GSB#2012-2206, 2012-2965

UNION#2012-0617-0010, 2012-0617-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lavoie et al)

Union

• and -

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

Employer

BEFORE

Brian Sheehan

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 7, August 5, 2015

Decision

1This Interim Award deals with a request of the Employer to limit the scope of the evidence in the proceeding.

The Background Facts

2The Union filed a policy grievance (2012-0617-0020) dated September 28, 2012 and a group grievance (2012-0617-0010) dated January 6, 2012 asserting that the Employer had failed, under the collective agreement and the Occupational Health and Safety Act (OHSA), to meet its obligation to provide a healthy and safe working environment with respect to the air quality at the Sudbury Jail.

3The parties utilized a number of scheduled hearing dates to attempt to reach a mediated resolution of the matter.

4At the July 7, 2015 hearing date, the Union had provided some particulars regarding its allegations and also indicated that further particulars were forthcoming. After it became clear that day that the mediation efforts of the parties would not be fruitful; there were discussions as to the manner in which the adjudication of the hearing would proceed.

5At that juncture, there were four further hearing dates scheduled – August 5 & 6, September 14 & 15, 2015.

6Ms. McIvor, on behalf of the Employer, indicated that the Employer may proceed with a motion that would potentially impact the overall arbitrability of the grievance. Counsel then discussed a possible approach regarding the adjudication of the matter if the Employer was going to proceed with its preliminary motion. That approach would involve the Employer’s motion being argued on August 5, with the August 6 date being cancelled, and the parties would await a decision on the Employer’s motion to determine the status of the September 14 &15 hearing dates.

7On July 16, 2015, Ms. McIvor emailed Mr. Holmes and advised since the particulars provided suggested that the Union is not seeking or requesting damages or any monetary remedies, the Employer no longer intended to bring a “Monk-type” objection at the outset of the proceeding. Ms. McIvor proposed the hearing be bifurcated with the issue of remedy being addressed, if necessary, after a decision on the merits. Accordingly, if the Union was agreeable to the bifurcation of the proceeding and “there are no other issues that arise prior to our August dates”, the arbitration could commence at that time.

8On July 21, 2015, Mr. Holmes emailed Ms. McIvor advising that the Union was agreeable to bifurcate the matter and that the Union would be prepared to proceed with calling its evidence on August 5 and 6.

9On July 22, 2015, Ms. McIvor emailed Mr. Holmes that a preliminary issue had “surfaced”. Specifically, it was the Employer’s position that “any evidence relating to incidents prior to, at very earliest, three years before the filing of the grievances should be determined to be inadmissible and that all related portions of the particulars should be struck”. Ms. McIvor suggested that the parties use the August 5 date to argue the preliminary issue and receive a decision with respect to that issue before moving on to the merits at the scheduled September hearing dates.

10Mr. Holmes responded by email the same day that it was his view that it probably made sense to have the preliminary matter dealt with prior to commencing the hearing on the merits. He further advised that the Union, however, may put forward a waiver argument since it was the Union’s view that the Employer offered not to proceed with any preliminary issues, if the Union agreed to bifurcate the proceeding.

The Union’s Waiver Argument

11Mr. Holmes, on behalf of the Union, asserted that the Employer made an offer that in exchange for the Union’s agreement to bifurcate the hearing; the Employer would not raise any preliminary objections. It was submitted that on July 21, 2015, the Union accepted the Employer’s offer; accordingly, there was “an offer” and “an acceptance of that offer”, the hallmarks of a binding agreement.

12It was further asserted that as a result of that binding agreement, the Employer waived its right to bring the preliminary motion in question.

13The Union noted that the Employer had all the relevant facts when it made the offer to proceed with the hearing on the merits, in exchange for the Union agreeing to the bifurcation of the hearing. Accordingly, this was not a scenario wherein the change of the position of a party was related to the fact that new information had become available or been discovered.

14The Union asserted that the jurisprudence is clear that once a party waives its right to proceed with a particular argument/objection, it cannot seek later to revive that argument/objection. In support of this proposition, the Union relied on the decision in Ontario Public Service Employees Union (Fung/Anand) and The Crown in Right of Ontario (Ministry of Revenue) GSB #1798/89, 104/90 (Stewart).

15Mr. Holmes also asserted that the law with respect to waiver suggests a “de minimis” test applies to assess whether a party has waived its right to object. For example, it was noted that a party taking any “fresh step” in processing a grievance under the grievance procedure has had that act deemed sufficient to establish that the party has waived its right to object, as was found in Ontario Public Service Employees’ Union (Culos Grievance) v. (Ministry of Community Safety and Correctional Services 211 L.A.C. (4th) 191 (Petryshen).

16Finally, in relation to its waiver argument, the Union noted that Ms. McIvor, in her July 22, 2015 email, advised that the Employer would be asserting that the scope of the evidence should be limited to the three-year period prior to the date of the filing of the grievance. It was asserted that it was only at the August 5 hearing that the Union first became aware that the Employer would be advancing arguments in the alternative; and more specifically, that the scope of the evidence should be limited to the period for filing a grievance under the collective agreement (thirty days before the date of the grievance) or for the one-year period before the date of the grievance. It was suggested that it was inappropriate for the Employer to further amend its position without notice to the Union.

17In support of its waiver argument, the Union relied on the following additional authorities: Ontario Public Service Employees Union (Moody)and the Crown in right of Ontario (Ministry of Children and Youth Services) [2012] O.G.S.B.A. No. 94 (Abramsky); Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Oct. 17, 1997) unreported (Schiff); Ontario Public Service Employees Union (Rolfe) and The Crown in Right of Ontario (Ministry of Community and Social Services) GSB # 2003-2769 et al (Briggs).

18The Employer suggested that the Union’s position fundamentally mischaracterizes the understanding reached by the parties in preparation for this hearing. It was submitted that the Employer in light of the fact that the Union was not seeking monetary damages, advised that it was not proceeding with a “Monk-type” objection and suggested that the parties bifurcate the hearing. It was asserted that is all that took place. It was submitted that there was no agreement by the Employer that it would not be bringing any other preliminary motions or raise any other preliminary matters.

19Ms. McIvor noted that in her July 16, 2015, email to Mr. Holmes indicating that the Employer would not be raising a “Monk-type” objection, she advised the parties would be prepared to proceed on the merits at the August 5 hearing date provided “there are no other issues that arise prior to our August dates”. It was thus clear that the understanding reached, as to the manner in which the parties would proceed with litigating the grievances, included a recognition that other issues may arise before the hearing proceeded on its merits.

20In response to the Union’s suggestion that the Employer should have raised the scope of the evidence issue as part of Ms. McIvor’s July 16, 2015 email; it was suggested that the Employer needed time to review the particulars that were provided. It was submitted that taking eleven business days to review the material and then advising the Union of its scope of the evidence argument was reasonable in the circumstances.

21Ms. McIvor further submitted that the facts in the case at hand involved a fundamentally different scenario than the non-compliance with the grievance procedure waiver cases that the Union was relying upon; specifically, that a discussion between the parties regarding streamlining the hearing process is not comparable to the procedural steps in a grievance procedure. It was further noted that the scope of the evidence objection could have been raised during the course of the hearing as the evidence in question was being led; but instead, the Employer decided to address it as a preliminary matter, prior to the commencement of the hearing on the merits.

22Notwithstanding the able argument of Mr. Holmes, on behalf of the Union, the applicable facts do not support a finding that the Employer waived its right to advance its preliminary motion regarding the scope of the evidence.

23If, in fact, the Employer had expressly offered not to advance any preliminary arguments/objections in exchange for the Union’s agreement to bifurcate the hearing that agreement would have been viewed as binding on the Employer; such that, it would have precluded the Employer from advancing a preliminary motion seeking to limit the scope of the evidence. A review of the interchange by counsel, through their emails, suggests that is not what transpired in the case at hand.

24The Employer, through the July 16, 2015 email of Ms. McIvor, did not offer to forego its right to advance preliminary matters including the issue of the scope of the evidence in exchange for the Union’s agreement on bifurcation. Ms. McIvor simply advised Mr. Holmes that the Employer would not be proceeding with a “Monk-type” objection that the Union had been aware of the Employer possibly making. The Employer thus, without qualification, and not as part of seeking an agreement on bifurcation, simply advised the Union that it was not proceeding with a particular objection it had been considering.

25The Employer then proposed that in the name of streamlining the proceeding, the parties adopt the fairly common practice of bifurcating the issue of remedy from the determination of whether the grievance succeeded on its merits. Again, the proposal to bifurcate was not accompanied by the Employer agreeing not to advance any other preliminary matters as an inducement to the Union to agree to bifurcation.

26Significantly, Ms. McIvor went on to observe in her July 16 email if there is an agreement on bifurcation and no other issues arise prior to the August dates, the arbitration could proceed as scheduled on the August hearing dates. The fact that the Employer raised the possibility of other issues potentially arising prior to the commencement of the hearing directly runs counter to the Union’s assertion that the Employer, as part of an agreement on bifurcation, had agreed to forego its right to advance preliminary issues.

27It is clear that at the time of Ms. McIvor’s July 16, 2015 email, the Employer had all the relevant information that would form its scope of the evidence argument; accordingly, it could have, theoretically, raised the issue at that time. That fact is, in my view, of little relevance as the Employer was not asserting that the discovery of some new information altered the circumstances upon which an agreement was reached; rather, its position was that there was never an agreement that precluded the Employer from advancing any preliminary objections/issues.

28By way of Ms. McIvor’s July 22, 2015 email, the Union was given notice of the Employer’s scope of the evidence objection well in advance of the August 5, 2015 hearing date. Related to this point, Mr. Holmes did not suggest that the Union was not prepared to argue the scope of the evidence argument. In fairness to the Union, however, it would appear that the Employer did not provide the Union any advance notice of its alternative positions that the scope of the evidence should be limited to either thirty days or one year before the date of the grievance. The Union, however, did not seek an adjournment, or a delay in the commencement of the hearing on August 5, to prepare its response to those aspects of the Employer’s argument.

29In conclusion, on this point, there was no agreement between the parties that the Employer would not advance any preliminary objections/issues; accordingly, the Employer did not waive its right to bring the preliminary motion seeking to limit the scope of the evidence in the proceeding.

The Employer’s Argument that the Scope of the Evidence should be Limited

30The Employer asserted that, given some of the particulars relied upon by the Union relate to events that stretch as far back as 2006, the Employer would be inherently prejudiced in having to respond to such dated allegations. Accordingly, it was submitted that there should be a cut-off point where the allegations relating to incidents prior to that point in time should not be heard.

31Ms. McIvor submitted that the parties through the grievance procedure have set out a cut-off point. In particular, pursuant to the wording of Article 22.2.1, a complaint that may form the basis of a grievance must be raised “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….” Accordingly, it was asserted that the cut-off point for the admissibility of evidence should be 30 days before the filing of the grievance.

32The Employer accepted, however, that the Union could lead evidence regarding incidents or events that took place between the date of the filing of the grievance until the first date of the hearing. Accordingly, Ms. McIvor submitted that the relevant period for evidence would be from December 2011 to September 2015, which was more than a sufficient time period to assess whether the Employer satisfied its collective agreement and statutory obligations to provide a safe working environment for its employees.

33In the alternative, the Employer relied upon a series of GSB cases wherein, in the context of an employee’s claim of harassment or discrimination, a three year cut-off period before the date of the filing of the grievance had been applied. Those cases followed a decision in Hotel-Dieu Grace Hospital and Ontario Nurses’ Association 62 L.A.C. (4th) (M. Picher), which was a case involving a claim of racial discrimination wherein Arbitrator Picher reasoned that it was necessary to find a “fair balance” between the competing interests of the parties regarding the permitted scope of the evidence. It was noted in that case, the Union sought to lead evidence going as far back as six years, which Arbitrator Picher noted would lead to the possibility of voluminous evidence being produced which would “give us serious pause, both from an equitable and a procedural standpoint”. At the same time, it was recognized that a claim of racial discrimination is often based on “subtle or indirect, rather than overt” incidents and events; accordingly, evidence may need to be heard that falls outside the time frame for the filing of the grievance under the collective agreement. In that case, the evidence was limited to a period commencing three years prior to the date of the grievance.

34Ms. McIvor, while relying on the underlying logic of the reasoning set out in Hotel-Dieu, supra, suggested that the different considerations at play in the case at hand argued for a cut-off period of one year. On this point, it was suggested that a claim of a breach of an employer’s health and safety obligations is not necessarily predicated on the same sort of subtle incidents or events often associated with a case of harassment or discrimination.

35It was further submitted that with the passage of time —and it was noted that some of the events the Union is seeking to rely on stretch as far back as almost ten years before the date of the hearing— the Employer would be inherently prejudiced in terms of being able to respond to the allegations. Further to this point, it was noted in the authorities submitted that it is accepted that prejudice would inherently arise from the passage of an undue amount of time.

36In support of its position on this aspect of its argument, the Employer relied on the following authorities: Hydro Ottawa and International Brotherhood of Electrical Workers, Local 636 October 4, 2003 (unreported) (R. Brown); Galarneau et al and the Treasury Board (Correctional Service of Canada) 2009 PSLRB 1, 181 L.A.C. (4th) 166 (Bédard); Hotel-Dieu Grace Hospital and Ontario Nurses’ Association 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (M. Picher); Ontario Public Service Employees Union (Patterson) and The Crown in Right of Ontario (Ministry of Public Safety and Security) GSB #2001-0925, 2001-0949 (Leighton); Ontario Public Service Employees Union (Patterson) and The Crown in Right of Ontario (Ministry of Children and Youth Services GSB #1989-1546 et al. (Abramsky); Ontario Public Service Employees Union (Ross) and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) GSB# 2690/96 et al. (Herlich); Ontario Public Service Employees Union (Dale et al) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care GSB #0783/00 et al (Abramsky)

37With respect to the position of the Union, Mr. Holmes asserted that the starting point of the analysis should be the general litigation principle that all relevant evidence should be admitted into the proceeding. It is recognized, however, that an adjudicator has the equitable discretion to limit the scope of the evidence if an inordinate passage of time suggests that it would be prejudicial to a party’s ability to respond to the allegations.

38It was asserted that in the case at hand, the Employer did not assert or lead any evidence regarding it being prejudiced by the passage of time. Additionally, it was suggested it would be particularly difficult for the Employer to establish prejudice since a number of the individuals who signed the group grievance have, over the years, moved into management positions and would be readily available to act as advisors or witnesses for the Employer.

39It was also submitted, given that the case relates to the statutory obligation of the Employer to take reasonable precautions to protect the health and safety of its employees that the circumstances argue against the imposition of a cut-off point with respect to otherwise relevant evidence. It was submitted the Union’s case is significantly based upon the long period of inaction, on the part of the Employer, to the concerns being raised regarding the air quality in the Sudbury Jail; and as such, that evidence is relevant to demonstrate the failure of the Employer to take all reasonable precautions.

40Mr. Holmes further noted that none of the cases relied upon by the Employer involved a claim that an employer had breached its obligation to provide a healthy and safe working environment for its employees. It was suggested that the mere nature of the statutory obligation imposed on the Employer undercuts the Employer’s suggestion that a more restrictive approach concerning the scope of the evidence should be adopted in cases of health and safety matters as compared to harassment or discrimination cases.

41In my view, as enunciated by Arbitrator Picher in Hotel-Dieu, supra, the task in assessing whether the scope of the evidence should be limited in a proceeding involves finding a fair balance between the competing interests of the parties. The Union should be generally entitled to lead any relevant evidence in support of its claim that the Employer failed to take reasonable precautions to provide for the health and safety of the members of the bargaining unit. At the same time, the passage of time will invariably, at some level, prejudice the ability of the Employer to respond to the allegations. Moreover, the parties through Article 22 of the collective agreement have agreed that complaints or differences should be dealt with as “quickly as possible”.

42In balancing those interests, the Grievance Settlement Board in cases involving harassment and racial discrimination, while allowing evidence that predates the time frame for filing the grievance under the collective agreement; has, however, imposed a limitation of not permitting evidence that relates to events that took place more than three years before the date of the filing of the grievance. (See: OPSEU (Patterson) (Leighton), supra; OPSEU (Patterson) (Abramsky), supra; OPSEU (Dale et al) (Abramsky), supra). In my view, there is no reason to deviate from that general guideline in the case at hand.

43The Union in the case at hand is obligated to establish that the Employer failed to take reasonable precautions to provide for the health and safety of its employees. In this regard, the Union has asserted a systematic or repeated failure to address the health issues associated with the air quality at the Sudbury Jail that have been allegedly raised with the Employer. In attempting to prove such allegations, the Union should, in my view, be granted the leeway of relying on evidence that extends over a sufficient period of time to support its position. Specifically, a wide aperture may be needed to assess the overall legitimacy of the Union’s allegation.

44Additionally, it is noted that since the Union’s case is constructed on the accumulative nature of purported Employer inaction, there is a similarity between the nature of the evidence sought to be relied upon in the case at hand and an overall pattern of improper and inappropriate behaviour that extends over a period of time, which often lies at the heart of an allegation of harassment or discrimination.

45At the same time, consideration has to be given not only to the potential difficulty the Employer may encounter in responding to allegations stretching as far back as 2006, but also to the likely limited probative value of such dated evidence. The imposition of a cut-off point of three years before the date of the filing of the grievance results in the relevant time period for the submission of evidence to be from January 6, 2009 to September 14, 2015; which, in my view, provides the Union a sufficient window of time to prove its allegation that the Employer breached its statutory and collective agreement obligations to provide a healthy and safe working environment for its employees.

46In terms of the cases cited by the Employer for the adoption of a more restrictive approach, it is noted that in Ottawa Hydro, supra, the disputed issue was whether evidence related to the time period from the filing of the grievance to the date of the hearing should be admitted. The issue of evidence relating to events that occurred before the filing of the grievance was essentially not argued in that case. Also of particular importance, that proceeding was a contracting-out case in which there would be a clear point in time where the union would have been able to assert that there was a breach of the collective agreement. As to the decision in Galarneau et al, supra, the case was argued on the basis of whether the grievance was a “continuing” grievance. The issue being addressed in this case is not the timeliness of the grievance, but whether there should be a temporal limitation on the scope of the evidence.

47In conclusion, the Employer’s motion to limit the scope of the evidence is upheld to the extent that the Union cannot rely on events or incidents that took place more than three years before the date of the filing of the group grievance.