GSB# 2018-2983; 2018-3149; 2019-0060; 2019-0540; 2019-0541; 2019-0542; 2019-0597; 2019-0598; 2021-0464

UNION# 2018-0585-0023; 2018-0585-0026; 2019-0585-0001; 2019-0585-0004; 2019-0585-0005; 2019-0585-0006; 2019-0585-0007; 2019-0585-0008; 2021-0585-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ramsook-Lall)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour, Training and Skills Development)

Employer

BEFORE

David R. Williamson Arbitrator

FOR THE UNION

Farnaz Talebpour Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Counsel

HEARING

November 3, 2021, May 31, 2022, and June 1, 2022

Decision

1There are before me nine grievances filed by the Union on behalf of the Grievor, Ms. Indira Pamela Ramsook-Lall. The first of these is dated September 20, 2018, followed by a cluster of seven grievances between December 12, 2018 to April 17, 2019, and with the most recent one being April 9, 2021. In various ways these grievances allege the Grievor has been subjected to workplace harassment, bullying, discrimination, reprisal, and Employer refusal to accommodate. This decision addresses a preliminary matter raised by the Employer in the matter of the scope and the timeliness of the first grievance.

2In relation to the allegations contained in these grievances the Union has provided the Employer with a 118 paragraph Statement of Particulars. Paragraphs 2 to 26 of the Statement of Particulars address work-related matters from 2009 through 2015 and show the Grievor was off work from December 2015 until March 2016. Paragraphs 27 to 42 pertain to allegations in the time period from March 16, 2016 up to but not including June 8, 2018.

3These foregoing particulars disclose that the impetus for the first grievance arose out of an interaction on June 8, 2018 between the Grievor and Albert Wong, a co-worker. The grievance was filed on September 20, 2018. Further matters and issues arising out of this initial interaction with Mr. Wong became the subject of eight more grievances filed by Ms. Ramsook-Lall from December 12, 2018 to April 9, 2021. It is the position of the Employer that this whole set of grievances is about the June 8, 2018 interaction of the Grievor with Albert Wong and the subsequent events and issues arising from that event.

4The Employer submits the first grievance dated September 20, 2018 is six weeks late in being filed under the provisions of Article 22.2 of the collective agreement, and that there are no factors here to warrant the arbitrator exercising his discretion under s. 48(16) of the Labour Relations Act and extend the time limits for filing the grievance. Further, the Employer submits the Union cannot presume an absence of prejudice to the Employer from the late filing of the first grievance which is outside the time limits specified in the collective agreement, and references that it is now close to seven years since Mr. Bibeau, the Grievor's former manager, retired from the service of the Employer. Nevertheless, the Employer submits that based on the subsequent group of grievances from December 12, 2018 onwards, it is prepared to address at arbitration the full set of allegations made by the Grievor against Mr. Wong.

5In this regard the Employer argues that this is not a continuing grievance whereby the Union could address events and issues going back to 2009, and in particular the allegations made by the Grievor against Mr. Bibeau. First, the Employer submits that the instant matter does not meet the test for a continuing grievance as set out in the Re Liantzakis decision of the Manitoba Court of Appeal. Second, that the stated issues prior to the incident with Mr. Wong are significantly different from those involving Mr. Wong, and that the particulars disclose there was a break in 2017-2018 where the Grievor stated that her work life had improved.

6The Employer submits further that even if the grievance is found to be timely and the grievor's allegations were deemed to be claims of harassment and bullying, those particulars that could be admitted in order for the Union to try and demonstrate a pattern of conduct under the Board's so-called three year rule of thumb, could not go back before September 2015. As such, this would rule out the consideration of particulars and allegations prior to that time in 2015 and result in the exclusion of any issues pertaining to Mr. Bibeau, a former manager of the grievor who retired in August 2015. In this particular regard therefore, the Employer asserts that the allegations of harassment made by the Grievor in the first grievance against Mr. Bibeau are grossly out of time and seeks to have struck from the Union's Book of Particulars all references to Mr. Bibeau contained in paragraphs 2 to 22 of that document. The Employer submits further that paragraphs 23 to 42 should also be struck on the grounds of lack of specificity of the allegations, and that the Employer should not have to guess or comb records as to the who, what, when, where, and how of the matters alleged.

7Accordingly, and in summary, the Employer seeks to have the September 20, 2018 grievance dismissed on the basis it was filed outside the time limits with no reasonable grounds for delay, and have paragraphs 2 to 42 of the Union's Statement of Particulars struck on the basis that the allegations to which they relate pre-date the filing date of the first grievance by more than three years, lack sufficient particularity, or both. This decision determines that motion.

8In support of its position and submissions the Employer made reference to the following arbitral authorities: Re OPSEU (Upson) & Ontario (Ministry of Community Safety and Correctional Services), (2015), Harris, GSB #2011-3681; Re Becker Milk Co. v. Teamsters, Local 647, (1978), Burkett, 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217; Re Greater Niagara General Hospital v. O.N.A., (1981), Schiff, 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1; Re OPSEU (Liantzakis) & Ontario (Ministry of Community Safety and Correctional Services), (2014), Tims, GSB #2012-3997; Re OPSEU (Patterson) & Ontario (Ministry of Public Safety and Security), (2003), Leighton, GSB #2001-0925; Re OPSEU (Dubuc) & Ontario (Ministry of Community Safety and Correctional Services), (2016), Herlich, GSB #2015-1330; Re OPSEU (Calder) & Ontario (Ministry of Community Safety and Correctional Services), (2017), Wacyk, GSB #2015-1868; Re OPSEU (Akintunde) & Ontario (Ministry of Community Safety and Correctional Services), (2018), Watters, GSB #2016-2892; Re OPSEU (Cooper) & Ontario (Ontario Clean Water Agency), (2019), Anderson, GSB #2017-1413; Re OPSEU (Barker) & Ontario (Ministry of the Solicitor General), (2020), Gee, GSB #2018-1146; Re OPSEU (Mohamed) & Ontario (Ministry of the Attorney General), (2019), Petryshen, GSB #2017-3672; and to Re OPSEU (Sparkes) & Ontario (Ministry of the Solicitor General), (2019), Misra, GSB #2012-3928.

9The Union seeks dismissal of the Employer's motion and submits the Grievor has experienced bullying, discrimination, and harassment from management as a continuing course of conduct from 2009 to 2021. As such, the Union relies on paragraphs 2 to 42 of the Union's Statement of Particulars to show there has been a continuous pattern of behaviour against the Grievor by those she reported to, and that it is only fair to the Grievor to be able to show the full scope of her allegations. It submits the 3 year rule of thumb is not a rigid time frame, but merely a guideline, and that in this instance management conduct from further back than three years, including that of Mr. Bibeau, should be taken into account in addressing the grievances of Ms. Ramsook-Lall.

10It is argued by the Union that the Grievor was unable to put forward the first grievance at any earlier date for a number of reasons namely; that her son had health problems between 2009 and 2013, that it was not until 2018 that she could find a Union Steward to take her grievance forward as an earlier Steward was a friend of Mr. Bibeau and did not investigate, and finally that it took a number of years for her to recognize the pattern of harassment and the impact it was having on her. The Union submits that absent prejudice to the Employer from an extension of the time limits to file the first grievance, and with there being reasons existing for a delay in filing the first grievance outside the thirty day time limit set out in the collective agreement, then arbitral discretion provided under s.48(16) of the Act to extend the time limits should be exercised in this matter to allow the first grievance to be heard. In the alternative the Union submits that this matter is a continuing grievance, not separate pieces to be grieved at different time periods, and that as such, the time limits for filing a grievance are not as significant.

11Finally, it is the submission of the Union that none of the paragraphs of the Union's Statement of Particulars ought to be struck, but if found to be insufficient, then an Order be issued requiring the Union to provide further particulars. However, the Union submits, should paragraphs 2-22 of the particulars pertaining to Mr. Bibeau be struck then paragraphs 23 onwards ought to remain that address the time after Mr. Bibeau retired and when Mr. McGowan became manager from September 2015 onwards.

12In support of its position and submissions the Union made reference to the following arbitral authorities: Re George Brown College of Applied Arts and Technology & OPSEU (Lee), (2016), Bendel, 2016 CarswellOnt 14658; Re OPSEU (Patterson) & Ontario (Ministry of Public Safety and Security), (2003), Leighton, GSB #2001-0925; Re OPSEU (Brown) & Ontario (Ministry of Labour), (2012), Dissanayake, GSB #2011-0583; Re University Health Network & OPSEU (Richards), (2008), Albertyn, O.L.A.A. #74; Re OPSEU (O'Brien) & Ontario (Ministry of Community Safety and Correctional Services), (2011), Leighton, GSB #2003-1881; Re OPSEU (Liantzakis) & Ontario (Ministry of Community Safety and Correctional Services), (2014), Tims, GSB #2012-3997; Re OPSEU (Hunt et al.) & Ontario (Ministry of the Attorney General), (2003), Abramsky, GSB #0534/01; Re Switzer v. CAW— Canada, (1999), Surdykowski, 1999 CarswellOnt 4438, [1999] O.L.R.B. Rep. 757; Re Hotel-Dieu Grace Hospital v. O.N.A. (Bennett), (1997), M. Picher, 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (Ontario); and to Re OPSEU (Assenov) & Ontario (Ministry of the Solicitor General), (2020), Gee, GSB #2016-2838.

13The first grievance of Ms. Ramsook-Lall was filed on September 20, 2018 and makes reference to a wide-ranging number of matters from 2009 onwards. However, from the particulars and the submissions of the parties I am of the view that what triggered this first grievance asserting harassment was the interaction of the Grievor with Mr. Wong on June 8, 2018. Section 22.2 of the collective agreement provides for a thirty working day time limit following an event for filing a grievance. Thus, in this case, the grievance needed to have been filed by July 23, 2018 in order to be timely under the collective agreement. In fact, the date of filing was September 20, 2018. That is 42 working days past the collective agreement deadline, and close to two calendar months late. Nevertheless, s.22.14.7 of the collective agreement provides the Board with the jurisdiction to apply s.48(16) of the Labour Relations Act to extend the timelines specified in the collective agreement at all stages of the grievance and arbitration processes.

14Section 48(16) of the Ontario Labour Relations Act provides as follows:

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

15It is particularly noted here that in order to extend the time limits the Board is to be satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. In the first grievance there is a wide range of allegations, including those made against Mr. Wong, as well as harassment allegations made against Mr. Bibeau who as noted earlier retired in 2015, some seven years ago. Applying the test set out in s 48(16) of the Act, I am of the view that there would be substantial prejudice to the Employer from extending the time limits here, particularly in relation to addressing the allegations made against Mr. Bibeau. Similarly, I am unable to find there are reasonable grounds present for extending the time limits so as to have heard the wide range of allegations set out in this September 20, 2018 grievance.

16In this regard, and in the alternative, the Union submits that the time limits are of diminished importance in situations where the grievance is of a continuing nature, and argues that Ms. Ramsook-Lall's allegations of harassment against Mr. Wong are a continuing matter and constitute a grievance of a continuing nature. We turn now to consider this issue.

17In Re Hunt, a case advanced by the Union, Arbitrator Abramsky states:

Finally, in re British Columbia and B.C.N.A., supra, the arbitrator adopted the definition of a "continuing" grievance proposed by Professor Gorsky in Evidence and Procedure in Canadian Labour Arbitration (1981), at p.35:

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 of 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 damage.

18Likewise in Bish v. Canadian Union of Public Employees, Local 5167, as referenced by the Union in Re Liantzakis, 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) (1983), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 (Man.C.A.) 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.

In so doing, the Tribunal acknowledged the distinction between the continuing effects of an act of alleged discrimination and further acts of discrimination.

19In reference to the instant matter Ms. Ramsook Lall's first grievance is dated September 20, 2018, and was precipitated by the conduct of Mr. Albert Wong towards the Grievor on June 8, 2018 that was described in the grievance as 'harassment'. The particulars do not show any further interaction between the Grievor and Mr. Wong prior to September 20, 2018 that the Grievor considered to be harassment by Mr. Wong. The Act of June 8, 2018 was however continuing to trouble the Grievor and she filed a WDHP complaint around June 21, 2018.

20Applying the foregoing analysis and decisions as to what constitutes a "continuing grievance" to the instant matter, it must be concluded that there was one act of alleged harassment by Mr. Wong prior to September 20, 2018 when the grievance was filed by Ms. Ramsook-Lall, but that since June 8, 2018 this alleged act was continuing to trouble the Grievor. From this, it must be found that the first grievance filed by Ms. Ramsook-Lall was not a "continuing grievance". There was a single act, although with continuing impact. In filing the grievance on September 20, 2018 for an alleged act that took place on June 8, 2018 must be found to be outside the time limits stipulated in the collective agreement.

21Accordingly this first grievance which contains a wide range of allegations, including those against Mr. Bibeau, is dismissed. However, notwithstanding the dismissal of this first grievance, the allegations of harassment and other undesired conduct by Mr. Wong against the Grievor may still be heard at this arbitration given that there are complaints made against Mr. Wong in some of the other grievances. The allegations are to be heard in full context including the June 8, 2018 initiating event.

22The case law discloses that in situations of alleged harassment, discrimination, and bullying, that the grievor is able to go back in time for a while prior to the grievance in order to show the existence of a pattern of conduct against them. This is the so-called three (3) year rule. A useful description of this three year rule is provided in the following excerpt from the G.S.B. Lunan decision put forward by the Union:

8The Board has held that a grievor alleging harassment and discrimination can be permitted to adduce evidence over a period of three years before the date of the grievance. See Patterson, (Leighton) and Patterson, (Abramsky) ..... Evidence of events up to three years before the grievance should allow the union sufficient opportunity to prove a pattern of harassment and not be so long ago as to be difficult to defend. However the Board has held that this is not a rigid rule. It is a guideline: the Board must consider each case on its facts. See O'Brien, (Leighton) ....Thus it could be fair to the parties to extend the three years or shorten the period. (emphasis added).

23It is clear from the foregoing that the objective of this three year rule is to strike a fair balance of the parties' interests. In the instant matter the first grievance was filed September 20, 2018 and the Union seeks to demonstrate the presence of a pattern of discrimination against the Grievor in previous years. A review of the Statement of Particulars discloses that by September 2015, a date three years prior to the filing of this grievance, Mr. Bibeau had retired from employment.

24The particulars in this case have been reviewed and considered and I find I am not persuaded that in this instance there should be an extension of the three year rule that would enable evidence to be called for the period 2009-2015 when the Grievor worked with Mr. Bibeau. I am of the view that not only would the potentially large amounts of evidence from so long ago result in a protracted hearing, but in particular would negatively affect the Employers ability to defend itself from the allegations made by the Grievor. Evidence for approximately three years prior to September 20, 2018 will be allowed to be called, but for no further back. This therefore excludes evidence pertaining to Mr. Bibeau. Specifically, paragraphs 2 to 26 of the Statement of Particulars are struck. The rest of the contested paragraphs of the particulars remain, namely those numbered from 27-42. These pertain to the period from March 2016 onwards after the Grievor returned to work following some time away on leave of absence. In accordance with general principles, the onus remains on the Union to prove assertions and allegations made.

25In summary therefore, and for all the foregoing reasons, the grievance filed September 20, 2018 is denied, and the hearing will proceed to hear the allegations made in several of Ms. Ramsook-Lall's grievances against Mr. Wong, including the alleged initiating event on June 8, 2018. In seeking to demonstrate a pattern of harassment against the Grievor the Union may draw on particulars back to March 2016 when the Grievor returned to work following a leave. The particulars struck are those contained in paragraphs 2 to 26 of the Statement of Particulars. For clarity, the particulars struck include those pertaining to allegations made against Mr. Bibeau in the time period from 2009 to his retirement in 2015.