GSB# 2017-0441; 2017-1396; 2017-1397; 2017-1399; 2017-1401

UNION# 2017-0302-0043; 2017-0302-0057; 2017-0302-0058; 2017-0302-0060; 2017-0302-0062

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Flaherty)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Gordon F. Luborsky

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 4, 2020

DECISION

1The background to this dispute is set out in my preliminary Decision dated October 24, 2018 [reported at 2018 CanLII 109253 (ON GSB)], which need only be summarized generally.

2The Union originally filed seven grievances before the Grievance Settlement Board (hereinafter “Board” or “GSB”), withdrawing one, thereby leaving six for adjudication. In broad terms they all allege violations of the Employer’s obligations under the collective agreement and occupational health and safety legislation to take all reasonable steps to ensure a safe working environment for the Grievor, who is a Probationary Officer employed at the Ajax-Pickering Probation and Parole Office.

3In my earlier preliminary Decision, I addressed a number of challenges by the Employer to the Union’s statement of particulars and the remedies demanded in relation to the first of these grievances (“Grievance No. 1”). Those challenges consisted of three types: claims that some of the particulars referred to assertions of fact that occurred more than three-years prior to the date of the grievance (contrary to the Board’s “three-year rule”); that a number of the allegations went beyond the scope of the grievances; and some of the requested remedies were of a general or policy nature as opposed to the Grievor’s individual interests. Based on my ultimate determination of those challenges, I directed the parties (in para. 45) to “review the written objections raised by the Employer to the additional particulars (and demanded remedies) filed in the course of these proceedings, with a view to resolving those objections having regard to my determinations on the application of the Board’s three-year rule and the proper scope and/or expansion of each grievance, as may be applicable to all of those grievances.”

4The parties have for the most part been successful in that endeavour, leaving only four disputes concerning the remaining particulars for adjudication. The issue in all of those is whether the Union’s particulars go beyond the scope of the specific grievance under consideration. Referring to my earlier review of the applicable legal principles at paras. 25 – 28 in the preliminary Decision, the Employer argues that the challenged particulars must be struck because they represent an improper expansion of the applicable grievance contrary to the Board’s practices (referred to in OPSEU (Brown-Bryce et al) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2014-1158 (2016) (Dissanayake) and OPSEU (Laderoute) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2014-0029 (2018) (Gee). In response, the Union relies primarily upon the Ontario Court of Appeal’s decision in Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486, standing for the proposition that grievances, “should not be won or lost on the technicality of form” (per Brooke J. A. at para. 10) but rather “should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions” (at para. 11).

5As noted at para. 28 in the preliminary Decision, in considering the authorities referenced by the parties I was influenced by the observations of Arbitrator Rayner in Re Electrohome Ltd. and I.B.E.W., Loc. 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Ont. Arb.), who wrote the following at p. 82 in reconciling or balancing a flexible approach with the expectation that parties must be held to the substance of a dispute as expressed in the submission of the grievance to arbitration:

Although the value in maintaining a flexible approach to grievances filed before a board of arbitration is readily apparent in so far as the parties are not operating under the same rules of practice that would guide counsel in normal litigation, there is another value that must be kept in mind. The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

[Emphasis added]

6Applying the foregoing balancing process, I have assessed each of the remaining disputes between the parties on the question of whether the particulars submitted by the Union are beyond the scope of the specific grievance at issue, for the brief reasons set out below:

Grievance No. 2 (regarding providing clarity re: prohibited items): Para. 63 – Employer’s failure to require offenders to be searched.

7Grievance No. 2 (2017-0302-0057) dated June 22, 2017, alleges that:

The Employer has violated articles 2, 9 and any other relevant articles for failing to provide clarity with respect to prohibited items (primarily what constitutes a coat, but not limited to that) entering the service area of the office. Failure to comply with policy. Failure to provide lockers that work.

8The “settlement desired” on the grievance form is:

To be made whole including but not limited to clarity with specific examples provided concerning “coats” etc. To have the specific underlying reason why they are identified. To state something to the effect “to remove the possibility of hiding weapons” is insufficient as this Employer is aware of how weapons may be concealed.

9In connection with the above grievance and remedial request, para. 63 of the Union’s particulars states:

60. The Grievor takes the position that an “active and dynamic” control to prevent weapons from entering the office would require that all P&P [“Probation and Parole”] clients be searched for weapons prior to entering secure areas of the office. The current system places the obligation, and near-absolute trust with offenders to comply with passive means (i.e. signage) to place bags, coats and belongings which may include hidden weapons into lockers. Clients should be searched for weapons prior to entering the secure area. The current setup poses an unacceptable risk to the health and safety of P&P staff. As it stands, if an offender has a weapon, workers must defend themselves or come to the aid of a co-worker.

10In my opinion, these particulars expand the scope of Grievance No. 2 beyond what is reasonably contemplated or incorporated within a broad reading of the words used on the grievance form. A plain reading of those words supports the conclusion that the Grievor is challenging the “clarity” surrounding the identification of specific items that are prohibited from the Grievor’s working area, with emphasis on a better or clearer definition of what constitutes a “coat” and like items (implied by the term “etc.”) from that list. The focus of the particulars in para. 63 is the alleged obligation of the Employer to physically search clients in an “active and dynamic” manner to prevent the weapons from entering the office; which is beyond seeking mere “clarity” with the identification of the “prohibited items” sought in the grievance.

11Consequently, para. 63 of the particulars must be struck for that reason.

Grievance No. 5 (risks posed by unassessed offenders): Para. 160 – No mechanism to assess collateral contacts.

12Grievance No. 5 (2014-0302-0060) is also dated June 22, 2017. It alleges:

The Employer has violated article 1 (and all other relevant articles) of the collective agreement in failing to identify potential risk to staff by “unknown” or unassessed offenders and failing to take reasonable precautions consistent with similar workplaces. The Employer has failed to develop an assessment tool and train staff / communicate risk to staff as has been done in other similar workplaces (OPP – …).

13As remedy the grievance requests that the Grievor, “be made whole including but not limited to developing an assessment tool to identify risk to staff by offenders.

14The following statement in para. 160 of the Union’s particulars is challenged by the Employer for allegedly being outside the scope of the grievance:

160. Furthermore, there is no mechanism for PPOs [“Probationary and Parole Officers”] to formally assess the potential risk a member of the public (collateral contact) may pose as PPOs have no legal right to conduct any form of investigation on them. PPOs are required to interact with collateral contacts (e.g. family members) as part of their duties, and many of these collateral contacts may be just as, if not more difficult to deal with, and pose just as much, if not more risk of violence than the actual offender. However, PPOs are unable to conduct any form of background check, or to even look a person up who may have a history or record with PPO or MCSCS services. As with offenders, members of the public are treated as posing no risk to staff until specific acts prove otherwise and only then can we respond. This poses a risk to the health and safety of PPOs.

15In my view, Grievance No. 5 is framed to sufficiently encompass the assertions in para. 160 of the Union’s particulars. The essence of the Grievor’s complaint on the grievance form is that unreasonable risk is associated with “unknown” persons or “unassessed offenders” who the Grievor may need to have contact with in the course of performing his duties for the Employer. Such individuals logically may include family members or friends of an offender who is required to report to the Grievor at his P&P office. The Grievor’s complaint that the Employer has allegedly failed to develop “an assessment tool” to appropriately identify such potential dangers would appear to be included among the circumstances broadly subsumed by this grievance. While the references to other workplaces where such policies are in place are not identified in the grievance (which is claimed to support the Grievor’s position on the matter), they are available to the Employer if required.

16Consequently, the Employer’s objection is denied. Paragraph 160 remains within the statement of particulars for Grievance No. 5.

Grievance No. 7 (Employer’s direction to staff re: do not attempt to physically restrain or detain physically assaultive clients): Paras. 201 – 206 – Allegation that managers and supervisors have not completed the PST [“Personal Staff Training”] program).

17This grievance (2017-0302-0062) dated June 27, 2017 is lengthy and the relief sought is wide-ranging. It and the remedies requested are set out in their entirety below:

Statement of Grievance

Policy recognizes that by the nature of the offenders we work with, staff are placed at an increased risk to injury as a result of violence. The employer has created a response to violence that focuses on limiting corporate liability while increasing personal liability and risk to staff. The employer has created a confusing mess of contradictory direction and training to staff that makes the determination of an appropriate and reasonable staff response virtually impossible.

I grieve the employer has knowingly, or ought reasonably to have known, they have violated articles 2, 3, 9 and all other relevant articles of the Collective Agreement, failed to meet their obligations under the Occupational Health and Safety Act, removed staff rights as a citizen under the Criminal Code of Canada by establishing and directing staff response to an offender with a profiled behaviour that is, or is likely to be, assaultive or worse, that it is also contradictory to staff Personal Safety Training [“PST”]. Direction to staff removes and/or limits their rights to defend themselves or to come to the aid of another person to prevent or repel force if assaulted. Direction to staff places us at far greater risk to injury and/or potential personal liability in the event force is required to defend oneself or to come to the aid of another person.

Furthermore, both policy and practice fails to take into consideration the potential physical restrictions a person may have in responding to an offender with a profiled behaviour that is, is or is likely to be assaultive, because they have failed to identify any physical standard consistent with responding to a hostile offender yet still directs staff to go towards the potentially violent situation.

Training identifies that staff’s decision to use for is that of a “citizen” sec. 25 CCC, yet our Officer Safety and Security manual states “Staff shall not attempt to physically restrain or detain any client” and that staff response shall be “controlled, non-physical”. This removes our rights to defend ourselves or to come to the aid of any person who is being, or may be assaulted. Furthermore it also removes our legislated rights under “Citizen’s Arrest and Self Defence Act” to restrain a subject when the Use of Force Management Model also identifies this as an appropriate staff response to limit the damage or injury.

Furthermore, the Safety and Security Manual makes the assumption that the profiled behaviour of the subject will not escalate beyond “Physically Uncooperative” and direction to staff limits what may otherwise be an appropriate response without providing a mitigating alternative to a subject with a profiled behaviour of “Assaultive” or worse.

Furthermore, the Safety and Security Manual identifies that an appropriate staff response with respect to numbers responding, exceeds the minimum number of staff required for the office doors to be open and/or offenders and collaterals to be allowed into the secure area of the office.

Furthermore, the employer has placed senior management in oversight of the risks we face who are incompetent by definition of the OHSA.

Resolution Sought

• Removal of current existing senior MCSCS management or limitations placed on their direct until competent employer representatives can be identified.

• Immediate third party review and implementation of an Interim Ajax-Pickering Probation and Parole response to an Assaultive (or worse) offender and/or other party pending a Ministry wide review of policy and training.

• Immediate armed security officer with appropriate training and ability to respond to an Assaultive (or worse) offender and/or other party until the direction to staff is clarified appropriately.

• That there be clarity with respect that there is an expectation for staff to physically intervene to aid another person.

• Determination of physical standards and expectation of staff so that restrictions can be identified in the event an accommodation is required to determine the appropriate staff response with respect to potential duties or roles.

• Creation of a Use of Force Management Model for Community Corrections that realistically represents how we interact with ourselves, the public and offenders and more accurately reflects the limitations the employer has placed on staff or the removal of those limitations and new policy and training developed to address such.

• A new policy is developed that addresses the removal of our rights as a citizens (sic) to defend ourselves or to come the aid (sic) of another person or removal of those limitations and a new policy and training developed to address such.

18Paragraphs 201 – 2016 of the particulars is challenged by the Employer as beyond the scope of the foregoing grievance. They are reproduced as follows:

201. For many years, managers and supervisors have not been required to complete the Personal Safety Training Program and most do not know what the program entails. However, they are expected to assume a leadership position in a crisis situation.

202. In the event of an incident at Ajax-Pickering, a manager, by nature of the position shall assume a leadership role in coordinating staff response. If the manager is not trained in the same method as PPOs or Support Staff, their direction may be contradictory to the direction in PST. As an example, AM [A.S.], recently returned from other duties and assumed supervision at Ajax-Pickering, but for months did not have the training. Yet, he still made decisions that had the potential to directly impact employee-offender interactions.

203. Furthermore, the Grievor’s MOL complaint with Inspector [C.], the Grievor provided specific detailed explanation as to why he felt then acting Area Manager [C.M.] was not qualified to make determinations as to staff response to hostile offenders or in support of the PST program as he himself had not taken the instruction. As such, these matters are part of an unresolved process which has been unreasonably delayed.

204. As detailed previously and can be identified as historical background, the managers and directors assigned to CSHSWG to resolve safety issues did not have PST training yet made decisions on behalf of the employer with respect to potentially remedying concerns raised. They had been extremely critical of the issues I tabled without having any idea what I was talking about. All of these have bene documented numerous times in my previous attempts to resolve concerns.

205. Management members on the Provincial JOHSC, MERC, TD and later the CSHSWG are therefore unfamiliar with the training, yet dismissed worker/employee concerns with the training. This evidenced the employer’s lack of attentiveness and concern to staff health and safety. This was one of the cornerstone issues that caused the Grievor to file this MOL complaint and these grievances.

206. Since filing the MOL complaint and these grievances, the training is still not mandatory for manager; however, the Grievor acknowledges that many managers do take the training. However, the Grievor maintains his position that the training not being mandatory for managers is unacceptable and poses a risk to staff health and safety.

19Among the duties of an employer under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended, sec. 25(2)(c) is to ensure that “when appointing a supervisor” it selects “a competent person”. The last sentence in the grievance makes the assertion that, “the employer has placed senior management in oversight of the risks we face who are incompetent by definition of the OHSA”. As the issue of the insufficient competency of the managers and supervisors who direct the Grievor’s activities in potentially “assaultive (or worse)” situations with offenders is claimed in the grievance, it is my assessment that questions surrounding the sufficiency of training for those personnel are captured by the broad terms of Grievance No. 7, which is directed at the adequacy of the policies intended to safeguard PPOs in their interactions with potentially violent offenders. Inasmuch as the particulars in paragraphs 201 – 206 address those concerns and potential demands for their remedy (as it may affect the Grievor personally) I conclude they are within the scope of the grievance.

20Consequently, the Employer’s objection to the inclusion of these particulars is denied. The Union is entitled to rely upon those particulars.

Grievance No. 7 (Employer’s direction to staff re: do not attempt to physically restrain or detain physically assaultive clients): Paras. 226 – 227 – Allegation that new hires have no training in safety, and Grievor could be at risk if required to help them.

21Paragraphs 226 – 227 of the particulars state:

226. New hires supervise offenders with no training in safety. In many cases, they have not been introduced to any skills or tools. There is a possibility that the Grievor would have to be one of the responding staff members in the event an offender becomes hostile when interacting with a new hire. Numerous Ministry policies identify the value in any experienced PPO mitigating the risk of potentially hostile offenders.

227. While it is common practice that when operationally feasible, or at the Area Manager’s discretion, certain offenders posing an elevated risk not be supervised by inexperienced PPOs, there is no policy in place which directs that this must occur. At Ajax-Pickering, there is no time where this could not be implemented given the staffing levels.

22The focus of Grievance No. 7 is on deficiencies and/or confusion in the policies governing a PPOs response to a violent offender (including questioning the adequate training of senior managers/supervisors to oversee the risks and response to such circumstances). That is not in my view the focus of the allegations in paras. 226 – 227, which address supposed deficiencies in the training of new hires which the Grievor claims may place him at risk if he is required to come to their aid. As such, those allegations are outside the scope of the grievance.

23Therefore, the Employer’s objection is sustained and those two paragraphs must be struck.

Concluding Directions

24As reviewed with the parties at the conclusion of the oral hearing into the above matters, it is my intention to tightly case-manage this litigation, into what amounts to six grievances covering a wide range of issues related to the Grievor’s health and safety allegations.

25With the disputes concerning particulars now dealt with, counsel for the parties are directed to develop a “Plan” for the orderly hearing of this dispute. The Plan will include an outline of what specific grievances (and issues therein) will be addressed by which anticipated witnesses, and the likely ordering of the evidence.

26Among the matters for the parties to also include in their Plan, are the documents to be admitted on consent (and duly exchanged in advance); copies of documents that while not mutually agreed upon (and will require proof) to the extent they are relied upon by either party to the dispute they must be disclosed to the other side in order to limit “surprise”; full or partial written agreements of facts on areas not in dispute; the preparation of “will-say” statements (if acceptable to reduce the amount of hearing time); culminating in a “litigation timetable” so that on any day of the hearing the parties will know what evidence is being proffered and what witnesses will be required. The parties are also directed to cooperate in the efficient planning for any expert witnesses, senior management and/or on-duty worker personnel, etc., in order to limit the inconvenience to operational and personal needs.

27If the parties have difficulties concluding their Plan, they may schedule a brief telephone and/or videoconference with me to efficiently resolve outstanding issues. Once the Plan is completed the parties will contact the Registrar to schedule an appropriate number of hearing days contemplated by their Plan. The final Plan will be filed with me in advance of the first day of the hearings on the merits.

28I will continue to remain seized of any disputes between the parties respecting the interpretation of the foregoing rulings and any difficulties in agreeing upon future steps in these proceedings.