GSB# 2019-2429; 2019-2930
UNION# 2019-5112-0272; 2020-5112-0026
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Seat)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Kathleen G. O'Neil
Arbitrator
FOR THE UNION
Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel
FOR THE EMPLOYER
Sean White Treasury Board Secretariat Legal Services Branch Counsel
HEARING
September 19, 2025
Decision
1This decision deals with the employer’s motion requesting that one of two grievances filed by Dr. Rajko Seat, a psychologist working at Toronto South Detention Centre [TSDC], be dismissed on a preliminary basis on the basis that it cannot possibly succeed, otherwise known as a no prima facie case motion. The grievance dated November 25, 2019, which is the focus of the motion, alleges that the employer failed to ensure a harassment-free environment. A second grievance alleging breach of confidentiality will proceed regardless of the outcome of this motion.
2For the purposes of any motion to dismiss for want of a prima facie case, the grievor’s assertions of fact are assumed to be true and provable, although evidence at a hearing might lead to different findings of fact. The assertions of fact in this case are found in the extensive particulars filed by the union, which I will summarize briefly. The grievor started working at TSDC in early 2014 as a result of the closure of Thistletown Regional Centre. Pursuant to mistaken communication from the employer, the grievor was initially continued in his prior classification as a Psychologist 2. However, the Employer and the Union had made agreements concerning cross Ministry transfers, which provided that the position at TSDC would be a Psychologist 1. When the Employer advised the grievor that the level 2 designation was an error and his classification and salary were reduced to level 1, he grieved twice, in 2015 and 2017, both of which resulted in dismissals at the Grievance Settlement Board [GSB]. These decisions are reported as Ontario Public Service Employees Union (Seat) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 18726 (ON GSB) and Ontario Public Service Employees Union (Seat) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 85295 (ON GSB).
3The particulars then detail a series of conversations and contacts starting in January 2019 and continuing into 2022 with various representatives of the employer, including a Superintendent and a Deputy Superintendent, Human Relations Advisors, the Regional Office, the Workplace Discrimination and Harassment [WDHP] office, Ontario Shared Services [OSS], the Ministry of Labour and the Secretary of Cabinet. In these contacts, the grievor sought, but did not obtain, answers he was seeking about the alleged irregularity regarding his assignment to the TSDC and what he sees as the violation of relevant policies, including an obligation to advise staff about changes in pay in his situation. In several of these instances, he received no reply, and when there was a reply, the employer took the position that the matter had been addressed at the GSB.
4In October 2019, during proceedings related to a duty of fair representation complaint at the Ontario Labour Relations Board [OLRB], the Employer referred to the grievor as a "vexatious litigant", which the grievor viewed as maliciously motivated and an attempt to avoid taking responsibility for their treatment of him. The OLRB did not make a finding that the grievor was a vexatious litigant.
5Further, in early 2020, it is alleged that the grievor’s manager delayed acting on his request to review his personnel file for over 10 weeks, and then declined to sit and review it with him, but assigned a correctional Sergeant to do so instead. On April 12, 2020, after asking the manager about his exemption from relevant policies, he was directed to cease and desist contacting Human Resources concerning the matter. The grievor found this intimidating and harassing.
6On May 4, 2021 the grievor raised his concerns with the facility Superintendent asking to have a new manager, as his then current one refused to respond to his emails and this was affecting the dynamic of his work. The Superintendent decided that he should report to the Deputy Superintendent.
7On May 10, 2021 a WDHP Manager, having found that Dr. Seat’s complaint was outside of its mandate, stated that the Ministry nonetheless had an obligation to explore the issue which had been addressed to the WDHP program, albeit outside the program. On the same date, the Deputy Superintendent asked for evidence of his claims, while advising that there would be no discussion of his past complaints and grievances pertaining to his job classification as the matter was settled. The particulars indicate that this did not speak to the grievor's real concern about why he was exempted from the application of a policy which applied to him.
Collective Agreement Provisions
8The main collective agreement provision relevant here is article 3.3, which reads as follows:
3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.
The Parties’ Positions
9The employer asks that the harassment grievance be dismissed on the basis that there is no reasonable or objective basis on which the particulars could result in a finding in the grievor’s favour. In the employer’s view, the case amounts to a refusal on the grievor’s part to accept the multiple communications from the employer’s representatives at various levels that the matter had already been dealt with, rather than a viable case of harassment.
10Counsel relies on case law, such as the Solomon Smith decision, cited in the Appendix, to the effect that it is not a question of whether the grievor believes there was harassment, but whether a reasonable person informed of all the facts, including all the previous litigation surrounding his reclassification, would conclude that there was a viable case of objectively provable harassment.
11The employer is of the view that, even if one accepts, for the purposes of this motion, that the facts alleged are true and provable, there is nothing pleaded that is abusive or demeaning or that objectively rises to the level of harassment. Employer counsel submits that, in the interests of judicial economy and acknowledging that this matter has been dealt with long ago, the matter should not be allowed to proceed further. As well, counsel notes that many of the pleaded facts occurred after the grievance was filed, and therefore would be inadmissible, in the employer’s view.
12The employer maintains that it is not harassment for the employer to insist on the finality of decisions of the GSB and the OLRB, or to say that they would not engage further on a matter already dealt with. In the employer’s view, it is the grievor who was badgering other staff about receiving no answers on matters already addressed. The employer invites a finding that not providing the grievor with policies, restricting answers and directing him to stop his inquiries were legitimate workplace direction rather than harassment. It is the employer’s view that no weighing of the evidence is necessary to reach such a conclusion.
13Concerning the allegation that referring to the grievor as a vexatious litigant was part of the employer’s alleged harassment, employer counsel submits that a position taken in a legal proceeding is covered by absolute privilege, which prohibits legal proceedings based on statements made by counsel.
14By contrast, union counsel asks that the matter be allowed to proceed. Noting that the grievance alleges personal harassment, rather than harassment based on grounds protected by the Human Rights Code, it is the union’s position that the facts meet the definition in the collective agreement, which deals with vexatious comment or conduct, known or reasonably known to be unwelcome. In the union’s view, the particulars involve a number of actions by management representatives that are unresponsive to the grievor’s questions as to why certain policies did not apply to him. His queries went without response or were met with responses to a different issue. The employer kept falling back on their belief that the matter had been disposed of when it had not been, and refused to give him the answers he was seeking.
15The employer representatives should reasonably have known that treating him in this way was unwelcome, and continuing to do so ought to be found to amount to personal harassment, in the union’s view.
16The union emphasizes that the emphasis on a motion such as this is on the viability of the union’s theory of the case, not on the strength of the employer’s potential defence. The employer relies on the fact that, in its view, the matter had been addressed, as justification for its actions. Union counsel emphasizes that is their defence, which is not the focus of the assessment of whether there is a prima facie claim.
17The union acknowledges that the grievor’s classification issue was taken to the GSB, which found that the change was appropriate given the agreements made by the parties in response to institutional closures. However, the written record shows that, by April 2019, the grievor was not seeking to further challenge his reclassification. Rather, he was asking about his salary protection rights, under the collective agreement and the Pay on Assignment Policy, and was repeatedly treated in an unresponsive way. A course of conduct of being repeatedly ignored should reasonably be known to be offensive and unwelcome, and therefore covered by the collective agreement’s definition of harassment, in the union’s view.
18Union counsel relies on the oft-cited findings in Blouin Drywall and United Brotherhood of Carpenters and Joiners, cited in the appendix, to the effect that arbitration cases should be addressed on the merits, and not dismissed for technicalities. In this light, it is the union’s view that the grievance should not be dismissed unless the finding is that its case is so weak as to warrant dismissal at this early stage of proceedings. This is not the appropriate time to weigh the evidence, credibility or the strength of the employer’s case.
19In reply, employer counsel submits that it is important to bring the considerations back to article 3.3, and whether it could reasonably be seen as a vexatious course of action for the employer to tell the grievor the matter was closed as the GSB had decided the case. As to the union’s submission concerning salary protection, the employer is of the view that if salary protection was truly the real issue they would be grieving under the collective agreement, but the GSB had already found that a grievance alleging a violation of Article 7.4.1 of the collective agreement, relating to salary protection should be dismissed as res judicata, a matter already decided.
Considerations and Conclusions
20In coming to the decision which follows, I have carefully considered all the jurisprudence referred to by counsel, cited in the appendix, even if not explicitly referred to. There is no dispute about the test on a motion to dismiss for want of a prima facie case; as in most cases, it is the application of the test that is at the core of the dispute. In order to succeed on this motion, the employer 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. This is similar to the test used in civil litigation in the courts, to the effect that actions should not be struck out unless it is “plain and obvious” that they cannot succeed. See: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
21Having considered everything before me at this early stage of proceedings, it is my view that the grievance should be allowed to proceed, with the exception of the allegations concerning remarks made by counsel at the OLRB. No matter how strong the employer’s defense may turn out to be, it is my view that a course of conduct which, as alleged, and assumed to be true for the purpose of this motion, repeatedly deals with the grievor’s inquiries with a set answer, unresponsive to the underlying question, or ignores the inquiries altogether, could make out a viable case of workplace harassment, especially as it is clear from the particulars that the grievor had made it clear that he considered the pattern of response from the employer insufficient. I am of the view that the facts asserted above, including the grievor’s repeated follow-up, are capable of supporting a finding that the employer’s course of conduct could reasonably have been seen as unwelcome and vexatious. I accept the submission of union counsel that the question of whether the directions to the grievor were legitimate managerial actions, as argued by the employer, may be central to the case, but that it is central to the employer’s defence, not the basis of the union’s case. It is the latter that must be evaluated on this motion.
22As to the remarks made by employer counsel at the OLRB, I accept the employer’s argument that they are covered by privilege as discussed in the GSB’s Liantzakis decision, cited in the Appendix.
23For the above-noted reasons, the employer’s motion is dismissed, and the grievances may proceed. Both grievances will proceed on the already confirmed dates of January 20 and June 22, 2026. If additional dates will likely be required to complete the matter, counsel are directed to advise the Registrar as soon as possible.
Dated at Toronto, Ontario this 26th day of November 2025.
APPENDIX “A”
Authorities cited by the parties
Cited by the employer:
Ontario Public Service Employees Union (Seat) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 18726 (ON GSB) [Briggs]
Ontario Public Service Employees Union (Seat) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 85295 (ON GSB) [Briggs]
Ontario Public Service Employees Union (Martin et al) v Ontario (Ministry of Community and Social Services), 2015 CanLII 60449 (ON GSB) [Anderson]
Ontario Public Service Employees Union (Solomon Smith et al) v. Ontario (Ministry of Children, Community and Social Services), GSB No 2017-0054, December 6, 2019, 2019, CanLII 126475 (ON GSB), https://canlii.ca/t/j4hfk [Anderson]
Ontario Public Service Employees Union (Brydges et al) v. Ontario (Ministry of Transportation), GSB No 2012-1012, November 14, 2014 [Dissanayake]
Rajko Seat v Ontario Public Service Employees Union, 2019 CanLII 120179 (ON LRB) [Turtle]
Rajko Seat v Ontario Public Service Employees Union, 2020 CanLII 2065 (ON LRB) [Turtle]
Ontario Public Service Employees Union (Liantzakis) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 70084 (ON GSB) [Tims]
Cited by the union:
Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) [Anderson], https://canlii.ca/t/glbgv
Association of Management, Administrative and Professional Crown Employees of Ontario (McCallum) v Ontario (Attorney General), 2021 CanLII 26597 (ON GSB) [Anderson], https://canlii.ca/t/jf494
Ontario Public Service Employees Union (Taylor) v Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2023 CanLII 127724 (ON GSB) [O’Neil], https://canlii.ca/t/k254s
Ontario Public Service Employees Union (Greenbank et al.) v. Ontario (Ministry of Finance), 2005 CanLII 55198 (ON GSB) [Mikus], https://canlii.ca/t/1pk8t
Ontario Public Service Employees Union (Pereira et al.) v Ontario (Community Safety and Correctional Services), 2016 CanLII 48159 (ON GSB) [Harris], https://canlii.ca/t/gsq7x
Ontario Public Service Employees Union (Pinazza et al.) v. Ontario (Ministry of Community Safety and Correctional Services), 2004 CanLII 55337 (ON GSB) [Herlich], https://canlii.ca/t/1pkdg
Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA)