GSB# 2016-2013

UNION# 2016-0103-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kyba et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment, Conservation and Parks)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

July 19, 2018 (Written submissions received on October 12, 2018; Submissions completed on November 16, 2018)

DECISION

1Ms. Sybil Kyba, Mr. Tom Bender and Ms. Janis Pechinger are employed as Environmental Officers at the London District Office of the Ministry. They filed a group grievance dated July 11, 2016. It alleges that “the employer has violated articles 2 and 3 of the collective agreement, the Ontario Human Rights Code and the Occupational Health and Safety Act, but not exclusively, by: creating and adding to a toxic work environment; targeting and/or subjecting them to bullying and harassment in the workplace”.

2In its particulars, the union states that it would be seeking the following remedies:

(a) A declaration that the employer has breached the collective agreement, the Human Rights Code and the Occupational Health and Safety Act;

(b) A declaration that the employer cease and desist from harassing the grievors;

(c) An order of general damages;

(d) Such other relief as counsel may request and as the Board seems just.

3Union counsel advised that Ms. Pechinger’s grievance had been settled. In response to a query by employer counsel, she confirmed that the union would not be relying on any interaction between Ms. Pechinger and the employer in support of the Kyba and Bender group grievance, unless Ms. Kyba or Mr. Bender were part of that interaction. That left for determination the Kyba and Bender grievances.

4On July 17, 2018, the union filed its particulars. This interim decision relates to a motion by the employer that certain paragraphs of the particulars be struck.

Employer Submissions

5Employer counsel observed that the union’s particulars included allegations of differential treatment of the grievors in relation to work load and training opportunities. He submitted that while he would not be challenging those aspects of the particulars at this point, he was reserving the right to non-suit the union on those allegations at the closing of the union’s evidence.

6The employer’s objection to the union’s particulars may conveniently be divided into two groups. First, particulars which, the employer argues, have been the subject of a prior settlement. Second, particulars which, the employer claims, are the subject of other grievances presently before different arbitrators of the Board.

7Employer submissions

The employer relied on the following authorities: Re Dale et al, 0783/00 (Abramsky); Re Waraich, 2003-0187 (Watters); Re Fletcher, 2004-0083 (Leighton); Re Brown, 2011-0583 (Dissanayake); Re Ranger, 2013-1169 (Harris); Re Hawkes, 2007-2388 (Leighton).

8In the union’s written submissions, it agreed that its particulars relating to allegations which are subject of grievances before other arbitrators of the Board including paragraphs 69 and 103, may be struck. That narrowed the employer’s motion to the union’s particulars relating to factual assertions which had been grieved by the grievors and subsequently settled.

9Employer counsel reviewed each of the challenged paragraphs in the particulars, prior grievances of the grievor and minutes of settlement of each grievance. I will not review those details because there is no dispute that the allegations in each of those paragraphs had been grieved and settled.

10Employer counsel submitted that if Ms. Kyba was of the view that the employer action grieved in those grievances, for example allegations of differential treatment relating to after shift work hours, denial of compassionate leave, and denial of training opportunities, constituted harassment, that should have been raised in that grievance. Instead, she settled that grievance. The minutes of settlement (MOS) included a broad release clause. She wants now to rely on those same allegations in the instant group grievance. Counsel submitted that the principle of sanctity of grievance settlements consistently applied by arbitrators generally, and by this Board specifically, precludes that.

11Employer counsel pointed out that except one, each MOS contains a release clause to the effect:

The Grievor and Union hereby release and forever discharge the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from all actions, causes of action, grievances, claims and demands of every nature and kind arising out of, or as a result of the grievance and the circumstances giving rise to the grievance.

12Counsel argued that in the circumstances all of the paragraphs in the union’s particulars asserting factual allegations which had been the subject of previously settled grievances should be struck.

Union Submissions

13Union counsel submitted that the grievors had filed grievances at different times to address specific and narrow problems at the workplace. However, the instant group grievance was filed because of continuing harassment and discrimination they have experienced. Counsel conceded that the grievances relating to the specific issues had been settled by minutes including a release clause. She argued that in this grievance, the union is not seeking additional remedies with regard to the settled matters. It is seeking to rely on facts that formed those grievances, in order to lay the foundation for the alleged pattern of harassment alleged here. Counsel submitted that the paragraphs sought to be struck are about harassment. Harassment was not an issue alleged or settled in the prior settlements.

14Union counsel submitted that while the allegations made on behalf of Ms. Kyba in para. 11 of the particulars were the subject of settlements, at the time of settlement the instant group grievance had already been filed, and both the union and the employer knew that the group grievance alleging harassment was still live.

15Union counsel submitted that while Mr. Bender’s grievance relating to denial of leave of absence with pay had been settled, unlike the others that settlement did not include any release clause. Therefore, the union should not be precluded from relying on the facts underlying that settled grievance.

16Union counsel submitted that while the jurisprudence has recognized the sanctity of grievance settlements, in Re Hawkes (supra) the Board has acknowledged that in “special circumstances” it will look behind the settlement and allow the union to rely on the underlying facts. In the present case, the allegations in para. 42 of the particulars relating to denial of Mr. Bender of a day of compassionate leave and the issuance of two letters of counsel had been grieved and settled. However, at the time of settlement, Mr. Bender would not have had the foresight that this was just one event of a series of events that would follow to poison Mr. Bender’s work environment. Therefore, he should not be deprived of the ability to rely on the facts underlying that settled grievance to support the instant grievance.

Employer Reply

17In reply, employer counsel summarized the reasons offered by the union in its submissions, as to why it should be allowed to rely on facts in settled grievances as follows:

(a) The union argues that it is not seeking additional remedies flowing from those facts, but merely wants to rely on those facts to support the group grievance.

(b) The union argues that despite signing a MOS containing a broad release clause, it should be allowed to rely on the underlying facts because at the time of prior settlement of those grievances the instant grievance was live and the parties were aware of that.

(c) The union argues that the prior grievances nor the MOS raised or settled the issue raised in the instant group grievance, namely “harassment”.

(d) The union asserts that the facts underlying Mr. Bender’s grievance dated January 22, 2015, should be allowed in this proceeding because the MOS settling that grievance did not include a release clause.

(e) The union submits that because Mr. Bender would not have had the foresight at the time of settlement, that harassment would continue and that he would be filing a harassment grievance in the future, that constitutes a “special circumstance” which should cause the Board to allow the union to rely on the underlying facts in the settled grievance.

18Employer counsel reviewed jurisprudence and submitted that each of those arguments had been considered and rejected by this Board. I shall make reference to that case law to the extent necessary in my reasons.

DECISION

19This Board’s decision in Re Dale et al, 0783/00 (Abramsky) deals with many of the arguments made in this case. In that case 17 grievances filed in 1996 were settled in 1999. Subsequently in 2002 the union sought to rely on the facts underlying those settled grievances to support a grievance alleging harassment and discrimination based on anti-union animus. This grievance had been filed and was still pending at the time of the settlement of the 17 other grievances. The employer objected.

20The submissions of the respective parties (set out in detail in the decision) were very similar to those made here. At p. 6, Vice-Chair Abramsky wrote:

The Union asserts that it is not attempting to re-litigate the 17 grievances that were settled and it seeks no remedy in relation to those matters. Instead, it is attempting to lead evidence of the Employer’s past actions to establish a continuity of conduct indicative of anti-union animus. The Union submits that the evidence is relevant, probative and essential to its case. It contends that a ruling against admissibility would greatly impact its ability to present its case.

21At pp 7-8, she wrote:

There clearly are conflicting interests at stake in determining whether evidence concerning the 17 settled grievances from 1996 should be admitted to support the Union’s claim that there is a pattern and practice of discrimination against the grievors on the basis of their Union activity. The Union claims that admission of the events which led to those grievances is critical to its case, and is required to put into context the otherwise ambiguous actions involved in the grievances presently before the Board. The Employer claims that it should not now, long after the fact and long after the matters were settled, be forced to relitigate matters which were fully and finally resolved.

The GSB has long recognized the critical importance of settlements and their enforcement. In OPSEU (Union Grievance) and Ministry of Natural Resources/Management Board of Cabinet, GSB No. 1526/91, 1294/92 (Kaplan, Vice-Chair), the Board referred to the “[s]anctity of [s]ettlements”, concluding at p. 31 that “[I]t is absolutely essential that the Board give effect to final settlements reached between the parties.” The Board cited to Landry-King, GSB No. 1593/84 (Knopf, Vice-Chair) at pp. 8-9, quoted at p. 31:

The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the Settlement.

Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. As the Board held in OPSEU (Pitirri) and Ministry of Correctional Services, supra at p. 12: “With respect to those [grievances] covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances that have been resolved by their terms will not reappear in some different guise.” Accord, Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville).

Under the jurisprudence of the Ontario Labour Relations Board, however, cited by the Union, it is clear that evidence concerning settled or withdrawn complaints may be “admitted for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity.” Craftline Industries Limited, [1977] OLRB Rep. April 246. In Comstock Funeral Home Ltd. [1981] OLRB Rep. Dec. 1755, the Board explained the rationale of that holding as follows, at p. 1758:

The settlement of a complaint continues to be advantageous to a party for all of the reasons one would normally contemplate settlement. But a party is not entitled to think that by the settlement of a particular complaint, it thereby obliterates the past, and can act thereafter with relative impunity. Rather, having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement.

In the Comstock case, the employer took a number of adverse actions against employees immediately after certification of the union which were the subject of unfair labour practice complaints. On the second day of the hearing, the parties were able to reach a settlement on all of the matters in dispute and all of the complaints before the Board were withdrawn. The Board concluded: “From this development…it must have appeared to the complainant that the respondent had finally accepted the relationship, and was prepared to get on with the amicable negotiation of a collective agreement.” (p. 1757) Three days after this settlement, however, the employer took a number of new adverse actions and “not a word was said to the complainant in the settlement discussions three days before in regard to these pending new developments.” (p. 1757) At the hearing on these new issues, the complainant claimed the right to adduce evidence on all of the allegations contained in its prior complaints, on the sole basis that they were relevant in demonstrating through a pattern of conduct the anti-union animus necessary to sustain the present complaint. It was not seeking any form of relief with respect to the prior complaints. As noted above, the Board allowed the complainant to adduce this evidence, concluding that if the matters which were settled “are arguably relevant to either support or defend a fresh complaint arising from subsequent developments, the events themselves continue to be provable and admissible in evidence.”(p. 1757)

In my view, the rationale of the Board in Comstock does not apply to the instant case, at least as it pertains to the July 1998 grievance. The reason it does not apply is because, at the time the 1996 grievances were settled in March of 1999, the July 3, 1998 grievance had already been filed. It was not a “fresh complaint” arising after the settlement or a “subsequent development.” At the time of the settlement, it was an existing and ongoing grievance. Thus, the underlying premise of the Board’s conclusion in Comstock – that future conduct of a controversial kind can force an employer to litigate its entire pattern of conduct to that point – does not apply when the conduct complained of exists at the time of settlement, as it did here in relation to the 1998 grievance.

Further, the parties to the settlement of a grievance may waive the right to raise or rely upon the matters which led to a grievance in the future. The Employer submits that that is exactly what the parties did in paragraph 5 of the Minutes of Settlement, which states:

5. All parties to these Minutes of Settlement agree that all matters in dispute between them raised in the grievances have been resolved and no further actions respecting these matters will be taken under the common law, the collective agreement, statute or otherwise.

This paragraph may be interpreted broadly to hold that “further actions respecting these matters” includes raising them to support the allegation of anti-union animus in the present grievances. It may also be interpreted narrowly to mean that no further independent claims or actions on these matters would be taken.

Under the specific facts of this case, I conclude that the broader interpretation is what the parties’ intended. In March of 1999, after spending many days litigating these 17 grievances over a period of two years, the parties fully resolved these matters and it makes little sense to presume that the parties did not intend to preclude their use to support the existing 1998 grievance. By consenting to a “full and final” settlement and agreeing that “no further actions respecting these matters will be taken…” the Union cannot now rely on those settled matters to support a grievance that existed at the time these matters were settled. There is no evidence that anything was said to the employer to the effect that, despite the settlement, the facts underlying the settled grievances would be used to establish anti-union animus in relation to the 1998 grievance. Indeed, it would be tantamount to bad faith to settle a matter but plan to rely on the facts which underlie it to support an existing grievance. Nor, as noted above, does the rationale of Comstock support that view. Under these facts, I cannot presume that that was the parties’ intent when it entered into paragraph 5. Accordingly, I conclude that the broader interpretation of paragraph 5 – which precludes a party from raising and relying on these matters again – was intended by the parties.

The Union, at the time of the settlement, could have reserved the right to rely on these 17 events to support the 1998 grievance but did not do so. As stated in Re Marnwood Lifecare Centre and Canadian Union of Public Employees, Local 2225-06, supra at p. 6:

When parties enter into negotiations or mediation, it is open to each to establish ground rules or caveats regarding any number of matters… However, this did not occur in this matter. The issue before me might well be different if that were the case.

By not doing so, the Union cannot now rely upon those settled matters to support the 1998 grievance, which existed at the time of the settlement.

22A review of the documentary evidence indicates that except for the Kyba grievance settled on March 2, 2016, all of the grievances were settled after the filing of the instant grievance. In other words, at the time of settlement, the union was aware that the instant grievance alleging harassment and discrimination had been filed and was still outstanding. Thus, the reasoning in Re Dale applies squarely to prevent the union from relying on the facts underlying those settled grievance.

23The one exception is Ms. Kyba’s grievance (Exhibit 8) settled on March 2, 2016, prior to the filing of the instant group grievance on July 11, 2016. The Board in Re Dale was also faced with some prior grievances which had been settled before the filing of the harassment grievance before it. The Board nevertheless held that the union was not entitled to rely on the facts underlying those settled grievances because there was a gap of some four years between the events in the settled grievances and the harassment grievance before it. In doing so the Board engaged in a balancing of the interests of both parties.

24In the Kyba grievance settled by the parties, the gap in time was only 8 months. Thus, in balancing of the interests it would seem that the scale would be tilted more in favour of allowing the evidence. However, I have determined that a much more important policy consideration does not support such a ruling.

25In the particular MOS there is a strong indication that the parties focussed on and emphasized the “release” aspect of the settlement. Thus, unlike all of the other settlements at issue, which are titled with the typical language “Memorandum of Settlement”, the title is “Memorandum of Settlement and Release”. This indicates that the “release” was a significant consideration in the minds of the parties in concluding the settlement. More importantly, the parties have included a more extensive release clause than the typical clause in all of the other minutes, which is set out at para. (supra). The release clause in this particular MOS reads:

In consideration of the course Ms. Kyba and the Union agree to release and forever discharge the Crown in right of Ontario and the Employer, its servants, agents, directors of and from all actions, causes of actions, claims and demands, or difference of every nature and kind arising out of, or as a result of, or in any way related to Ms., Kyba’s grievance, including but not limited to all claims under the OPSEU Collective Agreement, Public Service of Ontario Act, Human Rights Code WDHP Policy, the Occupational Health and Safety Act, Labour Relations Act, Employment Standards Act and the common law. Ms. Kyba and the Union further agree that any facts related to this grievance will not form the basis of any future proceeding against the Crown in Right of Ontario, Employer, its servants, agents and directors;

(Emphasis added)

26The parties have deliberately included the additional language in the emphasized sentence with explicit reference to “any facts related to this grievance”. To allow the union to rely on the facts underlying a grievance containing such language would be to totally ignore the expressed intention of the parties.

27The union also pointed out that one of the settled grievances filed by Mr. Bender (Exhibit 6) did not include any release clause. It was argued that therefore, the union should be entitled to rely on the underlying facts of that grievance. I disagree. The arbitral principle of sanctity of settlements is not derived from, or dependent upon, the existence of release clause. It is a principle applied as a matter good labour relations policy. The reasoning behind that principle is reviewed in Re Dale (supra), and the authorities discussed in that decision. That principle applies in the absence of language in the minutes indicating the intention of the parties to exclude or limit its application.

28Union counsel, cited Re Hawkes (supra) at para. 12, and argued that the Board would depart from the principle of sanctity of settlements, in “special circumstances”. There Vice-Chair Leighton wrote:

The board has addressed this issue consistently over the years, recognizing the importance of enforcing settlements between the parties. The board has discretion as to what evidence it admits, but it has said that it will not admit evidence of a settled matter unless there are special circumstances. As Vice-Chair Abramsky stated in her thorough review of the board’s case law on the issue in Dale, “once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise” (as cited in Fletcher, supra, at p. 8).

(Emphasis added)

29The Board has a broad discretion in determining what evidence to admit. Re Hawkes illustrates that the principle of sanctity of settlements does not go so far as to absolutely prohibit reliance of facts underlying a settled grievance. Re Comstock Funeral Home (supra) is an example of an exception being recognized by the Labour Relations Board. However, in Re Dale (supra), which also was, like here, dealing with a harassment grievance, concluded that the decision in Re Comstock Funeral Home turned on its own facts and was distinguishable.

30The fact that the instant harassment grievance had not been filed at the time of settlement and that the grievor could not have anticipated that he would be filing a harassment grievance in the future, does not constitute a special circumstance to exclude the application of the sanctity of settlement principle. If that was the case, most harassment grievances would be exempted from that principle because in most cases employer conduct becomes “harassment” following a pattern of conduct. Arbitrators nor this Board, have recognized such an exemption. Indeed many of the cases cited to me, including Re Dale, were harassment cases where the principle of sanctity of settlement was applied. Indeed in Re Hawkes itself, despite the reference to “special circumstances”, at para. 13 the Board wrote: “Further, the principle of sanctity of settlements meant that the evidence could not be used even for a limited purpose, such as to show an on-going pattern of harassment, or to provide context for the subsequent grievances.”

31It follows that the employer’s motion is upheld. The union is not allowed to rely on facts underlying any grievances which have been settled, and it is so ordered.

32I remain seized and the matter will proceed on the dates scheduled.