GSB#2012-2049, 2012-2050, 2012-2051, 2012-4648, 2012-4649, 2012-4650, 2012-4651, 2012-4652, 2012-4653

UNION#2012-0527-0017, 2012-0527-0019, 2012-0527-0020, 2012-0527-0042, 2012-0527-0043, 2012-0527-0044, 2012-0527-0045, 2012-0527-0046, 2012-0527-0047

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bilardo)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 23 and October 22, 2014

Decision

1The grievor in this case had been employed in the OPS for some 25 years when he received his surplus notice on April 13, 2012. The various job security mechanisms available to surplus employees under the collective agreement failed to yield any tangible results and, at the conclusion of his notice period, he was laid off.

2The grievor’s dissatisfaction with the process manifested in the filing of some 65 separate grievances. Most of these, I am told, relate to claims regarding instances of denied redeployment or displacement opportunities. Of those, the union has apparently selected what it views as the six best claims and referred those to this Board. These, however, are not the subject of the instant decision. There are two grievances currently before me that involve direct challenges to the propriety of the surplus in the first instance. One of those is built upon the union’s theory that the grievor, for a lengthy period of time (dating back many years from his layoff), has been the victim of a pattern of employer conduct which is properly described as improper discrimination (including discrimination prohibited under both the collective agreement and the Human Rights Code (the “Code”)), harassment and bullying.

3It is in respect of this grievance that the employer has advanced the two motions that are the subject of the instant decision.

4Before outlining the nature of the motions, it will be useful to consider, a little more fully, the nature of the claim advanced in the grievance.

5The abbreviated facts, which I now outline, are based largely on the facts asserted in the union’s opening statement and the particulars it has filed. The parties agreed, particularly in relation to the employer’s motion that there is no prima facie case to be met with respect to any Code violations, that I should accept these facts as true and provable for the purposes of the instant decision. Whatever the result of my decision herein, the matter will not thereby be precluded from proceeding on the merits. Absent agreement on the facts at that stage, all facts relied upon by either party will require adequate supporting evidence.

6The narrative the union proposes in this matter commences sometime after Wendy Walker became the grievor’s manager (in 2003). From that point, until her departure in the latter part of 2011, the grievor claims to have been a victim of her impugned conduct on an ongoing basis. It is not necessary for me to sound out all of the alleged improprieties in intricate detail. They involve such matters as (the list, while representative, is not necessarily exhaustive): failing to provide requested training opportunities; altering the grievor’s job duties, i.e. stripping out certain functions and reassigning them to others, thereby leaving the grievor in a vulnerable position with respect to his job security; failing to provide formal performance appraisals over a period of some six years; making derogatory and demeaning comments to the grievor; inordinate delays in meetings to discuss the grievor’s job specifications and ultimately altering them to his detriment; improper recruitment and hiring practices; creation and filling of a new position containing almost all of the grievor’s former duties (though the grievor apparently did not make application for this position); and inadequate responses to the grievor’s multiple inquiries regarding his job security.

7There are a few further markers along the lengthy narrative proposed by the union. In 2005 a document titled “Personal Feedback Report” was commissioned by the employer and prepared by the Hay Group Limited. Only two copies of the report were prepared – one for the grievor and one for his manager, Ms. Walker. On its face, the document is an assessment of the grievor, designed to provide information to assist in further development planning. The report, a 14-page document, is not entirely complimentary in its assessment of the grievor. Without reviewing it in intricate detail, I note that it concluded that the grievor failed to meet some 50% of the target levels for certain competencies identified and assessed by the evaluator. He was also assessed to be “towards the lower end of the norm group” with respect to “problem-solving”; at the 78^th percentile on the “reading index”; and at the 62^nd percentile on the “arithmetic index”. The evaluator observed that the “gaps” identified in the assessment “may result in difficulties in producing acceptable written communications and…inconsistencies in the daily product Mr. Bilardo produces…” The report refers to an “attached individualized development resource guide”. This was not produced and, indeed, the grievor asserts that he was never provided any such document.

8The union levelled (somewhat inconsistent) dual criticisms that both challenged and apparently embraced the report. First, asserts the union, the assessment was done in relation to a job that was not the grievor’s and is therefore flawed. Secondly, the union asserts that there was never any follow-up on the developmental recommendations of the report.

9The Hay report figures prominently in the union’s theory of the case in at least two respects. First, it forms a very early, arguably foundational, piece of the narrative the union constructs. It marks the start and perhaps even the catalyst for the alleged improper employer conduct. (Despite that and despite the criticisms of the report as articulated above, no grievance was ever filed in respect of it. Indeed, no grievance was ever filed protesting the employer’s impugned conduct until 2012 when the surplus notice was effected.)

10The other significant, though perhaps indirect, role of the Hay report in the case relates to another marker in the union’s narrative. From 2010 to 2012, Ms. Sylvia Verracchia was employed in the workplace. There appears to be a dispute between the parties as to her precise status at that time. The parties do agree, however, that she was not the grievor’s manager at any time. The union claimed (though perhaps a little less forcefully, in the face of the employer’s denial) that Ms. Verracchia was a member of management. In any event, both parties appeared to be of the view that the resolution of this difference was immaterial to the instant determination.

11The union indicates that it will call Ms. Verracchia to testify in these proceedings. And it asserts that her evidence, the particulars of which I shall shortly review, will help to establish that the adverse treatment the grievor received, particularly in the form of his surplus declaration, was motivated, at least in part, by the employer’s perception that he suffered from a disability within the meaning of the Code.

12The penultimate marker in the union’s narrative relates to Ms. Walker’s tenure. She left her employment in November 2011. There is no doubt, as already indicated, that Ms. Walker is viewed by the grievor as the chief, if not exclusive, actor to have directly engaged in impugned conduct. The final marker, of course, is the notice of surplus the grievor received in April 2012. And although Ms. Walker was no longer on the scene at the time the surplus notice issued, the union asserts that it is her conduct which primarily contributed to the demeaning of the grievor in the workplace and cemented the employer’s perception of him more generally, thus resulting in or at least significantly contributing to his selection for surplus.

13Again, while no grievance was ever filed in relation to the events of its protracted narrative (indeed, the instant grievances were filed approximately three months after receipt of the surplus notice), the union argues that these events must be examined in order to have a full appreciation and understanding of the course and pattern of conduct in which the employer engaged. This conduct, asserts the union, “reeks” of bad faith. To be clear, the union seeks no remedies in respect of the many alleged transgressions that preceded the surplus notice. Its remedial claim is restricted to the alleged improper surplusing. But nonetheless it seeks to adduce evidence dating back to 2005.

14The employer sees matters quite differently and, as a result, has brought the two preliminary motions that are the subject of this decision.

15First, it asserts that, even if all of the asserted facts relied upon by the union are true and provable, those facts fail to disclose a prima facie case of prohibited discrimination under the Code or the corresponding provisions of the collective agreement. It therefore asks that the grievance, to the extent it alleges any such discrimination, be dismissed.

16The parties were in agreement as to the test to be applied in this type of motion (see, for example, OPSEU (Wong) and the Crown in Right of Ontario (Ministry of Government Services), GSB File No. 2010-0756 and the cases cited therein). Essentially, the question in the instant case is whether the facts asserted, if accepted as true, are capable of establishing the elements necessary to substantiate the prohibited discrimination claimed by the union.

17In articulating the requisite necessary elements the employer relied on the following test (cited approvingly by the Court of Appeal in Peel Law Association. v. Pieters (2013), 2013 ONCA 396, 116 O.R. (3d) 81 and adopted by this Board in OPSEU (Morgan) and the Crown in Right of Ontario (Ministry of Children and Youth Services), GSB File No. 2012-1700 et al):

The complainant/grievor must establish that:

• he or she is a member of a group protected by the Code;

• he or she was subjected to adverse treatment; and

• his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment

18With respect, in my view, one need exercise some caution in applying this test outside of the context of the two decisions referred to. I say so for two reasons that emerge from the present case. The first is obvious; the second perhaps less so.

19Both of the cases referred to involved claims of discrimination on the basis of gender, race, colour or ancestry. The instant case relates to a claim of (perceived – a point I will get to in the second consideration) disability. Therefore, a rigid application of the third branch of the test would presumptively preclude any possible success in a claim relating to alleged discrimination on the basis of disability. I have no hesitation in concluding that was not the intention of the authors of either of the authorities referred to. And, in fairness, neither did the employer advance any such position.

20The second consideration relates more directly to a matter in issue in the present case. Initially, the employer argued that its motion must succeed because the union’s facts failed to establish that the grievor is or, at any material time, was a member of a group protected by the Code.

21There is some force, at least at first blush, to this submission. The union’s position with respect to the grievor’s disability was less than entirely forthcoming and remains somewhat elusive. There is no issue that there has never been any claim (whether during all of the events leading up to the grievance or even up to and including the date of the hearing) advanced that the grievor suffers or has suffered from any disability within the meaning of the Code. Near the conclusion of the proceedings resulting in this decision, the union advised that it would not be taking the position that the grievor suffered from any disability at any material time, with the possible exception of what it termed “mental health” (which I take to be a reference to a reference to s. 10(1)(d) of the Code). It indicated that it would make its position on the point clear prior to the commencement of the hearing on the merits.

22However, the union asserted that whether or not the grievor was actually a member of a protected group is of no moment for the purposes of the employer’s present motion. The theory of the union’s case depends not on the grievor’s actual membership in a protected group. Rather, asserts the union, the grievor was perceived by Ms. Walker to have a disability and is therefore entitled to the protection of the Code. In making this submission, union counsel pointed to s. 10(3) of the Code which provides:

The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

[emphasis added]

23A rigid application of the test articulated earlier might result in the dismissal of the present case simply because there are no facts pleaded to establish that the grievor was a member of a protected group. Again, the cases referred to have their specific factual contexts, which did not extend to any consideration of perceived disability. And in view of that and the explicit statutory provision, I am not prepared to conclude that the grievor’s claim ought to be dismissed on this basis.

24But while the union’s claim thus survives this branch of the employer’s challenge, that is not to say that its case does not suffer from significant frailties, even within the first branch of the test, properly applied to the instant case. For the reasons that follow, I am satisfied that the facts asserted by the union fail to establish, as the union claims, that Ms. Walker perceived the grievor to be suffering from a disability. My conclusion in this regard requires a somewhat closer examination of the facts asserted.

25Here too, the position of the union was less than clear. Part of its initial particulars (in an email dated August 14, 2013), included the following (dates are not specified, but it will be recalled that Ms. Verracchia’s tenure ran from 2010-2012):

Ms. Walker shared with Ms. Verracchia the results of an assessment by the Hay Group that was completed in 2004. The assessment stated that Mr. Bilardo had a learning disability. The union hereby requests a copy of the Hay Group assessment.

[emphasis added]

After seeing the Hay report, Ms. Verracchia told Ms. Walker she must accommodate Mr. Bilardo’s disability. Ms. Walker refused to do so and said it wouldn’t make any difference because Mr. Bilardo was not capable of doing his job.

26Subsequent events overtook these particulars and the union’s more recent asserted facts were adjusted somewhat.

27First, as we have seen, the union was provided a copy of the Hay report, which was filed in evidence. It does not, the union concedes, state that the grievor had a learning disability. The union allows that the report was inconclusive, but still submits that it may contain “hints” of a disability such as a learning disability or a mental impairment. Second, the union clarified that it was not asserting that Ms. Verracchia had seen or been provided with a copy of the Hay report. Its description of relevant exchanges between Ms. Verracchia and Ms. Walker was also adjusted. In its opening submissions, the union now claimed that Ms. Walker “shared” the Hay report with Ms. Verracchia. The latter indicated to Ms. Walker that the report might have indicated a learning disability and told Ms. Walker that if that were the case the grievor needed to be accommodated. In other words, just as the report was less (i.e. not at all) categorical on the question of a disability, so too were Ms. Verracchia’s statements couched in conditional language.

28What then is the basis for any factual conclusion that, upon receiving the Hay report, Ms. Walker believed that the grievor suffered from a disability?

29I begin with the report itself. I agree with the employer that not only is it not categorical on the point, it simply does not lead or even point to any conclusion of disability. I have already set out the most negative portions/conclusions of the report. To suggest that test results “at the low end of the norm” or at percentiles in the 60s or 70s lead inexorably or, indeed, even hint at a disability is not apparent.

30Further, with respect to the conversation(s) relied upon between Ms. Verracchia and Ms. Walker there is no claim that any statement attributable to Ms. Walker asserted the existence of any disability. Indeed, even Ms. Verracchia’s statements, as ultimately pleaded, appear to have been, at best, contingent.

31The inferential leaps the union invites and requires in order to move from the pleaded facts to the conclusion that Ms. Walker (whether rationally or otherwise) perceived the grievor to be suffering from a disability are simply of too great a magnitude. The pleaded facts do not support them.

32Accordingly and on this basis alone, I am satisfied that the case advanced by the union fails to establish a prima facie case of improper discrimination.

33In view of my conclusion, I need go no further on this issue. However, it may be useful to very briefly observe that, in my view, the union’s case is equally flawed with respect to the third branch of the test. It is less than clear to me, even if Ms. Walker perceived the grievor to have a disability, that that was a factor in his surplus and ultimate layoff. To suggest that Ms. Walker, as a result of the Hay report, believed the grievor to have a disability, and that that belief was a factor in his layoff seven years later is a conclusion that requires more than its mere assertion. And the union’s pleadings, while replete with workplace events that clearly displeased the grievor, do not assist in establishing any connection between the employer’s asserted belief and its conduct. Whether the employer’s conduct “reeks” of bad faith may have to be determined in a hearing on the merits of this claim, but the claim that it engaged in prohibited discrimination is not one that its pleadings support.

34To the extent that the grievance alleges improper discrimination contrary to the Code and the corresponding collective agreement provisions, it is hereby dismissed.

35In its second motion, employer seeks to have me narrow the scope of evidence. It asserts that seven years’ worth of evidence will make for an unnecessarily unwieldy and protracted hearing. The parties both appear to have accepted the “rule of thumb” at this Board, which is an effort to balance competing interests of allowing the union necessary leeway in its effort to establish an alleged pattern of conduct in discrimination and harassment contexts, on the one hand, with a fair limit on the admission of evidence regarding events which might otherwise be described as archival, so much water under the bridge. To allow the union to call and rely on evidence of events long passed may well work an unfair hardship on the employer’s ability to meet the case. Thus this Board, as the parties agreed, has established a rule of thumb that, in these types of cases, the Board will permit evidence dating three years from the filing of the grievance. However, the parties equally agreed that a rule of thumb is not to be applied mechanically in every case. Certain cases may warrant or require more or less evidence than the rule of thumb contemplates. Thus, both parties have asked that I depart from the three-year boundary. The union seeks to extend the period; the employer seeks to abridge it. And, even if I do not abridge the time, the employer seeks to have evidence of certain events, which occurred in the three years leading up to the filing of the grievance, excluded. There was no objection to my ruling on this issue on a preliminary basis.

36Having considered the materials before me and the positions of the parties, I find neither of their submissions to be persuasive. With one exception I will outline further, I see no reason to extend or abridge the evidentiary time period to more or less than three years.

37The union, in seeking to call evidence dating back some seven years, relies principally on the case of OPSEU (Maghsoudi) and the Crown in Right of Ontario (Ministry of Transportation), GSB File No. 0988/97, in which evidence dating back some 18 years was apparently permitted to be called. With respect, beyond the conclusion, I find very little of assistance in the award itself as there is little in the way of reasoning that might inform the manner in which this Board either did or ought to strike the proper evidentiary balance. And I note as well that the ruling seems somewhat provisional in nature in that the Vice-Chair described the employer’s argument as premature thereby leaving open the possibility that the objection might yet be pursued in the event the employer asserted (and presumably might establish) that prejudice would result from such a wide evidentiary berth.

38More importantly, however, this case (as well as the case of OPSEU (Taylor-Baptist) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB File No. 0163/87, upon which the union also relied) was decided long before the very same Vice-Chair decided (in OPSEU (Patterson) and the Crown in Right of Ontario (Ministry of Public Safety and Security), GSB file No. 2001-0925 et. al.) that a three-year time period was the appropriate balance to strike and long before other decisions of this Board (see for example OPSEU (O’Brien) and the Crown in Right of Ontario (Ministry of Community Safety and Security), GSB file No. 2003-1881) have established the three-year “rule of thumb” that the parties have agreed is applicable to cases such as the instant one.

39Perhaps the most forceful argument the union advanced in the instant case relates to the Hay Report, which it views as the as the inception or the catalyst for the pattern of impugned conduct. I will shortly return to a consideration of the Hay report and the role it will play in these proceedings. In all other respects, however, the union has not persuaded me that hearing evidence of events beyond the three-year period is either warranted or required.

40The employer’s primary position on this point is that evidence should not be heard in respect of any events prior to November 2011, the date upon which Ms. Walker left her employment. This position is premised on the employer’s understanding of the union’s case. When the surplus notice was issued in April 2012, Ms. Walker had departed the scene. But the union has asserted that Ms. Walker’s prior conduct had poisoned the workplace such that the decision to surplus the grievor was a “fait accompli”. Accordingly, reasons the employer, what the union must establish is that even after Ms. Walker left, there continued to be a poisoned workplace to the extent that the grievor’s surplus was already, at least effectively, determined. As the only alleged breach for which the union seeks relief is in relation to the surplus itself, then it is only evidence between the time of Ms. Walker’s departure and the issuance of the surplus notice that ought to be heard.

41I am not prepared to accept this submission. It might have been more persuasive had the employer agreed that before Ms. Walker’s departure, the workplace had been poisoned by her conduct, something the employer did not (and, frankly, I would not have expected it to) offer. But barring such agreement, it appears to me that evidence seeking to establish a pattern of inappropriate conduct, even where no specific relief is sough in relation to it, is precisely the kind of evidence this Board will consider in assessing employer conduct in this type of case. And while Ms. Walker has been identified by the union as the chief, if not exclusive, actor whose conduct is impugned, she is not the responding party in this case. That is the employer. To the extent it is relevant to the issues at hand, evidence regarding the conduct of Ms. Walker or her successor(s) (or any other employer representative) is presumptively admissible.

42The employer articulated an alternative position. It requested that, even if I were to otherwise adopt the three-year period, I should nonetheless exclude the evidence of Ms. Verracchia. In making this submission, the employer pointed to the fact that the union has clearly indicated that Ms. Verracchia’s evidence will touch upon the Hay report. That report dates to 2005, well beyond the scope of a three-year period. Thus, to permit the union to do so would be to allow it to do indirectly what would otherwise be precluded by the three-year temporal boundary.

43Ms. Verracchia’s evidence, to the extent that it pertains to the time of her tenure with the employer (2010-2012) is clearly within the three-year period prior to the filing of the grievance. However, I am sympathetic to the positions of both parties with respect to the Hay report. But I am also of the view that it is possible to permit the union to indentify and refer to the Hay report, which it views as the starting point of its narrative, without needing to hear any further evidence about it, including its origin, reliability or implementation. To the extent the report figures in events within the proper time period, I see no reason why it cannot be referred to in evidence. The report has already been marked as an exhibit in these proceedings although, in fairness to the employer, the parties may not have been ad idem with respect to the purposes of its admission.

44The Hay report is and will remain an exhibit in these proceedings. It will be taken as proof of its contents but not as proof of the truth of those contents. We will thus hear no evidence regarding its accuracy, provenance or implementation. However, that will not preclude the parties from making submissions (as they have already done) about matters that may be evident on the face of the report. Similarly, to the extent that any witness is produced to testify regarding relevant conversations that may have taken place about the report, I see no presumptive impediment to so doing, so long as the events testified to fall within the three-year time period.

45Subject to the above we will admit evidence pertaining to events that date back no later than three years from the filing of the grievance.

46Having regard to all of the foregoing, the grievance, insofar as it alleges improper discrimination under the Code and the corresponding terms of the collective agreement, is hereby dismissed. When the hearing resumes, evidence will be restricted (subject to the exception noted above regarding the Hay report) to events which took place within the three-year period leading up to the filing of the grievance.

47Hearing in this matter will continue on the dates previously scheduled.