GSB# 2016-2892

UNION# 2017-0234-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Akintunde)

Union

• and -

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

Employer

BEFORE

Michael V. Watters

Arbitrator

FOR THE UNION

Ed Holmes Tim Hannigan (former Counsel) Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Daria Vodova (former Counsel) Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 9, December 12, 2019; November 14 & 20, 2024; September 24, 2025 (Final Written Submissions)

Decision

1The instant grievance was filed on February 21, 2017. The material part of the grievance reads:

“The Employer has violated the Collective Bargaining Agreement including but not limited to articles 2, 3, 6 and the Ontario Human Rights Code. The Employer’s systemic discrimination and harassment has prevented my career development and opportunities for advancement.”

2A Preliminary Decision was issued in this matter on May 1, 2018. The Decision ordered that the scope of the evidence was limited to the three (3) year period prior to the filing of the grievance.

3The parties agreed that this proceeding should be heard pursuant to the Mediation/Arbitration Procedure set out in article 22.16 of the Collective Agreement. Article 22.16.2 provides that the “mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.” Here, the parties did agree to extend the time period for the provision of the Decision.

4The Grievor identified as a Black man. He was born in Montreal, Quebec. When he was a baby, his parents moved back to Nigeria, their country of origin. The Grievor grew up in Nigeria. He returned to Canada in 1990 at the age of twenty-six (26). The Grievor was fifty-six (56) years old at the time he gave his evidence.

5The Grievor commenced his employment with the Ministry of the Solicitor General (then the Ministry of Community Safety and Correctional Services) on August 12, 1996. He was hired as a Correctional Officer at Maplehurst Correctional Complex (MCC) in Milton. The Grievor was in the same position at the time of this proceeding. His Continuous Service Date is August 20, 1998.

6It is apparent that the Grievor has a sincere and long standing wish to improve his career by advancing into a Manager position. This is reflected by the totality of his evidence, including the fact that he applied for and was accepted into a Systemic Change Formal Mentoring Program in early 2014. This Program was intended to prepare people of colour and racial minorities for management positions by matching them with mentors to provide guidance and assistance. The Grievor was mentored by Operational Manager Michael Buckley of the Toronto South Detention Centre (TSDC) for most of 2014.

7The Grievor applied for an Operational Manager position at TSDC in early 2014. He received a notice of interview on February 18, 2014 advising that his interview was scheduled for February 26, 2014. The notice further advised that the selection process would consist of a sixty (60) minute oral interview and a thirty (30) minute written exercise. The Grievor attended the interview. The competition panel was chaired by Ms. Jennifer Alphonso, Deputy Superintendent of Operations at TSDC. The panel included Mr. Scott Gray and another person with the first name of Gail. The Grievor testified that he felt the interview went “very well, excellent” and that he had “strongly prepared” for it. He advised that he had served as an Acting Operational Manager at MCC between 2009 and 2011. The Grievor explained that for the first two (2) years of this period, he worked the position on an “as requested basis” and that in 2011 he did so continually.

8On March 25, 2014 Ms. Alphonso notified the Grievor by letter that he was not the successful candidate in the competition. Ms. Alphonso further advised that a competition debrief was available and that he could contact her directly to arrange for same. It was the thrust of the Grievor’s evidence that he requested feedback about the competition but that Ms. Alphonso did not respond. It was the Grievor’s belief that the competition was “driven by racial considerations” and that he was not given the opportunity to advance because of his race. In cross-examination, the Grievor advised that Ms. Alphonso was a Black woman. He further stated that he was not alleging that Ms. Alphonso engaged in racial discrimination.

9The Grievor was arrested at his residence on March 17, 2014. He was subsequently taken into custody and charged with a criminal offence. He was released from custody on March 18, 2014. That same day, the Grievor called Mr. C. Marcheganio, the Deputy Superintendent of Staff Relations at MCC, to apprise him of the developments. He followed this up with an Occurrence Report dated March 24, 2014 to more fully advise Mr. Marcheganio as to what had occurred. In his Occurrence Report, the Grievor informed the Employer that he had attended Court and was released on bail. He added that he had consulted legal counsel and intended to fight the charge. The Grievor noted that the criminal charge was disposed of in September or October 2014. It is unclear from the evidence whether the charge was withdrawn or the Grievor was acquitted.

10The Grievor observed that the letter from Ms. Alphonso of March 25, 2014 advising him that he was unsuccessful in the Operational Manager competition was one (1) day after his Occurrence Report. He expressed the belief that the criminal charge adversely impacted his standing in the competition. The Grievor acknowledged that he did not have any evidence that Mr. Marcheganio spoke to Ms. Alphonso or that his Occurrence Report undermined his chances in the Operational Manager competition. He, nonetheless, asserted that the criminal charge provided a quick way to get rid of him and to prevent him for securing the position he sought.

11This Arbitrator was told that at the time material to this proceeding there was a computer directory at MCC which could be accessed by management personnel and certain Correctional Officers. This was referred to as the H-Drive. What is of relevance is that the Grievor was shown a printout from the Drive by Mr. Jim Richards, a Union Steward. It was the Grievor’s recollection that the printout referenced his earlier arrest. He could not recall if it specifically mentioned the criminal charge laid against him. The Union Steward suggested that the Grievor file a grievance concerning the disclosure. The Grievor followed this advice and filed a grievance on July 11, 2014 in which he claimed that the Employer violated confidentiality by making his personal information available for his co-workers to see in files within a shared IT resource. The grievance was subsequently heard by the Grievance Settlement Board on February 15, 2017 pursuant to the expedited mediation/arbitration procedure. Vice Chair J. Johnston, in her Decision of February 23, 2017 directed the Employer to pay damages to the Grievor in the amount of two hundred and fifty dollars ($250.00). The grievance was then dismissed.

12The above Decision of Vice-Chair Johnston was referenced in the Preliminary Decision issued in this matter. Paragraph number seventeen (17) of that Decision states as follows:

“[17] During the course of submissions, I was advised that the grievor filed a grievance in July, 2014 and that the matter proceeded to a mediation-arbitration hearing at the Grievance Settlement Board. Apparently, the grievance was dismissed, but the Employer was required to pay a small monetary amount as compensation for a breach of the grievor’s privacy rights. This incident and the resulting disposition both occurred within the three (3) year period prior to the filing of this grievance. While not much detail was provided about this matter, I am satisfied it does form part of the record for purposes of this proceeding. Clearly, however, it cannot be relitigated as part of this case.”

13The Grievor expressed a number of concerns about his personal information being on the H-Drive. He believed that this information could be accessed either directly or indirectly by management personnel involved in the hiring process. He further believed that the disclosed information could negatively affect his co-workers perception of him as a Black man and might cast doubt on his ability to serve as a Manager. Additionally, the Grievor claimed that the work environment was poisoned as a result of this occurrence.

14The Grievor testified that he did not know how his personal information got onto the H-Drive. He asserted, however, that the “powers that be” had a role in the disclosure because of his efforts to improve himself and advance his career. It was readily apparent that the Grievor thought the Employer was somehow involved.

15An article appeared in the Corrections Update at some point in December, 2014 to which the Grievor took offence. As a consequence, he forwarded an email to Ms. Carol Journeaux, the Web Coordinator of the Communications Branch, on December 24, 2014. The Subject line of the email was worded as follows: “Inclusion [Greatest Lip Service ever invented by OPS]”

The body of the email read:

“Hi please let us stop this propaganda/charade contact the actual front line staff affected for real life stories.”

The Grievor in his evidence maintained that there was nothing wrong with his email and insisted that it did not amount to a personal attack.

16The Grievor testified that he subsequently was called into Mr. Tom Dykstra’s office on December 31, 2014. At that time, Mr. Dykstra was the Deputy Superintendent Administration at MCC. It was the Grievor’s evidence that he was not advised that he could have Union representation at the meeting. The Grievor recalled that, as he approached Mr. Dykstra’s office, Mr. E.J. Millette, the Security Manager, was standing at the door. He noted that Mr. Millette left the office area when he entered. The Grievor advised that once in the office, Mr. Dykstra informed him that upper management directed him to speak with the Grievor about the content of his email. The Grievor stated that he “called out” the Employer and MCC with respect to the level of inclusion of diverse people like him. He further expressed the opinion that his rights were being violated. The Grievor asserted that Mr. Dykstra responded to his concerns by saying that he didn’t care. It was the Grievor’s further evidence that Mr. Dykstra raised his voice during their exchange and that both were standing in close proximity to one another for the duration of the meeting.

17The Grievor described the meeting of December 31, 2014 as “not particularly pleasant.” He expressed the belief that he was harassed and intimidated at the meeting and that his human rights “were being tampered with.” He asserted that Mr. Dykstra did not talk to him in a friendly manner and maintained that the meeting amounted to an act of reprisal and retaliation. The Grievor formed the impression that the Employer was challenging his rights as a Black person to express his opinion.

18The Grievor subsequently received a Letter of Counsel dated January 2, 2015. He was informed therein that Ms. Journeaux found the content of his email to be “insulting and offensive.” The third paragraph of the Letter of Counsel read:

“During the meeting you were informed that the comments in the email sent by you were inappropriate and were to cease immediately. We had further discussion regarding your right to respond to articles and comments but also how to respond using appropriate language without offensive connotations.”

In the final paragraph of the Letter of Counsel, Mr. Dykstra referenced the Grievor’s statement that “this would not occur again.” In his evidence, the Grievor claimed that the Letter of Counsel was a continuation of intimidation and harassment for expressing himself and asking questions and wanting answers.

19Mr. Dykstra advised that the Deputy Regional Director asked him to speak with the Grievor and that he did so on December 31, 2014 in his office. He acknowledged that he did not inform the Grievor that a Union representative could attend the meeting with him. Mr. Dykstra explained that he did not do so as the meeting was not going to result in discipline. He could not recall if he was standing with the Security Officer when the Grievor arrived at his office, but conceded that it was possible.

20Mr. Dykstra testified that both he and the Grievor were seated during the meeting on opposite sides of his large desk. He estimated that there was about five feet (5’) to six feet (6’) between them and denied that there were in close quarters. Mr. Dykstra stated that he and the Grievor remained seated for the duration of the meeting. He also denied that he raised his voice during the meeting. Mr. Dykstra stated that he spoke with his “normal speaking voice” and asserted that both he and the Grievor were “very calm.” It was also his evidence that he gave the Grievor direction to cease similar action in the future and to ensure his communications were professional. Mr. Dykstra testified that the Grievor acknowledged that someone could consider his email as offensive. He recalled that the Grievor’s tone during the meeting was very calm and professional. Mr. Dykstra did not recall that the Grievor said his rights were being violated. He denied that he said he “didn’t care.”

21Correctional Officers at MCC complete and then submit a Post Selection Form to the Scheduling Manager for the post they wish to work at in the following year. The Union is involved in the selection process, presumably to ensure that seniority is respected and that the process is free of improper considerations. I note that the Grievor only selected Admitting and Discharge – Property on the Post Selection Form for 2015, even though the Form instructed employees to indicate from one (1) to ten (10) their areas of preference. The Grievor explained that he had sufficient seniority to secure one (1) of the positions in Admitting and Discharge, and that is whey he only made a single pick. He further stated that he did not think it was necessary to make other picks as he historically got a position in Admitting and Discharge. Ultimately, the Grievor was assigned to Admitting and Discharge – General for 2015. Assignments were posted on the P- Drive in the OPSEU folder. This likely occurred in mid – November, 2014.

22The Post Selection Form was also used for the purpose of the “Next In Line” process. More specifically, the numbering of job choices from one (1) to ten (10) on the Post Selection Form would serve as a main consideration, together with seniority, in the decision as to which employee/s would move into a next in line position if it became available. As mentioned above, the Grievor only selected Admitting and Discharge – Property when completing the aforementioned Form.

23The Grievor testified that he reviewed the Next In Line List for 2015 on the P- Drive. He noted that with respect to Admitting and Discharge – Property, his name was not listed on the form, notwithstanding that he had greater seniority than two (2) of the three (3) employees listed. Simply put, the Grievor claimed that his name should have been on the Next In Line List for Admitting and Discharge – Property. He was concerned about this omission.

24The Grievor next opted to bring this issue to the attention of the Scheduling Manager, Mr. Tim O’Keefe, on December 29, 2014. At the Grievor’s request, Mr. O’Keefe pulled the binder containing all of the Post Selection Forms for 2015. The Grievor observed that a diagonal line was drawn through his Form, as if it was cancelled. He stated that of all the Forms he saw, his was the only one with a line through it. The Grievor recalled that Mr. O’Keefe denied that he drew the line and did not know why it was there. Mr. O’Keefe told the Grievor that he would speak to Mr. Jim Richards, the Union Steward who assisted him in the selection process, in an effort to determine why a line had been drawn though his Post Selection Form.

25The Grievor also brought the Next In Line List to Mr. O’Keefe’s attention and more specifically, that his name was not on it in respect of the Admitting and Discharge – Property position. He further advised Mr. O’Keefe of his belief that management had been party to systemic discrimination against him in the past, specifying certain individuals and their interactions with him. The Grievor expressed the opinion in his evidence that these individuals played a part in the problem with both his post pick selection and his next in line status. He further stated that he viewed this as discrimination and that it amounted to “an act of reprisal.”

26The Grievor testified that later on December 29th, he received a call from Mr. O’Keefe advising him that the problem had been corrected. He agreed that management “quickly remedied the mistake.” A revised Next In Line List dated May 4, 2015 showed the Grievor as the second most senior employee for Admitting and Discharge – Property. The document on its face stated that the List had been corrected by Mr. O’Keefe and Mr. Richards on December 29, 2014.

27The Grievor advised that, notwithstanding the above, other individuals were improperly given the opportunity to work in Admitting and Discharge – Property on a Next In Line basis. He expressed the following concerns:

(i) One of the individuals had not referenced Admitting and Discharge – Property on their Post Selection Form and their selection for the position was not in conformity with the revised Next In Line List; and

(ii) Less senior employees, including those working on a fixed term basis, were given the opportunity to work in the Admitting and Discharge – Property position.

Ultimately, the Grievor claimed that he was improperly denied the chance to work in the Admitting and Discharge – Property position and that he, accordingly, lost the opportunity to develop both his skills and experience with respect to same. He acknowledged that he did not suffer any financial loss as a consequence of not working in the position. The Grievor repeated that he attributed this loss of opportunity to “retaliation and reprisal” on the part of the Employer.

28The Grievor noted that his meeting with Mr. Dykstra on December 31, 2014 regarding the Journeaux matter was only two (2) days after he spoke to Mr. O’Keefe concerning his Post Selection Form. He asserted that the aforementioned meeting definitely had a negative impact on his opportunity to work in Admitting and Discharge – Property going forward. In this regard, the Grievor claimed the position was empty in January, 2015 and that he should have been given the opportunity to fill the slot.

29The Grievor applied for a Provincial Bailiff position in June or July 2015. At that time, there were twenty-six (26) Bailiff positions across Ontario. I was told that the position was highly coveted. The Grievor acknowledged that he had never previously worked as a Bailiff.

30The Grievor was selected for an interview and was interviewed in August, 2015. The interview panel consisted of Mr. Dykstra, who was then the Manager, Offender Transfer Operations; Ms. Tanya Frankovich, Deputy Superintendent of Operations at MCC; and Mr. Adam Watson who held a number of management positions involving Provincial Bailiffs. At the time of the competition, Mr. Watson reported to Mr. Dykstra. Mr. Dykstra served as the Hiring Manager for the competition. The Grievor testified that initially he had no concern about Mr. Dykstra’s involvement in the process. It seems as if he had no prior interactions with Mr. Watson. Over the course of his evidence, the Grievor did indicate that he had prior negative interactions with Ms. Frankovich. The nature of these interactions were not described in his testimony.

31The competition process consisted of an oral presentation, an interview and a written assignment. Each of these components were separately scored by each of the panelists. The Grievor stated that he felt his performance in the process was “excellent” and “great” and that he thought he did well.

32The Grievor was notified by Mr. Dykstra’s letter of October 5, 2015 that he was not the successful candidate in the competition. The letter stated that if the Grievor wished to receive feedback, he could contact Mr. Dykstra at a specified phone number to schedule a discussion. While the letter may have been a form letter prepared by Human Resources, it was admittedly signed by Mr. Dykstra. The Grievor testified that his lack of success in the competition buttressed his belief that he was the subject of both discrimination and reprisal.

33In cross-examination, the Grievor was shown the scoring for the competition. The documents disclose the following: the Grievor had a raw score of forty-six (46) out of one hundred (100); the candidate with the highest score obtained a score of ninety-eight (98) out of one hundred (100); the Grievor’s score placed him in the twentieth position out of the twenty-four (24) candidates interviewed; and in relation to relative equality, the Grievor’s score was approximately fifty-three percent (53%) less than the highest score achieved in the competition. The Grievor advised that he did not get this information after the competition and that the first time he saw these results was during the course of this arbitration proceeding. He maintained that the scoring of the competition as not credible.

34The Grievor testified that he called Mr. Dykstra on October 20, 2015, for purposes of arranging the provision of feedback. As he was unable to reach Mr. Dykstra, the Grievor left a voicemail message outlining his wish for feedback about the competition. The evidence indicates that the Grievor may have made more than one (1) call to Mr. Dykstra. In any event, approximately three (3) days after leaving the initial voicemail, the Grievor was contacted by Mr. Watson to talk about the interview. He then informed Mr. Watson that he had left a message for Mr. Dykstra requesting feedback from him. It was the Grievor’s evidence that Mr. Watson told him he would have Mr. Dykstra contact him to provide the feedback sought. He noted that he was never subsequently contacted by Mr. Dykstra for this purpose. Indeed, he stated that he never received any feedback on his performance in the competition. The Grievor expressed his opinion that this failure was discriminatory and that it undermined his career advancement. He further asserted that it amounted to an act of reprisal. The Grievor suggested that he was being “treated as an irritant that wouldn’t go away.”

35Mr. Dykstra testified that after the competition, he assigned Mr. Watson the task of providing feedback to the unsuccessful candidates. He acknowledged the receipt of one (1) voicemail from the Grievor. Mr. Dykstra advised that he did not return the call, as he had assigned Mr. Watson to provide feedback to the individuals who were unsuccessful in the competition. He acknowledged that Mr. Watson told him the Grievor wanted to speak to him for the purposes of receiving feedback.

36Mr. Watson recalled that he called the Grievor after being assigned the responsibility of providing feedback to the unsuccessful applicants. It was his evidence that he told the Grievor he was calling to talk about the competition. At that juncture, the Grievor told Mr. Watson that he wanted feedback from Mr. Dykstra. In cross-examination, Mr. Watson acknowledged he did not expressly tell the Grievor that he was calling to provide a debriefing and that the provision of feedback had been assigned to him by Mr. Dykstra. Mr. Watson agreed that he told the Grievor he would advise Mr. Dykstra of the Grievor’s wish for feedback from him. He believed that he, in fact, did so. Mr. Watson was unaware if Mr. Dykstra subsequently contacted the Grievor.

37Correctional Officer R.V. was incarcerated at MCC from September 3 to September 11, 2015. On October 12, 2016, the Grievor received a letter from Ms. Nadia Franzon, an Inspector with the Correctional Services Oversight and Investigation Unit, relating to allegations of conflict of interest and preferential treatment during the period of Correctional Officer R. V.’s incarceration. The letter read in part:

“You have been identified as a witness employee in this investigation and accordingly it is my intention to conduct an interview with you concerning the above noted matter. While the matter above will be the primary and intended purpose of my interview with you, it should be understood that there might be other issues identified during the interview that may be subject to further discussions.”

The Grievor was further advised that an interview was scheduled for October 24, 2016 and that he was entitled to have an observer/representative accompany him to the interview. The Grievor received a second letter from Inspector Franzon dated October 21, 2016 advising him that the interview was rescheduled to November 4, 2016.

38The Grievor attended the interview on November 4, 2016. At that time, he told the Inspector that he did not know Correctional Officer R.V. and that he had nothing to do with him during the period of incarceration. The Grievor described the interview as a “really harassing meeting.”

39The next development material to the issue occurred on May 4, 2017. On that date, the Grievor received a letter from Mr. Doug Houghton, Deputy Regional Director Northern Region, Institutional Services, advising him that an Allegation Meeting had been scheduled for May 18, 2017. The letter alleged that the Grievor, during the incarceration of Correctional Officer R.V., participated in the provision of preferential treatment to the inmate contrary to applicable laws, regulations, and policies. More specifically, the letter stated that the Grievor acted as follows:

(i) failed to have inmate R.V. wear the inmate issued clothing; and

(ii) failed to return inmate R.V. to his assigned cell (while in A and D including the staff lounge and Warrants Officer/desk).

The Grievor was further advised that, as the meeting could lead to disciplinary action, he was entitled to have OPSEU representation at the meeting.

40The Grievor met with Mr. Houghton on May 18, 2017. He was accompanied by two (2) Union representatives. The Grievor subsequently received a Letter of Counsel dated October 3, 2017 issued by Mr. Mark Parisotto, the Superintendent of MCC. The Grievor was advised therein that the allegations were substantiated notwithstanding he disagreed with them. The second last paragraph of Mr. Parisotto’s letter read in part:

“It is my decision, having weighed the findings of the investigation, your responses to the allegations during the meeting, the serious nature of the substantiated allegations, your length of service, your employment record, and the mitigating factors you presented, including your level of remorse, to issue you this letter of counsel.”

41The Grievor expressed the belief that the Allegation Meeting reflected an on-going pattern of intimidation, harassment, and reprisal against him on the part of the Employer. He asserted that the aforementioned meeting and the subsequent Letter of Counsel were part of a concerted effort by the Employer to stop his advancement within the Ministry. The Grievor added that his progression from a witness to a subject employee was racially motivated. In cross-examination, the Grievor acknowledged he was unaware that a number of staff were required to attend Allegation Meetings in respect of this issue and that some were in, fact, disciplined.

42The Grievor noted that he declined an interview for the Sergeant-Talent Pool on May 3, 2017, as outlined below. It was his view that there was a connection between his doing so and his receipt of the notice of an Allegation Meeting on May 4, 2017, the following day.

43On December 8, 2016 the Employer posted for a Talent Pool in respect of the Sergeant position. The competition was to be used to create an eligibility list of qualified candidates for opportunities arising within twelve (12) months at the TSDC, Toronto East Detention Centre, Vanier Centre for Women and MCC. The Grievor applied for a position in the Talent Pool on January 13, 2017 by filing a covering letter and his resume. The latter document stated that he had served as an Acting Operational Manager at MCC between November 2009 and September 2011.

44Interviews for the Talent Pool were scheduled for the week of February 13, 2017. The Grievor learned that interviews had, in fact, been held when he returned to work on February 15, 2017 after his attendance at the mediation-arbitration proceeding concerning his grievance of July 11, 2014. On March 16, 2017, the Grievor emailed Careers Team 7 and questioned why he was excluded from the competition given that his covering letter and resume demonstrated that he met the qualifications to perform the job. On that same day, he received a responding email from Careers Teams 7 asking that he provide the Job ID number for the competition he was inquiring about. On March 17, 2017, the Grievor received a further email from Careers Team 7 indicating that his request for an explanation had been sent to the Hiring Manager.

45On April 13, 2017, the Grievor received an email from Ms. Antonietta Griffo, Administrative Assistant, Recruitment Services, Ontario Shared Services. Her email advised the Grievor that he had been selected for an Interview for the Sergeant Talent Pool competition and that interviews would take place between May 8 to May 12, 2017. The Grievor responded to Ms. Griffo by email of May 3, 2017. It read:

“In light of having been devalued and going concerns I am unable at this time to participate in the interviews for the week of May 8 – 12, 2017”.

In cross-examination, the Grievor agreed that by declining an interview, he effectively withdrew from the competition.

46The Grievor expressed the belief that he was not interviewed in February 2017 because of “ongoing acts of retaliation, discrimination and harassment by management at Maplehurst and the Employer as a whole.” He asserted that between March, 2010 and April, 2017, there was never an appointment of a Black male to a permanent Operational Manager position at MCC. He suggested that he was offered the interview by Ms. Griffo only because the Employer had been “caught with its hand in the cookie jar.”

47The Grievor testified that the Employer’s discrimination and actions taken against him had physical and mental impacts resulting in time off and the use of sick leave. In this regard, he stated it was “tough” to get through the Employer’s treatment of him. No medical evidence was filed to support this claim.

48The parties to this proceeding agreed to file Written Submissions, in lieu of oral Argument. They both subsequently did so and included the Authorities relied on. The last of the Submission was received on September 24, 2025. To expedite this matter, in accordance with article 22.16 of the Collective Agreement, I will not reproduce all of the Written Submissions in the body of this Decision. They shall, however, form part of the Decision and are incorporated herein. All of the material filed by the parties has been reviewed and considered in the process of completing this Decision.

49The Union asks that I take administrative notice of the prevalence of Anti-Black racism in Canadian society, as well as within the Ontario Public Service, including Corrections. Counsel notes that there is no need to offer direct evidence in a case such as this. This is because cases of Anti-Black racism are more often proven through circumstantial evidence, given that the discrimination may be the product of subtle unconscious bias and behaviors. Counsel further submits that the prohibited ground or grounds of discrimination need not be the sole or major factor leading to the discriminatory conduct. Rather, it is sufficient if they are a factor or an operative element in the conduct complained of.

50The Union claims the following remedies:

(i) A declaration that the Employer has violated articles 2, 3 and 6 of the Collective Agreement and the Ontario Human Rights Code (OHRC) in relation to its conduct towards the Grievor;

(ii) A cease and desist order;

(iii) An order directing the Employer to place the Grievor in the Sergeant’s position he applied for in January, 2017 and was subsequently denied an interview for same in February 2017. The Union’s position is that it is within my jurisdiction to place the Grievor into a managerial role where he would have been successful in his application, but for the fact of the Employer’s discriminatory acts;

(iv) Lost income suffered in relation to the lost opportunities; and

(iv) General damages in the amount of $50,000.00, together with interest. Counsel submits that I have authority to make such an award for the Employer’s breach of both the Collective Agreement and the OHRC, even if I do not take jurisdiction to place the Grievor in the management position sought.

51The Employer’s response is as follows:

(i) Taking administrative notice of Anti-Black racism does not automatically transform any or all of the Grievor’s unsatisfactory interactions into a product of Anti-Black racism. The Union must still demonstrate a link between the alleged form of discrimination and the events which occurred. Here, there is a lack of evidence, circumstantial or otherwise, to disclose a connection between these events and the Grievor’s racial identity.

(ii) The Grievance Settlement Board is without jurisdiction to hear a complaint relating to recruitment for positions outside the bargaining unit. The Board’s jurisdiction is limited to disputes arising under the Collective Agreement. This is so even where a grievor links their challenge to an alleged breach of Article 3 (No Discrimination) of the Collective Agreement of the OHRC. Simply put, the Board does not have the remedial authority to place this Grievor in a management position. Counsel therefore requests that I dismiss the allegations relating to the 2014 Operational Manager position and the 2017 Sergeant Talent Pool. In the alternative, he submits that the evidence presented is insufficient to merit the relief claimed by the Union;

(iii) No damages are warranted in this case as the Grievor has not established a breach of the Collective Agreement or the OHRC. In the alternative, if this Arbitrator finds that damages are an appropriate remedy, then an award falling under the range of $3,500.00 would be a more reasonable award. To be clear, the Employer considers that the $50,000.00 claimed by the Union far exceeds what would be reasonable; and

(iv) Lastly, the grievance should be dismissed in its entirety. In the alternative, any breach is minimal and a declaration would be a sufficient remedy.

52The Grievor’s application for an Operational Manager position at TSDC in 2014 and his subsequent application in 2017 for a Sergeant’s position in the Talent Pool both involved competitions for a management position outside the bargaining unit. I accept the Employer’s argument that the Grievance Settlement Board is without jurisdiction to adjudicate a challenge with respect to a competition for a management position, even if the challenge is linked to a claim of discrimination under the Collective Agreement or the OHRC. It follows that I lack remedial authority to award a management position to the Grievor as claimed by the Union. This type of relief must be sought in another forum. Because of the lack of jurisdiction, it would be improper for this Arbitrator to comment on the Grievor’s evidence relating to his treatment in the two (2) competitions in issue.

53I accept the reasoning expressed by the Arbitrator in OPSEU (Schnoflak) and the Ministry of the Solicitor General (2019), GSB No. 2017-3409 (Petryshen). After reviewing several similar cases in paragraph [6] of the Decision, Arbitrator Petryshen concluded as follows:

“[9] As set out in Article 22.1 of the OPSEU Agreement, my jurisdiction is limited to “…any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” There is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to apply for a management position. The complaint about discriminatory treatment in this instance is not in relation to a matter covered by the OPSEU Agreement and I do not have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement.”

54There is no firm evidence as to the identity of the person who was responsible for disclosing the Grievor’s personal information on the H-Drive. The Decision of Vice-Chair Johnston of February 23, 2017, which directed the Employer to pay the Grievor damages in the amount of two hundred and fifty dollars ($250.00), suggests that the Employer was found responsible for the disclosure on the shared IT resource. It appears from a reading of the Decision that the mediation-arbitration process was focused on the breach of the Grievor’s confidentiality rights and that an allegation of discrimination or harassment was not advanced at that time. Consistent with paragraph [17] of the Preliminary Decision of May 1, 2018, I consider that it would be wrong to relitigate this issue for purposes of determining whether the release of personal information was tainted by either discrimination or harassment.

55The Grievor clearly had the right to express his opinion on the article which appeared in the Corrections Update in or around December, 2014 and to present his views and experience as a Black man working in Corrections. I can understand, however, why Ms. Journeaux would find the Grievor’s email to be offensive and inappropriate. Similarly, it is understandable why senior management would instruct Mr. Dykstra to speak with the Grievor about his email. Ultimately, I am satisfied that the Employer was entitled to issue a Letter of Counsel to the Grievor in respect of the wording used in his email. It recognized the Grievor’s right to respond to articles and comments through the use of “appropriate language without offensive connotations.” I cannot accept the Grievor’s statement that the Letter of Counsel was “a continuation of intimidation and harassment for expressing himself and asking questions and wanting answers.”

56It is readily apparent that the Grievor’s description of the meeting of December 31, 2014 differs markedly from that provided by Mr. Dykstra. After considerable thought, I conclude that Mr. Dykstra’s account of the meeting is to be preferred. I think it unlikely that Mr. Dykstra would conduct this type of serious meeting with both parties standing and in close proximity to one another for the duration of the meeting. I accept the thrust of Mr. Dykstra’s evidence that both he and the Grievor were calm and professional and that he spoke using his normal voice. Ultimately, I think that Mr. Dykstra and the Grievor engaged in a substantive discussion which was focused on the parameters of acceptable speech in the workplace. This is consistent with the tone and content of the last paragraph of the Letter of Counsel of January 2, 2015.

57I do not think that anything turns on the fact Mr. Dykstra did not advise the Grievor in advance of the meeting that he could be accompanied by a Union Representative. Mr. Dykstra acknowledged that he did not do so as the meeting was not going to result in the imposition of discipline. Clearly, if the potential for discipline existed, the Grievor would have been entitled to Union representation. Additionally, I do not consider it material that the Security Manager may have been present in or near the door to Mr. Dykstra’s office just prior to his meeting with the Grievor. I have not been persuaded that the Security Manager’s brief presence represented an attempt to intimidate the Grievor.

58Mr. O’Keefe and Mr. Richards corrected the problem with the Post Selection Form on the same day it was brough to their attention, namely December 29, 2014. The Grievor in his evidence agreed that the mistake was quickly remedied. No explanation was given as to why it took until May 4, 2015 for the Next In Line List to be formally revised and corrected. The Employer concedes in its Submissions that a mistake was made when the Grievor was passed over for Next In Line assignments to Admitting and Discharge – Property because of the line drawn through his Post Selection Form for 2015. It is impossible at this juncture to determine who drew the line across the Grievor’s Form. I question whether whoever did it was influenced by the fact the Grievor did not follow the instructions on the Post Selection Form and only identified one (1), rather than ten (10) positions. This might also account for the Grievor’s name not initially being on the Next in Line List. I do think it significant that the Union was involved in the initial selection process and was clearly positioned to challenge any effort by the Employer to deliberately disadvantage the Grievor.

59Without doubt, the Grievor was improperly bypassed in terms of opportunities to obtain experience in Admitting and Discharge – Property. Assuming he had the requisite seniority, he should have been selected for vacancies therein post December 29, 2014. Fortunately, the Grievor suffered no monetary loss as a result of the error. It is difficult to assess how the loss of experience in Admitting and Discharge – Property would have prejudiced the Grievor in subsequent competitions including those for a management position.

60I think it unlikely that the Grievor’s meeting with Mr. Dykstra on December 31, 2014 had anything to do with the mishandling of Next In Line opportunities. As noted, Mr. O’Keefe attempted to remedy the issue on December 29, 2014. In the final analysis, I have not been persuaded that the Employer deliberately acted to disadvantage the Grievor and that its actions represented an attempt to discriminate or harass. I note that no grievance was filed relating to this issue.

61The Grievor’s evidence as to how he performed in the Provincial Bailiff competition is inconsistent with the scores received from the panel. To repeat, he was twentieth (20th) out of twenty-four (24) applicants, and his score was sufficiently low that he could not be considered as relatively equal to the successful candidate/s. I have not been persuaded that the competition panel skewed their scoring to ensure the Grievor was unsuccessful. The scoring of the competition undermines the Grievor's assertion that he was subject to both discrimination and reprisal.

62Following notification as to the result of the competition, the Grievor left a voicemail for Mr. Dykstra in which he requested feedback on his performance. This was consistent with Mr. Dykstra's letter of October 5, 2015 in terms of what unsuccessful candidates should do to obtain feedback. It is clear from the evidence that Mr. Dykstra did not reply to the Grievor’s voicemail and that he never provided feedback to him. By way of explanation, Mr. Dykstra advised that he assigned the task of providing feedback to unsuccessful applicants to Mr. Watson. It is understandable why he would do so given the large number of applicants in the competition.

63The Grievor’s evidence was that he was contacted by Mr. Watson approximately three (3) days after he left his voicemail for Mr. Dykstra. He recalled that the purpose of Mr. Watson’s call was to talk about the interview. The Grievor acknowledged that he did not pursue the offer, as he wanted to receive feedback from Mr. Dykstra. This was an opportunity lost in terms of receiving feedback on his performance in the competition. In retrospect, it is unfortunate that Mr. Watson did not inform the Grievor that the responsibility for providing feedback had been assigned to him by Mr. Dykstra. It is also clear that Mr. Watson told Mr. Dykstra of the Grievor’s desire to speak to him for purposes of receiving feedback. As noted, Mr. Dykstra did not contact the Grievor. Looking back, I think that Mr. Dykstra should have directed Mr. Watson to get back to the Grievor to advise that he was the person assigned the task of giving feedback and that any debriefing would come from him and not Mr. Dykstra. This failure, in part, explains why the Grievor did not received feedback in the Provincial Bailiff competition.

64I have not been persuaded that the lack of feedback was an act of discrimination or reprisal. Clearly, on the facts, the Grievor could have received feedback in the initial contact with Mr. Watson. Thereafter, the lack of feedback occurred because of a communication issue between Mr. Dykstra and Mr. Watson. I accept that, generally, when an offer of feedback is provided to unsuccessful applicants in a competition, the Employer must take the necessary steps to ensure it is in fact given.

65Having reviewed the facts relating to Correctional Officer R.V., I am unable to discern anything out of the ordinary. The fact that the Grievor’s status changed over time from a witness employee to a subject employee, against whom allegations were made, can occur in the normal course after evidence is accumulated from numerous other witnesses. This potential for change was alluded to in Ms. Franzon’s letters of October 12 and October 21, 2016. While I doubt that the meeting of November 4, 2016 was “really harassing”, as claimed by the Grievor, I expect that the Investigator aggressively questioned the Grievor in a comprehensive fashion in an effort to gather accurate facts pertaining to the matter. The letter of Mr. Houghton dated May 4, 2017, set out the Ministry’s allegations against the Grievor following the conclusion of the investigations, and indicated the date and time for the Allegation Meeting. The Letter of Counsel was subsequently issued to the Grievor on October 3, 2017 by Mr. Parisotto. It appears to this Arbitrator that the process followed in this instance replicated that of a typical investigation. I note that in cross-examination the Grievor acknowledged that he was unaware that a number of staff were also requested to attend at Allegation Meetings, after which some were disciplined for their conduct in respect of this matter.

66I cannot find any support for the Grievor’s claim that the Allegation Meeting reflected an ongoing pattern of intimidation, harassment and reprisal against him by the Employer and that it represented a concerted effort to stop his advancement within the Ministry. I accept the Employer’s submission that the Grievor’s beliefs on this point amount to speculation. Additionally, I do not consider that there is any real connection between the Grievor’s rejection of an interview for the Sergeant Talent Pool on May 3, 2017 and his receipt of a Notice of Allegation Meeting on May 4, 2017. These were patently separate matters.

67During the course of preparing this Decision, I have been mindful of the Union’s submission that circumstantial evidence must be considered in disputes which involve an allegation of discrimination. My conclusion is that there is no direct or circumstantial evidence that the Grievor’s race was a factor in the incidents and events described above. Simply stated, I have not found any breach of the Collective Agreement or the OHRC. For all of the above reasons, the grievance is denied.