before him, including the testimony of the grievor, the Vice-Chair noted that there was no suggestion that the delay in filing the grievance was due to incapacity. He acknowledged, however, evidence before him of the grievor’s health issues including that which follows:

The day after her injury, Ms. Liantzakis was advised at a hospital that she had (sic) fractured scaphoid bone in her left wrist. In May of 2006 she was diagnosed with reflex sympathetic dystrophy, a debilitating disorder involving the skin, nerves, blood vessels and bones. She had an aggressive form of the disorder which affected her leg as well. At times, she received nerve block treatment. The WSIB referred her to the functional rehabilitation program in January of 2007. Three months later she was discharged from the program without receiving a clearance to return to work. In addition to the pain and other physical symptoms affecting her mobility, Ms. Liantzakis was diagnosed with PTSD and received treatment from a psychologist. She was referred by the WSIB to the serious injuries department in April 2011 with a functional ability rating of 64%. She has a permanent disability and it appears that she will be unable to return to work for the Employer. The written statements before me disclose that her injury has had a tremendous impact on her and her immediate family. Ms. Liantzakis’s mobility issues have affected her husband and children and have created a stressful situation for the entire family. (para 7)

7Having considered the relevant factors, the Board concluded that there were “no reasonable grounds” to extend the time to file the grievance pursuant to section 48(16) of the Labour Relations Act:

The application of the relevant considerations to the facts of this case reveals that the Employer’s position on whether it is appropriate to extend the time for filing the grievance has considerable merit. The nature of the grievance concerns a health and safety issue. I agree with the Union that this kind of issue is important and therefore favours an extension of the time limit. However, it does not overwhelmingly favour an extension. . . . Apart from the nature of the grievance, the other relevant factors do not favour an extension to the 30 day time limit.

There is no justifiable reason for the delay that is present here. I can appreciate that Ms. Liantzakis’s initial focus was on determining the reason for her health issues and obtaining the necessary treatment. . . . There is no satisfactory explanation for why she did not contact her bargaining agent sooner. . . .

The length of the delay in launching the grievance in this case is extreme. It would be a rare case where an extension is granted in the face of this kind of delay . . . . (paras 19 – 21)

8Approximately thirteen months after the issuance of the Board’s November 2011 decision, the present grievances were filed. These proceedings were first convened in November 2013. After hearing the submissions of Counsel at that time, an Order dated November 22, 2013 (“the November 2013 Order”) was issued requiring in part that the Union provide particulars to the Employer and that the Employer advise the Union of any preliminary objections that it intended to raise.

9The Union provided particulars of the grievances and sought disclosure and production by correspondence dated July 17, 2014.

10By letter dated August 5, 2014, the Employer advised that it would advance the following preliminary objections:

(i) All of the allegations set out in the grievances are untimely.

(ii) The grievances raise allegations that are barred by the principles of abuse of process/res judicata and issue estoppel.

(iii) The grievances raise allegations that do not make out a prima facie case.

(iv) The Grievor raises allegations that are beyond the scope of an individual grievance, in that they relate to the treatment of other employees and general workplace issues. The Grievor is only entitled to advance grievances that make out a prima facie case that her rights under the collective agreement have been violated.

(v) The allegations that the Grievor was subject to less favourable treatment than other employees are beyond the jurisdiction of the GSB.

(vi) The GSB does not have any jurisdiction to review Employer decisions around its participation in legal proceedings, including WSIB/WSIAT appeal processes.

(vii) The GSB cannot review the manner in which the Employer dealt with the grievances of other employees, as those interactions are subject to settlement, litigation and absolute privilege.

(viii) A number of the remedies requested by the Grievor are beyond the jurisdiction of the GSB. The grievances seek remedies that do not relate to any actionable harm suffered by the Grievor, constitute impermissible intrusions on management rights, and relate to matters over which remedies can only be legally claimed from the WSIB.

(ix) Lastly, the GSB cannot hear a number of the allegations because they have not been properly particularized, in violation of the GSB’s November 22, 2013 order.

11A teleconference was convened on August 7, 2014 at the request of Union Counsel. At that time, Counsel agreed in part to hold in abeyance the Union’s requests for production and the Employer’s motion asserting no prima facie case, and further agreed that they would make submissions at the next day of hearing and seek a ruling on the other preliminary objections raised by the Employer. The Union reserved its right to pursue its requests for production and disclosure if the Employer’s motions are denied, and similarly the Employer reserved its right to assert that the grievances should be dismissed on the basis that the particulars disclose no prima facie case.

12The hearing was convened in September 2014. The Employer took the position that each of the grievances before me is untimely and should be dismissed on that basis. It also argued that the doctrine of res judicata, issue estoppel and/or abuse of process acts as a bar to all of the grievances. Other objections set out in the Employer’s August 2014 correspondence were raised in the alternative with respect to specific grievances or to certain aspects of grievances. Further, while Employer Counsel expressed the view that it is not necessary to assess the adequacy of the Union’s particulars at this time, he argued that if I do not accept that all grievances are properly dismissed on the basis of the Employer’s objections, that I should conclude that the particulars furnished by the Union are inadequate in a number of respects and not in compliance with my November 2013 Order. He argued that they should accordingly be struck where appropriate.

13The Union took the position in response that each of the grievances before me is a continuing grievance, and, as such, is timely. It argued as well that the present grievances raise issues distinct from those decided by the Board in 2011, and that the doctrines of res judicata, issue estoppel and abuse of process have no application here. Finally, the Union addressed the other objections raised by the Employer as they related to specific grievances and argued that in all instances they must be denied. Counsel emphasized as well that the Union delivered to the best of its ability full particulars to the Employer and he noted that the Union’s requests for disclosure and production have yet to be determined. It urged me to dismiss the Employer’s objections and to hear and determine each of the grievances on its merits.

14The parties called no viva voce evidence, but argued the Employer’s motions on the basis of the Union’s particulars. In addition, Counsel agreed for present purposes that the Invictus Youth Centre where the grievor worked in March 2006 was closed in the Spring 2006, and that the grievor has not returned to work since the events of March 17, 2006.

15Excerpts from the Union’s particulars are set out as follows:

OPSEU #2013-0234-0001

As the Employer is fully aware, the Grievor suffered a severe and permanent disability in the workplace when she was assaulted by a Young Offender in the course of performing her duties on March 17^th 2006.

Following the vicious assault, the Grievor reported the matter to the shift supervisor, OM16 Richard Mothersole, and asked for the necessary documentation in order to make a claim to the Workplace Safety & Insurance Board. OM16 Mothersole responded by asking the Grievor if she was going to go see “Dr. Summer-Off.” This highly offensive remark was made directly to the Grievor who was suffering from the serious impact of a workplace assault which had just occurred. Mr. Mothersole failed to provide any support to the injured worker, and immediately questioned the legitimacy of her need for WSIB, suggesting she was just looking to have the summer off. Such allegations were extremely hurtful and caused significant distress for an employee dealing with a serious assault which occurred in the performance of her duties.

The fact that OM16 Mothersole neglected his duties and failed to appreciate the seriousness of the assault and its impact on the Grievor is further underscored by the fact that Mr. Mothersole failed to file the necessary documentation relating to the incident including, but not limited to, filing an incident package. OM16 Mothersole failed to investigate this serious incident which occurred in the workplace.

One day after the incident, the Grievor contacted the Acting Superintendent, Mr. Lisi, and advised him of what happened. The Grievor specifically advised Mr. Lisi of the unwelcomed and highly inappropriate remark made by OM16 Mothersole. Mr. Lisi advised the Grievor that he would look into the matter.

To date the Grievor has never received any response to her complaint against OM16 Mothersole, and the Grievor is not aware of any investigation being conducted into her allegation. Mr. Lisi and OM16 Mothersole were friends, had worked together at prior institutions, and the Grievor believes that Mr. Lisi protected his friend by failing to investigate the serious allegations made against him.

The Grievor asserts that Mr. Lisi further attempted to cover-up aspects of the incident in which the Grievor was injured. Mr. Lisi made inaccurate reports to WSIB about the matter, including a suggestion that the Grievor was escorting the Young Offender alone, and suggesting that the Grievor refused to see the nurse. This was not the case.

Mr. Lisi did not, to the Grievor’s knowledge, commence an investigation into the alleged comments. Mr. Lisi did not ask (sic) any clarifying information from the Grievor. In the weeks and months which followed, the Grievor was dealing with a very serious debilitating injury and the resultant disability. No one on behalf of the Employer followed-up with her to deal with her complaint. The Grievor was unable to follow-up as the institution where she was employed was subsequently closed and her employment was transferred to Maplehurst.

OM16 Mothersole did not discharge his duties properly. At no time did he offer to take the Grievor to the hospital for a medical examination. He did not offer to drive her to the hospital, and he seemed completely disinterested in the fact that she was injured. Other managers have taken staff to the hospital when injured.

Furthermore, the Grievor has been dealing with significant pain, numerous surgeries, and the emotional and physical impact which dealing with a chronic disability which resulted from performing the duties of her job have had on her daily life. . . .

OPSEU #2013-0234-0002

One if (sic) the significant contributing factors which resulted in the Grievor’s permanent disability was the fact that the vehicle she was in at the time of her injury was not properly maintained. The Employer was aware of this issue, which had been discussed by health and safety representatives. The Employer failed to properly maintain and inspect the vehicle, and this failure to maintain the vehicle resulted in the Grievor being locked inside a vehicle with a volatile young offender where she was viciously assaulted before other staff could get to her.

The Grievor understands that since her injury, there have been other incidents where employees have been put at risk due to the Employer’s failure to maintain, inspect and repair vehicles. There were at least two incidents at Roy McMurtry following the Grievor’s workplace injury.

It is essential for the protection of all employees working for MCSCS and MCYS that there be specific policies and procedures in place for the regular inspection, maintenance and repair of all vehicles used by staff. The Grievor is not aware of any policies being developed to date . . . .

The Grievor is seeking an order that the Employer must develop policies to guarantee that vehicles are regularly and thoroughly inspected, and that any faulty equipment is properly repaired and that vehicles are taken out of service immediately if they require maintenance. The Employer must also be directed to follow policy to make sure an incident such as this does not occur in the future.

OPSEU #2013-0234-0003

The grievance is directly connected to OPSEU #2013-0234-002 described above. The Employer has failed to implement the necessary policies, procedures and practices to protect the health and safety of employees. . . .

In addition, the Grievor is grieving the fact that the workplace accident . . . has resulted in a permanent impairment.

The Grievor expected a full recovery within a reasonable period of time when she was first injured in the workplace. The workplace accident has caused a severe and permanent chronic disability. The Grievor’s claim was accepted into the Serious Injury Division of WSIB on or about March 29^th 2011, and WSIB has determined the extent of her permanent disability to be approximately 64%. . . .

The extent of the Grievor’s impairment was unknown at the time of the accident and, in all of the circumstances, was not a predictable outcome. It is only with the passage of time that the Grievor has come to understand the full extent of her disability and the permanent nature of her disability. . . .

OPSEU #2013-0234-0004

As described in OPSEU #2013-0234-0001 the Grievor was bullied and harassed by OM16 Mothersole who accused her of lying about her injury and sought to intimidate her in order to prevent her from making a WSIB claim. When the Grievor raised this with the Acting Superintendent Mr. Lisi, he failed to investigate her concerns, and has failed to take any steps to address the concerns to date.

The Grievor believes that she was harassed in this manner because she is a female officer. OM16 Mothersole and Mr. Lisi were friends, and had worked together at prior institutions. They were part of a “boys club” of old school correctional offices that historically did not have to deal with female officers. OM16 Mothersole would not have treated a male officer this way. OM16 Mothersole is a very large man . . . . He tried to physically intimidate the Grievor, using his size, to bully her into not pursuing her statutory and Collective Agreement rights.

In addition to sexual harassment, the Grievor believes that she has been harassed as a result of her disability . . . . The Employer has recently sought to be involved in the Grievor’s WSIB claim. Previously the Employer was not involved in the WSIB matter, and the Employer has not appealed any WSIB decisions in regards to the Grievor. The Employer has recently sought to participate in an appeal filed by the Grievor . . . . The Grievor believes that the Employer is now participating in her WSIB case, in order to bully and harass her as a result of her disability, and as a reprisal against the Grievor for filing grievances relating to her injury and pursuing those grievances to the GSB.

The Grievor has also received threatening phone calls on two occasions from an unidentified individual using an unidentifiable number. . . .

OPSEU #2013-0234-0005

The Grievor asserts that OM16 Mothersole should have dealt with her situation as he would with any other staff member. OM16 Mothersole could have offered to take her to the hospital, or offered to have someone drive the Grievor home . . . . Rather than try and support and assist her, OM16 Mothersole questioned her integrity, made a joke of a significant injury, and failed to investigate what occurred in the workplace. The Grievor has not been advised to date of any investigation that has taken place, and no investigation has taken place based upon the report to Mr. Lisi of OM16 Mothersole’s misconduct.

OPSEU #2013-0234-0006

The Employer has entered into settlements with individuals who have engaged in serious misconduct and yet the Employer has not made any offer to resolve the issues raised by the Grievor . . . .

OPSEU #2013-0234-0007

The Employer has failed to create policies and procedures for the timely resolution of disputes and, to the extent such policies exist, they are not followed and enforced. . . .

Another issue which has caused significant complications is a lack of a clear policy and procedure for staff dealing with on-going issues in the context of a facility closure. The Grievor has had significant difficulties gaining information and following-up on matters given that the facility she was working at closed . . . . There was no clear policy in place for the Grievor to follow in dealing with issues relating to a non-existent workplace. Furthermore, the Employer should have policies and procedures in place to make sure that there are open lines of communication for employees dealing with matters relating to a closed institution and that all documentation is properly maintained.

OPSEU #2013-0234-0008

As detailed above, the Employer failed to investigate and deal with the unacceptable conduct of OM16 Mothersole as well as the conduct of Mr. Lisi in failing to deal with the matter.

16The parties referred to the relevant provisions of article 22 of the parties’ 2013-2014 collective agreement, Counsel agreeing that such language is materially the same as that in effect at the relevant time:

ARTICLE 22 – GRIEVANCE PROCEDURE

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

22.1.1 If an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor in order to give the immediate supervisor an opportunity of adjusting the complaint.

FORMAL RESOLUTION STAGE

22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative.

22.10 SEXUAL HARASSMENT

22.10.1 All employees covered by this Agreement have a right to freedom from harassment in the workplace because of sex by his or her Employer or agent of the Employer or by another employee. . . .

22.10.3.1 The time limits set out in Article 22.2 do not apply to complaints under Article 22.10, provided that the complaint is made within a reasonable time of the conduct complained of, having regard to all the circumstances.

17The Employer relied upon the following decisions in support of its submissions: OPSEU (Wilson) and Ministry of Health, (2002) GSB No. 2804/96 (Abramsky); OPSEU (Flynn) and Ministry of Government Services, (2010) GSB No. 2007-2956 (Dissanayake); OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services, (2000) GSB No. 2171/97 (Leighton); OPSEU (Berday) and Ministry of Transportation, (2008) GSB No. 2007-3132 (Devins); OPSEU (Kavanaugh) and Ministry of Community and Social Services, (2009) GSB No. 2007-0136 et al. (Harris); OPSEU (Gamble) and Liquor Control Board of Ontario,(1998) GSB No. 1635/96 (Gray); OPSEU (Szabo) and Ontario Realty Corporation, [2001] O.G.S.B.A. No. 15 (Herlich); Mroz and Ministry of Community Safety and Correctional Services, P-2010-2013 (O’Neil); OPSEU (Hunt et al.) and Ministry of the Attorney General, (2003) GSB No. 00534/01 (Abramsky); Municipality of Chatham-Kent and Ontario Nurses’ Association (Union Grievance), [2006] O.L.A.A. No. 734 (Etherington); Bish v. CUPE, Local 5167, [2011] O.H.R.T.D. No. 213 (Overend); Seetharam v. University of Toronto, [2011] O.H.R.T.D. No. 711 (Chadha); St. Joseph’s at Fleming Home for the Aged and ONA, [2012] O.L.A.A. No.110 (Bendel); Peel District School Board and CUPE, Local 1628, [2010] O.L.A.A. No. 160 (Springate); OPSEU v. Ministry of Community Safety and Correctional Services, [2012] O.J. No. 4301 (Div. Ct.); OPSEU v. Ministry of Community Safety and Correctional Services, 2013 ONCA 406, [2013] O.J. No. 2769 (C.A.); OPSEU (McNally) and Ministry of Transportation, (2009) GSB No. 2009-1749 (Brown); OPSEU (Battams) and Ministry of Transportation and Communications, (1982) (GSB No. not legible) (Delisle); Pharma Plus Drugmarts Ltd. and UFCW, Loc. 175 (1991) 1991 CanLII 13429 (ON LA), 20 L.A.C. (4^th) 251 (Barton); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] S.C.J. No. 46; Near North District School Board and OSSTF, District 4 (2006), 153 L.A.C. (4^th) 437 (Herman); Blanchette v. Minister of Natural Resources, [2010] O.H.R.T.D. No. 2290 (Scott); CUPE, Local 79 v. City of Toronto, 2012 ONSC 1158, [2012] O.J. No. 1293 (Div. Ct.); OPSEU (Sutherland) and Ministry of Labour, [2008] O.G.S.B.A. No. 237 (Dissanayake); OPSEU (Cherwonogrodzky et al.) and Ministry of Finance, (2004) GSB No. 2002-0994 et al. (Gray); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services, (2007) GSB No. 2001-1151 (Abramsky); OPSEU (Anthony et al.) and Ministry of Labour, (2004) GSB No. 1999-1977 et al. (Abramsky); OPSEU (Dale et al.) and Ministry of Health and Long-Term Care, (2002) GSB No. 0783/00 et al. (Abramsky); OPSEU (Rolfe) and Ministry of Community and Social Services, (2006) GSB No. 2003-3512 et al. (Briggs); OPSEU (Hawkes) and Ministry of Community Safety and Correctional Services, (2009) GSB No. 2007-2388 et al. (Leighton); OPSEU (Fenech) and Ministry of Labour, (2008) GSB No. 2006-1704 et al. (Dissanayake); Decision No. 1504/991, [2000] O.W.S.I.A.T.D. No. 3492 (Kenny); Visic v. Elia Associates Professional Corp., 2011 HRTO 1230, [2011] O.H.R.T.D. No. 1242 (Chadha); and Dixon v. Morrison, [2010] O.H.R.T.D. No. 2143 (Eyolfson).

18The Union referred to the following decisions in support of its position in these proceedings: OPSEU (Simon) and Ministry of the Solicitor General and Correctional Services, (1998) GSB No. 2568/96 (Dissanayake); OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, [2010] O.G.S.B.A. No. 18 (Leighton); OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, [2013] O.G.S.B.A. No. 116 (Leighton); Parking Authority of Toronto and CUPE, Local 43 (1974), 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2d) 150 (Adell); Port Colborne General Hospital and ONA (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett); OPSEU (Stockwell) and Ministry of Correctional Services, (1989) GSB No. 1764/87 (Wilson); OPSEU (Watts/King) and Ministry of Correctional Services, (1991) GSB No. 1367/90 et al. (Kaplan); OPSEU (Watts/King) and Ministry of Correctional Services, (1992) GSB No. 1367/90 et al. (Kaplan); Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett); and Greater Niagara General Hospital and ONA (Pagonis) (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff).

19I have considered the submissions of Counsel and the authorities upon which they relied with respect to each of the objections raised by the Employer. My decision and reasons as they relate to each grievance are set out below.

GRIEVANCE #’s 1, 4, 5, 7 and 8

20Common to these five grievances is the grievor’s assertion that Mr. Mothersole engaged in improper conduct upon receipt of her report of a workplace injury on March 17, 2006, that Mr. Lisi also acted improperly when the grievor complained about Mr. Mothersole the following day, and that the Employer failed to investigate the grievor’s complaint about Mr. Mothersole.

21These grievances allege as well that the conduct of Mr. Mothersole and Mr. Lisi constituted sexual harassment. The grievor further asserts that the Employer failed to create policies and procedures “for the timely resolution of disputes.”

22Union Counsel noted that Grievance #4 also alleges that the Employer’s post-grievance decision to participate in the grievor’s WSIB appeal constitutes a reprisal against the grievor for filing grievances or harassment on the basis of disability.

23The Union further stated that Grievance #7 alleges in part that the grievor “had significant difficulties gaining information” after the closure of the Invictus Youth Centre and claims that the Employer should “have policies and procedures . . . to make sure that there are open lines of communication. . . .”

The Employer’s Argument:

24The Employer argued that these grievances all “connect back to 2006” insofar as each relates to a March 17, 2006 workplace incident, the injuries sustained by the grievor and the Employer’s response or lack of response thereto.

25In the Employer’s view, any suggestion that such grievances are properly characterized as continuing in nature overlooks the critical distinction between continuing breaches of contractual or statutory obligations and continuing effects or consequences flowing from an alleged breach.

26The grievances here, in the Employer’s submission, cannot be properly characterized as continuing grievances and the time for filing them, in its view, began to run in March 2006.

27The Employer referred to article 22.2 which establishes a mandatory thirty day time limit for filing a grievance, starting from the time that “circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee. . . .”

28The Employer argued that the present grievances were filed nearly seven years beyond the applicable time limit negotiated by the parties.

29The Employer took the position that there is no basis here upon which I should exercise my discretion under section 48(16) of the Labour Relations Act to extend time limits.

30Counsel noted that the Board determined in 2011 that the grievor’s 2008 grievance arising out of the March 2006 incident was untimely. After considering the grievor’s testimony before it, the Board declined to extend time limits in the context of a delay of two years and nine months in filing, despite acknowledging the “significant impact” of the grievor’s workplace injury on her and her family. (para 23) In Counsel’s submission, it would be “extraordinary” for me to conclude otherwise in the context of grievances which he suggested have been filed nearly seven years beyond the applicable contractual time limit.

31The Employer referenced a number of arbitral authorities including the decisions in Becker Milk Company, supra, and Greater Niagara General Hospital, supra, and acknowledged the factors considered in determining whether discretion to extend time limits pursuant to section 48(16) is appropriately exercised.

32Counsel argued that there are important labour relations interests at stake when considering extension of time limits, with widespread acceptance that workplace complaints must be dealt with in a timely manner. The Employer referred to a number of authorities, and argued that even in what Counsel suggested were the most significant cases involving discharge, arbitrators affirm the fundamental importance of adherence to time limits.

33Counsel argued that the delay in filing the grievances here was extreme, and he suggested that this Board, when faced with much shorter delays of weeks or months, has declined in a range of circumstances to extend time limits.

34The Employer noted that there was no evidence of incapacity on the grievor’s part before me, a finding also made by the Board in its 2011 decision. While Counsel acknowledged significant and ongoing health challenges described by the Union, he argued that this does not suffice and does not meet the “high test” required before my discretion to extend time limits can be appropriately exercised.

35In the Employer’s submission, consideration of all relevant factors here must lead me to conclude that no reasonable grounds have been established for the exercise of my discretion to extend time limits.

36Counsel urged me to be mindful of the significant labour relations interests at stake and to affirm through my decision the importance of timely resolution of workplace disputes.

37The Employer argued as well that, in circumstances involving extreme delay as it suggests is the case here, even in the absence of evidence of “actual” prejudice, prejudice can be presumed.

38Counsel noted allegations of sexual harassment encompassed in some grievances. He acknowledged article 22.10.3.1 of the collective agreement which provides that the thirty day time limit set out in article 22.2 is not applicable to complaints of sexual harassment, “provided that the complaint is made within a reasonable time of the conduct complained of, having regard to all the circumstances.”

39Counsel suggested that the arbitral authorities pertaining to the doctrine of laches are usefully considered in determining whether complaints of sexual harassment encompassed in the grievances before me were made “within a reasonable time.” He asked me to consider both the reasonableness of the delay and what he asserted is the resulting prejudice to the Employer, and to conclude in doing so that the grievances here were not filed “within a reasonable time.”

40The Employer also addressed the Union’s allegation that the Employer’s post-grievance decision to participate in the grievor’s WSIB appeal should be viewed as a reprisal or as harassment on grounds of disability. Counsel noted that the Employer was legally entitled to participate in the WSIB proceedings, and argued that its decision to do so is subject to absolute privilege and cannot form the basis of a claim that contractual or statutory rights have been violated.

41The Employer argued as well that the grievances before me in certain instances seek remedies that are beyond the jurisdiction of the Board and that constitute “impermissible intrusions on management rights.” In the Employer’s submission, to the extent that the grievances challenge the exercise of management rights, in the absence of an allegation that the exercise of such rights contravened a right under the collective agreement, they raise matters over which the Board has no jurisdiction. Counsel commented in particular that it is not open to this Board to order that the Employer communicate with its employees in any particular fashion, in the absence of any suggestion that the Employer’s exercise of its management rights has infringed the grievor’s contractual or statutory rights.

The Union’s Argument:

42The Union, in response, asserted and asked me to be mindful that the grievor was a good and dedicated employee who was assaulted in the course of performing her duties in March 2006, leading to what Counsel described as “severe and permanent” disability and “unimaginable distress.”

43The Union acknowledged that the Board dismissed the grievor’s 2008 grievance as untimely. It suggested, however, that such grievance pertained to the events of March 17, 2006 resulting in the grievor’s workplace injury and to the Employer’s health and safety obligations. The grievances before me here, in the Union’s submission, address something quite different, that being the Employer’s response or lack of response to the grievor’s March 17, 2006 report to Mr. Mothersole followed by her complaint to Mr. Lisi the following day. Specifically, the Union claimed that Mr. Mothersole failed to take proper action and responded inappropriately when the grievor reported her workplace injury to him, and that Mr. Lisi in turn failed to investigate the complaint received from the grievor the following day, or at the very least, failed to report to her the outcome of any investigation that may have been conducted.

44The Union argued that the Employer was required to investigate the grievor’s March 18, 2006 complaint regarding Mr. Mothersole in a timely manner, and that to the best of the grievor’s knowledge, it has yet to do so.

45In the Union’s submission, the grievances assert an ongoing failure to investigate on the Employer’s part, and viewed accordingly, are timely as continuing grievances. While the Union argued that the Employer was required to respond to and investigate the matters raised by the grievor in a timely manner, Counsel suggested that each day that passes without such investigation being concluded and without the results being reported to the grievor constitutes a new and separate violation of the collective agreement. The Union suggested that the grievances, so understood, assert a continuing violation of the Employer’s contractual and statutory obligations, and as such, have been filed on a timely basis.

46The Union acknowledged that if I reject its submission that these are continuing grievances, the matters grieved are properly viewed as “several years old.” Even if I should so find, however, the Union argued in the alternative that I should exercise my discretion under section 48(16) of the Labour Relations Act and extend the applicable time limits.

47In urging me to exercise such discretion, Counsel emphasized the nature of the grievances before me. In his submission, they raise serious issues, alleging in part harassment and discrimination contrary to the Human Rights Code. Counsel suggested that this should weigh heavily in my assessment as to whether there are reasonable grounds for the extension of time limits.

48Counsel further argued that any delay in filing the grievances here is justified by the significant and debilitating disability which he asserts the grievor has experienced, and by her understandable focus on trying to get better. The Union argued as well that the grievor was attempting to address health and safety issues from the time of the 2006 incident until the Board’s 2011 decision was issued, and that it was reasonable for her to do so prior to bringing forward the matters raised in the 2013 grievances.

49Further, the Union maintained that extending time limits here would in no way be prejudicial to the Employer.

50The Union relied as well upon article 22.10.3.1 of the collective agreement. Counsel noted that the grievances allege in part sexual harassment and suggested that they were filed “within a reasonable time of the conduct complained of, having regard to all the circumstances.”

The Decision:

51Grievance #’s 1, 4, 5, 7, and 8 each allege in part the Employer’s failure to appropriately respond to the grievor’s report of a workplace injury on March 17, 2006 and to investigate her March 18, 2006 complaint to Mr. Lisi. Authorities relied upon by the Union address the Employer’s obligation to “act quickly and forcefully” upon receipt of a complaint of discrimination (OPSEU (Simon)), supra, p. 23) and to “promptly” investigate a complaint of workplace harassment (OPSEU (Ranger)), 2010, para 146).

52Clearly, if I accept the Employer’s argument that the time for filing the grievances began to run from March 18, 2006, the date of the grievor’s report to Mr. Lisi, the January 2013 grievances before me were filed several years beyond the thirty day time limit contemplated by the parties’ collective agreement.

53The parties are at issue, however, as to whether these are continuing grievances, and both Counsel referred to various authorities on this point.

54In Parking Authority of Toronto, supra, the arbitrator described continuing grievances as “grievances which do not relate to a single act possessing substantial finality, such as a discharge or a promotion, but relate instead to a continuing course of conduct – conduct which is renewed at regular intervals and is capable of being considered as a series of separate actions rather than as one action which may just happen to have continuing consequences.” (para 9)

55In Port Colborne General Hospital, supra, the arbitrator stated:

It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium or payment required under the collective agreement on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance. (para 10)

56In Evidence and Procedure in Canadian Labour Arbitration (1981), (Gorsky), the author stated:

The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the party be in breach violate (sic) a recurring duty. When a duty arises at intervals and is breached each time, a “continuing” violation occurs, and the agreement’s limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of the damage. (Quoted in OPSEU (Hunt et al), supra, p. 10)

57In Bish v. CUPE, Loc. 5167, supra, the Human Rights Tribunal referenced and accepted “the test for a ‘continuing contravention’” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man.R. (2d) 117. . . as follows:

To be a “continuing contravention,” there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences. (para 15)

The Tribunal acknowledged the “distinction between ‘continuing effects of an act of alleged discrimination’ and ‘further acts of discrimination.’” (para 16)

58Grievance #’s 1, 4, 5, 7, and 8 allege improper conduct on the part of Mr. Mothersole and Mr. Lisi in and around March 17 and 18, 2006, and a failure to investigate the grievor’s March 18, 2006 complaint. They do not, in my view, assert the breach of a duty properly characterized as “recurring” and nor do they allege a “succession or repetition of separate acts of discrimination.” There is no suggestion that the Employer was obliged on an ongoing or repeated basis to respond appropriately to the grievor’s March 17, 2006 report of a workplace incident or to investigate her March 18, 2006 complaint. Rather, in essence, these grievances assert that the grievor reported a workplace injury to Mr. Mothersole on March 17, 2006, that Mr. Mothersole responded inappropriately to such report, that the grievor complained to Mr. Lisi the following day about Mr. Mothersole’s conduct, that the Employer was obliged to investigate the grievor’s complaint in an appropriate and timely manner, and that the Employer, to the grievor’s knowledge, has failed to do so at any time up to the present.

59The grievor’s assertion that the Employer has yet to investigate her March 18, 2006 complaint to Mr. Lisi does not in my view, convert her claim of failure to investigate into a continuing grievance. The essence of the alleged breach was the failure to engage in a proper and timely investigation. I recognize that the exact time at which failure to so investigate is properly asserted may not lend itself to precise definition in the same way as matters such as imposition of discipline. One can certainly contemplate that the parties may, in any given case, differ as to what constitutes a timely investigation and what constitutes acceptable or unacceptable delay. That said, there can be and of course is no suggestion that the grievances alleging failure to conduct a proper and timely investigation only crystallized after the passage of many years from the date of complaint to the Employer.

60Further, whether or not the Employer’s alleged failure to investigate gave rise to ongoing effects or consequences for the grievor is not the issue to be addressed in determining whether the grievances are of a continuing nature. I accept the Employer’s argument that to find otherwise, would effectively negate applicable time limits negotiated by the parties for filing a grievance. I share the view, although obiter, expressed by the arbitrator in Chatham-Kent and ONA, supra, as follows:

While the decision to layoff had ongoing effects or consequences for employees, consequences that continue to this day, that does not make it an ongoing wrong or continuing grievance that will allow the union to retain the right to grieve against it for an indefinite period. If that approach were taken to this grievance it is hard to imagine any decision concerning staffing, dealing with layoffs, promotions, or discipline, that could not be described as an ongoing wrong on which there would be no meaningful time limits for the filing of a grievance. . . . The union’s argument concerning an ongoing wrong, if adopted in this context, would effectively render the time limits contained in article 8 for filing grievances unenforceable and would undermine the parties’ intention under that article to provide for the orderly processing of complaints and grievances. That could not be a good outcome for the labour relations between the parties. (para 30)

61Accordingly, I find that Grievance #’s 1, 4, 5, 7 and 8 as addressed by the Union are not continuing grievances and that to the extent that they allege improper conduct on Mr. Mothersole’s part on March 17, 2006 and a failure to investigate the grievor’s March 18, 2006 complaint, they were filed some years beyond the thirty day time limit agreed upon by the parties.

62The Union asked that I exercise my discretion to extend time limits pursuant to section 48(16) of the Labour Relations Act which states as follows:

Except where a collective agreement states that this subsection does not apply, an arbitrator . . . may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator . . . is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

63Such request must be considered in light of all relevant factors as addressed in a number of authorities relied upon by the parties, including the decisions in Becker Milk, supra and Greater Niagara General Hospital, supra..

64The arbitrator in Becker Milk stated as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) of the Act requires a consideration of at least three factors. These are (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfied an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice, the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. (para 9)

65In Greater Niagara General Hospital, the arbitrator commented:

The issue for the board is whether we are “satisfied that there are reasonable grounds for the extension.” On this we reject the proposition . . . that an extension may be given only if the defaulting party establishes justifiable reason for the delay…. Instead, we agree…that while the reason for the delay is one factor to be considered, the board should examine as an interrelated group all factors relevant to the decision of reasonable grounds. (para 11)

66Factors considered by the arbitrator included the nature of the grievance, whether the delay occurred in initially launching the grievance or at some later stage, whether the grievor was responsible for the delay, the reasons for the delay, the length of the delay, and whether the Employer could reasonably have assumed the grievance had been abandoned.

67I am mindful of the nature of the grievances before me, and accept the Union’s submission that, particularly to the extent that they allege harassment and discrimination contrary to the Human Rights Code, they raise matters of import.

68That said, the delay in filing the grievances involves several years and far exceeds that addressed in a number of authorities relied upon by the parties in which arbitrators declined to exercise their discretion to extend time limits. Vice-Chair Petryshen characterized the two years and nine months delay in filing the grievance before him as “extreme,” and I accept the Employer’s position that the much longer delay here must be regarded as extraordinarily long.

69Union Counsel suggested that although the delay here was in the initial filing of the grievances, the Employer was in a sense on notice by virtue of the 2008 grievance that such matters were in dispute. In responding to the Employer’s position that the 2013 grievances are barred through the doctrine of res judicata, however, the Union argued that the present grievances raise matters quite distinct from those encompassed by the 2008 grievance. In such circumstances, the filing of the earlier grievance cannot be relied upon to cast a more favourable light on the multi-year delay in filing the grievances before me.

70I have considered the reasons advanced for the delay in filing the grievances here. While there was no evidence of incapacity on the grievor’s part, the Union argued that the grievor experienced serious health issues after March 17, 2006 and that her attention was initially and justifiably focussed on trying to get better. I have considered the Union’s particulars and the Board’s 2011 decision as well as the Union’s forceful argument that the grievor’s health issues have been devastating and distressing to her and to her family.

71Union Counsel acknowledged that the Board “did not see this as enough” when considering the less than three year delay there in issue, but urged me to consider what he described as “severe and permanent chronic disability” experienced by the grievor and to conclude otherwise when considering the much longer delay here in issue. While I acknowledge Union Counsel’s able submissions in this regard, and while I in no way minimize the impact of the grievor’s March 2006 injuries on her and on her family as described by Counsel, I am nonetheless unable to find in the grievor’s health challenges a justifiable explanation for the delay of several years at issue here.

72The Union noted as well that the grievor’s 2008 grievance was decided in November 2011, and Counsel suggested that it was only then that she could reasonably have been expected to turn her mind to addressing the issues raised by the present grievances. Leaving aside the Employer’s objection that the current grievances are barred by the doctrines of res judicata or issue estoppel, I cannot accept this as a justifiable explanation for the multi-year delay in filing the grievances before me. I note in any event that even if I were to find otherwise, such explanation cannot of course address the thirteen month delay in filing the January 2013 grievances after the issuance of the Board’s November 2011 decision.

73Having considered all relevant factors, I am not satisfied that there are reasonable grounds for the extension of time limits here, and accordingly, I cannot accept the Union’s submission that this is an appropriate case in which my discretion would be properly exercised in extending by several years the thirty day time limit negotiated by the parties.

74The parties addressed as well whether the Employer would be “substantially prejudiced” by the extension of time limits in the present circumstances. While it is not necessary for me to make such determination here given my conclusion that there are no reasonable grounds for such extension, I shall nonetheless comment on the parties’ positions.

75The Employer suggested that even in the absence of evidence of actual prejudice, one can properly presume prejudice in the context of such inordinate delay. Counsel noted that although the Board did not find it necessary to determine in its 2011 decision whether the Employer would be prejudiced by an extension of time limits, the Vice-Chair commented that “the extreme delay” of two years and nine months in issue there and “the failure to locate relevant documents . . . would likely present both parties. . . with considerable difficulty in litigating the grievance.” (para 22)

76The Board also discussed the “subtle” prejudice that may result from delay in filing a grievance in OLBEU (Gamble), supra. Vice-Chair Gray stated as follows:

The effect of delay may be that the opposite party would suffer substantial prejudice if an extension were granted. Prejudice caused by delay is sometimes easily identified. A witness who would have been available for an ensuing arbitration hearing had the grievance been filed in a timely way may have since died or become incapacitated or otherwise unavailable to testify. Documents that the respondent would have preserved had it known of a dispute to which they were relevant may have been destroyed in the ordinary course of business, or lost. Other actions may have been taken that demonstrably would not have been taken had the dispute been asserted in a timely way, and which may not be to the respondent’s detriment if the dispute is allowed to proceed. . . .

The prejudice caused by delay may also be more subtle and, by its nature, difficult to demonstrate. The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice that they may have to testify about those memories. . . . Those now concerned with the dispute may not be able to determine what testimony or documents would have been discovered and preserved earlier, had there been timely notice of the dispute. They may not know what statements would have been given at the time by those witnesses whom they can now identify, nor what might have been found in documents known to have existed then that have since been destroyed. Indeed, they may not now know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an earlier search for them. It is in the nature of these forms of prejudice that their precise effects and perhaps even their existence in a particular case cannot be demonstrated. (paras 25 and 26)

77In the context of the extreme delay at issue here, I find persuasive the Employer’s suggestion that prejudice would have been properly presumed even in the absence of evidence of actual prejudice.

78I have considered as well the application of article 22.10.3.1 to the facts before me. Such provision provides that the thirty day time limit does not apply to complaints of sexual harassment where “the complaint is made within a reasonable time of the conduct complained of, having regard to all the circumstances.” Having considered the delay here and all relevant surrounding circumstances, as well as the prejudice which can be presumed to flow from it, I am not satisfied that the grievances before me and specifically the complaints of sexual harassment encompassed therein were made “within a reasonable time.”

79Accordingly, to the extent that Grievance #’s 1, 4, 5, 7, and 8 assert improper conduct on the part of Mr. Mothersole and Mr. Lisi in March 2006 and a failure to investigate her March 2006 complaint regarding Mr. Mothersole, I am of the view that they are untimely and that this is not an appropriate case in which to exercise my discretion under section 48(16) of the Labour Relations Act to extend time limits.

80The Union noted as well that the grievor alleges through Grievance #7 that the Employer failed to contact her after March 18, 2006 to address her complaint and that she was unable to follow up on this matter as the facility in which she had been working closed later that Spring. While the Union was clear that it was not the grievor’s responsibility “to make sure that the Employer does their job as required to investigate a complaint,” it suggested that the grievor encountered difficulty in securing information. It therefore asserted that the Employer “should have policies and procedures in place to make sure that there are open lines of communication for employees dealing with matters relating to a closed institution. . . .”

81The parties agreed that the facility at which the grievor worked prior to March 2006 closed that Spring. To the extent that the grievor experienced difficulties obtaining information about the status of any investigation into her March 18, 2006 complaint following the closure, I accept the Employer’s objection that her 2013 grievance must also be regarded as untimely in this respect. For the same reasons outlined above, such allegation does not in my view constitute a continuing grievance, and my comments regarding extension of time limits apply here as well.

82Further, insofar as the grievance challenges the manner in which the Employer communicated with employees in the context of the 2006 facility closure, and seeks an order that the Employer be required to establish and implement policies to ensure that there is “open” communication, I am mindful that the Board has decided as follows:

The principle that results . . . is that, for the Board to seize jurisdiction, there must be an allegation that the employer’s exercise of management rights resulted in a contravention or abridgement of a substantive right under the collective agreement. (OPSEU (Sutherland)), supra, para 16)

83I accept the Employer’s submission that in the absence of an allegation that the Employer’s asserted failure to provide for effective communication with employees at the time of the facility closure violated the grievor’s contractual or statutory rights, it does not raise a matter over which the Board can properly assume jurisdiction.

84I have considered as well the grievor’s assertion through Grievance #4 that the Employer’s post-grievance decision to participate in the grievor’s WSIB appeal constitutes a reprisal against the grievor for filing grievances or harassment on the basis of disability.

85The Employer did not, in the circumstances, object that it was not open to the Union to rely on such events despite the fact that they only arose subsequent to the date of the grievance.

86Both parties accepted that the Employer is of course entitled to participate in the grievor’s WSIB appeal. The Employer referred in this regard to Decision No. 1504/991 of the Ontario Workplace Safety and Insurance Appeals Tribunal, supra, where the Vice-Chair stated:

Once there is an “issue in dispute,” the Act provides appeal rights both at the Board level and from the Board level to the Tribunal. The Tribunal is required “to hear and decide” all appeals dealing with matters within its jurisdiction. The employer is a party to a worker’s appeal involving questions of entitlement to benefits for disability arising from that employment. As such, the employer has the right to participate as a party in the hearing of the appeal, and the rules of natural justice apply to that hearing. The employer must be given a fair opportunity to participate in the hearing and present its case. (para 38)

87In the Employer’s submission, the doctrine of absolute privilege applies here.

88Counsel referred to the decision of the Ontario Human Rights Tribunal in Dixon v. Morrison, supra, where the Vice-Chair accepted the following statement of the principle:

Absolute privilege is a common law principle which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi- judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public’s interest in the orderly and effective administration of justice. (para 14)

89The Vice-Chair noted in Dixon v. Morrison that the Tribunal had previously found that absolute privilege attached to notices of eviction issued by a building manager who was the respondent to a complaint under the Code. He found on the facts before him that absolute privilege also attached to submissions made by an employer representative in the context of WSIB proceedings.

90Based on the submissions before me, I am satisfied that the Employer’s decision to exercise what both parties accept is its legal right to participate in the grievor’s WSIB appeal, is similarly subject to absolute privilege and cannot in the context of the particulars before me form the basis for a claim that the Employer thereby violated the grievor’s contractual or statutory rights. It is not open to the Union to therefore advance Grievance #4 insofar as it relies upon the Employer’s exercise of its legal right to so participate in support of its allegation of harassment or reprisal.

91Given my conclusions set out above, I need not address the Employer’s further objections as they pertain to these grievances

92For the reasons set out above, Grievance #’s 1, 4, 5, 7 and 8 are dismissed.

GRIEVANCE #’s 2 and 3

93Grievance #2 alleges the failure of the Employer to ensure that Ministry vehicles were properly serviced and in working order at the Vanier Centre prior to being issued for staff use, and that such breach has caused “serious damage” to the grievor’s health.

94The 2008 grievance before the Board asserted a breach of the health and safety provision of the collective agreement in relation to an incident in March 2006. The Board noted in its 2011 decision that the Union alleged in part that the Employer failed to maintain door locks on Ministry vehicles in proper working condition.

95In the Employer’s submission therefore, the 2013 grievances before me raise allegations barred by the doctrine of res judicata, issue estoppel or abuse of process.

96There can be no dispute, and Union Counsel acknowledged, that the Board’s 2011 decision already “dealt with” the health and safety issues surrounding the grievor’s March 17, 2006 injury, as raised by the 2008 grievance.

97The Union suggested, however, that it does not seek to relitigate the “one time” health and safety violation relating to the grievor’s March 17, 2006 workplace injury, but rather, challenges a continued and ongoing failure by the Employer to address “what happened in the grievor’s case” so that others have subsequently also been put at risk.

98The Union emphasized that arbitrators exercise broad remedial jurisdiction in addressing health and safety violations and order remedies that may impact on the workplace generally. Counsel suggested that it is open to the grievor to broadly address the Employer’s alleged failure to comply with its health and safety obligations. Counsel also drew an analogy to harassment cases. He took the position that it is open to the Union in such circumstances to adduce and rely upon evidence of subsequent harassment of others, with the view to establishing that an employer had failed to address the issue as required. He suggested that it is similarly open to the Union here to adduce and rely upon evidence of the Employer’s alleged continued failure to comply with the health and safety obligations which were raised by the grievor through her 2008 grievance.

99The Employer objected to the arbitrability of this grievance. Counsel argued in part that the grievor effectively seeks to advance grievances on behalf of other employees who have not grieved and that it is not open to her to do so. Further, Counsel suggested that the Union cannot revive the 2008 grievance already determined by the Board, by alleging subsequent Employer misconduct.

100There is no dispute here that the Board decided the grievor’s 2008 grievance alleging that the Employer breached the health and safety provisions of the collective agreement with respect to the grievor’s March 17, 2006 workplace injuries.

101In Danyluk v. Ainsworth Technologies Inc., supra, the Supreme Court of Canada noted that the “preconditions to the operation of issue estoppel” are:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision . . . were the same persons as the parties to the proceedings in which the estoppel is raised. . . . (para 25)

102To the extent that the Union seeks to now relitigate the Employer’s alleged breach of its health and safety obligations as it pertained to her March 17, 2006 workplace injuries, I accept the Employer’s submission that it is barred from doing so through the doctrine of issue estoppel.

103I recognize that the Union asserts an ongoing and continuing failure to comply with health and safety obligations which has allegedly put others at risk. While the Union seeks to rely in part on later alleged health and safety violations, the claim which it advances is rooted in the 2008 grievance already determined by the Board. Grievance #2 asserts that the Employer’s alleged breach caused “serious damage” to the grievor’s health. In alleging an ongoing breach, the Union suggests that the Employer has failed to address “what happened in the grievor’s case.”

104I accept the Employer’s submission that Grievance #2 is barred by the doctrine of issue estoppel. The grievor’s 2008 grievance alleging a breach of the Employer’s health and safety obligations in March 2006 has been determined. To the extent that the Union seeks to litigate it once again through reference to later alleged Employer misconduct, it is not open to it to do so. Grievance # 2 is therefore dismissed.

105The Union also alleges through Grievance #3 that the Employer’s failure to establish policies to ensure the health and safety of employees resulted in permanent disability for the grievor.

106The Union’s particulars assert that the grievor expected a full recovery within a reasonable period of time when she was first injured in the workplace in March 2006, but that with the passage of time, she has come to understand that the Employer’s alleged failure to properly maintain its vehicle has resulted in a severe and permanent disability.

107In the Union’s submission, since the full extent of the grievor’s injuries was not known at the time that her 2008 grievance was filed, the Board has yet to deal with her claim that the Employer’s violation of the collective agreement has resulted in permanent impairment.

108The Employer raised a number of objections to the arbitrability of Grievance # 3, including that it is untimely and barred by the doctrine of res judicata. I accept the Employer’s submission that the fact that the full extent of the consequences flowing from the Employer’s alleged health and safety violation in March 2006 may not have been fully understood at the time that the Board determined the 2008 grievance, does not permit the Union to revisit and relitigate the grievance that was already determined by the Board.

109Further, even if it was open to the grievor, despite the fact that the Board has already determined the 2008 grievance, to advance that which is asserted through Grievance # 3, I accept the Employer’s submission that such grievance must be viewed as untimely. I have considered the argument of Union Counsel that Grievance # 3 must be viewed as a continuing grievance. In my view, however, such assertion ignores the distinction between a continuing violation and continuing or ongoing consequences flowing from an alleged violation. The Employer argued that there is, in these circumstances, no basis upon which to suspend the time limit for filing a grievance based on allegedly deteriorating health, suggesting that it is not the ongoing effects of an incident that “ground” the timeliness of the grievance. I agree.

110Grievance # 3 is therefore denied.

GRIEVANCE #6

111Grievance # 6 alleges that the Employer failed “to establish . . . a procedure that apply (sic) equally to all employees who are subject to the Collective Agreement . . . .”

112The Union’s particulars assert that the Employer has chosen to enter into settlements with others but has not offered to resolve the issues raised by the grievor. The Union alleges as well that the Employer has engaged in an ongoing pattern of harassment and discrimination against the grievor insofar as it advanced timeliness objections with respect to the 2008 grievance, although the Union alleges that it has not done so in cases involving other employees.

113The parties agreed that any settlements reached by the Employer in other matters were on a without prejudice and without precedent basis, and “likely” subject to a confidentiality clause.

114I accept the Employer’s submission that its decision in other litigation to enter into without prejudice settlements cannot form the basis for a claim against it. The Board has repeatedly affirmed what has been referred to as the “sanctity of settlements” reached by the parties. In OPSEU (Rolfe), supra, the Board stated:

This Board has repeatedly acknowledged and upheld the sanctity of settlements between the parties. To do otherwise could do great labour relations harm. Each party must be able to rely upon the word of the other party that the matter being resolved is over, that it will not be raised or referred to in the future, either directly or indirectly. If closure of outstanding matter is not respected, there would be little incentive indeed to enter into settlement agreements. (p. 8)

115I find here as well, that the Employer’s conduct in the litigation of other matters, including its decision to advance or not advance objections regarding timeliness, and its willingness to enter into settlements, is subject to absolute privilege and cannot form the basis for a claim that the grievor’s contractual or statutory rights have been breached.

116Grievance #6 is therefore dismissed.

CONCLUSION:

117For the reasons set out herein, each of the grievances before me is denied.