HomeMy WebLinkAbout1989-0755.Fabro.91-06-07 ONTAF/IO EMPLOYES DE LA COURONNE
CF/OWN EMPLOYEES DE L'ONTAF/IO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
XNTHE IO, TTER OFANARBXTI~TZON
Under
T~B CROMN EMPLOYEES CO~X~ ~GAZN~NG ~CT
Before
~ GRI~CE 9ETT~~ BO~
BETWEEN
OPSEU (Fabro)
Grievor
- a~ -
The Crown in Right of Ontario
(Ministry of Industry, Trade & Technology)
Employer
BEFORe: J. Roberts Vice-Chairperson
E. Seymour Member
G. Milley Member
FOR THE A. Ryder
GRIEVOI~ Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE P. Rusak
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HE~LRING December 13, 1989
May 11, 1990
October 18, 1990
November 6, 8, 13, 15, 20, 1990
April 26, 1991
May 8, 13, 14, 1991
June 7, 1991
1
INTERIM AWARD
This is another in a series of interim awards in a lengthy and
complex proceeding. On June 7, 1991, we heard submissions from the
parties upon the question whether we ought to grant an adjournment
of the hearing days which had been scheduled for June 7, 19 and 18,
1991, and if so, whether the adjournment should be on terms. After
considering these submissions, we issued an order ~Exhibit A,
attached) granting the adjournment on terms. We also agreed to
issue written reasons for our order in an Interim Award.
The relevant facts may be briefly stated. Over a considerable
period of time, the grievor filed a large number of grievances.
The gist of many of them was that the grievor was being harassed by
management. Several of these grievances were assigned to this
panel, and we began dealing with them on December 13, 1989.
The grievor's perception that he was being subjected to
harassment seemed to cause him considerable stress and his mental
health began to deteriorate. He went off work -- apparently due to
these health problems -- from December 5, 1988 to May 23, 1989;
September 19, 1989 to March 5, 1990; and July 24, 1990 to August
10, 1990, when he was discharged.
2
On November 15, 1990, the grievor's psychiatrist, Dr. C. V.
Murray, ~estified that.he first saw the grievor as a patient in
1985. A~ that time, he found the grievor in excellent mental
health.
However, through several visits beginning in November, 1988,
Dr. Murray testified, he found the grievor to be very different.
Referring to a letter which he wrote to the grievor's counsel on
November 6, 1989, Dr. Murray stated that the grievor was "obviously
severely and chronically depressed, profoundly anxious about the
manner in which he was being treated by his superiors at work, and
he impressed me as being physically and emotionally exhausted."
Dr. Murray stated that the deterioration in the grievor was
reflected in his physical appearance and demeanour. He had lost
considerable weight, his concentration was poor, he was listless
and spoke very slowly. His condition, Dr.'MUrray said, was akin to
"battle fatigue."
As our hearing began to stretch over several months, with the
inevitable delays inherent in finding mutually convenient dates for
the parties and the panel, the Board noted a similar deterioration
in the condition of the grievor. He progressively lost
considerable weight and appeared more and more distracted and
listless in his demeanour.
3
On November 20, 1990, Mr. John Quigley, the grievor's
Supervisor and the main witness for the Ministry, began to testi~¥
on direct examination. He was scheduled to continue his testimony
on April 26, 1991~ however, he did not appear.
It seems that in the intervening period, Mr. Quigley had
su£fered serious heart problems. Apparently, he was hospitalized
up to the a~ternoon before April 26th. He was scheduled to return
to the hospital in late May and undergo open heart surgery on June
2, 1991.
Apparently, counsel for the Ministry was unaware that Mr.
Quigley had been released trom the hospital the day before the
hearing. She was Under the impression that he remained ~n the
hospital on April 2$th and UPon her making that representation to
the panel as the reason for Mr. Quigley's absence, we granted an
adjournment. In actual fact, Mr. Quigley spent some time in his
office on April 26th.
The next scheduled day of hearing was Hay 8, 1991. Mr.
Quigley showed up to continue his testimony~ however, prior to his
taking the stand, counsel for the Ministry entered into evidence
the following letter regarding Mr. Quigley's precarious state of
health:
To Whom It May Concern:
I am a cardiologist on staff at the Oakville-Trafalgar
Memorial Hospital. I saw Mr. John Quigley in consultation on
April 24, 1991 with regard to the onset of new symptoms. I'
contacted Dr. Gunstensen, Mr. Quigley's cardiovascular
surgeon, to discuss these symptoms. Dr. Gunstensen and I
decided that Mr. Quigley required further cardiac
investigations prior to his proposed surgery in early June.
Dr. Gunstensen has arranged to have Mr. Quigley admitted to
hospitalT in Hamilton at the end of May £or these
investigations,-and he is to remain in hospital under the
surgery on June 2nd.
As Mr. Quigley's symptoms are potentially secondary to
serious cardiac disease, I have advised him to limit' his
exertion and exposure .to stress and strain until the etiology
of his symptoms are determined by the cardiac investigations.
He is capable of judging when he has reached the limit of his
endurance and must stop to rest when he has done so. I
understand that he is to testify on May 8th; if he becomes
mentally or PhFsically exhausted during the day he should be
allowed to stop at that point.
If his surgery in early June. is uncomplicated, he should
be fit and capable to testify again two months later.
Please let me know if you require any further
information.
Sincerely,
(signed) Mary Feneck, M.D., F.R.C.P. {C)
Dr. Feneck was concerne~ that the stress of testifying might
exhaust Mr~ Quigley to the point where, for the sake o£ his health,
he would have to stop.
Our ow~ observations of Mr. Quigley indicated to us that there
was, indeed, cause for concern. He was very pale and frail
appearance. We advised him that we understood the caution issuE~d
by his Dcotor and would stop the hearing if he felt u~able to
continue.
Nevertheless, Mr. Quigley completed his direct testimony on
May 8th. Counsel for the grievor then submitted that in view of
the probabilitF that Mr. Quigley would not be available for several
months after his open heart surgery, the Board should expedite
matters By scheduling two hearing days for cross-examination before
Mr. Quigley re-entered the hospital in late May.
We agreed. We scheduled Mr. Quigley's cross-examination for
the evening oX May 13 and the.day of May 14.
However, Mr. Quigley did not show up on May 13th. Before the
scheduled commencement of the hearing, he "faxed"' to the Grievance
Settlement Board the following letter:
6
May 13, 1991
¥IA ~ACS~LE
Grievance Settlement 8oard
180 Dundas Street West
Suite 2100
Toronto, Ontario
M~G lZ8
ATTENTION: Mr. Roberts
Dear Sir:
Re: OPSEU (Fabro) and O.D.C.
This is to express my feelings regarding the scheduling of my
· cross-examination by union counsel on the evenings of May 13th
and 14th.
Although I was very tired after the examination-in-chief last
week, I did not find it alone stressful. However, the
interruptions by union counsel did affect me to the point
where I was feeling the type of discomfort which my physician
had advised me to avoid.
Since I believe cross-exam~nation would involve more incidents
of this type, based on my doctor's advice I do not wish to put
myself in a position where my health is at risk.
In the past my medical problems have never affected my ability
to function normally. However, the recent complications have
resulted in considerable anxiety and I would pre,er that the
cross-examination be postponed until after my surgery.
Yours truly,
(s~gned) John Quigley
Manager
Mr. Qui~le¥ indicated'that he was declining to appear for cross-
examination because he feared that it would cause the kind of
stress Chat would put his health at risk.
7
Counsel for the Ministry requested an adjournment for both May
13th and 14th. Counsel £or the grievor resisted this request, and
we heard submissions from both of them. Thereafter, we granted an
adjournment for May 13th, but conditioned the granting of an
adjournment for May 14th upon receipt of confirmation from Mr.
Quigley's cardiologist that his medical condition made it
inadvisable for him even to appear at the hearing.
Subsequently, on May 14th, the panel was made aware of the
contents of the following letter from DE. Feneck:
May 14, 1991
Mathew, Dinsdale & Clark
401 Bay Street
Simpson Tower, St. #2600
Toronto, Ontario
ATTENTION: Ms. Paula Rusak
R~: Jo~n Oui~leF
To Whom It May Concern:
During testimony on May 8, 1991, Mr. Qui~ley became
s~mptomatic on a few occasions secondary to the strain. There
is a very good probability that these symptoms would re-occur
upon further testimony. As these symptoms are potentially
threatening to his cardiac .condition I have advised Mr.
Quigley to avoid provoking them by avoiding testimony until
his cardiac disease has been defined by the investigations
scheduled for the end of the month.
Sincerely,
[signed) Mary Feneck, M.D., F.R.C.P. (C}62
Based upon this, we granted the adjournment for May 14th.
We also received the following update £rom Dr. Murray
regarding the state o~ the grievor's health:
May 21, 1991
Mr. Alick Ryder, Q.C.,
Ryder, Whitaker, Wright & Chapman,
30 St. Patrick Street, Suite 600,
TORONTO, Ontario,
MST 3A3.
Dear Mr. Ryder:
Re: Grag FABRO
I u~derstand from Mr. Fabro that y~u would like an up-to-date
report from me about his condition. I saw him again last week
for a one-hour interview.
Needless to say, I find. that his condition has generally
deteriorated even more. It is obvious that he has lost even
more weight, and as before, h~ appears exhausted, although at
all times, pleasant-mannered and considerate. You must be
aware by now that he is not a man who is Drone to complain a
good deal, 'even under the most gross and prolonged
provocation. His depressionis very obvious which is scarcely
surprising, in view of the fact that he receives no financial
benefits, and has been reduced to living on his savings while
the court proceedings drag on.
- I need hardly tell you that I am gravely concerned about his
condition, and the probability that if circumstances do not
change, he will become the victim of either a severe emotional
breakdown or will encounter a grave and ~atal cardiological
emergency, such as a coronary occlusion or a stroke. In my
opinion, it is o~ the utmost urgency that the legal
proceedings be concluded without delay, before it is too late.
Yours very truly,
(signed) C. V. Murray, M.D., F.R.C.P.(C),
Consultant Psychiatrist.
9
These events essentially were confirmed in an interim award
issued on May 23, 1991. We also indicated in that interim award
that we declined to issue any order with respect to the hearing
days scheduled for June 7, 19 & 28, 1991, and intended to convene
on June 7th to hear any evidence which could practicably be heard.
In the event that this was not practicable, we stated, we would
"entertain a motion to adjourn until Mr. Quigley is declared by his
Cardiologist to be fit to testify and hear submissions as to what
ter~s, if any, should condition the adjournment."
At the co.-.encement of the hearing on June 7, both counsel
indicated that they wished to make submissions upon the motion to
adjourn. Counsel for the .grievor did not resist the motion to
adjourn, but asserted that the motion must be granted upon terms
which included some monetary compensation to the grievor over the
period of delay caused by Mr. Quigle~'s absence.
Counsel-for the Ministry, on the other hand, submitted that
this Board lacked jurisdiction to include as one of the terms of an
order granting an adjournment the monetary compensation requested
by counsel for the grievor. Essentially, it was submitted, that
would amount to an award of damages which was beyond our statutory
mandate.
10
We concluded that the Grievance Settlement Board had the power
to grant an adjournment upon terms and include as one of those
terms an order directing compensation to the innocent party
adversely affected by the delay. As was stated by Osler J. in the
Endorsement of the Divisional Court in the Judicial Review of Re:
Taffinder and Ministry of Correctional Services, G.S.B. 8296/83;
docket ~891/83 (1984), "We agree that the Board is master of its
own procedure in its discretion in this procedural matter is not
li~el¥ to be interfered with. I__~. at pp. 2-3. The court went on
to state that in deciding upon an adjournment, the Board solely was
subject to the following two constraints: (1) a decision to refuse
an adjournment must not amount to a denial of natural justice; and,
(2} the terms attached to an adjourmaent must be fair and
reasonable in all the circumstances.
Subject to the foregoing constraints, the Grievance Settlement
Board has jurisdiction to require as one o~ the terms upon which an
adjournment is issued the payment of compensation to the innocent
party. If authority is needed for this proposition, we need only
re£er to the previous 'decisions of the Board in Re Sinah and
Ministry of Transportation (1990} G.S.B. ~100/90 (Brandt};
MacMillan and Ministry of Correctional Services (1988),
157/88, at p. 7 (Brandt); Re MorleF and ~inistry of Tourism
Recreation (1989), G.S>B. ~886/88 (K~opf); and, Re Miller
Ministry of C°rrectional Services (1990), G.S.B. ~008/90 (Verity}.
1I
In making this observation, we emphasize that here, we are
dealing, with a request for compensation and not a request for
damages. We understand that we must carefully craft our award of
compensation to avoid crossing the line between the two. We had
this in mind when we turned our attention to the question of
whether the grievor in this case ought to be granted compensation
as a term of the 'adjournment occasioned by the unavailability of
Mr. Quigley.
We found that this was such a case. It was an exceptional
case, in that both Mr. Quigley and the grie~or suffered from
serious illnesses. If the hearing were to press on without delay,
Mr. Quigley's health would be seriously compromised. At the same
time, the grievor's illness was such that further delay carried
with it a serious risk of harm to him.
Accordingly, we concluded that in the circumstances it was
fair and reasonable to re,ire the Ministry to compensate the
grievor. We took into account the following factors:
(a) the delay was caused by the unavailability of Mr.
Quigley, a key Ministry witnesses:
(b) On the evidence, we were convinced that the stress oX
delay unalleviated by compensation would likely occasion
a serious risk of deterioration in the grievor's health;
(c) In line with this, we noted that this was a discharge
12
case and the grievor, as a result, appeared to be without
a continuing source of income.
As to the level of compensation, it seemed to the Board that
the grie~or should be paid sums equivalent to those he would have
received on long-term disability. The grievor was unquestionable
ill and it was the view of the Board that if he had not been
terminated by the Ministry he likely woul~ have been in receipt of
payments under the Ministry's long-term disability plan.
As to retroactivity, counsel for the grievor submitted that
the payments should be retroactive to April 26, 1991. This was the
day when Mr. Quigley was scheduled to begin his testimony but he
did not appear at the hearing, having just been released from the
Hospital on the previous afternoon. As already indicated in this
award, Ministry counsel ~btained an adjournment on April 26th upon
a representation that the grievor remained hospitalized.
Counsel for the grievor submitted that Mr. Quigley was at
fault for not showin~ up for the hearing and there were suggestions
that he might have been in Dad faith. In this regard, it was
stressed that Mr. Quigley had been seen in his office on that day.
Based upon this, counsel submitted that Mr. Quigle¥ could have
appeared at the hearing and chose not to. Because we lost one da~
of hearing as a result of these actions by Mr. Quigley, it was
submitted, it was fair and reasonable to make the compensation t°
1.3
the grievor retroactive to that date.
We declined to do so. It was the opinion of the Board that
while there was some miscommunication between Mr. Quigley and
counsel ~or the Ministry, it was more than probable that Mr.
Quigley would not have been up to testifying on April 26th. He had
just been released from the hospital after suffering serious
cardiac problems. Moreover, when Mr. Quigley did finally commence
his testimony on May 8, some 12 days later, he was obviously was in
a precarious state of health and had t6 testify under a doctor's
caution. This was not the picture of a man who would have been
available to testify in any real sense on April 26.
We discounted the fact that Mr, Quigley went to his o~fice on
that day. In our view, the stress of sitting in an office chair
could not reasonably be compared with the much higher level of
stress is felt by most witnesses when called upon to testify.
We decided to make the compensation to the grievor retroactive
up to and including May 13, 1991. That was the beginning of the
period when Mr. Quigley became consistently unavailable due to his
illness. It marked the commencement of the period of delay caused
by his unavailability. Ir'was our view that compensation should be
payable to the grievor until the next day o~ hearing, when Mr.
Quigley would resume the stand and testify upon cross-examination.
14
Finally, we dealt with the matter of recoverability of the
compensation payments. The Board was mindful of the fact that we
were not dealing with the question of damages but rather placing a
term on the granting o£ an adjournment, in the interests of reason'
and fairness. Our purpose was not to provide the grievor wit~ a
windfall. Accordingly, we provided in our order that should the
grievor ultimately be unsuccessful in challenging his discharge,
the sums paid b~ the Ministr~ under our order should be recoverable
by the Ministry, although without interest.
DATED at London, Ontario, this 31st day of July
R. '~J , Vice-Chairperson
E. Se Member
~F~_our,
ONTA RIO EMPL 0 Y~S DE LA COUP~ONNE
CROWN EMPL 0 YEES DE L 'ON TA RIO
GRIEVANCE C,OMMISSION DE '
S~Fi'LEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNDA$ fJTREET WEST, SLI;TE 2100, TORONTO, ONTARJID. MSG 1Z8' TELEI~HONE /TE~.EPHONE: (4 ~6) 326-138~
180, RUE ~NQAS OuEST, BUREAU 2~, T~ONTO (ONTARIO. MSG 1Z8 FAC~I~LE~TE~COPIE : (4~6) 3~-~3~
~IBIT 'A" ~
- %
755/89, 757/89
A. Ryder
Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solictors
FOR TH~ P. Rusak
EMPT~YmR Counsel
_ Mathews, Dinsdale & Clark
Barristers & Solicitors
May 1, 1990
September 5, 1990
December 11, 20, 1990
Having considered the submissions of the parties on the
matter of adjournment, the Board issues the following order to be
followed by written reasons in an Interim Award:
(1) JuvJ. sd,tc~,~on:
The Board controls its own procedure, and pursuant to that
power, we can grant adjournments on terms.
The only constraints upon our power to deny an adjournment
or grant one on terms were identified by the Divisional Court in
~ T*~fen~er GSB #296/83. The decision to refuse an adjournment
musk not a~ount to a de~al of natural justice. The terms
attached to an adjournment must be fair and reasonable in all the.
circumstances.
When called upon to g~ant an adjournmen=, we have =he
power to grant compensation~'indeed,~ deny compensation subject
to the foregoing principles. ~
(2) ~hou]d ~he Gr4evo~ here he ~r~Dted co~eDsa~4on a~ a term
of th~ '~jo~ment ogc~s{one~ ~¥ the ~navai~ab~l.~tv o~ a key
w~tnes~ ~or ~he ~.~n~,t~y. M~ Ou~a~ev?
-We bear in mind ~ha2 this is an exceptional case,
involving ~he risks inherent in serious illnesses in both the
grievor and the ke~ witness for the Ministry.
In the circumstances, ' we conclude that it is fair and
reasonable to require the Ministry to compensate the Grievor, for
the following reasons:
(A) The delay is caused by unavailability of a Ministry
witness~
(B) In addition to the letters regarding the state of
the grievor's health, our own observations of the grievor~w~
combined with the cross-examined testimony of Dr. Murray
re the grievor's sy~ptomology convince us that the stress
of delay unallevia~ed by compensa~ion will likely occasion
serious risk of deterioration in the Grievor's health;
(C) In line with this, we note this is a discharge case
and the Grievor, as a result, appears to be without a
continuing source of income:
(3) T~ve.! Of CgmPen-at~on
Compensation should comprise payment to the Grievor of
sums equivalent to LTD, or, if possible, placement on LTD. In
regard to the latter we note that a discharge is not final until
all proceedings on the discharge grievance are at an end.
(4) Ret~oact ~v~ ty
The compensation to the Grievor should be retroactive to,
and include, May 13, 1991.
- (5) Te~ of ComDens*t4on
Compensation shall be payable until the next day of
hearing, which is when Mr. Quigley will testify.
(6) T4m{nq of Payments
Due to the circumstances, it is ~ecessary to pay. the
amounts owing under this order without delay. The Ministry has
indicated that a cheque for the retroactive payment can be issued
within 10 days, and we so order. Thereafter, payments to the
Grievor must be made according to the standard practice of the '
Ministry with respect to the frequency of issuance of pay cheques
to its own employees.
t
(7) Recove~h41 { tv
We are mindful that here, we are not dealing with a
question of damages, but rather placing a term on the granting of
an adjournment in the interests of reason and fairness. Our
purpose is not to provide the Grievor with a windfall. Should the
Grievor ultimately be unsuccessful in challenging his discharge,
the sums paid by the Ministry · shall 'be recoverable by the
Ministry, although without interest.
( 8 ) Ad ~ o- vn~nt
Subject to . the forgoing terms, the adJournment is
gran=ed ·
da..~, of June, 199
~. R~e~.~, Vice-Chairperson
E. Se~our, Me, er
ADDENDUM
I agree with the decision in all but two aspects.
1. I would have granted the payment of compensation to Mr. Fabro
retroactive to April 26, ~he first day the Ministry's witness
failed to appear before this panel.
2. I would have ruled ~hat the payment of ~/~e compensation
granted by this panel not be subject to recovery. Since the delay
in proceedings is caused solely by the unavaila~ility of a key
Ministry witness, the grievor should not be required to bear any
financial =esponsibil£~¥ for that delay.
?
Ed Seymour-Member