GSB#2017-1413

UNION#2017-0584-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cooper)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Allison Vanek Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 1, 2019

Decision

1The grievance before me alleges failure to accommodate and harassment. By decision dated May 1, 2018, I issued certain case management directions. Of particular note, the Union was directed to:

file full written representations which shall include: a statement of all issues which the Union intends to raise; the remedies it seeks; and full particulars in support of its positions. The Union’s representations shall be accompanied by declarations from each of its intended witnesses and the documents on which it intends to rely.

The May 1, 2018 decision also specified that a declaration would constitute, in essence, the evidence in chief of the declarant.

2The Union filed 14 pages of representations, a 75 page single spaced declaration from the Grievor and 100s of pages of exhibits. Those materials refer to events which the Grievor considered to have been harassing and bullying incidents dating back to 2008.

3The Employer moves to have many of the Union’s particulars struck on the basis that they pre-date the grievance by more than three years, lack sufficient particularity or both. This decision determines that motion.

4The Employer starts from the basic principle that grievances are to be filed promptly and in accordance with the time limits in the collective agreement. It notes that when the grievance alleges harassment, the GSB has permitted the union to lead evidence of earlier events in order to prove a pattern of harassment. At the same time, the GSB has generally limited such evidence to the three years before the grievance so that the employer will be able to defend itself. This has become known as the “three year rule”. The “rule” is not really a rule but rather a guideline which is flexibly applied depending on the circumstances of a particular case. The Employer relies on the following statement in Ontario Public Service Employees Union (Akintunde) v Ontario (Community Safety and Correctional Services), 2018 OGSB minicounsel 59, (Watters):

In deciding whether, and how, to apply the rule, the Board has considered the following matters:

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

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

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

5The Employer argues that application of those three factors to this case, as detailed in the Union’s particulars, provides no basis for departing from a three year limitation on earlier evidence. With respect to awareness of rights, the Grievor had complained to managers and/or the Ministry of Labour at the time of many of the earlier events which he now seeks to rely. That is, he considered those events to have been improper at the time they occurred and voiced concerns. The Grievor was specifically aware of his right to grieve, having previously done so with respect to an unrelated matter. With respect to whether the hearing would be unduly protracted, approximately nine of the fourteen pages of particulars relate to events which predate the grievance by more than three years. A number of additional witnesses would be required if the Union were permitted to lead evidence with respect to these earlier events. With respect to equitable and procedural concerns, the Employer argues that most of the Union’s particulars are not about harassment at all, and thus do not attract the three year rule. Rather, the case is principally about accommodation and to a lesser extent health and safety. Further, to the extent the case is about harassment, the allegations are of overt harassment, not the kind of subtle behaviour which may be recognizable as harassment only when viewed within the context of a longstanding pattern of behaviour. It is the difficulty of proving the latter type of conduct which gave rise to the three year rule: Hotel-Dieu Grace Hospital v. ONA, (1997) Source decision, 62 LAC (4th) 164 (Picher). Reference was also made to Ontario Public Service Employees Union (Calder) v Ontario (Community Safety and Correctional Services), 2017 OGSB minicounsel 126 (Wacyk).

6The Employer also identified certain paragraphs of the Union’s particulars as being insufficiently particularized.

7The Union notes the Grievor alleges harassment at the hands of numerous individuals since his transfer to the South Peel Region in 2008. This led the Grievor to experience anxiety and depression and post traumatic stress disorder. Ultimately, in October 24, 2014, the Grievor had to go off on sick leave as a result. When the Grievor’s short term disability and long term disability benefits came to an end, he attempted to return to work. The Grievor alleges the Employer failed to accommodate him which exacerbated the harassment he had experienced. The Grievor also alleges that there was ongoing harassment through out his attempts to return to work.

8Counsel for the Union drew my attention to the decision of Arbitrator Bendel in OPSEU (Lee) v. George Brown College of Applied Arts and Technology, 2106 CarswellOnt 14658, [2016] OLAA No. 77, 128 CLAS 260 in which Arbitrator Bendel took issue with the three year rule, characterizing it is a mechanism by which otherwise relevant evidence is excluded, and arguing that an arbitrator has no discretion to exclude such evidence. Counsel acknowledged that Arbitrator Bendel’s decision is not a decision of the GSB. She referred to it only to highlight the “seriousness” of what the Employer was seeking through the imposition of the three year rule. In these circumstances I do not find it necessary or advisable to comment further on Arbitrator Bendel’s decision.

9The Union argues that restricting the evidence with respect to harassment to the period of three years prior to the date of the grievance would eliminate all evidence of harassment other than during the three month period before the Grievor commenced sick leave in October 2014. This is an insufficient period of time to permit the establishment of a pattern of harassment. Such an extended period of sick leave is the kind of special circumstance which caused Arbitrator Leighton to extend the three year period in Ontario Public Service Employees Union (Lunan) v Ontario (Labour), 2015 OGSB minicounsel 95.

10With respect to the first factor discussed by the Employer, awareness of rights, the Union argues that the Grievor’s failure to previously file a grievance reflects the fact that various Local Union officials, including the then Local president were among those he alleges harassed him. Only at a later point did he realize he could file a grievance directly with the Union. With respect to the second, impact on the hearing, the Union argues there is no suggestion that any of the additional witnesses are not available to the Employer. Further, the Grievor’s absence on sick leave means that there would be little evidence with respect to harassment for the three year period. The extension of the that period simply offsets this lack of evidence. With respect to equitable and procedural, the Union notes the Grievor’s absence on sick leave for much of the three years. Reference was also made to Ontario Public Service Employees Union (Patterson) v. Ontario (Ministry of Public Safety and Security), 2003 OGSB minicounsel 141 (Leighton) and Ontario Public Service Employees Union (O’Brien) v. Ontario (Community Safety and Correctional Services), 2011 OGSB minicounsel 7 (Leighton).

11As argued by the Employer, the “three year rule” arises from the unique nature of harassment cases. Harassment sometimes can only be seen by viewing incidents within a larger context of a pattern of conduct. Evidence with respect to earlier events may, therefore, be relevant to proving that the incident (or incidents) which gave rise to a grievance constitute harassment. The three year rule is directed to how far back in time the Union may go in adducing such evidence. The “exceptions” to the rule may be understood in part as ensuring that probative relevant evidence not be excluded on the basis of the application of an arbitrary time limit.

12The 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. Further, to the extent that evidence with respect to earlier events is relevant, the three year rule does not provide a basis for granting a remedy with respect to those events per se.

13In this case, the grievance is dated July 31, 2017. The Grievor was not in the workplace at the time, having left on sick leave on October 24, 2014 and not returned. The particulars in relation to 2017 are with respect to attempts to accommodate the Grievor in returning to work. These are the only allegations which fall anywhere in the proximity of the time limits for filing a grievance. The question is whether the allegations of harassment which pre-date 2017 are relevant to the grievance.

14The Union argues that they are relevant to understanding why the Grievor was off on sick leave in the first place. The Grievor would not have needed to be accommodated but for the Employer’s failure to provide a safe workplace free from harassment. I do not accept this argument. The Employer’s duty to accommodate arises from the existence of a disability at the time the accommodation request is being considered, not the reason for that disability.

15The Union asserts that the Employer’s failure to accommodate has lasted for over two years and that this is unduly protracted. The unduly protracted nature of the accommodation process, the Union asserts, is harassment. While conceding that some of the alleged harassment which pre-dates the Grievor’s sick leave is not a similar nature, the Union asserts that some of it is. In particular, the Union refers to incidents in which managers refused to assist the Grievor or failed to listen to him, such as when he requested a move off night shift or required paper work for his level 3 certification. So, the Union asserts, the Employer’s failure to properly and promptly accommodate the Grievor, is just another instance of the Employer failing to provide the Grievor with assistance when requested to do so.

16I pause to note that I understand the period during which the Union asserts the Employer has failed to accommodate the Grievor to commence in or about February 2017 when the Grievor started receiving communications advising him that his long term disability benefits would be coming to an end as of April 30, 2017 (i.e. the end of the “own occupation” period of disability benefits) and seeking information about his ability to perform other occupations, and continuing up to and including at least January 21, 2019 when the Grievor was advised a temporary position had been identified for him outside OCWA through the Health Assignment Process. While most of these events post date the grievance, as noted in the June 29, 2018 case management decision, the parties had agreed that I would have jurisdiction to deal with the Grievor’s allegation of a continuing course of conduct since he filed the grievance. (I would also note that in order for the Employer to know the case which it has to meet, there has to be some defined end point to the Union’s evidence. Absent some further agreement by the parties, that end point is the date of the Grievor’s declaration, that is March 1, 2019.)

17Because of the process adopted in this case, I am able to assess the relevance of the particulars which the Employer seeks to strike by reference to what would be in essence the Union’s entire case in chief were those particulars permitted to stay. Having carefully reviewed the Union’s particulars and the Grievor’s declaration, it is not apparent to me how the events which pre-date 2017 would be relevant to proving the events which post date 2017 constitute harassment. The earlier events relate to very different issues, not accommodation. Further, there is no overlap between those involved in the accommodation process and those involved in the earlier incidents.

18By contrast, the events during the period February 2017 to March 2019 all relate to the accommodation process. To the extent the Grievor asserts the Employer’s actions during this period constituted a subtle form of harassment arising from a course of conduct, the period is of sufficient length for the Union to attempt to prove its case.

19The Employer, however, did not object to all particulars which pre-dated February 2017. Rather it objected to all particulars which pre-dated the grievance by more than three years. The Union, therefore, has not had an opportunity to make submissions with respect to the relevance of particulars with respect to the events from October 2014 to February 2017. Accordingly, prior to deciding whether to strike those particulars, the Union shall have the opportunity to make such further submissions as it may wish to make. Any such submissions shall be filed in writing no later than May 24, 2019. The Employer shall have until May 31, 2019 to file any submissions in reply.