P-2014-4356, P-2014-4357, P-2015-1392

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Debbie Nason

Complainant

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANT

Debbie Nason

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 29, 2016

Decision

1The Complainant has challenged her dismissal, which was without cause under s. 38(1) of the Public Service of Ontario Act, (the “Act”). She alleges that the Employer did not act in good faith when it dismissed her, violated the Human Rights Code on the basis of disability and engaged in a reprisal for her disclosure of wrongdoing, contrary to s. 139 of the Act.

2The Employer indicated that it was bringing a preliminary motion asking that the complaint be dismissed on the grounds that the pleadings do not disclose a prima facie case of discrimination under the Human Rights Code or a ‘disclosure’ of an alleged ‘wrongdoing’, as those terms are defined under s. 139 of the Act, and consequently, do not set out a viable basis for an allegation of reprisal.

3The Complainant initially requested extensive production and disclosure from the Employer. She narrowed, but maintained her request for disclosure after the Employer set out the grounds for its’ preliminary motion. The Complainant identified a series of documents that she said she required in order to fully respond to the Employer’s arguments. The Employer agreed to produce a limited number of these documents, but argued that the remainder were not relevant to the issues to be determined on the preliminary motion.

4Having considered the submissions of the parties, I have determined that the Employer must produce the documents requested in paragraphs 1 and 2 of the Complainant’s email dated August 23, 2016. The Employer has advised that it intends to argue that there was no ‘disclosure’ of wrongdoing and that the Complainant merely raised concerns to seek operational guidance. The Complainant asserted that she sought more general guidance from her superiors with respect to alleged wrongdoing and that she was fired as a result of raising those concerns. I agree with the Employer that disclosure of correspondence and meeting notes requested by the Complainant in paragraph 1 and 2 is likely relevant to the merits of the Complainant’s claim, that is whether her concerns regarding the issuance of Enhanced Drivers’ Licenses was a factor in her dismissal. In this case, inevitably, the merits of the complaint are also inter-related with an issue raised by the preliminary motion: whether the Complainant made a disclosure as contemplated by the Act. The Employer is challenging whether there was a disclosure and I regard the documents set out in paragraph 1 and 2 as arguably relevant to that issue. They must therefore be produced.

5However, at this time, I would not require production of the documents listed at paragraphs 3-15. In paragraph 3, the Complainant asked for a copy of the MOU between the province and CSIS pertaining to the issuance of Enhanced Driver’s Licenses. She claims that that the MOU constitutes delegated authority under the Canadian Border Services Agency Act and that therefore a breach of the MOU is a breach of an Act or Regulation. Without determining whether she is right or not, I consider the content of the MOU to be relevant to whether it was breached, not whether if breached it would support a finding of reprisal under the Act. In other words, the Complaint does not need the MOU to make her argument on the preliminary motion, although she may well require it if the Employer does not succeed in the motion to dismiss this aspect of her case.

6Similarly, the information requested in the remaining paragraphs is relevant to whether the Employer discriminated against the Complainant on the basis of disability. The Employer, at this stage, is not addressing the merits of the case, but is merely saying that the facts alleged in the complaint, even if true, are not enough to establish that the Employer engaged in discrimination.

7I would note that my decision is without prejudice to the Complainant’s right to request all of these documents again if the Employer is unsuccessful in the preliminary motion.

8The parties also made brief submissions, in response to my questions, on whether the Complainant should be permitted to amend her complaint. The Employer indicated that it was not prepared to consent to any amendments. Neither side have yet fully argued the preliminary motion and I have determined that it would be premature to determine this issue now. I am therefore reserving my decision until the parties have had the chance to fully argue the preliminary motion, including whether it would be appropriate to permit the Complainant to amend her complaint.