GSB#2015-2885

UNION#2016-5112-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Samuels et al)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 13, 2017

Decision

1A grievance dated December 22, 2015 signed by correctional officers Ms. Jacqueline Samuels, Ms. Maria Walker, Ms. Rita Brunet and Ms. Cheryl Richards came before the Board for hearing on September 7, 2017 under article 22.16 of the collective agreement. Union counsel advised that Ms. Samuels had settled her grievance, and that the other three grievors were not in attendance. Following attempts by counsel to contact the absent grievors, he sought an adjournment. The employer consented on the union’s agreement that the grievance of any grievor who fails to attend on the next scheduled hearing date would be dismissed by the Board.

2The hearing was adjourned and rescheduled for September 13, 2017. On that day Ms. Walker and Ms. Brunet were in attendance, but not Ms. Richards. The Board has satisfied itself that Ms. Richards received due notice of the rescheduled hearing date. Therefore in accordance with the condition for adjournment agreed to between the parties, the grievance is dismissed as it relates to Ms. Richards.

3That left for consideration the grievance as it related to grievors Walker and Brunet. The statement of grievance and settlement desired are as follows:

STATEMENT OF GRIEVANCE

1. Jacqueline Samuels and my colleagues, hereby grieve the employer has violated the following legislation, including but not limited to:

Article 2, Article 9, OHSA, Ontario Fire Code.

By: Including, but not limited to: Subjecting the workers to a life threatening smoke exposure and carbon monoxide poisoning, requiring hospitalization. Providing inadequate PPE for smoke in form of N95 masks, failing to advise workers of smoke in area, failing to assist workers in smoke filled area. Failure to provide adequate amount of SCBA units. Failing to provide for safety and security of offenders and workers, placing workers lives at risk. Suspected of bypassing fire systems, and failing to remove smoke from area using BAS systems. Not contacting the Toronto Fire Service upon discovery of fire.

The incident is still under investigation at this time, and more information may be forthcoming.

SETTLEMENT DESIRED

Full Redress

. Damages, as applicable

. Any other award the vice-chair deems appropriate.

4Employer counsel stated that in this case he will not challenge, without prejudice to the right to take a contrary position in future cases, the union’s assertion that regardless of the outcome of the instant motion, the Board has jurisdiction to make a declaration if violations are found following a hearing on the merits. However, by way of a preliminary motion, he moved that the Board find that, beyond declaratory relief, it has no jurisdiction to award the monetary redress sought including damages, because the injury suffered by the grievors at the work place was compensable under the Workers Safety and Insurance Act (“WSIA”).

5Employer counsel stated that while the employer would be vehemently denying any violation of the collective agreement or any statute, for purposes of this motion only, the Board may accept the facts alleged by the union.

6The grievance in essence is an allegation of violation of article 9.1, which provides:

Article 9.1: The Employer shall continue to make reasonable provisions for the safety and health of its employee during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

7The following basic facts are not in dispute. On December 2, 2015 some inmates in the Special Handling Unit of the Toronto South Detention Centre lit a series of five fires. The repeated fires caused smoke to spread within the Special Handling Unit as well as some other areas of the institution. The grievors who were working in another area were exposed to smoke inhalation. Along with others, they were transported to a hospital, treated and released. Both Ms. Walker and Ms. Brunet filed claims for benefits under the WSIA. Ms. Brunet was awarded health care as well as loss of earnings benefits by the Workers Safety and Insurance Board. Ms. Walker’s claim for health care benefits was allowed. However, her claim for time missed beyond the day of the incident was denied, the Board concluding that symptoms she experienced after the date of the incident were not due to inhaling smoke on that day, but were due to a pre-existing condition.

8The employer takes the position that the redress sought by the grievors is precluded by s. 26(2) of the WSIA, which reads:

Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.

He relied on this Board’s decision in Re Monk et al, 1995-1694 (Gray), upheld on Judicial Review by the Ontario Divisional Court, and by the Ontario Court of Appeal.

9Union counsel accepted the principles established by the Re Monk line of cases, including decisions of this Board. However, he submitted that the facts in this case were distinguishable from those cases. The critical distinction, he submitted, was that in this case the grievors’ injury resulted not from a single event, but from a series of events which occurred between approximately 9:00 a.m. to 2:00 p.m. on December 2, 2015. He submitted that each of those events was a violation of article 9. Article 9 requires the employer to be proactive in taking reasonable steps to prevent accidents. The employer did not do so. When the first fire occurred, the employer did not act to prevent further similar fires. He relied on the various failures on the part of the employer set out in the statement of grievance.

10Union counsel submitted that each of these failures by the employer constituted separate violations of article 9. Those failures led to the subsequent fires and ultimately resulted in injury to the grievors. Counsel conceded that the grievors suffered only one injury. However, he argued that but for the series of violations on the part of the employer, that injury would not have resulted.

11Counsel submitted that if the grievors had not suffered any injury at all on the day in question, it would not have prevented them from grieving and alleging a violation of article 9 based on the employer’s inaction. He submitted that the grievors should not be in a worse position because they did suffer injury as a result of those same violations. Counsel finally submitted that the grievors are claiming damages for the injury itself, but only for the violation of their rights under article 9. He submitted that the Board has jurisdiction to award damages where there has been a breach of the collective agreement.

12The Board agrees with the employer that the union’s separation of the employer action which caused the grievor’s injury from the injury itself is an artificial distinction in an attempt to circumvent the historical trade off embodied in the WSIA that the employer’s contributions to the compensation fund protects it from liability for compensable workplace injuries. To allow the grievors to obtain damages for each of some seven to eight alleged breaches of article 9 which culminated in injury to them, would be to ignore the substance of their claim, by artificially parsing a sequence of employer failures which occurred during the course of a few hours, which culminated in injury to the grievors. In fact, I am of the view that the facts in this case are not in any event distinguishable from the facts in Re Monk, since that case was about actual or possible future injury resulting from exposure to second hand smoke over a period of time, and not from a single incident. The Board therefore concludes that the trade-off contemplated by the WSIA precludes the award of the compensatory relief and damages sought in the instant grievance. The employer’s motion is therefore upheld.

13As requested, the Board remains seized with the grievance.