PSGB# P-2019-2026

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dwyer

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Andrea Wobick Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

Decision

1This complaint is one of a number of complaints received by the Board that challenged the Employer’s actions in assigning performance ratings and the resulting compensation. The complaint challenges the evaluation ultimately relied on by the Employer and seeks the reinstatement of a higher performance rating and the associated compensation. By decision dated December 21, 2020, the Board determined that the matter complained about was largely excluded from the Board’s purview by virtue of paragraphs 4 and 5 of sub-section 4(2) of Ontario Regulation 378/07 (the “Regulation”).

2That decision found:

[35] Having regard to the specific exclusion in the Regulation, I find that the Employer is effectively protected from a complaint at the Board asserting that it acted in a manner that was arbitrary, discriminatory, or in bad faith in respect of matters concerning pay for performance. This in no way speaks to the quality of the Employer’s treatment of the complainants or to the actual work performance of any complainant. It is a decision based on the fact that this Board has no inherent authority and the clear language of the Regulation specifically excludes these allegations from the Board’s jurisdiction to consider and/or remedy.

[36] As noted above, seven of the complaints allege that the Employer violated the Ontario Human Rights Code in changing their performance ratings. Distinct from the scope of the Board’s jurisdiction under the Regulation to assess the discretionary decision-making of the Employer, the Employer acknowledges that it must conduct itself in accordance with the legislative and quasi-constitutional terms of the Code and that the Board does have the jurisdiction to entertain and determine that narrower statutory allegation. However, it has also reserved its right to bring a further preliminary motion to the effect that the complaints do not make out a prima facie case of discrimination pursuant to prohibited grounds in the Code.

3This complaint was part of the group of complaints dealt with by that decision. It also alleged that the Employer had violated the Human Rights Code (the “Code”) by discriminating against the Complainant on the basis of gender and age. The December 18, 2020 decision dismissed the complaint, but for that allegation. The Complainant’s will-say statement alleges:

16. The rating change was based in whole or in part, consciously and/or unconsciously, [on] my age and gender, contrary to the Human Rights Code.

17. I am aware that other employees who are older than the average OPS employee and/or close to retirement also had their ratings changed, while other younger employees maintained their ratings.

18. I believe that the arbitrary change in ratings implemented by the Government disproportionately impacted women.

4No particulars were provided in support of these allegations. The Employer confirmed that it intended to argue that the complaint did not make out a prima facie case for the remedy requested. A case conference with counsel was held on May 7, 2021 at which time the Employer agreed to provide production of relevant data to the Complainant. That production was made and the Complainant was to respond by June 11, 2021 as to whether she intended to proceed with her complaint.

5The Board followed up with counsel for the Complainant on June 17, July 4, and July 21, 2021. To date the Board has received no response from the Complainant as to whether she intends to proceed with her complaint and address the Employer’s objection that the Complaint fails to make out a prima facie case for the remedy requested. Nor has the Complainant provided particulars of her allegations.

6Having regard to these circumstances, I hereby direct as follows:

The Complainant is hereby directed to respond to the Board by no later than Tuesday, August 31, 2021 by providing particulars of her allegations of discrimination under the Code and/or by indicating that she is prepared to convene and address the Employer’s preliminary objection that the complaint fails to make out a prima facie case for the remedy requested. Should the Complainant fail to respond within the time provided, this complaint will be dismissed as having been abandoned.