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 Senior Counsel

HEARING

October 31 and November 15, 2023

Decision

1This is a preliminary decision dealing with an objection raised by the Employer with respect to the scope of the evidence that should be admitted in this matter. The Union, on behalf of the Grievor, filed five separate grievances. Four of the five are before me. The remaining grievance was resolved by way of a settlement dated March 22, 2022. The settlement contained a provision allowing the Grievor to speak to the settled grievance in any subsequent arbitration for the purposes of background. The Employer objected to the scope of the Union’s proposed background evidence, arguing that it exceeded what was permitted by the settlement. A hearing was held on November 15, 2023, to address this preliminary matter.

2Upon review of the language of the settlement, the particulars put forward by the Union and the submissions of the parties, I am of the view that the Grievor may refer to the facts of the earlier grievance. Considering that the settlement is without admission of liability or wrongdoing, I will decline to make findings of fact pertaining to the settled grievance. The Union may refer to their particulars and the investigation reports as they pertain to the facts of the settled grievance insofar as they are contextually necessary for a proper understanding of the active grievances. The Union may not seek to establish a course of conduct that reaches back to the allegations at issue in the settled grievance. The Grievor may testify to his view that incidents in the current grievances reference earlier incidents, but the Union will have to establish that the facts of the four grievances before me meet the definition of harassment in order to be successful on the merits.

3The Employer may provide written particulars setting out the version of events as they believe them to have happened, including any dispute they may have with the findings of the investigation reports. The Employer may also call evidence rebutting the Grievor’s allegations that the incidents before me reference incidents from the settled grievance.

The Grievances

4The Union filed the settled grievance on November 17, 2020 (“the Settled Grievance”). This grievance alleged that the Grievor’s privacy rights and rights under the Ontario Human Rights Code had been violated when management disclosed personal information related to is religious beliefs, referred to him as “the bearded guy” and made harassing comments and phone calls to the Grievor. The matter was settled on March 22, 2022.

5The settlement contained the following key provisions:

3. In consideration of the above, the Grievor and Union agree to release and forever discharge the Employer, its servants, agents, directors of and from all actions, differences, causes of actions, claims and demands regarding the facts raised in the Grievance which he has or may have against the Employer, including but not limited to, all claims arising under the Employer’s policies and directives, the Workplace Discrimination and Harassment Policy and Respectful Workplace Policy, the OPSEU Collective Agreement, the Public Service of Ontario Act, 2006, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Employment Standards Act, 2000, the Labour Relations Act and at common law. The Grievor and Union further agree that any facts related to this Grievance will not form the basis of any future proceeding against the Employer, its agents, and directors and this Memorandum of Settlement may be raised as a complete bar to any such application, claim, complaint or action.

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.

5. Nothing in this settlement constitutes an admission of liability or wrongdoing by any party.

6The four remaining grievances before me had been filed at the time the settlement was reached. The four grievances are as follows.

7The first grievance, 2021-0135-0011, dated April 22, 2021, alleges that the Employer has breached articles COR 9, 2, and 9 of the collective agreement, and any other relevant legislation. The grievance states that the Grievor received an email from a sergeant that stated, “Going forward and for as long as you have this accommodation, please do not accept shifts which you know involve working in Central Control.”

8The second grievance, 2021-0135-0019, dated June 30, 2021, alleges a breach of 2, 3, 9 and COR 10 and sets out two specific incidents. It is not necessary to review them for the purposes of this motion, except to note that the allegations set out on in the grievance speak to two incidents in which management allegedly alluded to events forming part of the settled grievance.

9I note that the Employer has reserved its right to object to the second of the two allegations in this grievance on the basis that the Grievor does not have standing to advance the allegation. The Employer’s argument will be dealt with in due course, to the extent necessary.

10The third grievance, 2021-0135-0037, dated November 17, 2021, alleges that the Grievor arrived at work and was not assigned to his accommodated post. It further alleges that he was advised by a manager to go find his own post and to tell the employee assigned to that post that he would be working there instead. The grievance refers to the conduct as ongoing harassment, targeting and bullying.

11The fourth and final grievance, 2021-0135-0042, dated November 25, 2021, alleges a violation of articles 2, 3, 9, 21 and 22, the Health and Safety and WDHP Policy by the Employer refusing to meet with the Grievor for a Stage 2 grievance meeting.

Positions of the Parties

12The Employer urged that I uphold the well-established principle of the sanctity of settlements set out in the case law. They submitted that finality should be the consideration provided to them by the terms of settlement. In support of their submission they referred me to the following cases: OPSEU (Pitirri) and Ontario (Ministry of Correctional Services), GSB No. 1992-1685 (Kaplan); OPSEU (Fletcher) v. Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2004-0083 (Leighton); OPSEU (Hawkes) v. Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2007-2388 (Leighton); OPSEU (Rolfe) v. Ontario (Ministry of Community and Social Services), GSB No. 2003-3512 (Briggs); OPSEU (Brown) v. Ontario (Labour), 2012 CanLII 17224 (ON GSB) (Dissanayake).

13The Employer acknowledged that the parties agreed to the carve-out in paragraph four of the minutes of settlement, but argued that the words “for background purposes only” should lead me to limit the Grievor’s evidence to a broad statement containing the following elements: that the Grievor felt discriminated against and harassed by two specific managers, that he filed a complaint under the Respectful Workplace Policy, that he filed a grievance, that he was a complainant in an investigation, that he participated in the investigation and that the investigation report was issued in September of 2021, that the report found one of four allegations to be substantiated against one of the respondent managers and that the respondent manager was disciplined for the substantiated allegation, that no allegations were substantiated against the second respondent, and that the grievance was scheduled for arbitration and the parties reached an agreement on that date.

14The Employer submitted that were I to allow evidence on the factual underpinnings of the settled grievance, it would be impossible to provide a remedy for the four active grievances, were one to be warranted, that didn’t also indirectly remedy the settled grievance.

15The Employer also provided several authorities setting out the basic principles of interpretation which should be applied to the settlement: Brown & Beatty, Canadian Labour Arbitration, 5th Edition, § 4:20; OPSEU (Baxter et al) v. Ontario (Children, Community and Social Services), 2019 CanLII 126460 (ON GSB) (Carrier); OPSEU (Rockburn) v. Ontario (Liquor Control Board of Ontario), 2022 CanLII 31340 (ON GSB) (Gee); AMAPCEO (Association) v. Ontario (Treasury Board Secretariat), 2015 CanLII 90154 (ON GSB) (Misra); Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633; Ontario Power Generation and Society of Energy Professionals, 2012 CanLII 81972 (ON LA) (Surdykowski).

16The Employer pointed to the fundamental rule of interpretation as adopted in Ontario Power Generation, supra, among others. The Union noted their agreement with the principles set out by the Employer. In Ontario Power Generation, arbitrator Surdykowski stated as follows:

The fundamental rule of Collective Agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. Both the words that are there and the words that are not there are significant.

17The Union submitted that they should be permitted to call evidence regarding the facts underlying the settled grievance in order to establish that the four active grievances form part of a course of conduct that constitutes harassment. They relied on the following cases which, broadly, find that the sanctity of settlements can be displaced in specific circumstances. The Unions argues that the language of paragraph 4 constitutes just such a circumstance: Ontario Public Service Employees Union (Cross et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 60421 (ON GSB); OPSEU and Ontario (Ministry of Health and Long-Term Care) (Dale), Re, 2002 CarswellOnt 10149; Ontario Public Service Employees Union (Ryall) v Ontario (Ministry of the Solicitor General), 2022 CanLII 106478 (ON GSB) (Lynk); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 30731 (ON GSB) (Leighton); Toronto Police Services Board v. Toronto Police Services, 2006 CanLII 50481 (ON LA); Ontario Public Service Employees Union (Alleyne) v Ontario (Solicitor General), 2022 CanLII 80258 (ON GSB); Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2010 CanLII 28607 (ON GSB).

18The Union noted in their submissions that some of the allegations in the grievances before me include comments made by management that reference incidents from the settled grievance. The Union submitted that the language “for background purposes only” was intended to describe the purpose for which the facts could be put forward and should not be interpreted so as to limit the quantity or quality of the evidence the Grievor can adduce.

19Union argued that the fact that the paragraph went on to limit the availability of remedies flowing from those facts provided the backstop that supported a purposive interpretation.

Decision

20Given that the language agreed to by the parties creates a variation from the basic principle of sanctity of settlements, the issue before me is ultimately one of interpretation. Based on the plain language of the settlement entered into between the parties, I find that the parties created a carve-out that intended to allow the Grievor to speak to the facts underlying the grievance. However, the carve-out set out at paragraph four of the settlement does not go so far as to suggest that the Union is entitled to call evidence to establish the facts that were at issue in settled grievance. Rather, the words “background only”, the release language at paragraph 3 and the acknowledgement that the settlement was without admission or liability of wrongdoing, lead me to conclude that the parties intended to limit the relitigation of the underlying facts in a subsequent arbitration. I therefore do not believe it open to me to make findings of fact with respect to the earlier facts.

21The Parties to the earlier settlement were aware of the outstanding grievances at the time they entered into it. Had it been their intention to allow the Union to call evidence and invite findings of fact they would have needed to include more explicit language. I do not find that the terms “speak to” or “for background purposes only”, in combination with the release and the clause denying wrongdoing, suggest that a full relitigation, merely without remedy, was intended.

22Similarly, it would be inconsistent with the four corners of the settlement to arrive at a finding that there existed a course of conduct that reached back to the events of the settled grievance. Because I find that I cannot make findings of fact with respect to the settled incidents, the earlier incidents cannot be factually established so as to form part of a course of conduct. The Union will need to establish that the facts relating to the four active grievances meet the definition of harassment if they are to be successful.

23That said, I accept the Union’s argument that the words “for background only” in the settlement does not prescribe the scope of what the Grievor may speak to in the manner proposed by the Employer. I accept that the words “background only” were meant to limit the purpose to which the evidence was put.

24In order to simplify the proceedings and limit further procedural disputes, I will accept and review the Union’s particulars. The Employer may provide corresponding particulars with respect to the events arising from the settled grievance. I will also review and accept the investigation report.

25The Grievor may, in his oral evidence, speak to the settled grievance for the purpose of context and to assist me in understanding the evidence relating to the four active grievances. The parties may point to the particulars, the investigation report or may adduce evidence explaining how the allegations in the four grievances before me allude to or make reference to events addressed by the settled grievance. Specifically, I understand from the Union’s submissions that they believe the events of the second grievance to reference incidents arising from the settled grievance. The parties may call evidence necessary to explain the reference. Additionally, the parties may rely on their particulars and the investigation report in seeking to establish how and why the impugned conduct raised in the active grievances was vexatious or retaliatory.

26A final issue was raised regarding the extent to which the complaint filed under the Respectful Workplace Policy was settled by the previous grievance. The investigation took place over the course of approximately one year. It is clear that the initial allegations correspond squarely with those of settled grievance and cannot be revisited. It is somewhat less clear whether the investigation touches on incidents arising from the later grievances. To the extent that the Union takes the position that aspects of the investigation and reports relate to facts in the active grievances, they may raise them. The Employer may object to the extent that they believe they arise from the settled grievance, and I will make specific rulings in due course.