HomeMy WebLinkAboutHeron 13-10-07In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between
CANADIAN BLOOD SERVICES
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
LOCAL 5103
Grievance of Ken Heron
OPSEU File No. 2012- 5103 -0006
Arbitrator: Randi H. Abramsky
Appearances
For the Employer: Sarah Eves Counsel
For the Union: Tim Hannigan Counsel
Hearing: September 17, 2013 in Toronto, Ontario, with additional written
submissions on September 23, 2013.
FLI_AVO1
On January 17, 2012, the Grievor, Ken Heron, filed a grievance alleging as
follows:
I grieve a violation of the collective agreement including but not limited to the
Article
Article IA
Article 4
All Canadian Blood Services Policies pertaining to Bullying, Respect in the
Workplace, Harassment, Poison Toxic Workplace
2. Human Rights of Canada Issues.
3. And Emotional Stress
The remedy sought was "financial compensation."
The Grievor also filed an application with the Human Rights Tribunal of Ontario
on May 5, 2012. That matter was deferred by the Tribunal on the basis that "the facts and
human rights issue raised in the Application and in the grievances are the same." The
Tribunal also noted, citing Re Parry Sound (District) Social Services Administration
Board and OPSEU, Local 324, 2003 S.C.C. 42, that "the Supreme Court of Canada has
affirmed that grievance arbitrators have not only the power but also the responsibility to
implement and enforce the substantive rights and obligations of human rights and other
employment - related statutes as if they were part of the collective agreement."
Particulars and documents were provided by the Union to the Employer on July
23, 2013. The Employer has now raised a preliminary motion to dismiss the grievance on
the basis that the facts, as alleged in the grievance and particulars, even if accepted as
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true, do not establish a prima facie case of discrimination recognized by the Hunzan
Rights Code of Ontario. The Union opposes the Employer's motion.
Facts
The Grievor was employed as a Driver with the Employer, Canadian Blood
Services ( "CBS "), from January 4, 2003 until January 21, 2012, when he was laid off as a
result of a major reorganization and consolidation of operations. The Grievor, on
February 28, 2011, was provided with four options as a result of this reorganization — (1)
accepting an equal or lower paying position in Brampton (where the consolidated
operation was to be based), (2) severance equivalent to 52 weeks of pay, (3) placement on
the recall list, and (4) displacement into another position. On March 14, 2011, the
Grievor chose the severance option. On October 19, 2011, be was provided his "Official
Notice of Layoff, effective January 21, 2012. Hundreds of employees were impacted by
this reorganization.
In his particulars, the Grievor alleges that he had planned to work for the
Employer until he retired, but was "forced to end his employment at a much earlier date
as a result of the harassment and discrimination he experienced in the workplace" and the
"Employer's continued failure to address his concerns regarding this illegal conduct."
Essentially, the Grievor contends that he was "harassed, bullied and discriminated
against by a colleague, Ms. Donna Porter, as well as the Employer" which resulted in a
"poisoned workplace" for him. He submits that Ms. Porter was engaged in a "smear
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campaign against another co- worker, Ms. Bonnie Henderson, a transgendered individual.
When he "would not condone or contribute to Ms. Porter's targeting of Ms. Henderson ",
when he "stood up for Ms. Henderson," he alleges that "he became a target of Ms.
Porter."
At no point in the particulars does the Grievor explain how he "stood up for Ms.
Henderson." Nor do any of the documents demonstrate how he did that. He states that he
"stopped socializing with Ms. Porter as a result of her treatment of Ms. Henderson." The
only explanation he provides is in a document entitled "What do I want ", which states:
• Why? What did she [Porter] do to you? Nothing. Absolutely nothing, at first. In
fact it initially had nothing to do with me. She was involved in a smear campaign
against Bonnie Henderson, a transgendered woman who worked at CBS as a
driver. She was slandering Bonnie behind her back and saying disgusting,
unrepeatable things about her body and sexuality. She was also involved in a plot
to get Bonnie fired from CBS because she was disgusted that there was a
transgendered woman working in her department. Incidentally, this was
encouraged by management. So she was protected and then had free reign to say
whatever nasty thing she wanted. I was so disgusted by her conduct in the work
place and her meanness towards Bonnie that I stopped socializing with her and
being friendly. But I did not say anything disrespectful towards her or about her, I
simply ignored her.
There is no contention in the particulars that he ever told Ms. Porter that he would no
longer socialize with her because of her treatment of Ms. Henderson, or conveyed that to
her or anyone else. The only other mention was his statement that "I remember several
times Bonnie confiding in me her fears of CBS firing her, fully expecting it in fact."
Beyond this, the particulars reveal no action taken by the Grievor to support Ms.
Henderson, at anytime.
E
The Grievor mentions that Ms. Henderson "launched a lawsuit against CBS for
harassment in the workplace" but he did "not know the outcome of the lawsuit." He does
not state that he was a witness in that matter, or attended any hearings with her, or
publicly supported her in any way.
There is no suggestion that he confronted Ms. Porter about her conduct towards
Ms. Henderson, or reported what he witnessed to management. He did not file a
grievance or alert the Union as to what was happening to Ms. Henderson.
The Grievor also does not provide a timeframe for this "smear campaign" against
Ms. Henderson, or the lawsuit. Nor did he provide a timeframe for when he "stood up"
for Ms. Henderson and "stopped socializing" with Ms. Porter.
The Grievor asserts that Ms. Porter "accused me of vandalism, and then she
eventually threatened me." Specifically, he alleged that she accused him of "keying" a
co- worker's car and writing graffiti in the men's washroom wall, both of which occurred
in September 2010. No other incidents were alleged in the particulars until May 2011,
when she accused him of writing slanderous things about her on the office computer
screen saver, after which she "threatened him."
The Grievor asserts that on May 20, 2011, Ms. Porter called him on his work cell
phone and told him "I know where you live. 1 know where you live and I am going to tell
your wife. And you will have to pay her lots of alimony." She then went on to tell hire
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that he was "the person responsible for the comment about her on the screen saver." He
denied that, and she told him, "yeah it's you."
The Grievor reported this immediately to his supervisor, and in writing on May
28, 2011. He wrote that it was not the first incident of work place harassment he had
with Ms. Porter. He continued:
The first incident with her was when she was blaming me for (keying) vandalizing
another co- worker's car and then going around my work place and telling other co-
workers it was me. She spread this lie to a number of fellow drivers and workers
and as a result my work place environment has been poisoned for some time.
The second incident with Donna was her blaming me for the vandalizing of the
men's washroom. It involved her going into the lunch room and whispering to co-
workers that it was me. As a result of her actions I felt uncomfortable around the
people I work with.
I consider this to be work place harassment and I take these threats very seriously.
They are not implied threats, they are very real, very serious threats to both me and
my family.
If this is not dealt with I will have no other options but to go outside my work place
and contact the police and my lawyer.
At no point did the Grievor advise management that Ms. Porter's conduct towards him
had any connection to his support for Ms. Henderson.
The Grievor also alleges there was no response from the Employer to his
complaint, so on July 5, 2011, he sent an email to the Executive Management Team in
Ottawa, outlining his concerns. Again, he made no mention that Ms. Porter's actions were
because of his support for Ms. Henderson. He further asserted that on July 4, 2011 Ms.
Porter implied at the drivers' weekly meeting that he was taking her cell phones which
RL
had gone missing. Shortly after this, the Employer arranged for an external investigation
of the Grievor's allegations by Quintet Consulting Corporation. Their investigation began
on July 25, 2011.
The investigator interviewed the Grievor, Ms. Porter, other employee witnesses,
and supervisors. A preliminary report was forwarded to the employer as well as the
Grievor and Ms. Porter for their review and comments on August 19, 2011. A final
report was issued on September 16, 2011. The investigator determined that Ms. Porter
did call the Grievor on May 20, 2011 during which she accused him of writing a
comment on a screensaver, and that she accused him of having an affair and threatened to
tell his wife, saying, "I know where you live." She also falsely and publicly accused him
of vandalizing a co- worker's car. The other allegations were considered unfounded, but
she determined that "the allegation that Ms. Porter harassed Mr. Heron is considered to
be founded."
At no time during this investigation did the Grievor assert that Ms. Porter's
actions towards him were based on his support for Ms. Henderson. He never raised that
contention during the investigation.
The Grievor's particulars state that he was "shocked and appalled at the
preliminary report ", particularly because his home address was disclosed to Ms. Porter.
In addition, Ms. Porter had claimed, in her response to the preliminary report, that the
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Grievor had sexually harassed her. There is no reference to this allegation in the final
report. The Grievor states, however, in his particulars as follows:
There is absolutely no truth to the allegation, no proof to support it, yet there is
written documentation which alleges that the Grievor engaged in this behavior and
the Grievor was never questioned about it. From the Grievor's perspective this
establishes the most important evidence to demonstrate that his workplace
environment was irrevocably destroyed and poisoned beyond repair. It would have
been very difficult, if not impossible, for the Grievor to continue going to work
wondering if his co- workers considered him to be a potential sexual predator. The
Grievor worked with many female employees and was very concerned about the
impact of such allegations being made in the workplace without any foundation.
There is no assertion, and no evidence, that the preliminary report was distributed to
anyone at CBS beyond Human Resources, the Grievor and Ms. Porter. There is no
assertion, and no evidence, that the final report was distributed to anyone else.
The Grievor acknowledges, in his particulars, that both the Employer and Quintet
Consulting Corporation apologized for including his home address in the preliminary
report, but asserts that this apology "was not sincere" and he was concerned that "[w]hile
the Grievor is at work his spouse is home alone with their daughter." He also raised this
issue with the Employer's Chief Privacy Office as well as the police.
It was the Grievor's position that following this investigation, "it appears to the
Grievor that the Employer did not do anything to address the harassment against the
Grievor." He states, however, that "Ms. Porter also left the workplace..." but he "is not
aware of the basis for Ms. Porter leaving the workplace." Yet in his "What do I want"
document, the Grievor states that "Donna vanished mysteriously and was never heard
from again... It is believed that Donna was given stress leave which amounts to a free
vacation and then was paid off to leave the company." He further stated that he had a
"final meeting" with Human Resources in Toronto "to see what the outcome would be"
and was advised "that Donna Porter would not be returning to CBS." He stated;
So, to sum up, Donna Porter harasses me in the workplace, I charge her with these
allegations, nothing is done about it, and SHE is the one who is treated like the
victim and given a much coveted stress leave. Say, can I have one as well? ...
On February 1, 2012, the Grievor contacted his Member of Provincial Parliament
about his allegations, including that he was "forced to leave CBS." He cited the definition
of a "poisoned environment" from the Human Rights Commission and asked for
assistance. Constituency Assistant Andrew Lauer wrote back, inquiring whether he fled a
complaint with the Ontario Human Rights Commission or a grievance under the
collective agreement. The Grievor replied that he would file a complaint with the Ontario
Human: Rights Commission and that "OPSEU is now starting to helping [sic] me."
The Grievor also asserts that following the investigation, the Employer "engaged
in harassment and intimidation against him" by providing him with a performance
appraisal which indicated that he was a "mediocre employee." He asserts that this
appraisal would be used to respond to reference requests from prospective employers"
and was "designed to limit and interfere with the Grievor's future employment
opportunities." There were no examples of any references, negative or otherwise,
provided by the Employer to prospective employers in the particulars. Nor was there any
assertion that his employment opportunities have been impacted by the reference.
The particulars allege as follows:
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The Grievor asserts that he was discriminated against, contrary to the Ontario
Human Rights Code, because of his association with Ms. Henderson, and his
support of a transgendered employee and reprisals for his refusal to engage in
conduct designed to discriminate against this individual. The Grievor also asserts
that family status was a factor, as his family was used as a basis for threats and
harassment.
The basis of his claim for discrimination in regard to family status was that Ms. Porter
threatened to tell his wife that he was having an affair, and he has a child at home.
Article IA of the parties' collective agreement, entitled "No Discrimination",
states as follows:
1 A.02 The Employer, employees and the Union agree to conduct their affairs in
accordance with the Ontario Human Rights Code and agree that there shall be no
discrimination, restraint, intimidation, harassment or coercion practiced or
permitted by the Employer or the Union or any of their representatives against any
employee because of sex, sexual orientation, age, marital status, family status,
disability, record of offences, race, colour, creed, criminal record, national or ethnic
origin, ancestry, citizenship or political opinion.
Article 4 is the "Management Rights" provision, which provides that management
rights "shall not be exercised in a manner inconsistent with the provisions of this
Agreement."
There were approximately 90 drivers in the Central Ontario division in which the
Grievant worked, working under four supervisors. The Grievant and Ms. Porter reported
to different supervisors.
Reasons for Decision
10
The parties agree that under Article 1A.02 as well as Section 48(12)(j) of the
Ontario Labour Relations Act, I have jurisdiction to interpret and apply the Ontario
Human Rights Code. Section 5.(1) and 5.(2) of the Code states:
Employment
5.(1) Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, gender identity, gender
expression, age, record of offences, marital status, family status, or disability.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the
workplace by the employer or agent of the employer or by another employee
because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sexual orientation, gender identity, gender expression, age, record of offences,
marital status, family status or disability.
Section 12 pertains to "Discrimination because of association" and states:
12. A right under Part 1 is infringed where the discrimination is because of a
relationship, association or dealing with a person or persons identified by a
prohibited ground of discrimination.
The Code protects against discrimination on the basis of one of the grounds
protected by the Code, or, under Section 12, where the discrimination occurs because of
an association with a person identified by a prohibited ground of discrimination. The
Code does not confer a general power to deal with allegations of unfairness or
mistreatment. The unfairness or discrimination must be because of the protected basis,
i.e., because of a person's gender, religion, disability, etc., or because of a relationship,
association or dealing with a person identified by a prohibited ground of discrimination.
In this case, the Grievor claims discrimination by the Employer and Ms. Porter
because of his association with Ms. Bonnie Henderson, a transgendered employee. He
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also claims discrimination because of family status. The Employer asserts that his
particulars, even if true, do not establish an "association" with Ms. Henderson or that
adverse action was taken against him because of his association with her. It also asserts
that the Grievor's particulars do not establish discrimination on the basis of family status.
A. Family Status
Section 10 of the Code defines "family status" as "the status of being in a parent and
child relationship." In Re Edosa Adams -Idode and Kids Zone Childcare Center and Todd
Taus, 2011 HRTO 821 (Brennenstuhl), the Tribunal dismissed an application that alleged
discrimination on the basis of family status because "[a]part from bald assertions of
discrimination, the applicant was unable to explain how she could prove, on a balance of
probabilities, that she experienced discrimination, at least in part, because of her family
status. "(emphasis in original) The Tribunal explained, at par. 8:
The HRTO can only deal with applications alleging a violation of the Code. To
establish a violation of the Code, the applicant must demonstrate that the
respondents treated her differently as compared to others based on her family status
and that such treatment caused her a disadvantage resulting in discrimination within
the meaning of the Code.
The applicant alleged that her three children were expelled from a child -care centre
because their daycare costs were being subsidized and the respondents had safety
concerns about her and her husband. The applicant was of the view that "family status"
applied merely "because she is in a parent child relationship and her disputes with the
respondents have some relationship to her children." But this was "not the case." The
Tribunal continued at par. 10:
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It is clear that the applicant is upset with the respondents in that she feels that she
and her children have been treated unfairly. However, the HRTO does not have the
power to dal with all claims of unfairness between the parties. It can only deal with
applications alleging a violation of the Code. I find that the applicant's allegations
do not establish the necessary link between the respondents' alleged actions and the
ground of family status. The applicant's allegations, even if true, would not
constitute discrimination because of family status and, accordingly, the Application
has no reasonable prospect of success.
The application was, accordingly, dismissed.
This case is directly applicable to the Grievor's allegations. He is asserting family
status discrimination because Ms. Porter threatened to tell his wife he was having an
affair, and said "I know where you live" when he had a wife and child at home. He
asserts that "family status" is involved because he is in a parent and child relationship and
her alleged threat could potentially impact his family. There is no assertion that Ms.
Porter even knew he had a child, or that she made that alleged threat, in whole or in part,
because of his family status. Consequently, his allegations "do not establish the
necessary link between the respondents' alleged actions and the ground of family status."
They do not, even if true, constitute discrimination because of family status. His
particulars, therefore, even if true, do not establish a prima facie case of discrimination on
the basis of family status. Accordingly, the claim must be dismissed.
B. Discrimination on the basis of Association
The Grievor claims that Ms. Porter harassed him and created a poisoned work
environment because he "stood up" for Ms. Henderson, a transgendered individual. Ms.
Henderson, as a transgendered individual, is someone who is protected by the Code. If
the Grievor truly had an "association" with her, and Ms. Porter and the Employer took
action against him because of that association, it could establish a violation of the Code.
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The decision in Re Giguere v. Popeye Restaurant [2008] O.H.R.T.D. No.2 (Gottheil)
illustrates the concept of discrimination on the basis of association. In that case, the
applicant was a waitress who was terminated by the owner of the restaurant because she
was married to an individual who was HIV- positive, and customers complained about it.
The Tribunal determined, based on the evidence presented, that the applicant was
terminated because of her association with a person with a disability, concluding at par.
71:
In looking at the totality of the evidence, what emerges is a picture of a small
business owner, a first -time entrepreneur, well- meaning but unsophisticated,
reacting to a cash flow crisis. In April 2004, the financial situation for Ms. Landry
was going from bad to worse. At the same time, staff were reporting that customers
were complaining that Ms. Giguere, an individual whose partner was HIV- positive,
was working at the restaurant. I have no doubt that customers were also telling Ms.
Landry directly that they were unhappy about Ms. Giguere working as a waitress
and that they would stop patronizing the restaurant if Ms. Giguere continued
working.... Ms. Landry reacted out of fear and desperation, notwithstanding her
original good intentions in hiring Ms. Giguere. She decided to terminate Ms.
Giguere, because, as she wrote in the letter of termination "if this is going to affect
business in this way, I have no other choice but to terminate your job." Ms.
Giguere was terminated because of her association with a person with a disability.
Similarly, in Re Barclay v. Royal Canadian Legion, Branch 13 [1997] O.H.R.B.I.D
No. 20 (Leighton), the Tribunal determined, at par. 76, that a claim for discrimination
based on association was made out because the complainant "stood up and spoke[]
against racism..." The evidence established that when the complainant heard the
respondents say "something like `dirty f - - - - -- Indians should be taken out and shot "', she
confronted them regarding the racist remarks. After that the respondent suspended her
privileges in the Royal Canadian Legion. The Tribunal concluded: "Having stood up and
spoken against racism, she clearly associated herself with first nations people and persons
14
of colour. If as a result of this the Legion retaliated against her by suspending her
privileges, then this would be contrary to the Code."
In Re Knibbs v. Brant Artillery Gunners Club Inc. [2011] O.H.R.T.D. No. 1035
(Bhattachar ee), Ms. Long was a co-worker, relative and friend of Ms. Knibbs, who had
filed a complaint of discrimination on the basis of disability against the employer. She
later lived with her. The employer initially directed Ms. Long not to speak to Ms. Knibbs
because she had filed the complaint, and later directed her not to live with her. Ms. Long
was subsequently suspended, pending investigation by the police into a lottery matter. In
connection with that, the employer submitted a letter to the police alleging that Ms. Long
was "a follower [of Ms. Knibbs] and could be easily swayed as she has financial
problems as well as a drug habit." The Tribunal determined, at par. 177, that "Ms. Long
clearly had a relationship, an association and dealings with Ms. Knibbs through
employment and family that the respondents were aware of."
In contrast is the case of Re Konstantinos Gidopoulos and Weston Bakeries
(Distribution Centre) and Ralph Robertson, 2012 HRTO 437 (Truemner). In that case
the applicant alleged, among other things, that he was tenninated because of his
association with another employee, Mr. Chandiwala, who had filed an application at the
Tribunal against the employer, alleging discrimination on the basis of disability. The
applicant alleged that he planned to be a witness for Mr. Chandiwala though he had never
seen his complaint and did not know if he was listed as a witness, nor knew when the
hearing might be. He assumed that the respondent was aware of his agreement to be a
15
witness in that matter. Although he did not have direct evidence that his termination was
based on his association with Mr. Chandiwala, he argued that "the circumstances are such
that [the Tribunal] should infer it is a reason." The Tribunal declined and dismissed his
complaint, concluding at par. 17:
In the circumstances, where the applicant cannot provide any evidence that his
association with Mr. Chandiwala was a reason for the termination of his
employment, and simply points to the fact that he had an association with Mr.
Chandiwala, the applicant has no reasonable prospect of establishing a link between
the termination and the association with Mr. Chandiwala. His allegation of
discrimination because of association with Mr. Chandiwala is dismissed.
In this case, the Grievant clearly believes that he was targeted by Ms. Porter
because of his association with Ms. Henderson. But other than his assertion that he
"stood up" for her, he provides no specifics. He "stopped socializing" with Ms. Porter
and "being friendly" to her. But he "did not say anything disrespectful towards her or
about her "; he "simply ignored her." There is no assertion that he publicly supported Ms.
Henderson in any way. He did not confront Ms. Porter about her conduct, or try to
prevent it from happening. He did not report it to management. He did not file a
grievance against her, or urge Ms. Henderson to do so. He was not a witness in Ms.
Henderson's lawsuit. He did not attend any proceedings. He did not even know the
outcome. The only specific mention of an actual "association" was his assertion that she
told him about her fears of being terminated.
There is also no assertion that the Employer was aware of his association with Ms.
Henderson. There is no claim that he made the Employer aware of it. He complained
about Ms. Porter's conduct (in regard to himself) to management but there is no claim
16
that he informed management that Ms. Porter was taking these actions against him
because of his association with Ms. Henderson. He also did not mention it throughout the
investigation by Quintet Consulting Group.
In Re OPSEU (Union) and Ministry of Government Services (2011), 106 C.L.A.S.
4 (Abramsky), it was held that "a motion to dismiss on the basis that there is no prima
facie case succeeds `if the facts asserted in support of a grievance, if accepted as true, are
not capable of establishing the elements necessary to substantiate the violation alleged."'
Here the alleged violation is a violation of the Ontario Human Rights Code. He asserts
that Ms. Porter and the Employer took adverse action against him because of his
association with Ms. Henderson.
The Employer contends the Grievor's claim that he was adversely treated by the
Employer and Ms. Porter because of his association with Ms. Henderson is pure
speculation, without any factual foundation. It asserts that it consists of conjecture and
suspicion, without any facts which link their actions to his association with Ms.
Henderson. Yet that factual "link", it contends, is crucial.
The Union contends that it is "possible" that an explanation for Ms. Porter's
conduct towards the Griever was because he supported Ms. Henderson. It argued that this
"possible inference" was enough, if accepted, to establish a prima facie case under the
Code. In support of its position, it cited to Re OPSEU (Gauntlett) and Ministry of
Finance (2008), GSB No. 2006 -0659 (Gray).
17
The Gauntlett decision involved a motion for a non - suit, but there is some
similarity in the test applied. In a non -suit motion, the board must determine whether a
prima facie case has been made out. The test is "whether some evidence exists to support
the claim, which requires an answer or explanation from the other side."
The Union relies on the portion of the decision, at par. 30, which states that "[i]n
today's legal and social climate, someone who engages in discrimination on the basis of
race or colour is not likely to provide direct verbal evidence of it." Vice -Chair Gray
determined at par. 33, that "[t]be test, then, is only whether discriminatory motivation is a
possible explanation for the behaviour described in evidence.... Not whether it is the only
possible explanation or the most probable of the possible explanations or more probable
than the sum of the probabilities of all other possible explanations or whatever the
appropriate test may be when it comes time to weigh the evidence."
The decision, though, makes a number of other points. It determines that a
statement of "belief' is not sufficient evidence. Vice -Chair Gray states at par. 19: "When
a witness... makes a statement of belief without identifying the basis of the belief, the
statement ordinarily has no evidentiary value as proof that what the witness claims to
believe is true." He further stated, at par. 34, that "[t]his is not to say that an attempt to
prove discrimination will survive a non -suit motion on the basis of facts that would create
no more than mere suspicion of discrimination even if left unanswered. The difficulty is
in distinguishing between `valid inference' and `mere suspicion."'
18
In this case, the facts presented in the particulars and documents are "mere
suspicion" and "belief." The Union acknowledged, in argument, that it had no proof that
the Employer acted against the Grievor on the basis of his association with Ms.
Henderson. It submits that it was the Grievor's strong belief that Ms. Porter did so. With
respect, that "belief' was not supported by specific "facts." Indeed, all he really
submitted was his "belief' that Ms. Porter targeted him because of his association with
Ms. Henderson. The investigation report suggests other reasons that Ms. Porter may have
had, such as the genuine belief that he posted the unfavorable comments on the screen
saver. In Re Gauntlett, supra at par. 35, the Vice -Chair found "some testimony that
might lead me to find that discrimination played some part in one or other or both
decisions challenged in these proceedings..." The same is not true here. There are
simply no facts, except the Grievant's belief, to establish that Ms. Porter acted against
him because of his association with Ms. Henderson. In regard to the Employer, as the
Union acknowledges, there is no evidence to make that "link" at all.
In Re C.G. and Timmins Police Service et al., 2013 HRTO 1268 (Sanderson), the
Tribunal stated at par. 10: "Accepting the facts alleged by the applicant does not include
accepting the applicant's assumptions about why they were treated unfairly." It
continued:
The mere fact that a person identified by a prohibited ground of discrimination
experiences some kind of disagreeable or unfair treatment is not generally sufficient
to support an inference of discrimination. The question that the Tribunal must
decide at a summary hearing is whether there is likely to be sufficient direct or
indirect evidence to connect the unfair treatment experienced by the applicant with
the applicant's personal characteristics. However, if the applicant is unable to point
to circumstances beyond their own assumptions or belief, the application may be
found to have no reasonable prospect of success.
19
Where there are only "bald allegations of discrimination with nothing to suggest that the
actions of the [respondent] were connected with grounds under the Human Rights Code ",
the required "link" is not established. Re Dabic and Windsor Police Service, 2010 HRTO
1994 (Wright).
So the question here is whether, assuming the facts alleged by the Grievor are
true, is there likely to be sufficient evidence to connect the unfair treatment to his
association with Ms. Henderson. Did he allege facts which, if accepted as true, establish
that Ms. Porter and the Employer took action against him because of his association with
Ms. Henderson? Stated another way, are there facts which, if true, establish a violation of
the Code? Based on my review of the particulars and the documents presented, I find that
the answer is "no ", that he did not establish the necessary link. Assuming the facts
asserted in the particulars are true, the Grievor may have been mistreated and harassed by
Ms. Porter. But there are no facts - only his "bald allegation" - to support his assertion
that this was because of his association with Ms. Henderson. In my view, the facts
alleged in the particulars, if accepted, do not establish that critical link. His claim about
their motive is purely speculative. Without that critical link, he cannot establish a prima
facie case that his rights under the Ontario Human Rights Code, or Article 1 A or 4 of the
collective agreement, have been violated.
His particulars establish no real "association" with Ms. Henderson. But even if
they did, they do not establish that Ms. Porter or the Employer, acted against him because
of that association. Without that link, there can be no prima facie violation of the Code.
20
The Grievor's allegations stand in sharp contrast to the cases where an association
was found. In Re Giguere, supra, the claimant was partners with an HIV- positive man
and was terininated because of that association. In Re Knibbs, supra, the claimant was
co- workers, friends and a relative with a person with a disability who filed an application
with the Tribunal, and was linked to her in a letter the employer sent to the police. In Re
Barclay, supra, the claimant directly confronted the respondents for making racist
comments, and her membership was then suspended. In those cases, the link between the
complainant's association with a protected person or group and the action taken against
them was clear.
The Union asserts that the Grievor's conduct in "standing up" for Ms. Henderson
is similar to the situation. in Re Barclay, in which the complainant spoke out against the
racist comments made by the respondents. I cannot agree. There is nothing in the
particulars that he "stood up" for her at all. He may not have participated in the
misconduct, but he did nothing to stop it or report it. He remained silent saying nothing
"disrespectful towards her [Ms. Porter] or about her." He "simply ignored her." That is
markedly different than directly and publicly confronting the racist comments made in Re
Barclay, supra.
C. Violation of the Harassment Policy
During the Union's argument opposing the Employer's motion to dismiss, the
Union argued, in the alternative, that the matter was arbitrable based on the Employer's
21
alleged failure to follow its "Respect in the Workplace, Violence and Harassment
Prevention Policy." The grievance, it notes, specifically alleges a violation of the
Employer's policies. The Union asserts that "[f]or a post -Bill 168 case, the link or hook
into the Collective Agreement for challenging the harassment policies would be through
the health and safety provisions of the Collective Agreement." It acknowledges that
"[t]he grievance in this case does not specifically refer to the Health and Safety
Provisions, though it does refer to the policies as well as the management rights clause
which includes at Art. 4.04 that `These management rights shall not be exercised in a
manner inconsistent with the provisions of this Agreement."' Counsel for the Union
candidly acknowledged that "the Employer may take the position that this would be a
change of grounds to include a health and safety violation in the absence of a specific
reference to these [health and safety] provisions in the grievance."
In fact, the Employer has taken that position. It asserts that the Union's attempt to
grieve the "Respect in the Workplace" policy under the health and safety provisions of
the collective agreement "represents a change of grounds and an attempt to expand the
grievance..." since there is no mention in the grievance or the particulars of a violation of
the health and safety provisions or the Ontario Health and Safety Act. Nor did the Union
ever advise the Employer, until the argument at the hearing, that it would be advancing
that the grievance might still proceed based on the alleged violation of the policy. It
submits that "the Employer would be extremely prejudiced if the Union were permitted to
expand the scope of the grievance at this late ,stage in the proceedings."
22
In support of its position that the Union's contention is an improper expansion of
the grievance, the Employer cites to Re OPSEU (Jones) and Ministry of Labour (2010),
101 C.L.A,S. 316 (Abramsky). In that case, the board determined at par. 34 that "based
on the wording of the grievance and the Step 2 discussion, the citation to Article 9 [health
and safety] and the Occupational Health and Safety Act (OHSA) in the Union's
particulars goes beyond a new legal argument - and represents a change in the substance
of the grievance, or in effect, the substitution of a new grievance for the original one."
In this case, there was no claim in the grievance or the particulars that the Grievor
was alleging harassment apart from his association with Ms. Henderson under the Ontario
Human Rights Code. In his complaint before the Tribunal, he alleged a violation of the
"Respect in the Workplace" policy. His grievance cites Article IA of the collective
agreement, which prohibits "harassment" based on a prohibited ground. There was no
mention, at any time, that he was raising harassment, generally, as a health and safety
issue.
In Re OPSEU (Jones), supra, at issue was whether the Union was improperly
expanding the scope of the grievance, which contested the Employer's introduction of a
"quota" system as `unfair ", when it alleged at the hearing that the grievance raised
allegations involving the Health and Safety provision in the collective agreement as well
as improper discipline. No specific provisions of the collective agreement were cited in
the grievance. The Board determined that the failure to cite specific provisions of the
collective agreement was not necessarily determinative. Rather, the Board held at par 30:
23
As stated by Vice -Chair Dissanayake in Re Greater Sudbury Hydro Plus Inc., rand
C. U.P.E., Local 4705 (Armstrong) 2003, 121 L.A.C. (4`h) 193] at par. 17: "To
include an issue through a `liberal reading' I must be able to conclude that the
employer reasonably should have understood upon reading the grievance that the
issue in question was part of the grievance."
In this case, neither the grievance itself — nor any discussions or the particulars — provide
any basis to construe the grievance to include a health and safety issue, or would have put
the employer on notice that the grievance included such a claim
The Union further cites to two cases in which an allegation of harassment —
outside of harassment based on a prohibited ground under the Human Rights Code — was
found to be arbitrable based on an implied restriction on the exercise of a management
right to act for legitimate business reasons. In Re City of Toronto and C. U.P.E., Local 43
(1991), 19 L.A.C. (4th) 412 (E. Davis), at par. 29, the arbitrator concluded that "[b]y
making the complaint of harassment the grievor is alleging that the complained of actions
of the employer were not for the bona fide furtherance of a legitimate business interest
but for the purpose of embarrassing and annoying the grievor" which, in his view, was "a
difference between the parties relating to the administration of this agreement" and
"within the authority of this tribunal to determine." This decision was followed in Re City
of Toronto and C U.P.E., Local 79 (Stockley Grievance)[1999] 4.L.A.A. No. 446
(Starkman).
With respect, although I agree that management must act for bona f de business
reasons in respect to matters within its discretion under a collective agreement, there still
must be a link (or hook) to rights under the collective agreement. The passage quoted
24
from Arbitrator Burkett in Re East General Hospital and Service Employees' Union,
Local 204 (1984), 13 L.A.C. (3d) 400, at pp. 410 -411, quoting from an earlier decision of
his in Re United Parcel Service Canada Ltd. and Teamsters Union, Local 141 (1981), 29
L.A.C. (2d) 202, at p. 213, to support the arbitrator's conclusion refers to discretion
exercised under a collective agreement. The passage, in highlighted part, states as
follows:
When the parties agree that such matters as classification, qualification, demotion,
transfers and the scheduling of vacations are to be in the discretion of management
they do so in the knowledge that management's decision- making in these areas will
be made in management's self-interest, may adversely affect individual employees,
and/or may not impact on all employees equally. However, it is not contemplated as
part of the bargain that the employer will exercise his authority in these areas for
reasons unrelated to the betterment of his business or to single out employees for
the type of special treatment described.
With respect, the quoted passage and cases cited do not support an implied
restriction on management's discretion in regard to matters outside of the collective
agreement, or which do not impact employee rights under a collective agreement. All the
matters referred to in the quoted passage pertain to areas where the parties agreed that
management would have discretion — classification, qualification, demotion, transfers and
the scheduling of vacations. There is a direct link to the collective agreement. It is a
significant leap to find from that an implied limitation on management's discretion
generally, and to find that it constitutes a "difference between the parties relating to the
administration of this [collective] agreement..."
In Re Canadian Blood Services and OPSEU (Bianco Grievance)[201 1] O.L.A.A.
No. 632 (Abramsky) at par. 37, I agreed with Arbitrator Bendel's determination in Re
25
Blue Line Taxi Co and T. W.D.S. U, Ontario Taxi Union, Local 1688 (1992), 28 L.A.C.
(4r €z) 280, at par. 24 -25:
First, if a provision of the collective agreement expressly confers a discretion on the
employer, an arbitrator could conclude that it was intended that the discretion be
exercised fairly or reasonably. Secondly, it has been held that en employer is
implicitly precluded from acting unreasonably (in areas not expressly regulated by
the collective agreement) if that might lead to specific provisions of the agreement
being negated or undermined. [citations omitted].
As I understand the law, therefore, the employer will only be answerable for the
exercise of a management discretion if a link to the collective agreement can be
established. Such a link might be found to exist if (a) the collective agreement
expressly confers or recognizes a management discretion, or (b) the exercise of the
management discretion might lead to specific provisions of the agreement being
negated or undennined.
In my view, this is the current state of arbitral law.
This ruling does not mean that harassment, generally, apart from a violation of the
Human Rights Code can never be grieved. It only means that the Griever, here, did not
assert such a claim until the hearing. To allow this grievance to proceed on that basis
would be an improper expansion of the claim.
Conclusion
For the reasons set out above, l conclude that the Grievor failed to assert sufficient
facts, which if accepted as true, would establish a violation of the Code. He may have
been the victim of mistreatment and harassment by Ms. Porter, but he has not alleged
sufficient facts to establish, if true, that it was because of his "family status ", or because
of his "association" with Ms. Henderson. As the Tribunal concluded in Re Dabic, supra
at par. 9
26
The Tribunal has stated on many occasion that it does not have a general power to
deal with allegations of unfairness... Discrimination generally involves an
allegation of unfair treatment on the basis of one or more of the grounds under the
Code, such as disability or family status. Unfair treatment is not discriminatory in
the legal sense unless there is proof that one of more of these personal
characteristics was a factor in the treatment the applicant experienced. ...
The facts presented here, even if accepted as true, do not establish the necessary causal
link to establish a violation of the Code. The facts fail to establish a prima facie violation
of the Code.
Further, neither the grievance, nor the particulars, alleged that the Grievor was a
victim of harassment apart from his association with Ms. Henderson. There was no
allegation that the Employer violated Article 29 of the collective agreement, Safety &
Health & Employment Conditions or Part III of the Ontario Occupational Health and
Safety Act. The "Respect in the Workplace" policy is not independently arbitrable.
Consequently, the Employer's motion to dismiss the grievance is granted. The
grievance is dismissed.
Issued this 7th day of October 2013.
/s/ Randi H. Abramsky
Randi H. Abramsky, Arbitrator
27