PSGB# P-2023-01424

Under

Before

BETWEEN

Crawford

Complainant

and -

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

Employer

BEFORE

Brian Smeenk

Chair

Max Skrow WeirFoulds LLP Counsel

Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel

Employer: December 14, 2023

Complainant: January 4, 2024

1The Complainant, Karen Crawford, was employed by the Employer with the Ontario Provincial Police (“OPP”). She started there on July 18, 2022 as a civilian employee, after long service with another Ministry. On October 13, 2022 she was advised that she was being suspended with pay pending a workplace investigation. In her complaint, Ms. Crawford alleges that the Employer grossly mishandled the investigation and imposed improper discipline on her. She alleges that the Employer breached various terms and conditions of her employment and offended the overriding legal principles of substantive and procedural fairness, as well as its duty to not act in an arbitrary or bad faith manner. She alleges that these violations of her rights were repeated and continued to this day.

2The Employer, in addition to defending itself on the merits, submits that the Board does not have jurisdiction to consider Ms. Crawford’s application. It makes the two following preliminary objections:

a. No prima facie case and no jurisdiction over remedy: Assuming that her allegations are true and provable, Ms. Crawford has not established that the Employer breached any term or condition of employment, nor has she established that there is a remedy available to her; and

b. The allegations are untimely: Ms. Crawford’s complaint does not comply with the mandatory timelines set out in the Public Service of Ontario Act, 2006¹ (“the Act”) and Ontario Regulation 378/07 (“the Regulation”).

3This decision deals with these preliminary objections. For the reasons that follow, I have concluded that both objections must be dismissed and that the Board does have jurisdiction to consider the application. There are, however, limitations on the proper scope of the complaint, that will be discussed.

The Allegations

4As the Employer concedes, in dealing with preliminary objections of this nature, the Board must assume that the allegations made by Ms. Crawford are true and provable². The following is a summary of her allegations.

5As noted above, Ms. Crawford started at the OPP on July 18, 2022. She was appointed to the newly-created role of civilian Manager, Regional Support Services, West Region. She was previously employed for many years at another Ministry.

6On October 13, 2022, upon returning from vacation, she was advised that she was being suspended with pay pending a workplace investigation. She retained counsel.

7On November 2, 2022, Ms. Crawford’s counsel was advised that she was not under investigation, but rather that there was a workplace “assessment” being conducted into the culture of the workplace. It was stressed that the suspension was not disciplinary.

8On November 8, 2022, the Employer extended Ms. Crawford’s suspension with pay. She had still not received any notice of any investigation.

9On November 9, 2022 – one week after Ms. Crawford was advised that she was not under investigation - Ms. Crawford’s counsel was advised that there had now been allegations made against her which, if proven true, would violate the OPP’s Respectful Workplace Policy (“RWP”). Counsel was advised that there would be a formal investigation and that the Employer would provide Ms. Crawford with a summary of the allegations against her in the coming days.

10Ms. Crawford did not receive a summary of the allegations against her in the following days. Her counsel followed up with the Employer a month later on December 5, 2022 to inquire as to when Ms. Crawford would receive a summary of the allegations against her.

11In early January 2023 (the allegation documents refer to both January 3 and January 9), she received the said summary. However, the summary omitted the particulars of the allegations against her. It included references to “previously addressed incidents” that had been dismissed by the Employer with a conclusion of no wrongdoing on Ms. Crawford’s part. Despite being confidential, these “previously addressed incidents” were included in the summary and were distributed to a number of OPP employees. Ms. Crawford alleges that this breached the Employer’s confidentiality obligations, damaged her reputation and threatened the integrity of the Employer’s RWP investigation.

12Ms. Crawford’s counsel repeatedly requested particulars of the allegations against her between February 1, 2023 and March 24, 2023. On April 6, 2023, the Employer took the position in correspondence with Ms. Crawford’s counsel that she had enough information to participate in the investigation and proposed to interview Ms. Crawford on April 18, 2023. The Employer also refused to provide the names of other employees, citing “concerns about retaliation and reprisal.”

13Ms. Crawford then retained new counsel. In a letter dated May 12, 2023, Ms. Crawford’s new counsel (i) repeated her request for proper particulars of the allegations against her, (ii) raised Ms. Crawford’s procedural and substantive concerns with the Employer’s RWP investigation and failure to follow the Employer’s WDHP³ complaint resolution guide, (iii) delivered Ms. Crawford’s own WDHP complaint concerning largely overlapping events and subject matter, and (iv) suggested that Ms. Crawford’s WDHP complaint be investigated together with the Employer’s RWP investigation.

14The Employer responded with a letter from the Director, Respect, Inclusion and Leadership, sent May 23, 2023. In this letter, the Director acknowledged Ms. Crawford’s WDHP complaint and represented to her that the Employer would follow its standard process of conducting a neutral assessment with respect to same. In this letter, the Director also stated that Ms. Crawford had been provided numerous opportunities to participate in the Employer’s investigation, despite the fact that Ms. Crawford had been requesting further particulars and documents for more than five (5) months. The Director also, it is alleged, “threatened to punish Ms. Crawford” by closing the investigation into the allegations against her with only the evidence the Employer had gathered to date. He further advised that the Employer would only provide the documents she had requested if she first confirms a date on which she would be available for an interview. Finally, in this letter, the Director made reference to Ms. Crawford’s WDHP complaint and copied other OPP employees. This was the second time that the Employer had shared Ms. Crawford’s confidential workplace matters with other employees who did not have the right to know of them.

15On May 24, 2023 Ms. Crawford, through her counsel, repeated her requests for particulars and documents.

16On May 31, 2023, the Employer’s counsel wrote to Ms. Crawford’s counsel alleging that Ms. Crawford had refused or delayed engaging in the investigative process. The Employer insisted that Ms. Crawford provide particulars of her WDHP complaint, including the “what, where, who, when and why”.

17The Employer then took the position that it had provided Ms. Crawford with the documentation she required to meaningfully participate in its investigation, and confirmed that no further production would be forthcoming.

18Ms. Crawford states that, at this point, she still lacked the names of her accusers and some of the documentation she had been requesting from the Employer. As such, she alleges that she was unable to fully understand and respond to the allegations being made against her.

19By letter dated June 6, 2023, Ms. Crawford’s counsel filed with the Deputy Minister her notice of proposal (“NOP”) to file the instant complaint. The parties met to seek to resolve the complaint on July 6, 2023. The Employer denied the complaint on August 10, 2023. This application was filed with the Board on August 18, 2023.

Analysis

There is a prima facie case and the Board has jurisdiction over remedy

20There is no dispute about the applicable legal framework. Under section 4(1) of the Regulation, complaints may be filed with the Board by, “a public servant who is aggrieved about a working condition or about a term of his or her employment.” The Board has stated that, in order to establish a prima facie case (a case that on its face may have merit and thus requires a response), the complainant must allege facts that would establish the following:

a. there is an applicable, existing term or condition of employment;

b. that the Employer has breached that term or condition; and

c. that there is a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction.⁴

21The Employer submits that Ms. Crawford’s complaint fails to identify an existing term or condition of employment that would entitle her to the remedy requested. It argues that the Employer’s RWP and WDHP policies are not terms of employment, citing two decisions of the Grievance Settlement Board (the “GSB”) (which arbitrates grievances of unionized employees in the Ontario Public Service). In AMAPCEO vs. Ontario (Attorney General) (2021)⁵, the GSB ruled that the alleged failure to follow the Employer’s RWP or WDHP policies or procedures was not something that can be grieved and brought before the GSB. This was because such an allegation, “…does not, in and of itself, form the basis for a grievance absent a demonstrated breach of contractual or relevant statutory obligations.”⁶ A similar conclusion was reached by the GSB in OPSEU v. Ontario (Government and Consumer Services)⁷. It is argued that, since such claims, “do not form part of the collective agreement and the collective agreement includes management rights…, the Policy itself cannot possibly form a term or condition of employment for managers.”

22I disagree with that submission. The legal conclusion that an allegation of breach of policy cannot be the subject of a grievance by a unionized employee unless it can be tied to an express term of the applicable collective agreement, clearly does not mean that the same policy fails to be a term or condition of employment for managers. Those are two fundamentally different issues and two fundamentally different contractual relationships. The GSB decisions cited by the Employer on this point are of no assistance here.

23Ms. Crawford asserts that the RWP, “is specifically incorporated into her contract of employment.” Assuming that to be true, as I must at this stage, it would form part of the terms and conditions of her employment. An allegation of breach of such a policy would therefore fall squarely within the Board’s jurisdiction to consider under section 4(1) of the Regulation.

24Moreover, if it is disputed that the RWP or the related WDHP policies and procedures are terms and conditions of employment for Ms. Crawford, that factual issue is also one that falls squarely within the Board’s jurisdiction. As the Board has previously ruled:

The difference between the parties’ positions on this motion boils down to a difference of opinion as to whether the grievor will be able to succeed in establishing as a fact, that the regulation set out above, together with the interlocking directives, policies and practices flowing from it, amounts to a working condition or term of his employment and whether in the actual circumstances the employer breached any such entitlement. That question falls within the Board’s jurisdiction, but will require further evidence and submissions to be properly answered.⁸

24The Employer then makes a number of arguments to the effect that Ms. Crawford’s interpretation of the RWP is incorrect, including her interpretation of the applicable timelines, the impact of not following the timelines, the employee’s obligations and the impact of Ms. Crawford’s alleged failure to fulfill her obligations under the RWP. These are not, however, objections that go to the Board’s jurisdiction to hear the case. Rather they are arguments that address the merits of each party’s position as to whether the RWP and WDHP procedures have been followed and the consequences of any non-adherence. These arguments therefore do not support the Employer’s preliminary objection.

25This preliminary objection also fails to properly consider Ms. Crawford’s submissions regarding the Employer’s duty of fairness and duty to not act arbitrarily or in bad faith. To these submissions I now turn.

26Ms. Crawford states that, “at its core”, her complaint, “is that the Employer acted arbitrarily, unfairly and in bad faith in its treatment of her and in its handling of its investigation into the allegations against her.” She cites a number of previous Board decisions in which the Board found that the Employer owes a duty of fairness to its managers in handling serious allegations against them, as a condition of their employment. The minimum content of this duty involves, it is argued, the right to be advised of allegations and to be given an opportunity to respond before a decision which negatively affects a person’s reputation or career is made.⁹

27The Employer responds that the Board cannot address “general complaints of unfairness.” It cites a case in which the complainant alleged that his wage rate was unfair.¹⁰ In in another case, the complainant alleged that the Employer should have reimbursed him for expenses pursuant to a policy that was inapplicable to him but applied to others.¹¹ It also cites the Board’s decision in Bowmaster, in which the Board noted that, “general commitments to trust and fairness are not specific enough to translate into an enforceable contractual term.”¹²

28The decisions cited by the Employer’s are not on point. Those decisions generally dealt with cases where an employee alleged that the lack of a benefit or a term or condition of employment was ‘unfair’ in a general sense. They reflect cases where other members of the Ontario Public Service enjoyed a certain benefit that the complainant felt should apply to them. It may also arise when a complainant wrongly understands their individual entitlement and the “fairness” argument is made in support of applicability. Where, however, there is no violation of an actual term or condition of employment, the Board cannot address such complaints about the situation seeming “unfair”. But that is not what Ms. Crawford is arguing here.

29Instead, Ms. Crawford argues that the Employer owes a duty of fairness to its managers in the handling of serious allegations against them, as a condition of their employment. She argues that this is a term or condition of her employment, which the Employer breached.

30There is considerable legal precedent to support Ms. Crawfords’ argument that such a duty exists as a term of her employment. I need not, however, finally decide that issue at this stage. It is sufficient to rule that the Board has jurisdiction to consider whether such a duty of fairness constitutes a term or condition of employment (if that issue remains in dispute) and whether it was violated in this case.

31In summary, I have found that Ms. Crawford has made allegations that, if proven, would constitute a prima facie case of a violation of the terms and conditions of her employment. Furthermore, if such violations are found to have occurred, the Board has remedial authority to address them, subject to any restrictions contained in the Act or the Regulation.

The Application is Not Entirely Untimely

The Parties’ Positions on Timeliness

32The Employer argues that Ms. Crawford made her allegations that led to this application too late and not in compliance with the mandatory time limits for filing her NOP. The Employer points out that under the section 8(4) of the Regulation, one must file an NOP with one’s employer “… within 14 days after the complainant becomes aware of the… term or condition of employment giving rise to the complaint.” The Employer asserts that this was not done, with the NOP having been given to the Employer on June 6, 2023.

33In making this argument, the Employer points to the following allegations in Ms. Crawford’s application about alleged events that are outside the 14 day period before her NOP (which I will refer to as the “Complaint Period”):

a. The events that happened between August and October 2022, when Ms. Crawford was actively working at the OPP;

b. The paid suspension that started October 13, 2022 and ended on January 9, 2023, when Ms. Crawford accepted a secondment to the Ministry of Transportation;

c. As early as December 5, 2022, it is alleged, Ms. Crawford was made aware of the Employer’s position about the statement of allegations against her and what information it deemed necessary for her to fully participate in the WDHP process. (I note, however, that according to her NOP, Ms. Crawford was not provided a Notice of Investigation and Summary of Allegations until these were sent to her counsel on January 9, 2023.)

34Ms. Crawford responds to the Employer’s timeliness objection by asserting that the Employer appears to misunderstand her complaint. The complaint does not involve a series of isolated, point-in-time events. Rather it concerns allegations of, “an ongoing pattern of arbitrary and bad faith conduct on the part of the Employer – an ever-evolving situation in which representations made by the Employer are contradicted by later conduct and in which unfair and bad faith actions and positions taken by the Employer are compounded by subsequent actions.” Ms. Crawford points to the example of the paid suspension, when she was initially told she was not under investigation, only to later be advised that she was under investigation. Such investigation, which is ongoing, constitutes a continuing breach of the terms of her employment and the Employer’s duty of fairness, it is argued. Importantly, Ms. Crawford also relies on the Employer’s recent refusals to provide any further particulars or documents.

The Legal Framework

35 Section 4 of the Regulation sets out the conditions that must be met for filing a complaint regarding working conditions or a term of employment and provides, among other things:

(1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and….

36Section 3 contains the same notice requirements regarding the filing of a complaint about discipline.

37Section 8(4) in turn provides that an NOP about discipline, or about working conditions or a term of employment, must by given to the employer within 14 days after the complainant becomes aware of the working condition, term of employment or disciplinary measure, as the case may be (the Complaint Period”). More particularly it provides:

(4) The notice must be given within the following period:

For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.
For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.

38As stated by the Employer, the Board has frequently noted the mandatory nature of these time limits and its lack of power to relieve against them.¹³ Ms. Crawford does not dispute this principle. Rather, she disputes that her allegations are untimely.

Analysis and Decision

38Applying this legal framework, I have concluded that certain of Ms. Crawford’s allegations are timely. Others are not timely. Some of the earlier events may, however, form part of the necessary context for understanding those allegations that are timely.

39Ms. Crawford’s NOP dated June 6, 2023 relies in part on a series of events described under the heading, “Recent Events”. These in my view are timely allegations that fall within the Complaint Period. These include the following key allegations/ communications:

a. A letter dated May 23, 2023 from the Director, Respect, Inclusion and Leadership, OPRIL. Ms. Crawford alleges that this letter is improper insofar as, among other things:

i. It alleged that she had been provided with ample opportunities to participate in the investigative process, despite the Employer’s ongoing refusal to provide her with the particulars and documents she’d requested;

ii. It then threatened to close the investigation with only the evidence the Employer had gathered up to then; and

iii. it is not compliant with the Employer’s RWP, was arbitrary, discriminatory and made in bad faith; and amounted to a reprisal for the position she had taken in relation to the various complaints.

b. A letter dated May 31, 2023, which counsel for the Employer sent to counsel for Ms. Crawford. This letter allegedly continued the Employer’s harassing and retaliatory conduct in several respects.

40This decision about the preliminary objections is not about the strength of Ms. Crawford’s case regarding these allegations. Rather, it is about whether she has a right to pursue them. She does. The communications were sent within the Complaint Period. The Employer took positions in these letters that allegedly violate Ms. Crawford’s contractual rights. She filed her NOP in a timely manner in relation to them.

41The timeliness of allegations regarding earlier events is more problematic. For example, in my view, the Employer is correct in arguing that it is too late for Ms. Crawford to complain, in her June 6, 2023 NOP, about her conditions of employment when actively at work from August to October 2022. It was also too late on June 6, 2023 to complain about a paid suspension-pending-investigation that took place between October 2022 and January 9, 2023. Under the Regulation, the Board does not have jurisdiction to consider a late-filed complaint about those events. Similarly, adjudicating for the purpose of potentially providing remedies for other alleged contractual breaches arising from other acts and omissions of, or positions taken by, the Employer prior to the Complaint Period would be outside the Board’s jurisdiction.

42Even though the Board may not be in a position to adjudicate in order to provide remedies for the Employer’s conduct before the Complaint Period that allegedly breached Ms. Crawford’s terms and conditions of employment, evidence about some of those acts, omissions or positions may nonetheless be relevant and admissible in this case. It may be relevant and admissible as context, if such evidence is necessary to properly understand what happened and the positions taken by the parties during the Complaint Period, and the parties’ arguments about the latter events.

43It is not necessary at this stage to rule on precisely what evidence concerning the events before the Complaint Period is or is not admissible for the purpose just described. That can and should be decided as necessary during a hearing on the merits.

44Moreover, in light of this decision, I would expect that the parties should be able to agree on most if not all of the relevant facts concerning what actually happened before the Complaint Period relating to the Employer’s treatment of Ms. Crawford. That would appear to be almost entirely a matter of record. However, the interpretation and importance of what happened leading up to the Complaint Period, in relation to the issues that are properly before me, may be a matter for argument.

45In summary, to the extent outlined above, I have concluded that the application is not untimely.

46The Employer’s preliminary objections are therefore dismissed.

47The Registrar is directed to schedule a further Case Management Meeting with the parties, in accordance with the Board’s Practice Note #2, in order to determine how this matter can best proceed in a fair and efficient manner.

Dated at Toronto, Ontario this 18th day of March 2024.

Footnotes

S.O 2006, c, 35, Sched. A
Bowmaster v Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB) at para 4; Berezowsky v Ontario (Solicitor General), 2021 CanLII 82509 (ON PSGB) at para 5.
Workplace Discrimination and Harassment Prevention
Allen v Ontario (Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB) at para 12.
Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Attorney General), 2021 CanLII 58440 (ON GSB - McLean) at paras 191-195.
Ibid, at para. 191, citing OPSEU v. Ontario (MCSCS), 2017 CanLII 65618 (ON GSB – Tims) at para. 238.
2021 CanLII 127102 (ON GSB – Gee).
Chyczij v Ontario (Ministry of Labour), 2006 CanLII 26472 (ON PSGB).
Doyle v Ontario (Municipal Affairs and Housing), 2018 CanLII 109219 (ON PSGB) at paras 47-48 citing Hough v Ontario (Ministry of Community and Social Services), 1984 (ON PSGB) 1984 CanLII 37 (ON PSGB).; Shilman v Ontario (Ministry of Community & Social Services), 1989 CanLII 167 (ON PSGB); DaSilva v Ontario (Ministry of Health), 1997 CanLII 10281 (ON PSGB); Cardoza v Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 86404 (ON PSGB); Murphy v Ontario (Ministry of Transportation), 1999 CanLII 13876 (ON PSGB); and Gaetano v Ontario (Ministry of Municipal Affairs and Housing), 2000 CanLII 20352 (ON PSGB).
Ransome v. Ontario (Health and Long Term Care), 2006 CanLII 42782 (ON PSGB).
Taylor v. Ontario (Community Safety and Correctional Services), P-2014-0201 (ON PSGB).
Bowmaster v Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB) at para. 26.
See for example the following cases cited by the Employer: Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), P-2014-2665 (ON PSGB); and Laforest v. Ontario (Solicitor General), P-2018-3801 (ON PSGB); and the following case cited by Ms. Crawford: Polanski v. Ontario (Solicitor General) 2021 CanLII 95125 (ON PSGB).

Crawford v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2024 CanLII 60508

Case Summary