GSB# 2021-1295

UNION# 2021-5112-0139

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Meytina)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Labour Practice Group Counsel

HEARING

June 26 & 30, 2023

Decision

Introduction

1The parties have agreed to consolidate the following eight grievances (“the other eight grievances”):

1. OPSEU File No. 2021-5112-0100 dated May 7, 2021

2. OPSEU File No. 2021-5112-0101 dated May 7, 2021

3. OPSEU File No. 2021-5112-0102 dated May 7, 2021

4. OPSEU File No. 2021-5112-0103 dated May 7, 2021

5. OPSEU File No. 2021-5112-0139 dated May 7, 2021

6. OPSEU File No. 2021-5112-0138 dated August 12, 2021

7. OPSEU File No. 2021-5112-0187 dated November 8, 2021

8. OPSEU File No. 2021-5112-0188 dated November 8, 2021

2The Union seeks to have a ninth grievance (OPSEU File No. 2022-5112-0163 dated May 10, 2022) (“the ninth grievance”) added to that list. The Employer opposes the request. Determining whether or not to grant the Union’s request requires consideration of the principles the GSB (the “Board”) applies to consolidation requests.

Principles of Consolidation

Position of the Employer

3The Employer began by noting that Rule 3 of the Board Rules of Procedures sets out when the Board will order the consolidation of cases. Rule 3 states as follows:

Where two or more proceedings are pending before the GSB and it appears to the GSB that,

a. they have a question of law or fact in common;

b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c. for any other reason an order ought to be made under this rule,

the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: at:

d. the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or

e. any of the proceedings be stayed until after the determination of any other of them.

4In determining whether consolidation would be appropriate, the Employer noted that the Board may consider such factors as the efficient use of resources, cost savings, avoiding conflicting finds of fact, the orderly and efficient disposition of resources, and whether either party would be prejudiced by an order consolidating the matters (Ontario Public Service Employees Union (Frater) and Ontario (The Ministry of the Solicitor General), 2021 CanLII 7233 (ON GSB) drawing on the decision of Arbitrator Misra in Ontario Public Service Employees Union (Kennett) and Ontario (The Ministry of Community Safety and Correctional Services), 2014 CanLII 64819 (ON GSB)).

5The Employer also relied on Arbitrator Harris’ decision in Ontario Public Service Employees Union (Samsone) and Ontario (The Ministry of Community Safety and Correctional Services), 2006 CanLII 31467 (ON GSB) where the Arbitrator declined to consolidate two grievances with three other grievances (that the parties had previously agreed to consolidate) because they involved discrete episodes with different individuals. Arbitrator Harris also concluded that consolidating the two grievances with the other grievances would neither save time nor reduce the risk of inconsistent findings.

6Similarly the Employer relied on another decision of Arbitrator Harris in Ontario Public Service Employees Union (Upson) and Ontario (The Ministry of Community Safety and Correctional Services), 2013 CanLII 56967(ON GSB) where the Arbitrator also declined to consolidate all of the grievances because a number of them lacked a question of law or fact in common. Arbitrator Harris did consolidate two of the grievances on the grounds that they emerged from the common facts and raised a possibility of inconsistent findings.

7Finally, the Employer relied on the decision of Arbitrator Williamson in Ontario Public Service Employees Union (Grievor) and Ontario (The Ministry of the Solicitor General), 2021 CanLII 7233 (ON GSB). In that decision Arbitrator Williamson declined to consolidate two grievances because they were “spatially separated in time and not part of a continuum”, they raised separate issues and it was not clear that consolidation would result in an efficient use of the Board’s resources.

8The Employer argued that there was no compelling reason for the ninth grievance to be consolidated with the other eight grievances. According to the Employer the ninth grievance raises a distinct issue, involving distinct individuals. It does not have questions of law or fact in common with the other eight grievances. Nor does the relief sought in the ninth grievance arise out of the same occurrences as the other eight grievances. Because the ninth grievance involves different individuals and different legal issues consolidating the grievances would unnecessarily add to the hearing time and would therefore result in a less efficient proceeding.

Position of the Union

9The Union made the following six arguments in support of its request to consolidate. First, the Union noted that each case has to be decided on its specific facts. The facts of this case, according to the Union support consolidation.

10Second, arbitrators at the GSB have broad powers to consolidate. As a matter of general principle, when determining whether to consolidate grievances, the Board seeks to avoid inefficient consequences such as multiple hearings or inconsistent decisions. The Union cited the decision of Arbitrator Stephens in Ontario Public Service Employees Union (Cartier) and Ontario (Ministry of Health and Long-Term Care); 2006 CanLII 17525 (ON GSB) in support of that proposition.

11Third, arbitrators must decide requests to consolidate in a manner that is consistent with the terms of the Collective Agreement. Here, the Union noted that the Collective Agreement talks about grievances being resolved in an expeditious and informal manner. As such, according to Arbitrator Stephens in Cartier, the Board should “utilize a procedure that avoids inefficient consequences, such as multiple hearings and inconsistent decisions”.

12Fourth, consolidation is a broad term. It can include a number of different ways to group grievances together and hear them. For example, I could order these grievances to be consolidated and heard together, consolidated and heard consecutively, consolidated and heard concurrently, or consolidated and heard as individual grievances maintaining their individual identity.

13Fifth, even if there is no common issue of law and fact, arbitrators have nonetheless determined that it made sense to have particular matters heard before the same arbitrator. In such cases, when matters are “heard together” the grievances can retain their individual identity but are heard by one arbitrator. The Union noted that Arbitrator Leighton ordered grievances to be heard together in Ontario Public Service Employees Union (Pozderka) and Ontario (Ministry of Transportation), 2019 CanLII 97258 (ON GSB). In that case Arbitrator Leighton determined it made sense to have grievances related to the discipline and discharge of the Grievor heard together with a grievance related to denial of benefits while collecting long-term disability insurance. Arbitrator Leighton found that it would not be appropriate to consolidate the grievances but that because all of the grievances included allegations of discrimination and harassment they should be heard together.

14Sixth, where no prejudice is alleged, “practical considerations” should prevail. The Union noted that in Arbitrator Misra relied on this principle in Ontario Public Service Employees Union (Kennett) and Ontario (The Ministry of Community Safety and Correctional Services), 2014 CanLII 64819 (ON GSB) when she ordered grievances consolidated.

Facts

The Grievances

15As set out above, the parties have already agreed to consolidate the eight grievances listed above. The issue is whether the ninth grievance should also be consolidated.

16Beginning with the other eight grievances, they all raise allegations of harassment, bullying, discrimination. The first grievance (among the other eight) (OPSEU File No. 2021-5112-0100) alleges violations of Articles 2, 3, and 9 of the Collective Agreement as well as the Employer’s Code of Conduct and the Occupational Health and Safety Act (OHSA). In very broad strokes, the Grievor alleges that she was harassed by Sergeant Wood for minor workplace infractions, subjected to differential treatment and berated. The allegations in this grievance span the period from December 2020 to March 2021. Again in general, it is fair to say that, with one important exception discussed below, the other eight grievances consist of examples of the Grievor’s claim of being subjected to harassment, bullying, discrimination and differential treatment by one of Sergeant Woods or Sergeant Onabajo (or

17The second grievance (OPSEU File No. 2021-5112-0101) alleges violations of Articles 2, 3, 9, and 30 of the Collective Agreement. It also alleges violations of the Employer’s Respectful Workplace policy and the Workplace Violence Policy. The Grievor alleges that she was denied a Union Representative of her choice by Sergeant Onabajo with respect to a meeting on April 9, 2021. According to the Grievor, Sergeant Onabajo also harassed her and engaged in verbal and physical intimidation.

18The third grievance (OPSEU File No. 2021-5112-0102) also alleges violations of Articles 2, 3, and 9 of the Collective Agreement. Most of the allegations repeat the allegations from the April 9, 2021 meeting. One new allegation is that the Grievor was subjected to a disproportionality severe penalty for having her cell phone in a prohibited area.

19The fourth grievance (OPSEU File No. 2021-5112-0103) also alleges violations of Articles 2, 3, and 9 of the Collective Agreement. Most of the allegations in this grievance also repeat allegations with respect to the conduct of Sergeant Onabajo in the lead up to and during the April 9, 2021 meeting.

20The fifth grievance (OPSEU File No. 2021-5112-0139) alleges violations of Articles 2, 3, 9, and 21 of the Collective Agreement as well as the Employer’s Code of Conduct and OHSA. The Grievor alleges that she has been subjected to discipline by Sergeant Onabajo (in response to Sergeant Wood’s personal animosity towards her) as part of an ongoing pattern of harassment and differential treatment. While this grievance repeats a number of allegations included in the previous grievances, the Grievor also alleges that in July 2021 Sergeant Onabajo sent her an email restricting her from working in a “sub-control area” until such time as he could meet with her and then failing to follow up with the Grievor for months despite the Grievor’s efforts to reach out to Sergeant Onabajo.

21The sixth grievance (OPSEU File No. 2021-5112-0138) alleges violations of Articles 2, 3, and 9 of the Collective Agreement as well as the Employer’s Code of Conduct and OHSA. The Grievor claims she was subjected to “secondary abuse” from Sergeant Buckley “flowing from targeting and harassment” by Sergeant Onabajo.

22The seventh grievance (OPSEU File No. 2021-5112-0187) alleges violations of Articles 2, 3, 9 and 30 of the Collective Agreement. Many of the allegations in this grievance repeat allegations from the earlier grievances (including allegations of denying the Grievor the Union representative of her choice). The Grievor further alleges in this grievance that Sergeant Onabajo delayed scheduling a meeting with respect to an incident in July until the end of October 2021.

23The eight grievance (OPSEU File No. 2021-5112-0188) alleges violations of Articles 2, 3, 9 and 30 of the Collective Agreement. In this grievance, the Grievor also alleges that she has been subjected to repeated harassment by Sergeant Woods and Sergeant Onabajo. Here too many of the allegations in this grievance repeat allegations from the earlier grievances.

24The ninth grievance (OPSEU File No. 2022-5112-0163) is where the parties disagree. The ninth grievance alleges violations of Articles 2, 3, 9, and 30 of the Collective Agreement as well as the Labour Relations Act, OHSA, the Human Rights’ Code and the Employer’s Code of Conduct. In this Grievance, the Grievor alleges that on May 5, 2022, she was approached by Deputy Superintendent Jonathan Shao and was told that she was required to attend a mandatory meeting with Deputy Superintendent Anisa Capener. The Grievor states she was only given fifteen minutes notice of the meeting. According to the Grievor, this constituted bullying, harassment and a violation of her right to Union representation. The Grievor also claims that the failure to give her proper notification of the meeting may have been deliberate and part of a broader pattern of behaviour targeting and harassment. The Grievance indicates that the purpose of the meeting was to discuss the Grievor’s use of Compensating Time Off (CTO) for self-accommodation for childcare purposes.

Position of the Employer

25The Employer argued that the ninth grievance does not have questions of fact or law in common with the other eight grievances. Nor does the relief sought in the ninth grievance arise out of the same incidents as the other grievances. Accordingly, there is no compelling reason to have these matters consolidated.

26The Employer noted that the ninth grievance raises issues with respect to the use of CTO. That issue does not arise in any of the other eight grievances. The Employer argued that the bulk of the inefficiencies would lie in the amount of time and resources the Board would have to expend to hear this issue when it is completely distinct from the factual circumstances of the other eight grievances.

27In addition, while the other eight grievances make allegations against Sergeant Onabajo, Sergeant Wood, and Sergeant Buckley, the ninth grievance raises allegations against Deputy Superintendents Shoa and Capener. The Employer notes that the ninth grievance is temporally distinct from the other eight grievances. The ninth grievance raises allegations concerning events that occurred in May 2022, six months after the last allegation in the other eight grievances.

28While the particulars provided by the Union with respect to the ninth grievance repeat many of the allegations found in the other eight grievances, the Employer argued that simply repeating previous allegations does not justify consolidating the grievances. Nor, according to the Employer, is raising a general claim that the allegations contained in the ninth grievance fall within a general pattern of harassment (related to alleged conduct in the other eight grievances) a sufficient basis to conclude that these matters should be consolidated.

29The Employer submits that in light of the different legal issues raises, and the different individuals involved, consolidating the ninth grievance with the other eight grievances would result in more hearing time, having to call additional witnesses, and having to address entirely different legal questions. As such, the Employer submits that the ninth grievance should not be consolidated with the other eight grievances.

Position of the Union

30Requests for consolidation must be determined on the specific facts at issue. The Union noted that this Grievor already has other grievances before another arbitrator. Those grievances have been consolidated with grievances filed by other grievors because they all raise a similar issue. It would not make sense for the ninth grievance to be consolidated with those other grievances. That being said, declining to consolidate the ninth grievance with the other eight grievances (or to have the ninth grievance heard together with the other eight grievances) would, practically speaking result in a third parallel proceeding involving the ninth grievance. The Union argued that, it would be inefficient, from a cost perspective and from an internal use of the Board’s resources perspective to assign three arbitrators to hear three sets of grievances filed by the Grievor (with the ninth grievance being heard alone in this scenario).

31The Union also argued that, on its face this grievance does have legal and factual issues in common with the other eight grievances. In particular, the Grievor alleges that the events of May 5th form part of a pattern of bullying, harassment, discrimination, and denying her meaningful union representation. The ninth grievance alleges violations of Articles 2, 3, 9, 30. Allegations with respect those articles can be found in the other eight grievances. Not hearing these matters together could therefore result in the possibility of inconsistent decisions. That is a result that the Board should strive to avoid.

32The Union argued that the Employer’s argument that consolidating the ninth grievance with the other eight grievances would involve different managers and therefore additional witnesses, was a red herring. Additional witnesses are not a factor against consolidation. That is particularly the case here where the alternative is a third proceeding involving this Grievor.

Decision

33Given the facts of this case, there is sufficient factual and legal overlap between the ninth grievance and the other eight grievances to justify some form of consolidation. All nine of the grievances raise allegations that the Employer engaged in a pattern of bullying, harassment and discrimination against the Grievor. In at least three of those grievances (including the ninth grievance) the Grievor also alleges that she has been denied effective union representation as part of this pattern of conduct by the Employer (and in violation of the Collective Agreement).

34The bulk of the allegations focus on Sergeant Onabajo and Sergeant Woods. That being said there are also allegations against Sergeant Buckley and Deputy Superintendents Shao and Capener. That the allegations against Deputy Superintendents Shao and Capener only arise in the ninth grievance does not, in my view, justify keeping the ninth grievance separate. Moreover, in this context, where the allegations speak to a pattern of conduct on the part of the Employer it is not necessarily surprising that there would be allegations against a number of individuals.

35Nor does the timing of the ninth grievance justify denying the request for consolidation. Again we are dealing with allegations of a pattern of conduct on the part of Employer. In a case such as this, it is not surprising that the allegations may span a broader period of time. Obviously there may be cases where the period of time is so long as to justify a conclusion that consolidation is not appropriate but that is not this case.

36The real issue before me in this case is therefore less about whether consolidation is appropriate in these circumstances and more about what form that consolidation should take. The crux of that issue ultimately falls on the significance of the Grievor raising the issue her use of CTO in the ninth grievance. In short, is that issue sufficiently distinct to justify a less complete form of consolidation (having that matter heard together with the other eight grievances while retaining its individual identity, for example), or can the grievances be consolidated, in its more fulsome sense, notwithstanding that the Grievor’s use of CTO only appears in the ninth grievance.

37The Grievor’s use of CTO (and the Employer’s reaction to that use) is clearly distinct from the other allegations raised by the Grievor. That being said, the bulk of the allegation surrounding the use of CTO fits into the allegations surrounding the bullying, harassment, discrimination of the Grievor and the denial of proper union representation to the Grievor. Accordingly, I am satisfied that the ninth grievance has sufficient factual and legal issues in common with the other eight grievances to justify consolidation in the same manner that the other eight grievances have been consolidated.