GSB#2008-3102
UNION#2008-0617-0058
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Lachance)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel
HEARING
June 6, November 18, 2014; May 5, 2016
Decision
1Gaetan Lachance is a Correctional Officer who worked at the Sudbury Jail for a number of years before filing a series of grievances that allege various breaches of the Collective Agreement regarding his employment. Some of the outstanding matters concern allegations of harassment.
2At an early stage in the litigation of this matter the Employer asked the Board for an adjournment for a variety of reasons including particular medical issues. That request was granted and the litigation of the matter was held in abeyance for a period of time.
3When the matter returned to the Board the Employer raised a preliminary objection regarding the timeliness of the grievances. At the same time, the Employer made clear that in the event the timeliness objection fails it may have further objections regarding the grievances. The Union’s primary position was that the grievances before this Board were of a continuing nature and therefore not out of time. This decision deals only with the Employer’s preliminary objection.
4After discussion with counsel for the parties it was agreed that certain particulars should be provided. These particulars are agreed for the purposes of this preliminary motion. However, in the event that the matter proceeds on the merits, it is the Employer’s position that the evidence it will produce will be quite contradictory to that which has been alleged by the Union.
5The particulars as set out by the Union are as follows:
The grievor claims a violation of Articles 2, 3 and 9 and alleges harassment and discrimination from Deputy Superintendent E.P. which led to a poisoned work environment and harassment and discrimination from other COs.
The grievor believes the harassment began in retaliation for him raising health and safety concerns in March 2005.
On March 18, 2005, the grievor met with Superintendent R.C. to discuss the grievor’s health and safety concerns. Mr. R.C. said the grievor was making the complaint as a personal attack on Mr. R.C. and also because of ongoing contract negotiations. Mr. R.C. asked the grievor to leave his office and escorted the grievor to the control area.
On March 24, 2005, the grievor submitted a four-page report regarding health and safety problems.
The grievor attended the next health and safety meeting and again raised his concerns. Mr. E.P. was the management co-chair of the joint health and safety committee. He told the grievor that he had better watch what he was doing because his report would result in repercussions to all staff and there could be reprisals against the grievor. This was not stated in a supportive way, but rather, in a threatening way.
In the two weeks after that health and safety meeting, staff were assigned extra duties and were informed that the reason for this extra work was Mr. Lachance’s health and safety report. The grievor heard Operations Manager 16 W. telling staff they could thank Mr. Lachance for the heat that was being put on them because of his report.
The grievor started experiencing harassment from other staff and management soon after he raised his health and safety concerns.
In approximately August 2006, CO M. posted a sign in the workplace for his annual “Fall Classic” horseshoe tournament at his camp. All staff were invited to attend. However, at the bottom of the sign was written, “No Lachances Welcome”.
On October 30, 2006, the grievor filed a WDHP complaint about the harassment and poisoned work environment.
The Employer met with the grievor on one occasion (the Union is unsure of the date) to deal with the harassment and poisoned work environment. Mr. R.C. promised a mandatory WDHP refresher training day for all staff.
On December 4, 2006, the Deputy Regional Director, D.B. wrote to the grievor promising both WDHP training and accommodation training for all management and staff.
In December 2006, someone at the institution squeezed ketchup and mustard into the grievor’s coat pockets.
On December 10, 2006, the grievor filed an occurrence report because a note had been attached to the Tim Horton’s cup in the staff room saying “Gates, please don’t steal this!” (referring to the money in the cup). Correctional Officer B.M. wrote the note: the grievor recognized his handwriting, confronted him about the note and Mr. B.M. admitted his involvement.
Mr. N.A. participated in several harassing events and the grievor outlined these in the December 10, 2006 occurrence report. The grievor stated that his health and safety was in jeopardy and stated he refused to work with Mr. N.A. anymore. The grievor explained that the ongoing harassment was affecting his health.
In January 2007, someone stepped on the grievor’s submarine sandwich and put in back in the fridge.
In February 2007 someone stole $105 from the grievor’s coat pocket.
By April 2007 the promised WDHP training still had not been scheduled. The grievor emailed D.B. at Regional Office on April 1, 2007 pointing out that it had been six months since the training was promised. He was still being harassed in the workplace.
On May 5, 2007 someone took the grievor’s snack (four pepperettes) from the fridge and ate it. He found the empty packaging in the garbage in the staff room. There were several COs in the staff room but everyone denied having seen anyone eat the grievor’s snack.
The grievor reported the above four incidents (ketchup and mustard in his pocket, stepping on his sandwich, stealing his money and eating his pepperettes) in an occurrence report dated May 5, 2007.
The grievor met with Mr. E.P. a few days later to discuss these incidents. The grievor became upset because he believed management was doing nothing to address the harassment. Mr. E.P., in an attempt to show that management was taking action, pulled out a thick file full of occurrence reports, photos of graffiti, rosters and other documents. He pointed to the contents of the file and explained that he was keeping track of who was on shift during each reported incident and was attempting to find the culprits through the process of elimination.
On May 21, 2007, the grievor wrote to M.K., Minister of MCCS, complaining about ongoing harassment and explaining that the WDHP training Mr. D.B. promised on December 4, 2006 still had not been scheduled.
WDHP training appears to have been delivered in late May 2007.
On July 5, 2007, Paul Lachance (the grievor’s brother) notified Mr. R.C. and Mr. M. that there was harassing graffiti in the washroom. Mr. R.C. reported that photos of the graffiti had been taken.
The August 2007 schedule was defaced so that, next to each spot where Gaetan Lachance had written his name for the month, someone had drawn a rat’s nose and whiskers. They had done the same next to each spot where Paul Lachance had written his name. The grievor knows that the schedule manager, Mr. D.M. removed the schedule at least twice to make changes to the schedule after the graffiti was drawn, but Mr. D.M. did not remove the rat drawing.
Similarly, the 2007 Classified Employee Seniority list had a rat drawn over top of the name Paul Lachance, the grievor’s brother.
On August 7, 2007, Paul Lachance notified Mr. E.P. that there was graffiti in the washroom that the thought was written by Mr. B.M. and referred to a previous chocolate bar issue with Gaetan Lachance. He asked Mr. E.P. to take photos of the graffiti. Deputy Superintendent R.T. emailed Paul Lachance on August 8 to say the graffiti had been photographed and removed.
On August 15, 2007, Paul Lachance notified Mr. R.C. and Mr. E.P. that there was more graffiti in the washroom.
On August 20, 2007, Ms. C.S. sent an email saying there was graffiti in the men’s washroom on the previous night’s shift and asking COs to write occurrence reports.
On September 14, 2007, the grievor filed an occurrence report staying Mr. B.M. had made rat noises when the grievor walked by and also made rat noises over his radio when the grievor had tried to call an area on the radio. The grievor stated “I don’t know if I can keep working with all this harassment/graffiti from Mr. B.M. and his group. I am already on modified (work) due to stress and anxiety. I do not want to go off sick and them win…Please help me A.S.A.P.”
On September 15, 2007 AOM F.T. filed an incident report saying the grievor had approached him about Mr. B.M.’s harassment. The grievor explained that he felt he was being harassed because of his accommodation. Mr. F.T. described the grievor as “very distraught and shaking”.
On September 15, 2007, the grievor emailed Mr. R.C. to say he needed to meet immediately to talk about the ongoing harassment. He described himself as under a lot of stress, said his family was seeing negative changes in him and said he was doing everything he could “to not go postal”. Two days later, the grievor sent another email to Mr. R.C. saying he had worded his email badly and did not intend to imply anything violent, but said “I really need to see you A.S.A.P. We need to deal with this harassment/poison work environment”.
On September 18, 2007, the grievor was informed that there was derogatory graffiti about him on the wall of the male staff room. The grievor filed an occurrence report about this the same day. By September 27 the graffiti still had not been removed from the staff room.
The graffiti was finally removed by an inmate cleaner, instead of staff. This created a danger to the grievor because now inmates would be aware he was being targeted by other staff and was not supported.
The grievor recalls that five or six times he made verbal reports about derogatory graffiti to Mr. E.P., Mr. R.C. and OM16’s M, J.C. and R.W.
On May 13, 2008 Mr. R.C. was aware of someone “scratching” as a way of creating interference on the radio. This scratching happened frequently when the grievor was trying to use his radio. On May 14, 2008, Deputy Superintendent R.T. sent an email to all staff, discussing the scratching and reminding them of their WDHP obligations.
On June 19, 2008, Paul Lachance notified Mr. E.P. of harassing verbal comments made in the lunch room and a metallic “suicide” sign place outside of the control room, where Paul Lachance was stationed. Mr. E.P. promised an investigation.
The grievor was bullied and harassed by Mr. E.P. on an ongoing basis. After one temporary assignment, instead of returning the grievor to his own side of the schedule, as was the well-established practice, Mr. E.P. switched him to the side where most of the harassers worked. With respect to the graffiti, whenever the grievor mentioned the graffiti had been written about him Mr. E.P. simply told him to wash it off.
Someone put a dead mouse in the grievor’s lunch bag in August 2008. The grievor recalls that it was a Friday night shift and he was working A & D. The grievor reported this incident to Mr. M. that night and also filed an occurrence report (the Union is unsure of the date of the incident and of the report).
The grievor spoke to Mr. E.P. about the dead mouse and about ongoing graffiti sometime later. Again, Mr. E.P. pulled out the “graffiti file” to demonstrate that he was taking action. He told the grievor he must be sure to put everything in writing as soon as it happened.
The grievor went off November 10, 2008 on sick leave.
On November 26, 2008, Gaetan Lachance attended at Mr. J.C.’s office and told him he wanted to take his complaints “out of the building”. Mr. J.C. said he had provided his complaints in the past and Mr. J.C. stated that he had not received any complaints. Mr. J.C. later reported that he discussed the issue with Ms. R.T. who said she had not received any email from Mr. Lachance about his complaints.
Almost immediately after filing his grievance on November 26, 2008, Mr. Lachance began asking the Employer to produce the graffiti file. It was never produced.
The grievor filed a WDHP complaint on December 18, 2008 regarding the ongoing harassment from staff and management. He is still waiting for a response regarding this complaint.
Both Gaetan and Paul Lachance kept copies of recent occurrence reports and other documents in their work lockers. While the brothers were on sick leave, sometime after January 2009, the Employer cleaned out their lockers and threw out all of their possessions, including their documents. They were not contacted at home to notify them of this action.
Mr. E.P. died in 2011.
6Mr. Shahab, for the Employer, agreed to allow the Union to amend or add to the grievor’s particulars and an adjournment was given to facilitate this process. The particulars set out above are the final version.
7It is worth noting that on several occasions the Union requested various documents from the Employer including any that referred to the graffiti. At the hearing, the Board was informed that notwithstanding the claim in the particulars that Mr. E.P. had a file, at this point in time no such documents have been found. However, the Employer was of the view that the lack of these documents is irrelevant generally and certainly for the purposes of the preliminary objection. It was urged that it is the Union’s onus to provide particularized facts sufficient for a finding of a breach of the Collective Agreement – and one which is not beyond the jurisdiction of the Board due to untimeliness.
8Subsequent to the submissions of the parties I informed counsel that I wanted to hear the Union’s medical evidence that was referred to in its submissions. Two days of hearing – one where the witness attended via teleconference – were held. The parties elected to make no further submissions after this evidence was heard. I will set out the submissions and then a brief summary of the evidence.
9Relevant provisions of the Collective Agreement are as follows:
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.
STAGE ONE
22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonable to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner.
STAGE TWO
22.3.1 If a complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee.
EMPLOYER SUBMISSIONS
10The Employer noted that the revised particulars have outlined an allegation regarding an incident that took place in August of 2008. The revision is of assistance to the process because it provides a final triggering event upon which the parties can agree.
11Mr. Shahab stated that the Employer’s objection regarding timeliness is both legally and factually straightforward. There is a mandatory provision in the Collective Agreement that a grievance is to be filed within thirty calendar days that gave rise to the complaint. The last incident of harassment took place in sometime in August of 2008 and therefore the grievance is somewhere between three and four months late in being filed.
12The Employer referred briefly to the matter of the requested documents that have yet to be found. It was said that there has been no managerial misconduct in this regard. In any event, the matter of retention of documents is irrelevant to the preliminary motion that is presently before the Board.
13The Employer urged that this Board should deny the Union’s claim that the grievances are of a continuing nature. The Board’s own jurisprudence is clear in this regard and stands for the proposition that when dealing with grievances including harassment, it is not whether there is a continuing effect. Rather, it is appropriate to look to the last incident that could bring about an allegation of harassment.
14The Employer relied upon Re Ministry of the Solicitor General & Correctional Services & OPSEU - (Joly) (1998), GSB# 1009/97 (Brown). In that case the Vice Chair in that matter was considering facts very similar to those at hand. At page 10 he stated:
As to the length of the delay, the events about which Mr. Joly complains happened between 1980 and 1996, but the grievance was not discussed with his supervisor until May 1, 1997. Union counsel argues that, where discrimination or harassment takes the form of a course of conduct, there is no single moment when the grievance crystallizes and time begins to run. While I agree time may not run from the first event in a course of conduct, it does start to run no later than the last event in the series. In this case, the last event occurred no later than August of 1996. As Mr. Joly did not approach his supervisor until May of 1997, the delay is at least ten months.
15The Employer also relied upon Re Mroz v. Ministry of Community Safety and Correctional Services [2012] O.P.S.G.B. No 1 (O’Neil). In that decision the Vice Chair (as she then was) ruled on a complaint regarding “defamation and negative career and life impacts flowing from a 1996 report concerning disputed allegations of mistreatment of young offenders”. It was said, at paragraph 34:
This is also the idea that, for the managers, the effects have never stopped. However, the law on timeliness of grievances makes clear that continuing effects of a completed action in the past do not make the matter continually timely. There are arbitration decisions in which grievances have been considered continuing grievances, where it is considered that there are recurring breaches of a term of condition of employment. For instance, if a person is paid incorrectly, each pay period may be considered a new occasion of improper pay. However, when a grievance complains of action taken at a specific time in the past, even if it has continuing consequences, it is not properly considered a continuing grievance. See for instance, re Port Colbourne General Hospital & ONA (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. 323 (Burkett). There is no allegation that the employer repeatedly violated some term and condition of employment between 1996 and 2010. In these circumstances, I do not find this to be properly considered a continuing grievance still timely in the fall of 2010.
16The Employer also relied upon Re St. Louis v. Ottawa Police Services Board [2012], O.H.R.T.D. No 902 (Mackenzie); Re Johnston v. York Region District School Board [2012], O.H.R.T.D. No 1423 (Liang); Re Fontaine v. Treasury Board (Canada Border Services Agency) [2012] C.P.S.L.R.B. No 39 (Gobeil); Re Cosby v. Aditya Birla Minacs Worldwide Inc. [2012], O.H.R.T.D. No. 2348 (Chadha).
17Regarding any request the Union might make to the Board to exercise its discretion under Section 48(16) of the Labour Relations Act, 1995, to extend the time limits, the Employer urged denial. There is a consistent theme in the consideration of whether to extend time limits found in the jurisprudence. The adjudicator considers the length of the delay, the nature of the grievance and whether there are reasonable grounds for the delay. It was submitted that none of these factors, when applied to the case at hand, should cause this Board to extend the time limits. The Board’s own jurisprudence has established that allegations of harassment are not sufficient reason – in and of itself – to extend the time limits. Further, delays of two to three months have been found to be “substantial” or “significant”.
18Finally, in this regard, it was the Employer’s contention there has been no reasonable grounds offered for the delay as considered in Re Ministry of Transportation & OPSEU (Berday) (2008), GSB# 2007/3132 (Devins).
19Turning to the matter of prejudice, Mr. Shahab suggested strongly that the Employer has been significantly prejudiced by the delay in this matter. As set out in the particulars, one of the people the grievor alleges was guilty of misconduct – who would be integral to the Employer’s ability to respond to the allegations - has expired. In this regard, the Employer relied upon Re Liquor Control Board of Ontario & OBLEU (Gamble) (1998), GSB #1635/96 (Gray); Re Ministry of Community and Social Services & OPSEU (Smith et al) (2008), GSB #2006-2017 (Gray).
20The Employer also provided the Board with Re Ministry of Solicitor General and Correctional Services and OPSEU (Rondeau) (2000), GSB# 2171/97 (Leighton); Re Ministry of Government Services & OPSEU (Flynn) (2010), GSB# 2007/2956 (Dissanayake); Re Ministry of Community Safety and Correctional Services and OPSEU (Mazara) (2012), GSB # 2009-1065 (Gray); Re Ministry of Health and OPSEU (Wilson) (2002), GSB # 2804/96 (Abramsky); Re Ministry of Community and Social Services & OPSEU (Kavanaugh) (2009), GSB # 2007-0236 (Harris); Re Metropolitan Toronto Housing Authority & OPSEU (Gangasingh) (1995), GSB # 1386/94 (Mikus); Re Ministry of Northern Development and Mines and OPSEU (Smith) (2005), GSB # 2002-0243 (Mikus); Re Ministry of Community Safety and Correctional Services & OPSEU (Faulkner) (2008), GSB # 2006-2093 (Petryshen); Re Ministry of Government Services & OPSEU (Ng) (2010), GSB# 2009-3379 (Mikus); Re Christianson v. University of Windsor [2010], O.H.R.T.D. No. 1603 (Flaherty); Re Gagne v. Maximum Mining Inc. [201], O.H.R.T.D. No 651 (Renton); Re Liddell v. Pitney Bowes Canada [2010], O.H.R.T.D. No 1686 (Chadha); Re Kotsopoulis v. Casino Rama Services Inc. [2011], O.H.R.T.D. No 823 (Doyle); Re Cashin v. Mount Sinai Hospital [2011], O.H.R.T.D. No 834 (Whist); Re Garaad v. Regional Municipality of Peel Police Services Board [2010], O.H.R.T.D. No 2097 (Chadha); Re Ministry of Community Safety and Correctional Services & OPSEU (Union) (2004), GSB # 2002-2260 (Mikus); Re Ministry of Community Safety and Correctional Services (Union) (2006), GSB# 2003-3766 (Briggs); and Re Liquor Board of Ontario & OLBEU (Koonings/Froner) (1995), GSB # 3483/92 (Stewart).
21Mr. Shahab pointed out that in Re Flynn (supra) the matter of medical evidence was considered. It is insufficient for the grievor or the Union to assert an illness. In order for this Board to determine whether there is a reasonable ground for the delay because of an illness suffered by a grievor, medical evidence must be heard. This Board would need to hear from the medical practitioners and consider the medical records in order to find incapacity. There is a high standard to be applied by Boards of Arbitration when medical explanations are advanced by the grievor.
22In this matter, according to the Employer, the particulars reveal that the grievor was not ignorant of the labour relations practices of these parties. According to the particulars, the grievor filed grievances in the past regarding health and safety matters. He aware of his rights and cannot suggest that he was unaware of time limits in the Collective Agreement.
23The Employer also noted that the Board determined in Re Wilson not to extend time limits in matters where – as in the present case - there have been “serious allegations of a long standing pattern of discrimination, harassment and mental cruelty”.
24Mr. Shahab suggested that much labour relations harm is done when the time limits set out in the Collective Agreement are not respected.
25Finally, the Employer contended that a review of the jurisprudence of the Ontario Human Rights Tribunal reveals that the test is simply whether there is a reasonable explanation for the delay. It also makes clear that in the event that there is a claim of medical incapacity the applicant must show that he was debilitated to the extent that he was foreclosed from filing a complaint.
UNION SUBMISSIONS
26Ms. Riddell, for the Union stated that there are four reasons why this Board should not uphold the Employer’s preliminary objection. The first is because the grievance is of a continuing nature. The grievance itself claims a violation of – amongst other articles - Article 9 of the Collective Agreement which considers the ongoing duty to make reasonable provisions for health and safety. The Employer failed to do that in this instance until the grievor ultimately became ill and left the workplace. Although it might be said that the last triggering event was in August 2008, what continued was the Employer’s failure to address the situation – a fact that continued until the grievor left the workplace having been made sick by the Employer’s lack of protection. Further, when considering grievances of a continuing nature, compliance with the time limits is not as significant as in other instances. The repetitive breach rather than a single breach is to be taken into account.
27The Union drew the Board’s attention to a passage regarding grievances of a continuing nature in Re Galarneau et al. v. Treasury Board (Correctional Service of Canada) [2009], C.P.S.L.R.B. No 1 (Bedard) which was a case involving allegations of health and safety violations as the result on ongoing second hand smoke in the workplace. Droit de l’arbitrage de grief, 5th edition, Blouin and Morin, was quoted, at paragraph 18:
In certain cases, a limitation period may only be for the past, not for the future. This is the case in a continuing grievance. It is also the case when benefits under a collective agreement are claimed in a context where the services rendered that form the basis of the claim are performed successively and where the violation of the collective agreement is recurring or repetitive (111.50). In other words, the event that gives rise to the grievor is repeated episodically. When the grievance is filed, the event is not a past fact but rather a current practice for the employer. Thus, the complainant may not be criticized in the future for failing to make a claim in the past; in such a situation, the limitation period operations only on a day-to-day basis…
28In Re Ministry of Attorney General & OPSEU (Hunt) (2003), GSB # 0534/01 (Abramsky), the Board said, at paragraph 28:
The GSB has adopted a similar standard for defining a “continuing grievance”. In OPSEU (Redmond) and Ministry of Health, supra, the Board stated that at p.5: “We accept as authoritative the proposition that for a continuing grievance to exist, the grievance must complain of the breach of a continuing duty. The grievance must not merely complain that the collective agreement was breached in a single transaction.” The Board at p.6 held that it had jurisdiction to treat as a continuing grievance “those portions of the grievance …. Which allege that the Ministry is in breach of a continuing duty under the Collective Agreement.”
29The second reason the motion should fail is because the triggering event was not August of 2008 as suggested by the Employer. Rather, it was the date that the grievor left the workplace due to illness. Accordingly, the triggering event was November 12, 2008 and he filed a grievance approximately two weeks later. It is not until the grievor left the workplace that he realizes, finally, that the Employer is not keeping him safe. The triggering event occurred when his health finally broke down and he became aware of that fact.
30The grievor was hopeful that he could resolve the matters until things deteriorated to the point where he had to go off sick. He should not be penalized by the fact that he was waiting to see if the Employer would do what it said it would do. The grievor relied on the Employer’s repeated assurances that it was dealing with his complaints and that fact should weigh heavily in his favour.
31The Union urged that the third reason the motion must be denied is because this Board should exercise its discretion to extend the time limits in accordance with Section 48(16) of the OLRA because of the unique circumstances of this case including:
The alleged breaches include violations of the Ontario Human Rights Code and are therefore quasi-constitutional in nature.
The serious nature of the grievances. The grievor was viciously harassed from 2005 to 2008 due to the Employer’s inaction to protect him from harassment and discrimination
The grievor repeatedly raised his complaints with the employer during the period 2006 to 2008. The Employer was aware of the grievor’s complaints and should have been conducting its own investigation.
Notwithstanding the assurance provided to the grievor by the Employer regarding the relevant documents such as pictures of the graffiti, the Ministry now claims to have lost virtually all of the crucial documents it should have protected that would have shed light on this matter. Indeed, we do not know if the particulars are complete – they are as much as the grievor recalls but various lost documents could have assisted with his recollection. Accordingly, the Employer cannot come before this Board with dirty hands and then complain about how the grievor was processed. Indeed, it is to be remembered that the grievor asked for the document file almost immediately after the filing of the grievance.
The delay is short. It is a mere matter of months. At most it is two and a half months out of time. It certainly cannot be said that the Employer experienced any prejudice as a result of this short time.
32The Union disagreed with the Employer that there has been prejudice in this matter as a result of the delay. This Board has to be satisfied that the Employer will not be prejudiced by the extension itself. It is true that memories fade with time. However, the period of the requested extension is a mere two months which is hardly sufficient time for there to be prejudice caused. It was conceded that one of the witnesses that would be of use to the Employer has expired but that occurred at least two and a half years after the grievance was filed.
33Ms. Riddell suggested that taking into account the nature of this grievance is sufficient – in and of itself – to dismiss the Employer’s motion. The matter before this Board has – at its centre – human rights issues - both accommodation and harassment - and the Board should be very cautious about dismissing this grievance on the basis of timeliness.
34The final reason this Board should not uphold the Employer’s motion, according to the Union, is because there are medical reasons that interfered with the grievor’s ability to file a grievance and that evidence can be heard by this Board if requested.
35The Union also relied upon Re Cosby v. Aditya Birla Minacs Worldwide Inc. [2012], O.H.R.T.D. No 2348 (Chadha); Re Goodyear Canada Inc. v. United Steelworkers of America, Local 189 (Tompkins) [2001], O.L.A.A. No. 792 (Goodfellow); Re Toronto (City) and CUPE Local 79 (Stockley) [1999], O.L.A.A. No. 446 (Starkman); Re Ministry of Solicitor General & OPSEU (Jankovics) (1993), GSB # 1102/01 (Kaplan); Re Liquor Board of Ontario & OLBEU (Aleong) (1997), GSB #1318/96 (Gray); and Re Ministry of Community Safety and Correctional Services & OPSEU (Liantzakis) (2014), GSB# 2012-3397 (Tims).
36In closing the Union said that the delay in this matter is not extensive and there can be no doubt that if ever there was a grievance that cried out to be heard on its merits this is it. A denial of the motion was urged.
EMPLOYER REPLY
37Mr. Shahab, in reply said that the most important point to be considered is the evidentiary record before this Board. What cannot be considered is facts not alleged or proven such as the reasons the grievor left work on November 10, 2008. All that is known by the particulars is that he went off due to illness. There is nothing in those facts that substantiate the Union’s claim, in its submissions, that he left as the result of harassment. Medical would be needed to have that fact before the Board.
38Regarding the matter of whether this Employer would be prejudiced it was asserted that the Board must follow its own jurisprudence where there might be a somewhat different application of the legal principle. Prejudice is presumed. In the event this Board finds no actual prejudice it is still presumed. If the Employer can show actual prejudice – even though such evidence is not required – then it is a significant consideration.
39Regarding the Union’s argument that the time lines should be extended because the matters at issue are of a human rights nature, the Employer suggested that the Board must still consider the last incident that would bring about a finding of a violation.
MEDICAL EVIDENCE
40As noted above, following the submissions by the parties – the Board asked for the medical evidence that had been mentioned by the Union. It had been agreed by the parties in their initial submissions that if the Board was of the view that medical evidence would be of assistance – that evidence should be called.
41It took some months for that evidence to be heard. The first witness was the grievor’s general practitioner, Dr. James McKay. He first saw the grievor in approximately 2006 and was made aware of his past history by way of old medical charts from previous health care practitioners. In a letter dated May 15, 2014, in response to various questions posed by Union counsel, Dr. McKay said the following, in part:
On his visit in December of 2006 Mr. Lachance complained of multiple stressors at work. He was not seen again by me until December of 2007.
In 2008 the patient was seen by me in January, February and March for his psychological complaints. On March 24, 2008, he felt well enough to return to work and a note was given to return to modified duties of 12-hour night shifts only. He was seen again on May 28, 2008, (sic) he described no psychological conditions at that visit. He was not seen again by me until November 18, 2008. At that time, he stated to me that he was “off work due to anxiety”. He was referred to Dr. Aulak, a psychiatrist. He was again seen by me on 10 December, 2008, and at that visit he stated that he was “stressed, anxious and couldn’t work”. He was referred to Dr. Koka, a psychiatrist.
Regarding your question, I’m unable to make a comment about the patient’s ability to understand his collective agreement, however it may be possible that an anxious state or depressive state may limit one’s ability to focus on specific tasks.
…… it is possible that some of (his) medications may cause cognitive slowing. It should be noted that also depression and anxiety may cause cognitive slowing. However, please note that as above, the patient appeared to not be taking his medications past the above noted dates. Also, a formal cognitive assessment was not performed at that time as there was no indication for such an assessment at that time.
42There were a number of question in Dr. McKay’s evidence in chief regarding the grievor’s past medical history. It is not necessary to set that evidence out in this decision but it has been reviewed and considered by this Board. Turning to the time at issue in this preliminary motion – Dr. McKay saw the grievor on November 18, 2008. He testified that the grievor told him that he was off work due to anxiety and given that his condition had been ongoing for some time – since 2006 - and there was not improvement he decided to refer the grievor to a psychiatrist. He did this because he thought the grievor was “getting worse” and he suspected more than just a simple adjustment disorder and more than depression.
43When Dr. McKay saw the grievor on December 10, 2008 he wrote in his clinical note that he thought the GAF (Global Assessment of Function) was approximately 60. Although that classification system is no longer used, 60 or less was considered significant in terms of dealing with a workplace. He assigned that number because of the grievor lacked focus at work, was anxious and depressed. Indeed, his ability to work was affected. He determined that Mr. Lachance should not return to the workplace at that time at least until he was assessed by a psychiatrist.
44Dr. McKay testified about the medications taken by the grievor during this time and stated that they were generally well tolerated. He said that cognitive impairment is a rare side effect.
45In the Request for employee health information that Dr. McKay filled out on January 14, 2009, he noted that the grievor was “poor” regarding attention/concentration; memory; planning/organizing/multi-tasking; reasoning/problem solving/decision making; and perception. Dr. McKay testified that these are all of the issues that the grievor reported to him when questioned. He understood – at the time that the grievor meant he was unable to perform these specific tasks.
46Dr. McKay stated that he was of the view that the grievor’s depressive and anxious condition was getting worse and it is very common in people with depression and anxiety to have cognitive dysfunction. He may or may not have been taking his medications at the time. He agreed with Dr. Koka’s later diagnosis.
47In cross examination Dr. McKay repeated that he was unable to comment on the grievor’s ability to interpret his collective agreement but anxiety can cause some cognitive dysfunction. Having said that between August of 2008 and November of 2008 there was no formal cognitive assessment undertaken. Indeed, he did not see the grievor during this period. Such an assessment may have established if the grievor could have undertaken complicated cognitive tasks. Dr. McKay agreed that he was unable to say whether or not during that time the grievor had cognitive difficulties. However, in his experience patients with anxiety and depression do not “function well”. Generally speaking, he agreed that patients with anxiety and depression would be more likely to struggle with complex tasks rather than simple ones.
48Finally, Dr. McKay testified that he had no understanding of the process of filing a grievance under a collective agreement involves. During the time at issue he had no concerns about the grievor’s ability to exercise independent judgement on his own behalf regarding financial matters, housekeeping or grooming decisions.
49Dr. Koka, a practicing psychiatrist in Sudbury, testified by way of teleconference. Prior to the teleconference he wrote to Union counsel and said, in part:
Ms. Riddell, I did talk to you over the phone after you had sent me Dr. McKay’s notes. I have not seen this gentleman in 2008 and I indicated that I cannot come to any conclusions or make any comments about what has happened before I saw him. It would be the same even if I come to the arbitration because I cannot predict what might have been before and I will not be able to guess and come and say something which I will not be able to do.
50The grievor has been a patient of Dr. Koka since March of 2009. He has seen him regularly every two to three months since that time.
51Again, it is not necessary for me to set out all of the evidence proffered by Dr. Koka but all of his viva voce and documentary evidence has been thoroughly reviewed.
52Dr. Koka said that he was unable with any degree of accuracy pinpoint when the grievor’s symptoms may have begun. He refused to comment as to whether the grievor’s condition existed in 2008 although he noted that the grievor reported having problems with behavior and mood for the past fifteen years. He noted that people with mood disorders can make the wrong decisions and could cause one to procrastinate.
53The above letter to the Union was asked about in cross examination. Dr. Koka could not categorically say whether the grievor had his diagnosis prior to March 2009 but he understood from the grievor that he had problems with anger and interpersonal relationships for “a number of years”. Accordingly, he “may have had” the mood disorder long before he attended in Dr. Koka’s office. He agreed that he was unable to comment on the severity of the grievor’s condition prior to meeting him in March 2009. His impairment can be severe or moderate. He also agreed that some people with the same diagnoses as the grievor could be unaffected in terms of their ability to make decisions – if they are treated and stable.
54Dr. Koka stated in cross examination that at no time did he consider committing the grievor under the Mental Health Act, nor was he concerned with his ability to drive a car or manage his financial affairs.
55There was general discussion with Dr. Koka regarding the ability of people with the grievor’s diagnoses to make simple versus complex decisions. Dr. Koka said that it would depend on the severity of the condition and what motivation, if any was present.
56Finally, when asked in cross-examination if he could testify regarding the grievor’s ability to file a grievance in 2008, he restated that he could provide no opinion.
DECISION
57After consideration of the evidence, submissions and jurisprudence provided, I am led to the inevitable conclusion that the Employer’s preliminary motion must be upheld. Following are my reasons for that determination.
58In Re Flynn (supra) Vice Chair Dissanayake reviewed Re Government of Province of British Columbia (1995), 1995 CanLII 18378 (BC LA), 52 L.A.C. (4th) 48 (Laing). The arbitrator in that case had before her a grievance regarding the grievors change in status from full time to part time. Vice Chair Dissanayake set out some of that decision beginning at paragraph 90. He noted:
Arbitrator Laing, at pp.64-65, cited with approval the following statement in Bristol-Myers Manufacturing (1990), 1988 CanLII 9156 (BC LA), 3 L.A.C. (4th) 256 (McColl) at 262:
Timeliness is a troubling issue for most arbitrators. In many respects barring the hearing of a dispute due to timeliness is an unsatisfactory ending to potentially substantial issues between the parties. Invariably, it has the appearance of a “technicality”. Arbitrators have a broad mandate in this jurisdiction to interfere even with rigorous contractual language which mandates time to be important to the parties. That discretion, however, should not be exercised in a vacuum. Arbitrators are expected to balance the equities and reach a conclusion which does not do an injustice to the conflicting interests. At the same time, arbitrators ought not to just ignore the collective agreement provisions. It is one of the consideration is balancing the equities.
59I agree and adopt that view. Timeliness is generally a difficult and troubling issue and one which this Board has struggled with in some instances. This has been such a case.
60The Union put forward four reasons the motion should fail. I will deal with those submissions seriatim. The Union first suggested that the grievance before this Board is of a continuing nature. I must disagree. The Board has dealt with this matter frequently in the past. As noted above, when Vice Chair Brown considered this argument in Re Joly (supra) he said, at page 10:
…… Union Counsel argues that, where discrimination or harassment takes the form of a course of conduct, there is no single moment when the grievance crystallizes and time begins to run. While I agree time may not run from the first event in a course of conduct, it does start to run no later than the last event in the series. …..
61This view has been reaffirmed in various Board decisions since its issuance.
62Also in this regard the Union suggested that there have been ongoing or continual effects of the harassment and therefore the grievance is of a continuing nature. Again, I think not. As noted by Vice Chair O’Neil in Re Mroz (supra), at paragraph 34:
There is also the idea that, for the managers, the effects never stopped. However, the law on timeliness of grievances makes clear that continuing effects of a completed action in the past do not make the matter continually timely. There are arbitration decisions in which grievances have been considered continuing grievances, where it is considered that there are recurring breaches of a term or condition or employment. For instance, if a person is paid incorrectly, each pay period may be considered a new occasion of improper pay. However, when a grievance complains of action taken at a specific time in the past, even if it has continuing consequences, it is not properly considered a continuing grievance. ……
63Applying those views to the matter at hand I must find that the grievance is not of a continuing nature. It is noteworthy that this determination is not contrary to the jurisprudence of the Ontario Human Rights Tribunal that was put before this Board. Mr. Lachance grieved that he was harassed and discriminated against as the result of his accommodation and complaints he made regarding health and safety. In the particulars there are a number of incidents cited. There was, as asserted by the Union, a course of conduct over a period of time. There were no incidents cited beyond August of 2008. The jurisprudence provided by the Union where there was a finding that the grievance was of a continuing nature are quite fact specific and can be distinguished from the matter before this Board.
64The Union also urged that the trigger date for this grievance was not August of 2008 but the date the grievor left the workplace. I cannot accept this assertion. While I understand that the day in November of 2008 was the date that the grievor decided for health reasons that he was no longer able to remain in the workplace, his own decision to leave was not an event triggering the filing of a grievance. The last incident cited which occurred in August of 2008 is the triggering event for the filing of the grievance and therefore it is outside the time limits set out in the Collective Agreement.
65The third and fourth reason put forward by the Union must be considered together. The Union asserted that in the event this Board found the grievance to be out of time, it should exercise its jurisdiction under section 48(16) to extend the time limits.
66As noted above in the submissions of the parties, it is trite law that there are various factors to take into account when a Board is determining whether to exercise its jurisdiction to extend the time limits set out in a Collective Agreement.
67Factors taken into account in this regard include the length of the delay; whether the delay was at the beginning or later in the grievance procedure; the nature of the grievance; whether the grievor had a reasonable explanation for the delay; whether the Employer suffers prejudice by the granting of an extension. Some arbitrators also have considered, as noted by Arbitrator Liang in Re Government of British Columbia (supra), “the degree of force with which the parties have given contractual expression to the time limits.
68Turning first to the matter of the length of the delay. In considering this factor I have taken into account that the delay at issue is at the outset of the grievance procedure. That is to say that the Employer would have had at least a two-month period and perhaps as long as a three-month period where it thought Mr. Lachance was not advancing a complaint under the grievance procedure of the Collective Agreement. A delay at the front end of the grievance procedure is more problematic for an Employer because it has not been put on notice – in any way – that there is a live dispute. Memories can fade and documents simply not kept which in hind sight might have been important. Vice Chair Gray in Re Mazara said, at paragraph 59, that “a delay at the initial stage weighs more heavily against an exercise of discretion to extend time limits, all other things being equal, than a delay at the later stages of the grievance process”.
69Further, the Board jurisprudence – much of which was put before this Board and cited above - has made clear that a two-month delay – particularly at the outset of the grievance procedure – is a “significant” or “substantial” delay. Vice Chair Gray, in Re Smith et al was considering an allegation of an improper level of pay for a group of employees. He stated, beginning at paragraph 17:
As I have already noted on the view most favourable to the grievors the delay is about three months beyond the already ample time frame provided by the collective agreement for bringing a complaint to the grievance process. This is a substantial delay. A bar based on such a delay should not be described as merely “technical”.
These grievances are objectively more important to the grievors than a grievance about a day’s pay or minor discipline would be, but less important than a discharge grievance would be.
70The nature of the dispute is another factor to take into account. I appreciate that the nature of the grievance at issue is discrimination and harassment and those allegations are not inconsequential. Indeed, I have given this factor much consideration. However, I cannot extend the time limits of this grievance merely because harassment and discrimination are at issue. If the fact that discrimination and harassment have been alleged was sufficient grounds for an extension, timeliness would become somewhat meaningless in a significant number of grievances before this Board. In Re Wilson Vice Chair Abramsky was considering a timeliness objection regarding a grievance that alleged, “inhumane treatment” by various management representatives during an absence due to illness. In her decision Vice Chair Abramsky contemplated whether the nature of the grievance was sufficient reason to extend the time limits. At paragraph 52:
The main thrust of the Union’s argument was that the nature of this grievance compelled a hearing on the merits. There is no question that the October 1996 grievance involves very serious allegations and very serious issues. The grievance essentially claims that the employer, through its actions, ruined Mr. Wilson’s mental and physical health to the extent that he can never work again. But the nature of the grievance is only one factor, and it simply cannot, by itself, lead to a conclusion that there are reasonable grounds to extend the 30-day time limit negotiated by the parties in their collective agreement for a five-year period.
71Finally, I turn to the matter of whether there are reasonable grounds for the delay. As noted above, after the hearing date wherein the submissions were made, I notified the parties that in order to determine this aspect of the Union’s argument, the medical evidence that had been mentioned by both parties needed to be tendered.
72I heard from both the grievor’s general practitioner and his treating psychiatrist. I also received a package of documents regarding his medical care. I think it is fair to say that it was the hope of the Union that this evidence would substantiate the claim that the grievor was sufficiently unwell so as to allow this Board to determine he was not able to appreciate the time limits – and his obligations in this regard – as set out in the Collective Agreement. The evidence fell far short.
73The salient period to consider regarding the status of the grievor’s mental health beginning began in August of 2008, that is, the time of the last triggering event. The psychiatrist’s evidence – although providing some general views of the effects of the grievor’s diagnosis – was not particularly helpful given that he did not begin to treat the grievor until March of 2009. He frankly admitted on more than one occasion that he could not give his opinion as to the grievor’s ability during the above noted time.
74Much of the grievor’s general practitioner’s evidence was merely a recitation of the signs and symptoms reported to him by the grievor at the time. The general practitioner’s letter to Union counsel revealed that the grievor did not see him between May 28, 2008 and November 18, 2008. Again – for the very period that this Board is focused on there is no definite medical evidence. Indeed, Dr. McKay noted that he was unable to comment about Mr. Lachance’s “ability to understand his collective agreement” though he noted that “it may be possible that an anxiety state or depressive state may limit one’s ability to focus on specific cognitive tasks. However, according to the evidence of both physicians I note that no restrictions were put on the grievor as the result of concerns about his activities of daily living such as managing his financial affairs or driving a car.
75The review of the medical evidence in total – some of which was documentary and not set out in this decision but taken into account – does not lead me to find that the grievor was too ill to be aware that he could file a grievance.
76According to the particulars the grievor began to experience harassment partially as the result of insisting on health and safety concerns that he had in the workplace. The precipitating incident of that health and safety complaint appears to have occurred in the spring of 2005. At that time the grievor wrote a four-page report about his concerns and followed this by attending at a Joint Health and Safety meeting. Given the grievor’s apparent understanding of certain provisions of the Collective Agreement and the processes set out herein, it is difficult to find that he was unable or reluctant to file a timely labour relations complaint or grievance. Again, I understand that this was a difficult time for the grievor and that he ultimately had to leave the workplace on sick leave. However, I cannot find that fact to be reasonable cause for the significant delay in the filing of the grievance after hearing the medical evidence.
77The Employer urged that it would be substantially prejudiced by an extension of the time limits in this matter. While I understand that view, it was not the most troubling aspect of my consideration of its preliminary motion.
78For all of those reasons, the Employer’s motion is upheld and the grievance is dismissed.
Dated at Toronto, Ontario this 3rd day of April 2017.