P-2004-1727, P-2004-1728
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Paul Simon and Ingrid Joseph
Grievors
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
Deborah J. D. Leighton
Vice-Chair
FOR THE GRIEVORS
Winston Mattis Barrister and Solicitor
FOR THE EMPLOYER
Len Hatzis Senior Counsel Ministry of Government Services
HEARING
October 4, 2006.
Interim Decision
The grievors, Mr. Paul Simon and Ms. Ingrid Joseph, are employed as Labour Relations Officers at the Ontario Labour Relations Board. On May 3, 2004 Ms. Joseph submitted a grievance complaining that she should have been successful in a job competition for Labour Relations Specialist. Ms. Joseph was interviewed for the position but was not a successful candidate. She grieved as follows:
The resulting decision only serves to heighten my belief that the BOARD’s practices of BIAS and inequity (in work distribution, job opportunities, performance reviews, terms and conditions of treatment, etc.) clearly demonstrate SYSTEMATIC DISCRIMINATION and DIFFERENTIAL TREATMENT, in violation of the Workplace Discrimination and Harassment Prevention Policy, the Human Rights Code.
I therefore grieve the results of the competition, citing that the decision was discriminatory in nature, orchestrated and predetermined, and that the competition and the decision resulted in two of the four positions being unjustified.
Position 1. AWARDED to a junior employee, disregarding seniority and experience on the job.
Position 2. AWARDED to an external non-government employee, again disregarding experience on the job. (Capitals included in the original text)
Ms. Joseph seeks by way of remedy to be awarded the position of Labour Relations Specialist, and compensation for lost wages and for pain and suffering.
On May 4, 2004 Mr. Simon grieved that he had not been successful in obtaining an interview for the position of Labour Relations Specialist. In his grievance he stated:
I therefore grieve the resulting decision claiming that the decision was orchestrated, and predetermined, and that they stem from discriminatory intention, violating both the Human Rights Code as well as the Workplace Discrimination and Harassment Prevention Policy.
I also grieve that the rewarding of two positions was unjustified in that the employer utilized new tactics: 1) posting externally simultaneously with the internal posting; and 2) disregarding seniority thus resulting in one person that is junior to me getting one position and a non-employee getting the other.
By way of remedy the grievor seeks to be awarded the position of Labour Relations Specialist and compensation for financial losses and for pain and suffering. The parties agreed to consolidate these cases so that they would be heard together.
The hearing into this matter proceeded with evidence on April 24, 2006. At the end of that day counsel for the grievors agreed to provide particulars as requested by the employer before the next hearing date. On May 3, 2006 Mr. Mattis provided the following particulars:
The Board’s treatment of Black Employees
The systemic discriminatory practices of the board over the year including results of prior competitions.
All of the particulars surrounding sole complaint.
The Board’s’ treatment of the two grievors.
The competition results.
The arbitrary manner in which work is distributed including acting positions.
The manner in which bonuses are dispensed.
Mr. Hatzis responded for the employer that he did not consider this as constituting full particulars and renewed his request for detailed particulars of the case. Counsel also noted that he would bring a motion before the board at the next day of hearing requesting an order for particulars.
On May 4, 2006 the employer put the motion before the board requesting particulars from the grievors. He argued that this motion should be granted because the grievors had agreed to provide particulars and because the jurisprudence supports such an order. He sought detailed particulars in the nature of describing who, what, where and when of the alleged wrongdoing. After a full submission on the case law, which I will not repeat here, counsel concluded by asking for an order from the board. Counsel for the grievors made no argument against the motion and consented to the order. Thus this board issued an order on consent.
On June 14, 2006 Mr. Mattis provided particulars pursuant to the board’s order. On September 19, 2006 Mr. Hatzis put the employee’s counsel on notice that he intended to bring three motions before the board at the next hearing based on the particulars that had been provided.
Thus this decision addresses the three motions put before the board on October 4, 2006. The employer seeks an order limiting the scope of the evidence for three reasons. Counsel contends first that evidence regarding a particular grievor, whose matters were settled by way of memorandum of settlement, should not be permitted in evidence. Second, evidence that pre-dates what employer counsel has called “the three year rule” before the filing of the date of the grievance should not be permitted. The third request is that allegations in the particulars, which have not been sufficiently detailed, should be disallowed in evidence. Counsel also seeks an order declaring that the board will only hear evidence on the particulars that have been fully disclosed.
EMPLOYER’S SUBMISSION
With regard to the first motion, Mr. Hatzis submitted that certain particulars provided by the grievors relate to grievances of an employee, Isola Layne, who at the time in question was an employee of the Ministry. These grievances were settled in 2000, 2001 and 2002. The employer argued that none of this evidence should be admitted because it was the subject matter of a settlement. Ms. Layne filed three grievances, the last one dated May 14, 2002. Thus evidence pertaining to matters before this date should not be permitted in evidence.
Counsel argued that there are important policy reasons for the board to honour settlements. And when a matter is settled it should not be permitted to come back in another guise. Adopting the reasoning in Fletcher, intra, counsel argued that the employer must be allowed to rely on minutes of settlement or there would be little incentive to resolve grievances without hearings. Counsel also relied on ONA, intra, for the proposition that even when the settled case involves another employee, the evidence should not be permitted.
Regarding the second motion the employer sought an order from the board that no evidence before April 29, 2001, that is three years before the date of the grievances before me, should be admitted. Counsel submitted that the board should balance the interests between the employees’ need to prove the allegations of systemic discrimination and the employer’s difficulty in defending itself against allegations that are in the distant past. Counsel encouraged me to rely on GSB jurisprudence that has dealt with the same issue and apply the same reasoning in balancing the interests between the two parties. He noted that there was no evidence before the board that the grievors were unaware of their right to grieve.
Arguing the third motion counsel sought an order “striking allegations in the particulars provided by Mr. Mattis.” Counsel argued that he had sought particulars over some period of time from the grievors. The grievors, through their counsel, had agreed to provide particulars and that was made an order of the board. However, they failed to provide specific particulars in a number of instances and that it is too late to add to those particulars. Thus, counsel argued the grievors should not be permitted to adduce evidence with regard to particulars that have been inadequately detailed on who, what, where and when of the alleged events. Therefore counsel sought that certain particulars be struck from the record.
In summary, counsel for the employer argued that he sought an order to restrict the scope of the evidence because the evidence was covered by minutes of settlement, it was too old, or it was not sufficiently particularized. Counsel further argued that only evidence as it relates to the particulars of the alleged discrimination should be permitted in evidence before the board and that only evidence with regards to two issues identified with regard to the competition should be permitted. These are that the Labour Relations Board should not have run a competition and that it should not have run it as an open competition. Counsel relied on the following cases in support of his submission: OPSEU (Fletcher) and the Ministry of Community, Safety and Correction Services (2006) GSB #2004-0083 et al (Leighton), OPSEU (Rolfe) and the Ministry of Community and Social Services (2006) GSB #2003-3512 et al (Briggs); Hotel Dieu Grace Hospital and Ontario Nurses Association (1997) 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (Picher); OPSEU (Patterson) and the Ministry of Public Safety and Security (2003) GSB #2001-0925 et al (Leighton); Gardiner and Ministry of Community, Safety and Correctional Services (2003) PSGB #2003-0951 (Carter); OPSEU (Giannou) and Management Board Secretariat (1996) GSB #570-96 (Leighton); OPSEU (Pickett et al) and Ministry of Correctional Services (2003) GSB #1001-99 et al (Harris); OPSEU (Klonowski et al) and Ministry of Finance (2002) GSB #1799-99 (Fisher); Newman et al and Ministry of Solicitor General and Correctional Services (2001) PSGB #0003-98 et al (Leighton); Mousley and Ministry of Correctional Services (2001) PSGB #0002-01 (Leighton).
GRIEVORS’ SUBMISSION
Mr. Mattis argued that the allegations before me relate to what the grievors believe is systemic discrimination against them because of their colour. Because of this systemic discrimination, they allege that they were treated improperly in a competition for a Labour Relations Specialist position. In order to prove systemic discrimination, counsel noted one needs analysis of the policies to see the potential adverse impact. Counsel noted that the employer seemed to be suggesting that the grievors were alleging intentional discrimination, which is not the case with systemic discrimination cases. He argued that one had to look at the context to understand the behaviour. He went on to note that the Klonowski case, supra, referred to by employer counsel was a decision regarding a union grievance. Counsel submitted that the union can ask for information and get it, but the grievors here were unable to get at the information to provide who, what, where, when particulars because they are not unionized. Thus he stated that it was possible to identify the issue, which he stated as “black people suffer differential treatment” but they can only detail the extent of their own knowledge in their particulars.
Counsel argued further with regards to the evidence of Ms. Layne, that the evidence should not be excluded because the matters have been settled, when the employer has breached these minutes and her human rights. Counsel noted that the case before me is a grievance alleging that the competition at the Labour Relations Board had been improperly run. The grievors’ theory of the case is that the Labour Relations Board’s organizational psyche precludes it from making decisions in a competition, which are non-discriminatory. Thus evidence of this should be acceptable to the board.
Counsel argued that there is no three years of evidence rule that dictates how far the grievors should be permitted to go back in giving their evidence. Further, the pattern of discrimination in a competition file may require going further back in order to look at several competitions over time. Thus permitting evidence of four previous competitions would be fair in these circumstances.
With regard to the last motion of the employer, counsel argued that the employer was trying to get the board to decide on evidence before it was proffered. He argued that it was not up to the other side or to the adjudicator to dictate the grievors’ evidence or case. Thus the grievors have the right to argue each and every objection as evidence is proffered. In conclusion, he noted that evidence as to the context of the case would be lost if this evidence was not admitted. Counsel relied on Universal Workers Union (LIUNA), Local 183 (Avero et al) and Ontario Human Rights Commission (2006) Can.Lll 126 (On.Div.Ct).
In summary, Mr. Mattis submitted that it would be a breach of natural justice to preclude Ms. Layne’s evidence. There was no issue of cause of action or issue estoppel, since OPSEU, who were a party to Ms. Layne’s settlements, are not a party before me. The scope of evidence in systemic discrimination cases is broad. Further if the grievors’ theory is correct, that the employer is giving “lip service” to ending discrimination, there are only two ways to prove it: by tendering evidence of the time frame of the Layne settlements or by the employer’s admission that, as of May14, 2002, discrimination existed or was rampant at the Labour Relations Board. Finally, counsel argued that the case alleges systemic discrimination and it is meaningless to ask for particulars as to “who, what, where and when” events occurred, when they may have no application, given the issues in the case. Also, the grievors are not in a position to give these particulars: “they can say that they have seen black people leaving in droves and they do not see any coming in.”
DECISION
a) Motion One
In the first motion before me the Ministry submits that evidence pertaining to the grievances of Ms. Layne, settled between OPSEU and the Ministry, is not admissible. The grievors counsel seeks to adduce it to prove a pattern of discrimination against black employees at the Labour Relations Board. The employer argues, that it should not be admitted largely for policy reasons and urges me to follow recent case law at the GSB, the sister board of the PSGB. Having carefully considered the submissions of the parties, I have decided not to admit this evidence. The PSGB has also held that settlements must be upheld and in balancing the interests of each party here, I am persuaded that there is no evidence to support an exception in the circumstances.
The GSB has noted that there must be exceptional circumstances to justify allowing evidence on matters that have been settled. Mr. Mattis argued that this was the case before me. He argued that on the face of the Layne settlements it was clear that the employer was guilty of discrimination. After careful examination of the documents I find that I cannot agree. There is no admission of liability or wrong doing on the employer’s part. Successive settlements between the parties, agreed without prejudice and with no admission of liability are evidence of nothing except that the parties decided to resolve the grievances. There was no evidence before me that the employer breached Ms. Layne’s human rights or the minutes of settlement.
Mr. Mattis also argued that since the parties in the Layne case were the Ministry and OPSEU, as in the cases cited to me, then I should not rely on them. There is no estoppel that applies here in his submission. I agree. It is not an estoppel, which prevents the admission of evidence here. It is the principle that the employer has a right to consider a case as closed when it settles a matter. There is no need then to preserve evidence or remain ready to defend itself. The arbitration board in ONA, supra, decided likewise not to admit evidence of matters relating to a nurse, who had settled her grievance with the employer, reasoning:
We have similar concerns with respect to allowing evidence to be adduced with respect to the treatment of nurse Prima, to the extent that her human rights complaint was fully settled, on a without prejudice basis. We must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement.(p.3)
The board went on to hold:
We do not consider it appropriate to admit evidence concerning the events which gave rise to the complaint of nurse Prima, to the extent that that matter, including a companion grievance filed by the union, was resolved on a without prejudice basis. (p.3)
The Layne grievances included language that the minutes constituted full and final settlement of the matters raised by the grievances. Without evidence to show that there should be an exception to the principle that once a matter is settled, it should not be permitted to return in another guise, I cannot admit the evidence as it pertains to events up to the date of the filing of Ms. Layne’s third grievance on May 14, 2002.
b) Motion Two
In the second motion the employer seeks to limit the evidence to three years before the date of the grievances before me, again relying on recent jurisprudence from the GSB. Counsel for the grievors argued that there is no three-year rule and seeks to adduce evidence without a limit. Moreover, he argued in a competition grievance, where the allegation is that there is systemic discrimination, it would be appropriate to hear evidence of several competitions, even if that meant hearing evidence over many years.
The GSB decisions on this issue are helpful. It is clear that the board must balance the interest of the grievors in showing a pattern of discrimination against the employer’s concerns of defending itself against allegations that occurred many years before the hearing. In striking this balance the board in ONA, supra, held that there was no evidence to suggest that the grievor in that case was unaware of the right to grieve and therefore limited the evidence to a three-year period before the grievance was filed. With similar reasoning I made the same decision in Patterson, supra. I held following vice-chair Dissanayake, in OPSEU (Chan)(cited in Patterson) that allowing evidence predating the grievance to three years took the employer’s concerns about being prejudiced in defending stale allegations into account and the needs of the grievors to show a pattern of discrimination over some time.
In the case before me, there is no evidence to suggest that the grievors were unaware of their right to grieve. Counsel for the grievors submitted that the grievors only became aware of the systemic discrimination against them when they were unsuccessful in the job competition for the Labour Relations Specialist position in 2004. This does not fit with the particulars that have been provided of an alleged statement made in 1994 to Mr. Simon by someone at the Labour Relations Board that “it his job to get rid of people like Mr. Simon,” which, given the context, could have been grieved. Particulars provided by Ms. Joseph also describe events alleging differential treatment that could have been grieved as early as 1997. Further, there was no evidence before the board to suggest that the grievors were unaware of the right to grieve.
I agree with counsel for the grievors that there is no magic rule of “three years” of evidence being admissible in these cases. Each case needs to be considered on its facts. However without some concrete way to assist in drawing the line, three years is a reasonable period of time to show a pattern of systemic discrimination. In the case before me counsel argued in the abstract that it might be reasonable in a case like this to allow evidence of four competitions to show systemic discrimination. However no specific competitions were identified as necessary to prove the case. Although a competition that occurred in 1997 is mentioned in the particulars, there is no allegation that previous competitions discriminated against the grievors. Thus having considered the submissions carefully I have decided to limit the scope of the evidence in this case to three years before the date of the grievances.
c) Motion Three
In the Ministry’s third motion it seeks to have the board “strike” particulars provided by the grievors that do not satisfy the board’s order to particularize the who, what, when and where of alleged events. And further to make an order that only evidence on the remaining particulars could be called at the hearing. For the first arm of this motion counsel for the employer relied on cases before the GSB and the PSGB that dismissed grievances that had not been particularized. In Gardiner, supra, chair Carter dismissed the grievor’s case when he failed to respond to the board’s order and give any particulars of what he would allege in a competition grievance. In Giannou, supra, I dismissed a grievance alleging wrongful surplus. A release under section 22 (4) of the Public Service Act must be made in good faith, and it is reviewable by the board only if there is an allegation that the release is a disguised dismissal or made in bad faith. The union failed to particularize the bad faith. To be clear, the union provided no particulars. Also in Klonowski, supra, vice-chair Fisher dismissed a grievance because the particulars were vague and the union failed to provide any dates of the alleged discriminatory enforcement of the travel policy, as ordered by the board.
All these case are distinguishable to the case before me. In all of these cases the particulars were either non-existent or so vague as to be useless. It would have been a waste of the board’s resources to allow these cases to proceed when there was no allegation to support a breach of the grievor’s rights. However that is not the case here. The grievors here have provided detailed particulars of allegations of discrimination, although some of them do not include every element of the required who, what, where and when. Counsel for the grievors argued that the requirement of providing who, what, where and when is not feasible for a systemic discrimination case and the employer seemed to understand their case as alleging intentional discrimination. As counsel for the employer pointed out the time to make this argument was before the grievors agreed to an order to require such particulars. I am not sure that I would have been persuaded by this argument in any case. The purpose of particulars (for principles of fairness and efficiency) is to provide a synopsis of the factual basis for the case that the party intends to call. In a systemic discrimination case the particulars could include an allegation that policies and practices, which may appear neutral on their face, have a discriminatory effect and/or a pattern of alleged events that would constitute direct discrimination. As noted by vice-chair Harris in Pickett, supra, allegations of discrimination often require a broad scope. In deciding not to strike particulars that were inadequate he held that:
“it would be inappropriate to strike portions of the grievances or preclude the calling of specific evidence. Of first importance is to hear the dispute between the parties. Fairness requires that the union be given an opportunity to call its case, and that the employer know the case it has to meet.” (p.3)
I am satisfied that taken as a whole the particulars satisfy the requirement that the employer knows the case it has to meet. Any deficiencies can be dealt with at the hearing. I do not believe it would serve any purpose to require that the grievors provide additional particulars. Their counsel has indicated that they have provided to date all that they can.
To the second arm of the employer’s motion, I have decided that it would not be fair or appropriate for this board to make an order that the only evidence that could be adduced at the hearings must relate to the particulars as provided. Certainly there were no cases put before me to support this point. I am of the view that this would be to treat the particulars like a pleading, which would be inappropriate in my view. The board has no prehearing discovery as the courts do. Parties do have the right to ask for particulars and production of documents, but this is nothing compared to the extensive procedure for discovery available in civil litigation. The formality of requiring a litigant in the court system to adduce only evidence as to what has been plead, would not be appropriate or fair in the much less formal hearing process before the board. Thus, having carefully considered the submissions of the parties I have decided to deny this motion.
Because I have decided to deny the third motion it is not strictly necessary for me to address an argument made by counsel for the grievors against this motion. However, I think it is important to do so. Counsel for the grievors argued that the board had no right to tell the grievors how to run its case, relying on Universal Workers Union, supra. In that case the Human Rights Tribunal made an interim order requiring the respondent to call ten witnesses that it did not want to call. The Divisional Court found that the tribunal had breached natural justice and procedural fairness. The court held that the parties are “free to conduct their own cases as they see fit.” The tribunal erred when it required the respondent to call witnesses.
In contrast to Universal Workers Union, supra, I am not telling the grievors to put in specific evidence that they do not wish to call. However, in all three motions I have had to decide what evidence to admit. The PSGB has the power and the duty to decide what evidence is admissible, giving paramount consideration to the rules of natural justice. And while it is not bound by the rules of evidence, the board must strive to be fair to both parties to the grievance. In deciding what evidence is admissible, the board is not dictating the grievors’case.
In summary, having carefully considered the submissions on these motions and for the reasons noted above, I hereby grant motion one and two and deny three.
Dated at Toronto this 11th day of December, 2006