Ontario Public Service Employees Union (Louis) v Ontario (Training, Colleges and Universities), 2019 OGSB minicounsel 118

GSB# 2016-0806; 2017-3618

UNION# 2015-0503-0015; 2018-0503-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Louis)

Union

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Diane L. Gee

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 8 & 16, 2019

DECISION

1There are three grievances before me in this matter (one yet to be assigned a Union or GSB number). The first was filed on April 20, 2015 (the "April 2015 Grievance"); the second on January 4, 2018 (the "January 2018 Grievance") and the third on July 18, 2019 (the "July 2019 Grievance").

The Issue

2The Employer seeks to have various paragraphs of a Statement of Particulars filed by the Union struck on one or more of the following grounds:

• The particulars are an expansion of the grievance
• The events referred to are untimely
• The events referred to are irrelevant
• The events do not establish a prima facie case

3There is no dispute between the parties as to the test to be applied in considering each of the objections. Counsel are to be commended for the thorough yet focussed approach taken in this regard. Below, in addition to setting out the test for each of the above grounds relied upon by the Employer, the issue of the admissibility of evidence that goes to "context" is discussed. The issue of when evidence constitutes "contextual evidence," which is admissible, arises from the argument advanced by Union counsel that a determination as to whether or not paragraphs ought to be struck, should be made only after hearing all of the evidence. Counsel argued that it is often not until the evidence is being heard that the value of, what might otherwise look like irrelevant evidence, becomes apparent. This argument is valid, and care must be taken not to strike particulars that may serve to explain or characterize relevant evidence, lest the adjudicator be left with an incomplete picture of events.

The Tests To Be Applied

4The following authorities were referred to by the Employer: OPSEU (Brown-Bryce et al) and Ontario (Ministry of Community Safety and Correctional Services), GSB# 2014-1158 et al., May 12, 2016 (Dissanayake); Re Becker Milk Company Ltd. and Teamsters Union, Local 647, [1978] O.L.A.A. No. 71; Re Greater Niagara General Hospital and Ontario Nurses' Association, [1981] O.L.A.A. No. 2; OPSEU (Smith et al.) and Ontario (Ministry of Community and Social Services), GSB# 2006-2107 et al., June 2, 2008 (Gray); and OPSEU (Cooper) and Ontario (Ontario Clean Water Agency), GSB# 2017-1413, April 15, 2019 (Anderson). The Union referred to: OPSEU (O'Brien) and Ontario (Ministry of Community Safety and Correctional Services), GSB# 2003-1881, January 21, 2011; OPSEU (Fletcher) and Ontario (Ministry of Natural Resources and Forestry), GSB# 2016-2529 et al., September 26, 2018 (Petryshen); and OPSEU (Lunan) and Ontario (Ministry of Labour), GSB# 2013-0513 et al., May 15, 2015 (Leighton).

i) Determining the timeliness of the allegations under the provisions of the Collective Agreement

5Article 22.2 of the Collective Agreement provides "... an employee may file a grievance, ... 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...." Article 22.10 provides that 22.2 does not apply to complaints of sexual harassment. Pursuant to Article 22.14.1, a grievance that is not filed in accordance with the time limits is "deemed to have been withdrawn."

6Article 22.14.7 of the Collective Agreement provides that the GSB has the jurisdiction to apply section 48(16) of the LRA to extend timelines in the Collective Agreement. Section 48(16) of the LRA provides that an arbitrator can extend timelines "where ... satisfied that there are reasonable grounds for the extension and that the party opposite will not be unreasonably prejudiced by the extension."

7A grievance that was not processed according to the timelines in the Collective Agreement and, in respect of which no extension has been granted by the GSB, is said to be "untimely" and "deemed to have been withdrawn."

8A grievance that contains more than one allegation can be timely in respect of an allegation that falls within the timelines set out in the collective agreement and untimely with respect to those allegations that fall outside of the time lines set out in the collective agreement. A single grievance can contain "timely" allegations and "untimely" allegations.

ii) Determining whether the events particularized amount to an expansion of the grievance

9An arbitrator's jurisdiction is limited to determining the issues that are raised by the grievance. Issues raised in a grievance are referred to as "in-scope." The Union cannot add additional issues to the grievance that has been filed. Where there is an attempt to add issues to a grievance, it is said that the Union is attempting to "expand the scope of the grievance"; the Union is attempting to add "out of scope" issues to the grievance.

10When an issue as to whether the Union is attempting to expand the scope of the grievance arises, it must be determined whether or not the issue in dispute falls within the scope of the grievance as referred to arbitration. The leading case in this area is Re Blouin Drywall Contractors Ltd. And Carpenters Local 2486, . The following summary of the principles to be applied when determining the scope of a grievance is contained in Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake):

14. I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of "liberal reading", permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

11This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12, 2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22:

22. When faced with this issue, an arbitrator's considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties' understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra.

iii) Determining the timeliness of the events particularized in support of a harassment grievance

12The GSB has determined that evidence of events that occurred within a period of three years prior to the filing of a harassment grievance can be adduced. Exceptions are made where necessary to ensure that probative evidence is not excluded. Further, as stated in Ontario Public Service Employees Union (Cooper) v Ontario (Clean Water Agency), 2019 OGSB minicounsel 56 by Arbitrator Anderson:

The three-year rule, however, does not provide a basis to expand the grievance before an arbitrator. It also does not render what would otherwise be irrelevant evidence relevant. Evidence is not admissible simply because it falls within the three years (or such other period as is appropriate in the circumstances), it must be relevant to proving the incident or incidents which form the basis of the grievance constitute harassment.

iv) Determining whether or not the events particularized establish a prima facie case

13The test to be applied in order to determine if particularized allegations make out a prima facie case is to ask if the facts asserted, if accepted as true, are capable of establishing the elements necessary to substantiate the violation alleged. Accepting the particulars as true, do they establish the violation that is alleged?

v) Determining whether the events particularized are relevant

14The test of "relevancy" can be stated in a variety of different ways. For the present purposes, it is sufficient to state evidence is "relevant" if it goes to proving or disproving an issue in dispute.

vi) Context

15Where the particulars refer to events outside of the allegations that fall within the scope of the grievance, that are interconnected with allegations that are within the scope of the grievance, those out of scope events may be made relevant because they explain, characterise or contextualise the events within scope. The fact that evidence of such out of scope events is admissible does not bring the out of scope events within the scope of the grievance, it simply means that evidence of the event, in so far as it explains, characterises or contextualises the events within scope, and thereby assists in proving or disproving an issue in dispute, is relevant. Where a particular provides such context, a determination as to its relevance may, as Union counsel argues, be best addressed during the hearing itself or at the end of the case.

The Scope of the Grievance

16The April 20, 2015 grievance reads as follows:

I grieve, specifically but not exclusively, that the employer violated articles 1.6, 2 and 3 and by failing to properly utilize me in my role and have transferred duties to another Employee outside of the bargaining unit. The Union reserves the right to rely upon any other applicable articles, acts, legislation, policy or statutes.

Settlement Desired

Full Redress

To be reassigned my full duties as outlined in my job description

For demoralizing and unmeaningful direction and tasks from management to cease

Compensation for any and all lost time, credits, earnings.

Employer to establish and maintain a workplace of respect, dignity and equality.

Monetary compensation for emotional suffering and professional embarrassment

Any other settlement deemed appropriate by an arbitrator.

17Article 1.6 prohibits the Employer from taking action such as reclassification that would result in an OPSEU bargaining unit member being moved to another bargaining unit. Article 2 is the management rights clause, and article 3 addresses discrimination and harassment.

18On the face of the grievance there is an allegation that "the Employer", who the particulars state was a manager by the name of Teresa Damaso, did not utilize the grievor in her role but rather gave her duties to an employee outside of the bargaining unit and that such amounted to discrimination and/or harassment (the "Damaso Event"). The Employer argues that, looking only at the words set out on the grievance form itself, the Damaso Event is the only allegation raised by the grievance. It does not raise a general or broad allegation of harassment.

19The grievor filed a WDHP complaint one week after the filing of the April 2015 grievance. It includes reference to a number of allegations. In keeping with the usual process, the grievor discussed the complaint with a WDHP advisor. The WDHP advisor then created two "Statements of Allegations" ("SOFA") setting out the allegations to be pursued. One of the SOFA created captured the Damaso Event and the other SOFA captured an allegation that a manager by, the name of David Fulford, sexually harassed the grievor by saying to her: "You look like you are on a line up in a club waiting for the next dance" (the "Fulford Event"). Notwithstanding the Employer's position that the grievance does not include the Fulford Event as an allegation, the Employer does not seek to strike paragraphs pertaining to this event as the time limits in the Collective Agreement for the processing of a grievance do not apply to allegations of sexual harassment. The Employer is content to have the Fulford Event included in the April 2015 grievance for this reason. The Employer does, however, contest that the grievance includes any events other than the Damaso and Fulford Events and in support of this position points to the fact that the April 2015 SOFAs refer only to these two events.

20The Union contests that the April 2015 Grievance is restricted to the Damaso and Fulford Events. The Union disputes that the fact that the SOFAs were restricted to the Damaso and Fulford events is relevant to a determination as to the scope of the April 2015 Grievance. The Union relies on the WDHP process in support of its position that the SOFA may contain only some of the complaints that the grievor was advancing. The SOFA, the Union argues, should not define the scope of the grievance.

21It is my determination that the issues raised by the April 2015 Grievance are the Damaso Event and, given the Employer's agreement, the Fulford Event only. The words of the grievance relate only to the Damaso Event. Both the statement of the grievance and the settlement desired relate directly to this event. Only by reading a few select words of the grievance out of context and giving them an overly broad meaning could the grievance be construed as going beyond the Damaso Event. I agree with Union counsel that the SOFA are not likely a reliable indicator of the scope of the grievance, particularly where the Union has no participation in the process. I have not relied on the SOFA in coming to my decision.

22The January 2018 Grievance is a very broad grievance alleging discrimination and harassment. It is not restricted to a single or particular event, manager or employee. The January 2018 Grievance refers to harassment from a co-worker by the name of "Shirin Almashni." As set out above, in the case of a harassment grievance, the Union is entitled to adduce evidence going back three years and hence evidence going back to January 2015 would be relevant to establishing the violations alleged in the January 2018 Grievance.

23The July 2019 grievance refers to an interaction the grievor had with Ms. Almashni in February 2016 that is alleged to amount to harassment (the "2016 Almashni Interaction").

Challenges to the Particulars

Paragraphs 5, 90, 91 and 92

24With the foregoing in mind, I turn to the Employer's challenges to paragraphs of the Statement of Particulars.

25The Employer challenges paragraphs 5, 90, 91 and 92 in so far as they relate to events during the period of time before Ms. Damaso became the grievor's manager on the basis that it would represent an expansion of the grievance. The paragraphs in issue read as follows:

5. Since joining this branch, the Grievor has never had a performance development plan (PDP) or learning plan done by any of the directors. Having a PDP or learning plan in place is mandatory for all staff. The Grievor viewed this as a way of setting her up for failure and blocking her from achieving any further promotions, developmental opportunities, or training in the OPS.

6. On December 3, 2015 the Grievor returned to work and began a graduated return to work.

7. In her return to work and accommodation meeting on this day, the Grievor brought up the subject of not having ever had a Performance Development Plan (PDP) done since she had joined PSDB in December 2010.

8. A PDP is to be completed twice a year and it is mandatory that every staff member have a meeting with their supervisor to discuss their PDP. The Grievor viewed the fact that she had never had a PDP in place as a hindrance to her promotional opportunities, professional development, job shadowing, mentoring, and training opportunities in the OPS.

9. In this return to work meeting, the Grievor was advised by Ms. Damaso and Merle Rosenstein that the PDP was being revised. The Grievor was then emailed a copy of a revised PDP for review.

26The above paragraphs provide context and are thus relevant on that basis. They are also relevant to the allegations contained in the April 2015 Grievance to the extent that they cover a time period during which Ms. Damaso was the grievor's manager. For these reasons, the paragraphs will not be struck from the Statement of Particulars.

Paragraphs 7 – 10 and 20 -27

27The Employer seeks to have paragraphs 7 – 11 and 20 -27 struck on the basis that they are untimely and/or an expansion of the grievance. The paragraphs read:

7. Ms. Almashni and Ms. Dafoe would leave the office early and expected the Grievor to complete their work. On one occasion, Ms. Almashni left the office at 3 pm and asked the Grievor to edit and submit a document to the ADM's office which was being reviewed by Senior Manager, Sarah Vanduzer ("Ms. Vanduzer"). The Grievor did not do as Ms. Almashni requested because it was not the Grievor's duty. When Ms. Almashni called the Grievor to inquire whether she had done what she had instructed her to do, the Grievor informed her that it was not her job. Ms. Almashni then came into the office and began yelling at the Grievor indicating that it was her job to do their work when they are not in the office. [this is alleged to have occurred between 2011 and October 2013]

8. Ms. Almashni and Ms. Dafoe would constantly bully the Grievor and the other Administrative Assistants ordering them to do work which was supposed to be within the job duties of the Operations Coordinators.

9. The Grievor and the other Administrative Assistants had no way of opposing these orders because Ms. Dafoe had documented that these were their tasks in a "process manual". Ms. Dafoe had designed the "SDB process for completing incoming request for information and data" in which Ms. Almashni's and Ms. Dafoe's roles and responsibilities were assigned to the Director's Administrative Assistant.

10. Ms. Almashni and Ms. Dafoe were referred to as "professional email flippers" by those in the workplace. This was due to the fact that their sole task was forwarding briefing notes and other documents when they were completed to the ADM's office. However, if those documents were returned to be edited for grammatical errors they would forward them to the Grievor.

11. On April 18, 2013 Ms. Dafoe swore at the Grievor, which the Grievor documented in an email sent to her. Ms. Dafoe also sent an email to Ms. Simmons falsely accusing the Grievor of attacking her.

12. On April 29, 2013 the Grievor presented a doctor's note to management which indicated a diagnosis of anxiety, brought on by the extensive bullying and harassment by Ms. Dafoe and Ms. Almashni. The Grievor's doctor recommended an accommodation.

13. On May, 14, 2013 the Union set up a meeting with Ms. Simmons to discuss the Grievor's accommodation, as well as the harassment and bullying on the part of Ms. Dafoe and Ms. Almashni which had affected the Grievor's health. The accommodation was never granted.

14. In July 2013 Ms. Wendy Dunning was the Acting Director at the time. Ms. Dunning did not give the Grievor access to her calendar to schedule or move meetings.

15. On July 15, 2013 Ms. Dunning informed the Grievor that she did not think that the Grievor was "in a mental state to be an Administrative Assistant to the Director". Ms. Dunning's comments were formed off the basis of having seen the Grievor's medical documentation which indicated her diagnosis of anxiety and need for accommodations. Ms. Dunning further went on to tell the Grievor that her daughter has "social anxiety" and does not work. The Grievor felt that she was being stigmatized.

16. On July 17, 2013 the Grievor called an OPSEU staff representative to set up a meeting with Ms. Simmons to address the continuous bullying and harassment from Ms. Dafoe and Ms. Almashni.

17. On July 19, 2013 Ms. Almashni set up a meeting with Ms. Simmons to discuss the Grievor's roles and responsibilities. In this meeting she was spoken to.

18. On July 23, 2013 Ms. Simmons emailed meeting notes regarding the July 17th meeting. In these notes she mentioned that she asked the Grievor if she wanted to pursue a WDHP complaint against Ms. Almashni because of her inappropriate comments.

28Except for paragraphs 8, 23 and 24, the above paragraphs, may provide context in relation to the allegations concerning Ms. Almashni in the January 2018 and July 2019 Grievances. They may also be relevant in that they allege the Employer was put on notice about Ms. Almashni harassing the grievor. These paragraphs are not otherwise relevant, and certainly cannot constitute allegations on which findings of wrongdoing or harassment can be found, given the considerable delay in having been raised. Paragraphs 23 and 24 are struck on the basis that they are untimely, an expansion of the grievance(s) and cannot provide context to the issues in dispute. Conclusionary statements such as paragraph 8, without any details as to the who, what, where and when, are not "particulars." Paragraph 8 is also struck.

Paragraphs 12, 13, 14 and 16

29The Employer challenges paragraphs 12, 13, 14 and 16 on the basis that they are irrelevant and an expansion of the grievances. Specifically, the Employer argues that there is nothing in the April 2015 Grievance concerning Mr. Paradis. The allegations concerning Mr. Paradis cannot assist the Board in determining the in-scope allegations.

12. On October 25, 2011 the Grievor gave Ms. Almashni two (2) taxi chits which she signed for. The chits were for the purpose of transporting computer equipment to be used at the branch all-staff meeting.

13. On March 13, 2012 the Grievor learned that while unknown to herself or management, Ms. Almashni had not used the two (2) taxi chits, but had given them to her partner, who is not an employee of the OPS, to use to attend an interview at 593 Bay Street.

14. On this day, Ms. Almashni's partner came into work with her at 9am and spent the entire day in the office besides two (2) hours during which he left to attend an interview. The next day he returned to the office to use the government computers to do a test that was a part of the interview. Ms. Almashni asked the Grievor if she could assist him with Microsoft Excel and she declined.

15. In June of 2012 the Grievor was questioned by a manager, Jean Paradis ("Mr. Paradis"), about the two (2) taxi chits provided to Ms. Almashni. The Grievor informed Mr. Paradis that she had given those chits in question to Ms. Almashni and showed him where she had signed for them. Mr. Paradis then showed the Grievor the chits which had been used on March 13, 2012 but there was no name indicating who had used them. Mr. Paradis spoke to the Grievor in a manner which implied that she had used them and was being dishonest about it. The Grievor was left to prove to the Director that those chits were not used by her. Ms. Almashni was never disciplined for this behaviour. The Grievor viewed this as a racially discriminatory incident as she was assumed to be acting dishonestly and had the burden of proving her blamelessness.

30The above paragraphs all pre-date the three-year period preceding the filing of the January 2018 and July 2019 Grievances. While paragraph 16 falls within the three year period predating the April 2015 Grievance, the April 2015 Grievance does not contain a broad and general harassment allegation; it is limited to the Damaso and Fulford Events. The allegation concerning Mr. Paradis is untimely and amounts to an expansion of the April 2015 Grievance. The events described in these paragraphs are not interconnected with the events properly within scope and thus cannot be said to provide context. Paragraphs 12, 13, 14 and 16 are struck.

Paragraph 17

31The Employer asks that paragraph 17 be struck on the basis that the allegations contained therein are untimely or represent an expansion of the grievance.

17. On December 17, 2012 Ms. Barb Simmons, Director, emailed the Grievor to ask her to pick up her 13-year-old daughter from school at Bloor Subway and take her across the street to the office. This was a common practice.

32The allegation contained within paragraph 17 is an expansion of the April 2015 grievance, untimely and did not occur within three years of the January 2018 or July 2019 Grievances. Paragraph 17 is hereby struck.

Paragraph 18

33The Employer asks that paragraph 18 be struck on the basis that the allegations contained therein are untimely or represent an expansion of the grievance. The paragraph reads:

18. Between March to October of 2013 Mr. Fulford harassed the Grievor by telephone [he] would do this by calling for Director [Ms.] Simmons who would be away from the office attending meetings at 900 Bay Street. The Grievor would answer the telephone professionally identifying herself. Mr. Fulford would respond "who is this", and the Grievor would again identify herself. When he would ask for Ms. Simmons, the Grievor would reply that she was attending meetings at 900 Bay Street giving him the name of the meeting and location. He would then respond in an aggressive angry tone, "FIND HER and have her call me". The Grievor would immediately email Ms. Simmons or call her on her Blackberry informing her to contact the ADM. Ms. Simmons would reportedly be upset because she realised that she was being harassed by Mr. Fulford. This happened continuously until October 2013 when Ms. Simmons reportedly abruptly left and moved to another ministry.

34The allegation contained within paragraph 18 is an expansion of the April 2015 grievance, it is untimely and did not occur within three years of the January 2018 or July 2019 Grievances. It does not provide context of allegations in scope. Paragraph 18 is hereby struck.

Paragraph 19

35The Employer asks that paragraph 19 be struck on the basis that the allegations contained therein are untimely or represent an expansion of the grievance. The paragraph in question reads:

19. On March 22, 2013, Heather Cross, Manager of the TLMP unit organised a team building exercise for her unit in the Grievor's branch. The team building exercise was for the unit to go to a viewing exhibition called "Human Rights and Human Wrongs" in June. The exhibition displayed graphic pictures of Black lynching. Three (3) Caucasian women in the unit sent emails to their manager indicating that the pictures were disturbing and declined to go view graphic pictures of the lynching of Black people for a team building exercise; especially as there were Black employees in their unit. This was especially so as they have witnessed Black employees in the branch being racially discriminated against by management.

36The allegation contained within paragraph 19 is an expansion of the April 2015 grievance, untimely and did not occur within three years of the January 2018 or July 2019 Grievances. Paragraph 19 is hereby struck.

Paragraph 23

37The Employer challenges paragraph 23 on the basis that the allegations set out therein are untimely, and an expansion of the grievance. The paragraph refers to an acting director by the name of Dunning who is not a part of the April 2015 Grievance and the events alleged in this paragraph occurred more than three years prior to the January 2018 and July 2019 Grievances. Paragraph 23 reads:

23. In July 2013 Ms. Wendy Dunning was the Acting Director at the time. Ms. Dunning did not give the Grievor access to her calendar to schedule or move meetings.

38The allegation contained within paragraph 23 is an expansion of the April 2015 grievance, is untimely and did not occur within three years of the January 2018 or July 2019 Grievances. Paragraph 23 deals with an event similar to an event the grievor alleges with respect to Ms. Damaso in the April 2015 Grievance and therefore might be relevant on the basis that it provides context. Thus, paragraph 23 will not be struck at this time, however, if evidence along the lines of that particularized in paragraph 23 is adduced at the hearing, it will be admitted for the purposes of context only.

Paragraph 30

39The Employer asks that paragraph 30 be struck on the basis that it is an expansion of the grievance and is untimely. The Employer notes that the allegation is against Mr. Fulford, an individual in respect of whom there is an in-scope allegation, however, argues that the allegation in paragraph 30 is not connected to the in-scope allegation and thus is a new allegation. It is further argued that the paragraph 30 allegation is not connected in any way to the in-scope allegation concerning Mr. Fulford. Paragraph 30 reads:

30. On November 12, 2013 Mr. Fulford performed a mass surplus of employees and managers. All staff members were reportedly fearful of being next because this was ongoing for some time. The Grievor was also afraid that she would be next, as another black Administrative Assistant Jeannette Hutchinson was surplused by Mr. Fulford.

40The first two sentences of paragraph 30 are a description, from the grievor's perspective, of an event that does not constitute an allegation of wrongdoing by the Employer. To the extent that the last sentence might be construed as an allegation against the Employer as a result of the actions of Mr. Fulford, it is an expansion of the grievance and untimely. To the extent the last sentence explains the grievor's perception of that event, it might provide context for the in-scope December 30, 2013 event involving Mr. Fulford and thus might be admissible as context. For that reason, the paragraph is not struck.

Paragraph 44

41The Employer asks that paragraph 44 be struck on the basis that it is an expansion of the grievance and is untimely. The Employer notes that the allegation contained within paragraph 44 was referred to in the 2015 WDHP complaint but did not make its way in to either of the two SOFAs. The absence of this allegation from both the grievance itself and the SOFAs would reasonably lead to an assumption that it was not at issue in the grievance. The allegations, the Employer argues, are untimely and an expansion of the grievance. The Employer notes that Mr. D'Alonzo is now deceased such that the Employer would be prejudiced if required to defend the paragraph 44 allegation.

44. On September 23, 2014, Louis D'Alonzo, Manager, Apprenticeship Unit (now deceased) came into the Grievor's workstation unannounced looking for test papers of forty (40) candidates for the Employment Program Consultant positions. Mr. D'Alonzo insisted that he had given the Grievor the test papers despite the fact that the Grievor informed him that she had never received them and if she had they would be in her bottom drawer. Mr. D'Alonzo invited himself into the Grievor's workstation and began to open all the desk drawers in a very aggressive manner. The Grievor began to panic as she was reminded of a past incident during her career with the OPS when she was physically attacked in her workstation. Mr. D'Alonzo went on to inform the Grievor that the EA Mr. Mohamed had stated he witnessed him handing the Grievor the competition documents. The Grievor found this difficult to believe as Mr. Mohamed was a participant in the competition and he had not seen Mr. D'Alonzo give the Grievor any documents. The Grievor had come into the office to input the evaluation marks in SharePoint on two (2) consecutive Saturdays to avoid anyone overseeing the confidential information. The following day, the Grievor was told that Mr. D'Alonzo had given the documents to one of the panel members, Harry Bezruchko. It was the Grievor's view that Mr. Mohamed was brought in by Ms. Damaso to contribute further to an already poisoned work environment at PDSB.

42As indicated above, it is my determination that the April 2015 Grievance is limited to the Damaso and Fulford Events. The event described in paragraph 44 is not included in the grievance. It is untimely and an expansion of the grievance. Paragraph 44 is struck.

Parts of Paragraph 48

43With respect to Paragraph 48, the Employer objects to the allegations concerning the "phone banging" (in italics below) on the basis that this allegation is not part of the grievance and, while referred to in the 2015 WDHP, did not appear in either of the two SOFAs. As with the paragraph 40 allegation, the absence of a reference to the phone banging incident in the grievance or either of the SOFAs would reasonably lead to the assumption the incident was not a part of the grievance.

48. In early October 2014 the Grievor spoke to Ms. Damaso about the incident with Mr. D'Alonzo and her concerns about not being given any tasks. Ms. Damaso did nothing about this. In the same meeting, the Grievor informed Ms. Damaso of an incident in which she had witnessed Manager Louise Richard Beaulne banging the telephone profusely which had traumatized her and other employees. The Grievor also explained to Ms. Damaso that she was having chest pains.

44The phone banging incident does not form part of the 2015 Grievance. It is now untimely. The event occurred prior to October 2014, more than three years prior to the filing of the January 2018 and July 2019 Grievances. The section of paragraph 48 in italics above is struck.

Paragraph 61

45The Employer objects to paragraph 61 on the basis that the allegation is untimely and an expansion of the Grievance.

61. On December 9, 2014, Merle Rosenstein, Branch Manager sent the Grievor an email to run errands for the managers breakfast.

46This allegation is in line with the in-scope allegation that the grievor was being denied her usual duties and being assigned humiliating tasks and thus provides context. It is not struck.

Paragraphs 73 and 74

47The Employer argues the allegation of nepotism in paragraphs 73 and 74 are not part of the grievance and is irrelevant to the allegations in scope.

73. On March 8, 2015 Ms. Damaso promoted her Executive Assistant Mr. Mohammed to the permanent position of Employment & Training Consultant.

74. In March of 2015 Ms. Damaso set up an administrative meeting with the Grievor and the Operations Coordinators Ms. Dafoe and Ms. Almashni to inform them that she will be hiring and promoting Daniel Gazzellone as the new Executive Assistant. Mr. Gazzellone's home position was Client Service Officer in the Employment Ontario Contact Centre. The Grievor was aware that Mr. Gazzellone was close friends with Ms. Damaso's nephew Steve Maura who worked at PSDB as an OAD10 when the Grievor joined the branch in December 2010.

48If paragraph 74 is making an allegation of wrongdoing, the allegation is not part of the grievance and is thus an expansion thereof. The contents of paragraphs 73 and 74 relate to the in-scope allegation that the grievor's duties were taken away from her and assigned to an employee outside of the OPSEU bargaining unit. As such, the particulars in paragraph 73 and 74 may be relevant as context. As such, paragraphs 73 and 74 will not be struck but any evidence adduced will go to context only.

Paragraphs 93 and 94

49Paragraphs 93 and 94 are challenged by the Employer as representing an expansion of the grievance. It is further argued that the contents of paragraphs 93 and 94 are irrelevant as they have nothing to do with the Damaso Event. The paragraphs read:

93. Also during this meeting, the Grievor was told by Ms. Damaso that she had been overpaid as she had not entered her attendance in WIN on time and that the Grievor would have to repay this money.

94. The Grievor met with Ms. Damaso again on December 9, 2015 about the pay situation. Ms. Damaso did not have the information in regard to an exact amount of money which was being deducted. The Grievor asked Ms. Damaso if this pay could be deducted in a couple of pay periods because the deductions would cause the Grievor financial hardship right before the holidays. Ms. Damaso stated that she would get back to the Grievor but she never did and the deductions of $659.14 and $330.45 were taken from two paycheques in December 2015. After the holidays, on January 12, 2016 Ms. Damaso asked the Grievor to sign a Memorandum of Agreement to return the deducted money. This showcases that the deductions in December were a deliberate attempt to put the Grievor through financial hardship before Christmas.

50This alleged event occurred within the three-year period prior to the filing of the January 2018 Grievance and accordingly, without prejudice to the Employer's right to raise later objections, I decline to strike these paragraphs at this time.

Paragraphs 98, 99 and 102

51The Employer asks that paragraphs 98, 99 and 102 be struck on the basis that there is no grievance before me that alleges a complaint about the WDHP process during the period of time referenced. The Employer states that, while there is an allegation in the January 2018 Grievance of the grievor's status being changed from suspended to sick, there is no link between the January 2018 Grievance and the allegations in these paragraphs. The Employer seeks to have paragraphs 98, 99 and 102 struck on the basis that they are irrelevant or an expansion of the grievance. The paragraphs read:

98. On January 11, 2016 the Grievor contacted Carol Ann Marshall and Jody Warner of the WDHP department who told her that her claim had been closed because it had been six (6) months. After much discussion with Ms. Marshall who told the Grievor that she was not assigned to her case anymore, the Grievor's case was reopened and then assigned to WDHP advisor Olayinka Ekenkwo.

99. On January 25, 2016 the WDHP Advisor set up an internal interview.

100. Also on January 27, 2016 the Grievor had a 2:00 pm teleconference meeting with the WDHP Advisor. The meeting was cut short because it became too emotional for the Grievor to discuss the workplace issues she had faced and continued to face.

52Having regard to the particulars in total and the grievances themselves, the purpose of these paragraphs is unclear. They appear to be simply part of the chronology of events and not allegations. Assuming they are present to provide context of the chronology of events, they are not struck.

Paragraph 126

53The Employer explained that an external investigator by the name of Rick Russell was retained at the instigation of the Employer to look into concerns about the manner in which WHDP complaints filed by racialized employees were being investigated. The Employer was investigating its own investigation processes. Mr. Russell spoke to the grievor in the course of his investigation. Paragraph 126 of the Statement of Particulars refers to a meeting Mr. Russell had with the grievor as part of his investigation on behalf of the Employer.

126. On November 10, 2016 the Grievor filed a complaint against investigator Rick Russell for breaching WDHP policy when he failed to accept evidence from the Grievor of the names of her witness, and his failure to not give her a copy of her signed statement immediately after the hearing.

54Assuming the Employer to be correct as to the nature of the meeting referred to in paragraph 126, the meeting was not in connection with a complaint in which the grievor was either a complainant or respondent. As such, it is unlikely that the grievor's rights could be violated at such a meeting or by the conduct of Mr. Russell. Unless the Union can establish, through the course of the hearing, that the event described in paragraph 126 is relevant, no evidence as to the event described in paragraph 126 will be allowed.

Summary

55For the reasons set out above, the following paragraphs of the Statement of Particulars are struck:

• 8, 23, 24
• 12, 13, 14 and 16
• 17
• 18
• 19
• 44
• 48 (the italicized portion)
• 126 (subject to Union establishing relevance during the hearing.

56The following paragraphs of the Statement of Particulars are not struck, however, where the paragraph number is followed by an asterisk, the paragraph has been found to be relevant as going to context only; it cannot provide the foundation for an allegation of wrongdoing:

• 5, 90, 91, 92
• 7*, 9*, 10*, 20*, 21*, 22*, 25*, 26*, 27*
• 23*
• 30*
• 61*
• 73* and 74*
• 93 and 94
• 98*, 99* and 102*