GSB# 2015-1251; 2015-2769; 2015-2772; 2016-0219; 2016-0220; 2016-0341; 2016-0342; 2016-0426; 2016-0427; 2016-0429; 2016-0469; 2016-0792; 2016-0793; 2016-1116; 2016-1802

UNION# 2015-0368-0285; 2015-0368-0373; 2015-0368-0376; 2016-0368-0046; 2016-0368-0047; 2016-0368-0055; 2016-0368-0056; 2016-0368-0061; 2016-0368-0062; 2016-0368-0064; 2016-0368-0069; 2016-0368-0102; 2016-0368-0103; 2016-0368-0119; 2016-0368-0174

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fitzpatrick)

Union

• and -

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

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Brett Hughes Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 12 and 17, 2018

DECISION

1I have before me a number of grievances filed on behalf of Carrie Fitzpatrick (the "grievor") that raise allegations of harassment and a failure to accommodate.

2The Union filed a will-say statement setting out the evidence to be given by the grievor (hereinafter the "Will-Say Statement") following which the Employer brought a motion to strike a number of paragraphs on the basis that they raise allegations that were the subject of earlier grievances that have been dismissed.

3The paragraphs the Employer seeks to have struck out are paragraphs 32 to 34 and paragraphs 40 and 41. Paragraphs 32 to 34 set out an allegation that, at a meeting attended by the grievor in her capacity as a union representative, a manager by the name of Ms. Brooks stated that a file would be reassigned to the bargaining unit member in attendance if that was what she wanted. It is then alleged that, at a subsequent meeting, Ms. Brooks denied saying the file would be reassigned to the bargaining unit member. It is further alleged that, when the grievor complained to Ms. Brooks' boss, she was told it did not matter because it was not in writing. The allegation set out in paragraphs 32 to 34 is referred to herein as the "File Allegation."

4Paragraphs 40 and 41 of the Will-Say Statement set out an allegation concerning an alleged lie told by Ms. Brooks on May 5, 2015. It is alleged that Ms. Brooks said that "a deputy" told her that a certain inmate could not return to his home institution for discharge and later stated no deputy had given the direction. The allegation set out in paragraphs 40 and 41 is referred to herein as the "Deputy Allegation"

5In Ontario Public Service Employees Union (Fitzpatrick) v Ontario (Community Safety and Correctional Services), 2016 CanLII 41673 (ON GSB) Vice-Chair Anderson determined preliminary objections brought by the Employer in connection with five earlier grievances filed on behalf of the grievor. The five grievances concerned five separate incidents over the course of seven or eight months (October 2014 to May 2015). One of the five grievances before Vice-Chair Anderson was the File Allegation and a second of the five was the Deputy Allegation. In a Union letter dated April 4, 2016 containing particulars filed in connection with the five grievances, it is stated that there was no request to consolidate the five grievances with other outstanding matters.

6In respect of the File Allegation and the Deputy Allegation Vice-Chair Anderson stated:

[8] Two of the incidents involve allegations that Ms. Brooks "lied". However in one incident Ms. Brooks is alleged to have lied about a representation to another employee, made in the presence of the Grievor as a union representative or witness. In the other incident, four or five months later, Ms. Brooks is alleged to have lied about the fact that a different supervisor had made a representation to the Grievor with respect to what transportation arrangements should be made for an inmate. It is difficult to see how the alleged lie about a representation made to another employee in the presence of the Grievor could constitute part of a course of conduct towards the Grievor. In any event, there is no plausible basis on which the two separate incidents taken together can be said to constitute a course of conduct.

7The grievances were dismissed.

8The Employer submits that the File Allegation and the Deputy Allegation are res judicata and the grievor ought not to be able to continuously roll forward her complaints attaching new, imagined slights to a case that has already been decided. The Employer submits that this is particularly so, as this is an expedited proceeding under Article 22.16, and it would be counter to expedition to require the Employer to defend itself against the same allegations over and over again. There would be no end to the litigation. Accordingly, the Employer asks that the paragraphs in issue be struck.

9The Union argues that the decision of Vice-Chair Anderson was not a decision on the merits. Vice-Chair Anderson did not hear any evidence about these incidents and the effect they had on the grievor; rather, the determination was made based on a preliminary motion. Further, Vice-Chair Anderson properly set out the approach to harassment; although several specific incidents may not amount to harassment, a course of conduct may. The determination was that these two incidents alone did not amount to a course of conduct. The Union submits that there are numerous additional allegations before me. It would not be appropriate to pars a harassment case by considering a continuum of conduct in chronological groups of allegations, discarding allegations in the first group based on the lack of a "course of conduct" and then refusing to consider them for the purposes of determining whether the next proceeding group of allegations establishes a course of conduct. Where, following the determination of some allegations of harassment, further incidents occur, it is not appropriate to consider the later allegations in isolation from the earlier ones.

10The Union also argues that the grievances before me do not concern the same issue as before Vice-Chair Anderson. In the instant matters, the allegations include a failure to accommodate following her return to work in December 2015 and that issue was not before Vice-Chair Anderson. Further, the medical evidence to be adduced in this case shows that the harassment impacted her mental health, a position also not before Vice-Chair Anderson.

11The Union relies on Humber College of Applied Science and Technology and OPSEU (1999), 80 L.A.C. (4th) in support of the proposition that res judicata applies only in cases where the issue has been determined by way of a final judgment and not as a preliminary issue as in the present case. The Union further relies on OPSEU (Richard) and The Crown in Right of Ontario (Ontario Clean Water Agency), 2015 CanLII 55133 (ON GSB) (Abramsky) in which the employer moved to strike a grievance on the basis that is was previously the subject of a grievance that was withdrawn or settled. At page 9 of her award, Vice-Chair Abramsky cautioned that the preclusion of evidence in support of a grievance "... negates or at least undermines the enforcement of substantive rights under a collective agreement." Vice-Chair Abramsky determined that, although there was some overlap in the underlying facts, the substance of the grievances was different; one grievance alleged the employer's actions caused the grievor to become ill and unable to work and the second grievance alleged that the employer improperly filled vacancies. The Union submits that is precisely on point with the present case; after Vice-Chair Anderson issued his decision medical evidence became available that indicates the Employer's course of conduct made the grievor ill and in need of accommodation and none of that was before Vice-Chair Anderson.

12In reply, the Employer submits that its motion is brought to prevent the abuse of process that occurs when an issue that has been raised and determined is raised again. It is simply inequitable to require a party that has dealt with an issue and assumed it resolved on any basis to have to respond to that issue again. The Employer disputes that the issues are different; the issue is whether there was a lie and whether that lie amounts to harassment in both instances. The fact that the grievor is now asserting the harassment had an impact does not change the fact that the conduct in question has already been found not to be "harassment."

13Following the completion of the motion, the parties were invited to make submissions as to the import, if any, of the fact that the Union had turned its mind to the issue and determined that other outstanding grievances filed on behalf of the grievor were not to be consolidated with those before Vice-Chair Anderson.

14The Union's submissions state that the issue is whether the Union is to be prohibited from leading evidence as to the File and Deputy Allegations as the grievances themselves are properly before the GSB. The Union argues that whether the grievances could have been consolidated with the Anderson Grievances is not relevant to an analysis of whether the impugned evidence is relevant and admissible. The Union asserts that the Employer was aware the grievances were not being consolidated and that it would have to defend the remaining grievances in due course.

15The Union submits that it relies on the File and Deputy Allegations for two purposes. First, to establish the grievor was subject to a course of conduct of bullying and harassment, and second, to explain the basis for the grievor's fear that her managers may not accurately recall their spoken conversations and why it was important for her to obtain written instructions from managers.

16The Employer submits that eight of the grievances presently before me were filed at the time of the Anderson proceedings. Grievance 2016-0368-0055 reads:

The Employer is in violation of article 2, 3, 9 and any pertinent article, legislation, policy and past practice. Management is harassing, bullying and targeting me and my documentation of this is not being dealt with and I am being left to continue to work under those who abuse their authority.

17Harassment is also alleged in the first of the 16 grievances filed on December 15, 2015 in which the grievor alleges that the harassment she was experiencing contributed to her health issues. The Employer argues that the Union had the opportunity to argue that the File Allegation and the Deputy Allegation are parts in a continuum of vexatious conduct and chose not to do so.

Decision

18The motion brought by the Employer is to strike paragraphs 32 to 34 and 40 and 41 of the Will-Say Statement on the basis of res judicata and/or abuse of process.

19There are two distinct aspects to res judicata. First, it bars a party from adjudicating a matter that has already been decided. Second, it prevents a party from adjudicating a matter that it ought to have brought up in an earlier proceeding. The principle of res judicata serves to bar evidence in order to preserve and protect principles such as: confidence in the administration of justice; judicial economy; consistency of decisions; the prevention of forum shopping; and the finality of legal disputes. In a grievance arbitration system where there are a considerable number of grievances that are referred to mediation and arbitration, the system would simply break down if parties were permitted to relitigate matters already decided or engage in litigation by instalment.

20The Union argues, because Vice-Chair Anderson's decision was made in response to a preliminary motion brought by the Employer, it is not a decision on the merits. It is my determination that Vice-Chair Anderson's decision is a decision on the merits. The alleged facts were considered and a final decision made that the facts as alleged did not establish the claim advanced. That is a decision on the merits. The Union further argues that, where, following the determination of some allegations of harassment, further incidents occur, it is not appropriate to consider the later allegations in isolation from the earlier ones. A determination that res judicata applies does not mean that prior incidents cannot be considered if later incidents arise. Had Vice-Chair Anderson found the incidents to amount to harassment, his decision would have been final and his findings of fact could have been relied upon by the Union in subsequent cases to establish a continuing course of conduct. Res judicata would have prevented the Employer from seeking to relitigate those earlier findings. Similarly, Vice-Chair Anderson's finding that the incidents did not amount to harassment is final and can be relied upon by the Employer in subsequent cases. Res judicata prevents the Union from relitigating the incidents. Further, I have particular difficulty with this proposition on the facts of this case. The Union elected to consolidate five grievances to the exclusion of others. Having made that decision, and received an adverse decision, the Union cannot now essentially reverse course by adding allegations that were before Vice-Chair Anderson to the allegations before me. Litigation would never have an end if parties were not held to their strategic choices. Finally, the Union argues that the allegations are not in respect of the same matter as the instant matters also claim a failure to accommodate. I am not persuaded that the allegations do not relate to the same matter as was before Vice-Chair Anderson. The File Allegation and the Deputy Allegation are advanced in support of a claim of harassment and do not relate in any significant or material way to the failure to accommodate allegation.

21The issue before Vice-Chair Anderson was whether the grievor had been subjected to harassment. The Union elected to proceed with five incidents, spanning October 2014 through to May 2015, in order to establish that the Employer had engaged in a course of conduct vis a vis the grievor that amounted to harassment. Vice-Chair Anderson considered the five incidents and made a final determination that they did not establish harassment. Res judicata prevents a party from later advancing the same claim but based on different facts that were available at the time of the first proceeding, and, more importantly for the purposes of this motion, prevents claims determined in one proceeding from being dragged forward into subsequent proceedings. As a result, it is my determination that the Union is barred by the principle of res judicata from adducing evidence with respect to the File Allegation and the Deputy Allegation in the proceedings before me.

22The GSB will be in contact with the parties to schedule four additional hearing dates.