GSB# 2017-2271; 2017-2949; 2017-3421

UNION# 2017-0504-0012; 2017-0504-0016; 2017-0504-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ali)

Union

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Yuk-Sem Won Ontario Public Service Employees Union Thunder Bay Regional Office Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Labour Practice Group Counsel

HEARING

June 1, 2023

DECISION

1In the fall of 2017 the Grievor, Mr. Mir Hashmat Ali, filed three grievances in which he alleged he had been harassed and discriminated against in the workplace and that such had caused him to take action that resulted in his unintended and involuntary resignation from the Ontario Public Service.

2These grievances came to be heard at arbitration on June 12, 2018 and on thirteen additional continuation dates up to November 5, 2019, on which dates four management employees were called upon by the Employer to give evidence. Following this there was a hearing hiatus. Hearings were then scheduled to resume on May 23 and June 1, 2023. At the hearing held June 1, 2023, during submissions made by counsel, light was shed on matters that had taken place during this hearing hiatus of some three and a half years. What occurred is set out below and provides context for the arbitration hearings that subsequently took place on May 23, 2023 and June 1, 2023. At the hearing held June 1, 2023 the Employer put forward a Motion to have these three grievances dismissed. This Decision addresses this Motion.

3During the hearing hiatus of November 5, 2019 to May 23, 2023 Mr. Ali made multiple applications to the Ontario Labour Relations Board (OLRB) with claims that he was not being fairly represented by the Union in having his grievances heard before the Grievance Settlement Board. Mr. Ali also entered several applications for reconsideration of the Board’s Decisions. In all, the OLRB issued a total of nine Decisions. Mr. Ali also made an application for judicial review in Divisional Court of an OLRB Decision dated July 10, 2020 and the related reconsideration Decision dated August 7, 2020.

4In his applications to the OLRB, Mr. Ali contended in a variety of ways that he was not being fairly represented in his hearing by union legal counsel, and also sought a Decision from the OLRB that Mr. Ali be able to appoint his own lawyer in the arbitration hearing who would be paid for by the Union. In turn, all nine applications to the OLRB heard by five different Vice-Chairs of the Board were dismissed and Mr. Ali was informed by the Board that it would not consider a duty of fair representation application prior to the end of the arbitration hearing. The last of this set of decisions made by the OLRB was one issued April 27, 2023 in which the Vice-Chair declined to exercise his discretion to reconsider, as requested by Mr. Ali, an earlier OLRB decision dated February 3, 2023.

5The OLRB decisions in the foregoing matters are found at:

2020-02-10 - Mir Hashmat Ali v OPSEU, 2020 CanLII 11672 (OLRB);

2020-04-07 - Mir Hashmat Ali v OPSEU, 2020 CanLII 28015 (OLRB);

2020-07-10 - Mir Hashmat Ali v OPSEU, 2020 CanLII 49164 (OLRB);

2020-08-07 - Mir Hashmat Ali v OPSEU, 2020 CanLII 57595 (OLRB);

2022-06-09 - Mir Hashmat Ali v OPSEU, 2022 CanLII 129286 (OLRB);

2022-06-29 - Mir Hashmat Ali v OPSEU, 2022 CanLII 60691 (OLRB);

2023-01-29 - Mir Hashmat Ali v OPSEU, 2023 CanLII 6019 (OLRB);

2023-02-03 - Mir Hashmat Ali v OPSEU, 2023 CanLII 10071 (OLRB);

2023-04-27 - Mir Hashmat Ali v OPSEU, 2023 CanLII 39530 (OLRB).

6As noted earlier, and part way through Mr. Ali’s process of making applications to the OLRB, Mr. Ali requested Divisional Court to judicially review the OLRB decision dated July 10, 2020, and its reconsideration decision sought by Mr. Ali dated August 7, 2020. In a hearing held January 24, 2022 the Divisional Court considered Mr. Ali’s request and in a written decision dated February 3, 2022 dismissed Mr. Ali’s application and ordered Mr. Ali to pay costs to the Union. This decision of the court is reported at 2022-01-24 – Ali v. Ontario Public Service Employees Union, 2022 ONSC 785.

7Subsequent to all the foregoing OLRB and Divisional Court Hearings, the parties were provided on March 13, 2023, with a Notice of Proceeding which set out that a continuation hearing of this instant arbitration would take place on the Zoom platform on May 23, 2023, commencing at 10:00 a.m. This same Notice of Proceeding provided clear instructions as to how to join the continuation hearing.

8On the scheduled hearing day of May 23, 2023, the Arbitrator, Employer Counsel and the Union Representative (hereinafter referred to as Union Counsel) were present at the hearing at 10:00 a.m. The Union Counsel present to represent Mr. Ali was different from the one prior to 2023. An Employee Relations Advisor and a Senior Manager were also present at that time with Employer Counsel. The Grievor was not present at the hearing at 10:00 a.m., had not shown by 11:30 a.m. that morning, and no-one present at the hearing had received any communication from the Grievor as to whether or not he would be in attendance.

9Counsel for the Union informed the Board that the Grievor had been notified of the May 23, 2023 continuation date by e-mail on April 3, 2023, and had additionally been notified on that same date of the further scheduled hearing date of June 1, 2023. Union Counsel also informed the Board that reminder e-mails of these dates had been sent to the Grievor on the 2023 dates of April 15, April 17, April 18, May 2, May 9, May 16, May 17, and May 23. Union Counsel notified the Board that, while she had not received a direct response to her e-mails from the Grievor, she had received notification from others that indicated to her that the Grievor had received her e-mails.

10On May 23, 2023, Counsel for the Employer notified the Board and Counsel for the Union that should the Grievor either provide an unsatisfactory explanation for his absence or not provide any explanation at all, or fail to be present at the hearing on the next scheduled hearing date of June 1, 2023, the Employer may at that time bring forward a motion to have the grievances dismissed. Given the absence of the Grievor the arbitration hearing of May 23, 2023 was then adjourned.

11Having heard the foregoing submissions from the parties on May 23, 2023, the instant Arbitrator issued a Decision on May 25, 2023 which stated in relevant part the following, and which provided direction and cautioned the Grievor:

7Accordingly, ……, the Grievor is hereby directed to provide to Union Counsel by May 30, 2023, the reasons for his non-attendance at the hearing on May 23, 2023, and to do so in the following way:

(a) No later than May 30, 2023, the Grievor is to provide to Union Counsel complete particulars in writing, along with any documentary evidence in support, with respect to:

(i) The reason or reasons for his non-attendance at the hearing on

May 23, 2023; and

(ii) The reason or reasons why adequate notice could not have been provided

that he would not be attending on that day.

(b) Upon receipt of any such foregoing reason or reasons for the Grievor’s non-attendance, Union Counsel shall immediately convey the reason or reasons to Employer Counsel.

(c) In the event the Grievor provides particulars as directed by paragraph (a), then the employer may request an opportunity to make submissions at the June 1, 2023 hearing on whether the Board should dismiss the grievances. The Grievor’s grievances may or may

not subsequently be dismissed following consideration of any such submissions.

(d) Should the Grievor not present himself at the June 1, 2023 hearing, his grievances may be dismissed without further notice to him.

(e) If the Grievor fails to provide particulars as directed by paragraph (a), his grievances will be dismissed without further notice to him.

12On the afternoon of May 30, 2023 the Grievor provided Union counsel in this matter with a written reply to this foregoing directive. Union counsel then promptly the same day sent this to Employer counsel. Mr. Ali in his reply to Union Counsel gave no reasons for his non-attendance at the May 23rd hearing and did not address the matter of why he was not able to give advance notice of his non-attendance on May 23, 2023.

13Indeed the Grievor’s reply is a one-page statement that did not constitute a response to what was sought of him in the May 25, 2023 decision, and was one that included also a number of unsubstantiated assertions and allegations. In the situation at Arbitration where the Union has carriage of the grievances brought forward, Mr. Ali also stated that he wanted his own legal counsel to act on his behalf and that this legal counsel was not currently available. He also wrote that while he could be in attendance at the scheduled June 1st arbitration hearing, he would not be able to participate in a hearing in any way until his own legal counsel had made submissions of an unspecified nature to the Board on his behalf. He further stated that his own legal counsel was not available for at least sixty business days, and that he could not provide reasons for at least twelve weeks as to why he was not present at the June 23rd hearing or why he could not have provided notification in advance that he would not be in attendance that day.

14Mr. Ali was in attendance at the scheduled hearing held June 1, 2023 together with the parties and the Arbitrator. During the course of this hearing Employer counsel advised the Board that it would be making a submission to have Mr. Ali’s grievances dismissed on account of Mr. Ali’s general lack of commitment to this arbitration and the arbitration process, as evidenced by his non-attendance at the May 23, 2023 hearing and the particulars disclosed in his subsequent written response dated May 30, 2023.

15Before hearing the parties’ submissions on June 1, 2023 on the Employer’s motion to have Mr. Ali’s grievances dismissed, the Arbitrator provided Mr. Ali with the opportunity to commit to the arbitration process and keep this arbitration on track. Through Union counsel the Grievor was asked to confirm by way of a written Memorandum that he would attend and participate in future hearings, cooperate with the Union acting on his behalf, and comply with any directives or orders of the Arbitrator. The Grievor refused to sign or commit to the terms of this Memorandum and stated he would be leaving the Arbitration prior to the commencement of the Employer’s motion to have Mr. Ali’s grievances dismissed. Accordingly, Mr. Ali was not present to hear either the Employer’s motion to dismiss the grievances or the Union’s submission in response.

16It is the submission of the Employer that the grievances of Mr. Ali should be dismissed for a number of reasons. First, the Grievor has not provided an explanation for either his non-attendance at the arbitration hearing on May 23, 2023 or why he could not have notified the Board as to why he could not attend the hearing that day as directed by the Arbitrator. The Employer noted that in paragraph 7(e) of the Arbitrator’s decision dated May 25, 2023 that it specifically cautioned and notified Mr. Ali that should he fail to provide such reasons then his grievances will be dismissed without further notice to him. Rather, Mr. Ali replied that he would require at least twelve calendar weeks and consultations with his own personal lawyer in order to provide such responses.

17Second, it is the submission of the Employer that it is prejudiced from delays in the process in that the grievances were filed in 2017, address events dating back to at least early 2017, and that the last date on which evidence was given was November 2019, a date some three and a half years earlier.

18Third, the Employer submits also that the case law shows that where the grievance pertains to the loss of employment, the nature of the grievance does not provide immunity against dismissal of a grievance due to a grievor’s non-attendance at a hearing or other bad behaviour before the Board. The Employer further submits that while grievances pertaining to the loss of employment ought not to be dismissed lightly, it is also incumbent on the Grievor to attend and ensure his participation on the scheduled hearing dates.

19Fourth, the Employer notes that the only parties to the arbitration process are the Employer and the Union, and that it is the Union and not the Grievor that is entitled to select and instruct counsel. The Employer submits that in the instant matter the Grievor has demonstrated by his past conduct in various ways that he does not respect the grievance process, will not co-operate with the Union or Union counsel, or comply with future directions or orders of the Arbitrator. Indeed, the Employer notes that at the Hearing held June 1, 2023 the Grievor declined to confirm, either in writing or orally, that he would attend at and participate in all future scheduled hearing dates, co-operate with his Union, and comply with directions or orders of the Arbitrator. In short, submits the Employer, Mr. Ali has declined to commit to the grievance arbitration process and has made clear that he does not want to be represented by the Union, which in fact has carriage of the grievances.

20In support of its submission to have the grievances dismissed, the Employer made reference to the following arbitration authorities: Re OPSEU (Culp) and Liquor Control Board of Ontario, GSB No 2013-1439 (Brown); Re UFCW Local 175 and Metro Ontario Inc. (Gorst), 2023 CanLII 72196 (ON GSB), 2022 Carswell Ont 1848 (Anderson); Re OPSEU (Maharaj) and Liquor Control Board of Ontario, GSB No 2019-2859, July 9, 2021 (Nairn); Re OPSEU (Slaght) and Liquor Control Board of Ontario, GSB No 2018-1240, December 3, 2019 (Dissanayake); Re OPSEU (Patchett) and Liquor Control Board of Ontario, GSB No 2014-2387, April 15, 2016 (Brown); Re OPSEU (Cupskey) and Liquor Control Board of Ontario, GSB No 2013-2633, March 9, 2020 (Parmar).

21It is the position of the Union that Mr. Ali has not ignored the Order to explain his non-attendance at the May 23, 2023 arbitration hearing and has attempted to respond to the directive but seeks more time. In this regard the Union submits Mr. Ali’s response shows he is not abandoning his grievance nor intending to obstruct the process, but rather that he wishes to have more time to reply.

22The Union further submits that dismissing the grievance at this time would remove the opportunity for Mr. Ali to present information to justify his absence and lack of response as to why he could not advise the parties in advance of his non-attendance. As such, the Union seeks dismissal of the Employer’s motion to dismiss Mr. Ali’s grievances, and instead grant Mr. Ali sixty more working days to explain his absence on May 23, 2023 and why he could not notify the parties of this in advance. In addition the Union submits that with thirteen days of hearing already completed, the grievance process should continue in order to have the grievance determined on its merits.

23In support of its submission for the Grievor to have an extension of time the Union made reference to the arbitration case of Re ORNGE and Ontario Public Service Employees Union, Local 505, (Decaria), decision of J. Stout dated October 16, 2015.

24The matter presently before the Board is the motion made by the Employer that the grievances of Mr. Ali should be dismissed on account of his conduct, his demonstrated unwillingness to be represented by and work with Union counsel that has carriage of his grievances, and the prejudice to the Employer from the extensive hearing delays. The submissions of the parties have been carefully considered and I find that the conduct of Mr. Ali has been disdainful and disrespectful to the authority of the Board for the reasons set out below.

25This hearing started in June 2018 and fourteen hearing days were completed by the end of 2019. The parties to this hearing are the signatories to the collective agreement, namely the Union and the Employer, and it is the Union that determines how a grievance is to be advanced. Mr. Ali is not a party to the collective agreement, and nor is he a party, per se, in this hearing. He is represented by the Union. Submissions to the Board come from the parties and not from the Grievor. As noted by Arbitrator R. Brown in Re Culp (supra):

The only parties to the arbitration process are the employer and the union. The grievor is not a party and is represented by the union. The union, not the grievor, is entitled to select and instruct counsel.

As also noted by Arbitrator Anderson in Re Gorst (supra):

There is no dispute that the parties to an arbitration hearing are the union and the employer, not the grievor. There is no dispute that the union has carriage of the grievance, and thus a grievor cannot unilaterally decide whether to withdraw, settle, or abandon their grievance, nor does a grievor have the right to determine how the union conducts the arbitration of the grievance. There is also no dispute that an arbitrator may dismiss a grievance for abuse of process.

Further, as set out by Arbitrator Stout in Re ORNGE, (Decaria), supra:

A grievor is not a “party” per se in the arbitration process. A grievor is represented at all times

by their bargaining agent, the union.

26From the end of 2019, there was a break in the hearing for some three and a half years, during which time both before the Ontario Labour Relations Board and Divisional Court, Mr. Ali challenged the representation he was receiving, and sought to have his own counsel represent him and be paid for by the Union. A hearing delay of this magnitude in conjunction with a hearing addressing events of some six years ago may well be prejudicial to the Employer. A time lapse of this quantum, while not necessarily determinative in and of itself, would be supportive of a dismissal of the grievances.

27The hearing of the grievances before the instant Board, after a three and a half year hiatus, was scheduled to resume on the two hearing days of May 23, 2023 and June 1, 2023. Despite being notified of the hearing and being sent numerous reminders, the Grievor did not show at the hearing on May 23rd. Nor did Mr. Ali inform anyone he would not be present. Absent a genuine reason for not being present, this is disrespectful conduct.

28In a Board decision of May 25, 2023, Mr. Ali was directed to provide an explanation for his non-attendance on May 23rd, and why he could not have provided notification in advance that he would not be in attendance on the 23rd. Mr. Ali was explicitly cautioned in this Decision that failure to do so would result in the dismissal of his grievances. In a one-page document of May 30th, Mr. Ali provided no reasons for his non-attendance and did not address the matter of why he was not able to provide advance notice of his non-attendance. While mindful that these grievances pertain to the matter of his employment and ought not to be dismissed lightly, so too ought the Grievor give this hearing process the attention and participation it warrants. The grievor’s conduct is disdainful.

29As noted above, in his document of May 30th to his Union Representative, Mr. Ali did not provide any reasons for either his non-attendance at the hearing on May 23rd or why he was unable to provide advance notification that he would not be present that day. Rather, he stated he would require sixty working days to provide an answer. To provide such a response to such simple questions put to him is deemed to be a non-answer to the questions he was ordered to address by the Board.

30The Union has submitted that Mr. Ali has not ignored the Order to explain his non-attendance at the May 23rd arbitration hearing and seeks more time for him to provide a response, and in support of its submission makes reference to the arbitration decision of Re ORNGE (Decaria) where the Arbitrator provided the grievor with additional time to respond. In that case the Arbitrator ordered the Grievor to provide additional information to substantiate her refusal or inability to attend a scheduled hearing date. This came about after the Union asserted in its response that the Grievor was unable to attend due to a ‘family emergency’, and where the Employer suspected she did not attend because she was off on scheduled vacation and drop days that she had booked at an earlier date. The Grievor asserted that the family emergency was a private matter and the Arbitrator then provided the Grievor with an extension of time to provide additional evidence or information to substantiate the asserted reason for her absence, failing which the grievance would be dismissed.

31The foregoing is not our case however. Mr. Ali simply did not provide any reason for his absence at the hearing on May 23rd, or why he could not have provided advance notification of his absence. These two very straightforward questions were simply not addressed by the Grievor. The Grievor had been put on notice in paragraph 7(e) of the Decision of May 25th that should he fail to provide particulars as directed by paragraph 7(a) then his grievances will be dismissed without further notice to him.

32Mr. Ali did, however, have adequate time to set out in his May 30th document to the Union certain unsubstantiated assertions and allegations, and stated that he would not participate in the hearing until his own legal counsel had made submissions on his behalf and that this could not be done for at least approximately twelve weeks. This conduct is disrespectful both to the Union that has carriage of his grievances and to the authority of the Board and the hearing that is presently underway. The parties before the Board are the Employer and the Union, and not Mr. Ali.

33I find that Mr. Ali’s conduct and positions taken in his written response of May 30th reflect a continuation, albeit in a different forum, of the stance taken and contentions made earlier before the Ontario Labour Relations Board, including that he be able to appoint his own lawyer to represent him. I find also that the Grievor has, by his multiple applications to the OLRB, his application to Divisional Court, and by his general conduct, made it abundantly clear that he does not wish to be represented by the Union. The Union, however, is a party and signatory to the collective agreement and has carriage of grievances made by its members. The Grievor is not a party to the collective agreement and does not make submissions to this Board.

34Despite all the foregoing events, at the June 1st hearing Mr. Ali was provided with the opportunity to demonstrate and affirm his commitment to the Board’s hearing process and to proceed with having his grievances heard and determined by this Board. Mr. Ali made his position clear. He declined to sign, or otherwise commit to the terms of, a written Memorandum of Agreement that he would agree to attend and participate in future arbitration hearings, co-operate with the Union and Union Counsel, and comply with Directives or Orders of the Arbitrator. He then chose to leave the hearing.

35In Re ORNGE (Decaria), (supra), Arbitrator Stout reviews a number of arbitral authorities on the matter of a grievor’s obligations at arbitration including Re Budget Car Rentals Toronto Ltd. and U.F.C.W., Local 175 (2000), 2000 CanLII 50165 (ON LA), 87 L.A.C. (4th) 154 (Davie). In that decision, Arbitrator Davie states in part:

While a grievor is not a party, they do have obligations that flow from the fact that they are bound by the collective agreement and any decision made by an arbitrator appointed under the collective agreement. A grievor is expected to cooperate and assist the union in presenting the grievance at arbitration.

This obligation includes attending and participating in the arbitration hearing, providing the union with relevant documents and complying with orders or directions made by the arbitrator.

36Mr. Ali has made it clear by his actions and responses that he does not wish to abide by this Arbitration process, be represented by the Union, cooperate with the Union, or comply with directives issued by this Board. As such, and for all the foregoing reasons, the three grievances of Mr. Ali that are before this Board are accordingly dismissed.