GSB# 2020-0985; 2021-1492; 2021-1493

UNION# 2020-0623-0002; 2021-0623-0003; 2021-0623-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barnard et al)

Union

• and -

The Crown in Right of Ontario (Natural Resources and Forestry)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 24, July 6, October 24, December 4, 2023 and January 25, 2024

Decision

1There are three grievances before me. The first is dated July 16, 2020. The second and third are both dated September 21, 2021. The latter two are worded virtually identically, each filed on behalf of a different grievor. Proceedings in the first grievance had already commenced when the second and third grievances were filed. The parties subsequently agreed to have all three grievances heard together. Several months after the second grievances were filed, the union provided lengthy and detailed particulars in support of its case. Its document numbered some 28 pages, 243 paragraphs. Events detailed therein span a period from 2015 to the filing of the most recent grievances.

2The instant decision concerns the employer’s preliminary motions. It asserts that the grievances ought all to be dismissed as failing to establish a prima facie case of any breach of the collective agreement. It also submits that the first grievance should be dismissed as untimely. And, in a final alternative, the employer asked that, for various reasons, certain of the union’s particulars ought to be struck.

3Sacrificing precision in the interests of clarity, the case before me can be described very simply at a high level. The grievors are all aircraft maintenance engineers employed by the Ministry. They work in safety sensitive positions and the work they do is subject to various and varying levels and of regulation and certification, about which the union promises we shall hear more if and when we move to a hearing on the merits. The union points to a number of incidents and claims that, taken cumulatively, they demonstrate employer conduct which amounts to bullying and harassment. More specifically, the union claims that the grievors have continually raised safety related issues to the consternation of the employer and that they have consequently suffered reprisals in the form of what is claimed to be bullying and harassing employer conduct. For its part, the employer acknowledges that there has been friction in the workplace. Indeed, it even acknowledges that there may have been occasions (at least one) where management’s intervention and commentary was ill-advised and imprudent (but not in breach of the collective agreement). But taken at the high level, the employer submits that what we have is nothing more than the ordinary rough and tumble of a difficult workplace. And, it claims, the difficulties in the workplace are largely the result of difficult employees, who seek nothing less than to usurp the role of management and are dissatisfied when things do not go their way.

4From this perspective the ultimate disposition of the case may turn on a determination of which of the two competing general descriptions is the more accurate. And, in my experience, and perhaps previewing some of my ultimate conclusions here, cases such as this one – where a number of incidents, each appearing in isolation to be relatively trivial, are pointed to – often cannot be resolved without hearing all of the evidence and assessing the testimony of any witnesses that may be proffered.

5Turning then to the specifics of the employer’s objections, I will deal first with the question of the timeliness of the first grievance.

Timeliness

6The grievance was filed on July 16, 2020. Under the terms of Article 22.2 of the collective agreement, a grievance is to be filed “within thirty (30) days after the circumstances giving rise to the complaint have occurred”.

7The “Statement of grievance” provides as follows:

I grieve that the Employer has violated Articles 2, 9 the Occupational Health and Safety Act, the Employer's Respectful Workplace Policy and any other articles or legislation that might apply. Harry Weigelt and Sam Baby has [sic] engaged in a course of harassment including but not limited to, repeated, abusive, demeaning, and belittling conduct, that is known or ought to be known to be unreasonable.

8This statement is a bald legal conclusion devoid of any specific details. There is no reference in the statement or anywhere in the grievance to any specific event(s) said to be in contravention of the collective agreement. However, as earlier indicated, the union ultimately filed particulars in support of its claim. Events particularized therein dated as far back as 2015. In response to objections from the employer regarding how far back one could properly reach, the union subsequently agreed to strike all of the particulars that dated back more than three years from the filing of the grievance. But even in respect of the remaining particulars there are significant problems with the timing of the grievance.

9Prior to the filing of the grievance, the most recent event referenced in the particulars occurred over three months earlier. And (even bearing in mind some of the caution expressed earlier about how cases like this tend to be determined) the sum total of that reference is to nothing more than what the union asserts was a “meeting … regarding lack of employer’s willingness to provide a protocol to protect the Employees from Covid”. The next most recent event is more elaborately described in the particulars. It pertains to a temporary assignment or rather re-assignment of one of the grievors from one remote community in Quebec to another. The events are outlined in some detail. But these occurred some four and one-half months prior to the filing of the grievance. It remains unclear what precisely was the proximate cause of the filing of the grievance. And the only events referred to in the particulars predate the filing of the grievance by substantial periods. The grievance was filed, at best, not days or weeks, but months late. It is clearly untimely.

10But the union asks me to exercise my discretion (one the employer agrees I have) to extend the applicable time limits so as to allow the grievance to proceed. For the reasons that follow I am not prepared to do so.

11First, I note an important distinction between the two principal motions before me. A motion to dismiss on the basis of a failure to make out a prima facie case is generally argued and decided on the basis of pleadings, not evidence. Indeed, absent perhaps a contrary agreement of the parties to introduce certain documentary evidence, no evidence will be adduced and, certainly, no witnesses will testify. In a motion to dismiss a grievance as untimely, however, no such evidentiary limitations are present. The parties are free to proffer any evidence relevant to the issue of the timeliness of the grievance. And, typically, and particularly where, as here, a party asks the adjudicator to exercise discretion to extend the time limits, evidence may be heard regarding the circumstances of and reasons for the delay.

12It appeared that was the route we would be taking in the instant case. The union initially proffered a witness to testify about the delay. However, for reasons which need not be elaborated here, the union withdrew the witness prior to the completion of evidence in chief. Thus, the witnesses’ testimony was incomplete, and neither was it subject to cross-examination. Accordingly, I am unable to give any weight to the limited testimony that was provided. No other evidence was called.

13The union did point to a series of events detailed in its particulars which, it asserts, demonstrate that there were ongoing issues, discussions, and efforts to resolve various workplace issues. This demonstrates that the union was not “sitting on its hands” and the employer was well aware of the discontent of the grievors and the union. It appears, based on the particulars, that the parties did engage in a workplace resolution process which may not have met the expectations of all the participants. The union also asked me to take account of the fact that the grievors were unsophisticated in the practice of labour relations and that the delay was “at most” only several months.

14There are two points to consider about this “evidence” pointed to in support of the request to extend time limits. First, it is not evidence at all. There is no relevant evidence before me regarding the circumstances and reason for the delay or the level of grievors’ labour relations expertise. There are only particulars. I ought not to accept these particulars as true and provable as I must in the context of a no prima facie case motion. But more importantly, perhaps, even if I were to accept the union’s particulars as true for the purposes of this aspect of the case, I am not persuaded that they assist in persuading me that an extension of time is warranted.

15It is not necessary for me to plumb the depths of the rich arbitral jurisprudence on the exercise of discretion to extend time limits. It is generally recognized to have its origins in the case of The Becker Milk Company Limited and Teamsters Local Union No. 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett). That case identified three main factors to consider:

(i) The reason for the delay given by the offending party

(ii) The length of the delay

(iii) The nature of the grievance

16Those factors were further elaborated and refined in the case of Greater Niagara General Hospital and O.N.A. 1981 CanLII 4449 (ON LA), 1981 CarswellOnt 1981, [1981] O.L.A.A. No. 2, 1 L.A.C. (3d) 1. In that case, Arbitrator Schiff enumerated the factors as follows (at para. 12 and following):

i. The nature of the grievance.

ii. Whether the delay occurred in initially launching the grievance or at some later stage.

iii. Whether the grievor was responsible for the delay.

iv. The reasons for the delay.

v. The length of the delay.

vi. Whether the Employer could reasonably have assumed the grievance had been abandoned.

17Many cases have followed dealing with the exercise of discretion to extend time limits, but these two oft cited awards remain the foundation of the jurisprudence on the point. And given the dearth of factors in the present case to support the union’s request for an extension of time, I need go no further in any jurisprudential review.

18No credible reasons have been offered for the substantial delay. The only factor properly addressed by the union relates to the nature of the case. The union submits that these types of cases, which allege a pattern of improper employer conduct, are often difficult to formulate and slow to crystallize. There is undoubtedly some force to this submission, though as will be seen, I think it is more significant in the context of the employer’s no prima facie case motion. At the limit, however, the union is here suggesting that a determination of the case on its merits ought not to be avoided simply because this is a case that is difficult to formulate and one that comes slowly to fruition. Of course, if getting to the merits of every dispute were the singular determining factor in every case, there would be no need for parties to negotiate and fix time limits. And the establishment of such time limits is a long-established and well-entrenched collective bargaining item.

19I pause to briefly consider what has come to be known as the “three-year rule” the Board has applied in cases alleging harassment and discrimination. This “rule” permits a grievor to plead and rely on events prior to those giving immediate rise to the grievance in order to establish a historical pattern of improper employer conduct amounting to harassment and discrimination. Such events, but for the application of the “rule”, would otherwise be treated as stale dated and evidence concerning them would therefore normally be excluded. As arbitrator Anderson observed in OPSEU (Cooper) v. Ontario Clean Water Agency 2019 CarswellOnt 6090, 139 C.L.A.S. 226 (at para. 4):

… when the grievance alleges harassment, the GSB has permitted the union to lead evidence of earlier events in order to prove a pattern of harassment. At the same time, the GSB has generally limited such evidence to the three years before the grievance so that the employer will be able to defend itself. This has become known as the "three year rule". The "rule" is not really a rule but rather a guideline which is flexibly applied depending on the circumstances of a particular case.

20And, of course, the three-year rule does not provide a license to adduce events of anything at all that has transpired in the three-year period preceding the grievance. It permits only a consideration of events which may serve to illuminate the claim of a pattern of improper employer conduct amounting to harassment. The employer in our case argued that certain of the events the union seeks to rely upon fail to meet this test and ought therefore not to be considered. In view of my ultimate determination to come on the timeliness issue, I need not consider those submissions, at least not in respect of the first grievance. (I note that the employer submitted that the first grievance was the only one that could potentially be subject to the three-year rule – I will return to this when I consider the second and third grievances.)

21Assessment of evidence sought to be adduced in application of the three-year rule was, in part, the subject of the decision of Arbitrator Gee in OPSEU (Barker) v Ontario (Ministry of the Solicitor General), 2020 CarswellOnt 1612, 143 C.L.A.S. In addition, the question of extending time limits also arose.

22An admittedly oversimplified description of the here relevant portion of the case is as follows. The grievor alleged that she was the victim of bullying and harassment. Lengthy particulars were filed in support of the claim, spanning the years 2016-2018. The impugned conduct was ascribed to two different managers (the second having replaced the first in September of 2017). It is fair to say that the allegations involving the first manager were, on their face, far more troubling than those involving the second. But those events occurred at a time far removed from the filing of the grievance. For ease of reference, I will refer to these as the stale allegations. The union advanced two separate bases for the consideration of these allegations. Both were unsuccessful.

23First, the union argued that the application of the three-year rule meant that the stale allegations ought to properly form part of the case. The arbitrator began her consideration of these issues (in what may be the most relevant portion of the case for our purposes) with a finding that the grievance had been filed in a timely fashion. The most recent events detailed in the particulars involved the second manager and occurred only days prior to the filing of the grievance and while there may have been less than pristine clarity in the particulars, the arbitrator concluded that (at least some part of) those events must have constituted the incident that formed the basis of the grievance. And since the grievance alleged a repeated pattern of harassment, the three-year rule could come into play. However, in rejecting any consideration of the stale allegations under the rubric of the three-year rule, the arbitrator concluded (at para 66):

…given the separation in time and difference in nature, evidence of what Ms. Ives [the first manager] did between November 21, 2016 and July 6, 2017 would not assist in deciding whether what Ms. Coleman [the second manager] did on March 7, 2018 was part of a course of conduct that amounts to harassment. It is my determination that evidence of the incidents involving Ms. Ives is not relevant to the issue as to whether the incident that underlies the grievance amounts to harassment.

24The arbitrator next considered the union’s submission that she should exercise her discretion to extend the time limits in respect of the stale allegations so that those could be considered directly, rather then by virtue of the three-year rule. Having regard to the length of the delay which occurred at the initial stages of the grievance, the lack of persuasive reasons or explanation for the delay, the (largely presumed) potential prejudice to the employer, and, notwithstanding the nature of the grievance, the arbitrator declined to exercise her discretion to extend the time limits.

25I have lingered on this case because I think it is analytically instructive. My comments are limited to cases where the union alleges harassment and relies upon what it asserts is a repeated pattern of improper employer conduct. The Barker case demonstrates, that while overlapping considerations may apply, the exercise of arbitral discretion to extend time limits and the proper application of the three-year rule are, strictly speaking, separate and discrete matters. However, before there can be any explicit consideration of the three-year rule, there must be a timely grievance (or one in which the arbitrator has exercised discretion to relieve against time limits).

26There is, however, a potential chicken and egg problem here because, in arguing for an extension of time, a union might legitimately point to a pattern of conduct which occurred during a period of time that could certainly be captured by the three-year rule if a clearly timely grievance had been filed. A cynical observer might describe such an effort as one where a party relies on the three-year rule in order to secure its application, arguably putting the cart before the horse. The real question of import here is: to what extent ought a party be permitted to rely on stale events to buttress its request to extend time limits. The concern is to avoid the irony of bootstrapping an untimely grievance by relying on other (even more) untimely events.

27There is no hard and fast answer to this question, the routine factors considered in requests for relief against time limits will continue to apply. Extensions of time may or may not be granted depending, among other things, how temporally removed the further untimely events are from the filing date of the grievance.

28This brings me to a more specific consideration of the union’s request to extend time limits. With a single possible exception, none of the factors to be considered in determining whether an extension of time is warranted weigh in the union’s favour. Indeed, if one canvasses the factors enumerated in the Greater Niagara case, cited earlier, they all weigh against the exercise of the discretion in question. The sole exception is the nature of the grievance. This is a case alleging harassment. This Board and arbitrators generally have been sensitive to the fact that these types of cases present significant evidentiary problems and require a more historical focus in order to determine whether there has been a repeated pattern of inappropriate conduct (the very reason, of course, that the three-year rule has developed). In that context, I am prepared, to a limited extent, to consider references in the pleadings to events that predated those giving rise to the grievance.

29I have already expressed some consternation regarding any identification of the proximate cause of the grievance having been filed. That cause was not evident in the grievance itself. The particulars identify two possibilities: the reference to a meeting regarding Covid protocols (over three months prior to the filing of the grievance on July 16, 2020) and the reassignment of one of the grievors (some four and one-half months prior to the filing of the grievance). The first of these is little more than a notation in the particulars (part of a series of events the union pointed to, not so much as alleged violations in their own right, but rather as a series of events demonstrating that the union was not “sitting on its hands” and was engaged in workplace resolution matters on an ongoing basis. The second possibility is more elaborately particularized and represents something the union points to as evidence of harassment. I will treat this, there being no other viable alternative, as the event that gave rise to the grievance.

30Moving backward through the particulars from that event the next event occurred in June 2019, more than a year prior to the filing of the grievance. It involves an event which the union asserts is safety related. And the next previous event occurred in August 2018, almost two years prior to the filing of the grievance. These allegations go to a work-related discussion between a grievor and one of his managers. It was in relation to this event that the employer acknowledged some of the manager’s remarks may have been ill-advised.

31In other words, in the two full years preceding the filing of the grievance, there are but two events (apart from the one giving rise to the grievance) referred to in the particulars that may ultimately be pointed to as manifesting a repeated pattern of improper conduct which, when considered cumulatively, will support the conclusion that the employer has engaged in harassment and bullying of its employees. On its face, an event which happens once in a year for two years is hardly capable of being described as evidence of a repeated pattern of conduct rather than an extremely small collection of sporadic and isolated events. Of course, if any of these events, in and of themselves, amounted to violations of the collective agreement, they would have been the proper subject of grievances. That did not happen. These events are now being pointed to for a very different and specific purpose. The union is asking me to consider these untimely events in order to determine whether time limits ought to be extended for the present untimely grievance so that the three-year rule can then be properly applied so as to consider the very events pointed to in an effort to persuade me to extend the time limits. The cart before the horse metaphor gives way to the image of the snake consuming its own tail.

32In short, as this case involves allegations of harassment, I am prepared, under the general heading of the nature of the case, to consider the fact the union alleges earlier impugned employer conduct. However, any consideration in that regard is not sufficient to outweigh the other factors to consider in determining whether or not to exercise the discretion to extend time limits. In short, the grievance was filed dramatically outside of the negotiated time-limits. No credible reason has been advanced for that delay, which, on its face, creates litigation difficulties for the employer. The fact that the grievance alleges discrimination is not sufficient to outweigh the unambiguous direction in which the other factors point.

33The grievance is clearly out of time. I am not persuaded that I ought to exercise my discretion to extend the time limits. Thus, the grievance must be and hereby is dismissed.

34But although it has now been successful in its bid to have the first grievance dismissed, I will next proceed to outline, in a much more summary fashion, why I have decided to reject the balance of the employer’s motions.

No prima-facie case

35The submissions of the parties on this branch of the case were a study in high contrast. And, to once again mix metaphors, it was a battle between the forest and the trees, neither particularly able to see the other.

36The employer, in its written and oral submissions, proceeded in careful and intricate detail, examining many of the 200 or so paragraphs of particulars (reduced from approximately 250 after the union agreed to deletions) in individual detail and explaining why, in its view, a particular paragraph or cluster of paragraphs, even if accepted as true, did not make out the case claimed by the union.

37The union’s focus was far different. Rather than examining the components of the case via the individual particulars, the union began by commenting on the value and utility of no prima facie case motions. It acknowledged that the employer ought to be protected from having to expend valuable resources to litigate cases which, on their face, have no hope of success. But, on the other hand, it submitted, the proliferation of such motions creates the danger of constructing a vehicle which unfairly denies aggrieved employees the “day in court” promised by the collective bargaining regime. The Board should be careful and limit blocking access to justice to the exceptional cases that may warrant it.

38The union, rather than examining and responding to the employer’s attack on individual paragraphs of particulars, went on to enumerate what it described as a “roadmap of legal principles” that ought to apply in cases dealing with no prima facie case motions. It is unnecessary for me to review all of the ten legitimate principles the union pointed to as those to be considered or at least borne in mind, when determining a no prima facie case motion. The overwhelming thrust of these principles is to maximize the likelihood that matters are dealt with on their merits rather than being disposed of on the basis of overly technical considerations, all the while conceding that there is a place for such motions to avoid abuse of process and unnecessary litigation. But by the same token, neither is it necessary for me to examine individual paragraphs of particulars in order to dispose of the employer’s motion.

39There was a rare point of overlap in the parties’ submissions when it came to the question of the proper legal test to be applied in the case of a no prima facie case motion. Indeed, it would be fair to say that there was little, if any, daylight between the positions articulated on this point. This, of course, reflects the fact that while there have been marginal differences in varying arbitral articulations of the test, there is a substantial harmony on the point.

40Among the authorities pointed to by the employer was the following from OPSEU (Martin) and Ontario (Ministry of Transportation), 2022 CanLII 35398 (ON GSB) (Dissanayake), at para 6 [I have taken the liberty of correcting the obvious typographical error in the report]:

It is well established that for a no prima facie case motion to succeed, the moving party must establish that the facts asserted, if accepted as true, are [in]capable of establishing the elements necessary to substantiate the violations alleged. Re Couture, GSB 2008-0868 (Dissanayake). Bald allegations or conclusions are not accepted as true, unless supported by assertions of fact. Re Bharti, GSB 2013-2789 (Anderson). Also, the Board will not weigh the quality of the union’s proposed evidence Re Evangelista, GSB 2009-1091 (Harris). Credibility will not be assessed. However, alleged facts that are patently ridiculous, and not capable of belief or proof, will not be accepted as true. Re Solomon Smith, GSB 2017-0054 (Anderson).

41For its part the union relied on the following from the case of OPSEU (Martin) and Ontario (Ministry of Community and Social Services), 2015 CanLII 60449 (ON GSB), 2015 CarswellOnt 12447 (Anderson) at para 3 and following:

3. There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the "facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged": O.P.S.E.U. v. Ontario (Ministry of Government Services) 2011 CarswellOnt 7120 (Ont. Grievance S.B.), 2011 CanLII 100922, (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.

4. The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words "capable of supporting the violation" are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party's theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party's theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.

42I find the reference to the articulation of a legal theory in the latter award to be particularly apposite here. For the union has undoubtedly articulated, clearly and cogently, a legal theory for its case: the grievors, it is asserted, have continuously raised safety-related issues and, again it is asserted, have suffered reprisals in the form of bullying and harassment. Whether this theory can be vindicated by the evidence is an entirely other matter. The current question is whether the union’s particulars, accepted as true, are capable of supporting a conclusion consistent with the theory.

43In order to finally answer this question, a brief detour by way of a return to consideration of the three-year rule is required.

44It will be recalled that the particulars filed by the union initially included events dating as far back as 2015. In response to an employer objection, the union consented to the excising of all particulars dating back further than three years prior to the filing of the first grievance. That grievance, however, has now been dismissed as untimely.

45There is, however, no issue of timeliness with respect to the second and third grievances, filed in September 2021 in response to events that occurred in August 2021. However, if for the purposes of dealing with the no prima facie case motion, I were to restrict my focus to the particulars concerning the August events which gave rise to the grievances, I would be hard pressed to conclude that those particulars, standing alone, could be capable of supporting or establishing the claim of harassment advanced in the grievances. But the union’s theory of the case requires consideration of other prior events, an exercise it asserts will inform the proper characterization of the most immediate events which gave rise to the grievance. The universe of such prior events is shrinking. As will be recalled it originally dated back to 2015, until the union agreed to restrict it to events predating the filing of the first grievance. And now that I have dismissed the first grievance as untimely, I see no reason to continue to use it as a temporal marker for purposes of the application of the three-year rule. Indeed, the employer asserted that the three-year rule should only apply in respect of the first grievance. I do not understand why that is the case. The employer provided little elaboration on the point and the union did not directly respond to the assertion. But the union clearly framed its case as one in which a multiplicity of events (though now a shrinking universe) will need to be considered in order to arrive at the proper characterization of events.

46In that context, I am satisfied that, whether for the purposes of the instant no prima facie motion (or for the merits of the case, if it proceeds), the union is entitled to point to the particulars related to (or evidence of) relevant events dating back three years from the second and third grievances. I am also satisfied, given some of the submissions of the parties in respect of events described in paras. 130-143 of the particulars, that those events which date to August 2018 should also be included in the inquiry.

47This brings us full circle. As indicated much earlier in this award, the ultimate contest in this case may be which general characterization is more accurate. Will a consideration of a collection of events which may be quite benign in and of themselves lead to a conclusion that the grievors have been harassed or suffered reprisals for raising safety concerns or do these events merely highlight the conduct of difficult employees, unhappy with and wishing to usurp the legitimate exercise of managerial authority?

48Returning then to the test to apply in respect of the no prima facie case motion, the onus is on the employer, the moving party, to persuade me that the particulars filed and accepted as true and provable are not capable of rendering the conclusions urged by the union in its theory of the case. I am not persuaded. While I say nothing at this juncture about the likelihood of success on the merits of the union’s claim, I believe I am presented with particulars regarding a series of events that could theoretically be largely explained by either of the two competing theories here advanced. The ultimate determination may turn on an assessment of motives for the conduct of various participants. Motive is not a matter that leaps off the pages of particulars (even though the union has made some perhaps questionable attempts to do so) – and characterizing the motives of others in particulars can be a fraught exercise. That determination will likely have to ultimately be made on the basis of evidence, not particulars. But for the moment, I am not satisfied that the particulars as filed are incapable of forming the basis to support the union’s theory of the case.

49The employer’s no prima facie case motion is dismissed.

Final footnotes and conclusions

50In its initial written submissions, the employer raised objections, on a number of different grounds, to the propriety of individual paragraphs of the close to 250 paragraphs of union particulars. The vast majority of the particulars thus fell under the employer’s scrutiny in one or more ways. However, in the wake of the union’s subsequent concession (restricting the scope of its particulars to the three-year period preceding the first grievance) combined with the dismissal herein of that first grievance, the importance of these objections has diminished. Indeed, as events have unfolded it would appear that the overwhelming majority of the employer’s objections to specific paragraphs of particulars have become moot.

51This is not to say that the employer may not have legitimate residual concerns with respect to certain remining portions of the particulars and this award is without prejudice to the employer’s right to object to the admissibility of evidence related to those impugned particulars. I prefer, however, to deal with these issues as matters of evidence rather than by way of preliminary objections.

52I also feel compelled to comment on another aspect of the employer’s submissions. The three grievances before me are a group grievance which involved three grievors and two individual grievances filed on behalf of two of those three grievors. The principal allegations involve two different managers. In performing one aspect of its analysis, the employer performed what might be described as some “slicing and dicing” – analyzing particulars in relation to the specific grievors or managers involved in order to be able to assert, for example, that for “this grievor” there were no issues for “x period of time” or that allegations involving or naming managers other than the two principal ones were, on that basis alone, not worthy of serious consideration.

53I have not found this approach to be useful. Firstly, I refer again to the decision in the Barker case (previously cited). In response to the union’s assertion that there is no principle that limits a harassment grievance to the conduct of a single person, the arbitrator offered the following (at para. 54):

I agree with the Union that a harassment grievance is not limited to the conduct of a single person. As argued by the Union, the "Employer" is the entity that employs the grievor, not individual managers. Harassment can arise as a result of conduct on the part of two or more persons.

54I believe it follows that an analysis assessing the isolated actions of specific named individual managers in separate relation to the claims of each individual grievor is too narrow a focus. Similarly, a claim that particulars, to the extent that they purport to impugn the conduct of managers not explicitly named in the grievance form should, for that reason alone, be discounted or rejected out of hand is not appropriate. And, even on the employee end of this equation, I note that what was presented to me was a group grievance (three grievors) and individual grievances involving some of the same employees. Given the type of case this is and, consistent with the theory of the case advanced by the union, undue atomization of the particulars should be avoided for the purposes of a no prima facie case motion. I have preferred, for the purposes of that motion and notwithstanding the dismissal of the first grievance, to view the union’s case as a single unified entity.

55This brings me to a final comment. Subsequent to the completion of the hearing in this matter and during the course of the preparation of this award, I received an email from employer counsel (copied to her union counterpart). Counsel advised as follows:

…the parties have resolved all issues relating to Dan Berndt, one of the named grievors in the grievances before you. As such, to the extent the preliminary arguments raised by the Employer addressed Mr. Berndt’s allegations, those allegations no longer need to be addressed in any decision you will be issuing.

56As far as I am aware, there has been no confirmation or other communication from the union to me or to the Board in response to the employer’s advice. I presume and trust that the parties are ad idem with respect to the impact of the referred to resolution on the future conduct of these proceedings. If I am mistaken in that regard, I may be spoken to when hearing resumes on the dates which have already been scheduled by the Board.

57Having regard to all of the foregoing, the first grievance (dated July 16, 2020) is hereby dismissed as is the employer’s no prima facie case motion.