GSB# 2013-1169; 2013-1170; 2016-0302; 2016-2388; 2018-0102; 2018-0615

UNION# 2013-0424-0002; 2013-0424-0003; 2016-0424-0001;

2017-0424-0001; 2018-0424-0008; 2018-0424-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranger)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Craig Flood Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 13, 2024

Decision

1This is an interim, evidentiary ruling, which follows upon an earlier ruling in a decision dated 25 October 2023. Paragraph three of that decision sets out the procedure being followed in this case and it reads as follows:

Accordingly, the instant matters will proceed to their conclusion as in the normal course, subject to the following. Early on in these proceedings the parties addressed the procedural niceties that arise because, in some of the instant matters, the Union bears the onus and in others the Employer bears the onus. The procedure settled upon was that the Union would proceed first and call its evidence on those matters where it bears the onus. The Employer would then call its evidence in response to that of the Union and call its evidence on the disciplinary matters where it bears the onus. These proceedings are complete to this stage. Next, the Union may call its evidence in reply on those matters where it bears the onus. Its reply evidence, as is the norm, is restricted to issues arising out of the Employer’s case on those matters and is not to supplement the evidence it called in the first instance; that is, the Union is not to split its case. At that juncture the Union may also call any evidence in response to the Employer’s case on the disciplinary matters. Following the completion of that stage of the evidence, the Employer may call evidence in reply to the Union’s case on the disciplinary matters. Again, this is subject to the normal restrictions on the scope of reply evidence. Absent any proper need for rebuttal or sur-rebuttal evidence, these matters will then proceed to final submissions on the issues raised by all of the evidence.

2At this point, the union proposes to call three witnesses which it submitted were in reply on those matters where it bears the onus. However, many of the submissions made by the parties revolved around an incident that took place at and around the public counter on 24 January 2018. Briefly put, the union's view is that as the grievor was dealing with a client/offender at the counter other staff became involved thereby interfering with his discharge of his duties. In the result, the grievor received a five-day suspension, the grievance against which is before me in these proceedings.

3The employer objects to the calling of the three witnesses. In order to conveniently frame the context of the objection the union kindly summarized the evidence that the three witnesses were expected to provide. The first proposed witness is a member of the support staff in the office. She is expected to give evidence regarding the grievor's interactions and demeanour in the office. The second proposed witness is a member of the criminal defence bar who has many years of experience in dealing with the Ottawa Centre Probation and Parole office. She is expected to give evidence regarding the grievor's performance and his interactions with client/offenders, and in particular with her clients. The third proposed witness is a client/offender. This person is known to the grievor as a client/offender both in the Ottawa Centre Probation and Parole office and in the grievor's previous position at the Ottawa Carlton Detention Centre. He is expected to give evidence of his interactions with the grievor. Seemingly, he is also able to give evidence with respect to the grievance before me relating to the issue of correctional officers wearing a specific T-shirt while on duty at OCDC. I am told that none of these witnesses were present at the time and place of the 24 January 2018 incident.

4The employer submitted that there is no value to the evidence of these witnesses because they were not present at the 24 January 2018 incident. With respect to the first witness the employer submitted that she did not commence work in the Office until 11 June 2023. Accordingly, any of her observations with respect to either the grievor's general demeanour in the office or his relationship with Janine Sarrazan are so late in time as to be of no assistance. The employer submitted that the proposed evidence is in the nature of similar-fact evidence that does not meet that test for admissibility. It submitted that the evidence can only go to a propensity for the grievor, and/or Janine Sarrazan, to act in a particular way or as evidence of their character, which is neither relevant nor admissible with respect to the appropriateness of the five-day suspension.

5The employer submitted that the same concerns arise with respect to the other two proposed witnesses. Further, it has specific concerns related to how the union may have contacted the client/offender, what details of these matters have been disclosed to him, as well as questions with respect to the greivor's relationship with him. As to the member of the Criminal Defence bar, the employer has concerns with the relationship, if any, she has with the grievor and what details of the instant matters have been disclosed to her.

6The employer reiterated its submission that these proposed witnesses we're not present and did not see the incident of 24 January 2018 so they do not have any direct knowledge relevant to the incident.

7The union submitted that the employer, in its evidence, went far beyond any temporal restriction to the 24 January 2018 incident in its examination-in-chief of the greivor's coworkers as part of its case in response to the union's evidence relating to the allegations of harassment and discrimination of the grievor. It submitted that the employer ventured far afield from restricting its evidence to the facts of that incident by including general evidence of the grievor's demeanor, character and interactions with his coworkers. Further, the union submitted that the evidence elucidated from those witnesses included such matters that long post-dated the date of the incident. The union also submitted that employer witnesses were questioned about their experience of the general office culture, which were not temporally restricted in any fashion.

8The union noted that it had objected at the time to these lines of questioning. For example, the union reviewed the evidence of Stephanie Tessier, who testified on 6 September 2022. In her examination-in-chief she was asked about the office environment. She replied that it was very toxic. The union objected to the line of questioning. In my question to the employer as to what fact-in-issue this area of evidence related to, the employer submitted that two previous witnesses had testified as to what they had seen on 24 January 2018 as well as what they had experienced generally in the office. It was the employer's submission that such general evidence would inform me and assist in my determination of what most likely occurred on 24 January 2018. The employer submitted that the question of what actually happened on that day, and more generally with respect to what others have generally experienced, was an entirely legitimate course of questioning, which had been asked the previous witnesses and might be asked of subsequent witnesses of this incident. The union reviewed the evidence of other employer witnesses to the same effect, such as that of Ms. Takasaki on 7 March 2023, who was asked whether there was a difference in the office environment when the grievor was present and when he was not present. I allowed the question to be asked and answered.

9The union submitted that having regard to what had been admitted to date, the employer had opened the door to this type of evidence and, accordingly, the proposed evidence is proper reply evidence.

10In reply, the employer submitted that, other than Andrea Fitzgerald, who had signed the disciplinary letter, its witnesses both saw the event and were asked supplementary questions about the office environment and their experiences with the grievor and Ms. Sarrazin. That is, they were called to speak to the 24 January 2018 event and gave this supplementary evidence. The employer noted that to date there have been sixty-six days of hearing held over an eleven year period. The discipline at issue was imposed six-and-one-half years ago. It said that it was entitled to an expeditious hearing, quite apart from the irrelevancy of the proposed evidence.

11This case is, in many ways, unique. The grievor is a correctional officer working in the probation and parole office as a result of a previous Decision of Vice-Chair Leighton in proceedings between the union and the employer with respect to this grievor and also dealing with allegations of discrimination and harassment.

12Relevance is the hallmark of admissibility. In my view, allegations of harassment and discrimination are complex and must be given every consideration. Various distinct, and seemingly innocuous, events are like individual beads on a string forming a necklace. It is only by giving voice to each event that general patterns are discernable in order to establish whether the individual events reveal a pattern that does or does not constitute unlawful discrimination and harassment. In earlier rulings I have underscored that the evidence that fashions the narrative arc of what has occurred, and to some extent is occurring, in the grievor's workplace, best serves the enquiry into issues of discrimination and harassment by taking a liberal approach to admissibility. It is in the fullness of time, after final argument, that the appropriate weight may be given to the evidence.

13Here, questions were allowed and answers were given with respect to the general tone and environment in the office, as well as various interactions between the grievor and various co-workers. In this matter no one incident or event is determinative of the issues of discrimination and harassment. A reliable and reasonable determination of these issues requires reflection on a panoply of interactions, and where evidence has been led of a party's contributions to or against discrimination and harassment in the workplace, the party opposite has the right to respond. In this case, the calling of the proposed witnesses is proper reply evidence. The right to know and respond is paramount to natural justice being done and being seen to be done.

14Accordingly, the employer's motion to disallow the calling of the evidence through the three proposed witnesses is dismissed; the weight to be attached to their evidence may be addressed by the parties in final argument.