HomeMy WebLinkAbout2010-2489.Cabana.13-03-21 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2010-2489
UNION#2010-0432-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cabana) Union
- and -
The Crown in Right of Ontario
(Ministry of Training, Colleges and Universities) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Katherine Ferreira and Anne Cumming
Koskie Minsky LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Peter Dailleboust
Ministry of Government Services
Labour Practice Group
Counsel
HEARING DATES
SUBMISSIONS
November 23, 2011, January 30 & May 18, 2012.
September 19 and October 12, 2012.
-2 -
Decision
[1] In July of 2009 Angela Cabana filed a grievance that alleged she was been harassed in the
workplace. According to the grievor, this harassment took place over a substantial period
of time. It was alleged that the harassment she experienced had two elements. The first
was that the Employer failed to provide her with work that is congruent with her skills
and ability despite her repeated requests for change. The second aspect of harassment was
the ill treatment she received at the hands of her managers and her co-workers. The
grievor alleged that she was “relentlessly bullied” and demeaned over a sustained period
with the full knowledge of the Employer. It was contended that this treatment was
intended to cause her to leave the workplace. During opening statements, the Union
underscored that the Employer failed to protect the grievor from the ill treatment of both
her managers and her co-workers.
[2] Additionally, the grievor was absent for a considerable period of time on sick leave as the
result of this treatment according to the Union. By way of remedy the Union requested
that the grievor should be made whole for any monies lost as the result of this leave and
further, damages should be awarded as the result of the harm caused by the harassment.
[3] The Employer opted to have a very brief opening statement at the commencement of the
proceedings. It is sufficient to say that the allegations were denied. The Employer stated
that it had no part in and no knowledge of bullying or demeaning conduct against the
grievor. Further, it urged that it had no responsibility for the grievor’s sick leave.
Accordingly, no remedy should be ordered.
[4] The hearings into this matter have commenced and the grievor has been testifying on her
own behalf. Prior to the last day of hearing, the Union put the Employer on notice that it
would bring a motion before this Board. It was the Union’s position that the “effect of the
tort of ‘intrusion upon seclusion’ as contemplated in Jones v Tsige (2012 ONCA 32)”, is
significant to the disposition of this grievance.
[5] This notice was set out in a letter dated March 7, 2012. In order to understand the basis of
the Union’s position, it is helpful to set out the substance of this letter. It stated:
You will recall that the Union provided particulars of its case in
September of 2011. These particulars include an account of an incident
that occurred in, approximately, February lf 2010 while Ms. Cabana
(“Cabana”) was on leave from work. Shortly before Cabana was due to
return, her colleague Bonnie Sweet (“Sweet”) accessed Cabana’s
Employment Insurance (“E.I.”) file. Sweet accessed this file while at work
and used the Employer’s computer do to so. Sweet showed Cabana’s E.I.
information to at least one other colleague, Clair Lesage (“Lesage”).
Sweet suggested to Lesage that the E.I. information indicated that Cabana
-3 -
was about to run out of benefits and that the closure of benefits was the
reason Cabana had decided to return to work.
It is the Union’s position that Sweet’s accessing of Cabana’s E.I. records
constituted 1) an unauthorized intrusion which was 2) highly offensive to
the reasonable person 3) the matter intruded upon was private, and finally
4) the intrusion caused anguished and suffering.
The four criteria provided above must be met in order to make out a cause
of action for intrusion upon seclusion. (see paragraph 56 of Jones v. Tsige,
supra). It is the Union’s position that the accessing and dissemination of
private and confidential information as described above meets the criteria
identified in Jones v Tsige.
The Employer bears vicarious liability in respect of this tort. Vicarious
liability is – as the Supreme Court has found “a theory that holds one
person responsible for the misconduct of another because of the
relationship between them” (See comment of Major J. in 671122 Ontario
Ltd. V. Sagaz Industries Canada Inc. (2001), 204 D.L.R. (4th) 542 (S.C.C.)
reconsideration refused (2001), 10 C.C.L.T. (3d) 292 (S.C.C. at 551
[D.L.R.]).
The Court in Bazely v. Curry [1999] 2 S.C.R. 534 [Bazely] set out a two-
part approach to determining whether and when vicarious liability should
be imposed on an employer. First, the Court must determine if there are
precedents that hold vicarious liability should be imposed in the
circumstances. In the event that there are no precedents, the Court will
look at whether the wrongful act can be sufficiently connected to the
conduct authorized by the employer or principal.
As the tort “intrusion upon seclusion” was only introduced recently there
are no obvious precedents. We therefore look to the second aspect of the
test, i.e., whether the wrongful act can be sufficiently connected to
conduct authorized by the employer to warrant employer liability.
As you know, Cabana filed her grievance prior to the improper review of
her E.I. records by her colleague. It is our position that the harassment
suffered by Cabana was of a continuing nature as is evidenced by (among
other things) Sweet’s behavior as outlined above. It is our position,
further, that the fact that the harassment was of a continuing nature
demonstrates that the employer permitted of a workplace in environment
which such improper behaviors were tolerated and even encouraged. The
fact that a grievance was filed in regards to such behaviors did not put an
end to them. Then the harassment continued even after Cabana filed her
grievance demonstrates a “sufficient connection” between (in this case)
Sweet’s wrongful acts and the milieu in which Cabana worked wherein
harmful and harassing behaviors were permitted and effectively authorized
by the employer.
Employers may be vicariously liable for the torts of employees committed
during the course of their employment. Employees’ tortious conduct may
include acts condoned by employers in which case the employer bears
vicarious liability for the conduct of their employees even when the
wrongdoer was acting in contravention of employer policy and
expectation. It is the Union’s position that the Employer condoned the
-4 -
tortious actions described. The Union also takes the position that a denial
of control over the wrongdoer when the wrongdoer was engaged in a
tortious course of action does not constitute a complete defense.
Employers may be found vicariously liable or employers whose
employees have effectively abused their powers, as is the case in the
matter at hand.
[6] The Union informed the Employer that it would be putting forward an interim motion to
this Board regarding its jurisdiction to find the Employer vicariously liable for the
“intrusion upon seclusion” suffered by the grievor.
[7] A day was spent hearing submissions in this regard. For the purposes of this decision, it is
sufficient to say that the Union’s argument was more fulsome that is set out in its above
letter and included submissions regarding the effect of Freedom of Information and
Protection and Privacy Act, RSO 1990, Chapter F.31.
[8] It was not made clear by the Union why it thought this matter of jurisdiction had to be
decided at this point in the proceedings. The Employer suggested that an interim decision
might be necessary for the purposes of third party notice.
[9] The Employer also provided comprehensive submissions. Suffice it to say that the
Employer strongly disagreed with the Union’s view that this Board could and should take
jurisdiction over the matter of Employer vicarious liability. Simply put, it was urged that
there is no direct or inferential link in the collective agreement that contemplates
Employer responsibility for the conduct between two individuals in the workplace.
[10] One of the Employer’s arguments was regarding the affect of Re The Crown in Right of
Ontario (Ministry of Community Safety and Correctional Services and Ministry of
Children and Youth Services) and OPSEU (Monk) GSB#1995/1694 (Gray).
[11] As of the day of hearing held to hear submissions on this motion, Re Monk was awaiting
a decision from divisional court. It was agreed to await that decision and the parties
would make further submissions.
[12] Once released, further written submissions were made over a period of time. Shortly
thereafter the Employer notified the Board that Leave to Appeal the Divisional Court
decision was granted and a date for hearing is yet to be scheduled. At that point, the
Employer sought leave to withdraw its arguments regarding the applicability of Re Monk
upon the matter at hand.
-5 -
[13] After much consideration of this matter, I have decided that I will reserve on the matter
of this Board’s jurisdiction to determine whether the Employer is vicariously liable for
the conduct of Ms. Sweet and/or others.
[14] No argument was proffered that would lead me to find that a decision on this matter is
needed at this point in the proceedings. Neither party suggested that the scope of the
allegations or facts upon which the allegations are based would be affected by this ruling.
Indeed, the Union has been clear from the outset that it is seeking damages for
harassment of the grievor by her co-workers and managers. It noted in its opening
statement that it intends to introduce this evidence and there was no suggestion from the
Employer that the evidence is improper or inadmissible.
[15] The Union’s request regarding jurisdiction is significant and of considerable importance
to both parties. I am of the view that there is much benefit to reserve a decision on this
matter until the conclusion of the evidence.
[16] Further, I am not convinced that the matter of third party notice would be affected by a
ruling at this time. The Union is asking the Board to find that it has the jurisdiction to
find the Employer vicariously liable. It was not asking this Board to make an award of
damages against any individual employee.
[17] Leaving this determination until the end of the evidence will allow the parties the
opportunity to ask the Board to consider the affect, if any, of Re Monk. Hopefully a
decision from the Court of Appeal will be known by that time.
[18] Accordingly, I reserve my decision on this matter. The parties will address the matter
again at the conclusion of the evidence in their final submissions. The hearings will
continue on the dates already scheduled.
Dated in Toronto this 21st day of March 2013.
Felicity D. Briggs, Vice Chair