GSB#2022-9508

UNION#2022-0338-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ferguson et al)

Union

• and -

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

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

James Sommerville Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATES

July 11, 2023, May 7 and 13, 2024

Decision

1The Employer brought a motion arguing that the Union’s particulars did not set out a prima facie case that the collective agreement had been breached. The Employer brought the motion with respect to a group Grievance of three Grievors.

2The facts, as particularized, can be summarized as follows. The three Grievors are staff of the Ministry of the Attorney General at the Barrie courthouse. They attended a going-away party for another employee, which was organized by employees. The event was held at a bar outside of work hours on June 11, 2022. The particulars describe an interaction between Ms. Bailey, one of the grievors, and an off-duty police officer who attended the party. This officer was regularly assigned to work at the Barrie courthouse, though not an employee of the Ministry. During this interaction on June 11, the officer called Ms. Bailey a vulgar name and Ms. Bailey responded loudly, calling the officer a dog.

3The following week, the Employer was advised, though it is not clear by whom, that Ms. Bailey in fact struck the officer the night of June 11, 2022. On or about June 15, 2022, the Employer held a fact-finding meeting with each of the three Grievors and other members of staff who attended the event. The Employer advised the Grievors that they considered the going-away event to be a workplace event pursuant to the OPS Respectful Workplace Policy.

4A manager went to the bar on June 15, 2022 and viewed the surveillance video of the interaction on June 11. The Union alleges that she took a video of the surveillance video using her phone.

5On or around June 17, 2022, Ms. Bailey saw the Officer at work. The Union asserts that he apologized to her for the events of June 11. In a later encounter the Officer advised Ms. Bailey that he had written a letter to the Manager in which he took responsibility for the events of June 11, that Ms. Bailey had done nothing wrong, and that he had apologized to Ms. Bailey.

6Between August 19, 2022 and September 20, 2022, the three Grievors were required to attend a second fact finding meeting. Each was questioned regarding the accuracy of their earlier statements. One of the three Grievors was advised that if it were determined that she had lied about the events of June 11, she could be disciplined up to and including dismissal.

7The Grievance reads as follows:

We grieve specifically but not exclusively that the employer has violated Articles 2, 3, and 9 of the Collective Agreement, the Respectful Workplace Policy, the Guide to Public Service Ethics and Conduct, the PSOA and OHSA, by using threats, intimidation, coercion, bullying tactics, violation of Privacy and harassment against the Grievors.

8The Union essentially argued that by viewing a video of the Grievors attending an event outside of work, the Employer violated their privacy rights. Further, the Union alleges that by pursuing the investigation after the Officer advised that he was not struck, the Employer harassed the Grievors.

9After hearing submissions from the parties, two decisions came to my attention on the question of the Grievors’ right to privacy that had not been addressed by counsel at the hearing. The first, Metrolinx v Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, dated February 14, 2024. I asked that they provide brief supplementary submissions on the case.

10Shortly after receiving their submissions on the first decision, the Supreme Court of Canada released its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (hereinafter “York Region”). Again, I flagged the case for the parties and convened a conference call. After hearing from the parties regarding how best to address this decision, I concluded that the Grievance cannot be dismissed as having no prima facie case, and is best dealt with on its merits.

11To find that the Union has not made out a prima facie case I must accept that the facts asserted in support of the Grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate a violation of the collective agreement. See OPSEU (Solomon Smith et al) and Ministry of Children, Community and Social Services, GSB#2017-0054, (Anderson).

12I cannot find that the facts alleged are incapable of violating the collective agreement, particularly in light of the Charter issue without the benefit of evidence and more extensive submissions from the parties.

13In York Region Rowe J., writing for the majority, wrote:

Public school teachers are protected from unreasonable search and seizure in their place of employment under s. 8 of the Charter. Despite their apparent functional resemblance, a right to a reasonable expectation of privacy that is entrenched in the Constitution is distinct in source and nature from an arbitral right to privacy. For one, state actors cannot disavow their constitutional obligations no matter the terms of the collective agreement. At its core, the arbitrator’s reasons disclosed a fundamental error because she had the wrong right in mind. The arbitrator ought to have applied the Charter, but failed to do so. Once she failed to appreciate the constitutional dimension of the searches conducted by the principal, there was no intelligible way for her to continue the analysis while fully engaging with the gravity of the alleged violations of the Charter right at issue. Courts cannot dilute the sacrosanct nature of Charter rights by accepting a different substitute. Nor can courts supplant the reasons proffered by the decision-maker and read the reasons as if it applied a Charter right when in fact it applied a different right (Vavilov, at para. 96).

14It is clear from this passage that the Court expects that arbitrators explicitly engage in a Charter analysis where the case raises a possible constitutional question. This is required in addition to considering the privacy right that may flow from the collective agreement. It would be premature to conclude that the facts as alleged are not capable of amounting to a violation of the Grievor’s right to privacy without a fulsome analysis of the facts and law. I have determined that a full hearing on the merits is the most appropriate manner of proceeding.

15The Employer’s motion is dismissed. The matter shall be scheduled by the Grievance Settlement Board for a hearing on the merits.