GSB# 2017-0583; 2017-0698

UNION# 2017-0551-0006; 2017-0551-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bonacci et al)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Counsel

HEARING

April 19 and June 16, 2021

DECISION

1There are two matters before me. The parties disagree as to whether they consist of two group grievances or one group grievance and ten identical individual grievances from another group of employees. It is not necessary for me to determine that issue for the purposes of this decision. For convenience, I shall refer to the matters before me as the Falconi group grievances and the Bonacci group grievances.

2The grievors are all probation and parole officers (“PPOs”). The grievances relate to the Employer’s use of a case audit process known as Case Management Review (“CMR”) to evaluate the performance of duties by probation and parole officers.

3The Employer brings four preliminary objections to the grievances. The Employer argues: they are untimely; insufficient particulars have been provided; the particulars which have been provided, for the most part, fail to establish a prima facie case; and that grievances filed by three members of the Bonacci group ought to be dismissed on the basis that they raise issues which were raised, or could have been, in prior grievances by those individuals which were resolved by a settlement dated January 23, 2017.

4I note the parties’ agreement that these preliminary objections are advanced without prejudice to the Employer’s right to advance arguments: with respect to the application of Monk; challenging the relevance of any evidence advanced on the basis that it constitutes an expansion of grounds; the application of the “three year rule” to events which pre-date the grievances by more than three years.

Procedural History

5The Falconi group grievances were filed on April 26, 2017. They state:

We grieve that management has violated Section 2.1 of the Collective Agreement and any other applicable sections of the CBA by performing the stated case management review process in a clearly unfair, punitive, non-collaborative manner that lacks transparency and does not accurately reflect the totality of the work we do.

Settlement desired

To be made whole including, but not limited to, management immediately ceasing and desisting from this unfair labour practice.

6The Bonacci group grievances were filed on April 27, 2017. They state:

We grieve that management has violated section 2.1 of the collective agreement and any other applicable sections of the collective agreement by failing to perform case management reviews according to Ministry policy which states: case management reviews should be fair and transparent and supports [sic] a collaborative approach between the manager or designate and is a valuable learning opportunity for PPOs, managers and their designates to improve skills and knowledge and service.

Case management reviews (CMRs) were conducted contrary to many aspects of this policy but most notably in an unfair, non transparent and non collaborative manner therefore my rights under the collective agreement have been violated, including but not limited to, Article 2 and 3, Health & Safety issue, work load issues and any other applicant legislations [sic] or statutes.

Settlement Desired:

That these reviews be rescinded and that further reviews adhere to the case management review policy and specifically that they are fair, transparent and collaborative rather than punitive. Full redress and any other remedy that in the opinion of an arbitrator will make the grievor whole.

7Formal Resolution Stage meetings were held with respect to the Falconi and Bonacci group grievances on May 29, 2017 and May 18, 2017 respectively. They were referred to arbitration on June 20, 2017 and June 5, 2017 respectively.

8The parties agreed to schedule the Falconi group grievances and the Bonacci group grievances to be heard together. This was reflected in the notice of proceeding sent by the Grievance Settlement Board on August 31, 2017.

9Ultimately, both matters were scheduled for mediation on January 9, 2018. At that time the Employer was engaged in a review of the CMR process (the “CMR Review”). The parties agreed to adjourn the grievances sine die on a without prejudice basis. The Employer gave notice that if the matters proceeded it would be seeking particulars and depending on those particulars, might bring preliminary motions to have the grievances dismissed on the basis of timeliness, jurisdiction and lack of a prima facie case. This was the first time the Employer raised the issue of timeliness.

10Both the Falconi group and the Bonacci group made written submissions to the CMR Review.

11The Union requested the grievances be brought back on for a hearing. The Employer repeated its request for production and particulars. (Employer counsel’s assertion that it requested particulars on December 21, 2017, August 26, 2020, and January 29, 2021 was not contested.). A schedule was established for this purpose. The Union provided some production and particulars. The Employer requested a conference call during which it requested further and better particulars, noting it wished to use them for the purposes of its preliminary motions. The Union maintained that it had provided sufficient particulars. The Union was directed to provide any further particulars upon which it sought to rely by a specific date. The Union subsequently filed further particulars. Following review of the particulars, the Employer gave notice it wished to proceed with the four preliminary objections identified at the outset of this decision.

12During the hearing of the preliminary matters, Union counsel advised that all but three of the grievors in the Bonacci group had withdrawn their grievances. The remaining three are: Paula Bonacci, Hernani Pereira and Sam Cole.

Timeliness and Particulars

13I find it useful to address these two issues together.

14The Employer concedes that sufficient particulars have been provided in relation to the Bonacci group grievances, but asserts that insufficient particulars have been provided in relation to the Falconi group grievances and seeks to have them dismissed on that basis.

15The Employer argues neither the Falconi nor the Bonacci group grievances have been filed within thirty days of the date on which the circumstances giving rise to the complaint occurred or ought reasonably to have come to the attention of the employees, as required by the collective agreement. The Employer acknowledges an arbitrator of the Board has jurisdiction under s. 48(16) of the Labour Relations Act, 1995 (“OLRA”) to extend the time lines set out in the collective agreement, but argues the discretion afforded by that section should not be exercised in this case.

16The Union argues the Employer has waived the right to raise a timeliness objection, that in any event the subject matter of the grievances is a continuing breach of the collective agreement with the result that each fresh breach gives rise to a new grievance and in the further alternative this is an appropriate case to exercise the discretion afforded by s. 48(16) to extend the time lines.

17I agree with the Union that the subject matter of the grievances is an allegation of a continuing breach of the collective agreement. In essence, the grievances on their face allege the Employer’s use of the CMR process constitutes a breach of the collective agreement. Each fresh use of the CMR process in the manner alleged would constitute a new breach of the collective agreement and give rise to a new grievance. The issue in the first instance is whether a timely grievance has been filed in relation to any such new breach.

18The Union relies upon OPSEU (Hunt) v. Ontario (Ministry of the Attorney General), 2003 CanLII 52888 (ON GSB) (Abramsky). In that case, a group of court reporters grieved the employer’s practice of scheduling them in a certain manner, alleging it resulted in their being “forced to perform authorized duties on overtime hours with no overtime pay” contrary to the collective agreement. There was no dispute that the employer’s practice was substantially as alleged and that it had been the practice for a number of years: see p. 3. The employer brought a preliminary motion seeking to have the grievance dismissed as untimely, given that the change in practice had commenced some years prior to the grievance. Arbitrator Abramsky dismissed the motion, finding the grievance was not a challenge to the change of practice itself but rather a challenge to the ongoing impact of that change. As such, the matter before her was a continuing grievance which she found to be timely. I note that in her review of the case law, at pp. 10-11, she quotes with approval from a decision of Arbitrator Burkett in which he said that in cases of continuing breaches of a collective agreement “the time limits for filing of a grievance … must be found to be triggered by the breach closest in time to the filing of the grievance”. There was no dispute in the case before Arbitrator Abramsky that an application of the employer’s scheduling practice had occurred within the time limits for the filing of a grievance.

19By contrast, there is very much a dispute before me about whether there was any use of the CMR process within the time limits for filing a grievance, let alone one which could be said to be unfair, punitive, or non-collaborative as generally alleged by the grievances. Neither grievance, on its face, refers to a specific event nor otherwise indicates the date or dates on which the use of the CMR process alleged to breach the collective agreement took place. In the absence of this information, the Employer would have been unable to determine whether the grievances were timely. I thus reject the Union’s argument that by participating in the grievance procedure the Employer waived its right to raise a timeliness objection. The contrary conclusion would impede labour relations between the parties, as it could result in the Employer either making boilerplate objections or insisting on full and proper particulars prior to participating in the grievance process lest it be accused of waiver.

20The cases provided by the Union in relation to waiver are not inconsistent with this conclusion.

21The Union cites OPSEU (Union) v. Ontario (Ministry of Community Safety and Correctional Services), 2005 CanLII 55200 (ON GSB) (Herlich) for the proposition that the taking of a fresh step in the grievance procedure is sufficient to constitute waiver. I agree that it may. I note, however, that Arbitrator Herlich cited with approval the following statement (at p. 11):

The concept of “waiver” connotes a party not insisting on some right, or giving up some advantage. However, in order to be operative, waiver will generally require both knowledge of and an intention to forego the exercise of such a right.

[My emphasis.]

Arbitrator Herlich found the grievance before him provided sufficient information on its face for the employer to have been alerted to a timeliness objection: see p. 13. Accordingly, the employer’s subsequent steps in the grievance process constituted waiver. The matters before me are group grievances, or a group grievance and a group of individual grievances. The parties’ collective agreement contemplates that such grievances are to be filed in relation to “specific incidents or circumstances”: see Article 22.11.1 and Article 22.2. The date of the specific incidents or circumstances giving rise to the grievances are not apparent on their face, and were not disclosed, in case of the Bonacci group grievances, until the Union provided particulars.

22The Union relies upon OPSEU (Jackson) v. Ontario (Ministry of Children, Community and Social Services), 2020 CanLII 74277 (ON GSB) (Banks). In my view, that case does not assist the Union. In that case, the issue was whether the employer had waived its right to object to an untimely referral of the grievance to arbitration, not to the untimely filing of the grievance itself. Arbitrator Banks makes this distinction explicitly at para. 38, and notes that while not relevant to the issue before him, lack of particulars may be relevant to the determination of whether or not a grievance has been filed in a timely way. That is the issue in the case before me.

23The Union relies upon Fung/Anand, GSB # 1798/89 and 104/90, April 16, 1991 (Stewart). Arbitrator Stewart held at p. 11, “that an objection based on non-compliance with time limits is waived when there has been a failure to raise the objection in a timely manner and the taking of a fresh step prior to raising the objection.” However, earlier in the same paragraph, at p. 10, Arbitrator Stewart noted that the “timeliness of [the] grievance was clear from the information available to the Employer at the time the grievance was filed.” The same cannot be said in the grievances before me.

24Finally, on the issue of waiver, the Union relies upon George Brown College of Applied Arts and Technology and OPSEU, 1995 CarswellOnt 6780, 42 CLAS 304 (Burkett) as further authority for the proposition that the taking of a fresh step constitutes waiver of a procedural objection. The grievance in that case alleged improper lay off. The collective agreement contained a provision which required the written referral of such a grievance identify positions held by two individuals the grievor claimed to be entitled to displace, which positions would then become the subject matter of the arbitration hearing. The written referral to arbitration did not contain this information, however, the evidence before the arbitration board established two positions had been identified orally by the union. The appointment of the arbitrator was held to constitute a fresh step waiving the technical requirement the positions be specified in writing in the referral.

25I see no parallel to the case before me. There is no evidence to suggest that the events said to form the basis for the grievances were identified by the Union in any manner prior to the provision of written particulars to the Employer. Instead, the Employer had to request particulars from the Union repeatedly. Ultimately, the Union was in fact ordered to provide particulars. Once the Employer received the particulars, it formally made its objection to the timeliness of the grievances.

26As noted, the Employer contests the adequacy of the particulars provided in relation to the Falconi group. They are contained in two documents.

27The first document is an email dated March 15, 2021 from counsel for the Union to counsel for the Employer. (The particulars in the email were also applicable, in large part, to the Bonacci group grievances.) The email sets out the history of the CMR process, starting with its introduction in 2003. The CMR process as it then was is summarized and described as having been used in a transparent and collaborative way. The Union alleges the use of the CMR process changed in 2013 and became objectionable. The Union alleges thereafter, “the Employer used the CMR tool to provide: excessive performance management, which would allow for the employer to utilize the tool to single out and target members; focussed on errors not development; used the tool as a method to threaten discipline or other punitive action; no longer provided proper advance notice of the audit; [and] had a pool of managers doing the audit review ….[who] would not be familiar with the employee ….” This is the conduct which the Union alleges violates the collective agreement and various statutes.

28The March 15, 2021 email contains only one specific reference to anyone from the Falconi group. It refers to an incident between Ms. Falconi and a manager in April, 2018. This post dates the grievance by one year. The incident need not be set out here as it does not constitute particulars of events giving rise to the Falconi grievance.

29The second document is the written submissions made by the Falconi group to the CMR Review. Those submissions are similar to the assertions made in the March 15, 2021 email. They also assert that there are insufficient staffing levels in the office in question and that current CMR process does not take into account the daily realities and stress faced by PPOs in the performance of their work.

30Taken together, these particulars provided in relation to the Falconi group grievances assert that the Employer’s use of the CMR process constitutes a breach of the collective agreement, but are completely silent on when that breach occurred. In my view the Falconi group grievances must be dismissed for the failure to provide particulars, specifically particulars which would permit an assessment as to the timeliness of the grievance. I note similar conclusions were reached by Arbitrator Abramsky in OPSEU (Singh) v. Ontario (Ministry of Community Safety and Correctional Services), GSB 2001-1070, June 27, 2005, at p. 14.

31As noted, the Employer concedes sufficient particulars were provided in relation to the Bonacci group grievance. The general particulars provided in relation to the Bonacci group are similar to the particulars provided in relation to the Falconi group. They assert the Employer’s use of the CMR process since 2013 constitutes a breach of the collective agreement, but do not identify any specific events where such a breach is said to have taken place. Individual particulars, however, were filed on behalf of Ms. Bonacci, Mr. Cole and Mr. Pereira.

32As an overall comment, I note that Bonacci, Cole and Pereira each state that they experienced significant ongoing stress, if not health issues, as a result of the manner in which CMRs were conducted. While one can only sympathize with the stress described, what matters for the timeliness issue is whether the circumstances alleged to give rise to that stress, i.e. a CMR or some other action (or inaction) of the Employer, occurred within the thirty day period prior to the filing of the grievances. As noted, their grievances were filed on April 27, 2017.

33The Cole particulars complain of a number of events. The years 2007, 2017 and 2020 are all referenced in the course of the narrative, but not in a manner that is sufficiently clear to identify when the complained of events took place. As with the Falconi group grievances, in my view the Cole grievance must be dismissed for failure to provide particulars which would permit an assessment as to the timeliness of the grievance.

34The Employer argues the Bonacci particulars establish that her grievance is “grounded” in an email dated November 19, 2016. Since this pre-dates the filing of the grievance by six months, the Employer argues the grievance is untimely.

35The chronology in the Bonacci particulars does commence with allegations in relation to an email dated November 19, 2016 which she received from her manager, Andrew Burston, but they do not end there. The Bonacci particulars allege Mr. Burston’s email indicated that a “recent” CMR was attached. The CMR attached is said to have been from June 28, 2015 to March 2, 2016. There is then reference to a further email dated November 30, 2016 from Mr. Burston with respect to another “recently completed” CMR. This CMR is alleged to date back to March, 2016. Ms. Bonacci did not consider either of these CMRs to be “recent”. Her particulars indicate she found the situation stressful and describe a number of steps which she took to attempt to address this stress over the next several months. Ms. Bonacci then indicates that she received an email on March 27, 2017 from Mr. Burston indicating that he had completed six CMRs and that he wanted to schedule a review meeting for April 3, 2017. While it is not entirely clear whether this group of six subsumed the two CMRs referenced in the November 19 and 30, 2016 emails, it appears in any event that there were additional CMRs which were to be discussed at the April 3, 2017 review meeting. Ms.Bonacci met with Mr. Burston on April 3, 2017 to discuss the CMRs. Ms. Bonacci alleges that at no time during this discussion did Mr. Burston indicate that any disciplinary action would be initiated by management. The grievance was filed on April 27, 2017. On June 19, 2017, it appears Ms. Bonacci received a notice of an allegation meeting from Mr. Burston in relation to the CMRs discussed on April 3, 2017.

36In her particulars, Ms. Bonacci complains about the CMRs she discussed with her manager on April 3, 2017. Accordingly, Ms. Bonacci’s grievance is timely to the extent it relates to those April 3, 2017 events. I note that a number of events referenced in the Bonacci particulars are more than 30 days before April 27, 2017, or post date April 27, 2017. Some of these events may be relevant to establishing a course of conduct alleged to constitute harassment on or about April 3, 2017, as subsequent event evidence relevant to what occurred on April 3, 2017, or as evidence of the degree of harm caused by any such harassment. To be clear, I make no decision on those questions.

37The Pereira particulars describe specific events related to CMRs from January, 2012 to May, 2016. These include reference to allegations of wrongdoing Pereira received from the Employer in relation to CMRs in April, 2016. There is also reference to the fact that he was suspended on May 5, 2016 while under investigation for something which is only described as “unrelated to CMR”. This is the last event, other than two emails received in May, 2016, specifically identified in the particulars. The length of the suspension is not set out in the particulars, other than to say it was extended for “months”. Mr. Pereira indicates after he returned to work, notwithstanding that his managers had changed, “the tone of the CMRs “Allegations of wrongdoing” impacted me and made me feel like I had committed a crime.” This appears to be a reference to the effect on Mr. Pereira of the allegations of wrongdoing which he received in April, 2016, but in any event no specific events subsequent to May, 2016 are identified. I conclude that Mr. Pereira’s grievance is untimely.

38I turn to the question of whether I should exercise the discretion afforded me by s. 48(16) of the OLRA to extend the time limits for filing the Pereira grievance. That section provides:

Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

Exercise of the discretion requires both conditions be met. The Employer does not assert prejudice in this case. The only issue, therefore, is whether there are reasonable grounds for the extension.

39The factors commonly considered by this Board are those set out by Arbitrator Burkett in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 LAC (2d) 217: (i) the reason for the delay given by the offending party; (ii) the length of the delay; and (iii) the nature of the grievance. In this case, no reason has been offered for the delay. The length of delay in relation to the Pereira grievance is some 10 months beyond the time for filing of a grievance. The Employer points to a number of decisions of this Board in which grievances were dismissed as untimely for shorter delays than that, including OPSEU (Berday) v. Ontario (Ministry of Transportation), 2008 CanLII 70540 (ON GSB) (Devins) where a grievance related to the termination of employment was dismissed for a four month delay. The Pereira grievance alleges unfair, punitive conditions of employment which are said to violate the Occupational Health and Safety Act. These are serious allegations, but not more serious than cases involving termination of employment. Having regard to the lack of explanation, the length of the delay and the nature of the grievance, I am not satisfied there is sufficient reason to exercise my discretion to extend the time for the filling of the Pereira grievance.

40In the result, all the grievances but the grievance of Ms. Bonacci are dismissed for want of particulars or because they are untimely.

No Prima Facie Case

41The test for a no prima facie case motion is set out in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson):

3There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.

5The Union notes that in Evangelista, 2011 CanLII 41847 (ON GSB) (Harris) the Board stated that it was not appropriate to weigh the quality of the proposed evidence in determining whether there was a prima facie case: see para. 11. The Union asserts that as a result, for example, I would be required to accept as true the assertion that the moon is made of blue cheese. With respect, I disagree. In Evangelista, the proposed evidence was capable of belief. That is not the case with the Union’s hypothetical example. As I noted in Bharti, 2015 CanLII 19330 (ON GSB) at para. 10:

In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true.

6The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.

To this statement should be added that where the motion is to be dismissed, no reasons are to be given. This is to ensure the moving party does not get “two bites at the apple”.

42The theory advanced by the Union is stated in its particulars: “the Employer used the CMR tool to provide: excessive performance management, which would allow for the employer to utilize the tool to single out and target members; focussed on errors not development; used the tool as a method to threaten discipline or other punitive action; no longer provided proper advance notice of the audit; [and] had a pool of managers doing the audit review ….[who] would not be familiar with the employee ….”. Reference is made on the grievance form to Articles 2 (management rights), 3 (no discrimination or harassment) and 9 (health and safety).

43The Employer argues to the extent the grievance alleges a breach of Article 3, there are no particulars of behaviour which could be construed as harassment. I disagree.

44The Employer argues the implementation of a policy is an exercise of management rights. The Employer argues to the extent the grievance alleges a breach of Article 2, the management rights clause, there is no allegation of discrimination or arbitrary behaviour and that the particulars are not capable of supporting a finding of bad faith. The Employer further argues that in any event this Board has no jurisdiction to deal with an allegation of a breach of Article 2 absent a “hook” into some other provision of the collective agreement. The Union argues that as a result of Bhasin v. Hrynew, 2014 SCC 71, there is no longer a need for a “hook”. The Union further argues that in any event, the fact that the use of the CMR may have disciplinary consequences is sufficient to give rise to a hook.

45In my view, the issue before me is not the implementation of the CMR policy in 2013, but rather its subsequent application. Given that in my view there is a prima facie breach of Article 3, there is at least that hook. I need not address the balance of the parties’ arguments further at this time.

46The Employer argues that to the extent the grievance alleges a breach of Article 9 and claims damages for health effects as a result of the implementation of the CMR Policy, there are no particulars which would permit the conclusion that those damages were reasonably foreseeable. Again the issue before me is not the implementation of the policy but its subsequent application. In my view, the pleadings are capable of supporting a finding that it was applied in a manner which was contrary to Article 9 of the collective agreement. What remedy is available in relation to such a breach is a matter which may be addressed after the evidence is heard.

The January 23, 2017 Settlement as a Bar

47This motion by the Employer may be quickly addressed. The Employer’s argument is that the January 23, 2017 settlement acts as a bar to all issues that were or could have been raised as of the date of the settlement. Thus far I have concluded the grievance of Ms. Bonacci may proceed only in relation to the events surrounding her April 3, 2017 CMR. Those events post date the settlement. Accordingly, the settlement does not bar Ms. Bonacci from proceeding with her grievance in relation to those events.

Summary

48For the reasons stated:

(i) The Falconi grievances are dismissed for want of particulars;

(ii) The Cole grievance is dismissed for want of particulars with respect to timeliness;

(iii) The Pereira grievance is dismissed as untimely;

(iv) The Employer’s motions to dismiss the Bonacci grievance are dismissed.