GSB# 2019-0222

UNION#2019-0542-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Del Casale)

Union

• and -

The Crown in Right of Ontario (Ministry of Government & Consumer Services)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 28, 2020 (by videoconference)

DECISION

1This decision deals with a non-suit motion made by the Employer in a proceeding involving a claim by the Union that the Grievor’s manager engaged in a course of conduct that included micromanaging, bullying and harassment resulting in a poisoned work environment for the Grievor who has a health-related workplace accommodation. The Union also claims that the manager’s behaviour caused stress for the Grievor which could trigger her medical condition. The Union asserts that the Employer violated the Collective Agreement including, but not limited to Articles 2 (Management Rights), Article 3 (Harassment and Discrimination) and Article 9 (Health & Safety) and the Ontario Human Rights Code.

2Both the Union and Employer Counsel were in agreement on the general principles that should be considered when deciding a non-suit motion, including that I need to only hear testimony from the Union in response to the Employer’s assertion that no prima facie case can be established.

3In a recent decision of this Board in Ontario Public Service Employees 2019 Union (Pacheco) v. Ontario (Solicitor General), 2020 CanLII 38998 (ON GSB), Arbitrator Petryshen sets out the general principles that this Board has adopted in determining a non-suit motion at paragraph 9:

9There are a number of decisions of this Board which summarize the primary principles to be utilized when deciding a non-suit motion. With one addition, I adopt the following principles that are summarized in OPSEU (Whan et al.) v. Ontario (Ministry of Transportation), supra, as follows:

1. The Board will not put the moving party to an election of whether or not to call

its own evidence as a matter of course. The appropriateness of putting the

moving party to an election will be determined based upon the considerations

of expedition and fairness in the particular circumstances of each case.

2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.

3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.

4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.

5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.

7. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a non-suit motion is denied, no reasons, oral or written, will be issued.

4Arbitrator Petryshen also remarks at paragraph 10 of his decision, that in addition to the above-noted principles, the determination of whether a prima facie case has been made out, the evidence must meet a minimum threshold of credibility.

5In this case, in assessing the Grievor’s evidence objectively, in light of the principles noted above, the Union also urged me to consider the Grievor’s testimony in the context of her unique employment situation in which she is accommodated by working at a different work location resulting in her being physically isolated from her colleagues and management team. I agree with the Union that the Grievor’s accommodation arrangements are relevant to my consideration of the Grievor’s evidence related to her claims of bullying, harassment and discrimination as alleged in her grievance.

6I have carefully considered the Grievor’s testimony applying the general principles outlined above and considering the context of her workplace accommodation. I have determined that there is some credible evidence in support of establishing a prima facie case, and therefore the Employer’s non-suit motion must fail. Accordingly, the Employer’s non-suit motion is hereby dismissed. In accordance with the practice of the Board, I will not provide reasons for that determination.

7The parties are directed to contact the Board to schedule a date for the hearing of this matter.