PSGB# P-2017-0812

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Taylor

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

James Taylor

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

December 21, 2017

D E C I S I O N

1The Complainant, James Taylor, has filed a complaint alleging reprisal.

2He filed an earlier complaint in 2016 regarding his disciplinary suspension, (P-2016-2281). The Ministry responded to his initial complaint by raising a preliminary objection, claiming that the Board had no jurisdiction to hear the matter because the Complainant had not met the mandatory timelines. Mr. Taylor acknowledged that he did not meet the timelines for advising the Deputy Minister of his intention to file his complaint and, on that basis, the Board allowed the Employer’s motion and Mr. Taylor’s complaint was dismissed.

3The Ministry’s written submissions to the Board in support of its preliminary motion including the following:

Prior to and unrelated to this complaint, the Complainant filed seven individual complaints with the Board and has been a signatory to seven group grievances at the Board. As such he is most certainly aware of the timelines set out in the regulation. For whatever reason he chose not to comply with the timelines in the complaint, unlike his 14 prior complaints.

4Mr. Taylor has now filed a new complaint alleging that the above quoted statement amounts to an act of reprisal. He claims that the Ministry’s only purpose in making this submission was to discredit him and unfairly influence the Board.

5The Ministry’s position is that the current complaint should be dismissed because:

a. No term or condition of employment was allegedly breached;

b. There is no prima facie case of reprisal;

c. The statement relied on as a reprisal is protected by an absolute legal privilege.

6The Ministry maintains that Mr. Taylor has not identified an alleged breach of any term or condition of his employment and the Board therefore has no authority to hear his complaint. The Employer further submits that the Complainant has not made out a prima facie case of reprisal. Counsel noted that s. 139 of the Public Service of Ontario Act (“PSOA”) protects public servants from reprisal. It submits, however, that this section enumerates the circumstances when this protection can be claimed and the statement identified by Mr. Taylor does not meet the definition of reprisal in the Act. Counsel suggests that the statement it made was factually accurate and was relevant to the timeliness issue then before the Board. Moreover, no action was taken against Mr. Taylor that adversely affected his employment.

7Lastly, counsel argues that the complaint should be dismissed because the statement that Mr. Taylor says amounts to reprisal is protected by an absolute legal privilege and cannot be relied on as the basis for any legal action. Counsel maintains that legal pleadings in a quasi-judicial proceeding, including written submissions such as the ones Mr. Taylor relies on in this case, are immune from subsequent legal action.

8Employer counsel cited the following decisions: OPSEU (Liantzakis) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB-2012-3997, October 16, 2014 (Tims); James Allen et al v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2007-2921, July 15, 2009 (O’Neil); OPSEU (Ng) v. The Crown in Right of Ontario (Ministry of Government Services), GSB-2009-0681, May 12, 2010 (Mikus); Antoncic v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2007-0665, January 6, 2009 (O’Neil); TD Bank v. La Framboise, 2016 ONSC 5402, August 26, 2016, (Fragomeni, J.); Ornelas v. Casamici Restaurant, 2010 HRTO 1078, May 13, 2010 (Price); and Simaei v. Hannaford, 2016 ONSC 2046, March 29, 2016, (Master Short).

9Mr. Taylor insists that the Board should not have been told that he had made previous complaints when it considered whether to hear his initial complaint. He considers that portion of the Ministry’s submissions to be prejudicial and irrelevant. He was unaware of any cases that might support his claim or refute the position taken by the Ministry.

10I understand that Mr. Taylor was disappointed that the Board did not hear his original complaint on the merits. I also appreciate the challenges he faces when arguing a case before the Board without the benefit of legal counsel. Nonetheless, the PSGB is a quasi-judicial body that must decide the cases that come before it in a manner that is consistent with the legislation that establishes the Board and any other law that is of general application.

11In this case, I agree with the submissions made by the Ministry that this complaint should be dismissed. Mr. Taylor did not suggest that the Employer breached a specific term or condition of his employment; the foundation of his complaint was that the Employer engaged in an act of reprisal when it made prejudicial statements on a motion to have his earlier complaint dismissed. From Mr. Taylor’s perspective, the comments were unnecessary and were only made to make him look bad before the Board.

12I do not accept Mr. Taylor’s characterisation that counsel’s submissions were irrelevant and designed solely to cast him in an unfair or negative light. The issue before the Board in the original motion was whether Mr. Taylor had met the mandatory timelines for filing his intention to complain about his disciplinary suspension. Without commenting on whether this aspect of the Ministry’s submission was persuasive or not, it was not irrelevant. The Ministry merely stated that Mr. Taylor had used the complaint process on a number of occasions and was therefore aware of the required procedures, including the need to meet the required timelines.

13Nor is the statement unfair. Mr. Taylor is entitled to file a complaint with this Board and no negative inferences should be drawn from the mere fact that he has previously exercised his rights. Having filed other complaints, however, does demonstrate familiarity with the Board’s process. That is a neutral conclusion that is neither prejudicial nor one that casts him in a negative light.

14In any event, I am persuaded that the statement contained in the Ministry’s original submission is protected by an absolute legal privilege and cannot form the basis for a reprisal complaint. The Courts have long held that statements made in the course of legal proceedings, such as the one complained of in this case, are protected from legal action to ensure that parties can advance their cases forcefully and to the best of their ability: Simael v. Hannaford, supra.

15The Human Rights Tribunal of Ontario considered the application of the doctrine in Ornelas v. Casamici Restaurant, supra, and summarised the key concepts at paragraph 90:

Absolute privilege is a common law principle, which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi-judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public’s interest in the orderly and effective administration of justice.

16The Tribunal goes on to conclude that the privilege applies to statements made in court and in legal pleadings. Furthermore, although typically used in defamation cases, the doctrine is not limited to that kind of lawsuit. The HRTO ultimately concluded that it also applied in the context of human rights proceedings and that a letter written by counsel in the course of representing their client was covered by absolute privilege and could not form the basis for an application under the Human Rights Code. The Grievance Settlement Board has similarly determined that the employer’s decision to participate in the grievor’s WSIB appeal is subject to absolute privilege and cannot be relied upon to support allegations of reprisal or harassment: OPSEU (Liantzakis), supra.

17The doctrine of absolute privilege was considered by this board in Antoncic, supra. The Board ultimately concluded that the doctrine was not relevant to the facts before it, which involved an alleged breach of a negotiated settlement precluding either party from making disparaging comments about the other. Counsel had argued that since pleadings were protected by an absolute privilege they could not be considered ‘disparaging’, which counsel asserted meant defamatory. The Board rejected this argument, finding that the ordinary meaning of disparaging did not require that the negative comments meet the legal test for defamation. The Board further found that the doctrine of absolute privilege did not override the terms of a negotiated settlement. Although the Board found that the doctrine of absolute privilege was not applicable in that case, it did not consider whether it could or should be applied in the appropriate circumstances.

18There is an obvious need for parties, and their counsel, to be able to freely pursue their disputes and defend themselves in the appropriate legal forum. The right to make their arguments without fear of a subsequent legal attack is essential to their participation. The courts, and other quasi-judicial bodies, have recognised the need to protect these statements and have done so through maintaining an absolute privilege for statements made in court or in written pleadings.

19The Complainant’s entire allegation of reprisal rests on one paragraph that was included in the Employer’s submissions on a previous complaint. Having read the cases in which the doctrine of absolute privilege was considered, I have concluded that it applies in this case so that the Ministry’s written submissions are protected and cannot be used as a foundation for this compliant.

20Having reached this conclusion, it is not necessary for me to consider whether the Ministry’s prior submissions could otherwise constitute a reprisal as defined in s. 139 of PSOA. I would note, however, that section 139 allows public servants to disclose serious malfeasance in the public sector in limited circumstances and under very specific conditions, essentially protecting “whistle blowers”. It does not appear to contemplate protection from “unfair” statements made in the course of litigation.

21Moreover, section 139 (2) of PSOA defines reprisal as any measure “taken against a public servant that adversely affects his or her employment or appointment”. In this case, the Ministry did not threaten, intimidate, discipline or adversely affect the Complainant’s employment as a result of a disclosure. The Ministry’s statement was solely made to defend their prior decision. That is the legitimate objective of the Crown’s participation at every hearing at the PSGB: the employer attempts to persuade the Board that their actions were permissible and the complainant attempts to persuade the Board that they were not. If I were to accept the Complainant’s position that arguments advanced before the PSGB can form an independent basis for a complaint of reprisal, the Employer’s ability to respond to a complaint would be seriously compromised.

22For all these reasons, the complaint is dismissed.