GSB#2017-1142; 2017-1143; 2017-1144; 2017-1188; 2017-1189; 2017-1191; 2017-1193; 2017-1194; 2017-1391; 2017-1393; 2017-1533; 2017-1534; 2017-1535;

2017-1536; 2017-1537; 2017-1538; 2017-1634

UNION#2017-0234-0112; 2017-0234-0113; 2017-0234-0114; 2017-0234-0115; 2017-0234-0116; 2017-0234-0118; 2017-0234-0120; 2017-0234-0121; 2017-0234-0129; 2017-0234-0131; 2017-0234-0143; 2017-0234-0144; 2017-0234-0145; 2017-0234-0146; 2017-0234-0147; 2017-0234-0148;

2017-0234-0134

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Derjugin et al)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Amani Rauff (Counsel) Dewart Gleason LLP

FOR THE EMPLOYER

Peter Dailleboust (Senior Counsel) Treasury Board Secretariat Legal Services Branch

FOR THE INTERVENOR HEARING

John Pacheco October 23, 2020

DECISION

1I have before me a number of grievances filed by eleven employees who at the relevant time were either employed as Provincial Bailiffs (“PBs”) or as Regional Transfer Coordinators (“RTCs”) in the Employer’s Offender Transfer Operations (“OTO”) unit located at the Maplehurst Correctional Complex. In essence, the grievances allege that the Employer failed to address adequately the complaints that were being made by the Grievors about the conduct of Mr. J. Pacheco, also a PB. The Union claims that this failure by the Employer constitutes a violation of articles 2, 3, 9, 44, and COR Appendix 18 of the Collective Agreement, the Code of Conduct and Professionalism, the Workplace Discrimination and Harassment Prevention Policy, and the Occupational Health and Safety Act and the Ontario Human Rights Code. Mr. Pacheco has requested that he be granted intervenor status as a third party in this proceeding. The Union takes no position on this issue. The Employer takes the position that third party or intervenor status should not be granted to Mr. Pacheco. This decision only deals with the issue of whether Mr. Pacheco is entitled to intervene as a party in this proceeding.

2No viva voce evidence was called on the motion. The factual context for the motion came from the particulars filed by the Union and from the submissions of counsel and Mr. Pacheco. It is fair to say that there was little dispute on the facts relevant for determining whether Mr. Pacheco should be granted intervenor status.

3As noted previously, the Grievors and Mr. Pacheco had been employed in the OTO unit. The OTO unit had been responsible for the movement of inmates between various institutions. The OTO unit likely had no more than twenty PBs who generally worked in pairs. The OTO unit was closed by the Employer in September 2019.

4Mr. Pacheco had been disciplined on a number of occasions while he was in the OTO unit. I am aware of this because three of his suspension grievances and a termination grievance were before me in a proceeding that commenced in March of 2016. The grievances that were before me can be described as follows. There was a grievance dated February 12, 2015, which challenged a 10-day suspension issued on February 6, 2015. A second grievance, dated May 29, 2015, challenged a 15-day suspension issued on May 25, 2015. The third grievance was dated December 7, 2015, and it challenged a 20-day suspension issued on December 7, 2015. And finally, there was a fourth grievance dated March 3, 2016, which challenged the March 2, 2016 termination of Mr. Pacheco’s employment. Following a mediation session in June of 2017, the Employer elected to return Mr. Pacheco to employment as a PB in the OTO unit. It took this step without prejudice to its position on the termination grievance since it maintained that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to be compensated for his losses. The proceeding before me continued into 2020. During the summer of 2020, the Employer again terminated Mr. Pacheco’s employment, which he grieved. On September 16, 2020, the Union advised the Grievance Settlement Board that the Union and Employer had concluded a settlement which resolved all of the grievances filed on behalf of Mr. Pacheco. This settlement effectively terminated the arbitration proceeding before me involving the four grievances set out above. The settlement also dealt with the grievance challenging Mr. Pacheco’s termination during the summer of 2020. Mr. Pacheco indicated at the hearing that he had initiated an application before the Ontario Labour Relations Board because he disagreed with the Union’s actions in settling his grievances.

5The Union’s particulars are set out in a 32 page document that provides a detailed picture of what this case is about. It is not necessary in my view to set out in detail the nature of Mr. Pacheco’s alleged conduct which led the Grievors to complain about him. Suffice it to say that the Grievors assert that Mr. Pacheco was a disruptive force in the OTO unit and that his conduct contributed to a poisoned work environment. According to the particulars, Mr. Pacheco harassed many of his colleagues, including the Grievors, and he intimidated, bullied, surveilled some of the Grievors and made frivolous and false complaints about them. It is alleged that Mr. Pacheco sexually harassed and bullied a female PB. It is also alleged that Mr. Pacheco made threats of a criminal nature against managers in discussions with PBs. The Grievors assert that they made complaints to management in the OTO unit about the conduct of Mr. Pacheco. They claim that the Employer either did not address their complaints or that it did not address them properly or in a timely manner. The Union and Employer agree that it is unnecessary to determine in this proceeding whether the complaints made by the Grievors about Mr. Pacheco were valid complaints since the issue of their validity and truthfulness is simply not relevant. They agree that the focus of the grievances before me is on how the Employer responded to the complaints made by the Grievors about Mr. Pacheco.

6The Union claims that the lack of leadership, direction or accountability from management in addressing the concerns raised by the Grievors about bullying, harassment and the poisoned work environment contributed to the stress and anxiety experienced by the Grievors in the workplace. The Grievors claim that management’s failure to address their concerns resulted in, among other things, the need for some of them to be off on sick leave. On behalf of the Grievors, the Union seeks compensation from the Employer for loss of earnings, including lost overtime, and damages. The Union is not seeking any relief from Mr. Pacheco, nor would any of the relief it seeks from the Employer impact Mr. Pacheco.

7The submissions of Mr. Pacheco, Employer and Union counsel can be concisely summarized as follows. Commenting on some features of the particulars filed by the Union, Mr. Pacheco submitted that many of the allegations made against him are very serious. He argued that the focus of this case was about him and that it was clear that the Employer had no intention of protecting his interests. Mr. Pacheco submitted that he was entitled to defend his integrity and his reputation against the allegations made by the Grievors. He argued that the application of the relevant criteria to the circumstances of this case justified granting him third party status. To counter the Employer’s position that he was no longer a public servant, Mr. Pacheco noted that he expected to be successful at the Ontario Labour Relations Board and therefore regain his status as a public servant. Mr. Pacheco also agreed with the Union that this proceeding should be completely public and he objected to an anonymization order. In support of his submissions, Mr. Pacheco provided me with a list of cases and a copy of the following decisions: AMAPCEO (Grievor) and Ministry of the Attorney General, CanLII 97290 (ON GSB McLean); Re Bloorview Schpuool Authority and CUPE, Local 4400 (2015), 2015 CanLII 362 (ON LA), 252 L.A.C. (4th) 87 (Knopf); Bradley et al. v. Ottawa Professional Fire Fighters Association, 1967 CanLII 160 (ON CA), [1967] 2 O.R. 311 (ON CA); OPSEU (Cody et al.) and Ministry of Community Safety and Correctional Services, 2018 CanLII 109248 (ON GSB Parmar); Hoogendorn and Greening Metal Products & Screening Co. et al., 1966 CanLII 202 (ON HCJ), [1966] 2 O.R. 746-751 (ON HC); Hoogendorn and Greening Metal Products & Screening Co. et al., 1967 CanLII 28 (ON CA), [1967] 1 O.R. 712 (ON CA); Dirk Hoogendorn and Greening Metal Products & Screening Co. and United Steelworkers of America, Local 6266, 1967 CanLII 20 (SCC), [1968] S.C.R. 30; Laurentian University and Laurentian University Faculty Association, 2017 CanLII 73319 (ON LA Burkett); OPSEU (Fitzpatrick) and Ministry of Community Safety and Correctional Services, 2018 CanLII 77322 (ON GSB Gee); OPSEU (Union) and Ministry of Government Services, 2006 CanLII 17564 (ON GSB Petryshen); OPSEU (Pilon et al.) and Ministry of Community and Social Services, 2003 CanLII 52863 (ON GSB R. Brown); Re Ontario (Ministry of Health and Long-Term Care) and OPSEU (2001), 2001 CanLII 62064 (ON GSB), 110 L.A.C. (4th) 80 (R. Brown); OPSEU (Ross) and Ministry of Municipal Affairs and Housing, 2009 CanLII 15436 (ON GSB Gray); and, Toronto Star Newspapers Ltd v. Attorney General Ontario, 2018 ONSC 2586.

8In arguing that Mr. Pacheco should not be granted third party standing in this proceeding, Employer counsel noted that Mr. Pacheco is no longer a public servant with employment interests to protect. More importantly, counsel submitted that Mr. Pacheco does not have a legal interest in this case having regard to the issues that are raised by the grievances. Counsel noted that the case is about whether the Employer investigated the complaints made by the Grievors and took appropriate action. Counsel submitted that the case is not about whether the complaints made against Mr. Pacheco are true with the result that there will not be an adjudication of the validity of the complaints. If there was any question about whether Mr. Pacheco had an interest in protecting his reputation, counsel submitted that I could exercise my discretion to anonymize his name in the decision. In the alternative, should I be inclined to grant Mr. Pacheco intervenor status in this proceeding, Employer counsel submitted that Mr. Pacheco’s right to intervene should be limited to ensure that he is only able to protect his legal interests. Employer counsel referred me to the following decisions: OPSEU (Union) and Ministry of Government Services, 2006 CanLII 17564 (ON GSB Petryshen); Re City of London and CUPE, Local 101 (2004), 2004 CanLII 94636 (ON LA), 131 L.A.C. (4th) 56 (Lynk); AMAPCEO (Grievor) and Ministry of the Attorney General, CanLII 97290 (ON GSB McLean); OPSEU (Cull) and Ministry of Health and Long-Term Care, 2017 CanLII 71798 (ON GSB Abramsky); and OPSEU (Grievor) and Ministry of the Solicitor General (2020), GSB Nos. 2015-0618 et al. (Harris).

9Union counsel reiterated that the Union took no position on whether Mr. Pacheco should be granted intervenor status. Union counsel confirmed that this case was not about whether the complaints made by the Grievors were true and that the Union was not seeking any relief against Mr. Pacheco. The Union did oppose the Employer’s request for anonymization. Relying on OPSEU (Cull), supra, and CM v. York Region School Board, 2009 HRTO 735, Union counsel submitted that there were no exceptional or compelling reasons in this case that would warrant anonymizing Mr. Pacheco’s name. Counsel argued that anonymization should not be used simply because of convenience.

10The general principles to apply when deciding whether a third party should be granted intervenor status are well established. In OPSEU (Union) and Ministry of Government Services, supra, I described these general principles as follows at page 7:

…An interest in the outcome of a proceeding is not enough to entitle a person to standing. As the Courts and arbitration boards have indicated, a person must be directly and necessarily affected by the decision before a right to receive notice and to participate in the proceeding arises. An indirect interest is not sufficient for the application of the audi alteram partem principle. Therefore, in any proceeding where a third party seeks standing, a tribunal or Court must determine whether the third party has a sufficient interest in the proceeding such that the denial of standing would be contrary to the principles of natural justice. The determination of whether a third party has a sufficient interest will depend on the circumstances of each case, taking into account in particular the subject matter being dealt with and the nature of the inquiry.

11In Re City of London and CUPE, Local 101, supra, arbitrator Lynk summarized the law on third party standing in a labour arbitration proceeding as follows:

1. The principle of natural justice generally apply to labour relations proceedings, particularly as it has acquired an increasingly public legal character in recent years.

2. An employee in a bargaining unit has the right to participate in an arbitration hearing as a third party if he or she can demonstrate that his or her status, rights or benefits under a collective agreement or a statute or, alternatively, some significant personal interest, might reasonably be directly, personally and adversely affected by an arbitration proceeding. The test is whether the employee seeking the third party status can demonstrate an important stake in the outcome.

3. Without laying out a complete list, a third party’s interests may be engaged by: the possibility of an adverse remedy against him or her; the potential loss of a significant contractual benefit, right or status; or a threat to a significant personal attribute, such as reputation or privacy.

4. A person outside the bargaining unit may also be entitled to obtain third party standing, where he or she can demonstrate that his or her interests may be directly, personally and adversely affected by the outcome of an arbitration proceeding. This would include members of other bargaining units as well as persons who work for the employer, but are not represented by any bargaining agent. Generally, the more remote the person’s connection is with the bargaining unit, the greater the onus that would rest on the person seeking standing to establish that he or she has an important stake in the outcome of the arbitration.

5. An apparent conflict, or divergence of interests between the person seeking third party standing and one or the other of the industrial relations parties is a significant factor to be considered when assessing the request. However, the individual seeking third party status only has to establish a reasonable potential that his or her interests might conflict or diverge with at least one of the parties, rather than the onerous requirement to establish an actual conflict or divergence.

6. In granting third party standing to a person, the arbitrator has the jurisdiction to set boundaries on the participation of the third party. The purpose of the boundaries is to retain control over the proceedings so as to avoid abuses of process and to ensure that a fair hearing remains available to the industrial relations parties to the proceeding.

12Having reviewed the facts and the submissions, I am satisfied that Mr. Pacheco has not established that he will be directly affected by this proceeding since he has not demonstrated an important stake in its outcome. There is no possibility of an adverse remedy against him and there is no threat to his privacy or reputation.

13I can appreciate that Mr. Pacheco would feel that a need to defend himself against the allegations made by the Grievors. However, as the parties have made very clear, the focus of this case is not on the substance of those allegations, but on the response of the Employer to the complaints made by the Grievors. I will therefore not be determining in this proceeding whether there is any truth to the allegations made by the Grievors. As a result, there will not be an opportunity for Mr. Pacheco to defend himself against the allegations made by the Grievors in this proceeding. Mr. Pacheco cannot assert a need to protect a privacy or reputation interest because no findings will be made that would affect his privacy or his reputation. The principles of natural justice do not require that Mr. Pacheco be granted intervenor status as a third party in this proceeding.

14It is unnecessary for me to decide whether Mr. Pacheco’s current status of a non-public servant is a relevant consideration. It is also unnecessary to decide whether it would be appropriate to anonymize Mr. Pacheco’s name.

15For the foregoing reasons, Mr. Pacheco’s request for intervenor status as a third party is hereby denied.