GSB#2013-1169, 2013-1170

UNION#2013-0424-0002, 2013-0424-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranger)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Craig Flood Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 3, 2017

Decision

1This is an application by the employer to restrict the union from calling certain evidence at the hearing of this matter. There have been multiple days of evidence.

2As set out in my decision dated May 7, 2015, the union has filed two grievances on behalf of Robert Ranger. Mr. Ranger is a corrections officer being accommodated in a position in the probation and parole office in Ottawa. The union has grieved that a five-day suspension received by Mr. Ranger was a breach of the collective agreement because the employer imposed excessive discipline as opposed to progressive discipline. The second grievance alleges that the employer has failed to provide a workplace that is free of discrimination and harassment.

3My decision dated May 7, 2015 was as a result of an application by the employer to strike out aspects of the union's claims and to limit evidence that the union might call.

4The employer's application then, as now, was as a result of the union having provided particulars of its claims in two letters dated January 21, 2014 and November 26, 2014.

5The evidence now sought to be constrained relates to a request by Mr. Ranger on November 13, 2013 that he be given vacation time of December 23, 24, 27, 30 and 31, 2013. The second area of evidence the employer now seeks to prevent relates to the posting by Mr. Ranger of articles from the Ottawa Citizen on a Union bulletin board. Persons unknown removed those articles. It is alleged that Mr. Ranger complained to his supervisor about the removal of the articles and no action was taken to investigate their removal. Those articles allegedly relate to Mr. Ranger’s previous litigation before the Grievance Settlement Board in which he had successfully grieved the employer's failure to prevent harassment and discrimination against him on the basis of his sexual orientation. Both of these areas were particularized in the January 21, 2014 letter to counsel for the ministry.

6Counsel for the Ministry sought further particulars which were provided in the second letter dated November 26, 2014. Specifically, the union elaborated upon the missing articles in the following terms:

Mr. Ranger posted a number of articles that were published about him and his experiences as a gay man working as a Correctional Officer. The articles chronicled the history of abuse, harassment and discrimination to which he was subjected. Proud of what he had been able to achieve and wanting to ensure that others were aware of what he had endured, Mr. Ranger posted articles from Xtra, the Ottawa Citizen and a feature article which ran in newspapers including the Toronto Star. The articles were posted at the same time as, or shortly after, they were published. They were removed shortly after being posted.

7The grievances here were filed in June 2013. It is now three years since the grievances were first particularized. The employer now seeks, in mid-hearing, to prevent the calling of evidence relating to these events on the basis that they occurred after the filing of the grievances. These events are no surprise to me, and I fully expected that evidence would be called in relation to them. These events have been part of the narrative for all of this time. In my view, it is simply too late for the employer to object to the particulars provided on the basis that they occurred after the date of the grievance. Just as events stretching backwards in time from the filing the grievance might be relied upon to show a course of action that amounts to harassment and/or discrimination, certainly, in this case, these events, particularized as they were three years ago, may be explored with respect to where they fit into the narrative arc that the union seeks to present. The weight to be attached to them may be argued at the close of the case.

8The employer’s application to prevent the calling of evidence relating to these two events is dismissed.