GSB# 2017-0054; 2018-3006; 2019-0397
UNION# 2017-0546-0002; 2018-0586-0032; 2019-0586-0011
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Solomon Smith et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Children, Community and Social Services)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATE
September 25, 2019
DECISION
- This decision determines the Employer’s motion to have the grievances which are GSB File Nos. 2018-3006 (Grievance No 2018-0586-0032, hereafter the “2018 Grievance”) and 2019-0397 (Grievance No. 2019-0586-0011, hereafter the “2019 Grievance”) dismissed on the basis the particulars provided by the Union do not make out a prima facie case.
The 2018 Grievance
The 2018 Grievance alleges the Grievor was subject to harassment and bullying by her manager contrary to the Human Rights Code and the Occupational Health and Safety Act. The grievance was filed on October 30, 2018. The triggering event, discussed further below, occurred on October 23, 2018. The grievance alludes to other events. Some of those events predate the grievance by more than 30 days. The dates of others are not indicated. The particulars provide greater detail with respect to those events. I note that to the extent any of those events predate the grievance by more than 30 days, it is arguable they are relevant, if at all, only for the purposes of establishing the October 23, 2018 was part of a course of conduct.
There was little disagreement on the applicable legal principles.
The test for a no prima facie case motion is set out in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 OGSB minicounsel 125 (Anderson):
3There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 OGSB minicounsel 54, (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.
5The Union notes that in Evangelista, 2011 OGSB minicounsel 83 (Harris) the Board stated that it was not appropriate to weigh the quality of the proposed evidence in determining whether there was a prima facie case: see para. 11. The Union asserts that as a result, for example, I would be required to accept as true the assertion that the moon is made of blue cheese. With respect, I disagree. In Evangelista, the proposed evidence was capable of belief. That is not the case with the Union’s hypothetical example. As I noted in Bharti, 2015 OGSB minicounsel 45 at para. 10:
In Nash v. Ontario (1995), Source decision, 27 O.R (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true.
6The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.
The legal theories advanced by the Union as noted are discrimination, harassment, bullying.
With respect to discrimination, I adopt the following comments from Ontario Public Service Employees Union (Grievor) v Ontario (Ministry of Health), 2019 OGSB minicounsel 114 (Anderson), at para. 39:
The Union’s legal theory is that the Employer has engaged in discrimination as claimed by the Grievor. Discrimination in employment is made out if a clamant establishes three things:
(1) The claimant has a characteristic protected from discrimination under the collective agreement or the Code;
(2) The claimant has experienced adverse treatment with respect to his or her employment; and
(3) The protected characteristic was a factor in the adverse treatment, i.e. a causal nexus between the first two items.
While the burden of proof remains on the claimant through out, because the reasons for the treatment lie within the responding employer’s knowledge, relatively little affirmative evidence is required to establish a prima facie case of discrimination, which gives rise to an “evidential burden” on the employer to provide a response justifying its actions: see Peel Law Association v. Pieters, 2013 ONCA 396, at paras. 55 and 56 and 64 to 74.
- The Union places particular emphasis on the holding in Peel Law Association that relatively little affirmative evidence is required to give rise to an evidential burden on the employer to provide a response justifying its actions. It notes observations in other cases that there is rarely direct evidence of discrimination. Rather discrimination is often subtle and must be proven by circumstantial evidence. It notes in Ontario Public Service Employees Union (Gauntlett) v Ontario (Ministry of Finance), 2008 OGSB minicounsel 53, within the context of a non-suit motion, Arbitrator Gray held:
32… [T]he test must be whether, in the end, one might reasonably infer unlawfully discriminatory motivation from all or some part of the behaviour about which the witnesses testified if all of the evidence they presented about that behaviour and its context is considered to be true and if no evidence is adduced (through those whose behaviour and motivation were in question, or otherwise) to support some other explanation for the behaviour. ….
33The test, then, is only whether discriminatory motivation is a possible explanation of the behaviour described in evidence, having regard to all of that evidence, not whether it is the only possible explanation or the most probable of the possible explanations or more probable than the sum of the probabilities of all other possible explanations or whatever the appropriate test may be when it comes time to weigh the evidence. ….
34This is not to say that an attempt to prove discrimination will survive a non-suit motion on the basis of facts that would create no more than mere suspicion of discrimination even if left unanswered. The difficulty is in distinguishing between “valid inference” and “mere suspicion.” In drawing that line in this context one must consider that the issue concerns the motivation of people for whose conduct the moving party is responsible, whom it is in a position to call as witnesses and who are in the best position to explain why they did what they did.
[Footnotes omitted.]
I accept similar principles apply to a motion for dismissal on the basis of no prima facie case. Assuming the facts alleged by the complainant are true and capable of proof, do they describe conduct which, in the absence of evidence to the contrary, support as a possible inference discriminatory motivation on the part of the persons engaged in that conduct?1 This is simply a restatement of the principles in Peel Law Association, although the reminder that mere suspicion is not sufficient is useful. The obligation of the complainant to particularize a prima facie case of conduct amounting to discrimination by the other person in the first place remains. Unlike the motivation of that person, the actions of which the complainant complains are by definition within his or her knowledge.
If related to an enumerated ground under the Human Rights Code, harassment may constitute a form of discrimination: Janzen v. Platy Enterprises Ltd., 1989 SCC minicounsel 49, [1989] 1 SCR 1252, cited in Cara Operations Ltd. v. Teamsters, Local 647, Source decision, 2005 CarswellOnt 7614, [2005] OLAA No. 302, 141 LAC (4th) 266 (Luborsky). To constitute discrimination in employment, the impugned conduct must not only engage an enumerated ground under the Code, it must also constitute a barrier to the person’s employment. As stated in Janzen at p. 375 (quoted in Cara Operations at para. 19):
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment.
[Emphasis supplied.]
- While not argued before me, it appears to me this distinction is well reflected in the jurisprudence of the British Columbia Human Rights Tribunal, which has adopted the following statement from Brito v. Affordable Housing Societies and another, 2017 BCHRT 270 (at para. 41):
However, not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code. It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code. In performing this function, the Tribunal is cognizant that the disputes brought to it arise between human beings, with all the imperfection that entails. Not every failure to be kind or professional requires state intervention. This includes failures with discriminatory overtones – and therefore highlights a distinction between comments that may be “discriminatory” in the everyday sense of that word, and comments that amount to discrimination, within the meaning and scope of human rights legislation.
Harassment may also be a breach of Article 3.3 of the collective agreement or the Occupational Health and Safety Act (“OHSA”).
Broadly stated, the Employer’s obligation under the OHSA with respect to harassment is to have a written policy which meets certain specified criteria and a written program for its implementation. There is no allegation in this case that the Employer has failed to meet this obligation. The OHSA also protects a worker from reprisal for engaging his or her employer’s harassment policy. The Union does allege reprisal in relation the Grievor. But it relates not to exercising rights under the OHSA, but rather the Grievor’s prior use of the grievance process under the collective agreement, and more particularly to the MOS which was the product of that prior grievance. That issue is the subject matter of the 2019 grievance.
Article 3.3 of the collective agreement provides:
The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.
For the purposes of this decision at least, this definition is not materially different from the definition of harassment contained under the OHSA.
Whether Code based or not, harassment or bullying is concerned with conduct, comment or other action. The question is not whether a complainant believed she was the subject of bullying or harassment. The question is whether a reasonable person, informed of all relevant facts, would conclude the impugned behaviour would constitute harassment or bullying if the perpetrator knew or ought reasonably to have known that it was unwelcome: Grievor at para. 48; Cara Operations Ltd. at para. 17 - 20; and Kinark Child & Family Services, Syl Apps Youth Centre v. Ontario Public Service Employees Union, Local 213, Source decision (Marcotte) pp. 15-17. See also Gauntlett at paras. 18 - 20, holding that statements of belief by the grievor and others as to the motivations of members of management were to be given no weight on a non-suit motion.
The Union argues the objective test must be applied from the perspective of a person in the position of the Grievor. I do not find this embellishment of the test useful. On the one hand, the reference to “perspective” suggests the subjective view of the Grievor is relevant at the stage of determining whether or not bullying or harassment has occurred. It is not. On the other, the need to consider the “position of the Grievor” is captured by the requirement to consider all relevant facts. For example, in this case I have borne in mind the fact the Grievor is of the Jewish faith in assessing whether comments about Yom Kippur and Hanukah constituted bullying, harassment or discrimination.
The objective test for harassment is reflected in the following comment by Arbitrator Misra in Ontario Public Service Employees Union (Cross et al.) v Ontario (Ministry of Community Safety and Correctional Services), 2015 OGSB minicounsel 124, at para. 46:
The arbitrator in [UFCW Local 1518 v. 55369 BC Ltd., 2007 CarswellBC 3880 (D.L. Larson)] noted that harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering, intimidation or bullying that causes a person distress that is inimical to a safe and positive work environment (para. 31). The exercise of normal management rights does not excuse harassment, and giving directions, evaluating performance and disciplining employees should not be considered harassment in the normal course of events provided that such activities are not carried out in a manner that is abusive, demeaning or hostile, and has a legitimate workplace purpose (para. 33). Not every “employment bruise” should be treated as harassment, and Arbitrator Larson noted that it would be unfortunate if a harassment process was “used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred” (para. 34).
With these principles in mind, I turn to the Union’s particulars.
The Union alleges a course or pattern of conduct amounting to harassment as a result of the combined effect of intrusive questioning, withholding of workplace benefits, unpleasant innuendo with respect to odours near the Grievor’s work area and “serious insensitivity” with respect to the Grievor’s religious observances. Most of this conduct is attributed to the Grievor’s immediate supervisor, Louise Greco.
The withholding of workplace benefits appears to relate to three items: the Grievor’s “non-standard work placement”; the handling of the Grievor’s request for a compressed work week; and the handling of the Grievor’s request for an allocation of time to deal with administrative tasks. None of this is referenced in the 2018 Grievance. Rather, these issues are part of the focus of the 2019 Grievance. Given the view I take of the 2019 Grievance, I will not discuss them further at this time.
The allegedly intrusive questioning relates to a “Take Your Kid to Work Day” (“TYKTWD”) event. I note that this is the incident which gave rise to the 2018 Grievance. The particulars allege the Grievor had signed up for this event and had obtained approval to take an unpaid day off so that she might attend this event with her 14 year old son. Three weeks prior to the event, Louise approached the Grievor and informed her that the TYKTWD event was selective and not every family which signed up could participate. The particulars allege this was not the Grievor’s experience and she believed that Louise was attempting to prevent her from participating. Louise also told the Grievor that parents did not typically accompany children to the TYKTWD event and that it was a workshop for children only. When the Grievor advised Louise that she planned to attend and that it would be difficult for her son to travel to the event on his own, Louise told the Grievor she would check with another supervisor, Antonella. The next morning the Grievor complained to yet another supervisor, Joan, about the interaction. Later that morning, Louise approached the Grievor and requested that she come to Louise’s office. Louise was upset, red in the face and spoke in an angry tone. The Grievor asked if she needed Union representation and Louise responded no. The particulars continue:
The Grievor accompanied Louise to her office.
In her office Louise informed the Grievor that Joan had spoken to her about their conversation that morning. Louise told her that she had misunderstood her the prior day, and that she had intended to convey that she was checking with Antonella about the nature of the event. The Grievor does not believe that she misunderstood, and believes that Louise was attempted to discourage her from attending the event.
Louise informed the Grievor that when she managed in a different department things were done differently.
The Grievor informed Louise that she had an approved day off, and she would not be at her desk on that day, and that regardless of how they did things at her former department that the Grievor and her son would attend TYKTWD together.
Louise asked the Grievor is everything was ok. The Grievor replied that it was not. The Grievor informed Louse that while she was trying to build a positive working relationship, that Louise was not assisting or doing her part. The Grievor informed Louise that she was unprofessional, insensitive and offensive.
Louise requested that the Grievor leave and return with a Union representative.
Soon after this, Louise sent the Grievor an email complaining of her “aggressiveness” and characterizing their next meeting as an “allegation meeting”.
There was a meeting set for November 16. The Grievor was represented by a steward. Louise accused the Grievor of being aggressive, saying rude things and leaning toward her. This culminated in a letter of counsel, dated December 10. The sole investigator of this issue was Louise.
I note any grievance related to the letter of counsel is not before me, accordingly I refrain from commenting on the Grievor’s behaviour during the meeting in Louise’s office.
On the particulars, the only question which Louise asked the Grievor was whether she was OK during the meeting in Louise’s office. Within the context, this was entirely reasonable. It cannot, in any event, be characterized as intrusive. For the most part, what is described is an attempt by Louise to provide the Grievor with information about the event. There is no suggestion the information provided by Louise was inaccurate, let alone deliberately so. The fact the Grievor’s past experience may have been different does not make the information offered by Louise inaccurate. There is no objective basis for the Grievor’s belief that Louise was attempting to prevent her from participating.
The particulars with respect to the alleged innuendo are as follows:
On multiple occasions Louise stood near or around the Grievor’s cubicle and commented that something “smelled”. On one occasion Louise brought out an air purifier, dragged it noisily down the aisle and plugged it in around the Grievor’s work area. This attracted attention from the Grievor’s colleagues and she felt embarrassed.
The fact the Grievor “felt embarrassed” does not, in itself, constitute evidence of harassment or discrimination. It is not clear whether any such “smell” could be associated with the Grievor. It is not possible to infer anything from Louise’s comment that something “smelled”. It is not clear whether or not something did in fact “smell” in the area near or around the Grievor’s cubicle or whether the comment would some how be associated with the Grievor. There are insufficient particulars to infer for example that it was a statement directed at the Grievor or some sort of derogatory euphemism for the Grievor, rather than a statement of fact independent of the Grievor. The act of dragging an air purifier down the aisle and plugging it in around the Grievor’s work area is not in and of itself harassment.
There is no suggestion that any of the foregoing conduct was directed at the Grievor based on any enumerated ground under the Code.
The alleged insensitivity with respect to the Grievor’s religious observances is particularized as follows:
On or around September 6, 2018, the Grievor requested that she be provided with days for religious observance. Louise wrote back inquiring about which “holiday” the Grievor’s observance was respecting. The Grievor disliked the term “holiday” and felt it trivialized her religious observance. The Grievor nonetheless provided the information.
The Grievor noted that while Louise’s question about the “holiday” came very quickly (within minutes) of the request, after she answered the question three hours went by without a response.
After three hours the Grievor wrote to inform Louise that she was assigned to training she wished to attend, and felt that she could adequately perform her religious observance during the training. Louise did not respond to this until the following day.
On or around September 14, the Grievor and Louise discussed this. Louise indicated that she did not “have a list of religious holidays in her pocket.” The Grievor informed Louise that it was a holy day, like Eid. Louise responded “what’s Eid?”
The Grievor also requested a religious observance day for December 3. She indicated that this was for Hanukah. Louise referred to this as “candle lighting day.” The Grievor felt this was disrespectful.
The fact the Grievor “disliked” the term “holiday”, and “felt it trivialized” her religious observance, or “felt” that Louise’s reference to Hanukah as “candle lighting day” was “disrespectful” does not render Louise’s comments either harassment or discriminatory. There is no plausible objective basis on which those comments could be considered harassment. The mere fact that there are religious references in Louise’s comments does not make them discriminatory. They do not constitute a barrier to the Grievor’s ability to fully, and with dignity participate in the workplace or otherwise detrimentally affect her work environment. There is no prima facie case of discrimination giving rise to an “evidential burden” on the Employer to explain Louise’s motivation in making the comments. To suggest otherwise trivializes the concept of discrimination.
Accordingly, the 2018 Grievance is dismissed.
The 2019 Grievance
The 2019 Grievance alleges discrimination, reprisal and bad faith on the part of the Employer in relation to the exercise of management rights and or implementation of the terms of the Minutes of Settlement (“MOS”) concluded by the parties under GSB File No. 2017-0054 on May 16, 2018. It was filed on January 31, 2019. The triggering event for the filing of the 2019 Grievance appears to be the termination of the Grievor’s employment on January 8, 2019 on the end of a fixed term contract she was provided with pursuant to the MOS. The position was as an ODSP Caseworker. During the term of that contract, the Grievor applied for a permanent full time position as an ODSP Caseworker. She was unsuccessful in that competition. The Grievor filed a separate grievance with respect to that competition, which is being heard with those filed by other unsuccessful applicants.
The particulars provided with respect to the 2019 Grievance include the following assertions:
In or around November 2018 the Grievor applied for a permanent full time position as a Caseworker. The Grievor prepared diligently for this position. She was not successful in this position, although she believes that she was well qualified and performed well in the interview.
The Grievor was informed later, by Patti Redmond, that she was not considered for the job as she had received her contract through a Minutes of Settlement.
The Grievor competed several times for the Caseworker position and was always unsuccessful.
The Employer argues that Ms. Redmond’s alleged statement is irrelevant because the MOS contains an “entire agreement” clause, which provides the MOS “supersedes any and all prior oral or written agreements, arrangements or understandings between them.” This argument is not persuasive. The MOS was entered into on May 16, 2018. Ms. Redmond is not alleged to have made the statement prior to that date, but rather “later” than “in or around November, 2018”.
The Employer denies Ms. Redmond made the alleged statement. This may well be what the evidence will establish, but it is irrelevant for the purposes of the Employer’s motion to dismiss for no prima facie case. For the purposes of that motion, I am required to accept the factual allegation as true.
I am of the view that the particulars with respect to the 2019 Grievance, if true, could result in a finding of a breach of the collective agreement. Given this conclusion, I do not consider it appropriate to comment further on them at this time.
Conclusion
For the reasons given, the 2018 Grievance is dismissed for failing to make out a prima facie case. I am not prepared to strike the 2019 Grievance on that basis.
Accordingly, the 2019 Grievance (Board File No. 2019-0397) is to be set down for a hearing. As it appears to allege bad faith, if not a breach of the MOS which was the subject matter of Board File No. 2017-0054, that matter shall be listed to be heard with it.
Finally, I note the Union provided the Employer with a combined set of particulars in relation to the 2018 Grievance and the 2019 Grievance. The following paragraphs of those particulars appear to be arguably related to the 2019 Grievance: paras. 1 - 15, 38 - 48 and 50. The remainder of the paragraphs relate to the 2018 Grievance and are struck.
Dated at Toronto, Ontario, this 6th day of December, 2019.