GSB# 2017-0441; 2017-1396; 2017-1397; 2017-1398; 2017-1399; 2017-1400; 2017-1401

UNION# 2017-0302-0043; 2017-0302-0057; 2017-0302-0058; 2017-0302-0059; 2017-0302-0060; 2017-0302-0061; 2017-0302-0062

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Flaherty)

Union

• and -

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

Employer

BEFORE

Gordon F. Luborsky

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Kevin Dorgan Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 17, 2017; September 24, 2018

TELECONFERENCE September 4, 2018

DECISION

1I was appointed as arbitrator to hear seven grievances on behalf of the Grievor, Mr. Todd O’Flaherty, generally alleging that the Employer has failed to take reasonable steps to safeguard the health and safety of the Grievor and his co-workers in a number of different circumstances, thereby violating article 9 and other provisions of the collective agreement as well as governing occupational health and safety legislation.

2One of the grievances, identified as GSB #2017-1400 and OPSEU #2017-0302-0061, dated June 26, 2017, has been withdrawn by the Union, leaving six grievances for adjudication.

3At the first day of hearings related to these grievances held on December 7, 2017, I ordered the parties to exchange particulars and notify the other of their respective positions concerning each grievance. Those details were received in accordance with an agreed-upon timetable over the ensuring several months.

4After reviewing the Union’s particulars, the Employer has raised a number of preliminary objections to various claims in all six remaining grievances that fall within three broad categories.

5First, it is asserted that a number of the particulars refer to incidents that predate the grievances by more than three years, and thus violate what the Employer identified as a “three-year rule” followed by the Grievance Settlement Board (“Board” or “GSB”) to presumptively prohibit the consideration of events that are alleged to have occurred more than three years prior to the date of the grievance. Second, that a number of particulars attempt to improperly “expand” the grievances originally filed by the Grievor, according to the Employer. And third, the Employer claims the remedies requested in many of the complaints are more properly brought as “policy” grievances given the broad nature of the relief sought that impacts the employees generally as opposed to the Grievor alone, which are subject to a separate dispute resolution procedure and must be disregarded as a result.

6Thus at the proceedings scheduled for September 24, 2018, I began hearing the Employer’s preliminary objections commencing with the first grievance among the remaining six, which is dated April 21, 2017 and identified as GSB #2017-0441 and OPSEU #2017-0302-0043 (hereinafter “Grievance No. 1”). As the parties’ representations consumed the entire hearing day, this Preliminary Decision is limited to the consideration of the Employer’s objections concerning Grievance No. 1 only. However, the expectation is that the parties will be guided by my determination of the Employer’s objections in resolving similar objections that the Employer has made in connection with the remaining five grievances.

Grievance No. 1 dated April 21, 2017

7Grievance No. 1 is an individual grievance signed by the Grievor, who is a “Probationary Officer” employed at the Ministry of Community Safety and Correctional Services (“CSCS”) at a facility known as the Ajax-Pickering Probation and Parole Office. It claims the Employer violated “Articles 2, 3, 9 and all other relevant articles” of the collective agreement, and under the heading, “Statement of Grievance” alleges:

I grieve the Employer has placed me and my colleagues at risk for failing to take all reasonable precautions to keep staff safe, for developing and implementing the [Personal Safety Training (“PST”)] Program they knew was not effective in training staff skills, for placing expectations on staff to be able to defend themselves and to be the emergency response if a co-worker is attacked knowing there is no physical expectation to be able to achieve this. The Employer has failed to develop and implement a training program or practices that address known risk to staff.

8Under the heading, “Settlement Desired” the grievance goes on to demand the following relief:

To be made whole including but not limited to: The [PST] program to cease immediately. Armed and trained security personnel capable of responding to an emergency until a new and appropriate program reviewed by an independent third party agrees to meet our needs.

9Articles 2, 3 and 9 of the collective agreement in effect from January 1, 2015 to December 31, 2017, which are claimed on the face of the grievance to have been violated by the Employer, are set out in relevant part below:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees, evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY

3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.

ARTICLE 9 – HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees 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.

10In addition to the foregoing, the parties referred to the following provisions of Article 22 entitled, “Grievance Procedure”, relevant to their arguments on the availability of the relief claimed by an individual grievor in contrast to policy grievances filed by the Union on behalf of its membership generally.

ARTICLE 22 – GRIEVANCE PROCEDURE

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.

FORMAL RESOLUTION STAGE

22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative.

22.3 The designated management representative shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward.

22.6 REFERRAL TO ARBITRATION

22.6.1 If the grievor is not satisfied with the decision of the designated management representative or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision.

22.13 UNION GRIEVANCE

22.13.1 Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the Formal Resolution Stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the grievance.

22.13.3 A submission of the grievance to the Director, Centre for Employee Relations under Article 22.13 shall be considered to be the Formal Resolution Stage for the purpose of Article 22. Union grievances shall be signed by the President or Vice-President. It is further agreed that no grievance processed under Article 22.13 shall be dealt with under the provisions of the mediation/arbitration referred to hereunder except with the mutual agreement of the parties.

22.14 GENERAL

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

22.14.3 The time limits contained in Article 22 may be extended by agreement of the parties in writing.

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

11I was also referred to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended (“OHSA”), in the course of argument with apparent reference to section 25(2)(a) that obliges an employer “to provide information, instruction and supervision to a worker to protect the health or safety of the worker;” section 25(2)(h), which requires employers to, “take every precaution reasonable in the circumstances for the protection of a worker” and section 27(2) that imposes the following additional duties on a supervisor to:

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

(b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and

(c) take every precaution reasonable in the circumstances for the protection of a worker.

The Union’s Particulars for Grievance No. 1

12In the foregoing context the Union provided extensive particulars of the alleged facts it relied upon in pursing the six grievances on their merits in 234 separate paragraphs. The Employer responded with a detailed outline of its objections to the Union’s particulars, giving rise to the Employer’s preliminary motions challenging the legitimacy of many of the Union’s claims.

13For the purpose of considering the Employer’s demand to “strike” various portions of the Union’s allegations, it is necessary to set out the Union’s particulars related to the alleged background circumstances generally applicable to all six of the grievances (included in an “Overview” section) and the lengthy individual particulars for Grievance No. 1, which are reproduced below:

A. OVERVIEW

1. The Grievor, Todd O’Flaherty, is a Probation and Parole Officer (“PPO”) with the Ministry of Community Safety and Correctional Services (“the ministry”) working out of the Ajax-Pickering Probation and Parole (P&P) office. He has worked in the OPS since May 31, 2004, first as a Correctional Officer and commencing September 7, 2007 as a PPO. The Grievor was also an OPSEU Provincial Health & Safety Committee representative from May 1, 2012 until December 1, 2014, and continues to be actively involved in health and safety issues.

2. PPOs are required to work with members of society who pose inherent risk. Probation and Parole has witnessed a substantial spike in reported major violent incidents. Across the province, there is approximately one weapon related incident, threat or harassment incident every 2 – 3 weeks.

3. These grievances relate to inefficient and ineffective Employer action to address these concerns through their policies and procedures, and the health and safety risks these issues have posed to the Grievor and the PPOs generally.

4. In 2012 – 2014, Mr. O’Flaherty was a Union representative on the Provincial Joint Occupational Health and Safety Committee (“JOHSC”). Previously, he held the union co-chair position and negotiated the Terms of Reference for the Community Services Health and Safety Working Group (CSHSWG), and later held a position on the CSHSWG from October 2014 to March 2016.

5. Mr. O’Flaherty was also a MERC [“Ministry Employee Relations Committee”] Training and Development Union Representative. Many of the issues raised at JOHSC were raised through this committee as well. Mr. Feere sat on this committee as well and was just as unresponsive in this committee as he was on the JOHSC.

6. Mr. O’Flaherty also held a position as Associate Trainer of the Personal Safety Training Program and was working collaboratively with the Employer to assist in the transition from third party vendor to in house programming. Concerns were tabled with the intent to work collaboratively through the development of the program.

7. In January 2013, Mr. O’Flaherty, in his role as JOHSC Union Representative, met with ADM Marg Welch. There had been an unprecedented outright refusal by the Employer to work collaboratively at the Provincial Joint Occupational Health and Safety Committee (“JOHSC”). Mr. O’Flaherty advised Ms. Welch that the Employer Representative at the time, Bob Feere had met virtually every item tabled at the Provincial JOHSC with contempt, condescension, and hostility. Ms. Welch, and management representative Daryl Pitfield were present on several such occasions. Items tabled at the JOHSC at that time remain unresolved and unaddressed at time of writing (March, 2018).

Grievance #1: April 21, 2017 (OPSEU#2017-0302-0043; GSB#2017-0441)

8. Mr. O’Flaherty held a position as Associated Trainer of the Personal Safety Training program and was working collaboratively with the Employer to assist in the transition from third party vendor to in house programming. Concerns were tabled with the intent to work collaboratively through the development of the program.

9. As a worker health and safety representative at the local level, Mr. O’Flaherty had found he was unable to achieve any progress with health and safety concerns as the Area Manager, Chris Moore could not act independently of senior management. Many health and safety issues that had been tabled at the provincial level were still awaiting response, including but not limited to: PST Training; Response to internal alarms; locker usage; weapon prevention; the WVRA [“Workplace Violence Risk Assessment”] being too cumbersome and ineffective to meet OHSA intentions; assessing offenders for potential risk to staff; use of OTIS Alerts; responding to hostile offenders (internal alarm response), and; conducting mock drills.

10. The Employer has failed to properly identify the potential risk of violence to Community Services Staff. There are insufficient policies and processes in place to adequately manage and reduce the risk of violence that P&P staff may be exposed to. The Employer must assess and control risks of workplace violence arising from the nature of the workplace, type of work, and conditions of work. The Employer’s failure to do so constitutes a risk of health and safety to P&P staff, and the Grievor.

11. The Workplace Violence Risk Assessment (“WVRA”) is a policy or tool that sets out the steps that must be carried out at a local level to assess risks of workplace violence. The WVRA document is a checklist that identifies whether a policy or standard is in place to address a risk of workplace violence. This type of assessment is mandatory under the OHSA, which also requires that the assessment tool be reviewed on an ongoing basis (see, s. 32.0.3 of OHSA). The WVRA however does not include any assessment or indicia as to whether the given policy standard is being adhered to or complied with locally – it only assesses whether a policy exists.

12. In a report dated February 1, 2016, MOL Inspector Croswell found that the Ajax-Pickering WVRA did not take into account circumstances specific to the workplace or common to similar workplaces and ordered the employer to bring its local WVRA into compliance with this order.

13. The WVRA is too cumbersome for individual worksites to identify whether the risk of violence has been managed. The WVRA is too cumbersome that it cannot practically be used to assess and ensure compliance with policies that are in place to address risks of workplace violence. AM Chris Moore has admitted and acknowledged as much, including with MOL Inspector Croswell.

14. Further, the WVRA is too general in nature and does not reflect the reality of the workplace, including the fact that staff are not adequately trained to assess or respond to workplace violence (the issue of inadequate training is addressed elsewhere in these particulars).

15. Further, there are no measures in place which would identify the potential for violence or to prevent violence should it occur. The determination of risk is left to the subjective opinion of staff not trained to identify risks and without direction on which criteria should be used to identify risks. This poses an unacceptable risk to the health and safety of P&P staff.

16. The Employer’s current model for addressing risk is a reactive response to potential risk rather than a preventative response to potential risk. The Employer has failed to develop an assessment model or tool to identify if an offender poses a risk, nor the degree of risk a client may pose. For example, the client’s prior behaviours (e.g. a history of violence) are not included as an indicia of risk that must be taken into account when assessing risk. As is consistent with other practices (e.g. the identification of an offender as and being suitable for Intensive Supervision Status; or the risk associated with a community visit as measured by the Community Visit Risk Assessment (CVRA) tool, a threshold should be established that if certain indicators are present then the offender should not be seen in the secure area of the office, and instead seen in a secure interview room or report via phone rather than in-person.

17. The current health and safety philosophy and model is based on the idea that the PPO must meet the individual in person and complete an assessment (LSI-OR), prior to making a determination that an offender may pose a risk to the PPO. The current standard for completion of this assessment is 8 weeks from being placed on community supervision. The new Strategic Training Initiative Community Supervision (STICS) intervention model being adopted province wide encourages an even longer assessment period. The institutional side of corrections applies a different standard to the same group of offenders, assuming that all offenders pose a degree of risk until it is confirmed and concluded they do not. PPOs work under the assumption an offender does not pose a risk until proven otherwise. This inconsistency poses a risk to the health and safety of PPOs.

18. Furthermore, there is no mechanism for PPOs to formally assess the potential risk a member of the public (collateral contact) may pose as PPOs have no legal right to conduct any form of investigation on them. PPOs are required to interact with collateral contacts (e.g. family members) as part of their duties, and many of these collateral contacts may be just as, if not more difficult to deal with, and pose just as much if not more risk of violence than the actual offender. However, PPOs are unable to conduct any form of background check, or to even look a person up who may have a history or record with PPO or MCSCS services. As with offenders, members of the public are treated as posing no risk to staff until specific acts prove otherwise and only then can we respond. This poses a risk to the health and safety of PPOs.

19. The mandatory personal safety training used by the Ministry is deficient in a number of respects, and not only fails to ensure the health and safety of P&P staff, but in fact poses a greater risk of danger to P&P staff.

20. On or around March 26, 2013 PPO Lisa Carroll, who worked out of the Smith Falls P&P Office sent a letter to Area Manager Jackie Grenon outlining concerns with the mandatory Personal Safety training that had recently been rolled out by the Ministry. The Grievor subsequently received a copy of the letter in order for some of its content to be addressed at both the PJOHSC and MERC.

21. The Employer does not actually test PPOs on the self-defence training. The Employer conceded, in the context of a CSHSWG meeting that there is no use in testing the effectiveness of the training as there is no likelihood of staff retaining the skills, and has failed to implement an alternative measure. Todd Robertson and Geoff Currie, as well as PPO Scott McIntyre and CO Tammy Carson were present at this meeting.

22. The Personal Safety Training program states that the program shall use the Performance Demonstration Method, which requires repetition with corrective education and supervision, for instruction of the physical skills but the actual training fails to meet that standard of instruction by failing to provide adequate time for participants to meet the established goal of learning a new instinctual response to a particular attack.

23. The physical skills component of the training are modified techniques of self-defence skills that a Correctional Officer receives. PPOs are not taught the “distraction” techniques of striking the subject in a controlled manner first in order to distract them and place them in a situation of disadvantage, thus limiting the effectiveness of the skill. The skills are based on martial arts training which is not specifically designed for the professional needs of PPOs within their particular context. The training as delivered has a number of problems.

24. First, it does not reflect current stress-based research which indicates what can actually be learned and then reproduced when the average person is under physical and psychological stress. Techniques taught in the training would not be recalled by PPOs when they are pushed into fear and stress and may in fact confuse a person’s own natural self-defence instincts, placing them at greater risk by increasing the likelihood of an improper response and injury. Ministry use of force training indicates that this may increase the likelihood of an excessive use of force for which the staff member could potentially be held liable, either internally, civilly and/or criminally.

25. The Employer’s instruction model is based on the development of “muscle memory” to develop new instinctual responses to defend oneself yet there is insufficient repetition exercises in the training to develop this response. This martial arts based training requires supervised repetition at near practical speed and circumstance in order for the body’s own instinctual response to be unlearned and a new instinctual response implemented. For example, a PPO may complete twenty (20) repetitions at 25-30% speed whereas correctional officers being trained on the same or similar technique will receive upwards of a thousand (1000) repetitions in basic training alone. At least two (2) self-defence instructors have stated that without sufficient repetition, this current model actually places staff at greater risk by confusing normal instinctual response to potential threats and aggression.

26. Secondly, the average staff member is not required to be as athletic as required to implement the techniques and as such cannot internalize such techniques without intensive initial training, as well as maintenance training. Neither the job description, nor the physical demands analysis identifies any standard or requirement for staff to be physically competent at a given level.

27. Further, the training is done in a clinical environment with participants in a standing position. The PPO conducts the majority of their duties and time with clients in a sitting position in an office.

28. There are alternate forms of self-defence systems that do not require prolonged instruction or certain physical or athletic standards. Any skill development or support would still fall under the Ministry’s Use of Force Management Model as an appropriate response when the PPO is in fact in a position where they must defend themselves. The staff member will still be held to the legal standards of self-defence and/or excessive use of force.

29. The Employer refuses to identify PST self-defence skills as mandatory, thus, staff can sit out and miss the training should they choose, and staff who do participate are not required to meet any sort of standard in the testing – there is no minimum pass rate or threshold. Notwithstanding, this staff must attend the PST Refresher program every two (2) years. The mandatory refresher consists almost exclusively of repeating the physical self-defence skills, which staff are entitled to sit-out. In other words, it is mandatory that staff attend a Refresher class, but do not have to participate in the actual instruction and exercise. The Grievor takes the position that if attendance is required, then participation in the physical component should also be mandatory, and that staff should be held to some sort of certification standard – that is, they should be tested on the self-defence skills (subject of course to the duty to accommodate).

30. Another concern with the Mandatory Personal Safety Training is that there is very little done to address situational awareness, pre-attack indicators, and diffusion of hostility which are important in order to properly determine a course of action when faced with a threat or risk to safety.

31. Management members on the Provincial JOHSC, MERC, TD and later the CSHSWG were therefore unfamiliar with the training, yet dismissed worker/employee concerns with the training. This evidenced the Employer’s lack of attentiveness and concern to staff health and safety. This was one of the cornerstone issues that cause the grievor to file his MOL complaint and these grievances.

32. The current training program also identifies that “emotionally disturbed” offenders pose a unique risk, but there is no supporting training to understand how to manage the risk.

33. Personal Safety Training instruction refers staff to a Use of Force Policy in community services when there is no such thing.

34. Staff are in essence to run into a risky situation, without being told or trained on what to do when they get there. This is an unreasonable expectation and direction that poses a risk to the Grievor’s health and safety, either as a “responder”, or as the person who activated the alarm.

35. The Employer has stated that a PPO’s co-workers are his/her defense in the event of violence, yet there is no training, skill development, or a culture to support this. Nor are any measures in place to ensure staffing levels are maintained with “competent” or capable employees to respond.

36. The PPO job description and Employment Accommodation Demands Analysis fail to identify that there may be any need to meet a standard to physically defend oneself, or come to the aid of another worker. Thus, a worker may be cleared to return to work with accommodation, yet not have a medical assessment as to his/her medical or physical (or psychological) ability to respond to unsafe workplace situations that might include being a responder to situations of workplace violence.

37. On April 1, 2016, MOL Inspector Croswell issued orders to conduct a WVRA reassessment, writing in pertinent part: “If through the re-assessment it is determined that PPO’s may potentially need to respond physically to internal emergency alarms. Then it would be an obvious extension that a certain number of co-workers who are physically able” would need to be on-site at any given time and further, a “Physical Needs Assessment” would need to be conducted to ensure that person’s [sic] on-site don’t have any medical restrictions that would prevent them from an [sic] appropriate response”.

38. There must also be an amendment to the Employment Accommodation Demands Analysis to address this issue, to ensure employees returning to work are able to meet this expectation, or to receive appropriate accommodation and have measures in place for other workers.

39. Additionally, the Employer has made clear in the PST Instruction Manual the potential personal liability of staff for excessive uses of force. This was emphasized in PST training to ensure corporate liability is minimized, although they failed to train workers on how to physically intervene appropriately. The program is written from the perspective that staff are routinely faced with this high stress decisions and will be capable of making the correct choice of action based on the assessed profiled behaviour of the subject and situational impact factors (as detailed in the Use of Force Management Model).

40. Furthermore, a significant tool in investigation of a Use of Force is the reliance on detailed written accounts of the incident. In review of any incident, the debrief shall include a review of incident reports to determine if existing practices or response were sufficient to mitigate the risk or if changes are needed (as often is necessary as per OHSA requirements under WVRA). Institutional Use of Force policy and procedures, and PST Training provide direction that any person who participates in or witnesses a use of force must complete an Occurrence Report (institutions) or Incident Report (Community). PST training offers direction contrary to the Offender Incident Report policy and procedures. On the institutional side, everyone involved in an incident must write an occurrence report; no such requirement exists on the community side. This causes confusion as to whom and when staff are to create an independent account of their participation in or witnessing of a Use of Force incident thereby unfairly increasing the potential for deleterious consequences. The Grievor has continuously raised the issue that only one individual’s perspective is reflected. He has also raised the issue that Community does not have a Use of Force policy yet PST training directs staff to look there for additional direction. A proper debrief and re-assessment to determine the best response where a Use of Force may be necessary requires proper documentation and a full investigation.

41. The February 1, 2016 MOL Orders issued by MOL Inspector Richard Croswell required a new WVRA assessment and went into significant detail as to what that - must include: “While there are several references within various documents with respect to the Emergency (Panic) alarm systems, none of them instruct workers as to what their expected response is to be in the event that they come to the assistance of a co-worker who has sounded an alarm. Are workers expected to physically intervene or respond passively? This response needs to be clarified and converted into a clear directive for workers.”

42. There needs to be enhanced training on motivational interviewing specific to conflict avoidance during the interview process, which should also be a mandatory refresher throughout employment.

43. While the Employer committed to developing a new policy recommendation through the Working Group for Response to Threats and for a quality assurance based Compliance Checklist with respect to office’s complying with existing health and safety policies, the Employer refused to use this Working Group as a resource to ensure these outcomes could be achieved within a reasonable period of time. After years, it remains stalled at the CSHSWG with no tangible progressive movement despite joint agreement this was required.

44. Correctional Officer, Sean Dunn, who is a local representative and also a member of the Working Group, was an expert on the topic who offered to assist in the implementation of this. The Ministry refused this assistance.

45. There should be an assessment tool established and an option available to refuse offender entry into the secure area of the office for offenders with known weapons possession use history. That assessment tool should take into account the offender’s past behaviour and offences, including any relevant IS information, and any history of violence or weapons.

46. The Employer must create a more comfortable secure room environment and address noise complaints and confidentiality issues to encourage increased use of secure rooms.

47. The Grievor is seeking the following remedies:

a) An Order that the PST Program be revised to adequately address the Grievor’s health and safety;

b) An Order that the WVRA be revised to adequately address the Grievor’s health and safety, and;

c) Such other relief as counsel may request and as to the Board seems just.

Arguments and Analysis

14As noted above, the Employer raised three objections to the Union’s particulars, requesting that I strike several paragraphs of those particulars as a result. The Employer also demanded better or more complete disclosure for a number of the remaining particulars.

(a) The Particulars Violate the Board’s “Three-Year Rule”

15Mr. Dorgan, counsel for the Employer, submitted that many allegations in the Union’s particulars referred to events that occurred more than three years prior to the April 21, 2017 date of the grievance, in factual circumstances that were not conceded but rather were disputed by the Employer and thus would be subject to proof if the Union intended to rely upon them. Under the Board’s “three-year rule” the Employer argued that the Grievor had waited too long to rely upon those events in whole or in part, and to the extent it had done so that I must strike those particulars because of the obvious prejudice to the Employer caused by the inordinate passage of time. That was particularly so in connection with references to events that were alleged to have occurred more than three years ago at the Employer’s Newmarket and Barrie P&P offices which were the subject of independent proceedings before the Ontario Labour Relations Board. In support the Employer filed the following decisions of this Board describing its “three-year rule”: OPSEU (Lavoie et al) and Ontario (Ministry of Community Safety and Correctional Services), GSB # 2012-2206 (2015) (Sheehan), OPSEU (Dubuc) and Ontario (Ministry of Community Safety and Correctional Services), GSB # 2015-1330 (2016) (Herlich) and OPSEU (Akintunde) and Ontario (Ministry of Community Safety and Correctional Services), GSB # 2016-2892 (2018) (Watters). Those decisions indicate that this Board has not hesitated to “strike” particulars that violate its three-year rule in appropriate circumstances, even though the Board’s procedures and expectations are less formal than proceedings before the civil courts.

16On behalf of the Union, Mr. Bryden acknowledged the Board’s “three-year rule”; but in doing so noted it was no more than a “guideline” adopted by the Board to ensure fairness in the litigation process, which was not intended to be applied “mechanically” or as a procedural roadblock to legitimate “systemic” concerns that have existed for many years and are ongoing to the present date. That is particularly true in the present case where, according to the Union, the concerns raised in the particulars of events occurring in other detention facilities and that support the alleged negative or uncooperative attitude of management to legitimate complaints raised in connection with those events, have continued to the present date at the Grievor’s place of employment in the Ajax-Pickering Probation and Parole Office. As such, and notwithstanding the Board’s three-year rule, the Union submitted it was appropriate to consider events more than three years before the date of the grievance as part of the relevant background and to highlight the ongoing nature of the serious health and safety concerns raised by the Grievor. In support of its representations the Union also referred to Vice Chair Leighton’s observation at para. 9 in OPSEU (O’Brien) and Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 10242 (ON GSB) (Leighton) that: “With regard to the “three year rule” counsel agreed with the principle that the board must strike a fair balance between the union and the employer in deciding what evidence is admissible.” Applying that rationale in the circumstances of the present case, the Union argued that the health and safety concerns raised in the Union’s particulars were sufficiently known as an ongoing irritant that the Employer had failed to adequately address, thereby undermining any “unfairness” by referring to those past events in properly setting the context of the present dispute between the parties.

17While sympathetic to the Union’s expressions of concern on behalf of the Grievor, I find the Employer’s position more consistent with the Board’s general practice in the present circumstances that is designed to promote fairness in adjudications before this tribunal.

18The principles underlying the Board’s rationale in promulgating a “three-year rule” for the consideration of facts that predate grievances generally, even in claims of a “systemic” dispute related to ongoing health and safety concerns, was noted in the Lavoie et al decision, supra. That case dealt with a Union policy grievance dated September 28, 2012 claiming the Employer had systemically failed to meet its obligations under the collective agreement and the OHSA “to provide a healthy and safe working environment with respect to the air quality at the Sudbury Jail” (at para. 2), referring to a number of events predating the grievance by more than three years to establish the basic background to the alleged ongoing problems. In granting the Employer’s motion to prohibit the admission of evidence concerning alleged events that took place more than three years before the filing of the grievance, Vice Chair Sheehan set out the following history and basis of the three year limitation at paras. 41 - 43:

41. In my view, as enunciated by Arbitrator Picher in Hotel-Dieu, supra, the task in assessing whether the scope of the evidence should be limited in a proceeding involves finding a fair balance between the competing interests of the parties. The Union should be generally entitled to lead any relevant evidence in support of its claim that the Employer failed to take reasonable precautions to provide for the health and safety of the members of the bargaining unit. At the same time, the passage of time will invariably, at some level, prejudice the ability of the Employer to respond to the allegations. Moreover, the parties through Article 22 of the collective agreement have agreed that complaints or differences should be dealt with as “quickly as possible.”

42. In balancing those interests, the Grievance Settlement Board in cases involving harassment and racial discrimination, while allowing evidence that predates the time frame for filing the grievance under the collective agreement; has, however, imposed a limitation of not permitting evidence that relates to events that took place more than three years before the date of the filing of the grievance. (See: OPSEU (Patterson) (Leighton), supra; OPSEU (Patterson) (Abramsky), supra, OPSEU (Dale et al) (Abramsky), supra). In my view, there is no reason to deviate from that general guideline in the case at hand.

43. The Union in the case at hand is obligated to establish that the Employer failed to take reasonable precautions to provide for the health and safety of its employees. In this regard, the Union has asserted a systemic or repeated failure to address the health issues associated with the air quality at the Sudbury Jail that have been allegedly raised with the Employer. In attempting to prove such allegations, the Union should, in my view, be granted the leeway of relying on evidence that extends over a sufficient period of time to support its position. Specifically a wide aperture may be needed to assess the overall legitimacy of the Union’s allegations.

[Emphasis added]

19Nevertheless, even viewing an alleged systemic breach of health and safety obligations with “a wide aperture” to assess the overall legitimacy of the Union’s allegations in that case, Vice Chair Sheehan also considered in para. 45 of his decision, “the potential difficulty the Employer may encounter in responding to allegations stretching as far back as (more than three years prior to the date of the grievance)” leading to the conclusion (also in para. 45) that: “The imposition of a cut-off point of three years before the date of the filing of the grievance…provides the Union a sufficient window of time to prove its allegation that the Employer breached its statutory and collective agreement obligations to provide a healthy and safe working environment for its employees”.

20I arrive at a similar conclusion on the materials filed and submissions of the parties before me. Notwithstanding the apparent sincere concerns raised by the Grievor through his April 21, 2017 individual grievance, I conclude there are insufficient grounds to deviate from the Board’s three-year rule in the consideration of alleged events that predate the grievance, particularly given that the Grievor has chosen to file an individual grievance which, under article 22.1 of the collective agreement contemplates a dispute resolution process that is to proceed “as quickly as possible” and expressly stipulates in article 22.2 that an employee’s grievance remaining unresolved after raising it at the local level may be filed “within thirty (30) days after the circumstances giving rise to the complaint have occurred or ought reasonably to have come to the attention of the employee”. Assessed against that contractual language, and weighing the relative equities of “fairness” to the Grievor and “potential prejudice” to the Employer on this point, it is in my view appropriate to hold the parties to the Board’s well-known “three-year rule” for the consideration of alleged events that predate the grievance by more than three years.

21That should not result in prejudice to the Grievor where, as noted in paragraph 2 of the Union’s particulars, it is alleged that, “Probation and Parole has witnessed a substantial spike in reported major violent incidents. Across the province, there is approximately one weapon related incident, threat or harassment incident every 2 – 3 weeks”. If that is the case, the Grievor should have many specific examples of the type of dangers that the Employer has failed to adequately address well within this Board’s three-year rule.

22I therefore conclude that to the extent the particulars filed in this case rely on factual allegations that predate the instant April 21, 2017 grievance by more than three years (i.e. prior to April 21, 2014), those particulars are to be struck and any evidence proffered by the Union concerning such events are inadmissible, with the exception of uncontentious background information concerning the Grievor’s work history with the Employer that has a neutral impact on the merits of the dispute. From my review of the Union’s particulars reproduced above, this requires the striking of the following paragraphs of the Union’s particulars, in whole or in part, as related to any alleged material events that occurred more than three years before the date of the filing of Grievance No. 1: Paragraphs 4, 5, 6, 7, 8, 20 and 31.

(b) The Alleged Improper Expansion of the Grievance

23The second area of challenge by the Employer is a claim that the Union has sought through its particulars to improperly expand the grounds of the grievance to include matters outside its reasonable purview. While acknowledging that the grievance statement is generally written by bargaining unit employees who are not expected to frame their allegations with the same precision as lawyers in formal pleadings before the civil courts, the Employer nevertheless submitted that the Union is prohibited from expanding its claims to include matters not reasonably related to the grievance through its particulars, which the Employer charged the Union was attempting to do in the present case. Of specific concern were the Union’s multiple references in its particulars to the “Workplace Violence Risk Assessment” tool (or “WVRA”), which is described in paragraph 11 of the Union’s particulars as follows:

The Workplace Violence Risk Assessment (“WVRA”) is a policy or tool that sets out the steps that must be carried out at a local level to assess risks of workplace violence. The WVRA document is a checklist that identifies whether a policy or standard is in place to address a risk of workplace violence. This type of assessment is mandatory under the OHSA, which also requires that the assessment tool be reviewed on an ongoing basis (see, s. 32.0.3 of OHSA). The WVRA however does not include any assessment or indicia as to whether the given policy standard is being adhered to or complied with locally – it only assesses whether a policy exists.

24As noted above, Grievance No. 1 dated April 21, 2017 claims that the Employer has placed the Grievor and his colleagues at risk, “for failing to take all reasonable precautions to keep staff safe, for developing and implementing the PST [Personal Safety Training] Program they knew was not effective in training staff skills…”. The grievance then goes on to assert: “The Employer has failed to develop and implement a training program or practices that address known risk to staff.” The Employer submits that to the extent the Union’s particulars refer to any policy or matter outside of the PST Program, with specific reference to the WVRA or other practices at the workplace, those particulars constitute an attempted expansion of the grievance that is not permitted under the collective agreement.

25The Employer also objects on the same grounds of an alleged improper expansion of the grievance set out in a number of the Union’s additional particulars that include: (a) paragraph 18 asserting that “the risks posed by members of the public” that the Employer has allegedly failed to address in its various policies; (b) allegations of improper dealings with employee members of various health and safety committees in the workplace referred to in paragraph 31; (c) the alleged requirement for an investigatory tool in the workplace for “use of force incidents” in paragraph 40; (d) the alleged need to implement “enhanced training on motivational interviewing specific to conflict avoidance” referred to in paragraph 42; and (e) a claim in paragraph 46 that the Employer is obliged to “create a more comfortable secure room environment and address noise [and other] complaints”. Such claims were also said to constitute an expansion of Grievance No. 1, which the Employer requested that I strike as improperly before me. In support of its representations the Employer also referred to OPSEU (Brown-Bryce et al) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2014-1158 (2016) (Dissanayake) and OPSEU (Laderoute) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2014-0029 (2018) (Gee).

26In response, the Union filed the decision of the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486, 1975 CanLII 707 (ON CA), 1975 CarswellOnt 827, [1975] O. J. No. 31, 57 D.L.R. (3d) 199, 75 C.L.L.C. 14,295 (Ont. C.A.) standing for the well-accepted principle that grievances “should not be won or lost on the technicality of form” (per Brooke J. A. at para. 10) but rather “should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions” (at para. 11). These pronouncements are said to apply in the circumstances of the present case where, according to the Union, the Employer is attempting to thwart the legitimate complaints of the Grievor to a variety of circumstances giving rise to legitimate concerns over his personal health and safety, which the Employer is both contractually and statutorily obliged to “take every precaution reasonable in the circumstances for the protection of a worker” under section 25(2)(h) and 27 (2)(c) of the OHSA and article 9.1 of the collective agreement.

27Moreover, as the Union pointed out, the words used to express the Grievor’s complaint in Grievance No. 1 included the claim that, “The Employer has failed to develop and implement a training program or practices that address known risk to staff” (emphasis added). The word “practices” in this context was broad enough to encompass all of the Employer’s policies and procedures (or lack thereof) potentially impacting the health and safety of the Grievor and his co-workers, which in the Union’s submission supported the additional claims set out in its particulars that go beyond the development and implementation of the PST Program alone. In that regard the Union urged that I adopt “a flexible approach” in interpreting grievances as endorsed by Arbitrator Stanley in Re Liquid Carbonic Inc. v. U.S.W.A., 1992 CanLII 14618 (ON LA), 1992 CarswellOnt 5258, 25 L.A.C. (4th) 144, 26 C.L.A.S. 362 (Ont. Arb.), which from a broad and liberal perspective was properly capable of including all of the allegations set out in the particulars, according to the Union.

28In considering the authorities referenced by the parties, I was influenced by the observations of Arbitrator Rayner in Re Electrohome Ltd. and I.B.E.W., Loc. 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Ont. Arb.), referred to at para. 6 in Re Liquid Carbonic Inc., supra, who wrote the following in reconciling or balancing a flexible approach with the expectation that parties must be held to the substance of a dispute as expressed in the submission of the grievance to arbitration:

Although the value in maintaining a flexible approach to grievances filed before a board of arbitration is readily apparent in so far as the parties are not operating under the same rules of practice that would guide counsel in normal litigation, there is another value that must be kept in mind. The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

[Emphasis added in Liquid Carbonic text]

29Thus applying the foregoing weighing process, I find that the essence of Grievance No. 1 is a complaint over the sufficiency of the current Personal Safety Training (“PST”) Program at the Employer’s Ajax-Pickering Probation and Parole Office to safeguard the health and safety of the Grievor and his co-workers. It does not, in my opinion, reasonably encompass a claim respecting the Employer’s Workplace Violence Risk Assessment (WVRA) tool applied to employees generally or the Grievor specifically, referred to in paragraphs 9 and 11 – 14 of the Union’s particulars, or to any of the other policies and/or procedures (or lack thereof) enumerated in paragraphs 18, 20, 31, 40, 42, 46 and 47(b) of the particulars, summarized above.

30As such, I conclude the particulars in those paragraphs constitute what Arbitrator Rayner referred to in Electrohome, supra, as the substitution or addition of a new grievance or grievances for Grievance No. 1 that are not properly before me where they were not processed through the grievance procedure under article 22 of the collective agreement. Consequently, I must allow the Employer’s motion and hereby strike paragraphs 9, 11, 12, 13, 14, 18, 20, 31, 40, 42, 46 and 47(b) of the Union’s particulars on the grounds that they represent an improper attempt to expand that grievance.

(c) The Particulars Raise Policy, Not Individual Grievances

31The Employer’s challenges to the Union’s particulars includes the Grievor’s general remedial requests throughout, and specifically the demands in paragraph 47 for: “(a) An Order that the PST Program be revised to adequately address the Grievor’s health and safety; (b) An Order that the WVRA be revised to adequately address the Grievor’s health and safety; and (c) Such other relief as counsel may request and as to the Board seems just.” This constitutes a change to the remedy requested in the original text of Grievance No. 1 dated April 21, 2017 which demands under the heading, “Settlement Desired” that the Grievor be made whole, including, but not limited to: “The program (Personal Safety Training) to cease immediately [and that] armed and trained security personnel capable of responding to an emergency [be established] until a new and appropriate program reviewed by an independent third party expert [who] agrees [it is sufficient] to meet our needs”.

32Given my conclusion that all references to the Workplace Violence Risk Assessment tool are not properly included within Grievance No. 1, I need not consider the Grievor’s request under subparagraph 47(b) for an order that the parties revise the WVRA in a manner deemed suitable to the Grievor, as that claim must be struck as an improper attempt to expand the grievance. This leaves as the sole remedial matter for determination the question of whether I should order “that the PST Program be revised to adequately address the Grievor’s health and safety” and/or, in response to the original grievance demand, whether I should order the immediate cessation of the current PST Program along with the establishment of a force of trained security personnel capable of responding to an emergency pending the implementation of a new PST Program that “an independent third party expert agrees” will address the needs of the Grievor and his coworkers for a safe work environment in the Ajax-Pickering Probation and Parole Office.

33According to the Employer, to state the foregoing question is to identify what is essentially a policy dispute between the Employer and Union over wide-ranging matters of general application of the Employer’s health and safety policy related to the PST Program, that extends far beyond the Grievor’s individual (and self-centered) interests. It is submitted that the collective agreement contemplates essentially two types of grievances that are mutually exclusive; recognized as the grievance of an individual (or group of individuals) which directly impacts that or those employees specifically, or a dispute between the Union and the Employer over a matter of policy that has a general effect upon all employees in the bargaining unit.

34The Employer contends the current Grievance No. 1 is really asserting a policy grievance seeking relief extending to the entire bargaining unit generally in the guise of an individual grievance on behalf of the Grievor, whose self-interests may be different than the interests of the bargaining unit as a whole. Consequently, the Employer argues that the Grievor’s broad remedial demands in Grievance No. 1 (and all of the other grievances that he has filed), to the extent they go beyond an individual remedy for the Grievor alone, should be struck. In support of its position, the Employer referred to the following decisions of this Board where it was said to have exercised its discretion to effectively prohibit an individual from pursuing a grievance seeking general relief for the bargaining unit as a whole that is or more appropriately should be processed as a policy dispute directly between the Union and the Employer: OPSEU (Taylor-Baptiste) and Ontario (Ministry of Correctional Services), 469/88 (1992) (Dissanayake) and OPSEU (Haynes) and Ontario (Ministry of Correctional Services), 1246/89 (1990) (Kirkwood).

35The Union made two points in response. First it argued that the question of remedy at this juncture was “premature” and thus must await the conclusion of the present arbitration proceedings in order to arrive at a result that properly addresses the harm of the Employer’s alleged breach of the collective agreement and the OHSA. In that regard the Union urged me to follow Vice Chair Abramsky’s ruling to defer the consideration of the appropriate remedy until all of the evidence had been heard where it was alleged that the dispute included a claim of a defective policy having general application to the employees in OPSEU (Vitorino et al) and Ontario (Ministry of Government Services), GSB#2009-1293, 2009-1750 (2010) (Abramsky). Taking that approach would, in the Union’s submission, be to bifurcate the current proceedings to first determine whether the Employer violated the collective agreement and/or its statutory obligation to ensure a safe workplace for the Grievor and his colleagues in the Probation and Parole Office, remitting the appropriate remedy back to the parties to resolve while retaining jurisdiction to decide the appropriate relief in the event of the Union’s success on the merits of the grievance and where the parties were unable to resolve the matter themselves.

36Alternatively, the Union argued that the language of the grievance procedure governing individual and policy grievances under article 22 of the collective agreement, did not expressly prevent the Grievor from pursing a remedy for a breach of contract or occupational health and safety legislation that sought to change the Employer’s policies impacting the bargaining unit members as a whole, referring to the following authorities in support: Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 v. Weston Bakeries Ltd., 1970 CanLII 1647 (ON LA), 1970 CarswellOnt 918, [1970] O.L.A.A. No. 3, 21 L.A.C. 308 (Ont. Arb.)(Weiler), Toronto Star Newspapers Ltd. v. Toronto Newspaper Guild, Local 87, 1978 CanLII 3428 (ON LA), 1978 CarwswellOnt 929, 20 L.A.C. (2d) 392 (Ont. Arb.) (Pritchard), Re St. Joseph’s Hospital, London and O.N.A., 1989 CanLII 9274 (ON LA), 1989 CarswellOnt 5022, 16 C.L.A.S. 5, 8 L.A.C. (4th) 144 (Ont. Arb.) (Burkett), Re OPSEU and Ontario (Ministry of Community and social Services) (Boulet), 2000 CarswellOnt 9883 (Ont. GSB) (R. Brown) and OPSEU (Dey) and Ontario (Ministry of Natural Resources, 1096/96 (1997) (Abramsky), application for judicial review allowed by decision of the Ontario Divisional Court dated November 4, 1998 (Court File No.:865/97).

37From the authorities presented to me it appears that the Board has consistently adopted an interpretation of the grievance procedure under what is now article 22 of the collective agreement as establishing two mutually exclusive routes for enforcing contractual rights: namely, through an individual (or group) grievance seeking redress on behalf of a specific individual (or group of similarly situated individuals) enumerated in articles 22.1 to 22.8 (inclusive of sub-articles) and in article 22.11 (dealing with a group grievance), or via a “Union Grievance” described in article 22.13 as a “difference between the Employer and the Union [arising] from the interpretation, application, administration or alleged contravention of the Agreement”. Individual grievances give rise to individual recourse for the grievor(s) limited in scope to the individual, while Union policy grievances result in broader relief having an impact on the bargaining unit as a whole.

38For example, in the Haynes, supra, decision, which dealt with an individual grievance of a Correctional Officer who complained that the Employer violated the collective agreement and governing legislative enactments, “by not making reasonable provisions for (the employee’s) safety and health by not requiring every inmate at the Elgin Middlesex Detention Centre, to be showered”, Vice Chair Kirkwood wrote the following at pp. 6 – 7 that is relevant to the immediate question of the ability of an individual to pursue what is in essence a dispute over the Employer’s policy having implications to the bargaining unit as a whole (under substantially the same collective agreement provisions in the current article 22):

We find, as with other panels of the Grievance Settlement Board that individual and union grievances, as provided in the collective agreement, are mutually exclusive. OPSEU (S. Anderson) and The Crown in the Right of Ontario (L.L.B.O.) G.S.B. #`028/86 (M. V. Watters), OPSEU (Fox) and The Crown in Right of Ontario (L.C.B.0.), G.S.B. #572/82 (Draper), OPSEU (J.R.T. Katchay) and The Crown in Right of Ontario (M.C.S.), G.S.B. #354/83 (J. W. Samuels).

In Fox, supra, the Board recognized the limitations of an individual grievance. It recognize that a declaration may be given on an individual grievance, but that the declaration would not be of general application but would be restricted to the particular grievor and the issues raised by the grievance. The board did not allow the grievor in that case to achieve a result as if it were a policy or a group grievance, by means of an individual grievance.

Similarly, Arbitrator Samuels recognized in the J.B.T. Katchay (supra) decision, that there has been a tendency to broaden the union’s right to file policy grievances such as in Re Corporation of the borough of Etobicoke and Etobicoke Civic Employees’ Local Union 185 (1980), 1980 CanLII 4069 (ON LA), 28 L.A.C. (2d) 1 (Shime), but there has not been any similar tendency to enlarge individual grievances.

Our jurisdiction is framed by the grievance. The benefit of the arbitration procedure is that boards usually will not take an overly technical approach to the construction of the grievances, as the purpose of the grievance is to set out the issue and to not subject it to a technical analysis. However, we cannot treat a grievance of the person on the basis that there are many others in support of that position when the grievance has not set out in that manner. Therefore, as this grievance is an individual grievance, it cannot be treated as a policy or union grievance.

As an individual grievance, therefore, the onus is upon the Union to show that the grievor’s personal health and safety was affected by the Ministry’s failure to follow procedures.

[Emphasis added]

39Similarly, in Taylor-Baptiste, supra, where an individual Correctional Officer working at the Metropolitan Toronto West Detention Centre alleged his health and safety was compromised by “an inadequate meal service procedure” that did not require the feeding of inmates “through a slot in the bars”, which the Employer challenged as inarbitrable on the grounds that it was “in fact a policy grievance disguised in the form of an individual grievance”, Vice Chair Dissanayake dealt with the objection as follows at pp. 12 – 13:

However, we must first deal with the employer’s preliminary or procedural arguments. On the issue of the form of the grievance, it is common ground that the collective agreement provides for mutually exclusive policy (or union) grievances and individual grievances. See, Re Fox 572/82 (Draper). Articles 17.2.1 to 27.5 describe the procedure to be followed for an individual grievance and articles 27.8.1 to 27.8.3 describe the procedure for a union grievance. An individual employee cannot file a grievance on behalf of the other employees in the bargaining unit. The vehicle for that is a union grievance, which must be signed by the president or vice-president of the local union.

The grievance before us can only be an individual grievance since it is signed by the grievor. Does it purpose to grieve on behalf of other correctional officers? We do not think so. The statement of grievance claims that the employer is not making reasonable provisions for “my health and safety during my hours of employment”, and that “…they endanger my health and safety”. We disagree with employer counsel that a policy cannot be challenged in an individual health and safety grievance. The key to a proper individual grievance is that there must be a claim that the grievor’s rights have been affected. Whether this infringement of the right has resulted from some individual action taken against the grievor specifically or by some general action taken by the employer is not relevant as long as the result is that the grievor’s rights have been affected.

Of course, the remedy that is granted in a successful individual grievance may not be as broad as in a union grievance. Thus for example in certain circumstances it may be inappropriate to grant a remedy of general application in an individual grievance. Any remedy provided may be restricted in its application to the particular grievor and the issue raised in the grievance. What is an appropriate remedy obviously will have to be dependent on the nature of the contravention found. If the employer’s point is that the remedy sought by the grievor is inappropriate, that is a different issue from the arbitrability of the grievance itself. We find the present grievance itself is arbitrable as an individual grievance.

[Emphasis added]

40In considering the applicability of the foregoing principles to the immediate issue, it is noteworthy that paragraph 3 of the particulars submitted by the Union (as reproduced above) characterizes all six of the grievances and the remedies requested as having both an individual and policy component or scope (i.e. being of personal interest to the Grievor’s health and safety, along with the health and safety of all employees engaged in staffing the Probation & Parole Offices throughout the province) in the following terms:

These grievances relate to inefficient and ineffective Employer action to address these concerns through their policies and procedures, and the health and safety risks these issues have posed to the Grievor and the PPOs generally.

41Thus, adopting the approach taken by Vice Chair Dissanayake, having been submitted by the Grievor as an individual grievance under article 22.1 and/or 22.2 of the collective agreement, as opposed to a Union grievance challenging a matter of general policy applicable to employees generally under article 22.13 governing a “Union Grievance”, I conclude that any remedies available for the proven violation of the collective agreement and/or OHSA is limited to individual relief for the Grievor himself.

42Therefore, to the extent that relief is claimed for the entire classification of Probation and Probationary Officers as a whole working at the Ajax-Pickering P&P Office or elsewhere in the province, such relief is not available in the forum of the present Grievance No. 1 as an individual grievance, and any evidence going to the establishment of recourse beyond the Grievor’s immediate circumstances as a Probation and Probationary Officer working at the Ajax-Pickering P&P Office are not prima facie admissible.

43In that regard, following Arbitrator Abramsky’s general approach to cases of the present nature in Vitorino et al, supra, I agree with the Union’s submission that the full extent of the appropriate remedies that may be available to the Grievor in his individual capacity must await the final assessment of liability by the Employer for a breach of the collective agreement and/or governing OHSA legislation, in order to determine the appropriate remedy, if any, to make the Grievor whole and/or alleviate any discriminatory or insufficient attention by the Employer to his legitimate health and safety interests, having regard to all of the surrounding circumstances. To that extent I conclude that the proceedings under Grievance No. 1 (and likely the other five outstanding grievances before me) should be bifurcated in the manner proposed by the Union, with the limitation of its focus on the prejudice, if any, to the Grievor in his personal capacity.

Disposition and Direction

44Within the foregoing analysis and conclusions drawn in connection with Grievance No. 1, I consequently rule as follows:

(a) Paragraphs 4, 5, 6, 7, 8, 20 and 31 of the Union’s particulars are hereby struck as being contrary to the Board’s three-year rule to the extent they refer to alleged material events that occurred more than three years before the date of the filing of Grievance No. 1 on April 21, 2017, and thus evidence related to such alleged events are inadmissible where insufficient grounds have been established to deviate from that rule;

(b) Paragraphs 9, 11, 12, 13, 14, 18, 20, 31, 40, 42, 46 and 47(b) are hereby struck on the grounds that they represent improper attempts to expand Grievance No. 1, and any evidence directed to such allegations will be inadmissible accordingly; and

(c) While the proceedings are bifurcated in the sense of determining the appropriate remedy only after liability has been established by the Union for a breach of the collective agreement and/or governing OHSA legislation, for purposes of defining the scope of any remedy available in the event of success on Grievance No. 1 and thus the evidence properly admissible, the scope of the inquiry under an individual grievance is limited to the Grievor’s circumstances alone and restricted in its application to the Grievor only (recognizing, however, that there may be some legitimate overlap between individual and collective concerns that will need to be assessed on a case by case basis).

45In the written materials, the Employer raised a number of concerns respecting the remaining Union particulars on the grounds of being incomplete and/or vague that were nevertheless not struck as violating the three-year rule and/or constituting an improper expansion of the grievance that include the following paragraphs: 2, 10, 21, 25 and 28. As it is not appropriate to evaluate those concerns on the limited information provided at this early juncture, they are remitted back to the parties to attempt to resolve prior to the continuation date for hearing the merits of the grievances, which may be spoken to at that time if necessary.

46Furthermore, in order to streamline the process for the remaining five grievances before me, the parties are directed to review the written objections raised by the Employer to the additional particulars (and demanded remedies) filed in the course of these proceedings, with a view to resolving those objections themselves, having regard to my determinations on the application of the Board’s three-year rule and the proper scope and/or expansion of each grievance, as may be applicable to all of those grievances. In the event the parties are unable to resolve all of those remaining concerns, I will reconvene another preliminary hearing to rule appropriately in a manner consistent with my rulings affecting Grievance No. 1.

47I shall remain seized for the purpose of interpreting and/or resolving any disputes between the parties respecting the implementation of the foregoing rulings. And the Board will schedule further hearings to address any additional procedural disputes and/or the merits of the remaining grievances in the usual course.