GSB# 2021-3329; 2022-7835; 2022-10654; 2023-01590; 2022-11974; 2023-01590; 2024-00446

UNION# 2022-0710-0001; 2022-0710-0003; 2022-0710-0005; 2022-0710-0050; 2023-0710-0005; 2024-0710-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Paul)

Union

• and -

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

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Braxton Murphy Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 18 and May 27, 2025

Decision

1This decision deals with the preliminary challenges raised by the Employer regarding the six Grievances before me.

2The Grievances are dated: January 14, 2022; June 8, 2022; October 24, 2022; December 1, 2022; March 9, 2023; August 9, 2023, and essentially assert that the Employer’s conduct regarding the Grievor has violated Article 2 (Management Rights) and Article 3 (No Discrimination/Employment Equity) of the Collective Agreement; the Occupational Health and Safety Act; the Ontario Human Rights Code; the Workplace Safety and Insurance Act; and, the Respectful Workplace Policy.

3The Grievor is a long-term OPS employee and was working as an Office Administrator in a Crown Attorney’s office when she was injured in a motor vehicle accident. The accident resulted in a number of serious health challenges which required two years of intense physical and mental rehabilitation.

4The grievances alleged, inter alia, failure to accommodate the Grievor’s disability-related needs; fostering a poisoned and toxic work environment; failure to protect the Grievor from said environment; engaging in reprisals and other misconduct; removing/destroying the Grievor’s personal property; disclosing/misrepresenting information related to the Grievor’s WSIB claim resulting in denial of the claim; and bullying, mobbing and targeting the Grievor.

5The Employer’s challenges are dealt with below. As most of the argument focused on the substance of the first Grievance, and the analysis flows through to the others, I begin there.

TIMELINESS CHALLENGE:

First Grievance – January 14, 2022

6The events/instances alleged in the Particulars preceded the first Grievance are summarized below.

• May 5 to July 20, 2021 – a series of communications from the Acting Crown Attorney the Grievor are characterized as demeaning;

• September 14 & 15, 16, 2021 – Employer’s response to the Grievor providing a doctor’s note indicating she needed to work from a quiet area characterized as undermined the legitimacy of her accommodation needs in the eyes of coworkers. The request for a private office was not granted until October 29, 2021;

• October 2, 2021 – during her performance review with her newly hired Operations Manager the Grievor raised historic issues of inappropriate comments by the Operations Manager, the inappropriateness and tone of her emails, as well as her failure to respect the Grievor’s request not to communicate with her via “Teams”, as requested Sept 15 &16, 2021;

• October 14, 2021 - the Grievor’s Operations Manager made inappropriate comments when the Grievor could not crawl under a desk to set up a computer;

• October 20 & 21, 2021 - The Grievor again requested that her Operations Manager not communicate with her using “Teams”;

• November 1, 2021 – the Grievor’s Operations Manager refused the Grievor’s requests to work at home because of severe back pain;

• On November 9, 2021 the Employer requested more medical information in the context of the Grievor’s Return to Work plan, but it appears the Employer abandoned this request when reminded of an agreement on October 29, 2021 to require medical documentation less frequently;

• December 3, 2021 – the Grievor was required to supervise a contract employee regarding whom she had performance concerns as well as concerns regarding how she treated the Grievor. The Grievor indicates she had documented these concerns in 138 prior e-mails to management. The Grievor indicated the contract employee lost her temper with the Grievor on December 3, raising her voice. The Grievor informed her Operations Manager regarding what had occurred.

• December 10, 2021 – the Grievor’s Accommodation Plan was formally signed off “after repeated requests” to have the plan in writing.

• December 13, 2021 - Following a Fact-Finding Meeting regarding the December 3, 2021 incident referenced above, as well as questions regarding a transcript ordered on October 13, 2021, the Grievor was advised she would receive a revised job description to avoid future conflict - but had yet to receive it;

• December 20, 2021 - the Grievor was advised that no disciplinary action resulting from the Fact-Finding meeting would be taken, but that a non-disciplinary letter of counsel would be issued, and future incidents may result in disciplinary action, which the Grievor interpreted as a threat;

• December 17 – The Grievor filed a Workplace Discrimination and Harassment Prevention Policy (“WDHP”) complaint;

• December 23, 2021 – the Grievor’s physician decided she was too ill to work and she left work and qualified for Long Term Income Protection (“LTIP”);

• January 5, 2022 – the Grievor went on the Ministry’s “Short Term Sickness Plan”.

• January 10, 12, 2022 – unprompted, the “Business Professional” sent the Grievor job postings for positions outside their Ministry and attempted to contact her via email and text. The Grievor indicated that the actions of that individual had also given rise to the incident regarding a transcript matter raised in the Fact-Finding meeting;

• January 14, 2022 - the Grievor filed the first grievance.

7The first grievance, dated January 14, 2022 states:

I grieve that the employer has violated, specifically but not exclusively Article 3, No Discrimination/Employment Equity, the Occupational Health and Safety Act and the Ontario Human Rights Code, any & all other laws or statutes that may apply, by resisting the duty to accommodate by ignoring bona fide medical documentation and repeatedly demanding additional medical documentation; making vexatious comments related to my injury and abilities; fostering a poisonous and toxic work environment and not taking all reasonable precautions to ensure my physical and psychological safety in the workplace; engaging in reprisal after accommodation allowed; engaging in misconduct and allowing misconduct while disciplining me for performing duties outlined in my job description.

Employer

8The Employer pointed out that while the first grievance was filed on January 14, 2022, many of the events referenced in the particulars took place in the Fall of 2021. This is not entirely clear, however, as the Grievor settled a prior Grievance, dated November 22, 2019, on October 20, 2020 and the Particulars indicated the alleged harassment resumed “merely three months later”. This suggests the starting point is sometime in January 2021.

9In any event, the Employer characterized the first particularized event as the performance review meeting which occurred on October 21, 2021, during which the Grievor raised a number of concerns including comments she viewed as inappropriate regarding her medical condition and disability, and an on-going failure to accommodate her cognitive impairments by the continued use of messaging via “Teams”.

10The Employer pointed out the particulars then further refer to several instances where it is clear the Grievor knew the circumstances of her complaints, yet filed no grievance until January 14, 2022.

11Further, the Employer submits that three of the grievances are virtually identical, and maintains the Grievor ought not be allowed to collect events she alleges are violations and then file untimely grievances relying on those events, despite not having raised them with the Employer at the time. The Employer submitted that as recognized by GSB jurisprudence, this is unfair and prejudicial to the Employer.

12In that regard, the Employer pointed out the particulars refer to the Grievor providing a new medical [form] to the Disability Accommodation Specialist ("DAS") on October 5, 2021, and notes that her accommodation plan was not formally signed off until December 10, 2021, following her repeated requests, and subsequently states that her accommodation needs were repeatedly ignored.

13The Employer points out that the subsequent paragraphs refer to events in September and October 2021 as part of the impetus of these grievances.

14The Employer further points out that Article 22.1 of the Collective Agreement sets out the parties’ commitment to resolve such differences “as quickly as possible” and that consistent with Article 22.2, those grievances ought to have been filed within 30 days of the circumstances giving rise to the grievance. As a result, the Employer submitted the Grievances are from 1 year to a minimum of two months late. In such circumstances, Article 22.14.1 deems the grievances to be withdrawn as they are not filed in timely manner.

15In anticipation of the Union’s response, the Employer maintained that the “three-year rule” is not applicable in these circumstances, as there was no “pattern” of conduct. Rather, there was only a series of allegations against different members of management and others, that are not connected.

16The Employer also pointed out that the Grievor’s prior grievance, dated November 22, 2019 (settled October 20, 2020) made similar allegations, and demonstrated the Grievor was fully aware of the availability of the grievance process to address her concerns.

17In support of its argument that the Grievances were out of time, the Employer referred to the following cases.

18In OPSEU (Finn) v OMAFRA GSB# 2017-0553 (Dissanayake), Arbitrator Dissanayake was seized with 8 grievances, and as in this instance, the Employer brought a motion on the basis that some aspects of the grievances were untimely and ought to be dismissed. Despite the Union’s argument that those elements were all part of the overall accommodation grievance and therefore timely, Arbitrator Dissanayake disagreed. He stated:

10In the instant case, if the union is asserting that the facts underlying the four issues support its grievances on the larger issue, [accommodation, discrimination and harassment] subject to relevance, it would not be precluded from leading that evidence because of the 30 day time limit in article 22.2.1.

11However, that is not what the union has done. It has grieved the employer decisions themselves. The decision that a conflict of interest exists; that it would not be providing any further disclosure relating to the COI process; that the grievor is required to use CTO credits pending the completion of the investigation; that as a result of the finding of conflict his headquarters is changed; and that a specific period of absence will not be treated as a period of leave with pay and must be treated as sick leave. (sic) It may be that the two grievances raise some factual assertions relevant to the larger issue, which the employer agrees is properly before the Board. If so, the union may rely on those facts in support of that larger issue. What it is not entitled to do is to file grievances outside the time limits grieving employer conduct as discreet violations, and seeking remedies with respect to those alleged violations. For example, the COI grievance states “I grieve that the employer has failed to provide me with the requested full disclosure on a COI form”. The sick leave grievance alleges that the employer required the grievor to use sick credits for a period when he was not sick. In the COI grievance the remedial request challenges the employer’s decision that a conflict of interest exists and the decision to change the grievor’s headquarters as a result. In the same grievance, the grievor seeks an order that he receive the disclosure relating to the COI process denied by the employer. He seeks a finding that he can be assigned to the location where the employer had concluded a conflict existed. In the sick leave grievance he seeks an order that “I be put on paid leave for this period”. Thus discreet allegations are made and most importantly, redress is sought with respect to those allegations. These aspects of the grievances are not insulated from the timeliness requirements in the collective agreement, simply because the larger issue is also referred to in these grievances. [emphasis added]

19The Employer pointed out that, as set out above, Arbitrator Dissanayake conceded that while it was possible that some of the allegations related to the larger issues of accommodation, discrimination and harassment, but even so, that did not mean that they could be grieved as discreet issues outside the timeline. As a result he found those two grievances untimely.

20The Employer submitted that reasoning is directly related to the Grievances in this instance.

21In any event, Arbitrator Dissanayake, having found the two grievances untimely, also refused to extend the timeline for filing the grievances pursuant to section s. 48(16) on a similar basis:

17Having carefully considered the respective submissions of the parties, the Board upholds the employer’s motion. The union’s view that the four issues, as grieved are part of a continuing grievance, however honestly held, was not correct for the reasons set out above.

18It also follows that the nature of the grievances as they relate to the issues in question are not about human rights. They are about specific decisions the employer made with regard to conflict of interest, CTO credits and how to treat a specific period of absence by the grievor; matters that fall in the lower end of the spectrum of seriousness.

22Finally, Arbitrator Dissanayake held that the union’s reliance on the lack of prejudice to the employer was of no assistance to it, and that in any event, the delays of 10 months; 7 months; 17 months and 3 ½ months were not minimal.

23However, having refused to entertain those issues on their own merits, I note that Arbitrator Dissanayake indicated in paragraph 20 that the union was not precluded from relying on any relevant facts related to those issues in support of its allegation in the grievances on the larger issue which the employer has agreed is properly before the Board.

Union

24I should note that the Union, in making its submissions, referred primarily to allegations set out in an earlier brief prepared for mediation (the “Mediation Brief”) as well as the particulars filed.

25The Union submitted that despite the Grievor’s desire and efforts to return to work, her transition back to the office was “contentious and disruptive”.

26As indicated above, once her earlier grievance was settled in October 2020, the Union submitted the relationship between the parties was strained.

27The Union submitted this strain was apparent in the disregard the Grievor’s Operations Manager had for her required modes of communication; her differential treatment of the Grievor’s requests to work from home; and, a number of discriminatory and harassing comments, the thrust of which was that the Grievor’s accommodation needs were not boni fide or placed an unfair burden on her colleagues.

28The Union characterized the Grievor’s December 3, 2021 interaction with the contract employee she was supervising, as well as the Employer’s decision not to discipline the contract employee but rather issue a counselling letter to the Grievor, as part of the harassment and toxic environment the Grievor experienced.

29The Union characterized this as the “culmination” that led the Grievor to file the initial grievance before me, on January 14, 2022.

30The Union submitted that this Grievance, (as well as those filed on June 8, 2022, December 1, 2022, and August 9, 2023, set out below,) describes the harassment and discrimination experienced by the Grievor.

31The Union submits they are all timely because of the Employer’s continuing obligation to maintain a safe work environment and fulfill its duty to accommodate her needs.

32The Union further submitted the Employer’s failure to maintain a safe work environment and to accommodate the Grievor was ongoing and continued to this day, and ought to be treated as a “continuing grievance”.

33In that regard the Union referred to OPSEU (Barbosa) v MAG 2024 CanLII 83893 (ON GSB), in which Arbitrator MacLean, at paragraph 39 referred to the following description of a “continuing grievance”:

39In Re Port Colboume General Hospital and O.N.A., supra, at pp. 327-28, Arbitrator Burkett discussed what makes a "continuing" grievance:

It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium or payment required under the collective agreement on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance.

34In that instance, Arbitrator MacLean found an alleged denial of sick leave credits to an employee accommodated by not being required to work full time hours to be an ongoing breach as it was not the employer’s initial decision (which would be out of time) that was being grieved, but rather the alleged consequence of that change in practice which was ongoing.

35The Union also relied on the decision in OPSEU (Belgrave) v Ministry of the Attorney General, 2023 CanLII 61427 (ON GSB) in which Arbitrator Waddingham reached the same conclusion based on a similar fact situation.

36In addition to relying on Arbitrator MacLean’s decision in Barbosa, supra, Arbitrator Waddingham also referred to Arbitrator Abramsky’s decision in OPSEU (Hunt et al.) v Ministry of the Attorney General (2003) GSB# 0534/01, in which Arbitrator Abramsky considered the definition of a “continuing grievance” drawn from the 1981 edition of Evidence and Procedure in Canadian Labour Arbitration (p. 35), as set out in Re British Columbia and B.C.N.U., 1982 CanLII 5128 (BC LA), 5 L.A.C. (3d) 404 (Getz), at page 415:

The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the part (sic) in breach violate a recurring duty. When a duty arises at intervals, and is breached each time, a “continuing” violation occurs, and the agreement’s limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases, without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of damage.

37The Union maintained the Grievances alleging harassment are a reflection of the continued course of harassment, and are all unified by the fact co-workers did not accept the boni fides or necessity of the Grievor’s accommodation needs and communicated that to her.

38The Union characterized this as continuing into December of 2021, and submitted that each time this harassment/comments occurred, the Grievor’s complaint was “refreshed” - with the most recent event being the Employer’s failure to address the harassment that occurred during the Grievor’s interaction with the contract worker.

39The Union argued that since the January 14, 2022 Grievance was filed within the requisite 30 days of that occurrence, all the other alleged instances of the Employer’s failure to protect the Grievor from a toxic workplace referenced in the Grievance were also timely.

40The Union further submitted that in accordance with the following quote from Brown & Beatty, Canadian Labour Arbitration, 5th Edition § 2:62 - Compliance with the Grievance Procedure—Time-limits, the Employer’s alleged failure to ensure a safe workplace is a continuing breach:

Where the violation of the agreement is of a continuing nature, compliance with the time-limits for initiating a grievance may not be as significant unless, of course, the collective agreement specifically provides that in those circumstances the grievance must be launched within a fixed period of time. Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach. They may arise in such circumstances as an illegal strike, failure to ensure a safe workplace, the non-payment of money or benefit premiums, or in connection with decisions based on an improper seniority date or the assignment of work. And although a refusal to deduct union dues has not been classified as a continuing violation, other arbitrators have reached the opposite conclusion. In any event, the test most commonly used in determining whether there is a continuing violation is the one derived from contract law, namely, that there must be a recurring breach of duty, and not merely recurring damages.

41Although not disputed, the Union also maintained that the Grievances regarding the Employer’s failure to accommodate the Grievor so as to enable her to return to work were all timely, and as argued above, constitute a continuous breach of the Employer’s duty to accommodate the Grievor, resulting in the finding the Grievor was totally disabled.

Analysis:

42Article 22.13.1 of the Collective Agreement provides:

Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the Formal Resolution Stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the grievance.

43As indicated by Counsel for the Employer, Article 22.14.1 deems the grievances to be withdrawn as they are not filed in timely manner.

44In this instance, as with the allegations that are timely, the allegations that fall outside the 30 day time limit allege harassment and discrimination and failure to accommodate, but refer to specific discrete events, involving at times, different individuals, and different circumstances.

45Specifically, while the Grievance alleges “discriminatory treatment”, some of the allegations involve resisting the duty to accommodate by ignoring bona fide medical documentation; some allege vexatious comments related to the grievor’s injury and abilities; some allegation reprisal, and unfair discipline, etc.

46These allegations are distinct violations or harms regarding which the Grievor ought to have been aware of her right to grieve, and her duty to do so in a timely manner.

This is readily distinguished from the circumstances in Treasury Board (Correctional Service of Canada) (2009), 2009 PSLRB 1, 181 L.A.C. (4th) 166 (P.S.L.R.B., Bédard), relied on for the principle that an Employer's alleged failure to ensure a safe workplace is a “continuing breach”. In that case, the employer's failure to eliminate second-hand smoke over a lengthy time span was found to be arbitrable. It was continuing violation of the same duty, and consistent with the jurisprudence defining such breaches.

47Whereas, as indicated above, the facts in this instance involve different circumstances, individuals, types of conduct and (it appears) at times different locations. These desperate events are not consistent with what the jurisprudence has recognized as a continuing grievance. Accordingly, I do not find they constitute a continuing grievance.

48Rather, as argued by the Employer, the circumstances in this instance are similar to the circumstances in Finn, supra, referenced in paragraph 18 above, and in which Arbitrator Dissanayake held that a union may raise some factual assertions if they are relevant to a larger issue raised in a timely grievance. However, if those factual assertions are out of time, they cannot constitute separate grievances as they are not insulated from the timeliness requirements in the collective agreement, simply because they raise the same issue as raised in a timely grievance.

49I am persuaded the above approach is correct. Accordingly, while it is true that a series of events can constitute a failure to ensure a safe workplace, and while such events may raise some factual elements that are relevant to any issues which I may find are properly before me, this does not convert discrete untimely events into timely violations for which a remedy may be sought.

50Accordingly, I find those allegations grieved which occurred earlier that 30 days prior to January 14, 2022, i.e. December 1, 2021 are out of time pursuant to Article 22.2 of the Collective Agreement.

Section 48(16) of the Labour Relations Act, SO 1995, c 1, Sch A

51There is no dispute that a grievance filed outside the time limits set out in the collective agreement is not arbitrable unless the Board exercises its discretionary power under section 48(16) of the Labour Relations Act, to extend the time limits.

Employer

52The Employer relied on arbitral authority which provides that in order to extend time limits for filing a grievance pursuant to section 48(16) of the Labour Relations Act, an arbitrator must be satisfied there are reasonable grounds for the extension, and that such an extension will not substantially prejudice the opposing party. Counsel for the Employer emphasized that both conditions must be satisfied. (see OPSEU (Liantzakis) v MCSCS GSB#2008-3252 (2011) (Petryshen).

53In Liantzakis, supra, Vice-Chair Petryshen stated:

14The effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party. Both conditions must be satisfied. The relevant factors for consideration when determining whether to exercise the discretion to extend time limits were canvassed in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2nd) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3rd) 1 (Schiff). Arbitrator Burkett identified the following factors:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

After identifying these factors, the arbitrator went on to state:

If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits.

15Arbitrator Schiff referred the following factors [sic]:

1. The nature of the grievance.

2. Whether the delay occurred in launching the grievance or at a later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the Employer could reasonably have assumed the grievance had been abandoned.

54While the Employer submitted that neither condition had been met in this instance, it maintained that if I were to find there were reasonable grounds for granting the extension, the second condition could not be met as the Employer would be prejudiced.

55Specifically, The Employer maintained that if I were to exercise my discretion to allow references to events earlier than 30 days prior to the date of the Grievances, the Employer would experience real prejudice because the delay was lengthy, and the Operations Manager referred to in the particulars no longer works for the Employer. The Employer submitted that had the Grievor set out her complaints in timely grievances, they would have been addressed, but she instead chose to initiate a WDHP investigation.

Union

56The Union, on the other hand, submitted that if I did not find all elements of the Grievances timely, I ought to extend the timeline pursuant to section 48(16) of the Labour Relations Act.

57While the Union acknowledged the factors set out in Becker Milk and as referenced in Liantzakis, supra, it made the following submissions.

58In the first instance, the Union submitted that the nature of the Grievances was of high importance, as the alleged misconduct had an extremely serious impact on the Griever and her life, as work is integral and important to people’s lives.

59The Union pointed out that as recognized by the Board in OPSEU (Del Casale) v Ontario (Ministry of Government and Consumer Services) (2022) 2022 CanLII 31331 (ON GSB), comments or conduct that in isolation may appear to be innocuous, when viewed in a greater context, can be understood to be harassment.

60Accordingly, the Union submitted that in this instance, when considered in context, the comments and e-mails referenced were clearly continuing and ongoing harassment that singled the Grievor out because of her disability and accommodation needs.

61The Union also submitted that the length of delay, unlike suggested by the Employer, was not some years, but rather was “quite small” (but was unquantified by the Union).

62The Union also maintained that any delay was the result of the Grievor’s genuine efforts to work with the Employer to resolve her accommodation needs, and that the Grievor filed her first Grievance as soon as it was apparent those efforts were fruitless.

63Finally, the Union disputed the Employer’s assertion of prejudice resulting from the delay. In that regard, the Union pointed out the Employer had conducted and completed its own investigation into similar comments and conduct after the Grievor filed her initial Grievance, dated November 22, 2019. (settled on October 20, 2020).

64Further, the Grievor’s WDHP complaints against the same individuals were found to be potential breach(es) of the Respectful Workplace Policy. While not submitting that investigation established the merits of her grievances, the Union maintained that it showed the Employer was not deprived of its ability to conduct an investigation and reach conclusions, without raising any concerns that timing of her complaint made it difficult for the Employer to do so.

65The Union submitted that accordingly, the lack of prejudice supports a determination that these very important Grievances should be allowed to proceed, even if I find they were not filed in time.

Analysis:

66While I agree the allegations contained in the Grievance regarding the conduct and comments of the named individual are serious, this alone is not sufficient reason to extend the timeline for this (and the other grievances that are intended to capture the same allegations).

67The seriousness of the allegations weighs both for and against extending the timeline. Parties ought to be given timely notice that they may be held liable for “serious” violations to enable them to provide a comprehensive response.

68The Union submitted any delay was because the Grievor was attempting to resolve her accommodation needs with the employer. While commendable, this does not negate the need to ensure parties receive timely notice of disputes to enable them to respond without being prejudiced by delay.

69In this instance, given that the Grievor had previously grieved unwelcome and inappropriate comments and conduct in her earlier grievance, it cannot be said she was unaware this avenue was again available to her. Confronted with allegedly similar conduct it is not apparent why she did not grieve it.

70Furthermore, while I agree the allegations are not years out of date if the January 14, 2022 Grievance is considered, they are when some of the subsequent Grievances are considered. In any event, given that the particulars indicate that the harassment resumed a “mere three months” after the Grievor’s earlier Grievance was settled, on October 20, 2020, this would indicate a resumption sometime in January 2021. Allegations from that time period would be approximately one year old, even regarding the first Grievance. This is not insignificant.

71It is apparent that the Grievor, being aware of her options, chose to proceed with a WDHP complaint alone. However, while conceding that that investigation did not establish the merits of her Grievances, the Union now relies on it to suggest the Employer’s ability to meet the Grievor’s case ought to be limited to whatever occurred in the course of that investigation. I am not persuaded that eliminates the usual prejudice that accompanies delays when disputes are not addressed in a timely manner.

72Nor does the Employer’s opportunity to investigate the Grievor’s earlier Grievance, settled in October 2020, in any way diminish the Employer’s need for reasonable notice to enable it to investigate allegations that occurred in 2021.

73Which gives rise to another consideration, listed by Arbitrator Schiff, which warrants consideration in this instance. The delay in bringing these allegations of discriminatory and harassing treatment etc., was at the initial stage of the grievance process, so the Employer would not have been aware, in a timely manner, of any of these allegations, or the Grievor’s intention to pursue them in a Grievance.

74This alone weighs toward prejudice to the Employer.

75The fact the Operations Manager, who figures prominently in the particulars, is no longer employed with the Employer, compounds that prejudice.

76Accordingly, for the reasons set out above, I am not persuaded this is a matter in which I should exercise my discretion to extend the timeline for bringing a Grievance pursuant to Section 48(16) of the Labour Relations Act.

77Accordingly, I find the events alleged to have occurred 30 days prior to January 14, 2022 remain out of time.

Three-Year Rule

78This gives rise to the Union’s submission that the “three-year rule” ought to allow those prior particulars to be relied upon to support the allegations.

Employer

79The Employer, in anticipation of the Union’s argument, emphasized that the three-year rule is not a “rule” but is a “guideline” and the events relied upon must serve to illuminate allegations of improper employer conduct.

80In that regard the Employer referred to Arbitrator Herlich’s decision in OPSEU (Barnard et al) 2024 CanLII 400812024:

19I pause to briefly consider what has come to be known as the “three-year rule” the Board has applied in cases alleging harassment and discrimination. This “rule” permits a grievor to plead and rely on events prior to those giving immediate rise to the grievance in order to establish a historical pattern of improper employer conduct amounting to harassment and discrimination. Such events, but for the application of the “rule”, would otherwise be treated as stale dated and evidence concerning them would therefore normally be excluded. As arbitrator Anderson observed in OPSEU (Cooper) v. Ontario Clean Water

Agency 2019 CarswellOnt 6090, 139 C.L.A.S. 226 (at para. 4):

… when the grievance alleges harassment, the GSB has permitted the union to lead evidence of earlier events in order to prove a pattern of harassment. At the same time, the GSB has generally limited such evidence to the three years before the grievance so that the employer will be able to defend itself. This has become known as the "three year rule". The "rule" is not really a rule but rather a guideline which is flexibly applied depending on the circumstances of a particular case. (emphasis added)

20And, of course, the three-year rule does not provide a license to adduce events of anything at all that has transpired in the three-year period preceding the grievance. It permits only a consideration of events which may serve to illuminate the claim of a pattern of improper employer conduct amounting to harassment.

81The Employer submitted that as stated by Arbitrator Herlich, the real question is the extent to which a party ought to be allowed to rely on stale events to bolster its case. It maintained that in this instance, it was not applicable as there was no timely grievance before me. In that regard, the Employer again relied on the following statement by Arbitrator Herlich in Barnard, supra:

[25] …The Barker case demonstrates, that while overlapping considerations may apply, the exercise of arbitral discretion to extend time limits and the proper application of the three-year rule are, strictly speaking, separate and discrete matters. However, before there can be any explicit consideration of the three-year rule, there must be a timely grievance (or one in which the arbitrator has exercised discretion to relieve against time limits).

Union

82The Union submitted that it was the Board’s “typical practice” to submit evidence up to three years prior to the latest event to demonstrate harassment, and suggests this ought to occur in this instance.

83However, the Union acknowledged that any application of the three-year rule would, in any event, be subject to the further time limits resulting from the Minutes of Settlement (addressed below) and does not attempt to rely on any factual allegations prior to October 20, 2020.

Analysis:

84As pointed out by the Employer, and as stated by Arbitrator Anderson in Cooper, supra, and also by Vice-Chair Herlich in OPSEU (Poblete) v Ministry of Government and Consumer Services, 2019 CanLII 21745 referenced by Arbitrator Dissanayake in Finn, at paragraph 9, the three-year “rule” is no such thing:

9In Poblete, 2017-0709 (Herlich) the Board described its approach as follows at para. 5:

5A brief comment on the strategic manner in which the employer chose to order its motions will be useful. Without unnecessarily surveying the jurisprudence, it is fair to say that this Board (and other arbitrators) have exhibited some flexibility in relation to the strict application of time limits or the adducing of evidence regarding events which significantly pre-date the filing of a grievance in cases where an ongoing pattern of improper discrimination or harassment is alleged. For example, in OPSEU (Lunan) and Ministry of Labour, GSB Nos. 2013-0513 et al, May 15, 2015 (Leighton), this Board confirmed a guideline that permits a grievor alleging an ongoing pattern of harassment and discrimination to adduce evidence covering a period of three years prior to the filing of the grievance (it is a guideline, not a rigid rule – each case is to be considered on its particular facts). It is clear, however, that the consideration of time limits or the adducing of evidence regarding what might otherwise be stale events may be very different in a case alleging ongoing discrimination as compared to, say, a more conventional job posting case. (emphasis added)

85It is also key, as Arbitrator Herlich pointed out in Barnard et al, supra, that any application of the three-year rule requires a timely grievance that in effect acts as an “anchor” for the prior events that allegedly constitute a pattern.

25… [W]hile overlapping considerations may apply, the exercise of arbitral discretion to extend time limits and the proper application of the three-year rule are, strictly speaking, separate and discrete matters. However, before there can be any explicit consideration of the three-year rule, there must be a timely grievance (or one in which the arbitrator has exercised discretion to relieve against time limits). (emphasis added)

86That means that the timely event must arguably be part of a pattern, which may be established by viewing prior events of the same character or nature as those alleged in a timely grievance.

87In this instance, I have determined the First Grievance, filed January 14, 2022 is a timely grievance, to the extent it covers the events referenced in the particulars which occurred within the 30 days prior to and including January 14, 2022, the date of the Grievance. However, as seen below, the particulars regarding such events are limited.

88I should note that while the particulars indicate that on December 10, 2021, the Grievor's Accommodation Plan was “formally signed off”, I do not understand that to be the concern. Rather, I understand the complaint to be that although agreement regarding the Grievor’s accommodation was in place, it was not reduced to writing until December 10, 2021, and this occurred only "after repeated requests". However, these “repeated requests” are undated and unparticularized. Accordingly, there is no basis on which to find, that they are timely.

89This brings us to the chain of events arising from what the Particulars referred to as the December 3, 2021 “Workplace Bullying Incident” and “Management Retaliation” in a Formal Fact-Finding Meeting”, as well as the final events, which the Particulars characterize as “continuing harassment and targeting” when the “Business Professional” back-filling the Grievor’s position sent the Grievor, unprompted, job postings for positions outside their Ministry. January 10, 12, 2022 was the first occasion on which the job posting(s) was sent, with more sent on later dates.

90While more will be said below under the Employer’s prima facie challenge, these are discrete incidents, the particulars of which are too ill defined for me to make a finding they are a sufficiently similar character to constitute a pattern, which would provide an anchor to trigger the three-year rule, so as to reach back to consider and give weight to prior events that are, on their face, out of time and of a different character.

91Accordingly, I find this is not a situation in which application of the three- year rule is appropriate.

Second Grievance – June 8, 2022

92The events/instances alleged in the Particulars preceded the second Grievance are summarized below.

93The Particulars indicate that on December 17, 2021, the Grievor filed a WDHP complaint, and that on March 28, 2022, the WDHP Unit advised that potential breaches of the policies by a number of individuals had been found.

94On April 28, 2022, the Grievor met with the Director, Ms. Weeks. Ms. Weeks asked for ideas on how to move forward to facilitate a positive working relationship between the Grievor and her colleagues. The particulars indicate the Grievor simply stated she wanted to be able to do her job “free of harassment and not be scared to come to work.” Ms. Weeks advised that the breaches would be handled by “Direct Management Action”.

95In the Union’s mediation brief, reference is made to physician’s notes provided to the Employer on March 10, April 21, April 23, May 24, June 2, 2022, indicating the Grievor could return to work with the previously recommended accommodations. However, the Employer continued to refuse to return her to her employment.

96The particulars state that in preparation for a potential return-to-work, on June 6, 2022 the Grievor reached out to the WDHP Unit for status of the remedy, as the 30-day requirement had surpassed.(sic) (It appears there was no satisfactory response, as the Grievor indicates she followed up again on June 16, 23, August 2 and 15, 2022).

97The Grievor filed her second Grievance on June 8, 2022. It stated:

I grieve that the employer has violated, specifically but not exclusively Article 3, No Discrimination/ Employment Equity, the Occupational Health and Safety Act and the Ontario Human Rights Code, any and all other laws or statues that may apply, by resisting the duty to accommodate, by ignoring bona fide medical documentation and repeatedly requesting additional medical documentation; making vexatious comments related to my injury and abilities; not taking all reasonable precautions to ensure my physical and psychological safety in the workplace.

Employer

98The Employer conceded that the discrete issues of accommodating and reinstating the Grievor are properly before me.

Union

99The Union conceded this second Grievance repeated some of the allegations contained in the first Grievance, but maintained the essence of the Grievance was the ongoing failure to return the Grievor to her workplace.

Analysis:

100Other than the allegations regarding vexatious comments, and the failure to ensure the Grievor’s physical and psychological safety, which I have dealt with above, the thrust of the Grievance is the ongoing failure to provide the required accommodation and return the Grievor to the workplace.

101As the last note on which the Grievor relied, to which the Employer failed to respond was dated June 2, 2022, the allegations regarding the failure to accommodate the Grievor and return her to work set out in this Grievance comply with the 30 day time limit set out in Article 22.2 of the Collective Agreement. Consequently, those elements of the Grievance are timely.

Third Grievance – October 24, 2022

102The events/instances alleged in the Particulars which preceded the third Grievance are summarized below.

103The Particulars indicate that on August 5, 2022 the Grievor attended the office in order to surrender her Ministry-issued assets. During this time, a box of her personal belongings was returned to her. However, personal items, totaling over $600, not including “irreplaceable” items, were missing.

104On October 14, 2022, Mr. Pakrashi, the new Operations Manager advised the Grievor that he had “come to the conclusion that he could not verify that the items were left behind as no one remembered seeing them. The items were never found and the Particulars indicate their loss led the Grievor to believe that the harassment would continue under new management should she return.

105The Grievor filed her third Grievance on October 24, 2022. It states:

I grieve that the employer has violated, specifically but not exclusively, Article 3 No Discrimination/Employment Equity, the Occupational Health and Safety Act, the Ontario Human Rights Code and any other articles, laws or statutes that may apply, by directly or indirectly removing/losing/destroy my personal property including items provided by my medical team, items of significant sentiment, and other items left in my office at the time of medical leave. The loss of these items has impacted both my physical and psychological health and wellbeing.

Analysis:

106The Employer made no submissions challenging the timeliness of this Grievance. As it was filed a mere 6 days following the advice that the missing items had not been found, this Grievance is timely, as it complies with the 30 day time limit set out in Article 22.2 of the Collective Agreement.

Remaining Grievances

107The remaining three grievances deal with what the Particulars characterize as the Employer delays regarding the Grievor’s return-to-work efforts.

108In that regard, the Union submitted the Grievances filed December 1, 2022 and August 9, 2023 were not strictly necessary, but signaled the Grievor's intention to continue to address the Employer's ongoing failure in its duty to accommodate her, and in that regard were filed within the requisite 30 days.

109The Employer simply pointed out the issue of the Grievor’s entitlement to accommodation and reinstatement were already before me.

Fourth Grievance – December 1, 2022

110The events/instances alleged in the Particulars preceded the fourth Grievance are summarized below.

111The Particulars point out the Grievor went off work on December 23, 2021 and remains on LTIP to this day.

112The Particulars allege the Employer has stalled the Grievor's return-to-work efforts by repeated requests for medical information; failing to confirm her accommodations; or remediate the workplace so she can safely return.

113The Particulars state that on August 25, 2022, Manulife informed the Grievor that while the Employer could support her temporary physical restrictions and limitations, they needed further clarification for her permanent medically-supported cognitive restrictions and limitations before they could confirm their ability to accommodate her.

114The Particulars indicate the Grievor sent Manulife her December 20, 2021 Employment Accommodation Plan and her October 5, 2021 Health Information Summary and return-to-work plan dated July 6, 2021.

115However, on September 15, 2022, Manulife informed the Grievor that her return-to-work was on hold due to the Employer's request to clarify current medically-supported restrictions and limitations.

116On November 8, 2022, the Grievor was informed that her return-to-work was on hold until she participated in a Functional Capacity Evaluation (FCE) as the Employer wanted more information about restrictions and limitations.

117The Fourth Grievance, dated December 1, 2022 states:

The [sic] has violated, specifically but not exclusively, Article(s) 2, Management Rights, Article 3 - No Discrimination/Employment Equity, the Occupation Health and Safety Act, the Ontario Human Rights Code and any other laws or statutes that may apply, by continued failure to accomodate,[sic] repeated requests for medical which has been supplied, not speaking to me about my accomodation [sic] needs or making attempts to create an environment that I can return to work in.

118As this Grievance was filed within the 30 days following the Grievor being advised that her return to work was still on hold, this Grievance is timely, as it complies with the time limit set out in Article 22.2 of the Collective Agreement.

Fifth Grievance – August 9, 2023

119The events/instances alleged in the Particulars preceded the fifth Grievance are summarized below.

120The Particulars state that on April 6, 2023, Manulife provided the Grievor with a graduated return to work plan.

121The Grievor responded by asking for a copy of her revised job description, an amended reporting plan and a list of the permanent accommodations her Employer had agreed to. She also requested a meeting with her Disability Accommodation Specialist, her legal counsel, her union representative and her Manager before return-to-work efforts could start.

122The Particulars indicate that no one responded to the Grievor’s request. Instead, the Employer again requested more medical information.

123On May 29, 2023 the Grievor reached out to Manulife for status of her return-to-work and inquired if the Employer was ready to discuss accommodations, provide a revised job description, to clarify supervisory duties, and an amended reporting plan.

124However, on July 28, 2023, Manulife advised the Grievor that the Employer was unable to accommodate her permanent cognitive restrictions.

125The fifth Grievance, dated August 9, 2023 states:

I grieve that the Employer has violated, specifically but not exclusively, the Collective Agreement Article 2 - Management Rights, 3 - No discrimination/Employment Equity, the Ontario Human Rights Code and any other articles or legislation that may apply, by refusing my multiple requests for an accommodation meeting, and refusing to review my previous accommodation to determine how it could be amended to meet my current limitation and restrictions. Subsequent to me reaching out on July 12th to enquire about completion of the last step in workplace restoration resulting from the WDHP report, my LTIP Rehab file was closed as the employer advised Manulife that they are unable to accommodate the restrictions and limitations.

Analysis:

126It was not disputed that as the Grievor was advised on July 28, 2023 regarding the Employer’s position that it could not accommodate her, this is within 30 days of the Grievance date of August 9. 2023. Accordingly, this Grievance is timely, as it complies with the time limit set out in Article 22.2 of the Collective Agreement.

The Sixth Grievance – April 2, 2024

127The events/instances alleged in the Particulars preceded the sixth Grievance are summarized below.

128The Mediation Brief states that on January 19, 2022, the Grievor filed Grievances # 2022-0710-0001/3/5/50, 2023-0710-0002/3/5, and 2024-0710-0002, alleging her claim to WSIB in relation to her mental health leave was dismissed, in part, because Ms. Follis and Ms. McCann made misrepresentations concerning her work performance to the claim assessor. These grievances are not before me. However, the Mediation Brief states that Mr. Pakrashi made similar misrepresentations to Manulife on July 5, 2023 when he informed them that the Employer was no longer able to accommodate her. The only other reference to Mr. Pakrashi in either the Particulars or the Mediation Brief is to the exchange regarding the alleged loss of the Grievor’s

129The sixth Grievance, dated April 2, 2024 states:

I grieve that the Employer, specifically Mr. Pakrashi has violated, specifically by not exclusively Article 2 Management Rights, Article 3-No Discrimination/Employment Equity, Discrimination based on disability, Occupational Health and Safety Act, Ontario Human Rights Code, Respectful Workplace Policy and any other laws or statutes that may apply by disclosing and misrepresenting information related to my occupational illness/injury to Manulife Case Manager and Functional Rehab Specialist; MAG Disabilty [sic] Accomm Specialist, resulting in closure of rehab and all return to work efforts ceased, making vexatious comments related to injury, abuse of managerial, positional power to target and any other Articles, or legislation that may apply.

Analysis:

130The reference in the Mediation Brief makes it apparent this Grievance takes issue with Mr. Pakrashi's actions on July 5, 2023, almost nine months prior to the filing of the Grievance. Accordingly, it is clearly outside of the 30 day time line set out in Article 22.2 of the Collective Agreement, and stands to be dismissed on that basis.

Minutes of Settlement

Employer

131The Employer also relied on the Minutes of Settlement (“MOS”), dated October 20, 2020, entered into to resolve the Grievor’s first Grievance.

132The Employer submitted the terms of the Minutes of Settlement are also relevant to its timeliness challenge.

133Specifically, the Employer pointed out that the MOS contains “whereas” clauses indicating that on her gradual return to work, the Grievor had experienced derisive comments from co-workers. The MOS then indicates the MOS resolves all claims, complaints, grievances etc. the Grievor has or may have against the Employer inter alia.

134The Employer submitted that while the particulars indicate that in 2021 the Employer continued in its failure to address the Grievor’s complaints, rather than bring another Grievance, the Grievor “sat on her hands”.

135Accordingly, the Employer submitted it would be inappropriate, and contrary to good labour relations for me to assume jurisdiction of or hear any evidence regarding allegations predating the MOS. (see 2009 CanLII 43624 (ON GSB)

Union

136The Union submitted it was clear from the Particulars that it was not attempting to grieve or rely on anything that occurred prior to the signing of the MOS.

137However, if the Employer was also taking the position that those allegations that were similar to those addressed in the MOS could not be pursued, such an extraordinary remedy ought to be rejected, as was the case in OPSEU (Fitzpatrick) v Solicitor General, 2024 CanLII 40068 (ON GSB).

Analysis

138The parties are in agreement that as a result of the MOS, any events up to and including the date of the MOS are not before me, and will not be pursued or relied upon by the Union.

139It was not clear to me that the Employer wished to preclude reference to any events after the date of the MOS, but in any event, the language of the MOS is clear that the parties’ intentions were to release the Employer from any allegations of discrimination only up to the date of the MOS. To reach beyond that would indeed be extraordinary and would require the clearest language to that affect. There is no language in the MOS which supports such an interpretation.

Monk

Employer

140The Employer pointed out the Grievor applied for WSIB in June 2022. Accordingly, the Employer argued that aside from my determination regarding the timeliness of the Grievances, any backpay or top up of wages for the applicable period claimed by the Union would not be within my jurisdiction, pursuant to the Board’s decision, in OPSEU (Monk) v. Ontario (MCSS and MCYS) (2010) GSB #1995-1694 (Gray).

141As summarized by Vice-Chair Gee in OPSEU (Mohamed) v Ministry of the Attorney General, 2017 CanLII 47186 (ON GSB), in Monk, Vice-Chair Gray held as follows:

10Following a thorough review of the historic context at paragraphs 7 through 15 and jurisprudence of the WSIA at paragraphs 28 through 82, Vice-Chair Gray concluded at paragraph 110 that the Board is without jurisdiction to “award a grievor damages for or by reason of an accident happening to the worker … if the alleged accident … was compensable under the … WSIA”.

11Monk was upheld both on judicial review (OPSEU v. Ontario et al, 2012 ONSC 2348 and on subsequent appeal (Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2013 ONCA 406). It has also been cited with approval and consistently followed by the Board since.

Union

142The Union submitted that if I find that Monk precludes an award of damages, I still retain jurisdiction to make declarations or other directions.

143Accordingly, the Union submitted it was premature to deal with the motion as a preliminary matter, and I will be better positioned to determine my jurisdiction in this matter, once I hear all the evidence.

144The Union further pointed out similar motions had been considered many times by the Board, and consistently deferred until the evidence was heard. In OPSEU (Thibideau) v Ministry of Children and Community and Social Services, 2024 CanLII 83884 (ON GSB) Arbitrator O’Neil held:

16Having carefully considered all of the jurisprudence cited, I am persuaded that the approach to similar claims adopted in the Parrack decision, and the jurisprudence discussed therein, remains sound. I find that the aspects of the grievances which deal with accommodation and health and safety matters during the return to work period invoke rights separate and severable form those under the WSIA, and are therefore within the jurisdiction of the Board, and may proceed. If a breach is found, full argument is available on the question of whether the remedy should include anything beyond declarations and directions, and if so, in what amounts, in light of the jurisprudence as it stands at the time. As in Parrack, I find it premature to rule out the possibility of damages at this stage, where the factual basis before me does not make it clear that the claims of breach of the statutory and collective agreement health and safety provisions intrude on territory reserved for the processes under the WSIA.

145I am in agreement with Arbitrator O’Neil in Thibideau, supra where she stated at paragraphs 16 and 18:

16Having carefully considered all of the jurisprudence cited, I am persuaded that the approach to similar claims adopted in the Parrack decision, and the jurisprudence discussed therein, remains sound. I find that the aspects of the grievances which deal with accommodation and health and safety matters during the return to work period invoke rights separate and severable form [sic] those under the WSIA, and are therefore within the jurisdiction of the Board, and may proceed. If a breach is found, full argument is available on the question of whether the remedy should include anything beyond declarations and directions, and if so, in what amounts, in light of the jurisprudence as it stands at the time. As in Parrack, I find it premature to rule out the possibility of damages at this stage, where the factual basis before me does not make it clear that the claims of breach of the statutory and collective agreement health and safety provisions intrude on territory reserved for the processes under the WSIA.

18As well, it is common ground that the claims under the Human Rights Code may proceed. In the circumstances of this case, I find little distinction between the factual basis for those claims, which are conceded to be within the Board’s jurisdiction and those under the rubric of health and safety obligations for which remedies are disputed. Both strands of the union’s allegations appear to be primarily based on the same sequence of events involved in the grievor’s attempts to return to work, years after the compensable accident. As I understand the union’s claims, the contention is that the employer’s acts and omissions during the failed efforts to return the grievor to work constituted breaches of both the duty to accommodate under the Human Rights Code and the obligation to take every reasonable precaution to protect the safety of a worker under the collective agreement and the Occupational Health and Safety Act. In these circumstances, it is appropriate that they be considered together, with argument about remedy reserved until the conclusion of this matter, if any breach is made out.

146Accordingly, I find that any argument regarding remedy, if necessary, ought to be reserved until the conclusion of this matter.

PRIME FACIE CHALLENGE

147The parties made general arguments regarding the issue of whether the grievances had made out a prima facie case.

Employer

148While the Employer initially submitted that the discrete issues of accommodating and reinstating the Grievor are properly before me from a timeliness perspective, it submitted that all six of the Grievances ought to be dismissed for failing to make out a prima facie case.

149The Employer noted that for a prima facie challenge, I must accept that the particulars are true and provable. However, it maintained the particulars did not make out a prime facie case of either harassment, or a failure in its duty to accommodate the Grievor.

150Specifically, the Employer submitted no facts were pled that could support a finding that the Employer failed in its obligation under the Occupational Health and Safety Act, the Human Rights Code or Article 3 (Non-Discrimination) or 9 (Health and Safety) of the Collective Agreement.

151The Employer relied on McGill University Health Centre v Syndicat des employes de L’hopital General de Montreal 2007 SCC 4, 2007 SCC4, to point out there is a difference between a distinction and discrimination and that the Union has the burden of proving discrimination. Further, the Court held the burden was not discharged by simply demonstrating that conduct had a negative impact on a member of a protected group.

152Rather, it must be demonstrated that membership in the protected group was the basis for the negative impact. In this instance, while the Grievor claims she was treated differently, the issue/question is whether this was because she has a disability.

153The Employer pointed out it had engaged in a lengthy process attempting to return the Grievor to work. However, this was ultimately unsuccessful, ending with a determination that the Grievor is permanently disabled. While the Union characterizes this as an “ongoing failure to accommodate” the Grievor, the Employer submitted it is the only “factual” example of the alleged continued “harassment” she experienced.

154The Employer submitted the rest of the particulars simply describe the WDHP process and how Grievor felt about it. The Employer submits these are not particulars which, if proven, would support a finding of discrimination.

155The Employer also pointed out that the duty of accommodate has both a procedural and substantive component, which involves acquiring all the relevant information. [see ADGA Group Consultants Inc. v Lane et al, 2008 CanLII 39605 (ON SCDC) and good faith efforts to accommodate a disabled individual do not amount to discrimination. (see: Flatt v Treasury Board (Department of Industry) 2014 PSLREB 2

156Nor does the mere assertion, in the Particulars, that the Grievor’s medical or personal needs have not been properly met, amount to Code-based discrimination or suggest a violation of any procedural or substantive duty to accommodate. Rather, the Union must show direct or indirect discrimination on the basis of disability. (see Barber v South East Community Care, 2013 HRTO 60

Union

157The Union submitted that the comments made to the Grievor by her colleagues and management are, on their face, discriminatory and either explicitly or implicitly refer to her disability and need for accommodation. Further, the Grievor told them the statements were unwanted, and in any event, they knew or ought to have known they were unwelcome.

158In that regard, the Union pointed to the Employer’s own findings in that its WDHP investigation found potential breaches, harassment and condonation by supervisors, as well as a poisoned work environment, which indicates that at the least there are prima facie allegations that violations occurred.

159The Union submitted that as recognized by the Board in OPSEU (Del Casale) v Ontario (Ministry of Government and Consumer Services)(2022) 2022 CanLII 31331 (ON GSB), comments or conduct that in isolation may appear to be innocuous when viewed in a greater context can be understood to be harassment.

160With regard to the “return to work grievances”, the Union pointed out the Grievor required psychological and social accommodation which the Employer refused to provide, notwithstanding that this was supported by medical documentation – which constituted a clear violation of the Grievor’s right to accommodation.

161The Employer pointed out the parties are not in the merits stage and to the extent the Union included argument and evidence in its submission, those are to be disregarded and only the Particulars can be considered for determining whether a prima facie case had been made out.

162As noted above, the Union, in making its submissions, referred primarily to allegations set out in an earlier “Mediation Brief” as well as the Particulars filed. However, as correctly pointed out by counsel for the Employer, for the purposes of a prima facie challenge, only the particulars relied on by the Union are taken to be true. However, as the particulars closely tracked the allegations in the mediation brief nothing turns on this distinction.

First Grievance

163As I have found only the events the preceded the first Grievance by 30 days are properly before me, I will focus my prima facie assessment on those events.

Confrontation with Contract Employee

164It is apparent that a negative history existed between the Grievor and the contract employee who engaged in the alleged bullying. The Particulars indicate this was due to the Grievor’s perception of the contract employee’s work performance. The Particulars state the Grievor had repeatedly raised issues with Management about that employee’s work performance as well as her treatment of the Grievor, and that the Grievor had sent over 138 emails to Management documenting these incidents. However, no details are provided which, if proven to be true, would allow me to reach the same conclusion as alleged regarding the Employer’s failure to take action to assist the Grievor, or hat this was because of her disability.

165Indeed, while the Particulars state that as a result of their negative history, the prior Regional Manager had instructed that the Grievor was not to be scheduled with the contract employee for her in-office day, they go on to allege that “Management failed to respond and take appropriate action”. Again, no details are provided regarding why the instruction that they not be scheduled together was not a sufficient response or appropriate action.

166The Particulars further indicate that the Grievor received inconsistent messages from managers regarding how she was to supervise the contract employee which “exacerbated the conflict”, and this environment resulted in extreme stress and anxiety for the Grievor. The Particulars continue with the allegation that the contract employee was “permitted by Management to treat the Grievor disrespectfully”, thereby undermining her authority in the workplace and condoning an attitude of disrespect towards the Grievor, culminating in the contract employee raising her voice and singling the Grievor out in response to a simple question regarding process. Once again, however, without any details, particularly who said what, and in what context, these particulars, are not sufficiently detailed to assess and determine what actually occurred.

167This brings me to the Fact Finding. The Particulars indicate that the stated purpose of the Fact-Finding was so the Grievor could give her version of events. However, the Grievor indicates she felt targeted again and believes this meeting only occurred as a result of:

(a) Her numerous attempts to be accommodated for her disabilities.

(b) The Grievor having indicated to Ms. Follis that she was not treating her with respect, her comments were demeaning and that she had mocked her disability in front of staff.

(c) The Grievor bringing up to Ms. Follis that she was ignoring her requests for accommodations (Email vs Teams).

(d) Her reminding both Managers that she disagreed with their violation of Security Protocols and refused to follow suit.

168However, once again there are no particulars pled that support that conclusion.

169Rather, it is clear it was the Grievor’s complaint that led to the Fact-Finding, a usual next step following a workplace dispute. Nor was there any discipline as a result, or any indication as to why the letter of counsel was inappropriate or constitutes reprisal.

170The only issue which gave me pause from this series of events is the role/actions of the “Business Professional”. The Particulars indicate she “provided false credentials on a transcript order and added the Grievor’s name as the ordering party. While it is clear from the Particulars that this transcript-related issue was addressed at the Fact-Finding, it is not clear what if any role it played in the result. Nor is it apparent if/why the Grievor considered this part of her disability-related harassment.

171Finally, the Particulars reference the “Business Professional” having, unprompted, sent job postings to the Grievor for positions outside the Ministry and attempting to contact the Grievor over email and text.

172However, again, with no details regarding these actions, even if proven to be true, they are not sufficient for me to find they constitute harassment or discrimination as alleged by the Grievor.

173Accordingly, while I found the first Grievance timely regarding the above events, I find the particulars provided regarding the events, even if assumed to be true and provable, are not sufficient to support the allegations made in the Grievance. Accordingly, the entire first Grievance is dismissed.

Remaining Grievances

174Other than the 6th Grievance, which is dismissed as untimely, and subject to the qualifications set out below, I find the remaining Grievances are sufficiently particularized to move forward.

DETERMINATION:

175For the reasons set out above, I make the following determinations.

176The Employer’s motions regarding timeliness and failure to plead a prima facie case succeed regarding the First Grievance, dated January 14, 2022, and that Grievance is dismissed.

177The Employer’s motion regarding the timeliness of the Second Grievance, dated June 8, 2022, succeeds only with regard to the same allegations dismissed in the first Grievance above. However, the motions fail regarding the allegations of a failure to accommodate the Grievor and return her to work and they are dismissed. For clarity, those elements of the Grievance alleging failure to accommodate the Grievor and return her to work remain intact and can move forward.

178The Employer’s motions regarding the Third Grievance, dated October 24, 2022, are dismissed.

179The Employer’s motions regarding the Fourth Grievance, dated December 1, 2022, is dismissed.

180The Employer’s motions regarding the Fifth Grievance, dated August 9, 2023, are dismissed.

181The Employer’s timeliness motion regarding the Sixth Grievance, dated April 2, 2024, is granted and the Grievance is dismissed.