PSGB# P-2018-3036; P-2018-3303; P-2018-3304; P-2018-3803

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Hasted

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

John Hasted and David Ruttle

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

Teleconference April 8, 2019, Hearing April 25, 2019

DECISION

1This decision deals with preliminary objections to three of four complaints brought by John Hasted in 2018 and 2019. The employer takes the position that the subject matter of one of the complaints is the same as a complaint filed in 2017 and then withdrawn, and that there is not a viable or prima facie case to be heard, so that the three complaints discussed below should be dismissed without further hearing. The complainant takes the contrary view, asking that they all proceed to be heard in full.

2During a case management conference call, Mr. Hasted provided particulars of the fourth complaint, after which employer counsel advised the Board that there would be no preliminary objection regarding the fourth complaint, which has not yet been set down for hearing.

Factual/Procedural Overview

3On a motion such as this, if there is any dispute, the facts asserted by the complainants are assumed to be true and provable, although if the matter proceeds to a hearing, the evidence introduced may lead to factual conclusions different from the facts asserted at this stage. However, accepting the facts alleged by the applicant does not necessarily include accepting the complainant’s opinions about the legal conclusions that should be drawn from those facts.

4It is important to note that on a preliminary motion such as this, it is the viability of the complaint that is in issue, rather than the strength of the employer’s defense. Thus, I have not set out facts alleged in the employer’s defense, as that is not the focus of this decision, but would, of course, be an integral part of any full consideration of the complaints on their merits.

5In a complaint dated January 9, 2017, [file #P-2016-2188], the complainant alleged that he had been subjected to ongoing targeting and humiliation at the hands of a senior administrator at the Ontario Correctional Institute (OCI), causing health concerns and personal stress. It was withdrawn by the complainant by email to the Board dated February 21, 2017, after a positive meeting with his superintendent in the spirit of considering there to be a “clean slate” under the premise that issues would improve. This will be referred to as the 2017 complaint to distinguish it from the four complaints filed in 2018 and 2019.

6The Complainant was in receipt of benefits under the Workers’ Safety and Insurance Act [WSIA] from March 24, 2018 to October 22, 2018 relating to matters arising in the workplace which were the subject of the withdrawn complaint, referred to above. Mr. Hasted was off on WSIA benefits for approximately 7 months, returning to work with some accommodation in November 2018.

7The complaints mention the Policy to Support a Respectful Workplace and Prevent Workplace Harassment and Discrimination effective October 1, 2017, [referred to below sometimes as the WDHP policy or the Respectful Workplace Policy], and the Ontario Correctional Services Code of Conduct and Professionalism Policy (COCAP), dated August 2014.

8The three recently filed complaints in issue here will be summarized just below, together with the related preliminary objections.

Complaint #1, P-2018-3036, dated December 21, 2018

9This complaint starts with an allegation of loss of pay, due to the fact that Mr. Hasted no longer had vacation credits available to top up WSIB [Workers’ Safety and Insurance Board] benefits. His complaint letter to the Deputy Minister relates this loss to incident reports regarding events in November and December 2016, and approximately 3 years of targeting and bullying by the same administrator whose behavior was the focus of the withdrawn complaint. Additionally, he refers to the code of conduct and alleges the ministry and its representatives have been negligent in their duties to ensure a respectful workplace. He claims full redress; all vacation credits lost, and damages for lost opportunities - promotional and to work overtime - and financial hardship due to being off.

9The employer poses a twofold preliminary objection: anything that was a part of the withdrawn complaint should not be allowed to be brought back before the PSGB, and any remedy that relates to compensation for any condition compensable by the WSIB is beyond the PSGB’s jurisdiction. The employer considers anything raised in the complaints that arose as of Mr. Hasted’s return to work at OCI in November 2018 as “current”. Anything prior to that time is “historical”, and would be covered by the withdrawn complaint, in the employer’s view.

Complaints #2 and 3 - file #P-2018-3303 and 3304, both dated January 23, 2019

10These complaints followed on an incident on December 12, 2018 where Mr. Hasted claims that a Deputy Superintendent was disrespectful in addressing him in front of others about his accommodation needs and yelling at him when he was trying to disengage.

11The Deputy asked for an occurrence report, which Mr. Hasted provided. Given the content of the report, the Deputy sent Mr. Hasted’s occurrence report to a WDHP advisor. That advisor asked the Deputy Superintendent to find out from the Complainant whether the latter intended to file a formal complaint under the Policy, despite the fact that the Deputy Superintendent was the potential respondent. The Deputy Superintendent in turn posed that question to Mr. Hasted by email.

12Mr. Hasted wrote an email to the Superintendent objecting to the involvement of the Deputy Superintendent. The Superintendent then asked Mr. Hasted via email what his intentions were concerning a WDHP complaint, and Mr. Hasted replied that he intended to file a PSGB complaint instead since the Deputy, the potential respondent, had already contacted the WDHP advisor.

13In complaint #P-2018-3303, the complainant states he wishes to bring concerns to the PSGB around the Ministry Division that oversees WDHP (Respectful workplace policy) complaints, i.e. the respondent had full access to Mr. Hasted’s complaint, the WDHP advisor advised the respondent to contact the complainant directly, the Deputy Superintendent, then a potential respondent, sent an email that the complainant construed as possible intimidation based on the direction of the WDHP advisor. The complaint alleges that the WDHP advisor and the respondent have violated the Respectful Workplace Policy, and that confidentiality has been broken by the WDHP advisor by discussing the complaint with the potential respondent.

14In the related complaint #P-2018-3304, Mr. Hasted claims the conduct of the Deputy Superintendent - confronting him about his accommodation needs and yelling at him in front of staff and inmates - was a continuation of the harassment complained of in the withdrawn complaint. As well, the complainant references the COCAP policy and the fact that it applies to all employees, regardless of rank and claims that the request that he tell the potential respondent his intentions about a formal complaint can be considered intimidation.

15For these two complaints, the employer maintains that there is no viable case for the PSGB to hear, in that the complainant has not identified any provision of the WDHP policy that has been breached, and thus there is no basis for the remedies he claims. Further, there are no particulars of the alleged breach of confidentiality or harassment. In sum, it is the employer’s position that there is no viable or prima facie case of any breach of any term or condition of employment.

Considerations and Conclusions

16The Board’s rules allow consideration of motions such as the one brought by the employer in this case. Rule 12 reads:

Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.

17The issues arising in respect of the above-noted facts are as follows, which will be dealt with in turn:

a) Is the subject matter of the first complaint the same as the one withdrawn?

b) Are the remedies requested in the first complaint unavailable from the PSGB because they are in the exclusive jurisdiction of the WSIB?

c) Has the complainant established a viable case in respect of the three complaints here in issue?

a. The effect of the withdrawn complaint

18Withdrawals are a form of resolution of a complaint, and it is very important that they be respected. Once a complaint is withdrawn or a settlement finalized, parties must feel confident that they can rely upon them, or there would be much reduced incentive to resolve things without the additional time, stress, expense and uncertainty of litigation. Therefore, anything that is properly considered part of the earlier complaint, withdrawn on February 21, 2017, should not be allowed to be the subject of the more recent complaints.

19Mr. Hasted does not accept that his complaints should be dismissed as covered by the withdrawal of his previous complaint, stating that he has well over fifty incidents of ongoing chastisement, as recently as a week before the hearing.

20It is necessary to review the earlier complaint to determine what was covered by it, and what is not, in relation to what is alleged in the first of the recent complaints. There are few particulars in the 2017 complaint, and the matter never came to a decision which would have clarified what incidents were covered. However, as noted above, it is clear that the 2017 complaint alleged that Mr. Hasted had been subjected to ongoing targeting and humiliation at the hands of a senior administrator at the Ontario Correctional Institute (OCI), causing health concerns and personal stress.

21As a starting point then, the complainant would not be permitted to call into question the behavior of the senior manager covered by the 2017 complaint, or ask for any remedy in respect of any incident with that manager on or before February 21, 2017.

22The employer proposes the complainant’s return to work at the Ontario Correctional Institute [OCI] in November 2018 as the appropriate dividing line between the current and historical complaints. Given the absence of details before me at this time, and the fact that the withdrawal occurred more than a year and a half before Mr. Hasted’s return to work at OCI, that may well be the appropriate dividing line. There do not appear to be any specific incidents relied on in the 2018/2019 complaints from before the fall of 2018, but any disputes about the appropriate scope of the evidence at any resumed hearing will need to be dealt with if they arise.

23These conclusions also need to be seen in conjunction with the discussion in the next section concerning any claim for compensation that is within the exclusive jurisdiction of the WSIB.

b. Exclusive jurisdiction of the WSIB?

24The law is clear that the PSGB has no jurisdiction to award compensation or damages for matters properly before the WSIB. See, for instance, the decision of the PSGB in Parrack v. Ontario (Community Safety and Correctional Services), 2008 CanLII 70546 (ON PSGB), and the decisions cited therein.

25These decisions are consistent with the jurisprudence relied on by employer counsel in this respect, including the Monk decision of the Grievance Settlement Board (GSB): Ontario (Ministry of Community Safety and Correctional Services v. OPSEU (Monk), 2010 CanLII 28621 (ON GSB - Gray), application for judicial review dismissed by the Divisional Court, reported at 2012 ONSC 2348, appeal dismissed by the Court of Appeal, reported at 2013 ONCA 406, and the decisions that have followed it. These include Ontario Public Service Employees Union (Foley et al) v. Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 119566 (ON GSB), Ontario Public Service Employees Union (Rosati) v. Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 7264 (ON GSB) and Ontario Public Service Employees Union (Patterson) v. Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 25459 (ON GSB), recently affirmed by the Divisional Court: OPSEU v. The Crown in Right of Ontario, 2019 ONSC 1077, The Association of Management, Administrative and Professional Crown Employees of Ontario [AMAPCEO] (Wilson) v. Ontario (Ministry of Natural Resources and Forestry), 2017 CanLII 71789 (ON GSB) , Ontario Public Service Employees Union (Grievor) v. Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 92683 (ON GSB), and Maple Leaf Foods Inc. v United Food and Commercial Workers, Local 175 (Singh), 2018 CanLII 69918 (ON LA).

26However, it is also clear from the relevant jurisprudence that not all aspects of incidents which may be compensable are beyond the PSGB’s jurisdiction. In Parrack, the potential compensability of the complainant’s claims in respect of asbestos exposure did not preclude consideration of claims of breach of the Occupational Health and Safety Act that were an additional focus of that complaint. In Charlton v. Ontario (Community Safety and Correctional Services), 2007 CanLII 24192 (ON PSGB), the fact that the complainant had received WSIB benefits for stress related to serious incidents of racial harassment did not preclude damages for the breach of her dignity interests under the Human Rights Code. In the AMAPCEO decision cited above, the fact that the GSB found it had no jurisdiction to award monetary compensation for matters that were found to be within the WSIB’s jurisdiction, did not prevent it from remaining seized over other aspects of the grievance relating to complaints of a toxic work environment, and the employer’s alleged failure to investigate allegations the grievor had made about another employee’s stealing and misuse of government resources.

27In the instant case, the employer notes that Mr. Hasted has not alleged any breach of the Ontario Human Rights Code.

28Counsel notes that some of these decisions were made before the significant amendments to the WSIA, effective January 1, 2018, which clarified coverage for chronic or traumatic mental stress arising out of and in the course of the worker’s employment. Notably, sections 13 (4) and (4.1) of the WSIA now make clear that benefits for chronic or traumatic mental stress arising out of and in the course of the worker’s employment are available as if the mental stress were a personal injury by accident. However, section 13 (5) details an exception in that such benefits are not available for mental stress caused by decisions or actions of an employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate employment. Although the new provisions obviously need to be applied as necessary, it does not appear at this juncture that the amendments change anything for the case now before me.

29In addition to the unavailability of any remedy within the jurisdiction of the WSIB, the employer also maintains that the PSGB is precluded from awarding even a declaration regarding the alleged harassment that was the subject of the 2017 complaint referred to above. Consistent with my conclusions above in respect of the effect of the withdrawn complaint, I accept that submission. However, that does not deal with things that occurred after the period encompassed by the 2017 complaint.

30As noted above, Mr. Hasted maintains that he has evidence of recent incidents of chastisement which should not be considered to have been part of the withdrawn complaints. However, even if they occurred after the withdrawal of the 2017 complaint, to the extent that he is claiming any compensation for impacts on his health, such as stress from harassment that would be compensable under the WSIA, they would be beyond the jurisdiction of the PSGB because they would be in the exclusive jurisdiction of the WSIB.

31The question remaining is whether there are other aspects of the first complaint which are not within the exclusive jurisdiction of the WSIB, and thus are open to the complainant to pursue. As noted above, Mr. Hasted claims full redress; all vacation credits lost, and damages for lost opportunities, and financial hardship due to being off. The concept of “full redress” is a broad one, and in the complainant’s submissions he made reference to both financial and policy violations.

32In his remarks at the hearing, the Complainant indicated that the financial aspects of the first recent complaint about top-up of his WSIB benefits had been rectified. Nonetheless, he made reference to the WDHP and COCAP policies, and the fact that he had worked in another institution in 2017, where he considers the negative impact of previous events to have continued. He considers the events to be a continuum, that the previous problems had started up again since his return to work and emphasized that his current complaint was about policies not being followed. He maintains that policy requires that when it is alleged to have been violated, an investigation is required, and alleges that no such investigation has occurred.

33There is a mention in the complaint letter to the Deputy Minister of the code of conduct, presumably a reference to the COCAP policy, and that the Administrator in question had not been taken to task for ongoing behavior. The letter states that the ministry and its representatives have been negligent in their duties to ensure a respectful workplace for the complainant. There are very few details in the complaint, but the general theme appears to overlap with the fourth complaint, filed on March 19, 2019, to which no preliminary objection has been made.

34In light of all the above, the first complaint - P-2018-3036 - may proceed to the extent that it does not deal with incidents covered by the earlier complaint or claims for compensation for matters within the jurisdiction of the WSIB, such as health issues for which the complainant has received WSIB benefits in the past.

c. Is there a prima facie case in respect of the second and third recent complaints?

35As to what constitutes a prima facie or viable case before this Board, the employer refers to Allen v Ontario (Community Safety and Correctional Services), PSGB# P-2007-2921, 2009 CanLII 43639 (ON PSGB) and its description of a viable case as a chain with at least three links: the identification of an existing term or condition of employment, followed by facts that could establish that the employer has breached that term or condition of the employment contract, and third, a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction.

36The second and third complaints, as indicated above, relate to an incident in which Mr. Hasted alleges that a Deputy Superintendent yelled at him in an unprofessional way in front of staff and inmates and that his report of it was then handled in a way which was not consistent with the WDHP policy or the COCAP.

37It is true, as employer counsel notes, that Mr. Hasted did not identify a specific section of the WDHP policy that was breached, when he complains of the process used, or initially identify a breach of confidentiality, in circumstances where the incident report was prepared at the request of the same person who Mr. Hasted asserts should not have seen it in the first instance. On the other hand, he indicated at the hearing that the confidentiality issue referred both to discussion of his need for accommodation in front of others, and that the incident report was sent in a confidential envelope to the Superintendent’s secretary, with the expectation that it go to the Superintendent rather than the Deputy. Moreover, the facts as he asserts them do appear to make out a viable case in relation to his allegations of management’s failure to respond to what Mr. Hasted characterizes as harassment, in accordance with sections 8.1 (g) and 9.17 of the WDHP, as well as of unprofessional behavior towards Mr. Hasted which was arguably not handled as intended by the COCAP policy’s provisions about removal of managers from any process they may be involved in. The latter may apply to the involvement of the Deputy Superintendent in the consultation with the WDHP office, brief though it may have been. I emphasize that, at this stage, the Board is not weighing the strength of the employer’s defense, but merely assessing the matter on the basis of the complainant’s assertions, assumed to be true and capable of proof.

38Although it is not clear what remedy beyond a declaration would be available on the second and third complaints, I am not persuaded, at this stage, that there is no viable case to be heard in respect of complaints #P-2018-3303 and 3304, subject to the above noted limitations.

Summary

39In summary, the employer’s motion is allowed to the extent indicated above, but the complaints may proceed to hearing on the issues that were not the subject of the 2017 complaint and are not within the exclusive jurisdiction of the WSIB.

40In the result, the Board will offer dates for mediation of the remainder of the four 2018 and 2019 complaints.