GSB# 2021-0282; 2021-0918; 2021-2159; 2021-2896

UNION# 2021-0135-0011; 2021-0135-0019;

2021-0135-0037; 2021-0135-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ebere)

Union

• and -

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

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Catherine Fan Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 24, February 6, 2024

Decision

1This is a preliminary decision dealing with a request for production brought by the Union and two preliminary motions brought by the Employer, the first regarding the scope of the grievances and the second regarding the arbitrability of one allegation. In a prior preliminary award, Ontario Public Service Employees Union (Ebere) v Ontario (Solicitor General), 2024 CanLII 8293 (ON GSB) (“the first preliminary award”), I addressed the scope of the evidence that should be admitted with respect to a previously settled grievance, the settlement of which contained a provision allowing the Grievor to speak to the facts of the settled grievance (“the settled grievance”) should OPSEU advance the outstanding grievances to arbitration. This Decision relates to the four remaining grievances (“active grievance”) of which I am seized.

2In the course of the parties’ submissions on the issue of production, it became evident that the Employer’s argument required a decision be made on the scope of the Grievances. The Employer took the position that documents relating to allegations outside the proper scope of the grievances should not be produced. The parties therefore made submissions on the issue of scope. This decision with respect to scope concerns whether the Grievor should be limited to raising the specific incidents set out in the grievance forms, or whether incidents which took place in between might form part of a course of harassing conduct that is broader than the allegations specifically grieved.

3Additionally, the Employer brings a motion that one of two incidents addressed in Grievance 2021-0135-0019, dated June 30, 2021, (hereinafter referred to as “Grievance 2” or “the second Grievance”), is inarbitrable because it relates to incidents involving the Grievor’s coworker.

Review of the Grievances

4It is helpful to start with a review of the language of both the settled grievance at issue in the First preliminary award and the four active grievances before me, as the language of the settled grievance informs my determination of the proper scope of the remaining four. I have set them out in the order in which they were filed. The settled grievance was filed November 17, 2020. The grievance states:

I grieve specifically, but not exclusively, that the Employer has violated the Collective Agreement my privacy rights, the Ontario Human Rights Code, COCAP and any other related articles when disclosing my personal information in relat[ion] to my religious beliefs and values when referring to me as “the bearded guy” in a direct supervision unit, also receiving harassing telephone calls. As well as the ongoing harassing comments made by numerous members of management.

5By way of remedy the Union requested “Formal sanction of the employer, and mandatory human right[s] training for every member of the management team that was part of the “directing mind” for this offence. Reimbursement for all lost hours, pay and seniority that was lost due to this incident. Full redress. Cease and desist practice.”

6This grievance was settled on March 22, 2022. The settlement contains the following key provision, which was the subject of the First preliminary award.

4. The Parties agree that should any of the Grievor’s outstanding grievances be forwarded to arbitration by OPSEU, the Grievor may speak to this Grievance in any subsequent arbitration for the purposes of providing background only. However, the material facts of this instant grievance are settled and shall not be relied upon for the purposes of seeking any further remedies in any subsequent arbitration. For clarity, the Grievor and the Union agree that no remedies will flow from any of the Union’s particulars dated March 21, 2022 and any other matters arising out of this grievance, or the settlement thereof.

7The four active Grievances reproduced below were filed prior to the date of the settlement.

8Grievance 2021-0135-0011, dated April 22, 2021, (hereinafter “the first Grievance” or “Grievance 1”) reads as follows:

I grieve specifically, but not exclusively, that the Employer has violated article COR 8 (Overtime), Article 2 (Management rights), and 9 (Health and Safety) Provincial Overtime Protocol, and/or other relevant articles, policies, legislation.

I was directed in an email from a Sgt “Going forward and for as long as you have this accommodation, please do not accept shifts which you know involve working in Central Control.”

9The remedy requested states “Full redress. Any other remedy the arbitration panels feels is appropriate and just.”

10The second Grievance, 2021-0135-0019, dated June 30, 2021, is written as follows:

I grieve that management has violated article 2, article 3, article 9 and COR 10.

• On February 23/2021 approximately 2025 hours Staff Seargeant was watching me on institutional camera system, sending in Sergeant to unit questioning “if I had unlocked cells[.] [W]hen I said yes cell 15 and an inmate came out of the shower stall, The Seargent stated “why is (naming the staff sergeant) getting me involved in this shit as he left the area.

• June 26/ 2021 – Same Staff Sergeant while an officer was refusing a hospital duty due to expired body armour days “Your buddy pulled this a few months ago and caused a bunch of drama here” while I was standing in the hallway. After officer left Staff Sergeant slammed the door in angry manner.

11It is the second allegation set out in the second grievance that the Employer argues is inarbitrable for lack of standing.

12The remedy requested is:

Full redress Stop ongoing harassment and ongoing bullying in workplace, leading to a poisoned work environment.

Any other remedy the arbitration panel feels is appropriate and just.

13The third Grievance, 2021-0135-0037, dated November 17, 2021, (hereinafter “the third Grievance” or “Grievance 3”) reads:

I grieve that on November 17, 2021, I showed up for my accommodated shift as per my WSIB agreement and for the second time I was not in my accommodated post. I called my General Duties Manager […] and told me to find my own post. Once I was ready for work I was paged by [the General Duties manager] and told to go find an officer and tell them I would tell them I was working the spot they were working which made me feel uncomfortable.

Based on my past ongoing harassment, targeting and bullying grievances I wish to grieve this and be made whole.

14The remedy requested is that the Grievor be made whole in every aspect of his job.

15The fourth and final grievance (hereinafter “the fourth grievance” or “grievance four”), 2021-0135-0042, dated November 25, 2021, reads as follows:

I grieve that management has violation of article 2, 3, 9, 21 and 22 of the colletive agreement, Health and Safety, WDHP policy and any other policies or applicable articles when management refused to meet on November 24, 2021, for my stage 2 grievance meeting. by the Employer refusing to meet with the Grievor for a Stage 2 grievance meeting.

16The requested remedy for the fourth grievance is to “Stop ongoing harassment and ongoing bullying in the workplace, leading to a poisoned work environment. Full redress. Any other remedy the arbitration panel feels is appropriate and just.”

Preliminary Motion – Scope of Grievances

17The Union provided the Employer with thirty-one pages of particulars in support of the four active Grievances. These particulars, which I will reproduce only as needed, address the settled grievance, the four active Grievances and a number of other incidents which took place in between, all of which the Union argues form part of a course of vexatious and unwelcome conduct directed at the Grievor by management. The Employer’s motion with respect to scope seeks to limit the evidence which will be heard to that which narrowly addresses the specific incidents in the four active Grievances. The Union invites me to construe the grievances liberally and allow evidence on all of the incidents set out in the particulars in order that they may advance their position that the Grievor was subjected to harassment by his Employer from December of 2020 until he left the workplace in November of 2021.

18The Employer asks that I strike paragraphs 3, 4, 9-50, 52-56, 62-63, 70-73, the last sentence of 74, 76-89, and 94-100. Additionally, it asks that paragraphs 5-8, 51, 90-93, 101-110, 129-133 be allowed for background only.

19Before I review the relevant paragraphs of the particulars in detail, it is useful to review the relevant case law which guides my analysis regarding the proper scope of the grievances before me.

Case Law

20The Employer relied on the following cases in support of their argument that I strike any paragraphs referencing facts not cited in the grievances: OPSEU (Gray et al) v. Ontario (Ministry of Transportation), 2021 CanLII 95692 (ON GSB), 2021CanLII 95692 (ON GSB) (Gee) (“Gray”); OPSEU (Boudarga) v. Ontario (Ministry of Government and Consumer Services), 2019 CanLII 109986 (ON GSB) (McLean); OPSEU (Rafol) v. Ontario (Ministry of Children and Youth Services), 2013 CanLII 18489 (ON GSB) (Dissanayake); Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA) (“Blouin Drywall”); OPSEU (Louis) v. Ontario (Ministry of Training, Colleges and Universities), 2019 CanLII 78767 (ON GSB) (Gee); OPSEU (May et al) v. Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2001-1151 (Abramsky); OPSEU (Pitirri) and Ontario (Ministry of Correctional Services), GSB No. 1992-1685 (Kaplan); OPSEU (Brown) v. Ontario (Labour), 2012 CanLII 17224 (ON GSB) (Dissanayake); OPSEU (O’Flaherty) and Ontario (Ministry of Community Safety and Correctional Services), 2018 CarswellOnt 18001, 138 C.L.A.S. 24 (Luborsky).

21The Employer argued broadly that the incidents set out in the four active grievances are discrete in nature and stand apart from the allegations of discrimination and harassment in the settled grievance, and from the allegations included in the particulars but not referenced in the grievances. It relies specifically on the decision in Gray, above, in support of its position that particulars cannot be used to expand the scope of the Grievance, and for its concise review of the key cases on the issue, including Blouin Drywall, supra, Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Ont. Arb.) (Dissanayake) (“Greater Sudbury Hydro”), and OPSEU (Labanowicz) v Ontario (Ministry of Transportation), 2014 CanLII 64825 (ON GSB) (Lynk) (“Labanowicz”).

22For their part, the Union urged me to liberally construe the four active grievances on the basis that they allege harassment and discrimination. The Union points to the line of cases which suggests that where there are allegations of harassment, the Grievor may call evidence predating the filing of the grievance by up to three years to establish a course of conduct. The Union points to the decision in OPSEU (Cross et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 60421 (ON GSB) (“Cross”), among others. It submits that unwelcome incidents that may have seemed somewhat anodyne at the time can take on a vexatious nature with the clarity of hindsight, and that I should consider all of the incidents set out in the particulars to determine whether they form part of a course of vexatious conduct.

23The Union further submits that I am bound by Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, and directs me specifically to the passage in which the Supreme Court cites a passage from Blouin Drywall with approval:

That said, it is important to acknowledge the general consensus among arbitrators that, to the greatest extent possible, a grievance should not be won or lost on the technicality of form, but on its merits. In Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (C.A.), at p. 108, for example, Brooke J.A. wrote as follows:

Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights or duties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position he would have been in had the agreement been performed.

24Additionally, the Union relied on the following cases: Labanowicz, supra; Fanshawe College v OPSEU (2002), 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328 (Ont. Arb.) (Burkett); OPSEU (Finn) v Ontario (Agriculture, Food and Rural Affairs), 2019 CanLII 35308 (ON GSB); Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2010 CanLII 28607 (ON GSB); OPSEU (Brown) v Ontario (Labour), 2012 CanLII 17224 (ON GSB); OPSEU (Boudarga) v Ontario (Government and Consumer Services), 2019 CanLII 109986 (ON GSB); Greater Sudbury Hydro, supra; York Region District School Board v District 16 OSSTF, 2005 CanLII 42477 (ON LA); and OPSEU (Halfyard) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 28607 (ON GSB) (Gray).

25I note that both parties directed me to this Board’s decision in Lebanowicz which sets out the test for determining whether the particulars which do not arise directly from the wording of a grievance should be heard:

21The accepted test when determining if a claim raised subsequent to the filing of the grievance can be adjudicated as part of the live grievance goes to whether it can be reasonably construed to be an inherent part of the grievance, or whether it is a truly different and distinct claim: OPSEU (Jones et al) and Ministry of Labour, supra. The test is objective.

22When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer.

Analysis

26Before turning to the particulars and whether specific paragraphs of the particulars fall within the scope of the Grievances, I will make some general comments in light of the cases put to me by the parties. To begin, I accept the Union’s premise that the four Grievances raise concerns about harassment and discrimination.

27The first Grievance implicitly raises a concern about discrimination. It impugns an email in which the Grievor is advised that he should not accept certain shifts as long as his accommodation is in place. As noted at paragraph 14 of Greater Sudbury Hydro, the issue of discrimination, “although not articulated well, is inherent within [the grievance language]”. The email referenced in the grievance language directs the Grievor not to accept certain shifts for the period of time for which he is being accommodated, an accommodation which is understood to be in place pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19.

28Grievances 2, 3, and 4 explicitly reference ongoing bullying and harassment. I find that it is not an expansion of the scope to consider whether the allegations raised by the four active grievances relate to Code-based harassment arising from the Grievor’s accommodations on the basis of disability and creed. To read the grievances as narrowly as the Employer suggests, would fail to give effect to the principles in Parry Sound and Blouin Drywall.

29Further, the Union may argue that the allegations arising from the four grievances together constitute a course of conduct that meets the definition of harassment.

30However, the Employer rightly notes that the four Grievances are drafted narrowly to address specific incidents. In applying the first factor from Lebanowicz, a review of the language of the grievance, I find that a narrowly drafted grievance, by its nature, invites a narrowly tailored construction of the events intended to be captured. Where discrete incidents form the basis of the Grievance, it is difficult to conclude that other incidents are an inherent part of it.

31The second factor of Labanowicz, a review of the collective agreement, does not suggest a narrow or liberal construction of the Grievances.

32The third factor of Labanowicz, a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the Grievance, such as the scope of the discussions and exchanges during the grievance process, does shed light on the scope of the four grievances. While both parties acknowledged that stage meetings were not held to discuss these Grievances, the minutes of settlement and grievance language of the settled grievance do shed light on the parties’ understanding of the issues raised by the four active Grievances. The broadly drafted language of the settled grievance stands in stark contrast to the narrow language of the four active grievances.

33It is clear from the language of the settled grievance that the Union intended to raise incidents beyond those specifically referenced in the grievance language. The settled grievance specifically references “ongoing harassing comments” in addition to the specific allegations. By settling the broadly drafted grievance, the Union is left with the language of the four active grievances. It is clear that the Union could and did draft grievance language intended to capture unspecified incidents as it did in the settled grievance but chose not to when drafting the four remaining grievances. This factor weighs heavily in favour of a narrow reading of the four active grievances.

34The fourth factor of Labanowicz is the nature of the remedy sought. I note that grievances 2 and 4 ask that the ongoing harassment and bullying be stopped. This factor weighs in favour of the Union’s position that the four active grievances are part of a course of conduct that could constitute harassment, as does the mention of harassment and bullying in the third grievance. However, it is not at all clear from the wording of the requested remedy that the Union intended to include additional allegations in the scope of the grievances. The Employer could not reasonably have anticipated that there were additional allegations outside of those listed specifically in the four Grievances. This is particularly the case when the language of the active grievances is compared to the language of the settled grievance. Therefore this factor weighs only slightly in favour of the Union.

35The fifth factor from Labanowicz is the timeframe. The events arising from the active grievances take place between December 2020 and November 2021, during which time the Grievor was absent from the workplace for approximately three months. The time between the grievances is long enough that it would have been reasonable to expect that the Grievor would have raised other incidents as they arose. However, it is also short enough that it is reasonable to assume that events occurred within a same pattern of conduct. I find this factor is neutral and does not weight in favour of either party.

36Finally, I do find a degree of prejudice to the Employer in allowing additional allegations to be brought forward. The Employer resolved the settled grievance with full knowledge of the four active grievances. When the parties negotiated paragraph 4 of the settlement, the Employer would reasonably have assumed that they were settling the broad claims referenced in the settled grievance. I therefore find that there would be prejudice to the Employer if they had to litigate allegations outside of what they could reasonably have understood to be outstanding in the four grievances.

37That said, I do not accept the Employer’s argument that the four grievances are completely distinct from one another and that the Union cannot argue that they form a course of conduct. I accept that by filing the four active grievances the Union intended to raise additional examples of harassing conduct that occurred following the filing of the now settled grievance. However, if the Union wished to raise incidents of harassment not referenced in the four active grievances, it was incumbent on it to ensure they were drafted so as to indicate that additional incidents formed part of the factual underpinning.

Allegations in WDHP Complaint out of Scope

38Before addressing the specifics of the particulars, I turn finally to the Employer’s argument that any allegations raised in the course of a Workplace Discrimination and Harassment Prevention (“WDHP”) complaint must be struck as being out of scope. The Grievor filed a WDHP complaint regarding the allegations of the settled grievance in October of 2019. As is often the case, additional allegations were raised during the course of the investigation which relate to the active grievances, specifically the second Grievance. The Employer argues that because the Union challenged the sufficiency of the investigation in the settled grievance, that any allegation raised with the investigator was settled by the settled grievance.

39I note that I decided in the first preliminary award that facts raised in the investigation that related to specific incidents of the active grievances were not settled. I decline to revisit the findings in the first award. Nonetheless, for clarity, I add the following. The Employer appears to be raising an argument akin to issue estoppel or res judicata with respect to all issues or facts raised during the investigation. While I accept that the allegations contained in the particulars of the settled grievance may not be relitigated, the fact that they were raised in the investigation does not create a bar to the Union raising them now. At the time it entered into the settlement, the Employer understood that the issues raised by the four active grievances remained live and could be pursued. The parties chose to settle only one grievance, with the knowledge that four Grievances remained active. So long as the allegations arise from the four active Grievances, the Union may raise them, regardless of whether they were raised in the course of the investigation.

40Having broadly reviewed the principles which guide the reasoning of my findings with respect to scope, I now turn to the specific paragraphs of the particulars which the Employer challenges with this motion.

Paragraphs 3, 4 and 9-49

41The Employer asks that I strike paragraphs 3, 4 and 9 through 49. I will address these simply. The allegations in these paragraphs, as well as paragraphs 5 through 8, were addressed in the first preliminary award. These particulars were determined to be allowed to be relied on for background purposes. I decline to revisit the first award.

Paragraphs 50-56

42The Employer requests that paragraphs 50 to 56 of the particulars be struck as they raise facts not arising from any of the four active grievances. The Employer submits that paragraph 51 should be allowed for background purposes only.

50. After Mr. Ebere returned to work, Mr. Ebere’s relationship with management in the SWDC continued to deteriorate.

51. Mr. Ebere returned to work on December 1, 2020 and worked until July 15, 2021.

52. After he returned to work, Mr. Ebere observed that managers began slamming their doors as he walked by their offices.

53. Mr. Ebere also observed that several managers […] would only speak to him through others.

54. Mr. Ebere began feeling ostracized in his own workplace, feelings that were compounded after members of management went out of their way to monitor Mr. Ebere’s activities, interfere with his accommodations, and target him and those around him in a number of incidents detailed below.

55. As a result, Mr. Ebere went on a further WSIB leave from July 15, 2021 to November 14, 2021.

56. From November 15-17, 2021, Mr. Ebere attempted to return to work but was ultimately unable to do so after management frustrated the return-to-work process.

43I agree with the Employer that paragraphs 50, 52, and 53 should be struck as they raise allegations not contained in the four active grievances. Paragraphs 51, 54 and 55 may remain as they simply set out a timeline relating to the Grievor’s leave or refer to incidents which are properly within scope. Paragraph 56 can remain insofar as it establishes a timeline. However, the cause of the failed return to work is not raised in the grievances, and as such the last part of the sentence “after management frustrated the return-to-work process” should be struck.

44I turn now to the Employer’s broader argument that certain portions of the particulars be allowed for background purposes only, which it makes with respect to paragraph 51 and others. It is commonplace in grievance arbitration that parties rely on contextual facts as they set out the narrative supporting their theory of the case. The Union is entitled to do so in this matter. These facts are typically not central to the decision. However, their possibly peripheral relevance does not preclude them from being put forward.

45The Employer did not point to, nor am I aware, of any precedent for limiting the purpose of evidence in this manner. While there was an agreement in the settlement to do so, it covered only the allegations arising from the settled grievance. I decline to expand the terms of the settlement beyond the facts arising from the settled grievance and thereby create a novel basis for limiting evidence.

46The allegations are either outside the scope of the grievances, or they are not. Having reviewed the paragraphs 51, 90, 93, 101 to 103 and 129 to 133, all of which the Employer argued should be allowed for background purposes only, I do not find them to be beyond the scope of the active grievances. The Employer also requested that paragraphs 104 to 110 be allowed for background purposes only. I will review these paragraphs separately, as certain aspects of them are outside the scope of the Grievances.

Paragraphs 62 and 63

47The Employer argues that the following paragraphs should be struck:

62. On three occasions, Mr. Ebere determined that he had been moved to an unaccommodated post. On each occasion, [the Staff Sergeant] was the staff sergeant on shift. No such incidents occurred when other staff sergeants were on schedule.

63. The Ministry would later advise the workplace investigators in Mr. Ebere’s WDHP complaint that there was no audit trail available, and that it was not possible to determine how Mr. Ebere’s shift schedule was modified. The investigators concluded that there was no evidence that [the Staff Sergeant] purposefully altered Mr. Ebere’s post to place him in an unaccommodated position and attributed any move to an honest error in managing a challenging and changing December schedule. However, Mr. Ebere never experienced any further incidents in December after he spoke to [the Deputy Superintendent] on or about December 17, 2020, who then circulated a reminder that management was obliged to ensure employees with restrictions were placed in accommodated posts.

48I agree that these paragraphs should be struck. The events in these paragraphs took place in December of 2020, and appear to be entirely distinct from the allegations in Grievance 3 that he was placed in an unaccommodated post on November 17, 2021.

Paragraphs 70 to 74

49Paragraphs 70 to 74 of the particulars read as follows:

70. Mr. Ebere took [the Staff Services Manager]’s email as a clear indication that he was being singled out for increased scrutiny.

71. Before Mr. Ebere filed a grievance against management, he had previously worked in the Central Control module while he had a beard with no incident. Formally, his accommodations prohibited him from working in the Central Control module while he had facial hair. However, management had previously assigned Mr. Ebere (and other correctional officers with beards) to work in the Central Control module. Mr. Ebere understood from management that the fact that he had a beard posed no issue provided the other officer he was working with in the Central Control module was clean-shaven.

72. After December 21, 2020, Mr. Ebere continued to observe other correctional officers with beards working in the Central Control module, including [four other correctional officers]. To Mr. Ebere’s knowledge, none of those employees have ever been prohibited from working in the Central Control module.

73. The effect of [the Staff Services Manager]’s email was to effectively deny Mr. Ebere the opportunity to work overtime on the basis of both his creed and his disability. At a minimum, it was incumbent on [the Staff Services Manager] to allow Mr. Ebere to continue to bid into those shifts and transfer him to an accommodated post that was within his restrictions. Instead, Mr. Ebere was forced to drop all of the Central Control module shifts he signed up for and did not fully replace them as he could not always be confident which overtime shifts would meet his restrictions.

74. Although Mr. Ebere’s restrictions formally lifted by January 2021, it continued to be challenging for him to work directly with inmates and he felt he needed to work in the control modules as a form of self-accommodation. On the whole, Mr. Ebere worked fewer and fewer overtime shifts as his mental health and relationship with management deteriorated.

50The Employer asks that paragraphs 70-74 be struck for three reasons. First, the Employer submits that the allegations relating to the first Grievance attempt to relate management’s actions to a broader pattern of harassment and reprisal. For the reasons set out above, insofar as the conduct in Grievance 1 might form a pattern of conduct with the four active grievances, I find that the Union is entitled to advance this position, and I decline to strike the paragraphs.

51Second, the Employer asserts that the allegations must be struck because they were raised in the WDHP investigation. Again, I find that this argument cannot be accepted, for the reasons set out above.

52The third reason for the request relates to the reference to other employees who were, according to the Grievor, permitted to work in the Central Control Module as set out at paragraph 72. The Employer submits that this is a “me too” allegation, and that whether other employees were allowed to work in the Central Control Module is not the applicable test. I disagree. Where there is an allegation of discrimination, as I found there is in this grievance, it is typical and appropriate for the Union to establish differential treatment by calling evidence of the treatment of similarly situated individuals. The Employer suggested in its submissions that the circumstances of the individuals named are in fact different from those of the Grievor. The Employer may well have such a defence available to it, but that is not a sufficient basis upon which strike the allegation as being outside the scope of the grievance.

53Finally, the Employer asked that the second sentence of 74 be struck. I agree that it should be struck. The Union may not expand the scope of the issues before me to include a broader allegation that the Grievor lost overtime shifts beyond the period for which the accommodation was in place, as set out in the first Grievance.

Surveillance Allegations

54The Employer submits that paragraphs 76 to 88 of the particulars, dealing with the allegations of surveillance, should be struck because they were raised in the course of the WDHP investigation. It is not necessary to reproduce the paragraphs at issue. For the reasons above, I decline to strike them on that basis.

55However, paragraphs 84 to 88 of the particulars raise a second incident of surveillance, dated May 15, 2021, which was not specified in the any of the active grievances. I have determined that the Union may only call evidence with respect to circumstances specifically raised in the active grievances. Grievance 2 raises an allegation of surveillance of the Grievor by management, but specifically references an incident on February 23, 2021. The allegation pertaining to May 15, 2021, is therefore outside the scope of Grievance 2 and paragraphs 84 to 88 are to be struck.

Paragraphs 89 to 110

56Paragraphs 89 to 110 address a period during which the Grievor sought additional medical supports and requested additional accommodations. The Employer submits that several paragraphs are outside the scope of the Grievances or should only be admissible for background purposes.

57The Employer requests that paragraph 89 be struck. It reads as follows:

Mr. Ebere's mental health continued to decline as he felt increasingly singled out by management. Mr. Ebere stopped working overtime shifts and began using vacation and sick leave to cope with his distress at feeling surveilled at work and shunned by management.

58I find this paragraph speaks to the impact of the Grievor’s allegations and is therefore within scope. The facts that the Grievor may rely on to establish this impact are limited by this Decision, but the paragraph need not be struck.

59The Employer also seeks to strike paragraphs 94 and 95:

94. After Mr. Ebere’s accommodations were input into E-Roster, he continued to be moved out of his accommodated post in the Sub-Control modules by sergeants and staff sergeants.

95. By that point, Mr. Ebere had grieved [the Sergeant]’s direction that Mr. Ebere stop accepting T6:30 and T18:30 shifts in the Central Control Module. [The Sergeant] refused to answer Mr. Ebere’s calls and emails requesting assistance in correcting his shift schedules. As a result, Mr. Ebere was required to seek assistance from [the] scheduling sergeant.

60These paragraphs raise new allegations not set out in the active grievances and should be struck.

61Paragraph 99, addressed below in tandem with the issue of arbitrability, is struck as it is out of scope.

62Paragraph 100 and beyond address the Grievor’s medical leave beginning on July 15, 2021, and his subsequent return to work in the fall of 2021. The Employer argues that paragraph 100 be struck. The paragraph states:

100. The continued harassment caused Mr. Ebere to experience increasing levels of anxiety, emotional distress, sleep disturbances, and negative thoughts.

63Paragraph 100 addresses the impact of the alleged harassment on the Grievor and is not outside the scope of the grievances.

64The Employer requested that paragraphs 104 to 110, describing the Grievor’s return to work, be included for background only. As explained above, this is not a determination I am prepared to make. However, paragraphs 106 and 107 appear to allege an incident of unwelcome conduct in the course of the return to work process where a Sergeant expressed frustration with the proposed return to work plan. The paragraphs may remain, but the Union may not call evidence suggesting that the interaction is harassment, as these are not facts that arise from the four active grievances.

65In sum, I find that paragraphs 50, 52, 52, 56 (reference to management frustrating the Grievor’s return to work), 62, 63, 74, 84 to 88, 94, 95 and 99 are to be struck from the particulars. Additionally, insofar as paragraphs 106 and 107 seek to advance allegations of harassment by the Sergeant, they are outside the scope of the grievances.

Preliminary Motion - Arbitrability

66The Employer brought a motion that the second incident of the second grievance is inarbitrable for lack of standing. The paragraphs at issue are 96 to 99 of the Union’s particulars:

96. On June 26, 2021, Mr. Ebere and [his Coworker], were assigned to work the same shift. [The Coworker] suggested to Mr. Ebere that they could carpool to work together, since there was no possibility that [the Coworker] would be sent to work on hospital duty. [The Coworker]’s body armour was expired and he needed to be refitted.

97. Mr. Ebere and [his Coworker] arrived at approximately 6:20 a.m. When [the Coworker] saw that he was assigned to hospital duty, Mr. Ebere and [his Coworker] walked toward the sergeants’ offices. Mr. Ebere stood near the doorway to [the Staff Sergeant]’s office and waited as [the Coworker] went in.

98. Mr. Ebere heard [his Coworker] explain that he was unable to work on hospital duty. [The Staff Sergeant] responded angrily with words to the effect of, “Your buddy pulled this a few months ago and caused a bunch of drama here”, told [the Coworker] to leave his office and go to the unit, then slammed the door, almost hitting [the Coworker]’s fingers in the doorway.

99. This was not the first or only instance in which managers’ feelings toward Mr. Ebere spilled over onto people associated with Mr. Ebere. [The Coworker] and others have also complained to Mr. Ebere that they have generally been shunned by management for being associated with him.

67The Employer argued that these paragraphs should be struck as they relate to the Grievor’s coworker and not to any action taken against the Grievor. The Employer takes the position that the Grievor has not asserted a harm or a violation of his collective agreement rights, and on that basis the allegation should be struck.

68I disagree. The Union submitted that their evidence will be that the Grievor was the “buddy” referred to by the Staff Sergeant. Speaking negatively about the Grievor to his coworker could constitute a form of harassment. At this preliminary stage I have no evidence before me and any conclusion could be drawn only following a hearing on the merits. However, I accept that the Grievor has standing to advance this allegation.

69Insofar as the allegations assert a wrong against the coworker, they cannot be advanced. Therefore, I find that the words “almost hitting [the Coworker]’s fingers in the doorway” in paragraph 98 should be struck.

70As noted above, paragraph 99 addresses incidents which were not referenced in the second grievance and is struck on the basis that it is out of scope.

Production Order

71The Union asked that I order production of documents set out in a letter to the Employer dated May 23, 2023. The Union relied generally on the decision in Ontario Liquor Boards Employees' Union v. Ontario (Liquor Control Board) (Koonings Grievance), 2006 CanLII 17540 which outlines the test of arguable relevance for the disclosure of documents. The Employer opposes a number of the requests on the basis that they are overly broad and must be guided by the scope of the Grievances. Now that the issue of scope has been resolved, I turn to the request for production.

Grievance 1 - Shift Schedules of Other Correctional Officers

72The Union requests production of the shift schedules for four correctional officers who the Union alleges worked in the Central Control Module despite having beards, while the Grievor was advised not to accept shifts on the basis of his accommodation. The Union requests the schedules of the four individuals between December of 2020 and November of 2021.

73The Employer opposes the request for two reasons. First, the Employer submits that the four officers whose schedules were requested did not, in fact, have beards. Whether or not the four officers whose schedules have been requested had beards is a factual matter to be determined on the merits and not a basis upon which to preclude production. Second, it submits that discrimination cannot be established by pointing to what others did or did not do. As explained above, I find that this is an argument that the Union may advance and therefore conclude generally that the requested documents should be produced.

74The Union’s request for the schedules spans from December of 2020 until November of 2021. The incident took place on Dec 21, 2020, and the particulars allege that the Grievor “continued to observe correctional officers with beards working in the Central Control module after that date”. However, I note that the Grievor was off work as of July 15, 2021, with the exception of two days in November, after which the Grievor would have no information as to who was working. I therefore order that the Employer provide documents showing the days upon which the four named correctional officers were scheduled to work in the Central Control Module between December 21, 2020, until July 15, 2020.

Grievance 2 – Surveillance Footage

75The Union requested production of surveillance video footage of the Grievor and of the Staff Sergeant’s office on February 23, 2021, between 6:00 p.m. and 9:00 p.m. and on May 15, 2021, between 6:00 p.m. and 8:00 p.m. The Union also requests video from the Staff Sergeant’s office during and after the interaction with the Grievor’s coworker on June 26, 2021.

76In response to this request, the Employer advised the Union that the “request pertains to areas that either do not have cameras in the relevant areas and/or pertains to one area that is within camera range; however footage is only maintained for a period of sixty (60) days from the date of recording.” The Employer went on to explain that in the absence of an investigation into the incident at the time, the footage would not have been maintained.

77The Union responded with a modified production request for the Employer to provide a copy of the Ministry’s record retention policy for video and audio footage and a map of the location of the security cameras and audio installed in Unit A4, where the Grievor was working, the Admitting and Discharge Unit, and in the area surrounding the sergeant and staff sergeant offices.

78The Employer is ordered to produce the surveillance video requested for February 23, 2021, and June 26, 2021, in the event it is available.

79For the reasons set out above, the May 15, 2021, allegation is outside the scope of the active grievances, and I decline to order the surveillance video for that date. The Union submits that even if it is not an allegation upon which they can rely to establish a course of conduct that it should be disclosed on the basis that it is arguably relevant because it constitutes similar fact evidence. The Employer opposed a request for production of similar fact evidence. For reasons I will expand upon below, I agree with the Employer.

80The Employer asserted, in the course of their submissions, that the Ministry’s policy with respect to record retention of video and audio footage had been provided. It further submitted that there were significant security concerns related to the disclosure of a map of all security cameras in the listed areas of the institution.

81I turn now to the modified request, on the assumption that some or all of the surveillance video does not exist.

82I decline the Union’s request for a map of security cameras considering the security concerns raised and because it is overbroad in order for the Union to make their case. The Union has asserted that the Grievor was observed on camera. The position of the cameras is only relevant if the Employer’s witness takes the position that he had not or could not have observed the Grievor. A map would not provide any evidence regarding whether the Grievor in fact surveilled as alleged.

83I accept that information about the placement of the cameras could become relevant following the Employer’s evidence. I will consider an appropriately tailored request for additional information about the placement of cameras if it becomes relevant considering the Employer’s evidence.

Grievance 3 – Communications Between Management

84The Union requests production of all communications sent and received by management and/or the scheduling department related to the Grievor’s restrictions and shifts scheduled in December 2020, June 2021, July 2021, and November 2021. This request was later expanded in the modified production request to include all communications between management related to the Grievor. The modified request specifically lists eight members of management whose communications about the Grievor the Union wishes to have disclosed. The Union directs me to Ontario Public Service Employees Union v. Ontario (Children and Youth Services), 2007 CanLII 6888 (ON GSB), in support of its request for communications between management. The Union submits that the communications may shed light on the attitude of management toward the Grievor.

85This request is plainly overbroad. Having limited the scope of the grievance to the allegations arising directly from the four active grievances, I find there is no basis to grant such a broad request. With this request, the Union seeks to gather information to discover allegations that are unknown to them and which they could not particularize. This is a clear example of a fishing expedition. A review of the allegations that remain after my determination on the scope of the grievances reveals five specific allegations relating to two managers. The Union is entitled to these communications to they extent that they fall within the narrow scope of the Grievances.

86The Employer is therefore ordered to produce any communications sent or received by management or the scheduling department related to the Grievor’s restrictions, ability or inability to work in the Central Control Module sent between November 26, 2020, and November 24, 2021.

87The Employer is further ordered to produce any communications sent or received by management or the scheduling department related to the Grievor’s shift or assignments on November 15 and 17, 2021.

Similar Fact Evidence

88It is opportune, at this stage, to address the Union’s request for production of documents that could constitute similar fact evidence. The Union submits that even if their request is limited by the scope of the grievances, it may rely on other instances of management interfering with accommodations as it constitutes similar fact evidence, and therefore communications between management regarding the Grievor are arguably relevant. The Union argues that they are entitled to these communications to gather information about the attitudes of management towards the Grievor. The Union advanced the same argument in support of their request for the May 15, 2021 surveillance video, as noted above.

89The Employer opposes this request and points to the decision in Ontario (Ministry of Labour) and O.P.S.E.U. (Deprophetis) (Re), 2010 CarswellOnt 11620, 197 L.A.C. (4th) 351, (“Deprophetis”) in support of its position. The award addresses the admissibility of similar fact evidence, evidence that would establish that the witness was “the type of person who is likely to have engaged in” harassing conduct. I wish to note, that the Deprophetis decision deals with admissibility of the evidence and not whether it is arguably relevant for the purposes of production, but find that it is nonetheless relevant to the present analysis.

90As a general rule, similar fact evidence is admissible, though it may not be where the prejudice outweighs the probative value.

91In this matter I decline to order the disclosure of the documents the Union argues are produceable as similar fact evidence. Were I to order the documents requested, I would be permitting the Union to search for new allegations of which they are not yet aware, which is a classic fishing expedition. Further, the Union would be able to do through other means what I have declined to let them do when I limited the scope of the grievances. Disclosing communications unrelated to the allegations before me would ultimately serve to expand the scope of the grievances to allow allegations (either struck or yet undiscovered) to be litigated, which is not in the interest of labour relations. Arbitrator Dissanayake applies similar reasoning in Deprophetis:

10 In the context of the collective bargaining relationship between these parties, there is a further reason which militates against the admission of the proposed evidence. These parties are party to a collective agreement. Employees are entitled to grieve alleged violations of the terms of the collective agreement. The grievance before the Board is an individual grievance filed by the grievor, not a group or policy grievance. The grievor has grieved that the employer had violated the collective agreement and/or other applicable law, inter alia, by interfering with his decision-making authority. Neither party was aware of any grievance by MP arising out of a similar allegation.

11 It seems that before the Board can use the similar fact evidence for the purpose for which it is offered, it is inevitable that the Board would be required to first determine whether Ms. New engaged in the conduct as alleged by MP. That would involve litigation of an allegation by MP that the Ms. New had contravened the collective agreement in relation to him by interfering with his decision-making authority. Union counsel assured the Board that the union would not be asking the Board to make a finding that the collective agreement was contravened with regard to MP and that no relief for MP would be sought. Nevertheless, even without making a formal declaration, the Board will necessarily have to make findings of fact as to whether Ms. New treated MP in a manner not permitted by the collective agreement or other law. This will take place without MP ever having grieved.

12 This in my view could lead to an anomalous and unacceptable state of affairs. If for example, MP in fact decides to grieve as he is entitled to do, alleging that Ms. New had contravened his collective agreement or legal rights by interfering with his decision-making authority, a Vice-Chair hearing that grievance would then be faced with findings of fact already made, on the very issues to be determined by him/her. Is that Vice-Chair required to accept such findings as binding? Or would the same issues be relitigated, with the potential of conflicting findings? Neither possibility makes good labour relations sense.

92As Arbitrator Dissanayake states, the disclosure of this evidence is antithetical to good labour relations. Further, it allows the Union to seek to advance allegations which it had the opportunity to grieve (or at least not settle) and chose not to. In the context of the settled grievance and the narrow construction of the four active grievances, I find that any probative value of similar fact evidence would be significantly outweighed by the deleterious effects of allowing the Union to resile from the settlement and the wording of the four active grievances.

Grievance 3 - Alterations to Shift Schedules

93The Union requests disclosure of all records relating to the Grievor’s original shift schedules and any alterations made thereto in December 2020, June 2021 and November 2021, including records showing which members of management were working on the days where shifts were altered, who made the alterations, when they were made and why.

94In keeping with my determinations with respect to the scope of the Grievance, I order that the Employer produce the requested records with respect to the shifts of November 15 and November 17, 2021. I note the Employer’s submission that they had provided some of the information requested. To the extent that the Employer has already complied with this order, it need only provide any documents which have not yet been disclosed.

Production of Workplace Investigation File

95The Union requests production of the workplace investigation file. It states that the file is relevant to the allegations of the settled grievance, and that the investigators addressed the following issues arising from the four active grievances: the changes to the Grievor’s schedule in December 2020, the February 23, 2021 surveillance incident and management’s lax approach to implementing accommodation.

96Of the allegations listed, only the February 23, 2021, surveillance incident was found to be withing the scope of the grievances. I therefore decline to order the workplace investigation file insofar as it is relevant to the settled grievance, the December 2020 changes to the Grievor’s schedule, and the implementation of the Grievor’s accommodation.

97The Employer must therefore only disclose any documents from the investigation file in which the allegation that the Staff Sergeant was improperly monitoring the Grievor on February 23, 2021 is addressed.

98The Employer shall produce the documents ordered herein no later than January 31, 2025. In the event that the employer has no record of what has been ordered, it shall advise the Union by the same date.