GSB# 2014-3302; 2014-5003; 2015-0855; 2015-3074; 2016-0998; 2016-0999; 2017-0219; 2017-0221; 2017-0222; 2017-0223; 2017-0224; 2017-0225; 2017-0226; 2017-1808; 2017-1845; 2017-1846

UNION# 2014-0542-0018; 2014-0542-0028; 2015-0542-0007; 2016-0542-0003; 2016-0542-0012; 2016-0542-0013; 2015-0542-0021; 2015-0542-0023; 2016-0542-0015; 2016-0542-0016; 2016-0542-0017; 2016-0542-0018; 2016-0542-0019; 2017-0542-0007; 2017-0542-0005; 2017-0542-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lupiani)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 6, 2019

DECISION

1The Board is seized with some 16 grievances filed by Ms. Nancy Lupiani. Very generally described for purposes of this decision, the grievances allege harassment, discrimination, bullying and reprisal by several members of management, as well as other Ministry staff.

2The Board first convened to deal with these grievances on March 21, 2015. Subsequently, the Board convened on 12 additional dates, but the hearing itself did not commence. Those dates were spent by the parties discussing settlement, or dealing with preliminary issues relating to disclosure and process. The Board issued a number of decisions determining disputes that were not resolved.

3On January 24, 2019, the hearing finally commenced with the parties presenting opening statements. On January 31, 2019, the union commenced its case and the grievor’s examination-in-chief was completed. Her cross-examination was to commence on February 6, 2019. Employer counsel had given notice that Mr. Brent Swain, Field Services Manager, who had previously attended only on January 24, 2019, would be attending the hearing on February 6, 2019. The union objected to Mr. Swain’s presence during the grievor’s testimony, and notified that a motion would be made that the Board exclude Mr. Swain during the grievor’s testimony. This decision relates to that motion, which was argued on February 6, 2019.

Union submissions

4Union counsel emphasized that the exclusion is requested as an accommodation due to the grievor’s disability. Reference was made to a medical questionnaire which was filled out by the grievor’s family physician (herein after “Dr. H”) on June 24, 2015, at the employer’s request. It included the following:

Question

Ms. Lupiani had expressed initially that she wished to only communicate with her manager via email, and subsequently requested that she not have to report to her manager at all. Are there any medical limitations and restrictions (that) prevent her from working and communicating (in written or verbal format) with her manager to direct her work duties, address workplace issues, scheduling, and addressing her performance.

Dr. H’s response

Yes there need to be restrictions. Ms. Lupiani feels overwhelmed in dealing with her immediate manager. Written and/or email communications are less stressful for Ms. Lupiani and will help her to focus on what is being asked of her. Other reporting mechanisms, with for example another manager, would likely reduce this stress for her.

5In response to a question whether the restrictions, if any, are permanent or temporary, Dr. H wrote; “I do not believe that these limitations are permanent, but are likely to persist for an indeterminate amount of time. There appears to be a particular issue in this specific manager-employee relationship that may not be resolvable”.

6The manager referred to above is Mr. Swain. Counsel noted that not long after, the grievor was transferred away from Mr. Swain’s area, and since then the grievor was not required to deal with him. Then at the hearing on January 24, 2019, after over 3 years, the grievor saw Mr. Swain again when he attended the hearing for the opening statements.

7Counsel stated that the day after that, the grievor saw Dr. H. A letter dated January 25, 2019 from Dr. H was submitted in evidence. It reads:

This is a medical letter with reference to the Grievance process you are going through.

You came to see me today in this regard. Mr. Swain, your previous supervisor, was present yesterday at the GSB Board meeting. This ‘triggered’ your anxiety with palpitations, sweating and jitteriness. This persisted overnight for you, which made it nearly impossible for you to sleep. This AM, you said that you were having trouble concentrating, such as while driving to today’s medical appointment.

You have asked for accommodation during your testimony, in that you would feel safer and less threatened, were you able to testify without Mr. Swain being immediately present.

I would support this request on medical grounds and ask that this be taken into consideration by the Board. I feel that this would reduce the risk of your having anxiety or panic attacks and would improve your ability to stay focused on giving your testimony.

8Counsel pointed out that having attended on January 24, 2019, Mr. Swain did not attend for the grievor’s evidence-in-chief. When notified that Mr. Swain would be attending on February 6, 2019 for the grievor’s cross-examination, on February 5th the grievor saw Dr. H, and expressed her concerns. Dr. H provided her with the following medical note, together with his previous letter.

You have come to see me today, prior to your being cross-examined tomorrow and have had a flare of your anxiety symptoms similar to those above.

I would reiterate what I’ve medically indicated above to explicitly include the request that Mr. Swain not be present in any way during your cross-examination, or other presentations/testimony you may be asked to give at the Board.

9Union counsel noted that Dr. H refers to his earlier medical dated January 25, 2019 and reiterates that it includes “the request that Mr. Swain not be present in any way during your cross-examination, or other representations/testimony you may be asked to give at the Board”. Counsel submitted that Dr. H uses very “forceful” language in this letter. He is not talking about the normal stress and anxiety experienced by witnesses on the stand. It is about the flaring up of those symptoms due to Mr. Swain’s presence.

10Union counsel submitted that the Board not only has jurisdiction, but is required to accommodate the grievor’s medically supported restrictions during proceedings. He also submitted that there must be procedural fairness. There would be no procedural fairness to the grievor if she is forced to testify under increased stress and anxiety due to Mr. Swain’s presence. The grievor’s request for accommodation is reasonable. She is not seeking perfect or preferred conditions. She is not requesting that Mr. Swain be excluded from the hearing altogether. The request is limited to the period when she is testifying.

Employer Submissions

11Employer counsel stated that the employer does not concede that the Board has a legal duty to accommodate the grievor to the point of undue hardship, in the same manner as employers. However, that need not be decided by the Board since the employer agrees that the Board has jurisdiction to exclude anyone from the hearing in appropriate circumstances, including where it is satisfied that exclusion is required to accommodate a witness’ medical restrictions. The employer’s position was that this was not such a case because the medical evidence is insufficient to support the accommodation sought.

12Counsel pointed out that this is a “fact heavy” case. The grievor’s “will say” evidence consists of 461 paragraphs. She makes numerous allegations. Counsel estimated that about half of those allegations are against Mr. Swain. Only Mr. Swain would have any personal knowledge of the events and interaction alleged by the grievor.

13Counsel explained that Mr. Swain did not attend on any of the early hearing dates because he was not instructing or advising counsel on any of the process/procedural issues, or on settlement. He did not attend for the grievor’s testimony-in-chief because the bulk of her evidence had been provided to the employer in advance by way of her “will say” statements. Her viva voce evidence was largely about the impact of the alleged employer conduct on her. Mr. Swain obviously would not be able to advise on that either.

14However, in cross-examination the employer would be denying most of the allegations made by the grievor. Mr. Swain is entitled to hear the cross-examination relating to allegations against him in order to be able to respond. To deny him that right would severely prejudice the employer’s ability to defend against the allegations. Employer counsel submitted that in order to justify such drastic action, the grievor must present clear and strong medical evidence to establish that Mr. Swain’s mere presence in the hearing room would inhibit her ability to recall events and testify about the alleged facts. The two medical letters dated January 25 and February 5, 2019 do not demonstrate that. They merely state that Mr. Swain’s absence in the hearing would “reduce” the risk of an anxiety or panic attack, and “improve” her ability to stay focussed. These are recommendations by Dr. H to facilitate better conditions for the grievor during her testimony; not an opinion that she has a medical restriction that prevents her from testifying in the presence of Mr. Swain. Counsel argued that any witness would benefit from “luxury conditions” that would enable better recall and focus. That does not meet the test to trigger a duty to accommodate.

15Counsel submitted that the symptoms allegedly experienced by the grievor due to Mr. Swain’s presence during opening statements and his expressed intention to be present during the grievor’s testimony set out by Dr. H are based solely on the grievor’s self-reporting. Counsel submitted that the Board should not place any restriction on Mr. Swain’s right to attend these proceedings. Counsel assured that if allowed to remain in the room Mr. Swain would not be speaking or interjecting in any way.

16In the alternative, counsel submitted that, if the Board concludes that the grievor deserves some accommodation, one that minimizes prejudice to the employer should be ordered. Counsel suggested that if the Board finds that Dr. H made a medical conclusion that the grievor has a restriction that must be accommodated by Mr. Swain not being present during the grievor’s testimony, that would be achieved if Mr. Swain is excluded from the hearing room, but allowed to follow proceedings simultaneously in another room by live video/audio feed. Counsel noted that the Board’s Rules of Procedure contemplates use of video/audio feeds in its proceedings. He submitted that Mr. Swain’s presence in another location cannot possibly have any impact on the grievor. At the same time, Mr. Swain then would be able to advise counsel as the proceeding proceeds, and prejudice to the employer would be minimized.

Union Reply

17In reply, union counsel submitted that Dr. H was not simply “parroting” the grievor’s self-reporting. Dr. H had been the grievor’s family physician for a long time. As early as June 2015, in response to a question from the employer, Dr. H had documented that the grievor had a restriction; that dealing with Mr. Swain causes the grievor to be stressful, and it affected her ability to focus. He even proposed that the grievor not report to Mr. Swain. Counsel argued that, contrary to employer counsel’s submission, Dr. H in fact explicitly concluded that Mr. Swain should not be in the hearing room while the grievor was testifying. In his letter of February 5, 2019, he wrote that “I’ve medically indicated above to explicitly include the request that Mr. Swain not be present in any way during your cross-examination, or other presentations/testimony you may be asked to give at the Board”. The restriction cannot be any clearer.

18Union counsel also opposed the alternate argument of the employer. He noted that the doctor had written that Mr. Swain be not present “in any way”. He submitted that, therefore, to comply with the medical restriction, Mr. Swain should be excluded altogether. Counsel submitted that if the Board is inclined to agree with the employer`s alternate argument, before issuing its decision the grievor should be allowed to obtain a medical opinion from Dr. H whether that accommodation would be compatible with the restriction he had imposed.

DECISION

19Given the parties’ agreement that the Board has jurisdiction to exclude Mr. Swain, I will not set out or review the authorities submitted on that subject. In addition, I was provided with the following authorities. Re Nitsotolis (GSB) 2013 Carswell Ont 15217 (Nairn) – (Grievor’s request for permission to record proceedings as an accommodation denied); Re Toronto District School Board (2912) 227 L.A.C. (4th) 164 (O’Neil) – (Request by employer that grievor be present at hearing during testimony by certain witnesses only by live video feed denied).

20Whether an individual should be excluded from arbitration proceedings would turn on the circumstances of each case. Here, the Board must first determine whether the grievor is entitled to any accommodation at all in relation to Mr. Swain’s presence during her testimony. I wish to make it clear that at this stage all the Board has before it are allegations made by the grievor against Mr. Swain (and others) which have not been proven. However, it is evident factually that there has been a history of a very strained relationship between the grievor and her then manager, Mr. Swain. The evidence does not support employer counsel’s suggestion that following Mr. Swain’s attendance at the hearing on January 24, 2019, and his notice of intention to attend on February 6, 2019, the grievor misrepresented to Dr. H adverse symptoms which she did not in fact experience. Her claim that interacting with Mr. Swain triggered anxiety and stress was not new. It was reported to Dr. H at least as early as June 2015 and Dr. H has documented it as requiring accommodation on “medical grounds”. Therefore, I find that the Board has no basis to reject Dr. H’s two expert medical opinions.

21The next question is what the appropriate accommodation should be in all of the circumstances. I agree with employer counsel that advice and instructions from Mr. Swain, the target of many of the grievor’s allegations, is important to the employer’s ability to properly defend itself. However, I also find that it is equally important to the union that the grievor be able to testify without the risk of additional stress and anxiety brought on by Mr. Swain’s presence. Therefore, in considering the union’s motion for exclusion of Mr. Swain, the competing interests of the parties must be carefully assessed. There has to be a search for a compromise which minimizes prejudice to each of the parties and accords procedural fairness to both parties to the extent possible.

22In support of his submission that no restriction whatsoever should be placed on Mr. Swain’s ability to attend these proceedings, employer counsel relied on an excerpt from arbitrator O’Neil’s ruling in Toronto District School Board and CUPE Local 4400 (supra) at p. 6. In that case employer counsel requested that the grievor be allowed to be present at the hearing only by live video-feed during the testimony of two witnesses. The basis for the request was that those witnesses had expressed to counsel “great reluctance, anxiety and upset”, because they had made allegations that the grievor behaved inappropriately and made remarks with sexual content, which formed part of the employer’s grounds for discharging the grievor. The arbitrator in denying the request, wrote as follows:

The authorities make clear that, given the quasi-judicial nature of the proceedings, and the importance of the issue at stake in this matter, a duty of fairness is owed to the grievor. However, it is also clear from the cases that he does not have an absolute right to remain in the room during other witnesses’ evidence, and that I have the jurisdiction to make procedural directions which could include the exclusion of the grievor from the hearing room. Nonetheless, it may be reviewable error to exclude a grievor on insufficient grounds, as in Grand Bay-Westfield (Town) v. C.U.P.E., Local 2404, 2006 NBCA 115, [2006] N.B.J. No. 512 (N.B.C.A.) and (2005), 144 L.A.C. (4th) 15 (N.B.Q.B.) especially whereas here, the evidence in question is likely fairly considered central to the case against him. Where exclusion is being considered, the competing interests of the parties must be carefully weighed. If exclusion is ordered, it is to be in a manner that minimally impairs the grievor’s right to hear the evidence against him and instruct counsel. I appreciate that employer counsel’s suggest to use live video-feed is one that would minimize almost to the point of extinction any impairment of the grievor’s right to hear the evidence against him. Nonetheless, such a procedure would still have a substantial impact on the grievor’s right to assist counsel in receiving, and the union in giving, instructions in the hearing in during cross-examination. Moreover, it would not address the traditional idea, endorsed in a number of the authorities, that for adult witnesses with no special need or disability, the giving of evidence in the presence of the person against whom the allegations have been made is most conducive to getting the best, most truthful, evidence. Favouring the reception by the trier of fact of the best evidence must be a central element in the balancing of interests here, and is as important to the employer’s right to prove its case, as it is to the union’s right to defend the grievor. Although there are certain circumstances where it may be presumed or proven that a witness, such as a child, will be inhibited by the presence of a feared person, to the point of inability to recount the facts as they occurred, such facts are not asserted in this case. Nor does the employer assert any other particular grounds for protection of the witnesses, or of any protected right, such as the constitutionally protected right of freedom of religion dealt with in R. v. S. (N.) 2010 ONCA 670 (Ont. C.A.), one of the authorities relied on by the union. (emphasis added)

23I do not find the foregoing supports the employer’s position. First, in that case, the person sought to be excluded was the grievor. Although the grievor may not be a party to the arbitration proceeding in a legal sense, she is not just another witness. A grievor initiates the arbitration by grieving employer conduct, and more importantly the outcome of the proceeding directly impacts her. Therefore, arbitrators would and should not exclude a grievor from any part of the proceeding except in the most extreme circumstances. Even more significantly, arbitrator O’Neil’s observations are explicitly stated to be only about “adult witnesses with no special need or disability”. (see emphasis). The arbitrator was not faced with an individual who is entitled to a medically supported accommodation. In the instant case, the Board has found that the grievor has a medically supported restriction. Therefore, I reject the employer’s primary position.

24I conclude, however, that the employer’s alternate position provides the grievor with a reasonable accommodation of the restriction placed by her doctor. I disagree with union counsel’s interpretation of the words “Mr. Swain not be present in anyway”; that the use of words “in anyway” makes it inappropriate for Mr. Swain to be present by way of video/audio feed. It is very clear that the trigger Dr. H was concerned about was Mr. Swain’s presence in the hearing room during the grievor’s testimony. Thus in the January 25, 2019 medical opinion, the concern expressed was about the grievor’s ability to testify without Mr. Swain being “immediately present”. That in my view is an expression of concern about his physical presence. In the January 25, 2019 letter Dr. H records that the accommodation the grievor asked for was the ability “to testify without Mr. Swain being immediately present”. That was the request Dr. H. supported. This is consistent with previous documentation where the doctor’s concern was about the requirement that the grievor interact or deal with Mr. Swain. If facilities are provided to enable Mr. Swain to listen to and follow proceedings in a location other than the hearing room, there is no need for the grievor and Mr. Swain to interact or deal with each other in any manner. He will not be “present” in the hearing room.

25In my view, such an arrangement fully satisfies the grievor’s medical restriction. At the same time, if at all, it will cause very minimal prejudice to the employer which would be little more than an inconvenience.

26I reject the union’s request that the issuance of this decision be deferred to allow the grievor to consult with Dr. H about the appropriateness of the video/audio arrangement. I have concluded that the doctor has clearly articulated that the restriction is about the grievor’s ability to testifying in the physical presence of Mr. Swain in the hearing room. Even in a case where an employee seeks accommodation from his/her employer, a doctor as a medical expert, determines the restrictions, if any, that apply to the employee. It is not the doctor’s role to determine how the restrictions ought to be accommodated. The employer has to determine the accommodation to be implemented having regard to the restrictions and its obligations under law and the collective agreement. If the employee grieves, it falls upon an arbitrator to determine whether the accommodation in question is in compliance with the law and the collective agreement having regard to the restriction(s) imposed by the doctor. The doctor has no input into the decision-making by the arbitrator. The same is true in the present case. The grievor’s doctor, having set out the restrictions, has no role in this Board’s decision-making. The suggestion that the Board await the doctor’s approval of its decision is novel but has absolutely no merit.

27It is therefore ordered as follows:

1. Mr. Swain shall not appear in the hearing room during the grievor’s cross-examination, re-direct examination, and any other testimony by her.

2. The Registrar of the Board shall make arrangements for a live video and audio feed in a room other than the hearing room in the same building, for use by Mr. Swain during testimony by the grievor in this proceeding, and provide notice to the parties of such arrangements with location date(s) and time, in advance of the hearing dates in question.

3. To enable the Board to make such arrangements, employer and union counsel are directed to consult with each other, and inform the Registrar of the date(s) and time(s) when the live video/audio feed would be required in compliance with this decision. This information should be provided at least seven working days in advance of the day or days in question.

28The Board remains seized and this proceeding will continue on the dates scheduled.