Cornish & Beattie v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2024 CanLII 106438

PSGB# P-2023-02648; P-2023-02650

Under

Before

BETWEEN

Cornish & Beattie

Complainant

and -

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

Employer

BEFORE

Brian Smeenk

Chair

Samantha Cornish Roderick Beattie

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

September 11, 2024

DECISION

1The Complainants, Samantha Cornish and Roderick Beattie, were both Sergeants at the Toronto South Detention Centre. It is operated by the Ministry of the Solicitor General (“the Employer”). In these applications under The Public Service of Ontario Act, 2006¹, the Complainants challenge their treatment in relation to the Ministry’s restructuring of certain classifications, including the Sergeant position.

2While filed as individual applications, as they are fundamentally the same, they have been heard and argued together.

3In a decision dated June 7, 2024 (“the “Preliminary Decision”)², I dismissed the Employer’s preliminary objections to the Board’s jurisdiction to hear these applications. The merits were then argued based on agreed facts and documents admitted on consent. On the agreement of the parties, any issue of remedy will be dealt with separately. This decision therefore deals with the merits of both applications.

THE ISSUES IN THESE COMPLAINTS

4In their earlier, written submissions on the jurisdictional issue, the Complainants helpfully summarized what they are complaining about. They boiled their complaints down to three points, which I will paraphrase here:

a. The Employer reneged on and violated an agreement it made with both Complainants when they each responded to the Employer’s letter dated January 30, 2023 by making a “final and binding” election to remain in the Sergeant classification and then be reclassified as Correctional Supervisor, i.e. Corporal. (These titles have been used interchangeably. For ease of reference, I will generally use the title “Correctional Supervisor”);

b. They were required to compete in an unfair process for the Correctional Supervisor position, a newly-established position in the bargaining unit represented by the Ontario Public Service Employees’ Union (“OPSEU”); and

c. The entire process of the organizational restructuring since January 2023 was not honest, transparent or governed by integrity, authenticity or demonstrated accountability, thus violating various Employer policies including its Employment Policy, Code of Conduct and Professionalism, and a document entitled, “Operational Leadership Behaviours.”

5Consistent with the Preliminary Decision, the issue before me is therefore whether the Employer breached the existing terms and conditions of the Complainants’ employment, including the requirement that those terms and conditions be administered and applied reasonably, in good faith and not arbitrarily, in any of the ways which they allege.³

CONCLUSION

6For the reasons that follow, I have concluded that the complaints succeed in part, in relation to the Complainants’ first and third arguments.

THE FACTS

7The “Background Facts” were outlined in the Preliminary Decision as follows:

BACKGROUND FACTS

10The relevant facts are not in dispute. For the sake of clarity and completeness I will expand to some extent on the statements of fact that the parties have agreed upon by referencing other facts set out in the documents admitted into evidence on consent

11Protracted litigation occurred before the Ontario Labour Relations Board (“OLRB”) in respect of efforts by the Public Service [Alliance] of Canada (“PSAC”) to represent Sergeants in the Employer’s Corrections division. The OLRB ruled[2] that if Sergeants were deemed not to be managers pursuant to the traditional management function test, then either OPSEU or the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) must represent those positions as a result of restrictions within the Crown Employees Collective Bargaining Act, 1993.

12On February 24, 2022, the GSB issued the decision of Arbitrator Brian McLean (“McLean Decision No. 1”). The arbitrator found that AMAPCEO had relinquished its bargaining rights for the Sergeant and Staff Sergeant cadre. He found that any such rights were assumed by OPSEU as the bargaining agent for all employees employed at correctional institutions.

13The issue of whether the Sergeant position was incorrectly excluded from the OPSEU bargaining unit for being supervisory or managerial, was left for future determination. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address.

14On May 5, 2022, the Employer announced that it had begun an organizational review of the supervisory and management functions within the correctional system, as a response to McLean Decision No. 1.

15On November 2, 2022, the Employer announced the result of the organizational review. It advised staff of a restructuring of the management level, introducing a supervisory level within the Institutional Services Division of the Employer. More particularly, the Employer stated that, “In this new structure, the current Sergeant rank will no longer be utilized, and the existing responsibilities will be shared by a new position, the Correctional Supervisor, and a strengthened Staff Sergeant complement.”

16On December 14, 2022, the allocation of Staff Sergeant and Corporal (I.e. Correctional Supervisor) positions was announced. All together there had been 620 Sergeant and Staff Sergeant positions, out of which 572 were Sergeant and 48 Staff Sergeant positions. 572 Sergeant positions were eliminated, and the Staff Sergeant positions were inflated from 48 to 438. 182 Corporal positions were created within the OPSEU bargaining unit.

17On January 30, 2023, “Option Letters” were sent out to Sergeants asking them to choose between being assigned to a Staff Sergeant or a Corporal position. They also had the option to resign or retire from the Ontario Public Service. They were given twenty business days to make their decision.

18In their election packages, the Complainants were required to check, sign and date one of the three options. Each option was expressly stated to be “FINAL AND BINDING”. (emphasis in the original). “Option1” was worded as follows:

I elect to remain in my Sergeant position which I understand will be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre. I understand that this selection is FINAL AND BINDING

19At the bottom of the election form, the following passages appear:

“If you do not respond to this letter, you will be deemed to have selected Option 1 (elect to be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre).

All elections at Toronto South Detention Centre will be considered aggregately to ensure that operational needs of each institution are met. Effective dates of new assignments will be determined by the Ministry at a future date.

(emphasis in the original)

20Both Complainants chose or were deemed to have chosen Option 1. Ms. Cornish signed and dated her option form February 27, 2023 and submitted it. Ms. Beattie did not and received a letter dated March 6, 2023 from the Employer stating in part as follows:

Accordingly, you have been deemed to have selected Option 1 (elect to be reclassified to Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre).

The effective date of this change will be communicated to you at a later date.

21On June 27, 2023, the GSB issued another decision of Arbitrator McLean (“McLean Decision No. 2”). It dealt with OPSEU’s contention that the Employer was in violation of its collective agreement when it purported to directly assign individuals including Sergeants into the newly-created Corporal position. Arbitrator McLean ruled that the Employer had no right to do so and upheld OPSEU’s grievance. The Employer was required to respect the job posting provision of the OPSEU collective agreement, which would enable OPSEU members to apply for the new positions along with the non-union Sergeants.

22By way of letters to the Complainants dated October 31, 2023, the Employer announced that no choice between the two options would be available to the Sergeants anymore. It was no longer able to offer the Corporal position in the OPSEU bargaining unit to those who had opted for that. The Complainants and other Sergeants were told that, while they could compete for the Corporal positions through the competitive process, if there were no such positions available to an individual, they would be automatically reclassified as a Staff Sergeant in their home institution. The precise wording of the relevant part of the letter is as follows:

As a result of the above-noted GSB decision, the Ministry is unable to reclassify you to the Corporal position in the OPSEU-COR bargaining unit. As such, regular (classified) permanent Sergeants (M07) that previously elected, or were deemed to have elected, to be reclassified to a Corporal position, will now remain as managers and will be directly assigned to the Staff Sergeant (M08) position at their home institution upon implementation of the new structure.

If you remain interested in working as Corporal, please be advised that a job advertisement for vacant positions will be posted in the near future and you are welcome to apply and compete through that process. Offers for permanent Corporal positions will be made prior to implementation of the new organizational structure. Please see the attached poster regarding resume and interview prep sessions offered through the Strategic Business Unit.

23That was the status of the situation at the time the Complainants filed their respective applications in December 2023. However, both Complainants applied for the Corporal positions through the competitive process as the October 31 letter had invited them to do. Both were successful and now occupy that position.

[Footnotes omitted.]

8Certain of those background facts must be expanded upon because of their relevance for the parties’ submissions on the merits.

9After the Employer announced the result of its organizational review on November 2, 2022, OPSEU advised the Employer of a number of objections to the latter’s plans. The parties had a meeting on November 3, 2022. By letter dated December 14, 2022 (coincidentally the same day the Employer announced the allocation of new positions in each of the classifications affected), OPSEU stated that it was confirming the objections discussed at the meeting of November 3. The letter included its objection to the Employer’s stated plan to directly assign non-union staff (such as the Complainants) to the new unionized position. The letter states:

The Ministry’s intention to directly assign excluded staff to the new Correctional Supervisor positions without a posting or competition is a violation of the collective agreement. Hundreds of bargaining unit members have an interest in those new bargaining unit positions and their contractual right to apply for the positions must be respected.

10Several grievances were filed by OPSEU on this issue and proceeded to a hearing before Arbitrator Brian McLean on May 12, 2023. The Complainants, and to my knowledge all other Sergeants who might be interested in the matter, were not notified by the Employer about OPSEU’s objections, the grievances or the arbitration hearing. They were not notified that their interests might be affected. Nor were they advised whether they might seek to participate in the arbitration.

11In the interim, in April 2023 there was a posting for the position of Correctional Supervisor. It closed on May 10. While the precise results of that posting are not before me, it is not disputed that some appointments to the Correctional Supervisor position resulted from it. Neither Complainant applied. It is agreed that the Complainants saw no need to do so, due to the elections they had made. Furthermore, the evidence shows that Ms. Cornish was advised by the Employer in May 2023 to pick up her Correctional Supervisor uniform epaulets.

12Arbitrator McLean then issued his decision on this issue on June 27, 2023 (“McLean Decision No. 2”)⁴, upholding the grievances. He agreed with OPSEU’s contention that the Employer was in violation of its collective agreement when it purported to directly assign individuals including Sergeants into the newly-created Correctional Supervisor position.

13The Complainants were not notified by the Employer about McLean Decision No. 2 until October 31, 2023. Nor were they notified until then as to the Employer’s stance regarding the decision or how it might affect the elections they had made to take up the Correctional Supervisor position. On October 31 the Employer advised the Complainants that the Correctional Supervisor position which they had irrevocably elected was no longer being offered to them. As noted in the Background Facts above, they were advised that they would have to compete for such positions through a competitive process that included union members. The Complainants were told that, if they did not successfully bid for another position, they would automatically be reclassified as a Staff Sergeant instead. This was a position that neither Complainant wanted.

14In the end, both Complainants applied in response to a second posting of Correctional Supervisor positions, in November 2023. While they did not know what the outcome would be when they initiated these applications in December 2023, both Complainants were ultimately successful in obtaining that position in their home institution.

ANALYSIS AND DECISION

The Complainants’ First Argument – Final and Binding Elections

15As outlined above, the Complainants’ first argument is that the Employer breached their terms and conditions of employment when it reneged on the agreement it made with them when they each made a “final and binding” election. They had elected to remain in the Sergeant classification and then be reclassified as Correctional Supervisor. Ms. Cornish argues that a reasonable and objective reading of the election form dated January 31, 2023 that she submitted, means that it was final and binding for both parties. The form did not advise her to obtain legal advice. She clearly reached a contractual agreement with the Employer in making her irrevocable election. It would be unconscionable to interpret the form or agreement in a manner that allows the Employer to walk away from it, she argues. Similarly, Mr. Beattie argues that he fully expected his election to be honoured. He submits that the Employer’s reneging on the “final and binding” election, constitutes a breach of contract.

16The Employer argues that the election forms given to the Complainants did not constitute binding offers of jobs in the Correctional Supervisor position. Rather, the Employer sought to know how many Sergeants wanted to choose each option: the Correctional Supervisor position; the Staff Sergeant position; or the resignation/retirement option. The election was intended to be binding on the employees so that the Employer had a firm understanding as to who chose each option. The Employer argues that the wording of the form makes it clear that it retained flexibility regarding placement of the Sergeants whose jobs would be disappearing, where it stated as follows:

17The Employer argues that the clear intention of the election form was to provide options to the employees, not to enter into a firm commitment by it to assign any particular job to the individual making the election.

18In my view, the Complainants’ interpretation of the election forms must prevail. The parties thereby entered into binding agreements regarding the jobs into which the Complainants would be assigned, if not when that would be effective. The Employer thus later breached those contractual agreements. I come to this conclusion for several reasons.

19The first reason is the plain meaning of the language of the election letter. It prefaces the description of the three options by saying, “… Sergeants at Toronto South Detention Centre will have the following three (3) options….” For those electing Option 1, as did the Complainants, this offer was unqualified. It simply stated: “Elect to remain in the Sergeant position and be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit.” Consistent with this, the part of the form checked and signed by Ms. Cornish said, “…I understand this selection to be FINAL AND BINDING.” In the case of Mr. Beattie, who did not sign and return the form, it advised him: “If you do not respond to this letter, you will be deemed to have selected Option 1 (elect to be reclassified to a Correctional Supervisor position…”.

20There was no indication in the form that “final and binding” only bound the employees and did not bind the Employer. As Ms. Cornish argues, an objective reading of the election form leads one to the conclusion that it was final and binding on both parties.

21The Employer argues, however, that the following paragraph in the election form gave it flexibility and meant that it was not bound to assign those who chose Option 1 to the Correctional Supervisor position. It argues that this paragraph means the Complainants had no right to the job they elected:

22I do not agree with this Employer argument. On a plain reading, the quoted paragraph does not say that the Employer is not bound to fulfilling the employee’s election. It says that the elections will be considered aggregately to ensure that operational needs are met. It then speaks of the effective dates being determined by the Employer. The clear implication is that the Employer’s operational needs would drive the effective dates of the new assignments having regard to the aggregate results. There is no inference that operational needs or any other factor would allow the Employer to resile from the “final and binding” offer of the Employer and election of the employee. This is reinforced by the letter sent to Mr. Beattie dated March 6, 2023, advising him that he had been deemed to have selected Option 1 (elect to be reclassified to the Correctional Supervisor position). It goes on to say, “The effective date of this change will be communicated to you at a later date.” While the date was a moving target, there was no suggestion that the Employer might resile altogether from the parties’ agreement.

23Finally, the evidence that Ms. Cornish was advised by the Employer to pick up her Correctional Supervisor uniform epaulets in May 2023, is relevant. It provides confirmation that management understood her election to be effective and binding at that point in time.

24The Employer further argues that the only reason that the Complainants’ elections were not fulfilled was the unexpected outcome of McLean Decision No. 2. This was beyond the Employer’s control. The election form allowed and indeed required the Employer to resile from its intended direct assignments of Sergeants into the Correctional Supervisor position.

25I do not agree with this submission. In addition to the above reasons, while the outcome of McLean Decision No. 2 may have been unexpected by the Employer, that does not affect the issue of whether it had entered into binding agreements with the Complainants. If the Decision made it impossible for the Employer to honour such agreements for a period of time or at all, it must bear the consequences of such a breach, not the Complainants.

26The Employer further argues that even if the elections are found to have created new terms and conditions of employment (as I find they have), the Employer is entitled to unilaterally change them. It was not obligated to allow the Complainants and others to make the elections in the first place. It could thus remove those options. This is what it did, in response to McLean Decision No. 2. The Board cannot prevent the Employer from making such changes to terms and conditions of employment, the Employer argues.

27In my view, however, it is not this Board that is preventing the Employer from changing terms and conditions of employment. It is the Employer that made a final and binding commitment. While it may have the right, generally, to change terms and conditions of employment of non-union employees, it cannot resile from a binding agreement without bearing any responsibility for the consequences. As noted in the Preliminary Decision at para. 34, the Board has found in the past that a breach of a promise to appoint a public servant to a job may constitute a breach of terms and conditions of employment.

28In conclusion regarding the Complainants’ first argument, I find that by engaging in the election process on the terms initiated by the Employer’s letter of January 31, 2023, the parties entered into binding agreements regarding the assignment of the Complainants to the Correctional Supervisor position. The Employer later breached that agreement by resiling from the appointments and requiring the Complainants to compete in a job posting process for the jobs they’d already been promised.

The Complainants’ Second Argument – Allegedly Unfair Competition for Job

29The Complainants’ second argument is that their terms and conditions of employment were violated by being required – if they wanted the job - to compete in an unfair process for the Correctional Supervisor position.

30The Complainants argue that this process was unfair in part because some of the Correctional Supervisor positions had been awarded in the April/May job posting process, when they had no indication that they needed to apply.

31The Employer responds with two submissions. First, it submits that the Board has no jurisdiction to adjudicate the fairness of a competition process for jobs within the OPSEU bargaining unit. Any such issues are governed by the OPSEU collective agreement and its grievance and arbitration process. Second, the Employer submits that if this fairness complaint is about the Complainants having to participate in the competition process at all, this issue is subsumed within the Complainants’ first argument.

32I agree with the Employer’s submissions on this issue. This Board does not have jurisdiction to review or remedy any perceived flaws in competitions for jobs that fall under the OPSEU collective agreement. There is another forum for that.

33I also agree that the issue of whether the requirement to apply and compete for the Correctional Supervisor job was a violation of the Complainants’ terms and conditions of employment, is subsumed within the first issue dealt with above. It is a consequence of their elections not being honoured. Had the election process never been put into place by the Employer, the Complainants would have no cause to complain if the Employer had invited them to apply for OPSEU positions. This does not constitute a separate violation of their rights.

The Complainants’ Third Argument – Breach of Employer’s Policies

34As noted above, the Complainants’ third argument is that the process of the organizational restructuring violated various Employer policies including its Employment Policy, its Code of Conduct and Professionalism, and a document entitled, “Operational Leadership Behaviours.” They also argue that these terms and conditions of employment were applied in an unfair, unreasonable, arbitrary or bad faith manner.

35In the Preliminary Decision, at paragraph 47, I rejected the Complainant’s attempt to rely on the document entitled “Operational Leadership Behaviours.” That issue has thus been disposed of.

36Regarding the Employer’s Employment Policy, the Complainants rely on Sections 6.2 and 6.6. The Policy describes its purpose and application as follows:

Purpose

This policy establishes a set of principles and requirements for managing public service employment and enables timely, flexible and accountable employment practices.

Application and Scope

5.1.This policy covers the following activities:

recruitment and selection
appointment, assignment and transfer
workforce adjustment.
suspension and termination.

37Section 6 of the Employment Policy describes the following “Principles”, in material part:

6.2. Employment practices:

are fair, objective, reasonable and transparent
support employee efforts for ongoing development and employability
balance organizational and individual interests
are supported by timely and accurate documentation.

6.5. Workforce adjustment activities enable ministry business and human resource plans by ensuring qualified employees are assigned to, or retained in, the work to be performed.

6.6. Employees are treated with fairness and dignity throughout the employment relationship, including those affected by organizational change initiatives.

[emphasis added]

38At page 40 of the Policy, in a section entitled “Responsibilities”, there is a list of responsibilities of deputy ministers. That list includes the following:

 Provide leadership in creating workplaces that are supportive of staffing decision making that is timely, flexible, accountable, inclusive, accessible and effective.

39The Complainants also rely on certain provisions of the Ontario Correctional Services Code of Conduct and Professionalism (“COCAP”). In its introduction section, it describes its intent and application as follows:

The broad principles set out in the Code of Conduct and Professionalism (COCAP) policy are intended to guide Correctional Services employees in actions and decisions and to provide a tool to enhance understanding of the many Ontario Public Service (OPS) wide policies and standards that govern the work we do…

The COCAP policy outlines the behaviours expected of all employees, regardless of position or rank and also defines behavioural standards and infractions…

[emphasis added]

40Section I of the COCAP policy is about “on-duty” conduct. It states in part:

…The standards below set out ministry expectations for employee behaviour and conduct in the workplace.

…We should be willing and able to explain, answer to, and justify the appropriateness of our actions and decisions. Accountability is also about acceptance, being responsible and providing necessary support, feedback and oversight. …

As employees we will:

b. Act with propriety, honesty, integrity, impartiality, fairness and in an ethical manner.

d. Ensure all employees and clients or any other persons have reasonable and equitable access to available services and information.

Maintain the privacy and confidentiality of information…

As employees we will:

d. Engage in information sharing practices with employees and clients in a timely manner…

41The Complainants argue that the Employment Policy and COCAP policy were breached by the Employer in several respects. They argue that the Employer’s duty to have fair and transparent employment practices, supported by timely and accurate documentation, was violated when they were kept in the dark about the proceedings before Arbitrator McLean that led to McLean Decision No. 2. These duties were further violated when they received no information for three months between the issuance of that decision and the Employer’s letter to them of October 31, 2023 announcing that their elections would not be honoured. They had missed the opportunity to participate in the April/May competition for Correctional Supervisor positions, reasonably believing that it was unnecessary to apply.

42Ms. Cornish described the October 31^st letter as “having the rug pulled out from under me” after a period of total silence from the Employer since her election. She argues that this conduct by the Employer and the resulting stress caused by having to compete for a reduced number of positions in November 2023, meant that she was not, “…treated with fairness and dignity throughout the employment relationship, including [the]… organizational change initiatives,” as required by Section 6.6 of the Employment Policy. She further argues that the deputy minister failed in his duty to lead a workplace that includes, “staffing decision making that is timely, flexible, accountable, … and effective”. Ms. Cornish also relies on Section 1 (d) of the COCAP policy. She asserts that her managers failed in their duty to ensure that she had “reasonable and equitable access to… information” about OPSEU’s challenge to her direct assignment and what was to happen as a result of McLean Decision No. 2. She argues that this lack of information also constituted a violation by her managers of their duty to act with “fairness and in an ethical manner” pursuant to section 1(b) of the COCAP policy.

43For his part, Mr. Beattie argues that when it “reneged” on the “final and binding” agreement to assign him to the Correctional Supervisor position, the Employer violated its duty to treat him fairly , as set forth in sections 6.2 and 6.6 of the Employment Policy. He also argues that the Employer’s lack of transparency regarding the grievances before Arbitrator McLean and any discussions it might have had with OPSEU in that regard, before or after McLean Decision No. 2, violated the transparency obligation contained in section 6.2 of the Employment Policy. (While Mr. Beattie said he understood there were settlement negotiations or discussions between OPSEU and the Employer about the direct assignment issue, there is no evidence before me to that effect. It is clear, however, that there was no communication from the Employer to the Complainants or other Sergeants about the grievances and arbitration that led to McLean Decision No. 2, or about what might flow from that decision, until the letter of October 31, 2023.)

44The Employer submits that the only reason that the Complainants’ elections were not honoured was the result of McLean Decision No. 2. That decision made the Employer’s intention to directly assign the Complainants to the Correctional Supervisor position illegal. It also caused the delay that is complained of. That was beyond the Employer’s control. It cannot therefore give rise to any finding of bad faith or improper conduct by the Employer. While the Complainants’ frustration is understandable, the delays and gaps in the flow of information were the result of the grievance arbitration process and the Employer did the best it could to inform staff, it argues. Management decisions flowing from an arbitration process or decision naturally take time. Once the grievances were before Arbitrator McLean and the litigation process was underway, the Employer was not in a position to advise the Complainants about their situation or about the grievances. The rhetorical question is posed, what could the Employer reasonably say to all of the Sergeants about the situation while the arbitration process was underway? The Employer argues that there is no term and condition of employment to the effect that the Complainants had a right to be notified of the OPSEU grievances affecting them or the arbitration proceedings.

45Furthermore, the Employer relies on the fact that the election form and subsequent appointment letters received by the Complainants clearly state, “The effective date of this change will be communicated to you at a later date.” Therefore, submits the Employer, no right of the Complainants was violated as a result of the delays which flowed from the grievance process that resulted in McLean Decision No. 2.

46Regarding the Employment Policy, the Employer argues that the principles relating to fairness and dignity in Section 6 were fulfilled by it. Even had they not succeeded in obtaining the Correctional Supervisor position as a result of the second posting, the default was that the Complainants would have been promoted to Staff Sergeant. This is inherently fair, argues the Employer. Furthermore, ample supports were in place and avenues were open to the Complainants to obtain further information if they required it. The Employer argues that it followed the workforce adjustment provisions of the Employment Policy.

47Regarding the COCAP policy, the Employer argues that it is focused on day-to-day operations in Correctional Services, not on matters such as workforce adjustments. While managers cannot ignore the COCAP policy, the Board must be careful not to apply it too broadly, it is submitted. In any event, it is argued that the managers did comply with their obligations to provide appropriate information to the Complainants.

48Having carefully considered these submissions, in my view, the Employer violated its obligations towards the Complainants under the Employment Policy in several respects. Having so found, it is unnecessary to decide whether there were also violations of the COCAP policy in these circumstances. The Employment Policy, at least, was violated when the Employer failed to advise the Complainants about the arbitration that led to McLean Decision No.2. This failure persisted for several months, from the time those grievances were referred to arbitration until the decision was issued on June 27, 2023. The Policy was further violated by the Employer’s total silence towards the Complainants for a period of three months between the issuance of the decision and its letters of October 31, 2023.

49The Employment Policy explicitly applies to workforce adjustment situations. Section 6.2 provides that employment practices must be “fair, ... reasonable and transparent.” Section 6.6 requires that employees be “…treated with fairness and dignity… including those affected by organizational change initiatives.” It requires that employment practices be, “…supported by timely and accurate documentation.”

50To be left uninformed about arbitration proceedings that could have a significant impact on the Complainants, possibly for the balance of their careers in the OPS, is inherently unfair to them. It was the antithesis of transparency. This should have been apparent to the Employer from the outset. It was commented on in McLean Decision No. 2, when the arbitrator stated as follows at paragraph 18:

I recognize that the result of this decision may have terrible consequences for some former Sergeants. Many of them wished to be represented by PSAC. That was denied. Many wished to be represented by AMAPCEO. That was denied. No doubt, many are content to be represented by OPSEU. However, the end result is that at the moment of success when non managerial employees (if any) were finally represented by a trade union the Employer embarked on a course of action and the Union enforced its strict legal rights with the outcome that it is possible that former Sergeants may lose their jobs with the public service. These circumstances cry out for immediate open-minded and flexible action by both parties to alleviate a situation that is deeply unfair.

[emphasis added]

51Third party interests in the outcome of a grievance under a collective agreement have been recognized and applied in labour arbitrations for decades. This generally involves giving notice (at least) and standing (where it is sought and only if appropriate) to other parties who may be affected by the outcome and have an interest adverse to the union involved. As Laskin, J.A. stated in Bradley⁵ many years ago:

The common law has been specially sensitive to deprivation of property or contractual advantages in proceedings of an adjudicative character without previous notice thereof to persons likely to be directly affected, unless there is clear statutory exclusion of such notice. In the present case, there is none.

52It is not for me to decide whether the Complainants would have been given standing before Arbitrator McLean had they sought it, if they’d been advised of the arbitration. It is for me to determine whether the Employer’s policies required the Employer to be transparent with the Complainants once the grievances challenging their direct assignment were before Arbitrator McLean. In my view, the duties of fairness and transparency that are embedded in the Employment Policy did require the Employer to advise the Complainants that its intended redeployment actions had been grieved and were now the subject of litigation, such that their reclassification to Correctional Supervisor might be in jeopardy,

53It is no answer for the Employer to argue that advising the Complainants would be problematic or awkward or that the Complainants would remain employed in any event. This is a matter of respecting the Complainants’ rights and the Employer complying with its own policies. It knew that the Complainants and others had elected to be assigned to the Correctional Supervisor position (and not the Staff Sergeant position). It knew that the intended assignments were being challenged and that the Complainants’ interests might be affected. It should have advised them of this. As for how that might affect the arbitration, if at all, that would be for the arbitrator to determine.

54Contrary to the Employer’s stated fear, this conclusion does not make it a general term and condition of employment that managers be given notice of OPSEU grievances that involve them. Grievances that involve a manager, qua manager, are the daily fare of grievance arbitration. In those cases, the manager is acting on behalf of the Employer and it is the actions of the Employer that are being challenged. In this case, the managers’ own contractual terms of employment with the Employer were at issue. The Complainants’ employment interests were not the same as the Employer’s broader interests. Thus, this is a straightforward application of the existing terms of the Employment Policy based on the facts of this case, where the Complainants’ contractual rights were likely to be affected by the arbitration.

55I turn next to the issue of the three-month delay in informing the Complainants about McLean Decision No. 2 and the implications for them arising from it. Although it is a less clear issue, in my view this delay was also a violation of the Complainants’ rights under the Employment Policy.

56The three-month delay in advising the Complainants about the decision itself was a violation of those policies because it constituted a failure to be transparent with them and was not timely, as set out in the Policy’s Principles. There is no evidence demonstrating why it was not feasible to promptly inform the Complainants about the decision. This is especially perplexing and problematic given that the decision would have been immediately known to OPSEU and, presumably, many of its members including those who had grieved.

57That said, I have some sympathy for the Employer’s argument that it naturally takes time for the Employer to be able to determine how to respond to a major decision such as McLean Decision No. 2. In finding that the failure to inform the Complainants about the decision itself for three months was a violation of these policies, I am not deciding that such a delay in advising the Complainants about how the decision would be implemented was a violation. That process would naturally take longer, especially if negotiations with the Union were also involved (a matter about which I have no evidence). But I can see no reason why the Complainants could not have been advised promptly of the decision itself. I also see no reason why, in the interest of transparency, they could not, for example, have been advised about the steps the Employer expected to take in reviewing its options, whether there was to be any discussions with OPSEU about it, and what all of this might mean, in general terms, for the Complainants. Such an approach, even if no definitive outcomes could have been communicated sooner, would have been more consistent with the Employment Policy. While I do not find there to have been any bad faith involved, the Employer nonetheless failed to live up to its own standards as enunciated in these policies.

SUMMARY

58For all of these reasons, I have concluded that these complaints succeed in part. In conclusion:

(a) I hereby find that by engaging in the election process, the parties entered into final and binding agreements, committing the Employer to assign the Complainants to the Correctional Supervisor position. The Employer breached that contractual agreement with each Complainant when it announced that it was unable to make the direct assignment to that position.

(b) I hereby find that the Employer violated the Employment Policy when it failed to advise the Complainants of the grievances being referred to the arbitration that resulted in McLean Decision No. 2. It further violated that Policy when it failed to notify the Complainants in a timely manner about that decision.

59I remain seized with these applications. The Registrar is directed to schedule a hearing to deal with any and all remedial issues.

Dated at Toronto, Ontario this 21^st day of October 2024.

Footnotes

S.O 2006, c.35, Sched. A
Now reported as Cornish & Beattie v Ontario (Solicitor General), 2024 CanLII 62864 (ON PSGB)
See paragraphs 30, 39. 46 and 51 of the Preliminary Decision.
Ontario Public Service Employees’ Union v Ontario (Ministry of Children, Community and Social Services and the Solicitor General), 2023 CanLII 61433 (ON GSB)
Re Bradley et al. and Ottawa Professional Fire Fighters Association et al., 1967 CanLII 160 (ON CA); [1967] 2 O.R. 311. And for a good discussion of the development of the law regarding third party notices in labour arbitration, see for example Stelco Inc. (Hilton Works) and U.S.W.A., Loc. 1005 (Re), 2001 CanLII 62048 (ON LA - H.D. Brown)