PSGB# P-2019-1829, P-2019-1891, P-2019-1892, P-2019-1932, P-2019-1953, P-2019-2026,

P-2019-2088, P-2019-2089, P-2019-2090, P-2019-2156

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bowmaster, Lessel, Lessel, Dalton, Narburgh,

Dwyer, Cartwright, Tomlinson, Reay, Kloosterman

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANTS

Self Represented Andrea Wobick (Counsel) (Representative for Complainant Dwyer)

FOR THE EMPLOYER

Ursel Phillips Fellows Hopkinson LLP Peter Dailleboust (Senior Counsel) Treasury Board Secretariat Legal Services Branch

SUBMISSIONS

Written representations received by May 20, June 17, and July 2, 2020

Interim Decision

1In an interim decision dated April 16, 2020 the Board noted as follows:

Each of these complaints challenges the Employer’s treatment of the complainant in respect of their performance rating and the associated compensation. Although the factual bases in each case differ somewhat, the complaints essentially all assert that, having conducted a performance evaluation of the complainant, the Employer then improperly changed that performance rating to the detriment of each complainant. The alleged reasons for the Employer’s actions vary but include allegations that the Employer acted in a manner that was arbitrary, discriminatory, and/or in bad faith. Some of the complaints specifically make allegations of discrimination under the Human Rights Code.

In each case, and relying on sub-paragraphs 4 and 5 of section 4(2) of Ontario Regulation 378/07, the Employer takes the preliminary position that the Board has no jurisdiction to entertain the complaint and seeks to have each complaint dismissed without an inquiry into its merits.

2That interim decision determined that the complaints would be consolidated at least for purposes of dealing with the preliminary objection as to the Board’s jurisdiction to entertain the complaints. Due to the Board’s inability to conduct in-person proceedings due to Covid-19 restrictions, that interim decision also established a timetable for the receipt of the parties’ ‘will-say’ statements to determine the extent to which facts might be in agreement, in dispute, or not contested for purposes of the preliminary issue.

3The timetable for receipt of the ‘will-say’ statements was subsequently extended as a result of delays due to the restrictions around Covid-19, but have now been received.

4It would appear that much of the factual information alleged either in the complaints or in the ‘will-say’ statements of all parties is either not in dispute or is not contested. The characterization of certain of those facts is in dispute. Copies of documentary material including various policies were provided, including the Employee Performance Policy, the In-Range Movement Policy, and the Merit Pay Policy, as well as factual information regarding each complainant’s allegations and the Employer’s response. For purposes of this preliminary objection, it is assumed that the facts alleged are true and provable, even while the characterization of those facts may be in dispute.

5As Covid-19 continues to restrict in-person proceedings, and having regard to the factual information alleged in the complaints and the ‘will-say’ statements filed, legal submissions will be received from the parties in writing with respect to the Employer’s preliminary objection as to the Board’s jurisdiction to entertain these complaints.

6The Employer has not yet filed its formal Form 2 response. That response is expected as part of the following direction to the Employer to provide its written argument with respect to its position that, pursuant to sub-paragraphs 4 and 5 of section 4(2) of Ontario Regulation #378/07, the Board has no jurisdiction to entertain these complaints. Those submissions should address any and all various individual assertions, including but not limited to assertions that the complainant is not grieving the manager’s performance rating but is seeking, further to the Employee Performance Policy, that said rating be restored, and further, that a performance rating is utilized for employment opportunities beyond compensation.

7Having regard to paragraph [6] above, the Employer’s written submissions are to be filed by email with the Board with a copy provided to each complainant by no later than Wednesday, August 26, 2020.

8Written submissions from each complainant in response, setting out their argument (as opposed to the facts on which they rely) as to why the Board has jurisdiction to entertain their complaint, are to be filed by email with the Board, with a copy to the Employer, by no later than Wednesday, September 30, 2020.

9Any submission of the Employer in reply is to be filed by email with the Board with a copy to each complainant by no later than Wednesday, October 14, 2020.

10Upon receipt of the parties’ submissions, the Board will consider and determine the preliminary objection raised by the Employer that the Board has no jurisdiction to entertain these complaints.