GSB# 2019-1995; 2019-2941; 2020-1545

UNION#2019-0290-0012; 2020-0290-0004; 2020-0290-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jackson)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Iliad Nazhad Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 18, 2021

DECISION

1The Union and Employer have agreed that I will hear three individual grievances filed by Ms. Jackson. A description of the proceedings to date can be found in the Board’s decisions of April 26, 2021 and May 11, 2021: Ontario Public Service Employees Union (Jackson) and The Crown in Right on Ontario (Ministry of Children, Community and Social Services), GSB#2019-1995; 2019-2941; 2020-1545, April 26, 2021 (Banks); Ontario Public Service Employees Union (Jackson) and The Crown in Right on Ontario (Ministry of Children, Community and Social Services), GSB#2019-1995; 2019-2941; 2020-1545, May 11, 2021 (Banks).

2The Union provided a revised Statement of Particulars on May 27, 2021. The Employer brings a motion to strike certain particulars for insufficiency or lack of relevance, and a motion to dismiss two of the three grievances on the grounds that they both are untimely and fail to present a prima facie case of Collective Agreement breach.

3The Union brings a motion for an order directing the Employer to disclose certain additional documents and information.

4I will begin by setting out my decision with respect to the Employer’s motion to dismiss, as this determines the scope of the remaining issues.

Motion to dismiss

5The first grievance that is the object of the Employer’s motion was filed on January 10, 2020. It states: “I grieve that the Employer violated Article 2 (Management Rights) and Article 3 (No Discrimination / Employer Equity) of the Collective Bargaining Agreement, the Respectful Workplace Policy (The Policy), Section 5(2) of the Ontario Human Rights Code (The Code) and all other acts, legislations, policies, protocols, and practices that are applicable.”

6The second was filed on February 10, 2020. It states: “I grieve the Employer violated Article 2, Article 3, Article 22.10.1, the WDHP process and all other Acts, laws, legislations, Policies and procedures that may be applicable.”

7The Employer submits that these grievances are untimely. It notes that the Grievor left the workplace on May 6, 2019, following the imposition of disciplinary suspensions, and never returned; that she filed a grievance on May 12, 2019; that this indicates that she was capable of filing a grievance; and that the two later grievances were not filed until 7 and 8 months afterwards, despite the fact that all of the events on which they were based allegedly took place before May of 2019. The Employer maintains that these grievances were evidently not based on information that came to Ms. Jackson following her absence from the workplace, and that there is no reason why the circumstances giving rise to them would not have been known to her at the time she left the workplace. The Employer points out that Article 22 of the Collective Agreement requires that grievances be filed within 30 days of the date upon which the circumstances giving rise to the grievance occur or have come or ought reasonably to have come to the attention of the Grievor. The Employer submits that Ms. Jackson should be held responsible for her failure to do so.

8The Employer maintains that an extension of time under Article 22.14.7 is not warranted because none of the factors that might justify such an extension of time is present. The Employer notes that arbitrators have treated delays of 2 to 4 months as substantial or significant, and refused to exercise their discretion to extend timelines on that basis, even where the grievance related to serious matters, such as lengthy suspensions: Ontario Public Service Employees Union (Smith et al.) and The Crown in Right of Ontario (Ministry of Community and Social Services), GSB Nos. 2006-2107, 2006-2379 (Gray); Ontario Public Service Employees Union (Kavanaugh) and The Crown in Right of Ontario (Ministry of Community and Social Services), GSB Nos. 2007-0136, 2007-2649 (Harris); Ontario Public Service Employees Union (Ng) and The Crown in Right of Ontario (Ministry of Government Services), GSB No. 2009-3379 (Mikus); Ontario Public Service Employees Union (Berday) and The Crown in Right of Ontario (Ministry of Transportation), GSB No. 2007-3132 (Devins). The Employer also submits that the nature of the dispute cannot on its own result in an extension of time. Otherwise, the Employer maintains, the timeliness requirement of the Collective Agreement would become meaningless in any serious case: Ontario Public Service Employees Union (Lachance) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 CarswellOnt 21770 (Briggs) at para 70. The Employer also refers me to Ontario Public Service Employees Union (Bremner) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB Nos. 2017-2936, 2017-2937, 2018-2950 (Misra); Ontario Public Service Employees Union (Faulkner) and The Crown in Right of Ontario (Ministry of the Community Safety and Correctional Services), GSB No. 2006-2093, September 23, 2008 (Petryshen); Ontario Public Service Employees Union (Liantzakis) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2006-2093, October 16, 2014 (Tims).

9The Union responds that the Grievor was on Long Term Income Protection (LTIP) benefits, out of the workplace, and not focused on timeliness concerns. The Union maintains that there is no onus on it to provide reasons for the delay in filing the grievance, and that such reasons are just one of six factors identified in the decisions cited by the Employer that arbitrators will consider in deciding whether to exercise their discretion to extend time limits for filing a grievance. The Union submits that the burden to show that it is not appropriate to exercise that discretion lies with the Employer, not the Union.

10In reply, the Employer maintains that while it has the burden to prove that timelines were not met, the Union has the burden to show why discretion should be exercised to relieve against them.

11Both grievances filed in 2020 are clearly untimely in relation to the requirements of Article 22.2. All of the events upon which they are based, according to the Union’s Statement of particulars, took place at least 7 months before the date of the first grievance, well beyond the 30-day time limit in Article 22.2.

12I can see no reason to exercise my discretion under Article 22.14.7 to extend timelines. As the Employer points out, Ms. Jackson’s delay was considerably longer than what arbitrators have considered to be substantial or significant enough to weigh heavily against an extension of time: see Kavanaugh, Smith, Berday, and Ng, supra. The Grievor and the Union offer no real explanation for this. It cannot be sufficient to say that Ms. Jackson was unfocused on timeliness concerns for a seven or eight month period of time. If there were concrete reasons for not paying attention to time limits, the grievor and the Union must provide them. I cannot assume such reasons simply because the Grievor was on LTIP benefits, especially as she was able to file a grievance on May 12, 2019. The Union and Grievor bear the onus of establishing why an extension is appropriate.

13The grievances bearing Board file numbers 2019-2941 and 2020-1545 are dismissed.

14In light of this determination, I need not consider the Employer’s additional arguments that those grievances fail to set out a prima facie case of Collective Agreement breach.

The Motion to Strike Particulars

15In my April 26, 2021 decision in this matter, I found that numerous particular allegations set out in the Statement of Particulars provided by Ms. Jackson and the Union were insufficiently detailed. In light of Ms. Jackson’s mental health experiences, I declined to strike those particulars and provided her with an opportunity to produce further and better ones. On May 27, 2021 Ms. Jackson and the Union delivered a revised Statement to the Employer.

16The Employer’s motion to strike has two bases. First, the Employer submits that many particulars remain insufficient, and that new insufficient particulars were added to the Statement. Second, the Employer contends that many particulars have no relevance to the grievance over which I have jurisdiction. I will consider each basis in turn.

Insufficiency of Particulars

17As the Employer points out, the elements of paragraphs 22, 30, 31, 32, 33, 39, 46, 59, 66, 68, 71, 76, 78, 82, 85, 97, 101,102, 104, and 106 found to be insufficient in the April 26, 2021 ruling remain unchanged. It submits that these passages should therefore be struck. The Employer and the Union made detailed submissions with respect to several of these unchanged paragraphs.

18Paragraph 22 alleges that “[a]round 2017 to 2019, Ms. Jackson unsuccessful [sic] attempted to arrange a meeting with Director Bradley Hoover”. The Union maintains that while Paragraph 22 lacks detail the Union and the Grievor should be able to speak to Ms. Jackson’s attempts to meet with Director Hoover in light of her more particularized allegations that she could not get meetings with her supervisors. I do not accept this argument. As the April 26, 2021 decision makes clear at paragraphs 26 and 52, and employer should have not have to wait until a hearing to obtain disclosure of dates of alleged occurrences, or have to search its records over an unspecified period of time. This is essentially what the Employer would have to do in response to paragraph 22. Paragraph 22 is struck.

19The Employer submits that paragraphs 30 to 32, which are unchanged in the May 27, 2021 version of the Statement, should be struck. In the alternative, the Employer submits that they should be struck in part. The Union submits that the April 26, 2021 decision did not find the particulars in Paragraphs 30 to 32 of the Statement to be insufficient, and that both paragraphs should remain in their entirety. In paragraph 57 of the April 26, 2021 decision I found that the particulars in those paragraphs were sufficient, except that (1) they failed to provide information regarding any meeting that Ms. Jackson may have had with YSM Heshmet or any attempt that she may have made to obtain such a meeting; and (2) they failed to particularize what she meant by a young person giving her a “difficult time on Unit 3B”. Ms. Jackson has not provided this information. However, in the context of the revised Particulars as a whole, I now consider that the absence of these pieces of information represents two minor gaps that do not impair the ability of the Employer to respond to the grievance. I decline to strike the relevant parts of paragraphs 31 and 32.

20The Union contends that paragraph 39 of the Statement is sufficient in that it provides dates and specifics of comments made to Ms. Jackson. However, as noted in paragraph 61 of the April 26, 2021 decision, paragraph 39 provides only one example involving one YSM in support of an allegation that two YSMs frequently belittled her. The second sentence of paragraph 39 is struck. The Union may call no evidence in support of the very broad allegation in the first sentence of paragraph 39 except to the extent that it is probative of allegations sufficiently particularized elsewhere in the Statement.

21The Employer submits that the last sentence of paragraph 46 should be struck, as it was found to be insufficiently particularized in the April 26, 2021 decision, and remains unchanged. The Union contends that the last sentence of paragraph 46 is now supported by new particulars added to paragraph 29 and elsewhere in the Statement. I decline to strike that sentence, but find that the Union may not call any evidence in support of the broad allegation that it makes except to the extent that such evidence is probative of allegations sufficiently particularized elsewhere in the Statement.

22The Employer submits that paragraph 59 should be struck in its entirety. The Union submits that paragraph 59 provides sufficient particulars in light of the detail provided in the rest of the Statement. I decline to strike paragraph 59, but will restrict the evidence that may be called in support of the matters to which it refers. More specifically, the Union may call evidence that YSO Liu said what she is alleged to have said in that paragraph, but may not call any evidence to prove the truth of her alleged statements that “other staff say bad things about Ms. Jackson” or that Ms. Liu “was involved in a safety breach… but it did not result in any discipline against her” unless such evidence is probative of allegations sufficiently particularized elsewhere in the Statement.

23Paragraph 76 of the Statement alleges that “other officers leave sauces of different kinds in the refrigerator” and that this was condoned by the Employer. In paragraph 74 of the April 26, 2021 decision I found that the particulars in paragraph 76 were insufficient in that they provided no information on what kinds of sauce the other officers allegedly brought in, when they did so, or how the Employer would have known. The Union clarifies in its submissions that the bringing or storing of sauce in the refrigerator was “essentially occurring every day” around the time that Ms. Jackson was disciplined, and that “hot sauce is within the umbrella of food that would go into the servery fridge”. These clarifications would address the question of when the actions in question took place, and how the Employer might have known, and the arguable relevance of the paragraph’s allegations. I direct the Union to amend paragraph 76 to more clearly reflect the position taken in its submissions.

24The Employer submits that Paragraph 97, which alleges that “[t]he impact of the employer’s conduct from 2017 onward, has resulted in the deterioration of Ms. Jackson’s mental health” provides insufficient particulars. The Union responds that this is a reasonable assertion on the basis of the other particulars provided. In my April 26, 2021 decision I observed that the Employer was entitled to further information on the alleged deterioration of Ms. Jackson’s mental health. But I did not rule that this information necessarily had to be provided by way of the Statement of Particulars. It might be provided by way of disclosure of medical evidence. It is only necessary at this stage to particularize alleged Collective Agreement breaches.

25Paragraphs 33, 66 (second sentence only), 68, 71, 78, 82, 85, the first subparagraph of paragraph 100, and paragraphs 101, 102, 104, and 106 remain unchanged without any apparent justification. They are struck for the reasons set out in the April 26, 2021 decision.

26The Employer also maintains that several paragraphs either remain insufficient despite further particulars added to them or contain new insufficiencies as a result of the additions.

27In paragraph 8 the Union sets out several new subparagraphs in support of Ms. Jackson’s general allegation that the Employer has condoned the conduct that she was disciplined for on May 6, 2019. The Employer submits that many of these subparagraphs fail to provide sufficient particulars. The Union responds that the incidents in question illustrate how rules are deviated from at RMYC and not applied consistently.

28Having carefully reviewed the text of paragraph 8, I find that the allegations in the second sentence of paragraph 8(a), and in paragraphs 8(f), 8(h) and 8(j) are not sufficiently particularized to meet the longstanding Board requirements discussed in paragraphs 24 to 27 of the April 26, 2021 decision. They are therefore struck.

29The Employer submits that paragraph 23 should be struck because further particulars required in the April 26, 2021 decision were not provided. That decision indicated that further particulars about who took Ms. Jackson off of a recreation assignment were required. The Union responds that paragraph 23 is about Employer decisions to remove Ms. Jackson from escort duties and from the Equity, Diversity and Inclusion Committee, and to transfer her from unit 3B. On this understanding of the scope of paragraph 23’s allegations, and on the specific understanding that it does not contain a challenge to the Employer’s decision not to return Ms. Jackson to a recreation assignment, paragraph 23 may remain as it is.

30The Employer maintains that despite the additional particulars added by the Grievor to paragraph 35, it remains insufficient as found by the Board in the April 26, 2021 decision. The further particulars clarify that an alleged meeting between colleagues and a manager was about Ms. Jackson’s treatment at the workplace, and that by making of a joke of this issue, managers and her colleagues allegedly made a joke of her. The further particulars also indicate that the alleged threats to Ms. Jackson’s job security by a colleague arose out of the alleged meeting about her. This is sufficient information to respond to the Board’s findings in the April 26, 2021 decision. I decline to strike paragraph 35.

31The Employer contends that particulars in paragraph 45 remain insufficient despite the addition of further detail to its allegations. The Employer argues that there is no information on the relevant dates, and that the information provided does not supplement in any meaningful way the Grievor’s claim that other employees were harassed. The Employer notes specifically that the last sentence of the paragraph does not say why other employees allegedly refused to work on the unit in question. As indicated in the April 26, 2021 decision, the time frame in question can be inferred directly from the previous paragraph, and is around September, 2018. This is sufficiently precise. In context, the “workplace issues” allegedly leading other employees to refuse to work on the unit must be understood to be those particularized earlier in the paragraph. I decline to strike this paragraph, but note that the Union and Grievor will not be permitted on the basis of the last sentence to lead evidence of issues other than those sufficiently particularized in elsewhere in the Statement.

32The Employer submits that the particulars in paragraph 99 remain insufficient, and that the further particulars simply add similarly insufficient information. In the April 26, 2021 decision I found that this paragraph failed to specify which training, mentorship, and shadow opportunities Ms. Jackson was allegedly denied, when and by whom. The new particulars specify that she “was given only one shift in Epic” during the period between 2016 and 2019. They also add a subparagraph alleging that in March of 2019 mentorship of a new group of staff recruits was assigned to virtually everyone else in Unit 4 A, excluding Ms. Jackson. The Employer submits that “virtually everyone else” is vague. In context, I think it is clear enough, given the specific timeframe and limited number of people involved. I do agree however with the Employer that the last two sentences of the first subparagraph of paragraph 99 remain insufficiently particularized. They are struck.

33Finally, I agree with the Employer that the allegations in paragraph 105 remain insufficiently particularized, for the reasons set out in the April 26, 2021 decision. Paragraph 105 is struck.

Lack of Relevance to the Grievance

34I turn next to the Employer’s contentions that certain particulars have no relevance to the grievance.

35The question on a motion to strike particulars for lack of relevance is whether, even if accepted as true, they could not serve to demonstrate a collective agreement breach alleged in the grievance because they are not arguably probative of any such breach: see the April 26, 2021 decision in this matter at paragraphs 36 to 41 and the Board decisions discussed therein.

36I will begin by clarifying the scope of Collective Agreement breaches alleged in the grievance because this is a contested matter, specifically but not exclusively in relation to paragraphs 98 to 107 of the Statement of Particulars.

37The Union maintains that all of the particulars in the Statement are ultimately subsumed under the first grievance. It contends that they are all relevant to determining whether there was a pattern of isolating or targeting incidents directed against Ms. Jackson or whether these had effects on her.

38The Employer objects. It maintains that the Union took the position in earlier proceedings leading to the September 15, 2020 decision that the timing and context of the May 12, 2019 grievance made evident that it was about the discipline imposed upon Ms. Jackson. The Employer notes that at no point in proceedings leading to the September 15, 2020 decision did the Union mention job competitions, transfers, mentorship opportunities, or allegations that coworkers did not like Ms. Jackson and did not want to work with her. It argues that the grievance has strayed into new matters, and that the Union’s current position on the scope of the grievance borders on an abuse of process.

39A grievance should be liberally construed so that the real complaint can be dealt with: see Jackson, September 15, 2020, supra, at para 44, and the decisions cited therein. That said, it cannot be open to the Union to add matters to that complaint in ways that would circumvent the time limits and grievance procedures agreed to by the parties in the Collective Agreement.

40The grievance is dated May 12, 2019 and was received by the Employer on May 14, 2019. It reads as follows: “I grieve the employer violated Articles 2, 3, and 22 of the Collective Bargaining Agreement and all other Acts, laws, legislations, policies and practices.” It seeks “to be made whole” and “full redress”, by way of remedy.

41On its face, the grievance raises the issue of discrimination by referencing Article 3 of the Agreement. However, it provides no statement of events giving rise to its claims. The remedies that it requests are broadly worded and provide no indication of the nature of its claims. The scope of the grievance must therefore be inferred from surrounding circumstances.

42In a decision dated September 15, 2020 I ruled that this grievance included a claim that the Employer lacked just cause for two 15 day suspensions that it imposed on Ms. Jackson on May 6, 2019: Ontario Public Service Employees Union (Jackson) v. The Crown in Right on Ontario (Ministry of Children, Community and Social Services), GSB#2019-1995, September 15, 2020 (Banks). At the hearing on July 22, 2020 preceding that decision, the Employer took the position that the grievance did not raise the issue of whether the discipline imposed was just and appropriate. This of course implies that the Employer recognized that it raises some other discrimination claim. The September 15, 2020 decision concluded that the grievance did raise the issue of whether the suspensions were just and reasonable, based on statements made by the parties in the course of grievance procedures, and on the fact that the grievance followed the imposition of discipline by a few days.

43That is as far as the ruling went. The Board did not determine the full scope of the grievance because that was not in issue. While, as the Employer points out, the Union did not mention other issues, the Union was simply responding to the Employer’s motion rather than delineating the scope of the grievance.

44The evidence, arguments and findings leading to the September 15, 2020 decision do however provide some indication of the complaints raised in the grievance. In those proceedings, the Union sought to characterize a letter from the Grievor to the Union dated June 2, 2019 and delivered to the Employer on June 26, 2019 as a new grievance alleging a continuation of conduct giving rise to the earlier one. The letter says the following in its relevant part:

My rights as an Ontario Public Service (OPS) Employee per the collective bargaining agreement were breached. Specifically, the progressive discipline rules were not followed that led to my unpaid 30-day suspension. I am grieving the fact that management did not take my concerns seriously after a request in November 2018 to address gender discrimination and poisonous work environment concerns. I consider this to be a failure to act on behalf of management. As a result, I did not have an opportunity to meet with management as per Article 21.1.1. As per the OPS collective agreement, an employee is to be given first a warning and then a second warning, prior to any discipline including a suspension. In my case, I did not receive a formal first warning. I did however receive a written warning on November 22, 2018 from an incident stemming from August 2018. I consider this to have been my first warning. On May 6, 2019 I was suspended for 30-days without pay. As stated, management has breached my rights as an employee by not following the progressive discipline procedures.

The letter did not in fact allege any events taking place after May 6, 2021. It provided no basis upon which to find a continuing grievance after that date. The Union’s submissions in this regard were without merit. After reviewing communications between the parties during the grievance procedure, I found that the Union had not in fact presented this letter as a new grievance or said at the time it was delivered to the Employer that it added anything to the May 12, 2019 grievance. I found that the Employer had reasonably concluded that it did not. In the circumstances, it is fair to say that the letter was simply a statement from Ms. Jackson to the Union regarding the subject matter of the original grievance that the Union had then communicated to the Employer. I do not find in this context that the Union’s attempt to characterize the letter as a new grievance, likely for strategic reasons, amounted to a waiver or alteration of any claims made in the original grievance.

45This being so, the letter can provide some indication of the real complaint, though it was not an attempt by the Grievor or the Union to fully define the scope of the grievance, or to particularize it. The Grievor’s statements in the letter indicate that from the outset the grievance connected allegations of discrimination and a poisonous work environment to the imposition of discipline. In between claims of lack of just cause, it complains that “management did not take my concerns seriously after a request in November 2018 to address gender discrimination and poisonous work environment concerns”. It adds that “I consider this to be a failure to act on behalf of management”. The letter indicates that in the Grievor’s view the Employer had failed to take action in response to a poisonous work environment, and that the discipline lacked just cause.

46The next indications of the scope of the grievance come from the fact that the Grievor felt the need to file additional grievances on January 10 and February 10, 2020. Neither grievance contains any statement of the events giving rise to it. But the remedies that each seeks indicate the nature of their claims. The first seeks: “1. Restitution for loss of overtime opportunity 2. Compensation for undue hardship 3. Developmental opportunities 4. Workplace free from harassment and toxic work environment.” The second seeks: “Promotion to Youth Services Manager with appropriate wage protection, Compensated for all losses sustained, To be made whole, Full redress”. The remedies sought indicate that the object of the grievances was denial of developmental opportunities, overtime opportunities, and promotion. The remedies sought also suggest that the January 10, 2020 grievance claims that such denials resulted from or formed part of a history of harassment or toxic work environment.

47The drafting and presentation of these three grievances indicates that Ms. Jackson’s complaint in the first grievance was about alleged discipline without just cause on May 6, 2019, a related failure to take action against a toxic work environment, and alleged discrimination in both. The second and third grievances added claims about denial of overtime, developmental opportunities and promotion. They related at least some of these claims to an alleged toxic work environment, harassment and discrimination.

48The drafting of the Statement of Particulars is consistent with this view of the grievances. The Statement contends at paragraph 19 that Ms. Jackson has been discriminated against on the basis of the race, gender and disability, and that “The Employer’s 30-day suspension is a part of the pattern of harassment and discrimination that she has endured at RMYC.” The Statement then goes on to detail a set of allegations under the heading “2019-0290-0012 – File May 10, 2019 - Harassment, Discrimination (Race, gender, Disability), Unjust Discipline, Job Opportunities”. These allegations make no mention of denial of job opportunities. The Statement then details under the heading “Career Advancement at RMYC based on discrimination and harassment (#2020-0290-0004)” a set of allegations of denial of career advancement opportunities. These are at paragraphs 98 to 107. The number in that heading is the Union file number for January 10, 2020 grievance. The complaints about denial of career advancement appear to have arisen after the original complaints of toxic work environment and unjust discipline, and to have been the object of separate and untimely grievances.

49I am therefore of the view that many of the allegations set out in paragraphs 98 onwards of the Statement of Particulars relate to matters that fall outside of the scope of the original grievance filed in response to the discipline imposed on Ms. Jackson. I will return to those paragraphs below. But first I will address the Employer’s other relevance arguments in the order in which it raised them.

50The Employer maintains that allegations added by the Union to paragraph 8 should be struck. The allegations are essentially that in specific instances the Employer condoned actions for which Ms. Jackson was disciplined.

51Ms. Jackson is accused in essence, of: (1) violating policies regarding contraband, thus jeopardizing the safety and health of staff and youth and failing to meet Ministry standards of professional behaviour, by allowing youth access to hot sauce and leaving it in the RMYC server; (2) disregarding unit procedures by allowing a program to be run by a youth during quiet time; (3) being insubordinate by failing to submit an occurrence report regarding the latter incident when it was requested by her manager; and (4) violating OPS policy on the acceptable use of information technology resources and creating a health and safety concern by allowing youth access to music contrary to Employer rules. It is arguable (and a longstanding view of many arbitrators) that an employer’s failure to enforce rules consistently can constitute a form of condonation relevant to whether there was just cause for discipline. Ms. Jackson’s grievance challenges cause for discipline, and her Particulars have maintained from the outset that the Employer has condoned the conduct for which she was disciplined. Proof of recent instances in which the Employer failed to consistently enforce rules similar to those that Ms. Jackson was disciplined for contravening would therefore be at least arguably probative of her claim that she was disciplined without just and sufficient cause.

52Paragraphs 8(b) and 8(d) allege security or safety violations coming to the attention of management that took place within less than one year of the incidents giving rise to the discipline imposed on Ms. Jackson, and for which other YSOs were allegedly not disciplined. Paragraph 8(d) also alleges that a YSO’s failure to produce an occurrence report in response to a request from a manager, within the same time frame, was not subject to discipline. Similarly, paragraph 8(g) alleges that a staff member ran a program after lockup time at the facility, about a year and a half before the incidents for which Ms. Jackson was disciplined, to the knowledge of an office manager, and without discipline. Proof of each of these allegations would arguably be probative of the claims made in Ms. Jackson’s grievance. I decline to strike them.

53Paragraph 8(c) alleges that:

“In the summer of 2017 YSO Kara Brown took out recreation keys when on youth officer duties and fight ensued at recreation. Staff were injured. YSO Liu was not disciplined.”

I am prepared to assume that the reference to YSO Liu was by mistake and that it should have been to YSO Brown. However, the particulars provide no basis upon which to infer that the fight had anything to do with the taking out of the keys, or that the taking of the keys was contrary to Employer rules. The Union and Grievor have not provided sufficient information. I cannot conclude that these allegations, if accepted as true, would be arguably probative of a claim made in the grievance. Paragraph 8(c) is struck.

54Paragraph 8(e) alleges that a YSO created a plan permitting certain youth to access DVDs and MP3 players, but makes no allegation that management was aware of the program, and provides no information indicating why such a program would have been contrary to Employer rules or policy. The Particulars and submissions of the Union provide no basis upon which to conclude that this paragraph is arguably probative of the grievance. Paragraph 8(e) is struck.

55Paragraph 8(i) alleges that during the 2018 football season staff would print betting sheets for youth, and that “staff engage in card games on the unit”. Paragraph 8(i) makes no allegation that could support an inference that management was aware or ought reasonably to have been aware of this conduct, and provides no information indicating why staff card games would have been contrary to Employer rules or policy. Without this, the allegations are not arguably probative of Ms. Jackson’s claims of condonation. Paragraph 8(i) is therefore struck.

56The Employer submits that further particulars added to paragraph 19 about a colleague complaining openly about having to work mainly with female YSOs contain no allegation that anyone reported her colleague’s complaints to management or that it was aware of them. The Employer submits that they are therefore not sufficient to be probative of Ms. Jackson’s discrimination claims. The Union maintains that the allegations are relevant to proving her experience of discrimination based on sex or gender, and are sufficiently particularized. The allegations relate to an individual about whose conduct Ms. Jackson makes numerous other allegations in the Statement. Ms. Jackson alleges that she made attempts to raise with management her concerns about a poisoned work environment, including her concerns about this individual, but was met with a lack of interest and a dismissive response. In this context the further particulars are arguably probative of Ms. Jackson’s claims of discrimination. I decline to strike them.

57The Employer submits that further particulars added to paragraph 28 should be struck, because they contain no information on how the incidents they describe constituted harassment or discrimination. The Union responds that in the first incident Ms. Jackson suffered embarrassment when a youth with whom she was playing a board game was searched because colleagues thought that the game had gone on too long and that this seemed suspicious. It maintains that the second alleged incident shows, when taken together with information provided in paragraph 38, how Ms. Jackson’s decisions to discipline youth were treated with less respect at RMYC than similar decisions made by colleagues. In my view, the allegations in these paragraphs are arguably probative of Ms. Jackson’s discrimination, harassment or toxic work environment claims. I decline to strike the first two subparagraphs of paragraph 28. I agree however with the Employer that the allegations in the third subparagraph remain insufficiently particularized. The third subparagraph of paragraph 28 is struck.

58This brings me back to the Employer’s arguments concerning paragraphs 98 to 107.

59Of those paragraphs, only 98, 99 (except the last two sentences of its first subparagraph), 100, 103, and 107 remain, the rest having been struck as providing insufficient information.

60Among other things, paragraphs 98 and 99 assert, without providing any further information, that: (1) Ms. Jackson applied for and was not selected for a Coach Officer position in November 2017; (2) she applied to and was not selected to backfill a Program Officer in 2018; (3) she applied and did not receive an interview for a Manager position in 2019; (4) she applied for a Mentorship position in 2018 and was not selected for it; and (5) from 2016 to 2019 she was never assigned an escort shift.

61The Employer contends that it can’t be that any assignment of work to an employee or a group of employees, even a group with less seniority than those not receiving such assignments, constitutes without more a prima facie harassment or discrimination claim. It submits that if this were the case employers would be called before the Board all the time for basic exercises of management rights. The Employer insists that more is required before allegations of discrimination in work assignments are treated as sufficient to require a hearing of them.

62The Union submits that the allegations in paragraphs 98 and 99 are probative of whether there was a pattern of isolating incidents targeting Ms. Jackson at the workplace, and of whether Ms. Jackson’s race, gender, or disability was a factor in that pattern. The Union maintains that the arguable relevance of the allegations in those paragraphs needs to be assessed in light of a pattern of events in which, by December of 2018 Ms. Jackson was essentially being told by managers that nobody wanted to deal with her anymore, was soon afterwards transferred between units, and then was disciplined in connection with an incident that involved another colleague, who to the Union’s knowledge received no discipline.

63Because the poisoned work environment and discrimination claims in Ms. Jackson’s original grievance do not extend to the hiring and selection decisions listed in paragraphs 98 onwards, the allegations in those paragraphs can only be arguably probative of that grievance if they are arguably corroborative of allegations sufficiently particularized earlier in the Statement. But even if I am wrong about this and the hiring and selection decisions were part of the original grievance, it would make no difference. Hiring or selection decisions, unless constrained by Collective Agreement terms or otherwise, generally require the weighing of several or many factors in relation to several or many candidates. Mere proof that Ms. Jackson was not selected for certain positions, without further information permitting inferences about the factors that may have been involved in the Employer’s decision, would not on its own be arguably probative of a pattern of targeting, or of discrimination. That further information could include, for example, who was selected, what were the express or reasonably understood qualifications, experience or other requirements for the position, or which managers were involved in the decision. There is no argument before me and no reason to think that this kind of information was not available to Ms. Jackson. The only question is therefore whether bare proof that Ms. Jackson was not selected for the opportunities in question could arguably complete a framework of inferences of targeting or discrimination enabled by proof of sufficiently particularized allegations made earlier in the Statement. Having carefully reviewed those allegations, I have concluded that it could not, and would even if proven add nothing to the arguable probative value of what is alleged earlier in the Statement. I will explain.

64I will consider first the allegations of a pattern of targeting. The particulars alleged in support of this claim include the following management actions: telling Ms. Jackson not to discipline or report a Youth Person who had started a fight (paragraphs 30 to 32); making a joke of the issue of disrespectful treatment of her by colleagues (paragraph 35 – allegations of treatment by colleagues being detailed in paragraphs 28, 34, and 43, among others); tacitly condoning a decision by Ms. Jackson’s colleagues to reverse her actions in disciplining a Youth Person in October of 2018, despite the seriousness with which her inadvertently contradicting discipline by a colleague had earlier been treated in August of 2017 (paragraphs 28 and 38); completely disregarding program proposals made by Ms. Jackson in the fall of 2018 (paragraphs 38 to 43); making disparaging remarks about Ms. Jackson during the fall of 2018 (paragraph 47); cancelling a workplace restoration meeting intended to improve relationships between Ms. Jackson and her colleagues in November 2018 (paragraph 29); transferring Ms. Jackson to another unit, with adverse consequences for her in February 2019 (paragraphs 51 and 52); and the eventual imposition of severe discipline for types of action which, in the Union’s view, had been condoned when other employees carried them out.

65If proven, these allegations could together be arguably probative of a course of unjust or arbitrary treatment ending in the imposition of discipline. However, without information about the context or way in which the hiring and selection decisions were made, or some other concrete connection to the earlier patterns of alleged events, bare proof that Ms. Jackson was not selected for certain opportunities during the time frame of these other events would add nothing supporting an inference that she was targeted. There is simply not enough information about the hiring and selection decisions to connect them to the alleged pattern of targeting.

66I will consider next the claims of discrimination. I express no view and have not been asked to rule at this stage on whether the Statement of Particulars as a whole could support an inference of discrimination. I note however that it contains little concrete information about the factors contributing to the alleged treatment of Ms. Jackson. There is only one allegation of direct expression of discriminatory animus on the basis of a prohibited ground. Paragraph 19 recounts that one of her non-managerial colleagues was vocal and upset about having to work with Ms. Jackson and other women. The other alleged instances of direct expression of animus against Ms. Jackson relate to her “relationship approach” to her duties with respect to the Youth Persons in custody. There are some allegations that others were treated differently from Ms. Jackson in similar situations. But there is no information regarding the alleged gender, race, or disability characteristics of those other employees. Indeed, the Statement provides no information on the racial, gender, sex, or (dis)ability characteristics of those other than Ms. Jackson involved in the various alleged workplace incidents. There are no allegations in the Particulars that concrete or specific characteristics associated with her sex, gender or disability were a basis for specific adverse impacts of Employer actions experienced by Ms. Jackson.

The only direct references to race or matters associated with race, outside of descriptions of Ms. Jackson and the youth detainees, and statements of her belief that she has been subject to discrimination, are found at paragraph 84. There Ms. Jackson alleges that the music that she was disciplined for having allowed primarily black youth detainees to play on Sound Cloud was “hip hop, rather than a type of music historically associated with white people”.

67In this context, bare allegations that Ms. Jackson is a black woman with a disability and was not selected for certain opportunities cannot complete or add anything to the potential framework of arguable inferences in support of her discrimination claims. There is simply too little information in the Statement of Particulars about both the alleged hiring and selection decisions and about earlier allegedly discriminatory actions for the former to arguably corroborate the latter. As with her claims of targeting, more is required to establish the arguable probative value of the five decisions not to select her, and to justify extending hearings so as to hear evidence and arguments on each of them. Such information would have been available to Ms. Jackson but has not been provided.

68Accordingly, the second, third, fourth and fifth subparagraphs of paragraph 98 are struck, and the remainder of the first subparagraph of paragraph 99 is struck. Paragraph 107 has no arguable probative value once the fourth subparagraph of paragraph 98 is struck, and is therefore also struck.

69I do not accept the Employer’s remaining relevance arguments. The second subparagraph of paragraph 99 alleges sufficient information about who was selected for the opportunity in question and the relevance of seniority in the selection criteria to be arguably probative of the pattern of isolation and toxic work environment alleged elsewhere in the Statement. I decline to strike it. The second subparagraph of paragraph 100 details an alleged refusal by Ms. Jackson’s supervisor to do a yearly progress report on her. Those allegations are sufficient. They are arguably consistent with behaviours alleged earlier in the Statement, and thus arguably probative of her toxic work environment claims.

The Union’s Motion for Disclosure

70The Union renews its request that I order the Employer to disclose the following information:

c. Documents, correspondence, and emails in any way related to the decision to transfer Ms. Jackson to unit 3B in 2017, and then back to Unit 4A in 2019.

The Union maintains that the information requested is arguably relevant because the transfers in question were a part of a pattern of vexatious conduct. The Union submits that it has provided all the details that it is capable of providing in its particulars, and that the remaining information is within the Employer’s control. The Union also maintains that a transfer can constitute a form of double discipline: Trillium Health Partners v CUPE Local 5180, 2021 ONSC 1045. It contends the second transfer of the Grievor, in February of 2019, is arguably double discipline imposed prior to the discipline in May of 2019, because it created significant workplace disadvantages for Ms. Jackson in response to allegations that the Employer had been investigating starting in the fall of 2018.

71The Employer responds that nothing in the Statement of Particulars supports an inference of discrimination in the transfers, or that the Employer had made a determination to impose discipline at the time of the second transfer in February 2019. The Employer notes that for that transfer to have been disciplinary action, management would have had to compose the transfer memo and set up the transfer within a matter of hours following the allegation meeting held to investigate the matters for which Ms. Jackson was eventually disciplined in May of 2019. The Employer submits that this is not plausible, and that more is required before it has an onus to disclose.

72As discussed above, the Statement of Particulars alleges a course of conduct by the Employer which if proven could arguably support the Grievor’s claim that her discipline was part of a pattern of unjustified adverse treatment based either on prohibited grounds of discrimination, or upon hostility to her relationship approach to her custodial duties. The transfer decisions were allegedly about Ms. Jackson alone, and made within the time frame of this course of conduct. The Union alleges for concrete reasons that they had adverse effects on Ms. Jackson. That is sufficient to establish the arguable relevance of the information, and therefore sufficient on well-established principles to support the Union’s disclosure request.

Dispositions

73Below I recapitulate the dispositions made above, for ease of reference.

74The grievances bearing Board file numbers 2019-2941 and 2020-1545 are dismissed.

75The following parts of the Union’s Statement of Particulars are struck: the second sentence of paragraph 8(a); paragraphs 8(c), 8(e), 8(f), 8(h), 8(i), 8(j), and 22; the third subparagraph of paragraph 28; paragraph 33; the second sentence of paragraph 39; the second sentence of paragraph 66; paragraphs 68, 71, 78, 82, and 85; the second, third, fourth and fifth subparagraphs of paragraph 98; the first subparagraph of paragraph 99; the first subparagraph of paragraph 100; paragraphs 101, 102, 104, 105, 106 and 107.

76I direct the Union to amend paragraph 76 of the Statement of Particulars as indicated in paragraph 23 of this decision.

77The Union may call no evidence in support of the allegations in the first sentence of paragraph 39, the last sentences of each of paragraphs 45 and 46, or to prove the truth of statement alleged in paragraph 59 to have been made by YSO Liu, except to the extent that such evidence is probative of allegations sufficiently particularized elsewhere in the Statement of Particulars.

78I direct the Employer to disclose all documents, correspondence, and emails related to the decision to transfer Ms. Jackson to unit 3B in 2017, and then back to Unit 4A in 2019.