GSB#2014-1191

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Emma Phillips Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 24, 2015

Decision

1Sudipta Bhattacharya (the Complainant) was employed by the Ministry of Government and Consumer Services (the Employer) within a bargaining unit of employees represented by the Association of Management, Administrative and Professional Crown Employees of Ontario (the Association). His employment was terminated on August 15, 2013, allegedly for cause. The letter of termination makes clear that the decision was based in large part on the informational content of a USB stick found in the workplace. The Employer asserts that the USB stick belongs to the Complainant.

2The hearing of this matter commenced on August 13, 2015. During its opening statement the Association indicated for the first time that its position was that if the USB stick belonged to the Complainant, then examination of its informational content constituted a violation of his privacy rights, including rights under the Charter of Rights and Freedoms. Accordingly, the Association stated, it would be its position that the USB stick and all evidence derivative from the USB stick were inadmissible. In response, the Employer stated its position would be that the Association had waived the right to advance any such argument.

3Due to the centrality of the informational content of the USB stick to the Employer’s decision to terminate the Complainant, the parties agreed to commence the hearing with in effect a voir dire into its admissibility. The parties further agreed to hear as a preliminary matter the Employer’s waiver objection. This decision determines the waiver objection.

4The Employer states that it takes no position with respect to any alleged breach of the Charter until such time as proper notice of constitutional question is given. I am mindful of this concern. Accordingly, although I have read with interest the cases provided by the Union on this issue, I do not intend to make any comment on them at this time.

5The Employer argues that it has been clear from the date of termination if not before that the informational content of the USB stick was at the core of its case. No facts have changed since that time. If the Association intended to assert the Complainant’s privacy rights rendered the USB stick inadmissible, it was obliged to do so at the first reasonable opportunity. Instead, the Association took eight fresh steps with respect to the processing of the dispute prior to raising the issue some two years later. By doing so the Association has waived its right to assert those interests at this time. The Employer referred to: Ontario Public Service Employees Union (Kaltagian) v Ontario (Ministry of Health and Long-Term Care), 2014 CanLII 64817 (ON GSB) (Dissanayake); Ontario Public Service Employees Union (Wellwood) v Ontario (Community Safety and Correctional Services), 2013 CanLII 57003 (ON GSB) (Briggs); Ontario Public Service Employees Union (Sagiuliano) v Ontario (Community Safety and Correctional Services), 2014 CanLII 20596 (ON GSB) (Briggs); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), 2005 CanLII 55200 (ON GSB) (Herlich).

6The Association notes that all of the cases relied upon by the Employer related to waiver of mandatory time limits under a collective agreement. It candidly discloses that there is arbitral authority for the proposition that other procedural requirements may be waived, citing among other cases OPSEU (Balevi) v. Seneca College of Applied Arts and Technology, 223 LAC (4th) 335 at para. 24. It also notes that in Queen Elizabeth Hospital v. CUPE Local 1156 (1988) 1988 CanLII 9298 (ON LA), 2 LAC (4th) 1 (Davis) there is some suggestion that the concept of waiver may extend to substantive right: see para. 15. Arbitrator Davis went on to conclude in the case before him that “before this important substantive right can be subject to the doctrine of wavier, if it can be at all, it must be demonstrated that the party making the waiver did so with a conscious recognition that a substantive right was being given up”. The Association provides a number of arbitral authorities that have followed the approach of Arbitrator Davis. The Association also cites Ontario Public Service Employees Union (Moody) v Ontario (Children and Youth Services), 2012 CanLII 49871 (ON GSB) (Abramsky) in which Vice Chair Abramsky held that a distinction must be made between procedural requirements and “fundamental issues of jurisdiction - substantive arbitrability” which cannot be waived: para. 26. The Association argues, therefore, that the issue is whether the right asserted is a procedural or substantive right. It argues that the Charter rights it asserts on behalf of the Complainant are substantive rights. If so, they cannot be waived or at best can only be waived with conscious recognition that they were being waived. Further, the Association argues that only the Complainant may waive his Charter rights. In any event, there is no evidence of conscious waiver in this case.

7While I am mindful of the Blake principle, it is not clear to me that the “fundamental issues of jurisdiction- substantive arbitrability” described by Vice Chair Abramsky are the same as the “substantive rights” at issue before Arbitrator Davis, nor does it appear that Vice Chair Abramsky was directed to Arbitrator Davis’ decision. However, on the view I take of this matter it is not necessary to address that issue further.

8The doctrine of waiver prevents one party from relying upon strict rights under the collective agreement having induced the other party to believe that it would not do so. The Association is not seeking to enforce strict rights under the collective agreement, let alone procedural rights. It has simply given notice of its intention to argue that certain evidence is inadmissible. Even if the Association has taken fresh steps, it does not give rise to waiver.

9The Employer also relies upon Article 15 of the collective agreement between the parties for the term April 1, 2012 to March 31, 2014, which sets out the “Dispute Resolution Procedure”, and in particular Articles 15.1 and 15.4.7. Those Articles provide:

15.1 Statement of Intent

The Employer and the Association acknowledge the importance of resolving disputes arising from the interpretation, application, administration or alleged violation of this agreement, (hereafter referred to as “disputes”), at an early stage, and, wherever possible, at the local level, in order to foster a harmonious and productive working environment. In this respect, the parties recognize the importance of informal means of resolving employee complaints at the lowest level possible before they become formal disputes under this Article and that nothing in this Article is intended to discourage the ordinary local workplace resolution of employee complaints outside of this dispute resolution process. The parties further acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions.

15.4.7

The parties agree to fully disclose all information on which they rely in support of or in response to a complaint or dispute, including disclosure of any facts relied upon by Management in a decision that is subject to a complaint or dispute.

10The question here is not whether the Association has waived rights under the collective agreement. Rather, the question is whether the Association has breached obligations under the collective agreement and if so what are the consequences. Article 15.1, the “Statement of Intent”, is broadly drawn and arguably aspirational. The parties “acknowledge” the importance of early dispute resolution. They further “acknowledge the importance of full disclosure of issues and open discussion throughout” the process. Article 15.4.7 is more specific and direct. The parties agree to “fully disclose all information on which they rely … including disclosure of any facts”.

11In my view, the privacy objection asserted by the Association is an argument. It is not “information” or “facts” within the meaning of Article 15.4.7. It is an “issue”within the meaning of Article 15.1 In any event, the difficulty is that nothing in Article 15 attaches a specific consequence to the failure by one party or the other to disclose an issue (or information or facts) at an earlier stage in the process. This may be contrasted with failure to process a complaint or dispute within the time periods prescribed by Article 15: Article 15.4.4 deems such a complaint or dispute to be withdrawn.

12The Employer’s argument, therefore, is in essence that it has been prejudiced by the alleged failure of the Association to comply with Article 15.1 and 15.4.7. The question then becomes what is that nature of the prejudice and how is it to be remedied. The prejudice alleged is that the matter might have been resolved at an earlier point in time. This prejudice (if any) may be addressed in the nature of the remedy granted if the dispute succeeds. It is not, however, a basis for preventing the Association from asserting the privacy rights of the Complainant during the hearing on the merits as the basis for objecting to the admissibility of evidence.

13In the further alternative, the Employer argues that in seeking to assert the privacy rights of the Complainant, the Association has expanded the grounds of the dispute. The Association ought not be permitted to do so. Reference was made to: Ontario Public Service Employees Union (Lefkowitz) v Ontario (Community Safety and Correctional Services), 2015 CanLII 14070 (ON GSB) (Briggs); Ontario Public Service Employees Union (Jones) v. Ontario (Labour), 2010 CanLII 28609 (ON GSB) (Abramsky); Ontario Public Service Employees Union (Reinhardt et al) v Ontario (Attorney General), 2011 CanLII 78604 (ON GSB) (Herlich).

14Once again I do not find this argument persuasive. The dispute filed by the Association alleges that the termination of the Complainant constituted a breach of Article 3 (Management Rights) and Article 20 (Discipline and Discharge). The essential issue raised by the dispute is whether the Employer had just cause to terminate the Complainant’s employment. The onus of proof is upon the Employer. The Association seeks to rely upon the alleged breach of the Complainant’s privacy rights for the purpose of excluding evidence relevant to the issue of just cause. Unlike the cases provided by the Employer, there has been no expansion of grounds. Counsel for the Association has expressly disavowed any intention to seek any other remedy for the alleged breach of privacy rights.

15Accordingly, the Employer’s preliminary objection is dismissed.