P-2003-3552

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Coccia

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Elizabeth Coccia

FOR THE EMPLOYER

Sean Kearney Senior Counsel Management Board Secretariat

HEARING

March 22, 2005.

WRITTEN SUBMISSIONS

May 17, 2005.

Decision

Ms. Elizabeth Coccia filed a grievance on February 13, 2004 contesting discipline that was imposed on her on July 11, 2003. At the outset of the hearing, the employer raised a preliminary motion to dismiss the grievance as untimely. The grievor opposes the motion.

The facts are not in dispute and were agreed to by the parties at the hearing. Ms. Coccia began employment as a Correctional Officer with the Ministry in 1985. She was promoted to a management position in 1990. At the time of the incident leading to the discipline, Ms. Coccia was an Operational Manager at Hamilton Wentworth Detention Centre.

The incident involved a number of employees, and there was an allegation that they used undue force on an inmate. The Ministry began an extensive investigation which led to a number of employees being dismissed and disciplined. Criminal charges were laid against some individuals, but not the grievor.

A letter dated June 12, 2003 informed Ms. Coccia, that the employer was considering disciplinary action against her. The allegations were as follows:

1. That on October 18, 2002 you were grossly negligent in carrying out your role, responsibilities and duties as Operational Manager regarding the excessive use of force used in inmate "A".
2. That your conduct was unprofessional, in that you were deceitful in filing a report and in responding to Ministry investigators.
3. That on October 18, 2002 you failed to meet the standards for professional behaviour for Ministry employees as outlined in a statement of ethical principles, when you failed to document the use of force on inmate "A".
4. That you failed to comply with the Ministry policy for use of force, as outlined in the Adult Institutions Policy and Procedures Manual and Institutions Standing orders by failing in the minimum reporting requirements on the use of force on inmate.
5. That on October 18, 2002 you failed to provide care, custody and control as required of an Operational Manager, and in contravention of the Ministry of Correctional Services Act. (The inmate's name has been omitted.)

By the same letter, the Ministry notified the grievor that a meeting was scheduled for June 20, 2003 to give her an opportunity to speak to the allegations. She was also informed that if she did not attend that meeting, the Ministry would proceed without her input.

Ms. Coccia retained a lawyer, Mr. Graydon Sheppard, to represent her with the matter raised in the employer's June 12, 2003 letter. By letter, dated June 12, 2003, Mr. Sheppard informed the Ministry that for medical reasons the grievor was unable to attend. Further, Mr. Sheppard wanted disclosure of the documents and tapes made during the investigation before proceeding to what he referred to as the hearing.

The Ministry wrote on June 20, 2003 to Ms. Coccia to clarify the process and give her an opportunity to respond to the allegations in writing.

In light of the correspondence received from your legal representative, let me clarify our process. The meeting of June 20, 2003 was scheduled to allow you an opportunity to respond to the allegations outlined in my letter to you dated June 12, 2003. This is an administrative process, not a court proceeding. Entitlements and procedures are different for both (e.g., a representative cannot be sent to meet with me on your behalf unless you are in attendance). Today, you have received the information necessary for this meeting. You are afforded the findings of the Ministry's investigation, as well as your statements. There will be no further information for you at this time.

Please review the allegations and findings. Respond to me in writing by Wednesday, June 25, 2003, if you have anything further to add in your defense.

The grievor made no response, but her lawyer wrote on June 23, 2003, objecting to the process:

You have required my client to respond by June 25 if she has anything further to add in her "defense." She is not in a position to respond by that date in view of her health and your refusal to provide the additional information requested in my letter. In the circumstances, if you elect to proceed with any action which is detrimental to my client, the same will immediately be challenged in court by way of judicial review.

On July 11, 2003, the Ministry informed Ms. Coccia that it had decided, given the findings of the investigation, that the allegations outlined in an earlier letter were substantiated and imposed discipline – a 20-day suspension. The letter also informed the grievor that she had the right to grieve the discipline pursuant to the provisions in the Public Service Act.

The grievor pursued a judicial review of the employer's disciplinary suspension, which was dismissed by the Divisional Court on February 4, 2004 [Coccia v. Ontario (Ministry of Public Safety and Security (2004) O.J. No. 1118 (Div.Ct)]. The court summarized the grievor's submission in part as follows:

Mr. Sheppard, on behalf of the applicant, asserts that the applicant was deprived of her entitlement to procedural fairness, and submits that in the circumstances, she had the choice of either applying for judicial review or proceeding as of right under the grievance and arbitration procedures of the Act and Regulations.

The Divisional Court held that the Public Service Act provides a grievance procedure, and the grievor's failure to use it breached a well-established principle that generally administrative remedies must be exhausted before seeking a review by the courts. The court stated further: "The applicant chose not to avail herself of this process, and she offered no explanation for her failure to do so."

On February 13, 2004 the grievor filed a grievance contesting the 20-day disciplinary suspension. The employer denied the grievance on the grounds that it was not timely.

THE SUBMISSION OF THE PARTIES

Counsel for the employer argued that the grievance was late, and there were no grounds to support an extension of the time limits. Under subsection 34(1) of Regulation 977, to the Public Service Act an employee may file a grievance within 14 days of becoming aware of the subject matter of the complaint. Counsel relied on the well known factors outlined in Becker Milk to argue that Ms. Coccia was clearly aware of her right to grieve and chose instead to pursue a judicial review [Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett)]. Seven months is a substantial delay and no good reason has been provided for the delay. Counsel relied on the following cases in support of his submission: OPSEU (Szabo) and Ontario Realty Corporation (2001) GSB 1811/98 (Herlich); OPSEU (Smith) and Ministry of Northern Development Mines (2004) GSB 2002/243 et al. (Mikus); OPSEU (St. Jean et al.) and Ministry of Community Safety and Correctional Services (2004) GSB 2001/1122 (Leighton); Johnson and Vipari and Ministry of Community and Social Services (1999) PSGB 0003/99 (Leighton); Clayton and Blais and Ministry of Solicitor General and Correctional Services (2000) PSGB 0006/99 and 0012/99 (Leighton); Campbell and Ontario Realty Corporation (2001) PSGB 0032/99 (Leighton); Arkelian and Ministry of Health (1994) PSGB 0044/92 (Willes); Johnson, Smith and Ministry of Solicitor General and Correctional Services (1999) PSGB 0001/99 and 0005/99 (Agarwal); McFadden and Ministry of Solicitor General and Correctional Services (1999) PSGB 0019-99 (Willes).

Ms. Coccia agreed that the grievance was filed late. She argued, however, that the board should hear the case on the merits. Her reasons were that when the predisciplinary hearing was scheduled on June 20, 2003, she was recovering from surgery undergone on June 5, 2003. She was not well enough to attend. Moreover, she was advised that because she did not receive a predisciplinary hearing, she had the right to go to Divisional Court for a judicial review. She acknowledged at the hearing that one reason for pursuing judicial review was that, if successful, she might get her costs for the application. Another reason was that if she was successful she would get the discipline process reversed so that she would get a predisciplinary hearing.

Ms. Coccia argued that once she got the Divisional Court decision, she filed her grievance within 14 days. She pointed out that the employer could not have assumed that she had abandoned her complaint. Therefore, she opposed the motion to dismiss her grievance.

Counsel for the Ministry argued in reply that even if Ms. Coccia now thinks that the legal advice to her was wrong, she only has a possible claim against her lawyer. Further, even if she was advised to seek a judicial review by her lawyer, the Ministry informed her in the disciplinary letter that she could grieve. She had filed grievances as part of a group in the past. Moreover, Superintendent Thomas also advised her that she had a right to grieve. From the outset, the Ministry took the position that the Divisional Court had no jurisdiction to hear the case. In sum, counsel argued that Ms. Coccia knew her rights and chose to pursue a judicial review, and therefore the grievance is not timely and should be dismissed.

Towards the end of the hearing into this matter, I asked counsel for the employer if he was aware of any PSGB cases, which dealt with the filing of a grievance after a grievor initially proceeded with a civil matter. The day after the hearing, counsel for the employer, discovered a case decided in the private sector that he thought might be helpful to the board: Re Sodexho Marriott Corporation of Canada Ltd. and Ontario Public Service Employees Union, Local 241 (2002) 2002 CanLII 79103 (ON LA), 108 L.A.C. (4th) 68 (Beck). Mr. Kearney forwarded this case to Ms. Coccia with the express request as to whether or not she would agree to this case being put before me without submissions on his part. When the board heard nothing from Ms. Coccia she was contacted and asked to respond. She agreed that the case could be put before me and at her request she was given permission to make a submission on it. Her submission to the board was dated April 29, 2005. Counsel for the employer made a final written submission which was received on May 17, 2005. In her written submission, the grievor essentially repeated the points that she had presented on March 22, 2005 at the hearing into this matter so I will not repeat it here.

DECISION

Section 34(1) of Regulation 977 to the Public Service Act provides as follows:

A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance.

For many years this board has adopted the well-known factors in Becker Milk to assess whether or not a grievance, if not filed in a timely matter, should nevertheless proceed. See, for example, Arkelian (supra). In this case, Ms. Coccia filed her grievance seven months after a 20-day disciplinary suspension was imposed upon her. The grievor acknowledges that she was late, but asks this board to extend the time limits under the regulation and hear her case. In deciding whether to exercise my discretion and extend the time limits I must consider 1) the reason for the grievor's delay, 2) the length of the delay, and 3) the nature of the grievance. In Becker Milk, having identified these factors, Arbitrator Burkett went on to hold:

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 in 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.

The only reason Ms. Coccia gives for filing her grievance late is that she believed that she had a right to seek a judicial review of the employer's decision to discipline her. She hoped to get the discipline process reversed in this way and possibly be awarded costs for her application. She noted to the board that once she received the Divisional Court's decision she filed her grievance within 14 days.

There was some inference in Ms. Coccia's submission to the board that she was merely following her counsel's advice and therefore her grievance should now be allowed to proceed. Vice-Chair Herlich rejected this argument in Szabo (supra). The grievor in that case pursued a civil action claiming to be wrongfully dismissed by the government after his employment was surplussed. The court subsequently dismissed the action on the grounds that it had no jurisdiction to hear the matter. The grievor in that case appealed the decision to the Ontario Court of Appeal. Some six months after filing the appeal, the grievor filed a grievance with the Grievance Settlement Board. In Szabo there was some issue as to which forum was the correct one, since the grievor's complaint was in part based on a previous settlement of a civil action. In deciding not to exercise the equitable discretion to extend the time limits, Vice-Chair Herlich held:

The concerns about the impact of legal choice of forum is a separate matter from the general and specific requirements to file grievances in a timely fashion. Indeed, had such a grievance been filed, there is every likelihood that the parties might have been able to agree on the forum in which to first determine the jurisdictional issue, perhaps even without prejudice to the right to subsequently proceed in the other forum if necessary.

In the case before me the grievor was advised by her counsel that she could pursue the judicial review. Her employer also advised her that she had a right to grieve under the Public Service Act. She chose to pursue the judicial review because she hoped through that forum to get her costs if she was successful.

Vice-Chair Herlich also relied on Wicken (GSB 2216/97) (Knopf) where the board declined to exercise its discretion to permit the grievance to go forward some sixteen and a half months after a discharge, even though the grievor in that case had been specifically advised not to file a grievance until after the criminal proceeding he was involved with was finished. In contrast to Wicken, Superintendent Thomas told Ms. Coccia personally that she could file a complaint at the PSGB and her discipline letter advised her likewise in writing. Moreover, she had filed a grievance with the board previously as part of a group, so she was fully aware of her rights.

As noted earlier, the Divisional Court found in its reasons dismissing the application that the grievor had given no good reason for why she chose to proceed with the judicial review application instead of a grievance. I likewise find that there has been no good reason for the seven-month delay in filing the grievance and that the grievor was not diligent in advancing her complaint to the board.

It still falls for me to consider the length of the delay and the nature of the grievance in deciding whether or not the discretion to extend the time limit ought to be exercised. The length of the delay in the circumstances is substantial. And the nature of the grievance is of particular importance. Arbitrators have held in the past that dismissal cases may warrant an extension of the time limit because of the serious consequences of denying the right to a hearing. However, Ms. Coccia was not dismissed as in Wicken, nor did she lose employment through the surplus process as in Szabo. And even in these cases the GSB decided not to extend the time limit. Ms. Coccia was given a 20-day suspension and she continues to work as an Operational Manager with the Ministry. I have to conclude that there is no compelling reason because of the nature of the case to ignore the delay.

Having carefully considered the submissions of the parties and the factors as outlined in Becker Milk, I find that the grievance is not timely and there is no evidence to support the exercise of the board's equitable jurisdiction to extend the time limit. Thus, the grievance is hereby dismissed.

Dated at Toronto this 26th day of July, 2005.