GSB# 2021-0575

UNION# 2021-0503-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (D’Souza)

Union

• and -

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

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Matthew Appignanesi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jackson Donszelmann-Lund Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 15, 2023

Decision

1The Employer brings a motion that the grievance be dismissed on the ground that the Grievor failed to comply with an order of the Board dated May 29, 2023, by not providing sufficient reasons for her non-attendance at a hearing on April 3, 2023.

2The Union takes the position that the Grievor did in fact comply with the May 29, 2023 order, and in the alternative that her conduct does not warrant dismissing the grievance.

Background

3The prior history of this matter is summarized in the Board’s May 29, 2023 decision as follows:

4The grievance is dated April 23, 2021. A Board hearing was originally set for January 19, 2022. On January 18, 2022, the Union requested an adjournment. The Employer consented to this request, but not on a without prejudice basis. The next hearing date was scheduled was April 3, 2023.

5The grievor failed to attend that hearing and failed to notify either of the parties or the Board of her intention not to attend. The Union was unable to contact her during the hearing.

6The hearing was adjourned. That same day I issued a consent order directing that the Grievor “provide a sufficient written explanation to the parties and the Board for her non-attendance of the April 3rd, 2023 hearing date, no later than April 13th, 2023.” The order noted that:

In the event that the Grievor provides a written explanation before April 13, 2023, the Employer reserves the right to provide submissions as to whether or those reasons for non-attendance are sufficient to justify the matter continuing through the grievance procedure, including whether or not the grievance should be dismissed on the basis that those reasons are insufficient.

7On April 6, 2023 Union counsel forwarded to the Board and to Employer counsel an email message sent to him by the Grievor that same day. The message was in response to the Board order of April 3, 2023. By way of explanation of the Grievor’s absence at the April 3 hearing, it stated the following:

As already communicated to you vide my email of 03‐Apr‐23 at 11:19 pm, "I have a full tear in the rotator tendon of my right shoulder with excrutiating [sic] pain and was resting the whole day."

The Grievor did not at that time or subsequently provide any medical documentation in support of her absence.

8The Employer promptly indicated that it did not consider this to be a sufficient written explanation, and that it would be seeking to have the grievance dismissed. The Employer’s motion to dismiss was heard by conference call on April 28, 2023.

4In that decision, I agreed with the Employer that the Grievor’s explanation was not sufficient, noting that I was troubled by her failure to anticipate that medical documentation would be required to support it. I concluded nonetheless that:

[12]… in the circumstances of the case, I am prepared to give the Grievor the benefit of the doubt with respect to her understanding or acceptance of this requirement. I am not prepared to conclude that her actions reflect a disregard for these proceedings sufficient to warrant dismissing the grievance.

I then directed as follows:

13The Union is to provide to the Employer and the Board, no later than 30 days from the date of this order, medical documentation verifying the medical reason given by the Grievor for her absence at the April 3, 2023 hearing and sufficiently describing any activity limitations preventing her from attending. The Grievor’s doctor is to be advised that she has a legal claim that is to be determined through a legal proceeding and that as such he may be required to present evidence in the course of the proceedings.

5In response to this order, the Union provided to the Employer on or about June 23, 2023 a medical note dated April 5, 2023 from the Grievor’s treating physician, Dr. Sarah Jennifer Reid. It reads as follows:

Due to a full thickness tear in the right shoulder tendon, Rose experiences chronic pain in her shoulder. We are pursuing appropriate treatment and management of this health problem, and Rose is waiting for an appointment with an orthopedic surgeon to discuss surgical options.

6The Employer then notified the Union that it did not consider this medical note sufficient to comply with the May 29, 2023 order. The parties agreed that the Employer’s motion to dismiss the grievance would be heard at the next scheduled hearing, which took place on December 15, 2023.

Evidence

7At that hearing, the Employer presented uncontested evidence that the Grievor attended work on the Friday before and the Tuesday after the Monday, April 3, 2023 hearing.

8In addition, the Grievor testified. She said that she had woken up the night of March 31, 2023 with a shooting pain in her right arm such that she could not even lift her right hand. The next morning, April 1, she said it was even worse and was throbbing. She said that this pain persisted over the entire weekend, despite her “popping Tylenol pills”. She described the pain as excruciating. She said that the potency of the Tylenol pills left her groggy and that even at the best of times her movements were restricted so that she could not lift anything, like a towel, a bottle of water or a cell phone. She testified that she could not recall whether she ate anything while she was in pain. She said that she drank water directly from the faucet, or using a glass that she put on the bottom of the sink. She described the pain as “searing, blinding” and said that even small motions were painful.

9Under cross-examination Ms. D’Souza said that she could not recollect how she had opened the Tylenol bottle to take her medication. She said that her right arm is her dominant arm, and that even though she uses both hands to type in her job, she is not as dexterous with her left hand. She said that she did not go to the hospital because she would have to dress to do that, did not think she could change out of her pyjamas, and already knew what was causing her pain. She said she did not think about calling an ambulance. When asked if she had used a cell phone at all between the night of March 31 and the evening of April 3, she said that she had not. When asked why she did not use her left hand to use her cell phone to contact her counsel about her absence at the hearing, Ms. D’Souza said that she “was not thinking lucidly”. She also said that she did not know if she could use her left hand to use a cell phone. She said that she had never tried it before. On re-examination she said that the pain had affected her focus on April 3.

10Ms. D’Souza testified that the pain began to subside in the evening of April 3. Around that time, she sent a message to her counsel in response to his message to her asking for an account of her absence at the hearing. She said that she could not recall whether she had emailed or texted him. The next day, Ms. D’Souza testified, she could lift things and the pain was not so excruciating. She was able to dress and go to work. Under cross-examination she said that the pain was manageable that day and she was able to type on her computer. She said that she went to work so that she would not lose pay, and that she only has a limited number of sick days and did not want to use one unless she really needed to. She also said that she had previously experienced such episodes of pain and that these had caused her to miss days of work.

11With respect to the medical note from Dr. Reid, Ms. D’Souza said that she did not attend the doctor’s office to get it. Rather, she called her office and spoke to her, telling her she would need a letter, and asked her to elaborate because “this is what is required”. She could not explain why the note from Dr. Reid did not say that she was not able to attend the hearing. She said that she had just accepted the note from the doctor indicating what her malady was. She acknowledged however that she did not communicate to Dr. Reid that she had been unable to attend a hearing the previous Monday.

12At the hearing, the Grievor said that she “profusely apologized” for missing her hearing day, realized that it was a serious matter, and that she planned on attending future hearing dates. She said that she was willing to inform her counsel ahead of time if for any reason she was unable to attend.

Arguments

13The Employer submits that Dr. Reid’s April 5, 2023 medical note is plainly insufficient to comply with the terms of the May 29, 2023 order directing the Union to provide medical documentation of activity limitations preventing the Grievor from attending the April 3, 2023 hearing. The Employer emphasizes that the note simply says that Ms. D’Souza was experiencing chronic pain without any reference to any resulting activity limitations. It points out further that the doctor was to have been informed that her documentation would be used in a legal proceeding, and that this was not done.

14Turning to the Grievor’s own account in testimony of her failure to attend the April 3, 2023 hearing, and to notify anyone in advance of her non-attendance, the Employer submits that it is not credible. The Employer argues that though she says that she was in excruciating pain for 3 days, “at some magical point” after the hearing the excruciating pain abated, she could communicate with her union representative, and was able to attend work the next day without any limitations on her ability to work. The Employer also emphasizes that though the Grievor says she was experiencing excruciating pain, her doctor’s note issued two days later says nothing about this.

15The Employer submits that an arbitrator can and should dismiss a grievance where the grievor’s conduct shows a lack of interest in the proceedings or a lack of respect for the Board’s procedures: Ontario Public Service Employees Union (Cupskey) and Liquor Control Board of Ontario, GSB# 2013-2633 (2019) (Parmar); Ontario Public Service Employees Union (Ellis) and Ontario (Ministry of Finance), GSB# 1866/99 (2001) (Dissanayake); Ontario Public Service Employees Union (Savdie) and Ministry of Government Services, GSB#2011-3785 (2013) (Harris); Ontario Public Service Employees Union (Khan) and Ministry of Government and Consumer Services, GSB# 2018-0035 (2019) (McLean); Ontario Public Service Employees Union (Karabegovic) and Liquor Control Board of Ontario, GSB# 2007-1436 (2008) (Kirkwood). In this case, maintains the Employer, much like in Khan, supra, the Grievor has failed to comply with a Board order, and has been untruthful in her explanation of her failure to attend the April 3, 2023 hearing or to even notify her counsel or the Board of that she would not be attending. This, contends the Employer, shows an overall lack of respect for the Board’s procedures.

16The Union responds that dismissal of a grievance prior to a determination of its merits represents a very rare exercise of the Board’s discretion. The Union maintains that the Grievor was in fact experiencing excruciating pain and was affected by her medication so that she was in no position to attend the hearing. It submits that her pain was the fundamental limitation preventing her attendance at the hearing. It maintains that Dr. Reid’s note confirms a diagnosis of chronic pain, thus identifying the limitation and complying with the terms of the May 29, 2023 order.

17In the alternative, the Union contends that even if the medical note submitted by the Grievor did not comply with the terms of the order, her testimony supplies the required information. It submits that her testimony is credible and is not contradicted by any evidence. It takes issue with the Employer’s characterization of Ms. D’Souza’s recovery the night of April 3, 2023 as “magical”, calling it instead a “thankful improvement”.

18The Union maintains that dismissal of a grievance involves a pattern of non-compliance by persons who ignore their responsibilities, resulting in prejudice, delay, or abuse of process. It emphasizes that the Grievor is prepared to attend and participate in hearings. It submits that it would be contrary to natural justice to dismiss her testimony, and her grievance. The Union refers me to the following authorities: Ontario Public Service Employees Union (Ellis) and Ministry of Finance, 2001 CarswellOnt 11171, [2001] O.G.S.B.A. No. 74 (Dissanayake); Ontario Public Service Employees Union (Gilchrist-Duval) and Ministry of Transportation, 2015 CarswellOnt 17395, [2015] O.G.S.B.A. No. 158, 125 C.L.A.S. 55, 264 L.A.C. (4th) 422 (Briggs); Ontario Public Service Employees Union and Ministry of Labour, 2015 CarswellOnt 14603, 124 C.L.A.S. 205 (Dissanayake). The Union says that in this case the Grievor has neither been untruthful nor shown a lack of initiative in pursuing her grievance, and that she has apologized for her non-attendance. It submits that because of these factors the authorities relied upon by the Employer are all distinguishable.

19Finally, the Union emphasizes that the grievance alleges discrimination in a job competition and is therefore a serious matter that needs a fair hearing because it cuts to the heart of the relationship between the parties.

20In reply, the Employer maintains that prior to the December 15, 2023 hearing the Grievor had given no indication that she was serious about pursuing this grievance. It points out that her responses to the orders issued on April 3, 2023 and on May 29, 2023 were both insufficient, and that she provided no testimony at the hearing on April 28, 2023 that led to the May 29, 2023 order, even though it was clearly open to her to do so. The Employer concludes that her testimony on December 15, 2023, coming late in the day as it did, was self-serving.

Decision

21The Grievor did not do what was required to enable the Union to comply with the May 29, 2023 order. Dr. Reid’s note is plainly unresponsive to the order’s direction to provide medical documentation sufficiently describing any activity limitations preventing Ms. D’Souza from attending the April 3, 2023 hearing. It simply states that the Grievor experiences chronic pain in her shoulder without providing any description of activity limitations flowing from that pain. It provides no information, such as, for example, confirmation that Ms. D’Souza experiences acute episodes of totally disabling pain, upon which limitations accounting for her failure to attend the Monday, April 3, 2023 hearing could be inferred. Despite her chronic pain, the Grievor attended work the Friday before and the Tuesday after hearing date, as she does most days. There is nothing in evidence suggesting that attending this hearing would have affected her shoulder injury in any way materially more detrimental than her regularly attending work. Dr. Reid’s bare statement that the Grievor experiences chronic pain could not therefore on its own explain Ms. D’Souza’s absence at the hearing.

22The inadequacy of Dr. Reid’s note is attributable to the Grievor’s failure to communicate the requirements of the May 29, 2023 order to her. Ms. D’Souza could have sought the required information from Dr. Reid in response to the order, but did not. She says that she did not understand why the note did not address activity limitations preventing her from attending the hearing. But the note was issued on April 5, 2023, more likely than not without Dr. Reid having been asked to supply any information about Ms. D’Souza’s activity limitations, and by the Grievor’s own admission without Dr. Reid having been told that Ms. D’Souza needed the note to explain her absence at a legal hearing two days earlier. It is difficult to understand how Ms. D’Souza could have thought, after she had been found not to have complied with the April 3, 2023 order, and with Union advice available to her, that Dr. Reid’s April 5, 2023 note would be sufficient on its own to comply with the May 29, 2023 order. In the absence of a better explanation from Ms. D’Souza, I can only conclude that her decision to present and rely only on Dr. Reid’s note reflected an inattentiveness to Board direction that is not appropriate to the seriousness of these proceedings.

23On the other hand, I find that Ms. D’Souza’s testimony provides, on a balance of probabilities, a credible account of the reasons for her failures to attend the April 3, 2023 hearing and to communicate with her counsel in a timely manner. In her testimony she described an episode of acute, constant, and nearly totally disabling pain which prevented her from doing such things as feeding herself or changing her clothes, and in combination with medications that she took to seek relief from it, prevented her from thinking clearly. She also said that she had previously experienced such episodes and that these had caused her to miss days of work.

24The Employer contends that this account of events is not credible because Ms. D’Souza was able to attend work the Friday before and the Tuesday immediately following the hearing. But an acute episode of intense pain, by its nature, would arise and then subside. The question in this case is simply whether the timing of the reported episode, Ms. D’Souza’s failure to provide medical corroboration of it, and the timing of her eventual explanation by oral testimony together cast sufficient doubt on her explanation to justify disbelieving her on a balance of probabilities.

25Ms. D’Souza could have sought confirmation from Dr. Reid that she had experienced acute episodes of severe pain before, or at least provided an explanation of why this was not possible, if indeed it was not. She could have provided a fuller explanation at the April 28, 2023 hearing of how she was disabled by pain on April 3, 2023. But for reasons unknown to the Employer and the Board, she did neither. I understand the Employer’s concern that her testimony, coming when it finally did, may have been self-serving in that it was simply designed to avoid dismissal of the grievance.

26In the end however, I am not persuaded that this was the case. Ms. D’Souza’s account of why she did not attend the April 3, 2023 hearing was detailed and internally consistent, both in chief and under cross-examination. Considering the evidence as a whole, I find that Ms. D’Souza’s delay in providing a full explanation and her failure to corroborate it through a medical note are not sufficient reasons to disbelieve her testimony.

27The remaining question is whether Ms. D’Souza’s inattentiveness in responding to the May 29, 2023 order showed sufficient disregard for these proceedings to warrant dismissal of her grievance. After careful consideration I have concluded that it did not.

28As the cases cited to me make clear, dismissal of a grievance for a grievor’s failure to attend a hearing is “something of a last resort” (Khan, supra at para 17) but nonetheless appropriate when, for example, a grievor shows “complete disregard” (Karabegovic, supra at para 16) for or “no particular interest” in grievance resolution proceedings (Khan, supra at para 21.). In Ellis, supra, the grievance was dismissed after the Grievor failed to appear at two hearing days without justification or adequate notice, and then failed to provide relevant medical documentation when given the opportunity to do so. In Savdie, supra, the Grievor missed two hearing days without prior notice or explanation, and then asserted “medical reasons” for doing so but failed to provide any particulars of such reasons or any medical documentation of them even after directed by the Board to so. The grievance was dismissed on the grounds that this conduct demonstrated a “complete lack of concern for the inconvenience and expense to which he has put the Employer, his Union and the Board” (Savdie, supra at para 11). In Khan, supra, the Board dismissed the grievance after the Grievor failed to attend two hearings without sufficient explanation. With respect to the first, he first asserted that he had a conflicting appointment with a medical specialist, and then in response to a Board order to provide medical documentation asserted but failed to document that he had chosen to attend a physiotherapy appointment instead of the hearing. The Board noted that if indeed there had been such an appointment he had made no attempt to reschedule it. With respect to the second hearing date, the Grievor had advised two days prior to the hearing that he would not attend due to a family emergency, without providing any information on the nature of the emergency or why it would necessitate missing a hearing two days later, despite having been provided with the opportunity to do so. In Karabegovic, supra, despite multiple attempts by her union to contact her the Grievor had not communicated with the Union at all prior to a hearing that she then failed to attend. She had provided no reasons for her absence and no information upon which the parties or the Board could determine when if ever she would be able to meet with the Union to prepare her case. The Union did not request an adjournment in response to the employer’s motion to dismiss the grievance. The Board concluded that the Grievor’s conduct showed a “complete disregard” for its proceedings and dismissed the grievance. In each of these decisions, the Grievor had either made no effort to participate in the proceedings or had failed to provide any credible explanation for multiple absences at hearings.

29In this case I have concluded that the Grievor’s conduct does not reflect a lack of interest in the Board’s proceedings. Nor does it amount at this point to an abuse of process. The Grievor missed one hearing without prior notice. When directed to provide a sufficient explanation she at first gave a very brief statement without supporting medical evidence. When subsequently directed to provide a medical note documenting activity limitations preventing her from attending the hearing, she submitted one without such information. Taken together, the latter two actions reflect an inattention to compliance with Board orders that is entirely inappropriate to the seriousness and expense of these proceedings. In the end however, Ms. D’Souza did provide reasons and evidence in her testimony that sufficiently justified her absence at the April 3, 2023 hearing. She has made an unreserved apology for her failure to attend. She has indicated further that she intends to participate fully in future hearings.

30The Grievor is hereby put on notice that any future failure to attend a hearing without adequate notice or explanation or any future failure to comply with a Board direction may lead to dismissal of her grievance. I also note that the delay between May 29, 2023 and the date of his decision is attributable to the Grievor’s actions and omissions. Should it prejudice her ability to prove her case or obtain a remedy she will have to accept such consequences.

Disposition

31The motion is denied.