GSB# 2016-2892

UNION# 2017-0234-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Akintunde)

Union

• and -

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

Employer

BEFORE

M. V. Watters

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 18, 2018

DECISION

1This proceeding was conducted pursuant to the Mediation/Arbitration Procedure set out in article 22.16 of the collective agreement. At the hearing, counsel for the parties agreed to extend the time period for the provision of this Decision.

2The grievor, Alexander Akintunde, is a Correctional Officer at the Maplehurst Correctional Centre. His date of hire is August 12, 1996. He filed the following grievance on February 21, 2017:

The Employer has violated the Collective Bargaining Agreement including but not limited to articles 2, 3, 6; and the Ontario Human Rights Code. The Employer’s systemic discrimination and harassment has prevented my career development and opportunities for advancement.

SETTLEMENT DESIRED:

1. Full Redress including but not limited to:

2. Developmental opportunities;

3. Damages;

4. Any Remedies the Arbitrator deems appropriate.

It is apparent that the grievor wishes to progress into a Sergeant’s position and that he believes his career advancement has been stymied by racial discrimination on the part of the Employer.

3The grievor prepared a fifteen (15) page document outlining the particulars relating to his grievance. This document was filed as an exhibit without any of the attachments referenced therein. I was informed that the attachments, at present, total in excess of two hundred and sixty (260) pages and include Occurrence Reports, prior grievances and a Workplace Discrimination and Harassment Complaint. Apparently, a search is being conducted for other attachments that have yet to be located. I note from a reading of the particulars that they include mention of the following matters: the grievor serving as an acting Operational Manager in the period September 13, 2010 to September 25, 2011; his unsuccessful applications for permanent Operational Manager positions in job competitions held in February, 2011 and September, 2012; and numerous incidents and events which occurred between 2011 and 2014.

4At the hearing, counsel for the Employer asked for the issuance of an Order to restrict the scope of evidence. More specifically, she requested that the Union not be permitted to lead evidence of any incidents or events which occurred more than three (3) years prior to the filing of the instant grievance. Simply stated, counsel asked for the application of, what is now referred to as, the “three (3) year rule”. Counsel for the Union, in response, submitted that, in the circumstances of this case, the Union should be allowed to adduce evidence with respect to all matters mentioned in the grievor’s statement of particulars.

5The following authorities were filed by the parties relating to the application of the three (3) year rule: OPSEU (Calder) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2015-1868 et al. (Wacyk); OPSEU (Patterson) and The Crown in Right of Ontario (Ministry of Public Safety and Security), GSB Nos. 2001-0925, 2001-0949 (Leighton); OPSEU (Dubuc) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2015-1330 (Herlich); OPSEU (Patterson) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 1989-1546 et al. (Abramsky); OPSEU (Lavoie et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2012-2206, 2012-2965 (Sheehan); OPSEU (O’Brien) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2003-1881 (Leighton); Hotel-Dieu Grace Hospital and Ontario Nurses’ Association (Bennett Grievance) (1997), Source decision, 62 L.A.C. (4th) 164 (Picher); OPSEU (Dale et al.) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), GSB Nos. 0783-00, 1314-00, 0883-01 (Abramsky); OPSEU (Bilardo) and The Crown in Right of Ontario (Ministry of Labour), GSB No. 2012-2049 et al. (Herlich); OPSEU (Lunan) and The Crown in Right of Ontario (Ministry of Labour), GSB No. 2013-0513 et al. (Leighton).

6A concise statement of the three (3) year rule is found in the following passage from the Lunan Decision:

“[8] The Board has held that a grievor alleging harassment and discrimination can be permitted to adduce evidence over a period of three years before the date of the grievance. See Patterson (Leighton) and Patterson (Abramsky) …..Evidence of events up to three years before the grievance should allow the union sufficient opportunity to prove a pattern of harassment and not be so long ago as to be difficult to defend. However, the Board has also held that it is not a rigid rule. It is a guideline: the Board must consider each case on its facts. See O’Brien, (Leighton) ….. Thus it could be fair to the parties to extend the three years or shorten the period.”

7It is clear from a reading of the authorities that the three (3) year rule is intended to strike a fair balance between the interests of both parties. More specifically, the ability of the Union to establish an alleged pattern of improper conduct must be weighed against the Employer’s right to effectively defend itself against dated accusations. In deciding whether, and how, to apply the rule, the Board has considered the following matters:

i) whether the grievor was aware of the right to challenge or grieve the earlier events which the Union seeks to rely on;

ii) whether the hearing would be unduly protracted by the application of the rule, as a result of the need to present and consider voluminous evidence relating to the past events; and

iii) whether extending the period of arbitral review would raise concerns from both an equitable and procedural standpoint.

8The authorities also confirm that the three (3) year rule is simply a point of departure, and is not an inflexible rule to be mechanically applied in all cases. It has been described as a “rule of thumb”. By way of example, the three (3) year period was extended in both O’Brien and Lunan, as described below.

9In O’Brien, the grievances were filed in 2003 and 2009. With respect to the latter grievance, the Board permitted the Union to present evidence back to 2000 based on the “unique circumstances” of the case. In that instance, the grievor had been out of the workplace and in receipt of LTIP since 2001. The Vice-Chair concluded that, as a result, there would not be a need for the presentation of voluminous evidence with respect to events which occurred within the extended period. I note that the extension granted was expressly stated to be “subject to a finding of actual prejudice if the employer can prove it during the hearing” (page 8).

10In Lunan, the grievor filed seven (7) grievances between December, 2012 and October, 2013 alleging harassment and discrimination on the part of the Employer. The Vice-Chair, in substance, applied the three (3) year rule subject to a limited exception due to “special circumstances”. In this regard, she permitted the Union to lead evidence with respect to a single and specific incident in 2004 involving an exchange between the grievor and a co-worker. The Vice-Chair observed that the Employer did not argue that such an extension would create “actual prejudice”. I note that she made the following comment on the evidence that might be adduced as a consequence of the extension: “Whether this evidence is relevant or necessary is a decision better made during the hearing” (page 5). The final substantive paragraph of the Decision reads:

“[10] I am also of the view that evidence of approximately three years before the first grievance dated December 7, 2012 should suffice to give the union a fair opportunity to prove harassment and discrimination. By approximate I mean that the three years should not be “to the day”, especially if there is an important event that occurred just beyond the three years. The precise line is better determined during the hearing”.

11Finally, I note that this Board has previously determined that the exclusion of otherwise relevant evidence, through a proper application of the three (3) year rule, does not constitute a violation of the rules of natural justice.

12It is the Employer’s position that no reason exists to depart from the normal application of the three (3) year rule. Counsel submitted that limiting evidence to the three (3) year period prior to February 21, 2017 would provide the Union with a fair and sufficient opportunity to establish the alleged pattern of discrimination and harassment. She argued that to further extend the period, as requested by the Union, would prejudice the Employer’s ability to defend itself for the following reasons: the Employer would have to address untimely and dated events which, in some instances, occurred six (6) to seven (7) years ago; the Employer might be unable to locate necessary witnesses and/or relevant documents given the passage of time; and an extension beyond three (3) years would likely lead to the introduction of voluminous evidence. It was counsel’s submission that the particulars filed do not disclose the type of unique or special circumstances found in the O’Brien and Lunan Decisions. Lastly, she suggested that the grievor was fully aware of his right to complain about management misconduct. From her perspective, he should have done so at the time of the earlier incidents, if he truly felt aggrieved by the Employer’s actions.

13Counsel advised that she reserved the right to raise further preliminary objections concerning post-grievance evidence and the jurisdiction of this Arbitrator to adjudicate matters relating to the grievor’s failure to secure an excluded position shortly before the filing of the instant grievance.

14In response, it is the Union’s position that it is necessary in this case to enlarge the scope of permitted evidence beyond the three (3) year period prior to the filing of the grievance. Counsel submitted that such an extension will allow the Union to better establish a pattern of systemic discrimination and harassment and to show how it has adversely impacted the grievor’s career advancement. Additionally, he argued that a review of the 2012 job competition and the 2010 to 2011 acting assignment will demonstrate how the Employer has dealt with the grievor in “like circumstances”. Counsel asserted that for purposes of assessing the Employer’s motivation in this case, it will be instructive to consider both how the Employer has administered job competitions in the past and the actual experience of the grievor when in the acting position. Put another way, such evidence will set the context for what led to the filing of the instant grievance. Counsel advised that the evidence relating to the events outside of the three (3) year period will not be voluminous but, instead, will be specific and succinct. He invited this Arbitrator to adopt the flexible approach reflected in the O’Brien and Lunan Decisions.

15After considering the submissions of the parties, I have decided to make the Order requested by the Employer. In my judgment, application of the three (3) year rule will provide a fair and reasonable balance between the competing interests of the Union and the Employer. I am satisfied that the Union will have sufficient scope to establish the existence of the alleged pattern of systemic discrimination and harassment. Additionally, I consider it unlikely that the Employer will be unduly prejudiced by having to address incidents and events which occurred in the three (3) year period prior to the grievance. From my reading of the particulars, I think that to accede to the Union’s request would likely result in the receipt of voluminous evidence and that the hearing, as a consequence, could be protracted. Such a result could very likely have a negative effect on the Employer’s ability to defend itself against the allegations made by the grievor. The particulars further suggest that the grievor was aware of his right to challenge or grieve the actions complained of during the contested period.

16I have not been persuaded that unique or special circumstances exist here to support a departure from the three (3) year rule. Unlike the situation in O’Brien, the grievor was at work for the entire period of time. The extension in Lunan, on my reading, was based on the specific facts of that case, which are distinguishable from the circumstances of the present grievance. I do agree with the comment by the Vice-Chair in Lunan as to the approximate nature of the three (3) year period.

17During the course of submissions, I was advised that the grievor filed a grievance in July, 2014 and that the matter proceeded to a mediation-arbitration hearing at the Grievance Settlement Board. Apparently, the grievance was dismissed, but the Employer was required to pay a small monetary amount as compensation for a breach of the grievor’s privacy rights. This incident and the resulting disposition both occurred within the three (3) year period prior to the filing of this grievance. While not much detail was provided about this matter, I am satisfied it does form part of the record for purposes of this proceeding. Clearly, however, it cannot be relitigated as part of this case.

18For all of the above reasons, it is ordered that the scope of evidence is limited to the three (3) year period prior to the filing of the instant grievance.