PSGB# P-2014-2859

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bazger

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Hamza Bazger

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 31, 2017 conference call, with written submissions completed December 28, 2017

D E C I S I O N

1This decision deals with the claims of Hamza Bazger for compensation and other relief flowing from his August 14, 2014 discharge from employment. Given that the matter of the discharge has been dealt with, and the complainant reinstated as a result of the decision of the Board dated March 8, 2017, the employer has responded with a motion to dismiss the new claims. The employer submits that they could all have been raised during the hearing of the initial complaint challenging his dismissal, that the overarching issue has been decided and that they are untimely. As to certain allegations against counsel himself, absolute privilege is pleaded.

2The parties agreed that the preliminary motions would be heard by way of written submissions and a schedule for their submission was established by the Board.

The background context

3After 14 days of hearings concerning Mr. Bazger’s complaint against his termination for deficiencies in his management of a use of force incident, the Board found that he had engaged in serious misconduct, but that reinstatement was warranted in all the circumstances. That decision is now reported as Bazger v Ontario (Community Safety and Correctional Services), 2017 CanLII 25423 (ON PSGB) and is referred to as the “2017 decision” below. In that decision, the Board found that a number of the allegations levelled against Mr. Bazger by the employer had not been proven on a balance of probabilities, and thus the misconduct found in the decision was less serious than what had been alleged. Nonetheless, it was sufficiently serious that the reinstatement was ordered with no compensation, a very considerable penalty. Evidence concerning the financial and other impact on Mr. Bazger and his family was heard and considered by the Board in coming to that decision. Employer counsel emphasizes that Mr. Bazger was represented by experienced counsel throughout the hearing.

4His new complaint, characterized as an addendum to his previous complaint, was filed with the Board on October 2, 2017, over six months after the Board’s decision. In it, Mr. Bazger claims that, in dismissing him, the employer discriminated against him, by protecting a manager described by Mr. Bazger as Caucasian. When the use of force incident which lead to Mr. Bazger’s discharge occurred, he was replacing this manager, who was normally in charge of the unit, but was on lunch break at the time. As remedy, he seeks compensation for losses, including lost revenue, loss of two income properties and punitive damages for pain and suffering. To summarize, Mr. Bazger makes several allegations against those who were involved in the investigation of the incident which lead to his dismissal, and about the oral and documentary evidence entered at the hearing of this matter. These include claims that the investigation by the CISU (Correctional Investigation and Security Unit) was biased against him. As well, he alleges that employer counsel harassed him during the hearing of this matter and lied to the Board about the reasons why an employer witness could not attend on one specific hearing date. The witness in question did attend on three other hearing dates and gave lengthy evidence.

5Mr. Bazger states that all the evidence provided to him and his counsel was not examined and submitted at the hearing for various reasons. After the hearing was over, Mr. Bazger did a thorough review of the evidence, including some which was not examined during the hearing, and concluded that the employer had severely violated his rights regarding the dismissal. In listing the specifics of his new complaint, Mr. Bazger mentions how the evidence was collected and provided, the alleged bias of the CISU against him, the reopening of the investigation by the Deputy Superintendent without involvement of the CISU, discrimination against him by way of favoritism toward the manager of the unit on which the use of force incident occurred, cover-up of evidence by the CISU, the Deputy Superintendent and the Security Manager regarding the other manager’s involvement. He alleges that the Deputy Superintendent motivated other officers to pursue criminal charges against Mr. Bazger, and was not truthful at the hearing.

6Further, he claims that one of the inspectors motivated an inmate to sue Mr. Bazger and the Correctional Officer who was fired for his use of force on two inmates, and that this inspector knew that the manager he was replacing at the time of the incident threatened the inmate, but did not act on this information. As well, he claims that the termination was discriminatory in that it was racially or religiously motivated and constituted an act of hate for which those involved should be held accountable. He further claims that management committed a crime against him and his family, in that pain and suffering was inflicted upon him and his family. He adds that his dismissal was plagued by conflicting testimony and evidence of collusion about exactly what happened.

7The new complaint was filed because Mr. Bazger believes he is now in possession of new significant evidence which would have resulted in a finding that there was no just cause to discipline him, and that compensation would have been awarded to him. The new evidence is described as statements from other managers which establish that the Deputy Superintendent at the time destroyed occurrence reports of other officers and omitted some reports from the package of reports filed regarding the use of force incident in question. Further, he states that there is new evidence that the CISU interviewed an inmate involved without providing the information or detail of its findings to Mr. Bazger or his lawyer. As well, he maintains that the security manager at the time viewed the video of the use of force incident before it was reported by a Correctional Officer, but did not act on what he saw. He also says he has new solid proof of discrimination by his employer.

8Mr. Bazger says that because the employer took too long with the suspension, investigation and dismissal, he suffered financial hardship and was forced to end the hearing without examining all the evidence, for example a handwriting expert’s opinion, and an interview between the CISU and an inmate.

The issues and conclusions

9The employer’ s motion raises three issues: the timeliness of Mr. Bazger’s new complaint, whether new evidence should be allowed and whether absolute privilege covers the alleged harassment by employer counsel during the hearing of this matter. Given the view I take of the matter, the timeliness issue does not need to be dealt with.

10After careful consideration of the parties’ submissions, and for the reasons that follow, I have concluded that the matters raised by Mr. Bazger are not sufficient to allow new evidence to be called in this matter, or to hear the allegations against employer counsel.

11Employer counsel asks the Board to dismiss the new complaint as a result of applying the legal doctrine of res judicata, a Latin term meaning a matter that has already been decided. Counsel submits that the Board’s 2017 decision reinstating Mr. Bazger to employment is a prior decision addressing the same overarching legal question based on the very same facts, and that the law is clear that the matter should not now be re-opened. In support of this argument, counsel relies on a decision of the Grievance Settlement Board : Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) Grievance of McNally, GSB #2009-1749 (Brown); 2009 CanLII 59468 (ON GSB) and the case law cited therein.

12For his part, Mr. Bazger says that he is not trying to re-open the matter, and that he accepts the 2017 decision of the Board. However, he maintains that his new evidence amounts to an exception to the principle of res judicata, in that he maintains that if the Board heard his new evidence, the decision would certainly have been different, and would have awarded him compensation. He quotes from the decision of the Alberta Court of Queen’s Bench, Hill v Hill, 2015 ABQB 436, which held that the new evidence brought forward in that case was significant, and created a reasonable probability that a new trial judge would find the evidence conclusive. That decision was reversed on appeal in a decision reported as Hill v Hill, 2016 ABCA 49, because the Court of Appeal thought the new evidence would not have changed the result, and the trial judge had not applied the principle of res judicata correctly.

13The case law relied on by both parties articulates the principle of res judicata in similar ways. The main idea is that there has to be an end to litigation at some point, and when an issue is already decided, it should not be revisited. Finality is fundamental to our legal system so that parties are not forced to deal with issues over and over again. Here, it is very clear that, after a lengthy hearing, the Board has already determined the issue of whether the complainant’s discharge was justified, and the remedy for it.

14Mr. Bazger is correct that there are some exceptions to the principle of res judicata, and that there are cases which have been revisited even after a final decision. However, these examples are very limited. As the Alberta Court of Appeal said in its 2016 Hill decision, cited above, the grounds for permitting relitigation must be narrow in scope and the discretion to allow it must be exercised only in the most compelling of circumstances so that relitigation will be rare. A party will only be allowed to bring forward evidence on the same issue if the previous decision was obtained by fraud, or there is new evidence that could not have been obtained by due diligence prior to the previous hearing. In addition, the new evidence must be so material and incontrovertible that it would have changed the result had it been brought forward at the previous hearing. The Alberta Court of Appeal held that to override the imperative of finality, it must be demonstrated that the evidentiary foundation of the original judgment is most likely wrong and that the new evidence would have changed the result had it been brought forward at trial.

15I have applied these principles to the facts before me in light of Mr. Bazger’s new complaint. There is very little evidence that the matters he wishes to raise now could not have been discovered prior to the end of the initial hearing, and some of them are clearly matters that Mr. Bazger, in consultation with his counsel, decided not to raise for various reasons.

16More importantly, however, and even if some of the matters now raised could not have been discovered with due diligence before, the Board is not persuaded that the matters which Mr. Bazger raises would have changed the result. In the Board’s view, the major findings in the 2017 decision, including the findings that there was just cause for serious discipline, and that the appropriate penalty was reinstatement to employment without compensation would not have been affected by the matters he raises. The evidence he wishes to have heard would be tangential to the real issue before the Board, i.e. whether there was just cause for discharge, and if not, what remedy should flow.

17A reading of the Board’s 2017 decision will show that most of the findings were made on the basis of facts that Mr. Bazger did not dispute, such as that he did not initially report the use of force that he acknowledged he had personally observed, and that although he had the responsibility for care of the inmate involved, he did not manage the incident in a way that maintained his focus on the inmate, or ensured that those with an opportunity to see the use of force reported what they saw. As well, he let the use of force he knew occurred go unreported initially, contrary to his obligations, because he thought it had been defensible. As well, he mismanaged a confrontation with the Correctional Officer who alerted senior management to the use of force incident. The decision includes the conclusion that Mr. Bazger displayed a lack of appreciation for how underreporting feeds the Code of Silence, and that concessions to peer pressure, particularly in respect of the reporting of use of force, have no place in effective management of a correctional institution.

18None of the things that Mr. Bazger wishes to bring forward now would change any of those findings, which were the essential underpinnings to the remedy which he wishes to change. New evidence about the handling of Occurrence Reports, or how other managers responded to evidence about the incident, or were not disciplined, would not change Mr. Bazger’s role in the original incident. His defense at the hearing included a significant amount of evidence about the role of others in the events surrounding the incident in question, which was considered at length in the decision. The decision finds that there were deficiencies in the process of handling occurrence reports, and the Board did not rely on the results of the investigation of Mr. Bazger’s use of computers by the Deputy Superintendent close to the time of the hearing, as the Board found the results inconclusive. In the end, the discipline that was upheld was for Mr. Bazger’s own role in the management of the use of force by a correctional officer, a result which would not be impacted by any of the matters raised in the new complaint. Much of it was already in evidence in any event, but even the matters that were not mentioned at the hearing, such as the role of other staff in criminal charges and a lawsuit by an inmate flowing from the use of force incident, were events that happened after the central incident which lead to the discharge. These would not have had any bearing on the matters in issue at the Board’s hearing, or the result obtained.

19Mr. Bazger also claims that there was collusion and much conflicting evidence about exactly what happened. It is true that there was significant conflict in the evidence about certain matters, as well as sharing and comparing information before reporting and testifying, as documented in the decision. Nonetheless, the credibility decisions in the decision were resolved in Mr. Bazger’s favour, another aspect in which the newly raised issues would not alter the result.

20The idea that Mr. Bazger’s interests were sacrificed to those of others that management preferred was advanced during the hearing. Even though the allegations of racial and religious discrimination he voices in his new complaint were not formally made, all the facts he now references as a basis for these allegations were available at the time of the hearing. Mr. Bazger made many references in the hearing of his initial complaint to negative differential treatment he believed he had suffered at the hands of management, in particular as compared to the manager on whose unit the incident occurred. The claims as to inequality of discipline were dealt with explicitly in the decision, and all his circumstances were taken into account in determining the remedy. In any event, I am unpersuaded that the issues and evidence Mr. Bazger now wishes to raise would have changed the result, given the undisputed facts at the root of the discipline that was upheld.

21It is very clear that Mr. Bazger, as an eye witness to much of the use of force incident, when the manager to whom he compares himself was not on the unit, was in a very different position in terms of potential for discipline. Although Mr. Bazger had disagreements with the unit manager he was replacing at the time about how to handle the aftermath, there was never any dispute that Mr. Bazger bore the managerial responsibility for the use of force as it was occurring while the regular manager was at lunch.

22In short, this is a classic case for the application of the doctrine of res judicata. Mr. Bazger may have second thoughts about decisions made in the presentation of his case, but that is not an appropriate basis for re-opening the matter. Although he resists the idea that he is asking for a re-opening of the hearing, that is the effect of his request. After the lengthy hearing of this matter, the Board rendered a final decision on the issues of the justification for discipline and the remedy for the reduction in penalty that was ordered. The matters now raised do not reach the high standard required for the Board to find that there is new evidence that should be considered as an exception to the application of the doctrine of res judicata.

Absolute Privilege

23Although the new complaint will be dismissed as dealing with a matter already decided, it is appropriate to deal briefly with the complainant’s claims with reference to the alleged conduct of counsel at the hearing, some of which arose out of counsel’s cross-examination of Mr. Bazger. I accept the employer’s submissions that such allegations are covered by the doctrine of absolute privilege.

24As employer counsel notes, absolute privilege has been defined in Simaei v Hannaford, 2016 ONSC 2046 , as follows, relying on Halsbury’s Laws of England:

No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not.

25The complainant has not established any reason why these principles should not be applied in the current case. Nor has he established the basis for a finding of any improper conduct by counsel. Accordingly, I have concluded the complainant’s allegations in respect of counsel’s conduct fail to make out a prima facie case for relief of any kind, including any based on harassment, and would have been dismissed even if the rest of the new complaint had been allowed to proceed.

26For the above reasons, the new complaint is dismissed, as it deals with a matter that has already been decided, and the material relied on is insufficient to re-open the matter.