GSB# 2024-00892

UNION# 2024-0520-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Zhao)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Kumail Karimjee

Arbitrator

FOR THE UNION

Ed Holmes Daniel Perez Ryder Wright Holmes Bryden Nam LLP Co-Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel Sam Willison, Articling Student

HEARING

January 26, 2026

Decision

INTRODUCTION

1This is an Employer motion to strike certain paragraphs from the Union’s statement of particulars. In effect, the Employer seeks an order limiting the scope of evidence at the hearing of this matter to allegations from the three years prior to the filing of the grievance.

2The parties agreed to the issuance of a bottom-line decision without detailed reasons.

BACKGROUND

3The grievance in issue alleges harassment, bullying, and preferential treatment of others tied to the alleged lack of workplace opportunities and career advancement for the grievor.

4The Union’s statement of particulars dated October 20, 2025 is 61 pages in length and includes 282 paragraphs. Though the grievance is dated January 16, 2024, the Union’s particulars span back to alleged representations made to the grievor by her hiring manager approximately 15 years prior to the filing of the grievance.

POSITIONS OF THE PARTIES

5The Employer seeks to strike paragraphs 1 to 42, 272 to 275, 278 and 279 of the Union’s particulars on the basis that they reference events that pre-date the grievance by more than three years. The Employer relies on the Board’s three-year rule and submits that unique or exceptional circumstances do not exist to justify a departure from the three-year rule.

6The Union states that the Board’s case law dealing how far back in time the Union can reach in its evidence in support of harassment and discrimination cases creates a “guideline,” not an inflexible rule. In this case, the Union submits that the Union’s particulars must be looked at as a whole and that the evidence from the early part of the grievor’s employment is needed to fully understand the grievor’s allegations of harassment. Further, the Union submits that some particulars challenged set out “foundational evidence” or basic background facts that should be admitted. Finally, the Union submits that rather than striking particulars at this stage, determinations about the relevance and admissibility of evidence should deferred until the hearing itself.

ANALYSIS AND DECISION

7For the reasons set out below, this is a clear case for the application of the three-year rule to limit the scope of the evidence that the Union may call in support of the grievor’s allegations of harassment.

8The Board’s case law on the three-year rule is well developed and referenced in the case law relied upon by both the Employer and Union. As stated by Arbitrator Sheehan in OPSEU (Lavoie et al) v. Ontario (MCSCS) 2015 CanLII 60426 (GSB) (at para. 42) “…the Grievance Settlement Board in cases involving harassment and racial discrimination, while allowing evidence that predates the time frame for filing a grievance under the collective agreement… has…imposed a limitation of not permitting evidence that relates to events that took place more than three years before the date of filing the grievance.”

9I accept, as submitted by the Union, that what is often referred to as the “three-year rule” is not rigid or inflexible. Its application necessitates a balancing of competing interests, namely the Union’s interest in proving its case with the Employer’s right to defend itself. I am persuaded, based on a review of the grievance itself, the particulars as a whole (not just the impugned paragraphs), and the applicable case law, that it should be applied in this case.

10In the present case, the particulars challenged are from 2010 to 2018, six to 14 years prior to the filing of the grievance. Further, there is a five-year gap in the Union’s particulars between 2018 and 2023. This gap diminishes the argument that the past events from the grievor’s first 10 years of employment must be considered to understand the grievor’s more recent harassment allegations. Further, allowing the Union to call the evidence in question would undoubtedly prolong the hearing and may create evidentiary challenges given the passage of time. There is also no evidence or argument to support the presence of unique or exceptional circumstances justifying departure from the Board’s three-year rule. The Union’s particulars are very detailed for the three year period prior to the grievance and provide an adequate timeframe to provide context and for the Union to seek to establish a pattern.

11Further, it is preferable to deal with this scope of evidence question now, rather than during the hearing. A failure to address the Employer’s concerns regarding the early allegations advanced would require the Employer to unnecessarily provide disclosure and prepare to respond to historical allegations.

12In the result, the Employer’s motion to strike paragraphs 1 to 42, 272 to 275, 278 and 279 is allowed. This ruling captures allegations prior to January 16, 2021 (three years prior to the grievance), including the allegations from that period of challenges with advancement, lack of interviews and offers for positions, and unfair job competitions and granting of positions.

13However, there are two important caveats to this ruling.

14First, I accept, as submitted by the Union, that some challenged paragraphs, separate from the allegations of harassment, contain background facts. This decision is not intended to prevent the Union from leading background evidence of the grievor’s employment history including positions held, duties performed, and accomplishments. Neither the Employer nor Union parsed the paragraphs in their submissions to separate out background facts. However, I am confident that counsel will be able to separate out the admissible basic history and