P-2010-0433

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mike Mously

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Mike Mously

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel

HEARING

July 27, 2010.

Decision

1This decision deals with preliminary objections by the employer to the hearing of the application of Mr. Mike Mously, Senior Project Coordinator. The employer takes the position that the matter is not arbitrable as the issues are moot, certain of the matters raised are beyond the board's jurisdiction, and the hearing would serve no useful purpose in the context of the employment relationship. The applicant, Mr. Mously, invites the board to hold a full hearing of the issues raised in his application.

Factual background

2In deciding on a motion of this kind, the facts asserted in the application are assumed to be true and provable, although if the matter proceeds to hearing, the board may find otherwise, based on the evidence presented. The following represents a brief summary of the factual background as asserted by the grievor in his application, and includes certain uncontested facts.

3The grievor filed a grievance by way of a letter to Deputy Minister Hope on January 18, 2010. He complained that the employer failed to follow its own Workplace Discrimination and Harassment Policy (WDHP) in investigating a complaint against him by a number of Operational Managers while he was working as Deputy Superintendent, Administration at Central East Correctional Center (CECC) and failed to properly address complaints which he had brought to the employer's attention. He attached a letter dated December 22, 2009 in which he was advised that WDHP complaints filed against him by five Operational Managers at CECC had been withdrawn and that the Ministry would be taking no further action on the complaints. His allegations of violation of the WDHP policy include bias in favour of the complainants and against him, a failure to investigate complaints, failure to take action with regard to violations, failure to protect the rights of affected parties, excessive delay, failure to maintain a workplace free of discrimination and harassment, the creation and condoning of a poisoned work environment and failing to address complaints regarding those violations when they were brought to the employer's attention. He states that he gave a detailed written description of these violations to a WDHP investigator in September 2008, a copy of which was appended to the application. Further, the grievor alleges that he was disciplined by demotion, being removed from the workplace, and having his management responsibilities removed as a result of being a respondent in the WDHP complaints, even though no findings were ever made against him to his knowledge, no performance concerns have been brought to his attention and he was not provided with an opportunity to respond to or challenge any allegations. He notes that the discipline had been in place for more than two years at the time he made this application, with no indication of when it would end.

4Mr. Mously also asserts that the employer negotiated grievance settlements with Operational Managers which had a negative impact on his rights, without allowing him the opportunity to participate and represent his own interests. Remedies sought in the settled grievances apparently included changed reporting relationships and his removal from his position. The grievor submits that in one instance, this was in contravention of a direction from this Board that the grievor be allowed to participate in mediation and be given notice of the mediation. In this application, Mr. Mously claims remedies, including an investigation into the matters raised in the withdrawn WDHP complaints, as well as into related issues in the workplace, as well as declarations and monetary remedies for the alleged discipline and damage to his career and reputation.

5Other facts, referred to by the employer in their submissions, appear to be uncontested. For instance, counsel observed that at the time of the complaints against him, Mr. Mously was working in the Deputy Superintendent -Administration position which is classified as an AM–21 position, while his home position remains Deputy Superintendent, Operations at CECC, which is classified as an AM–20 position.

6Regarding Mr. Mously's allegation that there was a failure to investigate the WDHP complaints, the employer asserts that an outside investigator was retained, and met with Mr. Mously and others, but has yet to produce a report. As to the alleged failure to abide by the Board's direction in the grievance that asked for remedies negatively affecting Mr. Mously that he should have notice of mediation and be entitled to participate in it on the issues which affected him, counsel observes that the grievors in that matter objected through their counsel to mediating in the presence of Mr. Mously. On the basis that the complainants and the employer were of the view that the Board's direction only applied to mediation under the auspices of the Board, the mediation was cancelled and the employer and the complainants resolved their concerns.

Positions of the parties

7The employer’s position concerning the WDHP complaints in which Mr. Mously was a respondent, and the grievance in which remedies were sought against him, is that there is now no live issue on which the Board may issue a ruling, as they have now been withdrawn. Further, in the employer's view, the other facts alleged do not constitute a breach of the Public Service of Ontario Act (PSOA) or any identified term or condition of the grievor’s employment.

8Concerning Mr. Mously's allegation that his third-party rights were violated in the settlement of the grievances with the Operational Managers, the employer submits that the directive of the Board could only pertain to matters before the PSGB, as those are the only matters over which it has statutory authority. It is the employer's assertion that the board has no authority over any other alternative dispute resolution process outside the auspices of the PSGB. Employer counsel asserts that Mr. Mously is presupposing a right to participate in a proceeding to which he had not been made a party. Observing that it is not at all unusual for parties to resolve their differences without a statutory mediator, counsel asserts that Mr. Mously had no legitimate expectation that he would be involved in a mediation outside the PSGB. The employer submits that the parties effectively removed themselves from the reach of the jurisdiction of the PSGB, and Mr. Mously has established no damages as a result. In any event, it is the employer's position that there is no possibility of compensation because, the settlement was, at most, a breach of the directive in a grievance to which he was not a party, and there is no outstanding proceeding in this regard.

9The employer further takes the position that the issues as to the WDHP complaints against Mr. Mously are moot, as they have been withdrawn. Any further action on the matter would be an academic exercise, in the employer's view. An investigation has occurred, Mr. Mously was interviewed, and no action is being taken on the complaints against him. Counsel refers to case law where mootness was found where there was no legal or practical effect to proceeding, and urges the board to decline to hear Mr. Mously's application.

10The employer stresses that the conduct of an investigation into a WDHP complaint is not in the hands of the respondent, and that if the complainants withdraw, that is the end of it, in their view. Counsel submits that Mr. Mously cannot compel the employer to conduct an investigation and in the absence of a report against him the question becomes what damages he could have suffered. Nor should the board accept the invitation to inquire into facts that pertain to a withdrawn application. The employer asserts there has been no discipline and no loss of opportunities to the grievor. Employer counsel observes that the grievor has not identified a single specific position that he was not able to apply for. Counsel remarked that if the grievor chooses not to apply for positions despite being advised by the Regional Director to apply, he cannot seek damages for failure to advance. Counsel queries what the board could order in view of the fact that the declarations sought would be useless and there is no monetary loss.

11Counsel poses the question: is it justifiable to allocate resources to an issue that is no longer live between the parties? The following case law is relied on in support of their position that it is not: Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] 1 SC.R. 342, Welland County Roman Catholic Separate School Board and OECTA, (1992) 1992 CanLII 14552 (ON LA), 30 L.A.C. (4th) 353, Renfrew County District School Board and ETFO, 2008 CanLII 19021 (ON L.A.) (Beck), Donna Lee Jones and The Crown In Right Of Ontario (Ministry of Correctional Services) November 30, 1995 P/009/92 (Willes). Further, the employer asserts that the grievor has failed to show that he has suffered any damage, as he continues to act in a position higher than his home position and had asked for a reassignment at the time of the WDHP complaint. If he does not like the reassignment he asked for and the employer facilitated, it is not for this Board to rule that there is any evidence he has suffered or been prejudiced, where he is working in a higher position, and being remunerated at a higher rate than he would be if he was in his home position.

12By contrast, Mr. Mously takes the position that he has provided sufficient background to permit the board to declare the matter arbitrable. In his view, the employer has acted in violation of the WDHP, there is alleged discipline, and by mediating the grievances of the Operational Managers, without allowing him to participate, the employer violated his third-party rights. The grievor asserts that all the legislative requirements have been met, i.e. the PSGB has jurisdiction, there is a factual foundation for the complaint, the correct procedure has been followed, and the remedies requested are within the board's jurisdiction.

13Mr. Mously puts the negative consequences he says he has suffered as a result of the unsubstantiated complaints in the context of his experience before and after the complaints. He notes he has 25 years experience with the ministry, 21 as a manager. He has held a number of senior positions as Superintendent, Deputy Superintendent and Regional Staff Relations Officer. Since February 2008 he has been reassigned to the Ministry Facilities Branch as a Senior Project Coordinator, with no responsibilities for managing staff, as a direct result of the WDHP process. Nothing has been done to change that assignment despite the end of the investigation or to reverse things that have happened as a result of the complaint that has been withdrawn. Mr. Mously asserts that sometime in 2007 grievances and complaints started, some seeking his removal and a change of the reporting relationships. Despite WDHP policy provisions about notice, the grievor states he did not receive notice until December 2007 and then from the investigator rather than from the employer, and that he was prejudiced in defending himself as a result of this and other employer actions and interactions which favoured the complainants over him. He denies that he himself did anything in breach of the WDHP or that any of his actions were inappropriate, and alleges that the complaints against him were brought in bad faith. Nonetheless, while the investigation was continuing, Mr. Mously had concerns about the working relationships, which he raised with his superiors. He was subsequently reassigned, but thought that it would be a few weeks or months because the investigative report was anticipated in early 2008. He asserts that he had no information about the investigation until a letter he received at the end of 2009, two years from the start of the investigation, such that for the better part of two years he did not know what was happening. Although the letter did advise him that five WDHP complaints had been withdrawn and no further action would be taken on the matter, nothing was mentioned about other complaints filed and there was no information about his status on the temporary assignment, or any indication about the concerns he had raised with the investigator about the WDHP process, and what he believed to be violations by the employer of its own policy. When he attempted to get more information he was told that the file was closed. His grievance and this application followed shortly thereafter.

14Mr. Mously notes that he was assured that there was no impact on him arising from the settlement with the Operational Managers of their grievances, but he was not allowed to see the confidential settlement document. When he asked if that ended his assignment and he could return to CECC, he was told that was not a “good idea". As the remedies requested by the Operational Managers in the original WDHP complaint and the grievance included his removal from the institution and not having report to him, Mr. Mously's position is that the Operational Managers who complained about him had achieved their desired result, on an indefinite basis. In the meantime, he asserts that he has been bypassed for promotional and developmental opportunities that were given to others with less seniority. Further, prior to the complaints he had been identified as a person to be actively prepared for promotion to senior management, and since the complaints, no action has been taken on this. He asserts that if he had been found guilty of the allegations, he would likely have fared less badly.

15As to the employer's suggestion that he had not applied for promotion, the grievor asserts that senior positions are posted only by exception and are usually filled by appointment. The grievor asserts there were at least 8 to 10 senior management positions that were filled by other people that he believes he was not appointed to because of the impression that the WDHP investigation left with people in the Ministry. In the result, the grievor maintains that the grievance should go ahead on the three main grounds: a violation of the WDHP policy, discipline to him in that he was sidelined during the WDHP investigation and continues to be affected today, and that his rights as a third-party have been breached by the employer's settling with the Operational Managers who grieved against him.

16In reply to the arguments made by employer counsel, Mr. Mously says that the employer has only captured a minimal amount of what the grievance is about. He states that he is not just complaining about lack of notice to him as a third-party and that he believes he has put forth sufficient facts to show that there is a viable different view to the effect that he has been the subject of discipline. As well, Mr. Mously submits that the board's jurisdiction should be interpreted broadly rather than narrowly, and relies on the following cases in support of his arguments: Chyczij and Ministry of Labour, July 4, 2006, PSGB P/0003/02 (O’Neil); Bertolo; Tighe and Ministry of Solicitor General, February 22, 1996, PSGB P/0008/95, P70009/95 (Leighton), Kanga and Ministry of Health, June 20, 1986 PSGB P/0003/85 (Simmons); Di Gaetano and Ministry of Municipal Affairs and Housing October 26, 2000 PSGB P/0061/95, P/0015/96 (Walter).

17As to the investigation that was not completed because the investigator did not submit his report, the grievor does not concede that the employer made the best efforts to complete the investigation. He has received very little information about it and said that he would welcome the opportunity to review the process and would then consider altering his position. It is the grievor's position that difficulty with an external investigator does not relieve the employer of obligations under the WDHP policy as to investigation.

18The grievor asserts that all of the cases relied on by the employer for the submission that the issues are moot involved distinguishable fact situations. In particular, he submits there is ongoing impact. All of the employer's assertions that there was no evidence of lost opportunity and no demotion are in dispute and therefore need a hearing, in his view. These issues also go to whether or not damages would be appropriate. Further there is bias in the fact that the Operational Managers’ issues were dealt with and his were not, and he was never provided with a reason for this difference in treatment.

Should this application be allowed to proceed?

19The jurisprudence referred to above makes it clear that a matter should be declared moot, and not be allowed to proceed further, where there is no live controversy between the parties or no useful purpose would be served by continuing, as in cases where no foundation has been made out for a remedy. As the Supreme Court of Canada discussed in the Borowski case, cited above, it is necessary to decide whether the tangible and concrete dispute raised in Mr. Mously's application has disappeared or not.

20The main reason the employer argues that this matter is moot is that no action was taken against the grievor as a result of the WDHP complaints filed by certain Operational Managers, and that those complaints, as well as the grievance filed by Operational Managers with the PSGB in which Mr. Mously sought to participate in the mediation, have been withdrawn. Mr. Mously's response is essentially that there is still an entirely live issue between him and the employer as to whether or not his rights have been infringed and whether it is true that there was no action taken against him as a result of the WDHP complaint and in any event whether his reassignment, and other negative effects on his career progression, which continue, amount to disguised discipline.

21Having carefully considered the submissions of the parties, it is my view that the part of Mr. Mously's application that involves issues relating to the withdrawn WDHP complaints and the settled grievances are moot, and should not proceed further. However, the grievor's allegations that he has effectively been disciplined as a result of unproven complaints may proceed to hearing.

22Mr. Mously raises many serious issues as to the conduct of the employer's response to the WDHP complaints that were filed against him. However, they are all in the context of a dispute as to whether he himself had violated the WDHP policy in regards to the Operational Managers who filed those complaints. Once those complaints were withdrawn, the concrete and tangible dispute as to whether Mr. Mously violated the policy disappeared. All of the matters relating to procedure under the WDHP that Mr. Mously raises, are in my view, part and parcel of that proceeding, which no longer exists. The Board can appreciate the stress and uncertainty that Mr. Mously experienced as a result of what was, by the employer's own admission, an unfortunately delayed process. Nonetheless, the invitation that Mr. Mously has extended to this Board to resurrect all of those issues, and scrutinize virtually every aspect of a WDHP proceeding that no longer exists, as well as many collateral issues, is one that the board would be ill-advised to take up. The idea that legal proceedings may be withdrawn or resolved is very important to the legal system in general, and to the Board’s proceedings in particular. Mr. Mously has not persuaded this Board that the WDHP constitutes a term and condition of employment that effectively requires the adjudication of a complaint that has been withdrawn, or scrutiny of numerous wide-ranging allegations as to the general state of discipline and operational effectiveness of the correctional facility, made by him to the investigator at the time. As in the Renfrew County and Welland County cases referred to above, the fact that there were serious issues raised which might recur on another occasion is not sufficient, in the Board's view, to justify undertaking a lengthy and detailed litigation of issues flowing from complaints that have been laid to rest. I acknowledge that the DiGaetano case, cited above, and relied on by Mr. Mously, may be seen as taking a different view of the wisdom of litigating procedural aspects of a completed WDHP complaint. Nonetheless, it appears that there was no objection to the Board's proceeding in that matter, nor any argument that the matter was moot in that case. As a result, the Board's findings in that case that delay in the WDHP process violated that grievor's rights, even when he had been eventually vindicated, can not be seen as addressing the issues raised before the board in this matter.

23Similarly, in regards to the grievance of the Operational Managers which involved a direction from the Board as to a mediation that was subsequently cancelled, that concrete dispute no longer exists. There is no longer a proceeding before this Board in which Mr. Mously can now be allowed to participate, as it has been withdrawn. It is appropriate to note that, unlike for certain lawsuits in Ontario, mediation continues to be designed as a voluntary process in the PSGB's process. As well, settlement of disputes by alternative dispute resolution processes continues to be encouraged, with or without the Board's involvement. Although the grievor raises important issues about when and how an employee who has been advised that his interests diverge from those of both parties to a dispute may protect his own interests within that process, those issues will have to be determined on a case-by-case basis within the context of live disputes, rather than in reference to one that is no longer before the Board.

24The above comments do not apply, however, to Mr. Mously's allegation that, notwithstanding assurances to the contrary, he has been disciplined and denied other benefits such as promotion and training as a result of being a respondent in unproven complaints against him. Facts such as the duration of the reassignment and the change of duties raise arbitral issues as to the nature of the continuing effects on Mr. Mously of the allegations made against him and the proper characterization of the continuing reassignment. There was no suggestion that these were issues that had been in any way determined by the withdrawal of the WDHP complaints or the settlement of the grievances referred to above. I recognize that the employer takes the position that there is nothing in its treatment of Mr. Mously that is disciplinary and that there has been no loss of pay, and therefore no damages. The fact that the employer may have a good defence to the allegations raised by Mr. Mously is not determinative on a motion such as this. If Mr. Mously can establish the facts that he alleges, there might well be place for a remedy even if he did not actually suffer financially in the intervening period. Certainly, it is not plain and obvious that this portion of the complaint cannot succeed or raises no arguable case for a remedy, which is the standard set by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 for dismissing a matter on a preliminary motion such as this.

25There was some indication in Mr. Mously's oral submissions that there were still outstanding complaints against him from 2007. He is directed to identify those complaints to employer counsel, who is directed to advise him as to their status. If there are any further issues on which the Board needs to rule as to any such remaining complaints, either party may contact the board prior to the next scheduled date of hearing.

26The Registrar will contact the parties to canvass dates for hearing. In the interim, the parties are encouraged to renew their efforts at settling their differences, with the aim of avoiding the uncertainty and cost - in time, money and attention to past events - which a hearing of the remaining issues would necessarily involve.