Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of the Attorney General), 2020 CanLII 32578

GSB# 2018-0676

UNION# 2018-0502-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Esther Song Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 22, 2019

Decision

1The Union has filed several grievances on behalf of the Grievor in relation to issues she has with the employer. There was a dispute between the parties about certain procedural matters including how the grievances should be heard. The parties resolved the procedural disputes but were unable to fully resolve how the grievances should be heard so the parties made oral submissions on that point. The resolution of the procedural issues is as follows:

ANONYMIZATION

2The grievances shall be anonymized by the agreement of the parties.

MEDICAL RECORDS

3Further, on the consent of the parties, the following will be ordered:

The Union and the Grievor shall disclose to Employer counsel her medical records from her visits or consultations to health professionals (including doctors, specialists, therapists, counsellors, mental health clinicians, physiotherapists, etc.) she saw from September 26, 2016 to present for the following stated conditions and/or reported symptoms:

• Gastrointestinal issues
• Sleep apnea
• Fatigue
• Back pain
• Headaches or migraines
• Tinnitus
• Mental health conditions
• Visual distractions
• Noise sensitivity
• Light sensitivity

4This will include portions of the records of Dr. Vlahos, Dr. Chen, Dr. Li, Dr. Kervorkian, Dr. Minz, Dr. Shanin, Dr. Gawel which are related to those conditions and/or arguably relevant to the matter. The Employer understands that portions of the medical records will be redacted, and reserves its rights to challenge any redactions for arguable relevance and to request further medicals.

5The disclosure of the medical records are subject to the following conditions:

1. The documents or material will only be released to Employer counsel for this grievance proceeding and one instructing advisor, Adele Di Monte.
2. The documents/material must not be disclosed to any person or party not a participant in these proceedings without consent by the Grievor or as ordered by the Board on a case by case basis.
3. The documents/material must be maintained as confidential.
4. The documents/material can only be used and seen for purposes relating to this proceeding and not for any other purpose or any other proceeding (sealed once entered into as Exhibits).
5. No copies shall be made unless for purposes of copying them in order to be entered into as exhibits.
6. After the conclusion of the matter, the documents/materials shall be placed in a sealed envelope and indicated that they are "sealed" and only to be accessed by counsel. Two years after the conclusion of this matter, upon request from the Grievor through Union counsel, Employer counsel shall return the documents/material to the Grievor.
7. The Employer understands that portions of the medical records will be redacted, and reserves its rights to challenge any redactions for arguable relevance and to request further medicals. If there is an issue about a redacted portion, and the parties cannot reach an agreement, then as part of the process for challenging the redactions, the Employer shall inform the Union counsel and the arbitrator, who will inform the Employer's counsel what has been redacted in broad strokes.

ACCESSING THE WORKPLACE

6In the unique circumstances of this matter, and without precedent and prejudice to any position it may take in any other proceeding, the parties consent to the following order:

• The Grievor shall be permitted to attend at the workplace for three days, from 8:00AM to 12:30PM for the sole purpose of permitting the Grievor to access her computer at her workstation and the printer near her workstation in order to access and print documents related to the grievances.
• Her attendance at the workplace shall be pre-arranged through counsel and does not need to be scheduled all at once.
• The Grievor shall check in with Ms. B, Manager, when she arrives at the workplace, and is to advise Ms. B right away if she has any technical difficulties. The Grievor is not to excessively socialize or distract other employees from their work.
• In the event the Grievor requires additional time, the consent of the Employer or a Board order is required.

The Grievances

7The following grievances are at issue in this case:

2018-0502-0003- failure to accommodate

2018-0502-0007-failure to accommodate

2019-0502-0012-failure to accommodate

August 14/2019-misuse of short term sickness plan, vacation and discretionary credits

August 14/2019-harassment grievance including managers allegedly shouting at the Grievor in an accommodation meeting.

August 14/2019-employer not paying invoices for accommodation letters, medical documents etc.

August 14/2019- employer not providing proper ergonomic equipment and ignoring the Grievor's requests

August 26/2019-harassment grievance

September 3/2019- letter of reprimand

CONSOLIDATION

8The issue the parties were unable to resolve was whether all the grievances should be heard together (as the employer submits) or whether the grievances should be divided up into grievances which relate to accommodation and those that relate to other issues (as the Union argues). Initially the Union took the position that the accommodation grievances should be heard together and that the remaining grievances should be heard individually one after the other. However, I orally dismissed the union's position and advised that the issue for me is whether the grievances should be heard altogether or in two sets of proceedings. This decision determines that issue.

9Both parties agree that I have the authority under the Grievance Settlement's Board's rules to consolidate the grievances before me essentially in any way that I see fit:

3. Consolidation of Cases

Where two or more proceedings are pending before the GSB and it appears to the GSB that,

a. they have a question of law or fact in common;

b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c. for any other reason an order ought to be made under this rule,

the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that:

d. the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or

e. any of the proceedings be stayed until after the determination of any other of them.

10Accordingly, the parties argued before me was made not as a matter of jurisdiction, but how I should exercise my discretion.

11The employer takes the position that for efficiency reasons all of these grievances should be heard at one time. There is a large degree of overlap of the facts giving rise to the grievances (all of the facts occurring in and around the same time period) and it should not be required to call its witnesses on multiple occasions in order to give evidence about the Grievor. It makes sense to just hear them altogether. If there is a concern about how long the grievances will take to determine (with the Grievor off work) then that should be dealt with in a practical way, by scheduling sufficient hearing days so that the case can be completed.

12The Union agrees that all of the grievances which pertain to the Grievor's claim that the employer did not accommodate her disability should be heard together. However, it says that the remaining grievances should be heard separately (after, as is noted above, initially taking the position that the grievances should be heard individually one immediately after the other) and that I could take into account the facts in any of them in determining subsequent grievances. It argues that while the accommodation grievances do have questions of law and fact in common and arise out of the same transactions (and thus fall in the specific criteria in the GSB's rules) the remaining grievances do not relate to the accommodation disputes in any way. Most importantly, the Grievor has been off work for a considerable period of time as the Employer asserts it cannot accommodate her medical restrictions. If all of the grievances are heard together the time by which the Grievor will have her accommodation grievances determined (and that she might return to work regardless of the outcome) will be lengthened by having to hear evidence and argument about the non accommodation issues.

13The Union relies on cases that suggest a party ought not to have its legal position prejudiced through consolidation and that there is a labour relations importance to dealing with grievances as quickly as possible where an employee is off work awaiting the outcome of their grievance.

14There is no dispute that the primary reasons for the consolidation of grievances (or that they be heard together) include avoiding a multiplicity of proceedings to save expense, make litigation more efficient and avoid the risk of inconsistent decisions. In the case before me, there is no real concern about inconsistent decisions since I will be hearing all of the grievances whether together or not and the findings in earlier heard grievances can be applied to later ones. It appears also likely to be the case that separating the grievances will not add significant litigation costs given that the non accommodation grievances are largely discrete issues. Obviously, however, separating the grievances will mean that some witnesses will almost certainly have to testify more than once with respect to the Grievor. However, I am also satisfied that there is little factual overlap in the two sets of grievances although the events occurred at around the same time. If witnesses are required to testify twice they will not do so about the same events.

15I am mindful of the fact that the Grievor has been off work for a considerable amount of time already and the hearing of her accommodation grievances may, on their own, occupy considerable hearing time. Also, the Union's assessment that the Grievor could be back at work with appropriate accommodation is not obviously wrong. In my view, therefore, it is appropriate to "hive off" some of the grievances so that the central accommodation issues can be heard as soon as possible. In these circumstances, the importance of having the accommodation issues determined as quickly as possible trumps the employer's efficiency concerns. In coming to this conclusion I am appreciative of the employer's suggestion that sufficient dates be scheduled so that there is not delay. That is the kind of practical proposal that I am usually attracted to. However, given the potential number of days this case may take to complete, I am concerned that days and part days will be lost, jeopardising the prospect of completing the hearing within a reasonable period of time even if a number of days are scheduled in advance.

16For all of these reasons the following grievances will be heard following the first set of grievances:

August 14/2019-employer not paying invoices for accommodation letters, medical documents etc.

August 14/2019- employer not providing proper ergonomic equipment and ignoring the Grievor's requests

August 26/2019-harassment grievance

September 3/2019- letter of reprimand

17The parties may rely on evidence heard and factual determinations made in the accommodation grievances in the subsequent hearings (assuming they are not resolved).

18I am seized of all grievances.