Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Solicitor General), 2021 CanLII 48174

GSB# 2018-3680

UNION# 2018-0248-0163

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 Solicitor General)

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Manprit Singh Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 7, 2021

Decision

1A hearing was held on May 7, 2021 in regards to two grievances filed on behalf of the Grievor on October 10, 2018, and July 11, 2019. The first grievance alleges that the Employer failed “to ensure a safe working environment that is free from workplace harassment and/or workplace sexual harassment.” The second grievance contends that the Grievor was subjected to “differential treatment, discrimination and condonation of the same, by failing to conduct a timely workplace investigation into serious claims of misconduct against me.” This second grievance alleges also that the Employer treated the Grievor differently than other OPS employees “in applying their policies contrary to the Ontario Human Rights Code and have abused their management rights.”

2At the hearing two preliminary matters arose with respect to this matter. First, the Union requests that the Board anonymize the Grievor’s name in this and any future decisions that it issues in this proceeding. Second, the Union seeks an order for disclosure of the personnel file of the employee against whom the Grievor alleges sexual harassment.

3The Union submits that it seeks to anonymize the name of the Grievor in decisions issued so as to protect the Grievor’s privacy in light of the sensitive nature of personal and medical information at issue in the matters before the Board at this hearing.

4In opposing the Union’s motion for anonymization the Employer took the position that the Union had not met the onus of demonstrating an exceptional or compelling privacy interest that outweighed the presumption of publication inherent to the open court principle.

5Both Parties referenced and relied upon Arbitrator Abramsky’s decision in Re OPSEU (Cull) v. Ontario (MOHLTC) (2017 CanLII 1798).

6Having heard the submission of the Parties, I am satisfied that this is an appropriate case for anonymization. Accordingly, in the instant decision and subsequent decisions there will be anonymization of the names of both the Grievor and the individual against whom have been brought allegations of sexual harassment.

7In addressing the second preliminary matter the Employer opposes production of the personnel file of the employee against whom the Grievor has made allegations of sexual harassment. It does so both on the basis of relevance as well as seeking to protect the privacy of the employee.

8Having heard the submissions of the Parties, I hereby order the production of documents contained within the file of the employee identified in the foregoing paragraph seven against whom the Grievor has made allegations of sexual harassment and which pertain to the following issues and specified time periods:

(i) Any documents relevant to this employee’s lack of participation in any WDHP investigation into the alleged harassment of the Grievor;

(ii) Any disciplinary or counselling notes on file from the Fall of 2016 to the present time;

(iii) Any conflicts of interest filed by this employee from the Fall of 2016 to the present time.

(iv) Any documents relating to the transfer of this employee to the institution where the alleged harassment of the Grievor occurred.

(v) Any documents relating to COCAP or CSOI investigations into this employee’s alleged harassment of the Grievor.

9Employer Counsel will review this employee’s file and provide to the Union all documents relevant to the issues and time periods identified above, subject to the Board’s deemed undertaking rule.

10With respect to health information contained in the relevant documents to be provided, Employer Counsel may redact details and information that is not relevant to the issues in dispute in the interest of protecting the employee’s privacy. The Union retains all rights to challenge the propriety of any such redactions.