GSB# 2020-1124
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and Professional Crown Employees of Ontario (Gomes)
Association
- and -
The Crown in Right of Ontario (Ministry of Seniors and Accessibility)
Employer
BEFORE
Diane L Gee
Arbitrator
FOR THE ASSOCIATION
Nadine Blum Goldblatt Partners LLP Counsel
FOR THE EMPLOYER
Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel
HEARING
November 26, 2020; April 20, May 26, June 7, October 22, November 2, and November 24, 2021; April 25, April 29, and July 6, 2022
Decision
1This matter is a dispute filed by the Association of Management, Administrative and Professional Crown Employees of Ontario (the “Association) on behalf of Nathan Gomes. Mr. Gomes applied for a 12-month position as Team Lead, Policy and Partnerships, Seniors Policy (“Team Lead”), however, he was screened out and not interviewed. The dispute alleges that the job competition process undertaken by the Employer was unfair and in violation of articles 3.1, 18.3.1, 18.3.2 and any other relevant articles of the Collective Agreement.
2The first part of this decision deals with the issue as to whether there has been a violation of the job posting provision of the Collective Agreement, article 18.3.1, and the Association’s request that the job competition be rerun. For reasons that follow, I find the Employer to have violated article 18.3.1 of the Collective Agreement. A rerun of the competition is not ordered. The second part of this decision addresses the allegation that the Employer has failed to comply with the provision of the Collective Agreement concerning information disclosure, article 15.5.7, and its duty of honest performance. I find the Employer in violation of article 15.5.7 and to have failed to fulfill its duty of honest performance. The Employer is ordered to pay Mr. Gomes $2,000 in general damages and $5,000 in punitive damages.”
Part I
3Article 18.3.1 provides as follows:
18.3.1 In filling a vacancy, applicants’ qualifications for the position shall be assessed relative to the selection criteria -- the knowledge, skills, abilities and experience required to perform the duties of the position. The most qualified applicant for the position shall be selected to fill the vacancy.
4In a dispute involving a job competition where the grievor was screened out, the initial onus is on the Employer to demonstrate that the screening was done in a fair and reasonable manner (see: Ontario Public Service Employees Union (Breton) Union and The Crown in Right of Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry) 2022 CanLII 35392 (ON GSB) (Gee)).
5Fifty-seven individuals applied for the Team Lead position. Harriett Grant, the hiring manager, reviewed and scored the applicants’ resumes. The applicants that received a score below 85, were screened out. No further consideration was given to their resumes. Mr. Gomes scored 67 and was thus screened out. Ms. Grant forwarded the resumes for those applicants that scored 85 and up to Don Embuldeniya. Ms. Grant and Mr. Embuldeniya then met, following which eight of the applicants were offered interviews. Following the interviews, the position was filled. The successful candidate did not remain until the end of the 12-month term. The Team Lead position was posted again for a further 12-month term. Mr. Gomes applied again and was not the successful candidate. Mr. Gomes did not file a grievance in connection with the second job competition. The current incumbent holds the Team Lead position until September 2022.
6Ms. Grant did not take notes of any kind while she was scoring the resumes. When asked to explain how she scored Mr. Gomes’ resume she stated that her evidence was “to the best of her recollection” and based on her “after the fact analysis.” Ms. Grant testified that, for her first run through the resumes, she “eyeballed it.” She later did a deeper review of the resumes of those who scored 85 and over which had the effect of changing her ranking of the candidates. With respect to those who scored 85 and over, she testified: “she scored and rescored and it changed over time.” She did not do a more thorough review, or rescore, the resumes that scored below 85. Further, Ms. Grant testified that while screening the resumes she considered gender parity, international experience, and older workers. She tried to screen them in so the team would have: “a good mix.” There is no dispute that gender parity, international experience and older workers are not included in the selection criteria. By considering such factors, I find Ms. Grant violated article 18.3.1 of the Collective Agreement.
7The Association asks by way of remedy that the competition be rerun. The Association argues, in the absence of a rerun, Mr. Gomes would have a right without a remedy. The Association argues, had Mr. Gomes been awarded the position in the first place, he may very well have had the initial 12-month term extended into the second 12-month term and still be in the position today. It is unfair to Mr. Gomes, the Association argues, to allow the Employer to rob him of this possibility.
8In my view, this is simply not a case where the job competition should be rerun. The term of the position Mr. Gomes applied for has expired. When the position was reposted, Mr. Gomes applied. Mr. Gomes participated in the job competition process and was not the successful candidate. Mr. Gomes did not file a grievance in respect of the second job competition. In the first job competition, Mr. Gomes was denied the right to participate in a job competition where all candidates were consistently scored based only on the selection criteria. However, 10 months later, the same opportunity arose and following a job competition in respect of which there are no complaints, he was not awarded the position. In my view, the outcome of the second job competition is a strong indicator that Mr. Gomes would not have been successful in the first job competition even if it had been properly run. To order a rerun of the position on the premise that Mr. Gomes may have been successful in the first job competition and then had his term in the position renewed and still be in the position today is far more speculative than what the results of the second competition tell us.
9I decline to order a re-run of the competition. I deal with the Association’s request for general damages payable to Mr. Gomes arising out of the Employer’s violation of article 18.3.1 of the Collective Agreement in the following section.
Part II
10Article 15.5.7 provides as follows:
15.5.7 The parties agree to fully disclose, at the earliest stage of the dispute resolution procedure, all information on which they rely in support of or in response to a complaint or dispute, including disclosure of any facts relied upon by Management in a decision that is subject to a complaint or dispute.
11As indicated above, Ms. Grant reviewed and scored the resumes. She then forwarded the resumes for those who scored 85 and above to Mr. Embuldeniya. Ms. Grant and Mr. Embuldeniya had a meeting at which they discussed the candidates. Ms. Grant and Mr. Embuldeniya testified the candidates were scored by each of them and the scores averaged. They identified a document that was admitted into evidence as the score sheet that contained each of their scores and the average of their scores. (the “Identified Score Sheet”). Eight individuals ended up with an average score of 85 and above. Those eight were offered interviews.
12As a result of a number of oddities in the documents produced by the Employer and the evidence, the Association became suspicious as to whether Ms. Grant and Mr. Embuldeniya had in fact scored the top 13 candidates prior to the interviews being held. This in turn led to the question as to when the Identified Score Sheet had been created.
13The Association obtained metadata pertaining to the Identified Score Sheet and retained a forensic expert to conduct a review. The report produced by the forensic expert concludes the Identified Score Sheet was created by Ms. Grant on May 11, 2020, after the job competition had been completed and at a point in time when the Employer was producing documents to the Association in connection with this dispute pursuant to article 15.5.7 of the Collective Agreement. The report further concludes, after Ms. Grant created the document, she sent an email to Mr. Embuldeniya asking if he was able to find the score sheet that had been created prior to the interviews. The report concludes Mr. Embuldeniya then went into his OneDrive and made some changes to the document Ms. Grant had just created. Mr. Embuldeniya then emailed Ms. Grant back saying “yes I had to search my docs for it but finally found it.” There is no record of any score sheet with scores assigned by Mr. Embuldeniya, or averaged scores, at any time prior to May 11, 2020.
14Ms. Grant was recalled and testified that the Identified Score Sheet that had been entered into evidence was not the score sheet that had been created prior to the interviews. Ms. Grant testified she created the Identified Score Sheet in May 2020 based on her recollection as to what the scores were. Ms. Grant provided the Identified Score Sheet to Human Resources knowing it had not been prepared in the course of the job competition. Ms. Grant informed Human Resources it had been prepared in the course of the job competition and Human Resources in turn provided the Identified Score Sheet to the Association. Ms. Grant further acknowledged that emails, exchanged between herself and Mr. Embuldeniya, were sent to cover up the fact that the Identified Score Sheet had just been created.
15Mr. Embuldeniya was recalled and maintained that the Identified Score Sheet was in fact created prior to the interviews being scheduled and the emails were valid. Ms. Grant admitted to creating the Identified Score Sheet after the competition was over. The forensic report confirms Ms. Grant did so. The forensic report shows Mr. Embuldeniya opened that document and made changes to it after the competition was over. The evidence establishes that Mr. Embuldeniya immediately thereafter sent Ms. Grant an email saying he had found the score sheet. Having regard to Ms. Grant’s admissions, and the forensic report, I give no weight to Mr. Embuldeniya’s evidence.
16The Association submits the Employer created a document and provided it to the Association knowing it was not what it was purported to be. Further, emails were written, knowing they would be disclosed as part of the document production process, to deceive the Association. I find the Employer, because of the actions of Ms. Grant and Mr. Embuldeniya, provided to the Association, and entered into evidence under oath, a document that was not what it was purported to be, and further created and filed emails in an effort to hide its conduct.
17The Association argues Ms. Grant’s conduct amounts to a bad faith violation of article 15.5.7 of the Collective Agreement which requires full disclosure at the earliest stage of the dispute resolution procedure. The Association further submits the Employer’s conduct is a violation of its duty of honest performance of its contractual obligations. The Association seeks $40,000 in general damages and $20,000 in punitive damages payable to Mr. Gomes.
18The Association argues Mr. Gomes is entitled to general damages to compensate him for the breach of his right to a fair job competition; the Employer’s actions that undermined the arbitration process, and violation of the implied duty of good faith. The Association argues general damages are meant to compensate for non-pecuniary harm and punitive damages to denounce conduct where the general damages awarded are not high enough to do so.
19Relying on United Food and Commercial Workers Union Canada, Local 175 v. Islamic Foundation School (Tuition Benefit Grievance), [2018] O.L.A.A. No. 152 (Anderson), the Association submits the duty of honest performance requires the parties to be honest, candid, forthright and reasonable in contract performance. In the case of Toronto (City) v. Canadian Union of Public Employees, Local 79 (Rahim Grievance), (2009) 215 LAC 4th 112 (Randall) the grievor was found to have been treated unfairly and was awarded $4,000 in general damages. In Covenant Health v United Nurses of Alberta, 2021 CanLII 34314 (AB GAA) (Sims) [REMEDIAL AWARD] a member of management sent a defamatory email concerning the grievor to the interview panel. The Board of Arbitration found the email played no role in the panel’s decision, however, the sending of the defamatory email amounted to a breach of the grievor’s right to fair process. The grievor was awarded $10,000 in general damages. In Association of Management, Administrative and Professional Crown Employees of Ontario (Bokhari) v Ontario (Economic Development, Employment and Infrastructure), 2016 CanLII 51073 (ON GSB) the Employer declared the job of an employee who suffered from a disability surplus to get rid of him. An award of $20,000 in general damages and $25,000 arising out of the failure to accommodate was awarded. In Sobeys Capital Inc. and UFCW, Local 401 (B. (A.)) 131 C.L.A.S. 186 the employer did not save a video that could have exonerated the grievor who was terminated for theft. The grievor was awarded $15,000 and the union $5,000. In Toronto Catholic District School Board v OECTA, 2021 CanLII 44852 (Parmar) the employer repeatedly failed to comply with orders made by the Arbitrator. The Arbitrator found the employer had failed to meet its duty to act in good faith in the performance of its collective agreement obligations. The employer was ordered to pay $25,000 in reputational damages and $30,000 in punitive damages to the union. Finally, in OPSEU (Di Matteo) v. Ontario (Health), 2021 CanLII 17420 (ON GSB) (Johnston) the Arbitrator dismissed the grievance of a grievor who repeatedly failed to comply with orders.
20The Employer submits no general or punitive damages are warranted. First, none of the conduct in issue impacted Mr. Gomes as he was screened out prior to Ms. Grant and Mr. Embuldeniya meeting. Further, in Miracle Food Mart of Canada and UFCW, Local 175/633, 1994 CarswellOnt 6447, it was held that the general common law and arbitral rule is that damages are restricted to remedying the actual monetary loss of the aggrieved party. In Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) (Aboutaeib Grievance) [2011] O.G.S.B.A. No. 167 and Ontario Public Service Employees Union v. Ontario (Ministry of Labour) (Shackleton Grievance) [2014] O.G.S.B.A. No. 21 it was held that a lack of credibility goes to findings of fact, it does not result in damages. In AFG Industries Co. and USWA, Local 295-6, Re, 1999 CarswellOnt 7346 it was stated, the power to punish violations of the oath rests with the courts, not an Arbitrator, and absent some specific harm, it does not provide a basis for granting equitable relief. Finally, the Employer argues it is not apparent what harm needs to be made whole.
21The Employer argues there is no decision of the Grievance Settlement Board where punitive damages have been awarded. Further, the cases on general damages cited by the Association concern conduct that was directed at the grievor specifically, which is absent in this case. The Employer argues, the cases in which punitive damages were awarded, involve repeated acts of bad faith and/or a stated intention to continue the behaviour, not where there is a single instance. Further, in some of the cases cited by the Association, the damages are awarded to the union for its loss, such as reputational loss in the Toronto Catholic School Board. Finally, the decisions where general damages were awarded concern real identifiable loss to individuals who are often vulnerable which is not present in this case.
22Ms. Grant created a document long after the competition was done, for the purpose of it being produced and represented to the Association as the score sheet that determined who would be interviewed. She further admitted to writing an email for the purpose of cloaking her conduct from discovery. This conduct undermines the dispute resolution process and the document production process written into the parties’ Collective Agreement. It amounts to dishonesty to both the Association and the Grievance Settlement Board. It served to make the arbitration proceedings days longer than necessary and more costly to the parties. I do not consider it merely an issue of credibility, this was a deliberate, planned attempt to create and present false evidence. I find the Employer failed in its duty of honest performance in addition to breaching its obligation under Article 15.5.7 of the Collective Agreement.
23There is no dispute that the Board has the jurisdiction to award general damages. The purpose of general damages is to compensate Mr. Gomes for his loss. Mr. Gomes did not testify in this matter and the Association submits his loss can be presumed. This serves to distinguish this case from many of the cases relied upon by the Association where damages were awarded because the grievor testified as to a physical, mental or financial loss, or the union testified as to damages to its representational rights. I find Mr. Gomes lost the right to an arbitration process in which the Employer acted honestly in the performance of its contractual obligations as well as the right in a job competition that complies with the requirements set out in the Collective Agreement. I order the Employer to pay Mr. Gomes $2,000 in general damages to compensate him for this loss.
24Turning to the issue of punitive damages, this Board has found it has jurisdiction to award punitive damages in two cases. The first is Ontario Public Service Employees (Ranger) and Ministry of Community and Safety and Correctional Services, 2013 CanLII 50479 (Leighton). The Board’s finding of jurisdiction, and reasons for not making an award of punitive damages, are as follows:
73I am of the view that the Board has the power to order punitive damages under its broad remedial powers. However, for the reasons below I would not order them in this case.
74The Divisional Court reviewed the principles established by the Supreme Court cases on punitive damage awards in breach of contract cases. Punitive damages are exceptional in a breach of contract case. It is clear that there must be an independent actionable wrong. Even if an independent actionable wrong is established, the decision-maker should only award these damages when “the wrongdoer’s misconduct is so outrageous as to require punitive damages for purposes of retribution, deterrence and denunciation.” (para. 120) Finally, the Division Court said that the award of punitive damages must be rational and proportionate. The decision-maker must look at the “totality of the damages already awarded” and address the issue of why the compensatory damages are not enough to denounce the wrongdoing. (para. 126)
75The Supreme Court in Keays, supra, said, “punitive damages are restricted to advertent acts that are so malicious and outrageous that they are deserving of punishment on their own.” (para. 62)
76The union argued that the breach of the WDHP was an independent actionable wrong. Alternately, the grievor could claim that the taunts and harassment were verbal assault. I am not persuaded that these are enough to establish an independent actionable wrong. In any case, I would not award punitive damages here.
25In Bokhari, supra, Arbitrator Dissanayake referred to the finding in Ranger that the Board has jurisdiction to award punitive damages and quoted paragraphs 74 and 75 set out above. At paragraph 65, Arbitrator Dissanayake set out the following reasons for not making an award of punitive damages:
65Having regard to the evidence and the findings by the Board, I conclude that the employer’s conduct was not sufficiently egregious or malicious to warrant an award of punitive damages, even assuming that the evidence establishes an independently actionable wrong. The significant compensatory compensation already awarded in this decision are sufficient to serve the purposes of denunciation and deterrence. AMAPCEO’s request for punitive damages is therefore denied.
26In neither Ranger nor Bokhari did the Board find an independent actionable wrong. In the instant matter, I have no doubt that an independent actionable wrong exists. In Whiten v. Pilot Insurance Co., 2002 SCC 18, the Supreme Court of Canada determined that an award of punitive damages in a contract case requires an “actionable wrong” in addition to the breach sued upon. The Court found the insurer was under an obligation to deal with policy holders in good faith and a breach of the duty of good faith was an independent actionable wrong. In Bhasin v. Hrynew 2014 SCC 71, decided after Ranger, the Supreme Court of Canada recognized a new common law duty referred to as “the duty of honest performance.” The duty requires the parties to be honest with one another in relation to the performance of contractual obligations. A breach of the duty of honest performance is an independent actionable wrong that can give rise to an award of punitive damages. The Employer, in the instant matter, has breached the duty of honest performance.
27The Supreme Court of Canada has issued a number of decisions on punitive damages. All of them contain strong language to the effect that punitive damages are exceptional; the discretion to award them must exercised with care and only in extreme circumstances that, on a reasonable standard, are deserving of punishment. A violation of the collective agreement in the absence of a serious, reprehensible act of bad faith deserving of punishment, will not attract punitive damages. Punitive damages cannot be awarded in the absence of an independent actionable wrong. Further, without intending to describe all of the instances where punitive damages are not to be awarded, they will not be awarded where other amounts or damages paid are sufficient to fulfill the purpose of punitive damages.
28In Vorvis, v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), the Supreme Court of Canada, following a review of jurisprudence on punitive damages from a number of jurisdictions, stated:
But all authorities accept the proposition that an award of punitive damages should always receive the most careful consideration and the discretion to award them should be most cautiously exercised.
And further:
…punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.
29Similarly, in Whiten, supra, the Court stated punitive damages are imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. In Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362 the Court again stated:
Punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own.…. Courts should only resort to punitive damages in exceptional cases…
30What constitutes high-handed, malicious, arbitrary, or highly reprehensible misconduct is, of course, highly contextual. In the interests of industrial peace, these parties are statutorily mandated to settle their disputes by way of an arbitration process. Deliberate conduct that provides false information to the party opposite, and enters, under oath, false evidence, undermines that process. To allow such conduct to go unpunished would severely undermine the integrity of the process. The conduct is high-handed and highly reprehensible.
31Punitive damages are only to be awarded where the quantum of other amounts awarded are not sufficient to deter and punish the conduct. I have ordered the Employer to pay Mr. Gomes $2,000 in general damages which I find to be insufficient to deter and punish the conduct in question. In order to achieve the purposes of admonishing the behaviour, and future deterrence, I order the Employer to pay Mr. Gomes the further amount of $5,000 in punitive damages.
Disposition
32For the foregoing reasons, I find the Employer violated articles 15.5.7 and 18.3.1 of the Collective Agreement. I find the Employer violated its duty of honest performance. I order the Employer to pay Mr. Gomes $2,000 in general damages for the loss he suffered because of such violations. I order the Employer to pay Mr. Gomes a further $5,000 in punitive damages.
33I remain seized in the event of any issues arising out of this award.
Dated at Toronto, Ontario this 9th day of August 2022.