PSGB#P-2012-3915, P-2012-4181, P-2013-2963

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Jonathan and Holly Wallace

Complainants

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANTS

Holly Wallace

FOR THE EMPLOYER

Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL SUBMISSIONS CONCLUDED

August 12, 2014 March 6, 2015

Decision

1This decision deals with the complaints of Jonathan and Holly Wallace, Operational Managers working at the Central East Correctional Centre (CECC). They assert that pay was deducted in an unauthorized manner, and in breach of a previous settlement to which Ms. Wallace was a signatory. The employer argues that the matter should not continue as the issues are now moot, and that there is no basis for an award of costs or damages in the circumstances of the case.

2The employer also reserved its rights to bring timeliness objections should the matter be allowed to proceed. The employer asserts that the complaints of Ms. Wallace were filed outside the mandatory time limits found in Regulation 378/07 under the Public Service of Ontario Act, and are therefore not arbitral before this Board.

3Both before and after the hearing of this motion by conference call, the parties attempted to resolve the issues between them, and established significant areas of agreement. The most general of the issues raised in the complaints and arguments made by the parties related to a Memorandum of Settlement dated May 12, 2009, to which Ms. Holly Wallace was a signatory, along with two other Operational Managers who are not parties to the grievances now before me. The parties are now agreed that portions of the May 12, 2009 settlement were meant to detail a process pertaining to absences and pay applicable to the Operational Managers at the Central East Correctional Centre generally, and not just to those who signed the settlement. This consensus is in reference to the provisions of the settlement which deal with procedure, rather than those specific to those who signed the settlement of that matter. The procedural portions of the settlement provide for an investigation as to the absence of a Manager prior to the removal of any vacation credits/pay, with a right for the manager in question to participate in the investigation and an opportunity to provide supporting documentation, as well as notification in writing prior to any pay deduction or credit removal, all to be managed by senior management. The parties’ written submissions indicated that they were also in agreement concerning payment for the dates raised in the complaints when Mr. and Ms. Wallace had been at work.

4The complaints here in issue arose because Mr. and Ms. Wallace are of the view that the above-noted procedure was not followed on several dates in 2012 and 2013, resulting in the deduction of pay despite their having worked on those dates. The employer’s position is that the problems arose because the complainants were not signing in and out properly. Nonetheless, it is the employer’s view that, since the complainants have now been paid for the dates raised in the complaints for which they worked, there is nothing left for the Board to adjudicate.

5Employer counsel argues that there is no tangible issue remaining, since the only possible available relief now is a declaration that there were errors in pay. As to the additional remedial requests, such as damages, costs and an investigation, the employer submits that there is no entitlement to such remedies, and that they do not justify the continuation of this hearing.

6The employer relies on the two-step test set out in the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] S.C.J. No. 14. In that case, the Court held that determining whether an issue is moot requires determining whether there is a “live controversy”, i.e. whether the underlying tangible and concrete dispute has disappeared. Secondly, even if the underlying dispute has disappeared, an adjudicator could exercise discretion to hear the case in appropriate circumstances, so it must be decided if those circumstances are present. Counsel refers to arbitration cases in which mootness issues have been considered, consistent with the Borowski test, including decisions from the Grievance Settlement Board, such as: OPSEU (Union grievance) and Ontario Realty Corporation/Management Board Secretariat (1998), GSB No. 2024/97 (Abramsky) and OLBEU (Berry) and Liquor Control Board of Ontario, (2004) GSB No. 2001-0453, et al. (Johnston); and from the PSGB: Gibson v. Ontario (Ministry of Attorney General) P/0134/96, decision dated Jan 21, 1999 (Leighton), and Mously and v. Ontario (Ministry of Community Safety and Correctional Services) P-2010-0433, decision dated Dec. 15, 2010 (O’Neil).

7The employer argues that there is no sufficient reason for the Board to exercise its discretion to hear this matter, as there are no collateral or continuing consequences, or impact that would justify using the Board’s and the parties’ resources to rectify something already settled. Although there could be similar issues in the future, they can better be determined on their own facts at the time, in the employer’s view. Further there is no uncertainty of law, as it is well settled that pay is due for time worked.

8As to the request for damages, employer counsel submits that the complainants are essentially requesting punitive, rather than compensatory, damages for deterrent purposes. Since the issues in the complaints here in issue represent at most pay errors that have been corrected, with no allegations of Human Rights issues or mental distress, there are no sufficient grounds for damages, in the employer’s submission.

9The complainants have also requested pay for the day on which they attended mediation and travel expenses. Counsel for the employer maintains that the complainants have failed to show that there is any term or condition of employment that would entitle them to be paid for the day to come and pursue their own claims, when they have not worked on the day. The employer takes the position that its duty is only to facilitate time off to attend a hearing, but not to pay for time not worked, unless there is a specific provision to that effect.

10Counsel submitted that it was useful to contrast the situation for managers with that for OPSEU employees where there is a specific provision of the collective agreement regarding pay to attend hearings, a bargained benefit, not a right that would otherwise exist. In this regard, the Grievance Settlement Board has found that without such a provision the grievor would not have been paid for the time not worked to go to a hearing. See, for instance, OPSEU (Roberts, Rabley, Hugo & Bain) and Ministry of Correctional Services (1988), GSB Nos. 2545/87 et al. (Verity) and OPSEU (Stockwell) and Ministry of Correctional Services, (1989) GSB No. 534/88 (Stewart).

11The employer also sees its position as consistent with the Board’s general policy against awarding costs, which have only been awarded in the most egregious cases and would be premature in any event here. Counsel refers to decisions such as Callaghan v. Ontario (Ministry of Agriculture and Food) P/0009/89, decision dated Jan 10, 1991 (Willes); Charlton v. Ontario (Ministry of Community Safety and Correctional Services) (2007), P-2006-0291, 2007 CanLII 24192 (ON PSGB),162 L.A.C. (4th) 71 (Carter); Cardoza v. Ontario Ministry of Community Safety and Correctional Services),

P-2009-1510; 2011 CANLII 86404 (ON PSGB) (O’Neil).

12Ms. Wallace, by contrast, highlights the fact that the Memorandum of Settlement was not followed, since there was no investigation prior to removal of credits from the complainants, and she and Mr. Wallace were afforded no opportunity to provide supporting documentation. She submits that if the agreed procedure had been followed, there would have been no need for them to grieve. She is concerned that the Memorandum of Settlement does not count. As well, Ms. Wallace said there was a disconnect in the institution, that the supervisor should notify scheduling staff, so they would know the person is off site on Ministry business, and not to expect the person to sign in and out. Further, she is aware of colleagues who have been called for an explanation when they have not signed in but she has not been called in similar circumstances. Ms. Wallace submitted that what the employer eventually did, in terms of asking for documentation, is what should have been done earlier.

13Ms. Wallace explained that the reason for the request for costs is that if the employer had respected the Memorandum of Settlement in the first place, they would not have incurred the costs of hotel and meals, presumably referring to the cost of coming to mediation in Toronto. She acknowledged there was never a promise to pay for time to attend one’s own hearing, although there had been a previous practice.

14The employer replies that there was no promise to continue the practice of paying grievors to attend the PSGB, and there was notice that it would stop, and it did stop. Therefore the necessary elements of estoppel have not been met, in the employer’s submission.

15The issue to be determined is whether there is any live dispute left in this matter, or whether the controversy should be considered at an end. Having reviewed all the material before me, I have concluded that the combination of the agreement on the general application of the Memorandum of Settlement, and on payment for the dates worked by Mr. and Ms. Wallace, constitutes a resolution of the underlying complaint.

16As the employer acknowledges, the complainants were not just looking for the return of their pay. They also sought an investigation of the incident by an impartial body, damages for what they see as a breach of their rights, as well as costs. In their complaints, they also ask for a mandatory institutional policy which includes some of the same things as in the Memorandum of Settlement referred to above, but additional wording in terms of clarifying schedule changes prior to any deduction being made from an Operational Manager as well as detailed documentation when a deduction is required.

17These additional requests have not been resolved between the parties. However, even assuming everything the complainants allege to be true, there is not a sufficient basis to award these further remedies, so they do not constitute reason enough to continue the proceedings. As to the request for an investigation, the only source of an entitlement to an investigation is the Memorandum of Settlement. That contemplates the type of investigation which has now occurred, including the provision of documentation by the complainant. I am not persuaded that there is any entitlement to any further investigation.

18As to their expenses in coming to Toronto to engage in mediation, Ms. Wallace highlights that, if the employer had followed the process in the Memorandum of Settlement, she and Mr. Wallace would not have had that expense, or had the inconvenience of being without pay for the time it took to resolve their claims. She also states she was disadvantaged in terms of tracking vacation credits and the fact that the delay in payment affected payment of bills. The material does not persuade me that there is any entitlement to reimbursement for expenses related to pursuing these complaints. The employer no longer pays for time to attend hearings, and there is nothing in the material that supports a finding that there is any entitlement in the complainants’ current terms and condition of employment to be paid for their time or other costs. As to expenses, the Board has a long standing policy not to award such costs to either side, for hearings or mediations, even to successful parties.

19As the Board noted, in Cardoza, cited above, costs are generally awarded to the successful party in Court actions, but have not normally been awarded by administrative tribunals or arbitrators in employment matters in Ontario, either on the basis of lack of jurisdiction, or as a matter of practice. A practice of not awarding costs means that unsuccessful complainants do not generally face the prospect of paying the legal costs of the successful party, something that makes administrative tribunals more accessible than the Courts. Although the decisions in Callaghan, cited above, and

Girling v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 45638 (ON PSGB) P/0013/98 are examples of exceptional circumstances in which the Board has awarded costs, more recent cases have not done so, including Charlton, cited above, where the Board reiterated that awards of cost would be reserved for the most egregious examples of employer misconduct.

20As to the request for damages, I accept the employer’s argument that to award damages in a case like this would be punitive, rather than compensatory, which is not warranted by the facts alleged in the complaints.

21For the above reasons, the Board finds that the issues related to pay and policy claims underlying the complaints have been resolved, and they are moot in that respect. In relation to the other matters claimed, even accepting all the facts asserted by the complainants to be true, there is insufficient basis to grant further remedies than that provided by the agreements as to the provisions of the previous Memorandum of Settlement, and the pay for the days worked. For the above-noted reasons, the Board considers that there is no further matter to be adjudicated upon, and these proceedings are therefore terminated.