PSGB# P-2013-3116

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Alemu

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Zelalem Alemu

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN REPRESENTATIONS

February 11 and 22, 2019

DECISION

1By decision dated January 31, 2019 the Board dismissed two complaints brought by the complainant, Zelalem Alemu. The Board determined that those complaints were untimely and that the Board therefore had no jurisdiction to entertain those complaints. However, Board File #2013-3116 remained outstanding.

2This complaint seeks to challenge a letter of discipline provided to the complainant on August 29, 2013 alleging insubordination. The Employer takes the position that this complaint is now moot. Further to direction contained in the January 31, 2019 decision and by email to the Board dated February 11, 2019 the complainant confirmed that he wished to pursue this complaint. On February 13, 2019, the Board issued the following direction to the parties:

…The Employer has taken the preliminary position that the issues raised by the complaint are now moot and that the complaint ought not to proceed further. While the Employer has provided some indication of its position, I hereby direct the Employer to provide its full position in respect of this issue in writing by no later than Friday, March 1, 2019.

The complainant continues to take the position that he is medically unable to participate in the conduct of his complaint in any way. As indicated in the January 31, 2019 decision, the medical and other evidence currently before the Board does not support a conclusion that the complainant is medically unable to participate except in the context of an oral hearing. No further medical evidence has been filed in support of the complainant’s assertion, notwithstanding the direction contained in the Board’s October 30, 2018 interim decision. The complainant has further and since indicated that he was able to obtain assistance and support from “qualified professionals and knowledgeable individuals” in the preparation of his response to the timeliness issues that were the subject of the January 31, 2019 decision.

Upon receipt of the Employer’s full representations with respect to its preliminary position in Board File No. P-2013-3116, the Board will establish a timetable for the complainant’s response and any reply submissions.

3The Employer’s submission was received on February 22, 2019. On February 25, 2019, the Board forwarded those submissions to the complainant and directed that the complainant provide his full written response to the Employer’s position by no later than March 13, 2019. That direction also provided:

Should you take the position that you are medically unable to respond, sufficient and reliable medical evidence is required to be filed in support of any such assertion.

4To date, the complainant has not responded to the Board’s direction. Nor has the complainant filed any medical evidence in support of his assertion that he is medically unable to respond and/or participate in the conduct of this issue.

5I therefore turn to consider the Employer’s unopposed submission that this complaint is moot and ought to be dismissed at this stage. Those submissions are in writing and I do not intend to reproduce them here.

6As noted, this complaint seeks to challenge a letter of discipline issued to the complainant on August 29, 2013. The two complaints that have been dismissed as untimely each sought to challenge subsequent discipline issued to the complainant, involving a 1-day suspension dated November 21, 2013 and a 3-day suspension dated February 12, 2014, respectively.

7The decision in OPSEU v Ontario (Ontario Realty Corporation/Management Board Secretariat)(Union Grievance), dated May 19, 1998 (GSB File #1997-2024)(Vice-Chair Abramsky) reviews in detail the relevant considerations in assessing mootness with reference to the Supreme Court of Canada’s decision in Borowski v. Canada (Attorney-General) [1989] CanLII 123 (SCC).

8As set out by Mr. Justice Sopinka in Borowski, supra, at page 5, a court or tribunal may decline to decide a case that raises merely hypothetical or abstract questions. Essentially the question is, has the issue become academic? However, even where that question is answered in the affirmative, a court or tribunal may still exercise its discretion to proceed if it is satisfied that collateral consequences exist that warrant the pursuit of litigation.

9The complainant has not taken issue with any of the factual assertions made by the Employer. The relevant circumstances therefore include the following. The complainant has apparently been absent from the workplace since April 2014 and has been in receipt of long-term disability since October 2014. There is no information as to whether he will return to active employment. The Employer confirms in its submission that the letter of discipline was removed from the complainant’s file three years after it issued and that it is not in the complainant’s personnel file, nor will it be at any point in the future. (The delay in tabling this information is perhaps attributable to the fact that prior hearing dates were adjourned on consent and only recently has this complaint proceeded.) The complainant suffered no loss of pay as a result of the letter having being issued.

10In these circumstances, I am satisfied that this complaint is now moot. The remedy sought by the complaint, the removal of the letter, has been achieved. The letter of discipline has been removed from the complainant’s personnel file and therefore has no impact on his employment. It has no bearing on the subsequent suspensions that are no longer subject to challenge due to the untimely filing of those complaints. The issue between the parties concerning the letter of discipline is now academic, as the letter no longer has any impact or effect on the complainant in his employment.

11I am further satisfied that there is no basis on which to properly exercise a discretion to proceed. There is no employment purpose to be served by proceeding, and no overriding legal issue or principle is at stake. The question of whether the Employer had cause in the circumstances to discipline the complainant is a limited factual question, specific to these parties. It is the case that the specific issue of whether the Employer had cause in this instance to discipline the complainant will not be determined. However, as in Abramsky’s decision, supra, (see page 14) any such decision would be academic and have no practical effect on the parties, as the Employer has already removed the letter of discipline from the complainant’s file and has expressly confirmed that it neither can nor will have any impact on the complainant’s employment should he return to work.

12Having regard to the above, I find that this complaint is now moot. It is therefore dismissed.