GSB# 2017-0709; 2017-2307; 2017-2308

UNION# 2017-0555-0006; 2017-0555-0013; 2017-0555-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Poblete)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Benjamin Parry Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

November 30, 2018

DECISION

1The employer has raised two preliminary issues, moving that the three grievances before me ought all to be dismissed.

2The first grievance, dated April 24, 2017, contests the process and results associated with 3 different job competitions. These competitions pre-date the grievance by approximately one year, three years and five years, respectively. The second grievance, dated October 3, 2017, is one (fairly) described by the employer as “generic” – it makes no reference to any specific events. Its companion grievance, however, (also dated October 3, 2017) raises issues similar to the first in respect of two other job competitions. These latter two competitions occurred roughly four and one-half years in one case and five and one-half years in the other prior to the filing of the grievance. Thus, it is in relation to the five identified job competitions that the grievor’s claims crystalize.

3At the risk of some over-simplification, the union’s grievances are comprised of two primary elements. First, in what might be described as more conventional job posting issues, the union challenges the propriety of the process and results associated with (at least some) of the job competitions in question. This aspect of the case was not the subject of the first motion brought by the employer – suffice it to say that the employer, unlike in relation to the second primary element of the grievances, did not assert that the union has failed to establish a prima facie case. In the second element of the grievances the union asserts that, in denying the grievor the positions he had sought through the various competitions, the employer has discriminated against the grievor on the basis of any or all of the following prohibited grounds: race, age, and national origin. In respect of this latter claim, the employer asks me to find that the union’s factual allegations, even if accepted as true and provable, fail to establish any case for the employer to meet regarding the alleged discrimination.

4In addition to the foregoing, the employer also argued that all of the grievances were untimely and that there are no reasonable grounds for me to exercise my discretion to extend time limits under the collective agreement.

5A brief comment on the strategic manner in which the employer chose to order its motions will be useful. Without unnecessarily surveying the jurisprudence, it is fair to say that this Board (and other arbitrators) have exhibited some flexibility in relation to the strict application of time limits or the adducing of evidence regarding events which significantly pre-date the filing of a grievance in cases where an ongoing pattern of improper discrimination or harassment is alleged. For example, in OPSEU (Lunan) and Ministry of Labour, GSB Nos. 2013-0513 et al, May 15, 2015 (Leighton), this Board confirmed a guideline that permits a grievor alleging an ongoing pattern of harassment and discrimination to adduce evidence covering a period of three years prior to the filing of the grievance (it is a guideline, not a rigid rule – each case is to be considered on its particular facts). It is clear, however, that the consideration of time limits or the adducing of evidence regarding what might otherwise be stale events may be very different in a case alleging ongoing discrimination as compared to, say, a more conventional job posting case.

6Thus, the employer first advanced its claim that the grievances, as particularized, fail to establish a prima facie case of discrimination on the basis of any of the enumerated prohibited grounds. Then, assuming its success on that motion, the employer proceeded to deal with its timeliness objection, not in relation to the discrimination claim, but merely in relation to what I have described (for purposes of explication) as more conventional job posting grievances. I will deal with the employer’s two motions in the order they were presented.

No prima facie case of prohibited discrimination

7As the employer’s motion accepts the facts pleaded by the union as true and provable (for the purposes of the motion), it is useful to consider the union’s pleadings insofar as they relate directly to any issue of alleged discrimination. In so doing, the frailty of the union’s case becomes readily apparent. The pleadings comprise 68 paragraphs of factual assertions. They relate primarily to the conduct of the competitions at issue. In that regard they are not readily distinguishable from the type of pleadings one might expect in a job competition case. As far as any claim of improper discrimination, the first two paragraphs read as follows:

Conrado Poblete (the “Grievor”) has been an employee with the OPS since July 5, 2005. He is 67 years of age.

The Grievor is a racialized individual. He immigrated from the Philippines to Canada on July 27, 1977.

8In addition to the above selection, the pleadings also assert that some or all of the successful candidates in the impugned competitions were under the age of 60. This is the sum total of the pleadings as they relate directly to any possible ground of asserted prohibited discrimination. I note that the grievor’s status as a racialized individual and immigrant was not the subject of any further scrutiny in the particulars. Indeed, it was common ground between the parties that the vast majority, if not all, of the successful applicants in the various job competitions were themselves racialized individuals.

9The parties’ positions on the first employer motion – that the pleadings fail to disclose a prima facie case of improper discrimination – are not complex.

10The employer relied on the three-part test that has been articulated to outline the factors necessary to establish a prima facie case of improper discrimination:

(a) [The grievor] is a member of a group protected by the Code;

(b) [The grievor] was subjected to adverse treatment; and

(c) [The grievor’s] gender, race, colour or ancestry was a factor in the alleged adverse treatment

11This test was cited with approval by the Court of Appeal in Peel Law Association and Melissa Firth v Selwyn Peters and Brian Noble 2013 ONCA 396 at para. 56 and has been cited in decisions of this Board – see, for example, OPSEU (Bonneveld) and Ministry of Community Safety and Correctional Services GSB #2010-1747, December 18, 2013 (Briggs); and OPSEU (Morgan) and Ministry of Children and Youth Services GSB #2012-1700 et. al, May 7, 2014 (Tims).

12The employer conceded that the first branch of the test had been met. It was not quite as generous in granting any similar concession in relation to the second and third. A question was raised as to whether the lack of success in a job competition might properly be described as adverse treatment where there was no question that the grievor had and had exercised his right to participate in the competitions. But the employer did, nonetheless, not seriously dispute that the second element of the test had been satisfied. The employer’s primary focus was on the third branch of the test.

13I was urged not to infer a prima facie case simply on the basis of speculation, simply on the basis of the grievor’s belief or opinion about the nature of his treatment and the connection between it and his race, age or ancestry. Mere membership in a protected class is not/should not be sufficient to establish any connection between that membership and the adverse treatment complained of. There must be some objective facts disclosed or alleged in the particulars to meet the requirement of a connection between the adverse treatment and the membership in a protected group. Thus, for example, in Bonneveld, supra, the Board rejected the union’s submission that the grievor’s age (he was 69 years old, “significantly older” than the other employees he alleged were receiving preferential treatment regarding scheduling of shifts) was, in and of itself, sufficient to ground a claim of improper discrimination even if there had been any adverse treatment.

14The employer, while accepting the first two branches of the test have been established, vigorously contested that there is anything that can be pointed to in the pleadings (beyond membership in a protected group) which supports the conclusion that there is any connection between that membership and the adverse treatment.

15The union began its submissions by providing context for the grievances and the claims of improper discrimination. In a cogent and forceful presentation, counsel asked that I take notice of the difficulties racialized immigrants, particularly professional and older immigrants, face in advancing their careers in Canada. The pleadings do assert that the grievor has extensive experience in accounting and financial services. He was a Chartered Public accountant in the Philippines. He has been in the OPS since February 2003 and since 2006 has been employed as a Reconciliation Representative in the Bank Reconciliation Unit for the Ministry of Government and Consumer Services. Despite his service and qualifications, he has been unsuccessful in the five job postings which are the subject of the grievances before me.

16While it did not dispute the currency of the three-part test earlier outlined, the union placed a different gloss on its submissions. It relied on a number of decisions of this Board.

17In OPSEU (Pinazza) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and Mark Keating (Third Party), GSB 2002-0840 etc., August 9, 2004 (Herlich), the Board dismissed a no prima facie case motion brought by the third party. That case involved allegations of sexual harassment and sought remedies that would impact the third party, the alleged perpetrator. The latter sought and was granted status to participate in the proceedings. In arriving at its decision to dismiss the motion, the Board observed (at p. 6 et seq):

The union argues that the asserted facts and all of the relevant events detailed therein amount to sexual harassment. The employer conceded that, at least some of the events adverted to do or might well be found to amount to sexual harassment. Mr. Keating asserts that none of the events as described in the union’s asserted facts can possibly give rise to any conclusion that the impugned conduct amounts to sexual harassment.

I am not persuaded that it is impossible to arrive at the conclusion that (at least some of) Mr. Keating’s conduct amounted to sexual harassment and I must, therefore, decline to allow his motion that these grievances be dismissed on that basis.

For the sake of clarity, I will repeat what I have and have not decided. I have not decided that any or all of Mr. Keating’s conduct does or does not amount to sexual harassment – and to put the matter somewhat colloquially – perhaps all that I have decided is that the union’s case (again, based on its pleadings) Is not so weak as would cause me to dismiss it at this stage.

[emphasis in the original]

18The union submits that the approach in this case was followed in OPSEU (Greenbank et al.) and Ministry of Finance, GSB 2003-2771, July 12, 2005 (Mikus) and that a comparable approach was adopted in OPSEU (Evangelista et al) and Ministry of the Attorney General, GSB 2009-1091 etc., June 13, 2011 (Harris).

19I have considered the submissions of the parties and, for the reasons which follow, I am persuaded that the employer’s motion must succeed.

20I begin with the authorities relied upon by the union. The principal such authority is the Pinazza case. There are numerous reasons why this case must be distinguished from the one now before me. First, the case involved allegations of sexual harassment, not improper discrimination in relation to job postings. Second, while the pleadings were not reproduced, it is clear from the award that specific “events” had been particularized which the union (at least) argued could be described as sexual harassment. In our case, no comparable “events” are particularized – all we have is the grievor’s lack of success in the job postings and his membership in a protected class(es) but nothing further to tie those together so as to suggest improper discrimination. Third, there was no dispute between the collective bargaining parties in Pinazza that the allegations (or at least some of them) could support a finding of sexual harassment. It was the third party that chose, unsuccessfully, to argue differently. (Indeed, the very unusual circumstances which included third party participation provide perhaps another basis upon which to distinguish the case.) Fourth, to the extent the Board engaged in ruminations on the “possibility” of conclusions, it was responding directly to the submissions of the third party. The latter, as the above excerpt discloses, had chosen to argue that none of the events in question could possibly support a conclusion that sexual harassment had occurred. The Board simply rejected that submission. And finally, the Board had neither the opportunity (the authorities cited in the Peel Law Association case appear to suggest the test was formulated long after the Pinazza decision issued) nor need to consider the three-part test.

21And neither do the other two cases pointed to by the union assist it in this branch of its argument. In Greenbank, this issue was little more than an afterthought following the disposition of other issues. After clearly concluding that the case was not one in which “the Union had failed to provide particulars that could establish their allegations”, the Board, with little discussion, cited limited portions of the comments in Pinazza set out earlier. It is clear, however, that the particulars included a description of events which could be characterized as instances of threat or intimidation. Moreover, while there was a passing reference to the Human Rights Code in the grievance, it is clear from the award that this was, in essence, a health and safety case (raising issues related, among others, to the relative jurisdiction of this Board and the Ontario Labour Relations Board in health and safety matters).

22Finally, in Evangelista, the Board dealt with a no prima facie case motion brought against the case as a whole. The alleged discrimination in the case was but one part of the total claim. The Board dismissed the motion and expressed its view that the employer was inappropriately asking the Board to weigh the quality of the union’s evidence on a preliminary basis, something it was not prepared to do. (There is some helpful discussion in the Peel case (at para 63 and following) which highlights the difference between prima facie case considerations in preliminary motions and ultimate burden of proof issues where evidence is heard.) In our case, I am not asked to weigh the quality of the union’s potential evidence. There is no such potential evidence for me to assess. All we have are the undisputed facts (for the purposes of this motion), i.e. membership in a protected class(es) and adverse treatment. There is no potential evidence disclosed in the pleadings that links the two.

23The union’s submissions raise what may be described as something of a conundrum in some efforts at reconciling legal analysis with broader concerns of social policy. I am satisfied, however, that its pleadings in this case do not support a case to be litigated.

24In that regard, I am mindful of the manner in which this conundrum has been dealt with in some of the cases pointed to by the employer. In OPSEU (Morgan) and Ministry of Children and Youth Services, GSB 2012-1700 etc., May 7, 2014 (Tims) the Board observed (at para. 39):

The Union’s particulars here, including for present purposes those relating to alleged post-grievance conduct, similarly fail in my view to demonstrate that the grievor’s gender, race, colour or ancestry was a factor in any adverse treatment she experienced.

In so concluding, I have considered the Union’s argument that discrimination on the basis of race or gender may be subtle in nature, and that there may be no overt conduct which can be relied upon to substantiate such a claim. I accept this to be true. This was noted by the Board in Ministry of the Environment (Dobroff), supra, [[2008] O.G.S.B.A. No. 73 (Dissanayake)] a case in which anti-union animus was in part alleged. The Board there stated as follows:

I agree that an admission or a “smoking gun” would rarely be found in anti-union animus cases or cases of discrimination on the basis of a prohibited ground. Thus, in appropriate circumstances, anti-union animus may be inferred from circumstantial evidence. However, as Vice-Chair Gray observed in Re Damani 1581/95; 1703/98, proof is nevertheless necessary. Anti-union animus will not be inferred merely because a grievor believes that it exists.

At para 17-18, Mr. Gray wrote:

(17) I accept as a general matter that racism “is out there,” as the grievor put it at one point. I agree with union counsel’s submission that racism often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it ... The presence and the effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it.

25A similar observation is found in the Human Rights Tribunal of Ontario case Preddie v St. Elizabeth Health Care, 2011 HRTO 2098 at para. 25 (cited in Lavoué v Crown in Right of Ontario (Ministry of Natural Resources and Forestry) 2018 HRTO 1646 at para 27):

(…) discrimination … can be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground.

26In cases of alleged discrimination that proceed to hearing, the employer, once the union’s evidence is in, will decide whether, in its view, that evidence has been sufficient to warrant some evidentiary explanation on its part. If so, the employer may opt to tender such evidence. However, if it is of the view that the evidence does not require any explanation, the employer may, in the hope that the adjudicator shares that view, move for a non-suit. And given the propensity at this Board to not put the mover of a non-suit to its election, the employer, if it fails in the non-suit motion may then have to make the legal and strategic decision as to what evidence, if any, to call. At the conclusion of such cases, there may well be room for appeals to inference based on the evidence tendered.

27But the current matter involves a no prima facie case motion and a consequent determination as to whether the matter ought even to proceed to hearing. In my view and barring some pleaded facts, which, in and of themselves, may support a possible inferential conclusion of improper motive, the presence of only two of the factors in the three-pronged test will not be sufficient to warrant a hearing on the merits. In other words, membership in a protected class does not confer on the individual an automatic right to have any and every instance of alleged adverse treatment advanced to a hearing on the basis of alleged discrimination. To echo some of the cases referred to, there must be more than the grievor’s subjective belief or opinion to establish a prima facie case of discrimination.

28Having regard to the foregoing, the employer’s motion to dismiss these grievances, insofar as they allege improper discrimination, is hereby allowed and the grievances are, to that extent, hereby dismissed.

Timeliness

29I turn now to a consideration of the employer’s objection to the timeliness of the grievances. In essence, the employer asserts that all of the grievances are out of time. The collective agreement provides that a grievance may be filed “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”. The employer contrasts this provision with predecessor provisions such as Article 27.2 of the 1992-1993 collective agreement between the parties which required an employee to raise a complaint “within twenty (20) days of first becoming aware of the complaint or difference”. The current language, says the employer, provides a more objective test for the determination of timeliness. The delay in filing the grievances in the instant case ranges from roughly one to five and one-half years. The grievances are clearly out of time. And further, a review of the usual factors discloses no reasonable basis for any discretionary extension of the time limits.

30The union first advances two separate bases to support its view that the grievances (or at least some of them) are timely. The first basis advanced, however, is premised upon the grievances disclosing an ongoing pattern of improper discrimination. The grievances have now been dismissed to the extent they allege improper discrimination. Thus, I need not further address this argument.

31The second basis upon which the union asserts that the grievance (dated April 24, 2017) regarding the more recent job competitions is timely is premised on the asserted fact that on January 4, 2017, as part of a series of communications the grievor had engaged in regarding his concerns about the competition process, he was advised by a management representative that if he (the grievor) was unsatisfied with management’s responses, he could exercise his rights under Article 22 (Grievance Procedure) of the collective agreement. This, it is asserted, was the first time the grievor was aware of this right. Thus, the union asserts, the window for the timely filing of the grievance did not open until then. Of course, even if this argument were to be accepted, the grievance was not filed for some four months beyond that date. The union claims, however, that there are good and sufficient reasons (including the grievor’s absence from work for some three weeks as well as his ongoing efforts to engage in discussions with the employer during that period) for the delay.

32In my view, even had the grievance been filed on January 4, 2017 it would have been out of time by some seven months. And whatever may have transpired between January 4, 2017 and the filing of the grievance on April 24, 2017 cannot have rendered the grievance any more timely.

33The union’s claim that the timeliness clock in relation to events which crystallized on May 31, 2016 (when the grievor was advised that he had not succeeded in the competition), did not begin to run until January 4of the following year is untenable. This is roughly akin to asserting that any bargaining unit employee (or at least those similarly situated to the grievor) has, perhaps by virtue of their ignorance, an indefinite ongoing inchoate right to file a grievance regarding events that may be years old. And further, that the window for filing such a grievance does not even open until the employee first learns or is possibly advised by the employer that s/he has a right to file a grievance.

34In this regard, I am in agreement with the employer, even assuming that the collective agreement does not provide an exclusively objective approach to the timeliness of filing a grievance. The collective agreement ties the timeliness of a grievance to the “circumstances giving rise to the complaint” not to a grievor’s knowledge about labour relations in general, the existence of a trade union and its function or, more importantly, the specific provisions of and rights under the collective agreement. Any such lack of knowledge cannot be visited upon the employer by requiring the processing of grievances to arbitration years beyond the circumstances which gave rise to them.

35I am satisfied that the grievances before me are untimely.

Should the time limits be extended

36This brings me, finally, to the question of whether I ought to exercise my discretion to relieve against the collective agreement time limits. Arbitrators have a legislative discretion to relieve against grievance procedure time limits “where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension”.

37The context for the exercise of such discretion and the factors to be considered in that regard have been well established. This was not the subject of controversy between the parties. The factors and their origin are set out in OPSEU (Stone) and The Ontario Clean Water Agency, GSB No. 1111/99, March 19, 2001 (Johnston) at p. 8:

The parties agree that I have the jurisdiction to extend the time limits in this case pursuant to section 48 (16) of the Act, but disagree on whether or not I should do so. They also agree that the two key cases outlining the factors to be taken into [consideration] by an arbitrator in deciding whether or not to exercise the discretion to extend the time limits are Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) … and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff).

Arbitrator Burkett identified the following factors to be considered:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

This list was repeated and expanded upon by Arbitrator Schiff as follows:

1. The nature of the grievance.

2. Whether the delay occurred in initially launching the grievance or at some later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay

5. The length of the delay.

6. Whether the employer could reasonably have assumed the grievance had been abandoned.

38In my view, a consideration of the enumerated factors does not favour the exercise of my discretion to extend the time limits in this case.

39These are job posting grievances and while the interests at stake are by no means trivial, they do not rise to the level of cases where job security is at stake (e.g. discharge or surplus cases) and neither is this case one like the Stone case, supra where, by virtue of the circumstances of that case, the job competition grievance had significant job security implications. Thus, this factor is, at best, neutral.

40The delay in the instant case relates to the initial filing of the grievances, not a delay in the course of the grievance procedure where the employer had been put on notice of a dispute by the filing of a grievance. This factor weighs against the grievor.

41There is no suggestion that anyone but the grievor is responsible for the delay. This factor weighs against the grievor.

42The only factor which potentially weighs in the grievor’s favour relates to the reasons proffered for the delay. This is, in some sense, a reprise of the argument advanced and rejected as to when the grievance procedure clock begins to tick. The union points to the grievor’s lack of knowledge of his legal rights and lack of sophistication in labour relations matters as a sympathetic explanation for the delay in filing the instant grievances. It highlights the comments of OLRB Vice-Chair Surdykowski (as he then was) in William Gordon Switzer, [1999] OLRB Rep. July/August 757 at para. 16, which question the propriety of legal assumptions of citizens’ knowledge of the law and of imputing such knowledge to all. There are two reasons, however, to distinguish this case. First, this is a decision of the OLRB in an unfair representation case in which the individual employee was the applicant. Perhaps more significantly, the Board in that case determined that a substantial part of the delay in the case resulted from the conduct of the union, i.e. the responding party in the case. If the delay in the instant case could somehow be laid at the feet of the employer, I too might be reluctant to permit that delay to defeat the rights asserted. This factor, at best, is but a very minor one in the grievor’s favour.

43The length of the delay is impressive, ranging from approximately one to five and one-half years (depending upon the specific competition complained of). This factor weighs against the grievor.

44The final factor is not applicable or perhaps merely duplicative in a case where the delay precedes the filing of the grievance. In any event, there is nothing here to assist the grievor’s case.

46Having regard to the foregoing (and without even broaching the question of prejudice to the employer resulting from the delay), I am satisfied that there is no reasonable basis for the exercise of my discretion to extend time limits in this case and I decline to do so.

47Having regard to all of the foregoing, the instant grievances must be and hereby are dismissed.