GSB# 2015-1868; 2015-2272

UNION# 2015-0108-0036; 2015-0108-0045

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Calder)

Union

• and -

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

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 18, 2017

Decision

Background:

1This matter relates to two grievances, brought in 2015. The grievances allege a pattern of discrimination, harassment and bullying, as well as failure to accommodate the grievor and protect him from an unsafe workplace.

2The parties have now resolved the two grievances.

3Prior to this resolution, the employer brought a preliminary motion, challenging the union’s reliance on alleged facts dating back as far as 2008. Following the parties’ submissions, I issued the following decision, with reasons to follow:

The employer’s motion is granted. Evidence regarding events that predate the first grievance of August 12, 2015 by more than three years will be excluded. The union is directed to update its Statement of Particulars accordingly.

4This decision briefly sets out my reasons.

Positions of the Parties:

Employer

5The employer relies on what it characterized as the Board’s “three-year rule” as articulated in the Board’s decision in OPSEU (Patterson) and The Crown in Right of Ontario (Ministry of Public Safety and Security), GSB No. 2001-0925, 2001-0949 December 1, 2003 (Leighton). In that instance, Vice-Chair Leighton [as she then was], in balancing the interests of the union to prove its case of an alleged poisoned work place, and the employer’s right to defend itself, limited the scope of the evidence the union could put into evidence to three years before the grievances were filed.

6This approach was subsequently followed in: OPSEU (Dubuc) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2015-1330, November 2, 2016 (Herlich); OPSEU (Bilardo) and The Crown in Right of Ontario (Ministry of Labour), GSB Nos. 2012-2049 et al, November 21, 2014 (Herlich); OPSEU (Patterson) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 1989-1546 et al, December 5, 2006 (Abramsky); OPSEU (Lavoie et al) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services); GSB No. 2012-2206, 2012-2965, August 28, 2015 (Sheehan); and OPSEU (Dale et al) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), GSB Nos. 0783/00, 1314/00, 0883/01, March 11, 2002 (Abramsky).

7The employer submitted this demonstrates, that as an equitable and procedural matter, the Board recognizes three years as a fair cut-off point for the scope of evidence, so as to balance the union’s need of a sufficient timeframe in which to establish a pattern, without events being so old the employer has difficulty defending against them. The employer further pointed out that a limitation of three years allows the volume of evidence to be contained.

Union

8The union maintained the grievor’s difficulties date back to 2008, involve many of the same antagonists, and provide a context for his grievances of 2015.

9The union referred to Arbitrator Bendel’s decision in George Brown College of Applied Arts and Technology and OPSEU, 2016 CanLII 9122 (ON LA). The union submitted that Arbitrator Bendel essentially rejected the approach of a temporal limit on evidence. Rather, Arbitrator Bendel indicated he was unaware of any legitimate source of discretion to exclude relevant evidence. Rather, he suggested doing so would “fly in the face of the principle audi alteram partem [the right to be heard], which makes any resulting award liable to be set aside on judicial review”.

10The union conceded three years was a temporal guideline utilized by the Board, but pointed out the Board has extended it in when appropriate. Specifically, in Ontario (Ministry of Community Safety and Correctional Services), and OPSEU (O’Brien), 2011 CarswellOnt 16449, Vice-Chair Leighton opined that while limiting evidence to the period of three years prior to a grievance would normally be fair, each case must be considered on its facts.

11In that instance, subject to a finding of actual prejudice demonstrated during the hearing, Vice-Chair Leighton allowed evidence approximately nine years prior to the 2009 grievance before her. The grievance in that instance, alleged discrimination and harassment throughout the grievor’s tenure, which ended when the grievor left the workplace due to illness in 2001.

12Vice-Chair Leighton justified her departure from the three-year limitation on the basis of what she characterized as the “unique circumstances” in that instance. These included the grievor’s continued absence from the workplace since 2001, which Vice-Chair Leighton noted, eliminated any concern regarding voluminous evidence from this time. There was also some commonality between the 2009 grievance and an earlier 2003 grievance, also before Vice-Chair Leighton, in that both alleged the grievor’s attempts to return to work were thwarted by the employer.

13Counsel for the union submitted that arguably, Arbitrator Bendel’s approach was not inconsistent with the three-year limitation, as Arbitrator Bendel did opine that arbitrators may find evidence regarding isolated incidents which occurred several years before the grievance to be irrelevant, and refuse to hear them. Rather, counsel for the union submitted it was possible to interpret Arbitrator Bendel’s approach as consistent with that of Vice-Chair Leighton, in that both acknowledge that an appropriate approach includes an analysis of the facts in each case.

14Indeed, Counsel for the union pointed out this was Vice-Chair Herlich’s conclusion in Dubuc, supra, when considering Arbitrator Bendel’s analysis.

15Counsel for the union pointed out the need for flexibility was further articulated by Vice-Chair Leighton in Ontario (Ministry of Labour) and OPSEU (Lunan), 2015 CarswellOnt 7110. In that instance, Vice-Chair Leighton pointed out the three year limit was not absolute but rather, was “approximate”. She clarified, at paragraph 10, that by “approximate” she meant the three years should not be “to the day, especially if there is an important event that occurred just beyond the three years.”

16Vice-Chair Leighton went on to conclude that in that instance, the precise timeline was best determined during the hearing. Union counsel suggested this approach was also appropriate in this instance.

Analysis:

17I adopt Vice-Chair Herlich’s analysis in Dubuc, supra, as set out in paragraphs 10, 11, and 12 that “there is no invariable or inflexible rule that the exclusion of relevant evidence is, in and of itself, always a violation of the rules of natural justice. I also share his conclusion, set out in paragraph 15, that the three-year rule is simply a “point of departure, not an inflexible rule to be mechanically applied in all cases.

18I would simply add that the principle of audi alteram partem includes consideration of the difficulty of responding parties to address evidence that is unreasonably old. In such instances, when the resulting prejudice outweighs the relevance, it may be appropriate to exclude that evidence, although the evidence may be relevant. This consideration has been and remains a consideration in the Board’s application of the three-year rule.

19Further, while there may be instances where such an assessment is most appropriately made in the evidentiary context of a hearing, I am not persuaded that is the case in this instance.

20Rather, in this instance, the particulars the union wishes to rely upon are grouped into three distinct time periods: 2008 – 2009; 2013-2014; and 2015.

21As argued by counsel for the employer, the absence of any allegations for the four year period between 2009 and 2013 leads me to conclude this is a sufficient a gap as to make any evidence from the 2008 – 2009 of tenuous relevance at best. At the same time, it would potentially unnecessarily prolong the hearing, and require the employer to respond to evidence which is very old indeed.

22Accordingly, I find that in this instance there is no reason to deviate from the limitation on evidence to the three-year period predating the first grievance of August 12, 2015. Rather, I find that is sufficient time in which the union can establish its case, without on its face, triggering any concerns regarding unfairness to either party or unnecessarily prolonging the hearing.