GSB# 2017-0130; 2017-0336; 2017-0337; 2017-0347; 2017-0351; 2017-0352; 2017-0354; 2017-0355; 2017-0360; 2017-0361; 2017-0362; 2017-0365; 2017-0366; 2017-0367; 2017-0388; 2017-0389; 2017-0390; 2017-0393; 2017-0394; 2017-0417; 2017-0659

UNION# 2017-5112-0059; 2017-5112-0072; 2017-5112-0073; 2017-5112-0075; 2017-5112-0079; 2017-5112-0080; 2017-5112-0082; 2017-5112-0083; 2017-5112-0088; 2017-5112-0089; 2017-5112-0090; 2017-5112-0093; 2017-5112-0094;

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sabada et al)

Union

• and -

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

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Labour Practice Group Counsel

HEARING

September 3, 2024

Decision

1In Ontario Public Service Employees Union (Sabada et al) v. Ontario (Solicitor General), 2023 CanLII 17144 (ON GSB) (Gee) the Board determined the Employer failed to comply with the procedural requirements of a Memorandum of Settlement entered into by the parties on January 10, 2012 in settlement of an unrelated grievance (“MOS”). The matter of remedy was remitted back to the parties. The parties were unable to reach an agreement.

2The grievors were suspended during the period of an investigation into six incidents of alleged unreported use of force, excessive use of force, and alleged failure to report/code of silence violations. The grievors were paid their regular weekly wage during the period of their suspensions. At the end of the investigation 28 of the 30 grievors were disciplined.

3The Union argues that, during the period of suspension, the grievors lost out on the opportunity to earn overtime pay, premium payments and statutory pay and seeks an order that the Employer pay each grievor the amount lost. I will refer to these amounts as “loss of earnings.” The Union also asserts some of the grievors are entitled to an award of damages in respect of losses suffered. These claims include items such as cancelled vacations, lost tuition, the cost of gas and parking, and distress and emotional harm. I will refer to these amounts as “general damages claimed by the grievors.” Finally, the Union asserts on its own behalf and on behalf of the grievors that the Board should order the Employer to pay damages for the Employer having violated the MOS. I will refer to these damages as “violation damages.”

4The Employer asserts the Board does not have jurisdiction to award the damages sought by the Union. The parties thus agreed to seek a decision from the Board as to whether the Board has jurisdiction to award the loss of earnings, general damages and violation damages sought by the Union.

5As stated in Re Courteney, 912/88 (Wilson) cited in Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Howe/Dalton/Loach), Re, 1991 CanLII 13405 (ON GSB) at page 352: “It is the necessity of a particular order to remedy a grievance which makes it a remedial order within the Board’s power.” Any remedy ordered must relate to a harm done.

6For the Union’s claim for loss of earnings damages to be within my jurisdiction, it must be the case that, absent the violation, the grievors would have earned the amounts in issue. It must be the case that, absent the violation, the 30 grievors would have remained actively employed.

7Having regard to the evidence heard, I find the severity of the allegations in issue in this matter meant the Employer would not have allowed the grievors to continue to work unless they could be placed in a location with no direct involvement with inmates. I further find that positions with no direct involvement with inmates are few in number and filled by Correctional Officers who require accommodation. As such, I find it improbable that, had the Employer followed the process set out in the MOS, the grievors would have continued to work. Rather, it is probable they would have been suspended.

8As argued by the Employer, the Board determined in OPSEU (Sindall/ Chmurzynski) and Ontario (Ministry of Community and Correctional Services), 2009 CanLII 26591 (ON GSB) (Petryshen) that the overtime protocols that govern the assignment of overtime opportunities are based on an active employment relationship. An employee on suspension does not have an active employment relationship and thus is not entitled to the opportunity to work overtime. Further, the MOS provides: “In the event that a regular employee is suspended with pay, they will continue to receive their regular weekly wage.” The MOS, which directly speaks to suspensions pending investigation, does not require the payment of overtime pay, premium pay or statutory pay.

9Having found it to be probable that, had the Employer followed the process in the MOS, the grievors would have been suspended and not entitled, pursuant to Sindall/Chmurzynski, supra, and the terms of the MOS, to overtime pay, premium pay or statutory pay, I find that such relief is not required to remedy the grievance and is thus not within my powers to award.

10The Union also seeks general damages on behalf of the grievors. The damages sought vary by member. Each grievor has filed a statement setting out the damages claimed. As indicated above, the claims include items such as the cost of cancelled vacations, lost tuition, the cost of gas and parking, and damages for distress and emotional harm suffered.

11As above, had the process in the MOS been followed, the grievors would have been suspended and suffered the same losses in respect of cancelled vacations, lost tuition, the cost of gas and parking, and distress and emotional harm for which they claim damages. These losses do not arise out of the Employer’s failure to comply with the procedural requirements of the MOS.

12In respect of the violation damages sought, the Union stresses the sanctity of settlements and the need for deterrence and argues that the Board has broad remedial jurisdiction. The Employer argues there are no damages as, had the process in the MOS been followed, the identical result would have obtained. The Employer disputes there is a need for deterrence and argues an award of damages would be punitive.

13It would be within my jurisdiction to award violation damages in response to the Employer’s failure to abide by the terms of the MOS. Settlement agreements are, as the Union argues, binding agreements between the parties. A failure to abide by their terms undermines the parties’ ability to resolve disputes. It is important that parties be deterred from violating their terms. Not every violation of a settlement agreement, however, attracts an award of damages. Consideration is given to the nature of the violation, the harm done and whether there is a need for deterrence.

14It is my determination that, on the facts of this case, no award of violation damages to either the grievors or the Union is appropriate. The Employer’s violation was inadvertent and there is no allegation of bad faith. This is the only violation of the MOS that I am aware of during the 12 years since it was signed. I see no need at this juncture to award violation damages to the grievors or the Union in order to deter the Employer from future violations.

15For the foregoing reasons, I would not award any damages in this case.

16I remain seized should there be any further issues in need of determination in these matters.