GSB# 2018-2031; 2019-2870; 2019-2871

UNION# 2018-0338-0004; 2020-0338-0001; 2020-0338-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hoyer)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Counsel

HEARING

June 22, 2021

DECISION

1I have three grievances before me filed on behalf of Ms. J. Hoyer. Ms. Hoyer is an administrative assistant in the Court Operations Office of the Ministry located in Barrie, Ontario. She commenced her employment in the OPS in January of 2016. Her manager during the relevant period was Ms. T. Yakimishyn, Manager of Court Operations. Sometime later in the Fall of 2018, Ms. Hoyer went off work due to illness and has not returned to the workplace.

2What I will refer to as Grievance 1 is dated August 20, 2018. The essence of the grievance is the claim that the Employer has violated her rights by contravening the Collective Agreement and the Ontario Human Rights Code (“HRC”) “by creating a poisoned work environment and discriminating/harassing me due to Union involvement”. It was not long after the filing of Grievance 1 that Ms. Hoyer commenced her sick leave. The other two grievances were filed on February 11, 2020. The essence of Grievance 2 is that the Employer violated the Collective Agreement or legislation “by failing to accept my medical note from a nurse practitioner in December 2018, poisoning my workplace and engaging in ongoing discrimination and harassment”. The essence of Grievance 3 is that the Employer violated the Collective Agreement or legislation “by failing to adhere to my medical note which required they not communicate with me, poisoning my workplace and engaging in ongoing discrimination and harassment from April 2019”.

3The Union provided the Employer with particulars of the three grievances in material dated October 16, 2020, March 31, 2021, June 17, 2021 and June 22, 2021. The particulars provided on March 31, 2021, consist of text messages between Ms. Hoyer and Ms. Yakimishyn between May 14, 2016 and June 9, 2018, for the purpose of illustrating their relationship during the relevant period. The Union’s position is that the particulars demonstrate that the three grievances are connected and are a part of a pattern of discriminatory and harassing conduct by the Employer which started when Ms. Hoyer was at work and continued while she was on sick leave.

4Based on the particulars and other matters, the Employer made a multi-faceted motion, the main aspects of which are as follows. The Employer takes the position that Grievance 2 and Grievance 3 are untimely and should be dismissed. With respect to Grievance 1, it takes the position that the Union has not made out a prima facie case to support the allegation that the Employer discriminated against Ms. Hoyer on the basis of disability. The Employer also requested that certain particulars be struck on various grounds. This decision addresses only the preliminary issues covered by the Employer’s motion.

5For the purposes of dealing with the motion, I will briefly summarize the key features of the factual context as reflected in the Union’s particulars. At this stage of the proceeding, the Union’s particulars will be assumed to be true. The circumstances that gave rise to Grievance 1 began once Ms. Hoyer returned from maternity leave in October 2017. Once she returned to the workplace, Ms. Hoyer increasingly had concerns about her role in the office and she was unclear about her duties. When she raised concerns about these matters with management during the relevant timeframe, her concerns were not addressed, but instead, it was often suggested that there was something wrong with her and that she was the problem. Ms. Hoyer obtained the assistance of the Union to address her concerns about job duties and other matters. The particulars indicate that getting the Union involved resulted in reprisals against Ms. Hoyer. After the Local Union President asked Ms. Hoyer to make a formal request about her job duties, Ms. Hoyer overheard Ms. Yakimishyn on the phone say, “I have a good mind to pull the opportunity from her” and “if she wants her duties we will bury her with work.” She also heard her manager say, “I have canvassed the supervisors for conflicts with Joedy.” Two days later, Ms. Yakimishyn provided Ms. Hoyer with a brief explanation of her job duties. Ms. Hoyer was told that she was to be backup to the BSA on MPPE which required numerous steps and training. Ms. Hoyer was also advised that a job opportunity at Bracebridge that she had been interested in was no longer available. Between July 30 and August 15, 2021, Ms. Hoyer continued to learn new tasks as she completed the training courses. In an email on August 15, the Local Union President asked Ms. Yakimishyn why the learning opportunity at Bracebridge had been cancelled. On the same day, an email exchange with Ms. Hoyer was initiated by Ms. S. Kashak, Director of Court Operations. Paragraph 22 of the Union’s October 16, 2020 particulars provide as follows:

22. On August 15^th – DCO Sarina Kashak emailed the Grievor and said, “I think it is (sic) for us to talk”. The Grievor asked for union representation. Sarina at first questioned why the local president would need to be there and then ignored her second request to have her present. DCO Sarina Kashak then noted that the reason she was reaching out is that she was concerned about the Grievor’s well-being. The Grievor had never before spoken with DCO Sarina Kashak and found the tone of her emails and refusal to include an OPSEU rep disconcerting/threatening.

6A grievance meeting for Grievance 1 and was held on September 7, 2018. Paragraph 28 of the Union’s October 16, 2020 particulars reads as follows:

28. On September 7^th, stage 2 Grievance meeting occurred at 10:30 am. Present were the Grievor; Local Union President, Tammy Bailey; Ms. Tamaris Yakimishyn; Management Designee Davis Madeiros; and Bonnie Horton from HR (Phone). Ms. Yakimishyn used this meeting as a platform to discuss the Grievor’s poor job performance, poor personal relations within the office and that the Grievor felt that her current position was beneath her as she wished to go back to being a law clerk. She misconstrued, misrepresented and ignored context in her presentation.

7The last paragraph of the Union’s October 16, 2020 particulars that relate to Grievance 1 refer to a meeting that took place on September 12, 2018. The next series of particulars relate to Grievances 2 and 3. They concern events that began in March of 2019, while Ms. Hoyer was on sick leave and about six months after the September 12, 2018 meeting that was the final matter covered by Grievance 1.

8The circumstances that relate to Grievance 2 are as follows. The Employer was provided with a note dated March 5, 2019, from Ms. J. Potvin, NP. Ms. Potvin is a Nurse Practitioner. The note simply advised that Ms. Hoyer is required to be off work for medical reasons and that a return to work had not been established. Ms. Potvin is Ms. Hoyer’s primary medical care professional. She works closely with Dr. C. Luchkiw, Ms. Hoyer’s family doctor. On about March 6, 2019, the Employer informed Ms. Hoyer that the Nurse Practitioner’s note was not enough. A short time later Ms. Hoyer provided the Employer with confirmation from her doctor that the Nurse Practitioner’s note was sufficient.

9The circumstances that relate to Grievance 3 are as follows. In an email dated March 5, 2019, Ms. C. Blancher, a friend of Ms. Hoyer’s, advised Ms. Yakimishyn that Ms. Hoyer wanted further communication from the Employer to go to Ms. Blancher and not directly to Ms. Hoyer. Ms. Blancher indicated that Ms. Hoyer would be preparing an Authorization and Direction to this effect. Ms. Yakimishyn responded by email dated March 8, 2019, to Ms. Hoyer as follows:

This is in response to your authorization form requesting management only correspond with your friend Cindy.

The employment relationship is between the Employer and yourself, the employee. It is your responsibility to continue communicating directly with the Employer and provide responses to any inquiries. If you are medically unable to respond to the Employer, please submit medical documentation. Although you are entitled to a support person during such processes, they are not meant to represent you or respond on your behalf.

10Ms. Yakimishyn was provided with the following note dated April 15, 2019, that was prepared by Ms. Potvin, NP:

Joedy Hoyer is under my medical care. Communications with you and any other management person has a severe adverse effect on her health. All communication should be through Cindy Blancher whose contact information has already been provided to you. I know Joedy has already provided that authorization and direction.

11In September of 2019, Ms. Blancher advised Ms. Yakimishyn that Ms. Hoyer required a letter of employment. Given the consent form she had received from Ms. Hoyer, Ms. Yakimishyn believed that the letter of employment was be sent directly to Ms. Hoyer. In an email dated September 19, 2019, Ms. Blancher addressed the sending of the letter of employment directly to Ms. Hoyer by indicating again that anything sent to Ms. Hoyer must be sent only to Ms. Blancher and the Employer was not to use Ms. Hoyer’s gmail account. Ms. S. Kashak responded to Ms. Blancher by email on October 3, 2019, as follows:

Tamaris has forwarded me your email and your concerns regarding communication with her employee, Ms. Joedy Hoyer. It is not our practice to sever direct communications with an employee that we have an employment relationship with. Our practice is to have communication flow from the next level of management when an employee has alleged issues with their direct report. Moving forward and while Ms. Hoyer remains on LTIP, any necessary communications between her and the employer will come from myself as the Director of Court Operations, central East Region. It is also our understanding that Ms. Hoyer’s inability to communicate directly with management is not currently supported by her medical limitations/restrictions based on our Disability Accommodation Specialist’s discussion with Manulife.

12On the advice of the Union, Ms. Hoyer obtained the following note from Dr. Luchkiw dated January 13, 2020:

I am Joedy’s family physician. I am writing this to inform you that she suffers from a severe medical condition that requires her to be off work indeterminently (sic). Her treatment requires she see medical specialists/allied health practitioners on an ongoing basis. Her medical information is confidential. Please stop trying to contact my patient who is trying to improve her health and overall condition. You may instead, as you are aware, contact Ms. Cindy Blancher, as Ms. Hoyer’s has authorized this person as her point to point contact.

Ms. Hoyer sent the medical note to Manulife in response to the comment from Ms. Kashak on October 3, 2019, so that their disability coordinator would be aware of her medical restrictions.

13Grievance 2 was filed over eleven months after Ms. Yakimishyn had advised Ms. Hoyer that the note from her Nurse Practitioner was not enough. It appears that the Union considers Ms. Kashak’s final comment in her October 3, 2019 email about the communication issue not being currently supported by Ms. Hoyer’s medical limitations/restrictions with Manulife as an indication that the Employer did not accept the note from Ms. Potvin dated April 15, 2019, in which she addressed the communication issue. If the Union is correct on this point, Grievance 2 was filed four months after Ms. Kashak’s October 3, 2019 email.

14Grievance 3 was filed about eleven months after Ms. Yakimishyn provided the Employer’s first response to the communication issue on March 8, 2019. The grievance was filed over four months after Ms. Kashak provided her response on the communication issue to Ms. Blancher by email on October 3, 2019.

15I find it unnecessary to set out the submissions from counsel in detail. I will instead comment on some aspects of the submissions when I address each issue. I note at this point that Employer counsel referred me to the following decisions: OPSEU (Grievor) and Ministry of Health, (2019), G.S.B. File No. 2016-2440 et al. (Anderson); OPSEU (Eagles) and Ministry of Finance (2015), G.S.B. File No. 2013-1923 (Petryshen); OPSEU (Smith et al.) and Ministry of Community and Social Services (2008), G.S.B. File No. 2006-2107 et al. (Gray); OPSEU (Kavanaugh) and Ministry of Community and Social Services (2009), G.S.B. File No. 2007-0136 et al. (Harris); OPSEU (Ng) and Ministry of Government Services (2010), G.S.B. File No. 2009-3379 (Mikus); OPSEU (Berday) and Ministry of Transportation (2008), G.S.B. File No. 2007-3132 (Devins); OPSEU (Lachance) v. Ministry of Community Safety and Correctional Services, 2017 CanLII 30326 (ON GSB) (Briggs); OPSEO (Barker) and Ministry of the Solicitor General (2020), G.S.B. File No. 2018-1146 (Gee); OLBEU (Koonings/Froner) and LCBO (1996), G.S.B. File No. 3483/92 et al. (Stewart); Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and O.N.A. (1995), 1995 CanLII 18345 (ON LA), 47 L.A.C. (4^th) 84 (Watters); OPSEU (Fortin) v. Ministry of Finance, [2017] O.G.S.B.A. No. 18 (Luborsky); OPSEU (Asztemborski et al.) and Treasury Board Secretariat (2017), G.S.B. File No. 2014-4402 (Briggs); OPSEU (Morgan) v. Ministry of Children and Youth Services, 2014 CanLII 30274 (ON GSB) (Tims); OPSEU (Brydges et al.) v. Ministry of Transportation, 2014 CanLII 74778 (ON GSB) (Dissanayake); and OPSEU (Cross et al.) v. Ministry of Community Safety and Correctional Services, 2015 CanLII 60421 (ON ARB) (Misra).

16Union counsel relied on the following decisions: OPSEU (Behich) and Ministry of Education (2020), G.S.B. File No. 2019-1206 (Gee); OPSEU (O’Brien) and Ministry of Community Safety and Correctional Services (2011), G.S.B. File No. 2003-1881 (Leighton); and, OPSEU (Robbins) and LCBO (2015), G.S.B. File No. 2013-0526 et al. (Lynk).

17I will first address the Employer’s request to dismiss Grievances 2 and 3 because they were not filed within the mandatory time frame set out in the Collective Agreement. Under article 22.2 of the Collective Agreement, an employee may file a grievance within 30 days after the circumstances giving rise to the complaint have occurred. Article 22.14.1 provides that a grievance that is not processed with the time allowed shall be deemed to be withdrawn. There is no dispute that the 30-day time limit is a mandatory provision.

18The Union took the position that the time started to run for the filing of the February 11, 2020 grievances when the medical note from Dr. Luchkiw dated January 13, 2020, was provided. Union counsel submitted that the fact that the Employer did not indicate at the time that it intended to comply with the doctor’s request was sufficient to start the time limit clock running. I disagree. The 2020 medical note was filed with Manulife and there is no indication that it came to the attention of the Employer. In any event, the mere presentation of the medical note, without any conduct by the Employer in response to the medical note, cannot be the foundation for the filing of a grievance. It is most likely that the time started to run for Grievance 2 when the Employer informed Ms. Hoyer on about March 6, 2019, that a note from the Nurse Practitioner was not enough. If the Union is correct that the email from Ms. Kashak was a further statement by the Employer that it would not accept a note from a Nurse Practitioner, the time started to run for Grievance 2 by no later than October 3, 2019. At the latest, the time started to run for Grievance 3 on October 3, 2019, when Ms. Kashak provided her response to Ms. Blancher on the communication issue and perhaps even earlier, on March 8, 2019, when Ms. Yakimishyn provided her response to Ms. Hoyer on the communication issue. It is quite evident therefore that the February 11, 2020 grievances were filed well after the 30-day time limit. Grievance 2 and Grievance 3 were filed at least three months late. The next question to be determined is whether it is appropriate to exercise my discretion under subsection 16 of section 48 of the Labour Relations Act to extend the time for filing Grievances 2 and 3.

19The factors that arbitrators consider when dealing with a request to extend time limits are well known. These main factors include the length of the delay, the nature of the grievance and the reason for the delay.

20The delay in these instances occurred in initiating the grievances. The delay of at least three months in filing both grievances is substantial. It is fair to say that the delay in each instance is not merely a technical matter.

21In assessing the nature of the grievances, I appreciate that the Union takes the position that the circumstances that gave rise to the grievances are part of a pattern of the Employer’s discriminatory and harassing treatment of Ms. Hoyer. However, Employer counsel’s assertion that the two grievances arose simply from two distinct issues during Ms. Hoyer’s sick leave is not an unreasonable perspective. One issue concerns whether it was proper for the Employer to refuse to accept a note from a Nurse Practitioner. This is not the more serious of the two issues. The other issue relates to whether the Employer can communicate directly with Ms. Hoyer after March of 2019 or after the receipt of the April 15, 2019 medical note from Ms. Potvin, NP. This issue can be viewed as serious for Ms. Hoyer who has been on sick leave for a long time and who is focusing on regaining her health. However, the nature of the grievances and the allegations of discriminatory and harassing treatment against Ms. Hoyer are not so serious that they would warrant by themselves an extension of the time limits.

22What is absent here is a specific explanation for why the grievances were not filed in a timely way. As Union counsel emphasized, Ms. Hoyer has been on sick leave for a long time. And I appreciate that the nature of her illness could pose some difficulties when it comes to engaging in work related issues. However, Ms. Hoyer did file the two grievances in question and there is some indication from the particulars that she was able to engage with the Union at times, with Ms. Blancher and with medical professionals about work related matters during the relevant time frame. There is no indication that Ms. Hoyer was incapable of filing grievances in a timely manner. And there were no medical note provided by Ms. Hoyer’s Nurse Practitioner or family doctor to establish that Ms. Hoyer’s illness prevented her from challenging the Employer in a timely way with respect to the two matters that were the subject of her grievances. The absence of satisfactory reason for the delay in filing Grievances 1 and 2 weighs strongly against an extension of the time limit.

23I am satisfied that a consideration of the relevant factors in light of the circumstances in this case do not favour an extension of the time limits. Accordingly, Grievances 2 and 3 are hereby dismissed.

24The next issue is the Employer’s contention with respect to Grievance 1 that the Union has not made out a prima facie case to support the allegation that the Employer discriminated against Ms. Hoyer contrary to the HRC. The Employer requests that I dismiss that aspect of Grievance 1 which claims discriminatory treatment on the ground of disability. After reviewing the particulars and after considering the submissions of counsel, I am satisfied that the Employer’s position on this issue has merit. There is no assertion that Ms. Hoyer had a disability before Grievance 1 was filed. There is also no assertion that the Employer had any knowledge that Ms. Hoyer had a disability before she filed Grievance 1. In my view, it is difficult to make out a prima facie case of discriminatory treatment when these elements are not present. In support of its position the Union referred to paragraph 22 of the Union’s October 16, 2020 particulars and its theory of gaslighting. It claims that the Employer engaged in gaslighting with Ms. Hoyer when it did not take her concerns seriously and when instead it turned around and suggested that she was the problem and that there was something wrong with her. It was then suggested that the Employer appeared to treat Ms. Hoyer on the basis of a perceived disability. In my view, it is quite a stretch to read paragraph 22 of the particulars and the gaslighting theory to base a prima facie case of discriminatory treatment on the ground of disability. I have not been convinced that any gaslighting by the Employer resulted in the perception by the Employer that Ms. Hoyer had a disability and that it discriminated against her on the basis of that perception. I do not see this reflected in paragraph 22 or any other paragraphs in the relevant particulars. I therefore find that the Union, in relation to Grievance 1, has not made out a prima facie case of discriminatory treatment on the basis of disability against Ms. Hoyer by the Employer. Accordingly, the HRC discrimination claim contained in Grievance 1 is hereby dismissed.

25The Employer requests that I strike paragraph 28 from the October 16, 2020 particulars because it contains statements made by Ms. Yakimishyn during a stage 2 grievance meeting. Employer counsel argued that the grievance procedure privilege is applicable in this instance and that it precludes the Union from calling evidence about what was discussed at the stage 2 grievance meeting. Union counsel acknowledged the rule relating to discussions during grievance meetings, but noted that there are exceptions to the rule and he argued that an exception to the general rule should be made in this instance. He submitted that the statements made by Ms. Yakimishyn at the stage 2 meeting on September 7, 2019, are further examples of gaslighting by the Employer against Ms. Hoyer and that this Employer conduct should not be shielded by the grievance procedure privilege. Union counsel submitted that I should hear evidence of what occurred at the stage 2 meeting and decide later what weight, if any, to give to that evidence.

26The suggestion that I should first hear the evidence of what occurred at the stage 2 meeting is of course what the grievance procedure privilege is intended to prevent. Although I agree that there can be exceptions to the privilege, those exceptions are likely rare and should be based only on compelling circumstances. After reviewing the contents of paragraph 28 of the particulars, I have not been convinced that it would be warranted in these circumstances to make an exception to the grievance procedure privilege. Therefore, paragraph 28 is hereby struck from the October 16, 2020 particulars provided by the Union.

27After reviewing the other Employer requests to strike other paragraphs in the particulars, I am not inclined to do so at this time. For example, the request to strike the March 31, 2021 particulars that provide a history of text messages between Ms. Hoyer and Ms. Yakimishyn can be addressed more appropriately during the course of the hearing when a proper assessment can be made of their relevance. Similarly, the other Employer requests to preclude the Union from calling certain evidence can be addressed more appropriately during the course of the hearing.