GSB# 2015-1711

UNION#2 015-0618-0013

Appendix A attached

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rizzo)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 20, 2023

Decision

1The Board is seized with multiple grievances filed by Ms. Sonya Rizzo, (“grievor”) a Youth Service Officer at the Cecil Fraser Youth Centre in Sudbury, Ontario. The Board first convened on this file on October 15, 2018. That day and three more days were spent reviewing the issues raised by the grievances, exploring possible settlement options, and dealing with case management and process issues.

2When the Board convened for a fifth day on February 1, 2023, the parties agreed that the grievances have to proceed to arbitration. Employer counsel at this time informed that the Board had discovered five more grievances filed by the grievor in 2022, which had not been referred to arbitration. Counsel discussed that those grievances (“new grievances”) make allegations similar to those in the grievances before the Board, and that it would sense to have the same arbitrator decide them also. I indicated that I was not prepared to take jurisdiction over grievances not even referred to arbitration, and that if the parties want to have me decide those as well, the proper process would be for the union to formally refer the new grievances to the Board and for the parties to then agree to put them before me to be dealt with together with the other grievances presently before me (“original grievances”).

3The union referred the new grievances to the Board on February 6, 2023, and the employer indicated that it was also in agreement to consolidate them with the original grievances before me. At that time, the employer gave notice that it will be moving that all of the grievances before me, including the new grievances, be summarily dismissed on some or all of a number of grounds including the following: no prima facie case, inarbitrability, mootness, and untimeliness. On August 26, 2022, the union had provided its particulars with respect to the original grievances. In it the union had included a specific caveat that these particulars were provided solely for the purposes of dealing with the employer’s preliminary motion. Employer counsel agreed that for the motion only, the factual assertions in the union’s particulars may be deemed to be true.

4On June 2, 2023, employer counsel commenced her submissions on the preliminary motion. Those submissions were continued on September 15 and 26, 2023 and further dates had been scheduled for continuation. When the Board next convened on October 20, 2023, employer counsel informed that a dispute had arisen between the parties, and that they agree that the ongoing submissions on the motion ought to be interrupted to resolve that dispute. Employer counsel asserted that on October 16, 2023, the union counsel for the first time sought to provide particulars with respect to the five new grievances, and the same day employer counsel objected to that. This interim decision is solely with regard to the dispute as to whether the union should be entitled to provide particulars for the new grievances.

5Counsel put in a book of documents titled, “Correspondence prior to Union’s request to provide particulars for grievances 31 and 36”. It consisted of the following exchanges between counsel: (Numbers added for ease of reference)

(1) On January 7, 2022, union counsel sought the employer’s consent to consolidate grievance 31 (GSB 2021-2795), stating that the union will also be seeking consolidation of 30 plus additional grievances in these proceedings. He wrote, “The consolidation request is without prejudice to the legal positions of the parties, including the right of the employer to raise any preliminary objections and the right of any response by the union”.

(2) On January 11, 2022, grievance 31 was referred to arbitration. That grievance dated December 21, 2021, states, “I grieve an abuse of management rights, harassment, and discrimination. I grieve all matters relating to Monday November 22/21 and November 23.”

(3) On August 12, 2022, the Board issued a notice of Proceeding for grievances 1 to 31 (“The original grievances”).

(4) On January 12, 2023, employer counsel provided to the union a “Notice of anticipated preliminary objections”. It set out each of the original grievances, and the preliminary objections to be raised in each grievance. It also reserved the employer’s right to provide “further information/documents regarding the preliminary objections.”

(5) On February 6, 2023, union counsel forwarded to employer counsel the new grievances (31 to 36). He wrote, “My client is agreeable to having them consolidated with those presently before arbitrator Dissanayake. As agreed, this would be without prejudice to all legal positions of the parties in relation to the grievances”.

(6) On June 6, 2023, union counsel wrote to the employer, asking whether those additional grievances not included in the Board’s August 12, 2022, Notice of Proceeding should be consolidated with the original grievances. He wrote that he is agreeable to do so, since he understood from “our conversations today, that both the employer and the arbitrator are also agreeable”, and that accordingly he would be advising the Board to consolidate the grievances, and requesting that a new Notice of Proceeding including all 36 grievances be issued. He wrote accordingly to the Board, and also referred the new grievances (GSB 2022-11844, 2022-11845, 2022-11846, 2022-11847, 2022-11848) to arbitration.

(7) The same day employer counsel wrote to the union reminding that s the arbitrator had taken the position that he has no jurisdiction over grievances not referred to the GSB for arbitration. Therefore, employer did not object to the union referring the new grievances to arbitration at that time for the limited purpose of conferring jurisdiction on the arbitrator over the new grievances. She wrote with underlining. “The employer agreed to the referral on that specific basis and reserved its right to pursue its preliminary objections with respect to those grievances”.

(8) On October 12, 2023, union counsel wrote to employer counsel, confirming that the new grievances had been referred to the Board, and that the union agrees to consolidate those with the other grievances before the arbitrator. Counsel wrote further that, “The union will be providing particulars in relation to those grievances as soon as possible and the union understands that the employer has reserved its right to advance preliminary objections in relation to those”.

(9) On October 16, 2023, four days before the October 20^th hearing, employer counsel responded that the employer does not object to the consolidation of the new grievances, “but reserves its rights to argue both procedural and substantive objections with respect to the grievance itself”, and that it maintains its right and ability to present procedural and substantive objections with respect to each of the above referenced grievances”.

(10) In the same communication on October 16, 2023, employer counsel objected to the union’s stated intention of providing particulars for the five new grievances. She went on in detail setting out the employer’s reasons for the objection. Finally, counsel requested that the Board issue a ruling that the union is not entitled to file additional particulars. She wrote that if the Board is not prepared to do that, “this issue will need to be argued comprehensively, with the benefit of some time to prepare and prior to the employer restarting its ongoing submissions”. (in bold)

6No such order was forthcoming from the Board, and this dispute about the union’s entitlement to provide particulars with respect to the new grievances was argued on the next scheduled hearing date of October 20, 2023.

EMPLOYER SUBMISSIONS

7After reviewing, the foregoing exchanges between the parties prior to October 20, 2023, employer counsel reviewed the particulars the union had provided on August 26, 2022. She pointed out that the union’s willingness to consolidation of the new grievances was communicated on September 7, 2022. The employer agreed the next day, and gave notice of its preliminary objections seeking the summary dismissal of all grievances before the Board.

8Counsel submitted that the employer understood that the parties agreed to consolidate the new grievances only for the “technical purpose” of conferring jurisdiction on the arbitrator to hear all of the grievances together. At the time the employer asserted that while it had agreed to consolidation, that agreement was subject to its right to argue that the referral of the new grievances to arbitration was untimely, and union counsel agreed. She submitted that it was very significant that at the time the union did not reserve any right to provide further particulars with respect to the new grievances.

9Employer counsel stated that on June 2 ,2023, she commenced submissions on the motion. Using a chart she had prepared, she reviewed all 36 grievances including the new grievances, and the preliminary objections she had for each. She submitted that even at this point the union did not raise anything about providing additional particulars.

10Counsel submitted that the union should not be allowed to provide further particulars, after the employer had already made submissions on its motion over three hearing days, and almost after eight months from the time it filed its initial particulars. She asserted that prior to her commencing submissions on June 2, 2023, there had been no discussion at all about consolidation of any new grievances. When, union counsel interjected and referred to an email he had sent, which commences with “Further to our conversation on Friday”, employer counsel accepted that there had been prior discussion about consolidation. However, she argued that the conversation was about consolidation for the only purpose of conferring jurisdiction on the arbitrator.

11Counsel submitted that allowing the union to provide further particulars in the middle of the employer’s submissions is not how particulars are normally provided. Particulars are normally provided at the time grievances are filed, or at least before the commencement of the hearing. To allow further particulars at this late stage is not reasonable and not fair to the employer.

12Employer counsel submitted that her objection to adding particulars is not a technical objection. She referred to an email sent by her on June 6, 2023 (No.7), where she wrote that the employer agrees to the consolidation in order to give jurisdiction to the arbitrator. Therefore, the employer’s objection to further particulars should not have come as a surprise to the union. The employer argued that the union sought to add further particulars for the first time on October 16, 2023, after the employer had made submissions over three hearing days. Employer counsel pointed out that while the union had stated that the additional particulars would be provided “as soon as Possible,” it had not done so to date.

13Counsel pointed out that the union’s particulars on the original grievances filed on August 26, 2022, were not set out separately for each grievance. The particulars were one long story over a seven year period. She submitted that the union is seeking to add to those particulars, after hearing the employer’s submissions on the inadequacy of its original particulars. She stated that the union was attempting to get “another kick at the can”, and “fill in the gaps” in the particulars the employer had pointed out during its submissions.

14Counsel submitted that if the Board allows the union to provide additional particulars, any particulars it provides will be “more of the same” personal perceptions of the grievor about violence, intimidation, discrimination etc. Like the initial particulars, there would be no facts about “who, when what, where” violations occurred. There would be few factual assertions on the four “w’s”. The particulars will not have facts that could possibly substantiate a prima facie case. Hearing all those additional grievances would therefore be an unnecessarily waste of valuable hearing time.

15Employer counsel then made an alternate submission that the Board should order the union to provide particulars for the new grievances, hear submissions from the parties on the employer’s preliminary objections as they apply to each of the new grievances and issue its decision on the employer’s motion as it relates to the new grievances. Then the Board can continue with hearing to receive submissions on the motion as they apply to the original grievances together with any of the new grievances that are had not been dismissed.

UNION SUBMISSIONS

16Union counsel also reviewed the exchanges between the parties during the period from February 1, 2023, when the employer informed about the discovery of the new grievance, and when they were referred to arbitration and consolidated. He submitted that it does not matter what motivated the parties to agree to consolidate. The fact is that now the Board is properly seized with all thirty six grievances, and is obligated to deal with all of them, including any preliminary issues. This phase of the hearing is only about the union’s entitlement to provide particulars with respect to the new grievances.

17Union counsel submitted that the present dispute about particulars is about process. There are no rules or regulations that govern this dispute. The Board has discretion to do what it deems fair and reasonable in the particular circumstances of each case. He pointed out that the new grievances were not referred to arbitration consolidated and put before the arbitrator until 16^th of October 2023 when the employer finally confirmed its agreement to consolidate subject to conditions. The union’s initial particulars had been provided in August 2022, at a time when the new grievances had not even been discovered. Therefore, those particulars could not have been about the new grievances. In those circumstances it would be very unfair to the grievor and the union if it is not allowed to adduce evidence to support the allegations in the new grievances, either after providing particulars or directly during the hearing.

18Counsel submitted that the arbitral best practice of requiring unions to provide particulars to the employer was adopted for two reasons. First, particulars disclose at the outset the issues in the grievance, which allows the arbitrator to determine the appropriate process. Secondly, it allows the employer to decide whether to raise any preliminary issues/motions. Usually it is employers that demand that unions provide particulars. If unions do not, it is common for employers to seek orders for particulars from the arbitrator. This dispute is unique. It is a “reverse request” from the employer seeking an order from the arbitrator prohibiting the union from providing particulars. Counsel submitted that the union stands prepared to provide particulars with respect to the new grievances which have not been particularized to date. However, if the employer does not want particulars the union does not care, provided it is allowed to adduce evidence to substantiate its grievances, as was the arbitral practice in “the old days”.

19Counsel submitted that the current arbitral practice is to require that unions provide particulars with respect to grievances, and it is improper to prohibit the union from providing particulars consistent with that arbitral practice. He suggested that the Board instead should find that the union is entitled to file particulars that with respect to the new grievances, and address the union’s failure to provide particulars to date by issuing an order that the union do that as soon as possible, or by a specific date.

20Counsel submitted that the employer’s alternate proposal to first hear and determine the employer’s preliminary motion as they pertain only to the five new grievances would not be workable. As an example, he pointed out that if the Board concludes that a grievance was untimely, that does not end the matter. The Board has discretion in certain circumstances to extend time limits. The Board will have to hear evidence the union may have to support its request for an extension of time limits and submissions before deciding whether to exercise its discretion.

EMPLOYER REPLY

21Counsel submitted that union counsel’s assertion that the Board became seized with the new grievances only on October 16, 2023 because the employer confirmed its agreement to consolidation only on that date, is a technical one. She stated that as soon as those grievances were discovered, it was clear that both parties shared a common desire to consolidate those with the original grievances to be heard by the arbitrator seized with the original grievances.

22Counsel disagreed that the union had reserved a right to provide additional particulars anytime before October 12, 2023. The union’s reliance on its general reservation in exchanges numbered 1 and 5 to the effect that its agreement to consolidation of the new grievances is without prejudice to the legal positions and the rights of the parties to raise and defend against preliminary objections is also a “technical argument”. The employer made its preliminary objections explicitly and clearly. If the union wished to provide additional particulars for the new grievances it also should have reserved that right explicitly.

23Counsel agreed that usually it is employers that demand particulars from unions. However, that usually happens at the start of a hearing, not after three days of hearings as here.

DECISION

24I commence by noting that there is no rule in law or in the parties’ collective agreement stipulating a deadline beyond which a union is not entitled to provide particulars. It is a matter of process over which arbitrators have discretion. While unions are, as a general practice, required to file particulars prior to the commencement of the hearing, arbitrators have the discretion to depart from this best practice, if satisfied that it is fair and reasonable, and does not cause prejudice to the employer in the particular circumstances.

25Employer counsel repeatedly submitted that it was not fair to the employer, and would disadvantage it, if the union is allowed to provide particulars on the new grievances at this point. The only specific disadvantage I could discern from the employer’s submissions is as follows. The union has listened to the employer’s submissions as to what preliminary objections (no prima facie case, untimeliness, mootness, etc.) it was raising against each of the grievances before the Board. Having that knowledge, the union will be able provide additional particulars to supplement those it had already filed. The union will be able to fill the gaps to correct the inadequacies and flaws the employer had raised during the three days of submissions. Counsel anticipated that in the guise of providing particulars for the new grievances, the union could “slip in” additional particulars to bolster the flawed particulars it had filed.

26If the union attempts to slips in additional information to bolster its original particulars by correcting flaws the employer had pointed out in the three days of submissions, the employer is not left disadvantaged. It is open to it to raise with the Board that the union has added to the particulars it had filed and request that any such particulars be struck. It is not uncommon for employers to seek orders striking down parts of union particulars which are improper.

27This phase of the proceeding is only about the new grievances. At the time the employer made three days of submissions on the preliminary motion, the parties were only aware that there were five new grievances filed by the grievor in 2022. At most they would have seen only the grievance forms, which only set out the violations alleged. There were no facts about what the employer did to commit the alleged violations. The submissions employer counsel made over the three days, therefore, were only about the original grievances. It could not have pointed out flaws in particulars relating to any new grievances because none had been provided. In order to even consider the employer’s argument, the Board would have to speculate, the employer does, that any particulars the union files in the future with regard to the new grievances would be “more of the same”, that is, subjective perceptions of the grievor. The Board is not prepared to make decision based on speculation. Moreover, while the employer has lodged objections on each of the original grievances, the union has not conceded on any of those grievances. Nor has the Board at this point ruled whether it upholds or rejects any of the objections, including whether the allegations are merely personal perceptions not supported by objective facts.

28Returning to the issue of prejudice to the employer, I review below the areas employer counsel has dealt with in the three days of submissions in support of its motion. On June 2, 2023, counsel commenced submissions by presenting a “road map” of her submissions. The first item on that road map was “a review of the book of charts” which had been marked as exhibit 1. Counsel stated that next she would review the union’s particulars, followed by a review of the employer’s objections to each of the 30 grievances. Next was a review of the case law and apply the law to each grievance and submit way they should be dismissed.

29Counsel then commenced submissions. She reviewed the Book of Charts in detail that the book of Charts which set out when the grievor was at work and when she was absent. She pointed out that the grievor commenced filing grievances “eight years ago” and that in those 3 years the grievor was absent for 58 months and continues to be off at present.

30Next counsel turned to the union’s particulars. She pointed out that although the grievances were filed separately, they were not particularised separately. The particulars were written as a long story by the grievor. She submitted that despite her 239 paragraphs of particulars, they fall far short of substantiating an arguable case to be tried. In other words, they were not capable of supporting a prima facie case for the allegations in any of the 30 grievances. The particulars, accepted as true for purposes of the motion, do not show that the grievor was subjected to any discrimination, bullying violence, etc. as alleged, by management or her co-workers. She submitted that the particulars instead show that the grievor was extremely sensitive and was bordering on being paranoid. Her belief that everyone was targeting her was a product of her own sensitivity. She started going through the particulars and set out the objections for each of the grievances before the Board based on those particulars.

31At this point counsel deviated from her review of the union particulars and raised her concerns with each of the grievances recently discovered, and explicitly reserved “the right to raise preliminary objections including failure to refer them to arbitration or untimely referral to arbitration.

32At the hearing on September 15, 2023, employer counsel continued her review of the union’s particulars from where she had left off on September 2, and covered up to 189 of the 239 paragraphs of the particulars.

33On September 26, 2023, employer counsel completed her review of all 239 paragraphs of the particulars, and advised that on the next day she would be dealing with the next item on her road map, the case law, and that she would need at least two more days following that to complete her submissions on the motion.

34However, as described above, on the next hearing date October 16, 2023, the employer submissions on the original grievances were interrupted to receive submissions on the present dispute about the union’s entitlement to provide particulars with respect to the five new grievances, which by then had been referred to arbitration, and consolidated with the original grievances.

35I have set out in detail the submissions employer counsel made on the first three days of hearing, before the instant dispute was raised before the Board and argued on October 20, 2023. That review clearly establishes that any submissions and reservations the employer made could not and did not have anything to do with the new grievances. They were only about the original grievances. The only time the new grievances came up was, when employer counsel reviewed each of the five grievance forms, which only contained the provisions alleged to have been violated and the remedies sought. As employer counsel pointed out herself, the grievance forms did not set out any facts as to who did what, when and where to give rise to the alleged violations. Therefore, the employer could not have made any submissions pointing out flaws or inadequacies in the new grievances.

36The union had throughout accepted, including in several of the email exchanges set out above, that following the consolidation, the employer retains the right to raise any preliminary objections against the grievances, subject to the union’s right to respond to them. I understood that acceptance related to all grievances before the Board following the consolidation. If I am wrong, I find that, whether or not it made any reservation, the employer will have the right to raise any preliminary objections against any of all grievances now consolidated, and the union would have the right to defend against those objections.

37Having regard to all of the foregoing reasons, I find that while the hearing process will have to be changed to suit the unique circumstances of this case, the employer will not be disadvantaged or prejudiced if the union is allowed to provide particulars for the new grievances.

38Therefore, this dispute has to be determined by a consideration of whether there are circumstances in this case, which justify the Board allowing the union to provide particulars for the new grievances. Grievances not referred to arbitration and not particularized were discovered while submissions were on-going on other similar grievances. Those grievances were subsequently referred to arbitration and consolidated on agreement. The union could not have provided particulars of the new grievances prior to the Board being seized with jurisdiction over them by the agreement on October 16, 2023, to consolidate. In those circumstances, the union obviously could not have provided particulars before the hearing commenced, as per the usual practice in labour arbitration.

39If the union is not allowed the opportunity to provide particulars for the new grievances, with only the grievance forms to rely on, it would have no way to defend against a no prima facie case motion, even if it has strong information to support the alleged violations. That would not only be unfair, but it will also be a denial of natural justice. Any inconvenience and delay that results is a small price to pay to avoid that denial of a fundamental right.

40Given my finding that allowing particulars will not disadvantage or prejudice the employer, the reasonable exercise of the Board’s discretion is to allow the employer to make any preliminary objections it wishes to argue with regard any of the 36 grievances before the Board, with the union getting the opportunity to defend those. This would put the two parties on equal footing, consistent with what happens under the usual best arbitral practice. Therefore, it is so ordered.

41The union accepted that it failed to comply with its commitment to provide particulars for the new grievances as soon as possible. To address that undue delay and to ensure that the employer has the opportunity to make submissions on any preliminary objections it chooses to put forward against the new grievances before closing submission, the Board hereby orders that the union provide its particulars on the new grievances no later than November 13, 2023, unless there is agreement between the parties on a different date.

42The Board remains seized. The hearing will resume on the next schedule date, November 17, 2023.

Dated at Toronto, Ontario this 6^th day of November 2023.

APPENDIX A

Grievor

OPSEU Union #

GSB #

Date of Grievance

Rizzo, Sonya

2015-0618-0013

2015-1711

07/15/2015

Rizzo, Sonya

2015-0618-0014

2015-1712

07/15/2015

Rizzo, Sonya

2016-0618-0003

2016-0524

04/07/2016

Rizzo, Sonya

2016-0618-0004

2016-0525

04/07/2016

Rizzo, Sonya

2018-0618-0019

2019-0205

07/19/2018

Rizzo, Sonya

2019-0618-0002

2019-0500

03/29/2019

Rizzo, Sonya

2019-0618-0003

2019-0520

01/24/2019

Rizzo, Sonya

2019-0618-0004

2019-0521

03/29/2019

Rizzo, Sonya

2019-0618-0005

2019-0522

03/29/2019

Rizzo, Sonya

2021-0618-0002

2021-2118

11/12/2021

Rizzo, Sonya

2021-0618-0003

2021-2119

11/12/2021

Rizzo, Sonya

2021-0618-0004

2021-2120

11/12/2021

Rizzo, Sonya

2021-0618-0005

2021-2182

09/19/2021

Rizzo, Sonya

2021-0618-0006

2021-2183

09/19/2021

Rizzo, Sonya

2021-0618-0007

2021-2184

09/19/2021

Rizzo, Sonya

2021-0618-0008

2021-2185

09/19/2021

Rizzo, Sonya

2021-0618-0009

2021-2186

09/19/2021

Rizzo, Sonya

2021-0618-0010

2021-2187

09/19/2021

Rizzo, Sonya

2021-0618-0011

2021-2188

09/19/2021

Rizzo, Sonya

2021-0618-0012

2021-2189

09/19/2021

Rizzo, Sonya

2021-0618-0013

2021-2190

09/19/2021

Rizzo, Sonya

2021-0618-0014

2021-2191

09/19/2021

Rizzo, Sonya

2021-0618-0015

2021-2192

09/19/2021

Rizzo, Sonya

2021-0618-0016

2021-2193

09/19/2021

Rizzo, Sonya

2021-0618-0017

2021-2194

09/19/2021

Rizzo, Sonya

2021-0618-0018

2021-2195

09/19/2021

Rizzo, Sonya

2021-0618-0019

2021-2196

09/19/2021

Rizzo, Sonya

2021-0618-0020

2021-2197

09/19/2021

Rizzo, Sonya

2021-0618-0021

2021-2198

09/19/2021

Rizzo, Sonya

2021-0618-0022

2021-2199

09/19/2021

Rizzo, Sonya

2021-0618-0023

2021-2795

12/21/2021

Rizzo, Sonya

2020-0618-0005

2022-11844

02/10/2020

Rizzo, Sonya

2020-0618-0006

2022-11845

01/28/2020

Rizzo, Sonya

2020-0618-0007

2022-11846

10/01/2020

Rizzo, Sonya

2020-0618-0008

2022-11847

11/13/2020

Rizzo, Sonya

2020-0618-0009

2022-11848

12/12/2020