Bill Gibson v. The Crown in Right of Ontario (Ministry of the Attorney General), 1999 CanLII 32153

P/0134/96

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bill Gibson

• and -

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

Grievor

Employer

BEFORE D.J.D. Leighton, Vice Chair

FOR THE James K. McDonald

GRIEVOR Counsel, Sack, Goldblatt , Mitchell

Barristers & Solicitors

(October 3, 1997 and December 1,1997; the Grievor appeared for himself on all other dates)

FOR THE Donna Holmes

EMPLOYER Counsel, Legal Services Branch

Management Board Secretariat

HEARINGS February 14, 1997; June 12, 1997; October 3, 1997;

December 1, 1997; October 2, 1998

[1] Mr. Bill Gibson's grievanc[1] Mr. Bill Gibson’s grievance, filed March 26, 1996, and forwarded to the Board on November 20, 1996, alleged:

"Contrary to Ministry of Labour legislation and Ministry of the Attorney General policy and procedure on occupational health and safety, there has been a failure to provide me with a healthy and safe environment (MBSD 6.5.1), and as such I have been injured and left with a permanent bronchial tube damage, which my doctor indicates that he does not expect that there will be a cure for this problem (sic)."

The Grievor sought a transfer to a new position that would accommodate his medical condition, compensation for his injury including legal costs, and other relief, monetary or otherwise as the Board might award. The Grievor also complained of job erosion, and this grievance was withdrawn at the first hearing into this matter on February 14, 1997.

[2] Mr. Gibson was working as a Facilities Planning Officer in the Southwest Regional Office of the Ministry of the Attorney General when the events leading to his grievance occurred. His duties included the management of court facilities, including overseeing maintenance, repairs and renovations.

[3] On August 16, 1995, responding to health and safety complaints from the courthouse staff, Mr. Gibson went to the Goderich Courthouse, which was being renovated extensively. Contractors were also using chemicals to clean an area that had been damaged by fire. After inspecting the building, the Ministry of Labour was called to investigate why staff were feeling dizzy and physically ill, and orders pursuant to the Ontario Health and Safety Act were issued. The courthouse was evacuated until the owner could comply with the OHSA orders and until the Ministry of Labour declared the building safe. The courthouse was closed for several days.

[4] Sever weeks later, Mr. Gibson claimed that he began to have breathing difficulties whibreathing difficulties which he attributed to the exposure to the chemicals used to clean up the fire damage. He filed a Workers' Compensation claim in the fall of 1995.

[5] By the date of the next hearing on February 14, 1997, Mr. Gibson's position as Facilities Planning Officer had been eliminated and he had been given a surplus notice. He had also been identified for transfer to a position at the Ministry of Correctional Services. Counsel for the Employer, Ms. Holmes, raised a preliminary objection to the Board arguing that since Mr. Gibson was to be transferred to a new position, the grievance was moot. She also argued that the Board lacked jurisdiction to hear any complaint about workplace injury and that this issue was properly before the Workers' Compensation Board (now the Workplace Safety and Insurance Board). Mr. Gibson acknowledged that he had filed a claim for workers' compensation. He had also filed a complaint with the Human Rights Commission alleging a breach of Section 4 of the Ontario Human Rights Code.

6After hearing arguments on the issue of mootness and jurisdiction from the Employer, with the consent of the parties, mediation was attempted. The mediation was adjourned after the Employer made an undertaking to inquire into the start date for Mr. Gibson in his new position at the Ministry of Correctional Services.

7Mr. Gibson was informed on February 26, 1997, by letter from Gord Jamieson, of Correctional Services, that his transfer date was to be March 3, 1997. On February 28, 1997, by telephone call, Mr. Jamieson informed Mr. Gibson that the position in the Ministry of Correctional Services was to be eliminated. Mr. Gibson notified the Board that he wanted to resume the heariwanted to resume the hearing into his grievance. A further date was set on June 12, 1997.

8On June 12th, Ms. Holmes renewed her argument that the Board had no jurisdiction to hear the grievance. What emerged from Mr. Gibson's submission to me

on June 12th was an allegation that following his complaint of injuries sustained at the Gotteridge Courthouse after chemicals were used to clean fire damage, the Employer had made a promise, pursuant to subsection 11(3) of Regulation 977 to the Public Service Act, to accommodate him with an alternate position. The Employer had already accommodated the Grievor by not requiring him to inspect construction sites (previously part of his job duties) so as to avoid exposure to paint fumes and other chemicals that might irritate his condition. Since the allegation that Mr. Gibson was promised a job had never been made specifically, I granted an adjournment to the Employer to take instructions from her client on this issue. I also asked the Grievor to be prepared at the next hearing to make an argument in response to the Employer's argument that I should dismiss this case for lack of jurisdiction. August 7, 1997 was subsequently adjourned in order to allow Mr. Gibson to retain counsel.

9On October 3, 1997, by agreement of the parties, the case proceeded on the specific issue of whether the Employer had promised the Grievor an alternate position to accommodate his medical condition. Mr. Gibson alleged that his supervisor, Mr. Brian Allot, had promised him the position of Regional Hearing Officer, an AM-19 classification, in November 1995. The Grievor also alleged that a promise to find him an alternate position to accommodate his medical condition was made at a meeting on May 28, 1996.

Thmeeting on May 28, 1996.

10The Grievor's case was presented on October 3, 1997. On December 1, 1997, the Employer began presenting its evidence. December 19, 1997, was adjourned because Mr. Gibson was unwell. No further dates were set until the Employer contacted the Board requesting a hearing. On April 23, 1998, Ms. Holmes wrote to Mr. Gibson asking him if he was willing to withdraw his grievance since he had now obtained permanent work with another Ministry. On June 1, 1998, Mr. Gibson wrote to the Board stating that his grievance had not been fully resolved. He did not request a further date, but informed the Board that he would notify it on or before September 11, 1998, as to whether he would continue or terminate his grievance. Subsequently, a further date was set at the request of the Employer.

11On October 2, 1998, the Employer renewed its motion to dismiss the grievance on the grounds that the case was moot. Counsel noted that on March 23, 1998, Mr. Gibson won a competition for a position with the Ministry of Transportation as Coordinator of Corporate Acquisitions, a position classified at AGA-20, and therefore a promotion for the Grievor. Ms. Holmes argued that since the remedy sought by Mr. Gibson was a position and he had obtained one, there was no remedy left for the Board to order. Counsel cited the leading case on mootness, Borowski v. Attorney General of Canada (1989) 57 D.L.R. (4 231 (S.C.C.), for the proposition that when the factual underpinnings of the case have been eliminated, there is no live controversy and the case is moot. The factual underpinnings of this case were eliminated when Mr. Gibson obtained a permanent, full-time position at a higher classification at the Ministry of Transportation. Counsel arTransportation. Counsel argued further that when a case is moot, the Board should not exercise its discretion when one of the following factors is established: that it would be a waste of the Board's resources to hear the case; that there is no compelling need for a decision; and that for policy reasons, because the Board has been established to assist in good employee relations between the parties, and since no remedial role can be served by continuing the case, it should be dismissed. Counsel also cited Welland County Roman Catholic Separate School Board v. Ontario English Catholic Teachers' Association ( 1992) 30 L.A.C. (4 U, 353 (Brunner); OPSEU (Union Grievance) v. The Crown in Right of Ontario (Ontario Realty Corporation/ Management Board Secretariat) GSB 2024/97 (Abramsky).

12It was Mr. Gibson's position that the case was not moot. He claimed that the grievance had cost him approximately $40,000, including expenses to relocate, which was an outstanding issue. He stated further that he had wanted the position of Regional Hearing Officer at the Attorney General, even if it was not a promotion. Therefore, in his view the case was not moot.

13Ms. Holmes argued in reply that Mr. Gibson's preference for the position of Regional Hearing Officer at the Attorney General was not a compelling argument that the case should go forward. The issue was whether or not there was a promise or an undertaking by the Employer to find a position for the Grievor. Since Mr. Gibson is now in a permanent position with the government, the Board has no remedy to grant.

Having carefully considere

Decision

14Having carefully considered the submissions of the parties, I have decided to grant the motion to dismiss the grievance on the grounds that the case is moot.

15The only issue before the Board when we proceeded with the hearing on October 3, 1997, was whether the Employer had promised the Grievor a lateral

transfer to a position that would accommodate his medical condition. The Employer did not concede any duty to accommodate the Grievor or that he was disabled as defined under the Ontario Human Rights Code. In the original grievance filed with the Board, the Grievor sought a transfer to a position which would accommodate his health needs. He did not seek a specific position. He now has such a position with the Ministry of Transportation. The grievance is moot.

16Mr. Gibson also asks for his legal and relocation costs. It is not necessary to continue the hearing in order to consider whether cost should be awarded. This Board has consistently denied costs to successful grievors, and held that costs should only be awarded in the most egregious cases, for example, where there is evidence of bad faith by the employer. Mr. Gibson presented and closed his case; there is no evidence on the record to support a finding of bad faith. The request for costs is, therefore, denied. The alleged promise of a new position did not include a promise to pay for costs of relocation. Moreover, I was presented with no argument to support a claim for relocation costs. I have decided that I must also deny this claim.

17In sum, there is no controversy which requires adjudication. Subsequent events have renSubsequent events have rendered Mr. Gibson's grievance moot. This Board has held in the past that it is a waste of resources to adjudicate a matter that is moot when there is no compelling reason for a declaratory judgment. It would be a waste of the Board's resources in this case to finish a hearing which has already taken five days, when there is no remedy to grant at the end of the proceeding. This finding is in accord with the principles enunciated in Borowski supra, and the recent G.S.B. decision by Vice-chair Abramsky, supra.

18For the reasons above, I hereby grant the motion to dismiss the grievance.