GSB# 2021-3632; 2022-4841; 2022-5165
UNION# 2022-0542-0001; 2022-0542-0003; 2022-0542-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Martin)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Annie McKendy
Arbitrator
FOR THE UNION
Justin Amaral Morrison Watts LLP Counsel
FOR THE EMPLOYER
Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel
HEARING
November 30, 2022
Decision
1This is a preliminary decision dealing with three preliminary objections raised by the Employer. The Union has filed, and the parties have put before me, three related grievances asserting harassment and unreasonable denial of requests for a flexible schedule. The parties participated in mediation on September 12, 2022, which did not result in a settlement. The Union provided particulars of the grievances to the Employer on November 4, 2022. A hearing was held on November 30, 2022, to address the preliminary issues.
2The Employer takes the position that a number of the allegations set out in the Union’s particulars should be dismissed because they are untimely. They further submit that many of the allegations were addressed in a previous arbitration decision before this Board and should be dismissed as res judicata. Finally, the Employer submits that any remaining allegations do not establish a prima facie case that the collective agreement has been violated.
3In addition to the three grievances of which I am seized, the Employer included in the book of documents ten earlier grievances, all of which were dismissed by the Board in Ontario Public Service Employees Union (Martin) v Ontario (Transportation), 2022 CanLII 35398 (hereinafter the “April 2022 Decision”).
4My general findings are summarized at the outset, for the reasons that follow.
5Upon review of the April 2022 Decision, the particulars provided by the Union in support of that decision (the “July 2021 particulars”), and the particulars put forward in support of the present grievances (the “November 2022 particulars”), I find that there is significant overlap between the facts and issues in the matters. As such, many of the allegations before me are res judicata and must be dismissed on that basis.
6Second, I find that a significant number of the allegations are untimely and should be dismissed on that basis. Two allegations contained in the harassment grievance post-date the filing of the grievance. Since there were no timely allegations supporting the harassment grievance at the time it was filed, the post-grievance allegations cannot stand alone.
7A single allegation remained after having addressed the issues of res judicata and timeliness. I find that this allegation and the particulars provided in support of it do not establish a prima facie breach of the collective agreement. All three grievances are dismissed in their entirety.
The Grievances
8The Union submits that the three grievances are linked in that they all relate to the Grievor’s allegation that she is being harassed by the Employer and unreasonably denied requests for a flexible in-office schedule. She alleges that her race and family status are factors in that harassment and that the Employer targets her by over-scrutinizing her conduct and being overly rigid in their response to her requests.
Harassment Grievance - GSB #2021-3632
9The first grievance, dated January 28, 2022, (“the harassment grievance”), alleges that the Employer has breached articles 2, 3 and 9 of the collective agreement, and any other relevant legislation by “micromanaging, harassing and bullying the member and in doing so has created a poisonous work environment for the member and have encouraged members to be against each other instead of encouraging team building.”
10The Union provided the following particulars in support of this grievance. I have reproduced them and maintained the numbering used in the original document:
The Grievor states that she has been harassed in the workplace by her manager […] and her Section Head […] and her Director […].
Specifically, the Grievor states that [her manager] has engaged in micromanagement as well as harassing and bullying behaviour.
The Grievor states that [her manager] has created a poisonous work environment.
The Grievor specifically points to the following incidents:
a. On September 17, 2020, the Grievor attended a routine Joint Health and Safety inspection. During that meeting, [her director] made insulting and unprofessional comments:
i. “You are all lucky to have a job as you are doing one day’s work and getting paid for four days”, or words to that effect; and
ii. In response to the Grievor stating some of the work done in office could actually be done from home, [her director] stated: “you can move to the private sector”, or words to that effect.
b. [The director] ultimately apologized for his comments on September 17, 2020, but, the Grievor states that she began to face reprisal after bringing forward her complaint about his comments and conduct at that meeting.
c. On November 4, 2020, while the Grievor was on vacation, she was provided with a letter of allegation. She states that the letter was purposefully sent to her while on vacation to maximize her stress.
d. On November 10, 2020, the Grievor attended the allegation meeting. She states that the allegations amount to reprisal for her union work, including her September 17, 2020 incident with [her director]. During this allegation meeting, the Grievor states that she advised [her manager] that she was experiencing a migraine and was not feeling well. [The manager] continued the meeting nonetheless. The Grievor states this is part of a pattern of harassing and bullying conduct in the workplace.
e. On December 3, 2020, the Grievor received a letter of discipline for the allegations outlined in the November 4, 2020 allegation letter. The Grievor states that this discipline is part of a pattern of harassing and bullying behaviour by [her manager] and [her section head] and that the allegations were otherwise frivolous and vexatious. Specifically:
i. The Grievor was accused of unprofessional, confrontational, and disrespectful behaviour when she signed off the branch team meeting before it was finished. She states that she did so because she was having problems with her computer, namely, she could not hear anyone in the meeting. She states that disciplining her for a technological issue constitutes harassing conduct.
ii. The Grievor was accused of subjecting her supervisor to disrespectful and unprofessional feedback regarding her discontent with management and returning to the workplace. The Grievor denies the allegation and states that she was simply discussing her concerns around management being inflexible with the return to work. She states that discipline for this discussion is heavy-handed and constitutes harassment.
iii. The Grievor was accused of refusing to follow office protocols for attendance during the COVID-19 pandemic, including:
Being accused of failing to seek approval to leave work early on October 7, 2022 [sic] because she extended her working hours earlier in the work [sic]. The Grievor denies the allegation and states that her Supervisor (Deloris) had approved her early leave. Again, the Grievor states that disciplining her for her approved early leave constitutes harassment.
Being accused of failing to seek approval / notifying her Section Head of attendance for the day. The Grievor did not attend work in-person that day because her daughter tested positive for COVID-19 and she did not want to violate the workplace COVID-19 policies by attending work after being in close contact with someone who had / may have had COVID-19. The Grievor states that disciplining her for complying with the COVID-19 policy constitutes harassment.
iv. The Grievor was accused of performance issues. She denies asking colleagues questions on how to complete basic tasks and states that the allegation is part of a pattern of harassing and bullying behaviour.
f. On April 27, 2021, the Grievor filed a WDHP complaint for harassment, discrimination, and a poisoned work environment as a result of [her manager] and [her section head]’s conduct, including the unfair discipline and unwillingness to be flexible with her work schedule. On or around June 7, 2021, the Grievor was advised that her allegations as against [her section head] were within scope.
g. On March 8, 2021, [her section head] issued a Non-Disciplinary Letter of Counsel to the Grievor for her failure to complete electronic COVID-19 screening. The Grievor had indicated she was prepared to complete physical COVID-19 screening documents as the electronic / phone methods were not user-friendly. She states that this could have been dealt with without a Non-Disciplinary Letter of Counsel and that this constitutes a pattern of harassing / bullying conduct.
h. On June 8, 2022, the Grievor attended a meeting with [her manager] and other colleagues to discuss cross-training. At that meeting, a colleague, […] made comments she found offensive. At that meeting, she expressed the view that she was offended by Mr. Gordon’s comments and she wished to leave the meeting. [The manager] told the Grievor she needed to stay. The Grievor indicated she did not feel comfortable staying and that she was experiencing a migraine. [The manager] still made the Grievor stay.
i. On June 28, 2022, [her section head] asked the Grievor to follow-up with a client who had allegedly received the wrong abstract. [The section head] made a vague request for the Grievor to call the client and provide her with some bullet points on the discussion. The Grievor states that normally these follow-up calls are handled by [her section head] and that this request constitutes an attempt to humiliate her.
j. The Grievor states that there have been a number of occasions where she has been asked to make up an “in-office day”. The Grievor states these requests have little to do with operational needs.
- As a result of these events, the Grievor experienced migraines and stress.
In-Office Lieu Day Grievance - GSB #2022-4841
11The second grievance, dated May 30, 2022, (“in-office lieu day grievance”), alleges that the Employer has breached articles 2, 3, 9 and 47 of the collective agreement. The grievance states:
“The employer has violated management rights by forcing the employee “to make up an in-office day in lieu of a statutory holiday”. The employee explained to the employer her concerns and provided a collaborative solution to the problem about the commute to the office and work timings. The employer has been reluctant to listen even though this concern is a year and a half old problem and still on going. The employer has not been following the guidelines of OPS and SoC (Secretary of Cabinet) to be flexible with staff. The employer in her email has indicated she is “fair” to staff which does not reflect in her interaction with the employee. The employee has been singled out. This has caused a great deal of stress to employee as she is concern about her health. As a racialized woman, the employee has been constantly overlooked, is disrespected, and ignore by the employer. The employer instead of managing, has been dictating to the employee. Requiring the grievor “to make up an In-office day in lieu of a statutory holiday”. The grievance goes on to note that the grievor believes she is being unfairly singled out, and that the treatment is connected to the fact that she is a racialized woman. It also notes that the problem has been going on for approximately one and a half years.”
12With respect to the In-office lieu day grievance, the Union provides the following particulars:
On or around April 15, 2021, the Employer assigned the Grievor in-office days on Monday from 1 p.m. to 4 p.m. and Wednesday from 8 a.m. to 11 a.m. The Grievor requested flexibility so she could minimize her use of public transit. The Employer only granted this request for a period of two (2) weeks.
The Grievor states that the Secretary of Cabinet’s (“SoC”) July 29, 2021 memorandum to all staff stating that “return to the workplace will be gradual, coordinated and done safely” and that the Employer “will take a flexible approach with employees”.
On March 10, 2022, [the section head] sent correspondence to the Grievor and all IDRU staff indicating that employees would need to attend work in-person if a public holiday fell on one of their regularly scheduled in-person days.
On May 2, 2022, [the section head] approved the Grievor’s vacation request and told her to find a replacement in-person day as a result of the May 23, 2022 public holiday. The Grievor states that [her section head] applied this policy rigidly and contrary to the spirit of the SoC’s July 29, 2022 memo.
Flexible Schedule Grievance - GSB #2022-5165
13The third grievance, dated May 27, 2022, (the “flexible schedule grievance”), alleges that the Employer breached articles 2, 3, 9 and 47 of the collective agreement. The same allegation as quoted above, forcing the Grievor to make up an in-office day in lieu of a statutory holiday, is repeated in this grievance.
14The Union provided the following particulars is support of the flexible schedule grievance:
- The Grievor has requested a flexible work schedule from the Employer
(start / end time and work-from-home).
- The Grievor states that the Employer has unfairly disregarded her requests, including:
a. On February 1, 2021, her family’s vehicle required sudden maintenance. The Grievor requested a discretionary day from [her section head]. She denied the request and instead unilaterally entered in a vacation day for the Grievor.
b. Requiring the Grievor to work in-office on an alternative day after she attended a MERC meeting virtually from home on March 31, 2021 (a day she normally would have been asked to work in-office).
c. Requiring the Grievor to work in-office on an alternate day after Victoria Day in 2022.
- The Grievor states that the Employer’s conduct with respect to the Public Holiday / In-Office Workday Grievance (-0003) and this Flexible Schedule Request Grievance (-0004) constitutes part of a pattern of harassment in the workplace.
Res Judicata
15Based on the findings of the April 2022 Decision, I find that there is a substantial overlap between the issues raised in that decision and those raised before me. In order to understand the overlap between the issues, it is helpful to review the ten grievances that form the basis of the April 2022 Decision. Issues raised in nine of the 10 grievances are also before me in this matter. Additionally, there is also substantial overlap in the period of time during which the issues took place. Each of the ten grievances was dismissed in the April 2022 Decision for failing to establish a prima facie case.
16Grievance 2020-2136, the first of the ten, alleged that there were violations of the collective agreement relating to “health and safety, accommodation, Covid and OHRC”. Grievance 2020-2137 cited “health and safety, harassment, management rights and discipline”. The particulars provided in support of these grievances stated that in July 2020, the Grievor’s unit was required to return to the office one day a week between Monday and Thursday. The Grievor was assigned to work in the office on Wednesdays. She asked that her day be changed in order to avoid having to take the TTC and to avoid people in the office. The Employer denied her request. The Grievor reiterated her request throughout the summer, indicating to the Employer that her husband had a medical condition requiring that he not be exposed to Covid. The Union argued that the Employer’s rigid stance and inflexibility in scheduling for the Grievor’s unit and the Grievor constituted harassment of the Grievor. They argued discrimination on the basis of marital status and that she was targeted for her union activity.
17Grievance 2020-2237, addressed in the April 2022 Decision, alleged violations relating to health and safety, accommodation, covid, harassment, discrimination, and management rights. The grievance related to circumstances in October 2020 when the Grievor was required to work in the office three days a week. In order to avoid taking public transit, she sometimes worked late and asked that she be allowed to accrue time off. This request was denied.
18Grievance 2020-2138 cited health and safety, bullying, harassment, and management rights as violations of the collective agreement. The Grievor alleged that she was unjustly disciplined for working from home when one of her family members was exposed to Covid. She alleged that she requested direction as to whether she could work from home, but received no response until the day in question, October 17, 2020. The grievance also cited a second incident on November 5, 2020, which has not been raised in the present matter.
19Grievance 2020-2139 alleged violations relating to health and safety, bullying, harassment, management rights and the Human Rights Code. Grievance 2021-2936 alleged discipline, bullying, discrimination, harassment, health and safety and management rights. The following particulars were provided in support of both grievances: “The allegation letter provided to the Grievor was unduly insensitive and hurtful. The Employer provided the allegation letter on the Grievor’s vacation day. In the allegation meeting the Grievor complained that the stress of the meeting was causing a migraine, and the Employer did not desist or offer any assistance. The Grievor contests the allegations levied by the Employer, and the finding of discipline. The disciplinary letter was issued without just cause, and was imprecise in terms of which allegations were supported, and which were not. The Grievor received a letter of counsel on March 8, 2021, which was unduly punitive. The Grievor believes the letter of counsel constitutes disguised discipline. In the alternative, the Grievor believes that the letter of counsel nonetheless constitutes differential treatment that is part of a course of harassment, and contributes to a toxic work environment.” The Union submitted the allegations could support a finding of harassment and discrimination. They argued that the intent of the March 8 letter was intended to scold and castigate and was therefore disciplinary.
20Grievance 2020-2244 alleged the collective agreement was breached with respect to discipline, Covid, harassment, discrimination and management rights. The Union relied on the same particulars as those set out in support of grievances 2020-2138 and 2021-2936.
21Grievance 2020-2666 alleged a violation of the collective agreement relating to health and safety, accommodation, bullying, covid, harassment, discrimination, and management rights. The particulars set out that on January 25, 2021, the Grievor informed the Employer that she was having car maintenance issues and would therefore not report to the office on February 1, 2021. She requested that she be permitted to work from home. The Employer granted the request but required that she attend the office on another day to offset the day worked from home. The Employer offered as an alternative that the Grievor use a vacation or discretionary day. When she requested the discretionary day it was denied.
22Grievance 2020-2667 alleged violations relating to harassment, discrimination, bullying, health and safety and management rights. Four incidents were particularized in support of this grievance. First, on January 13, 2021 the Employer insisted on knowing the length of a “town hall” meeting before permitting the Grievor to attend. Second, the Grievor received an email stating that she was an hour late to work and asking how she would make up the time. Third, the Grievor was required to use a vacation credit to prepare for a MERC meeting on March 24, 2021. Typically attendance at these meetings did not require the use of credits. Finally, in April 2021 the in-office day protocol was changed and the Grievor was assigned to work in the office two half-days per week. She again explained that this posed challenges for her commute as that she and her spouse both had health conditions putting them at higher risk if they contracted Covid. She asked to work a full day in-office instead. The Employer offered to allow her to work two full days in the office.
23The final grievance related to a job competition in October of 2020 and is wholly unrelated to the issues raised in this matter
Principle of Res Judicata
24The principle of res judicata was summarized in OPSEU (Primo) and Ministry of Community Safety and Correctional Services, GSB#2014-2911, (Misra) [hereinafter “Primo”]; relied upon by the Employer in its submissions.
25[12] In University Health Network (Toronto General Site) v. Ontario Nurses’ Association, 2013 CanLII 39960 (ON LA)(G. Surdykowski), the arbitrator considered arguments regarding res judicata and issue estoppel, and stated as follows:
Res judicata, issue estoppel and abuse of process are related doctrines which are used to preserve the integrity of the judicial process and the justice system. These doctrines can apply in any case, including cases which allege human rights or Charter violations. The Supreme Court of Canada’s decisions in Toronto (City) #2, Danyluk, and Doering demonstrate that all three doctrines are applicable to grievance arbitration proceedings, and that a labour arbitrator should apply them when and as appropriate. It is both appropriate that arbitrators have these tools available, and consistent with the concept that, subject to the requirements of fairness, natural justice, and applicable legislation, an arbitrator is the master of his own procedure.
Issue estoppel is a branch of res judicata and in this case they are conveniently dealt with together. The twin principles underlying these doctrines are that except in special circumstances (and subject to the available appeal or judicial review processes) a final decision on the merits of substantially the same issue by an adjudicator of competent jurisdiction should put an end to the litigation; and a party should not be vexed more than once in the same cause. There are three preconditions which must be met for res judicata or issue estoppel to apply:
(1) substantially the same issue must have been determined in the prior decision raised as a bar;
(2) the prior decision must be a final decision by an adjudicator of competent jurisdiction; and,
(3) the prior decision must be binding the parties or their privies.
26In the case before me, it is clear that the second and third pre-conditions of issue estoppel and/or res judicata have been met by the fact of the April 2022 Decision. Both parties focussed their submissions on the first factor, whether the same issue or substantially the same issues had been determined by the April 2022 Decision.
Submissions
27The Employer submits that I should strike paragraphs 7 a) through 7 g) of the particulars relating to the harassment grievance, paragraph 9 of the in-office lieu day grievance and paragraphs 14 a) and 14 b) of the flexible schedule grievance on the basis that they were addressed by the April 2022 Decision.
28Employer counsel reviewed each of the allegations, noting the corresponding facts in the particulars relied upon in the April 2022 Decision (the “July 2021 particulars”) and the corresponding findings in the Decision. The Employer submits that each of the allegations was dealt with or ought to have been dealt with in the earlier proceeding. It acknowledges that some of the allegations were not squarely brought up in the earlier proceeding, but that they relate to the same events and time period, and therefore ought to have been raised.
29In support of its argument, the Employer directed me to Primo, supra, and OPSEU (Fitzpatrick) and Ministry of Community Safety and Correctional Services, GSB#2015-1251, (Gee) [hereinafter “Fitzpatrick”].
30Specifically, they pointed to paragraph 25 of Primo, which reads as follows:
31The arbitral jurisprudence is clear that, except in exceptional circumstances, res judicata and issue estoppel may be applied where a prior award has dealt with the substantial matter between the parties in a forum permitting the full and fair airing of relevant arguments that, with reasonable diligence, were available at that time. At the core of the considerations in applying these concepts is a desire to prevent an abuse of the arbitration process to the detriment of ongoing relationships between parties. Arbitrators have recognized that there must be a balancing of the interests of fairness in the litigation process with promoting finality and certainty in the parties' ongoing relationship, and that this balancing may require the application of res judicata or issue estoppel to put an end to a matter.
32The Employer also directed me to a passage from the Fitzpatrick decision in support of their position that the Union should be barred from relitigating the same matter by raising new facts which were available to it in the course of the previous proceeding:
There are two distinct aspects to res judicata. First, it bars a party from adjudicating a matter that has already been decided. Second, it prevents a party from adjudicating a matter that it ought to have brought up in an earlier proceeding. The principle of res judicata serves to bar evidence in order to preserve and protect principles such as: confidence in the administration of justice; judicial economy; consistency of decisions; the prevention of forum shopping; and the finality of legal disputes. In a grievance arbitration system where there are a considerable number of grievances that are referred to mediation and arbitration, the system would simply break down if parties were permitted to relitigate matters already decided or engage in litigation by instalment.
33In response, the Union submitted that the grievances should be considered broadly and that together they establish that the Grievor is being subjected to a poisoned workplace through a series of decisions that were made in an overly rigid manner. It submits that the Grievor’s race was a factor in how she has been treated by management.
34The Union submits that the doctrine of res judicata has two components: issue estoppel, which prevents the Grievor from raising an issue that has already been decided in a previous proceeding, and cause of action estoppel, which prevents the Grievor from pursuing a matter that was or should have been the subject of a previous proceeding. The Union submits that issue estoppel does not create a bar for the distinct issues raised by the present grievances, noting that the Employer conceded that some facts were not squarely before the arbitrator in the proceeding leading to the April 2022 decision.
35The Union further submits that there was no requirement for it to import particulars from the present three grievances into the earlier proceeding. Moreover, it submits, had it done so, the Employer would have argued that it was attempting to expand the scope of the earlier grievances. The Union notes that the present grievances could have been consolidated with the previous ten grievances, but were not. In this context, the Union argues that the Employer ought not to be permitted to rely on the doctrine of estoppel as a bar to allegations that were not raised in the previous proceeding.
36The Union further directs me to the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, [hereinafter “Danyluk”] as standing for the proposition that in considering the application of issue estoppel, a decision maker must exercise discretion and consider whether justice is done on the facts of a particular case. It submits that if I rely on this doctrine, I should find that the Grievor would not have had the opportunity to have the substance of harassment allegations heard, including those contained in her complaint made pursuant to the Workplace Discrimination and Harassment Prevention Policy [“WDHP Policy”], which was found to be “in-scope”.
Findings on the Issue of Res Judicata
Harassment Grievance
37In my view, the majority of the allegations set out in support of the harassment grievance were squarely raised and dismissed in the April 2022 decision and must be struck from the November 2022 particulars, filed in support of the present matter.
38Paragraphs 7 c) d) and e) of the Union’s particulars set out events which took place on November 4, 10 and December 3, 2020. The Grievor alleges that the Employer sent her a letter, while she was on vacation, advising her of an allegation meeting which would take place on November 10, 2020. She alleges that she was not permitted to leave the allegation meeting despite having a migraine. Finally, she alleges that the basis of the disciplinary letter resulting from the allegation meeting constituted harassment. The particulars outline that the December 3, 2020 disciplinary letter was issued for unprofessional communications, failure to follow the Covid-19 protocol, and performance issues.
39The April 2022 Decision, at paragraph 35, considers a grievance dealing with the same allegations. The Decision notes that the grievor alleged she was “targeted for an allegation meeting on a day she was not at work” and that she was not permitted to leave the allegation meeting despite having a migraine.
40Though the April 2022 Decision does not explicitly reference the December 3 letter of discipline, paragraph 28 of the July 2021 particulars does [see paragraph 16]. The particulars set out that the Grievor contested the statements of the disciplinary letter. The particulars further state that the letter was issued without just cause.
41In support of its position that the allegations relating to the letter of discipline were not res judicata, the Union pointed to the fact that there was no specific finding in the April 2022 Decision regarding whether the letter constituted harassment or reprisal. This argument attempts to unduly narrow the proper test for determining whether the allegation is res judicata. It is clear that the Union had the opportunity to know the case it had to meet and to raise any argument or fact relating to the disciplinary letter to meet that case. Its failure to raise the particular arguments of reprisal and harassment cannot now be relied upon to relitigate the same circumstances. The incidents leading up to the disciplinary letter were before the Board in the April 2022 Decision, and were considered and dismissed.
42There can be no doubt that the allegations at paragraph 7 c), d), and e) overlap squarely with those at the heart of the grievances dismissed at paragraph 36 of the April 2022 decision.
43Paragraph 7 g) of the Union’s particulars sets out that on March 8, 2021, the Grievor was provided with a letter of counsel for disregarding the Covid-19 screening policy. The particulars state that the decision to issue a letter of counsel was part of a pattern of harassment and bullying conduct.
44Paragraph 37 of the April 2022 Decision also addresses the Grievor receiving this March 8, 2021 letter, as does paragraph 29 of the July 2021 particulars. The allegation at paragraph 7g duplicates the allegations brought forward in a previous grievance and must be struck as res judicata.
45I turn finally to the allegations contained at 7 a) and b) of the Union’s particulars. Here it is alleged that the Director made inappropriate comments to the Grievor during a joint health and safety inspection on September 17, 2020. It is further alleged that the Employer’s conduct that followed, namely the provision of the November 3, 2020 allegation letter, the allegation meeting, and the subsequent discipline, constituted reprisal for the Grievor having raised her concern with the Director’s conduct.
46While it is clear that the other allegations particularized in support of the harassment grievance were addressed by the April 2022 Decision, the allegations regarding the Director’s comments were not. The Employer conceded this, but directed me to the Primo and Fitzpatrick decisions in support of their position that the allegations about the Director’s comments were known to the Grievor at the time the grievances relating to the November and December 2020 events were filed, and in July 2021 when particulars were provided in anticipation of the previous proceeding. The allegations could have been raised in the earlier proceeding and were not. On that basis, the Employer asks that I nonetheless dismiss the allegations as res judicata.
47The Union submitted that the Director’s comments, if accepted, were patently abusive and to dismiss the allegations, which were found to be “in-scope” of the WDHP Policy, would run afoul of the Supreme Court’s decision in Danyluk by denying the Grievor an opportunity to have the substance of her harassment complaint heard. The Union further argued that it could not have been expected to import particulars from grievances which were not consolidated with those being heard.
48In my view, the Grievor had every opportunity to have the substance of her grievances addressed in the previous proceeding. Having reviewed the ten grievances at issue, I note that two clearly deal with the events leading up to the allegation meeting on November 10, 2020, and the subsequent discipline. One of the grievances specifically references that the Grievor was being targeted for speaking out, referencing, albeit obliquely, the Union’s allegation that the November and December events constituted reprisal. Several other grievances filed in November of 2020 also allege harassment and could have encompassed the particulars relating to the Director’s comments.
49Notably, the Union is asking me to find that the Employer’s conduct, as a whole, constitutes harassment. It suggests, relying on Danyluk, that as a matter of fairness, the Grievor’s case should be heard in its entirety. However, I do not see any aspect of the harassment grievance that could not properly have been raised by the Union in 2021. Rather, its position effectively invites me to hear the Grievor’s allegations on the merits and ultimately make a finding of fact which would directly contradict the April 2022 Decision.
50The policy reasons that underpin the doctrine of res judicata are intended to prevent precisely this type of situation. The Employer must be allowed to rely on the finality of the April 2022 Decision. Further, as a matter of labour relations, the filing of multiple overlapping grievances should not be encouraged. The Union cannot create multiple attempts at litigation by filing the same, or substantially the same grievances and parsing out certain facts in the hope of taking another kick at the can. This is particularly true where the grievances cite harassment broadly, as they did in the earlier grievances.
51I have considered the Union’s allegation that further incidents of harassment have occurred since those addressed in the April 2022 Decision, and that to consider the later incidents in isolation would be to ignore that harassment is generally a course of conduct. Nonetheless, having chosen to bring forward and litigate the group of ten grievances, several being harassment grievances, the Union cannot then also seek to relitigate them by adding newer facts. This is consistent with the reasons of the Board in Fitzpatrick, supra, which states, at paragraph 20:
Similarly, Vice-Chair Anderson’s finding that the incidents did not amount to harassment is final and can be relied upon by the Employer in subsequent cases. Res judicata prevents the Union from relitigating the incidents. Further, I have particular difficulty with this proposition on the facts of this case. The Union elected to consolidate five grievances to the exclusion of others. Having made that decision, and received an adverse decision, the Union cannot now essentially reverse course by adding allegations that were before Vice-Chair Anderson to the allegations before me. Litigation would never have an end if parties were not held to their strategic choices.
52The Grievor had every opportunity to advance her claims of harassment by the Director and her claims of reprisal in the course of the previous proceeding and ostensibly chose not to. To allow otherwise would be to allow her to relitigate an outcome with which she was not satisfied.
53For these reasons paragraphs 7 a) b) c) d) e) and g) of the particulars relating to the harassment grievance are struck as res judicata.
Findings with Respect to In-Office Lieu Day Grievance 2022-4841
54The Employer submitted that paragraph 9 of the in-office lieu day grievance should be struck as res judicata. Paragraph 9 alleges that on or about April 15, 2021, the Employer provided the Grievor with her in-office schedule, that she requested flexibility to minimize her use of public transit, and that she was only provided with flexibility for a period of two weeks.
55Paragraph 46 of the April 2022 Decision restates this same allegation, particularized in support of grievance 2020-2667. It was dismissed in that decision and it is therefore struck from this grievance as res judicata.
Findings with Respect to Flexible Schedule Grievance
56The Employer submits that paragraphs 14 a) and b) should be struck as res judicata. Paragraph 14 a) addresses an incident in which the Grievor’s vehicle required maintenance, and she requested the use of a discretionary day, which was denied. This incident is clearly considered and dismissed at paragraphs 44 and 45 of the April 2022 Decision. This allegation is therefore dismissed as res judicata.
57Paragraph 14 b) alleges that the Grievor was required to make up an in-office day after attending a MERC meeting on March 31, 2021. The Employer notes that though this specific incident was not raised in the earlier proceeding, the Grievor argued in that case that she was denied a vacation day requested for March 24, 2021 to prepare for the MERC meeting. The employer, therefore, submits that this allegation could and should have been raised at that time.
58This allegation raises a different set of facts from those raised in the April 2022 decision insofar as it questions the reasonableness of requiring the Grievor to attend work in person to make up for the day of the MERC meeting. However, I note that the Grievor raised a number of instances in the earlier matter which she believed to be unreasonable and inflexible denials of her requests for a flexible schedule. She also raised the issue that they formed part of a pattern of harassment. In my view, the issue is substantially similar and ought to be dismissed as res judicata.
59I note that I would likely have found differently had the present grievance specifically cited the March 31 incident. Had the grievance language drafted narrowly so as to identify the particular incident, as opposed to being worded broadly, I would have likely accepted the Union’s argument that the failure to consolidate the grievances preserved the specific incident. But in the face of very broad language, the Employer could not have anticipated that a later grievance from the earlier time period was waiting in the wings to raise a specific set of facts which could and should have been raised earlier.
Timeliness
60The Employer argued that the harassment grievance should also be dismissed because it was filed on January 28, 2022, approximately 9 months after the last incident which could constitute harassment.
61Article 22.2 of the collective agreement requires that a grievance be filed within 30 days of the circumstances giving rise to the complaint:
62If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative.
63The Employer submitted that the appropriate date from which the timelines should start running is the date of the last incident, March 8, 2021, when the Grievor received a letter of counsel. According to its calculations, the grievance should have been filed on or about April 20, 2021, in order to be timely.
64The Employer noted that the next dates referenced in the particulars were April 27, 2021, the date upon which the Grievor filed a WDHP complaint, and June 7, 2021, the date upon which the Grievor was advised that her complaint was found to be “in-scope”. The Employer argued that these do not constitute incidents that could serve to extend the timelines, but even if they did, the grievance would still be approximately 6 months late.
65The particulars set out, at paragraphs 7 h) and i), in support of the harassment grievance also reference two incidents from June 2022. The Employer submits that these incidents, which took place after the grievance was filed, should not serve to extend timelines.
66The Employer acknowledged that I have the discretion to extend the timelines for the filing of the grievance, but argued that the factors to be considered weigh in favour of declining to exercise that discretion. It also submits that to do so would cause prejudice.
67In support of its position on timeliness, the Employer referred to the following cases: OPSEU (Bremner) and Ministry of the Attorney General, GSB#2017-2936, (Misra); OPSEU (Lachance) and Ministry of Community Safety and Correctional Services, GSB#2008-3102 (Briggs); OPSEU (Berday) and Ministry of Transportation, GSB#2007-3132, (Devins); OPSEU (Smith et al.) and Ministry of Community and Social Services, GSB#2006-2107, (Gray).
68The Union acknowledged that the grievance was filed outside of the timelines in the collective agreement. It made no submissions with respect to whether or not I should exercise my statutory discretion to extend those timelines.
69Rather, the Union took the position that the Employer had waived its right to object on the basis of delay by participating in the September 12, 2022 mediation. The Union relied on the decision in Ontario Public Service Employees Union (Curtis) v Ontario (Attorney General), 2020 CanLII 14812 (ON GSB)(“Curtis”) in support of its argument.
70In Curtis, the grievance raised allegations regarding health and safety that were filed some 13 months after the Grievor went off work on a sick leave. The parties did not hold a second step meeting but did participate in a mediation before the GSB. The arbitrator found that fresh steps had been taken by the employer by participating in the mediation and that the doctrine of waiver applied. The Union submitted that this case is on all fours with the present facts.
71Finally, the Union submitted that the two allegations which took place in June of 2022 flow from the grievance, and it would therefore be consistent with the case law for them to be considered as part of this grievance.
Decision on Timeliness
72I find that the harassment grievance should be dismissed on the basis that it is untimely. There was no dispute that the grievance was filed well outside of the 30-day timeframe provided for in the collective agreement. Even assuming allegations of a pattern of conduct, there is a significant unexplained gap between the last incident alleged in June 2021 and the filing of the grievance. Having considered the Employer’s argument on the issue, I find the circumstances do not support the exercise of discretion. And, given that the Union did not argue that the relevant facts warrant the exercise of discretion, I see no need to review them further.
73I have considered the Union’s argument that the Employer waived its right to rely on delay, and that the facts of this case are consistent with those in Curtis, supra. I find that the Employer did not waive its right to raise a timeliness objection in the present circumstances. First, I am of the view that the Union did not establish a factual basis in support of its argument. Specifically, no evidence or facts were put forward with respect to whether or not a second step meeting was held and what, if any, discussion took place regarding the delay in filing the grievance. When I asked the parties if a step two meeting was held, neither knew the answer. Absent this information, there is an insufficient factual basis upon which I could make a finding that the doctrine of waiver should apply.
74Second, even if the Union had established that the Employer did not raise the issue of delay, I find the present facts to be distinguishable from those in Curtis. Specifically, in Curtis, the Grievor had filed a grievance 13 months into a leave of absence. There could have been no confusion in the Employer’s mind at the time the grievance was filed that the health and safety allegations related to a period of time more than 30 days prior to that filing. In the present case, the Grievor alleged harassment and was still in the workplace. There is nothing before me to suggest that the Employer could have known that none of the allegations she intended to raise took place within the 30-day timeframe prior to the filing of the grievance until the Union provided particulars in November of 2022. This is particularly true given that the Grievor had filed earlier grievances alleging harassment. When provided with the particulars, the Employer raised the timeliness issue.
75I find that at the time the grievance was filed, there were no timely allegations and further, it has not been established that the Employer waived its right to raise the issue of timeliness.
76In light of those findings, I find that the June 2022 allegations cannot proceed. I am not satisfied that the Union can raise allegations that took place more than 5 months after the filing of an untimely grievance to save the grievance. In any event, for the reasons below, I find that the June 2022 allegations do not raise a prima facie case, and must be dismissed on that basis.
No Prima Facie Case
77The only allegation that remains, is the allegation at the heart of the in-office lieu day grievance, and included in the flexible schedule grievance, that the Employer breached the collective agreement by requiring the Grievor to attend the office when one of her in-office days fell on a statutory holiday.
78The parties agreed on the test that should be applied in determining whether or not a prima facie case had been made out. The test was summarized in OPSEU (Solomon Smith et al) and Ministry of Children, Community and Social Services, GSB#2017-0054, (Anderson), citing Ontario Public Service v Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson):
… In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.
79The Employer relied on the following cases in support of their argument: OPSEU (Solomon Smith et al) and Ministry of Children, Community and Social Services, GSB#2017-0054, (Anderson); OPSEU (Brydges et al) and Ministry of Transportation, GSB#2012-1012, (Dissanayake); OPSEU (Fortin) and Ministry of Finance, GSB#2013-2473, (Luborsky)
80The Union argued that the allegations, as a whole, constitute a continuum of events that are capable of making out a prima facie case of harassment. It points to the allegations regarding the comments made by the Director, the pattern of rigid denials and the fact that the allegations were found to be “in scope” in the WDHP complaint.
81However, given that most of the allegations said to be part of the course of harassing conduct were dismissed by the April 2022 Decision, I am left to determine whether this allegation and (if I am wrong in finding that the June 2022 allegations cannot proceed in the absence of a timely grievance) the two allegations from June 2022 make out a prima facie case.
82Having considered the particulars before me relating to the in-office lieu day grievance, I find that the Grievor has not asserted any facts with respect to the Employer’s requirement that she make up an in-office day when her regular in-office day fell on a statutory holiday that are capable of establishing either that the Employer acted unreasonably, or that the conduct constituted harassment or discrimination. In reaching this finding I am mindful of the fact that racial discrimination or harassment on the basis of race can be subtle and can take place absent any reference to the Grievor’s race.
83Nonetheless, the Union has not asserted any facts suggesting that the requirement that the Grievor make up her in-office day constituted differential treatment such that it might breach the Human Rights Code, RSO 1990, c H.19 or meet the definition of workplace harassment. On the contrary, the Union’s particulars suggest that an email was sent to all employees advising them of the requirement.
84The Union asserts merely that the decision was unduly rigid, and that this rigidity constitutes a pattern of conduct. However, the incidents which are alleged to form a pattern were dismissed in the April 2022 Decision. As such, there are no facts before me capable of establishing a pattern of rigid decision-making.
85Within the limits of what is properly before me, the Union also did not allege any facts that would support a conclusion that the decision was unreasonable.
86With respect to the June 8, 2022 incident, the Grievor asserts that a colleague made an offensive comment and that the Section Head nonetheless required her to stay. She expressed that she had a migraine but alleged that she was not permitted to leave the meeting.
87The Grievor further alleged that, on June 28, 2022, the Manager made a “vague request” that she call a client who had received the wrong abstract. She asserted that these calls were normally made by the manager and were an attempt to humiliate her.
88Considering these allegations separately or together, I find that they are not capable of making out a prima facie case of discrimination or harassment. I further note that none of the incidents described were attributed to the same person, such that no course of conduct could emerge. And while I accept that racial bias may implicit, and therefore may require that seemingly benign conduct be considered carefully through that lens, there is simply no series of incidents capable of establishing such an allegation. I note that no facts were asserted to support that the comment made by the Grievor’s coworker was discriminatory. There were also no facts alleged that might explain how the Manager’s request that the Grievor make a call was anything more sinister than a simple request. I am not required to accept the Grievor’s assertion that the conduct was humiliating in the absence of particulars demonstrating that it was.
89Even if I consider that the decision to require the grievor to make up her in-office lieu day was made by the Manager or Section Head, the incidents are of a different nature and are not capable of forming a course of conduct so as to constitute harassment,
90For these reasons, the final allegations are not capable of establishing a prima facie case.
91Similarly, the remaining paragraphs of the November 2022 particulars that were not struck as res judicata or as untimely are not allegations that, even if accepted as true, would constitute a breach the collective agreement. Rather they are statements of the Grievor’s asserted beliefs or conclusions, which are not assertions of fact, and are not properly accepted as true for the purpose of this motion, or they amount to contextual information, neither of which are capable of supporting a finding of a breach of the collective agreement.
92In the result, and having regard to all of the above, the three grievances before me are hereby dismissed.
Dated at Toronto, Ontario this 20th day of March 2023.