GSB# 2021-0925; 2021-0926; 2021-1052

UNION# 2021-0375-0013; 2021-0375-0014;

2021-0375-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hansen et al)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Sarah Khan Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michael MacLellan Crawford Chondon & Partners LLP Counsel

SUBMISSIONS

December 6, 2024

Decision

1The decision here relates to a second preliminary motion brought by the Employer, the Liquor Control Board of Ontario, and two Grievors, Michael Hansen and Tamara Schlosser, represented by the Ontario Public Service Employees Union. On this occasion, the Employer represented by Michael MacLellan seeks to strike all particulars related to mental distress allegedly suffered by the two Grievors following discipline imposed on them by the Employer on or about June 24, 2021.

2In an earlier decision relevant to these same Grievors and between the same parties dated March 25, 2024 a number of particulars advanced by the Union in this matter were struck. However, those relating to mental health issues and the distress allegedly suffered by the two Grievors were not struck. In my summary conclusions in the earlier decision I ruled as follows at paragraphs 48 and 49:

48As noted in the body of this decision with respect to the Grievance of Tamara Schlosser and the particulars provided by the Union, Paragraphs 18 and 21 are struck for the reasons provided above. Paragraphs 19 and 20 relating to her mental distress are not struck but are subject to my comments there striking a bad faith allegation and requiring the provision by the Union of more fulsome particulars to substantiate some causal connection between the discipline she received and her mental health as well as the extent of her mental distress.

49With respect to Michael Hansen, Paragraphs 31, 32 and 33 are struck. Paragraph 34 of the Union’s particulars relating to the Grievor’s mental stress and anxiety is not struck but, as in the case of Ms. Schlosser is subject to provision of more fulsome particulars with respect to a causal connection between the discipline and the Grievor’s distress and the extent to which his mental issues might have been exacerbated by the alleged discipline.

3Premised on those rulings, there were exchanges between the parties including further medical documentation produced by the Union with the intention of fulfilling the requirements set out in those two paragraphs. In the current motion the Employer takes the position that the fresh particulars and medical documents produced by the Union fail to satisfy the requirements set out in the earlier decision.

4The initial motion came by way of a letter by Employer counsel dated September 24, 2024 which included documents provided by Sarah Khan, Union counsel, as follows:

Re: Michael Hansen

1. August 20, 2024

A letter from Ms. Khan to Mr. MacLellan outlining the Union’s particulars concerning the mental status of the Grievor, Michael Hansen, based upon fresh medical information and opinion received from the Grievor’s treating physician and addressing his medical status both before and after the discipline received on June 24, 2021.

2. August 7, 2024

A letter to Ms. Khan from the Grievor’s treating physician, in which he responds to specific questions put to him by Ms. Khan in reference to the Grievor’s medical and mental status in the relevant timeframe.

Re: Tamara Schlosser

3. September 23, 2024

A letter to Mr. MacLellan from Ms. Khan outlining the Union’s particulars as informed by Ms. Schlosser’s treating medical professionals prior to and after the discipline imposed on her on June 24, 2021.

4. August 29, 2024

A letter to Ms. Khan from Ms. Schlosser’s treating Nurse Practitioner, responding to specific questions put to her by Ms. Khan in reference to the Grievor’s medical and mental status both before and after the discipline imposed on her on June 24, 2021.

5Taking into consideration Mr. MacLellan’s submissions in his initial letter of September 24, 2024 together with his final submission on December 6, 2024, the following represents a synopsis of his key submissions:

1. He challenges the letter of inquiry sent to each of the two Grievors medical professionals on the basis that those letters provided leading questions which were designed to elicit confirmation of the mental stress flowing from the discipline of June 24, 2021. It was his submission that the questions so framed were improper and that the responses should not be relied upon.

2. Notwithstanding the leading nature of those questions, he contends that the medical opinions provided by the physicians of each of the Grievors do not support the particulars provided by the Union. Indeed, it is the Employer’s submission that the conclusions stated in the particulars bear little resemblance to the medical opinions accompanying them.

3. His submissions challenged the status of the competency of the medical professionals themselves to provide medical opinions concerning the mental state and/or status of their respective patients when neither was a psychologist and/or engaged in a mental health related practice.

4. Finally, it is the Employer’s submission that even if the particulars do provide material facts which might substantiate a prima facie case, it is not appropriate to accept those particulars as true for the purposes of a prima facie case when, as here, the particulars are contradicted by the documents produced in support of those particulars as provided by the same party.

6In this regard, Mr. MacLellan refers to the Fanshawe College v Ontario Public Service Employees Union (Gurofsky Grievance), [2015] OLAA No. 377, CanLII 62333 (ON LA). In particular, Mr. MacLellan relies on a statement by Arbitrator Davie at paragraph 68 of the OLAA award as follows:

68. It is important to note that simply pleading a claim in a grievance does not establish a prima facie case to be arbitrated. In this case, in deciding whether a prima facie case has been established, regard must also be had to the particulars provided and the documents tendered in support of the pleaded claim and particulars. [emphasis added]

7However, that quotation must be read in the context of the entirety of the Fanshawe College decision. Arbitrator Davie goes on to clarify the nature of the claim on behalf of the grievors there at paragraph 148 as follows:

148 As these grievances alleging that “but for” Fanshawe’s conduct the grievor would not have become or remained sick are intertwined with his claim of harassing and discriminatory behaviour I consider it prudent to reiterate and emphasize my decision and the determination set out earlier in this award.

8More importantly at paragraph 149 Arbitrator Davie goes on to clarify that she had previously struck those particulars alleging harassment or discriminatory conduct by the Employer. In the circumstances, there was no misconduct by the employer which could establish a prima facie case for remedial relief. Her reasoning is clarified in paragraphs 149, 150 and part of 151 as follows:

149 As noted earlier in this award a prima facie case is not established simply by making a claim in a grievance. Thus it is not enough to simply say that the College’s conduct has made me sick and expect that to establish a prima facie case. Reference must be made to the particulars of the conduct. In this case I have considered the particulars of the College’s conduct alleged to have caused or exacerbated the grievor’s illness, and the documents tendered in support of the pleaded facts and particulars. I have already concluded that some of the particulars of conduct do not disclose a prima facie case of harassing or discriminatory behaviour towards the grievor and do not disclose a prima facie case for the remedial relief requested.

150 It is a prerequisite to the claim that “but for” the College’s conduct I would not have become ill, or my illness would not have been exacerbated, that the College conduct is improper and violated the collective agreement or the Code. Conduct which is not improper and which does not violate the collective agreement or the Code can’t substantiate a grievance in which monetary damages or reaccreditation of sick leave credits is sought as remedial relief. Thus, that conduct which has been particularized and which I have already determined does not establish a prima facie case of harassment or discrimination can’t be relied upon to found this claim that “but for” Fanshawe’s conduct the grievor’s illness would not have been exacerbated.

151 …I have determined that the pleaded facts in the grievances, the particulars and documentary evidence relied upon with respect to these themes do not establish a prima facie case of harassment or discriminatory conduct in violation of the collective agreement or the Code. As the alleged conduct with respect to these themes doesn’t violate the collective agreement or Code it can’t form the basis of a claim that it caused or exacerbated the grievor’s illness for which the College is liable or for which remedial relief must be granted.

[Emphasis added]

9I have considered this final submission of Mr. MacLellan together with the particulars before me and I am satisfied that the decision in that case, although helpful, is distinguishable from the matter at hand. Most importantly, in the case at hand there has been no decision made as to whether or not the Employer’s conduct in disciplining the two Grievors was just or unjust. On the contrary, particulars alleging that the discipline imposed on each of the Grievors was unjust have not been struck and on agreement of the parties those issues were set aside until preliminary matters might be addressed and determined. Accordingly, unlike the Fanshawe College case, there is a prima facie case to be made out that each Grievor here was unjustly disciplined. There is, therefore, a prima facie case for unjust discipline which can here form the basis of a claim that it caused or exacerbated the Grievors’ mental state for which the LCBO might be found liable and for which remedial relief might be granted. This is a dramatically different situation than that in the Fanshawe College case where the Union was attempting to establish remedial relief in the absence of a finding of violation of the collective agreement in the first instance.

10In the case at hand there is a prima facie case for unjust discipline such that there is foundation for a prima facie case involving a claim that the discipline caused or exacerbated the grievors’ mental distress for which the Employer may be held liable or for which remedial relief may be granted. Accordingly, it would be inappropriate to strike those particulars on that basis alone.

11That brings me to a consideration of the submission of the Employer that the particulars are not supported by the underlying medical documents and therefore have no reasonable chance of success. I have considered that submission and I am of the view that it would take me into a determination of the proof of the allegations or the particulars based upon the underlying medical opinions including the nature or expertise of the physicians themselves. That would bring me into assessing the proof of the particulars. However, that analysis would lead me into an assessment of the merits of the particulars with respect to whether or not they might be proven to be true in this case. While the Union has produced fresh medical information, it may not comprise the entirety of the Union’s case or proof with respect to those particulars pleaded. Furthermore, the Employer seeks to undermine the qualification of the medical practitioners with respect to their competency in the specialty involved without any exploration as to their medical history or experience but based solely upon their apparent present practice. Typically, challenges of this nature are determined during proceedings and testimony rather than through motions of this nature before the totality of the evidence can be explored. It is for this reason that particulars are normally considered as true for the purposes only of establishing a prima facie case rather than a proven case.

12I agree with Ms. Khan in her submissions where she asserts that the Employer is attempting “to weigh the merits of the material facts outlined in the particulars” with respect to the alleged mental stress of each Grievor “without testing it through examination-in-chief/cross-examination of witnesses”. Again as Ms. Khan asserted in her submissions “striking particulars are often reserved for facts that have no air of reality or have no reasonable chance of success at arbitration even when they are considered on the face to be true”. In the case before me the allegations or particulars in each case is to the effect that the unjust discipline has caused mental stress and damage to the Grievors which merits remedial relief. There is a prima facie case to be made here that the Grievors were unjustly disciplined. The particulars with respect to the mental distress allege that each of the Grievors have, in one way or another, suffered mental stress or distress caused or exacerbated by that very discipline. Those particulars are enough to raise or create a prima facie case entitling the Grievors to some form of remedial relief for that distress. The test as to whether or not those particulars can be proven is a matter to be determined through the litigation process itself including examination and cross-examination, etc.

13In her submissions on this matter relating to particulars Ms. Khan clarifies her understanding of the purpose of providing particulars as follows:

The purpose of particulars is to provide the ‘what’, ‘when’, ‘how’, ‘why’, and there is ample caselaw on this. One such case is from 2015 decision by Arbitrator Luborsky in K-Bro Linen Systems Inc. and TC, Local 847 (00118) (2019 CanLII 12521 (ON GSB), 2015 CarswellOnt 16236). In paragraph 20-21, he states that the particulars need to make out a prima facie case. He explains that a prima facie motion is successful in situations where the facts asserted (if accepted as true) have no reasonable chance of establishing the necessary elements of the violation alleged. Mr. MacLellan has not argued that OPSEU failed to make out a prima facie case. He has taken issue with how we asked the questions from our sources and commented on the strength of the causal connection. Arbitrator Luborsky’s case is foundational to our collective understanding of the use of particulars in labour law. The case is also cited in Canadian Labour Arbitration, 5th edition by Brown and Beatty, Chapter three, footnotes 5.

14Ms. Khan is correct that there is in this current case a prima facie case regarding mental distress potentially flowing from unjust discipline. In all of the circumstances here it is my view that it would not be appropriate to strike those particulars relating to the remedial issue concerning the possible impact on the mental health of these two Grievors resulting from the alleged unjust discipline.

15The motion/motions are therefore dismissed and the particulars remain as such to be proven through the litigation process.