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HomeMy WebLinkAbout2014-5067.Grievor.16-05-18 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#2014-5067 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor) Association - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Gail Misra Vice-Chair FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS March 21, April 4, April 15, April 21, 2016 - 2 - Decision [1] On August 11, 2015 the parties reached a mediated settlement in respect of a dispute filed on behalf of a complainant (the “Complainant”). In March 2016 the Association wrote to the Grievance Settlement Board (“GSB”) alleging that the Employer had breached the confidentiality clause of the settlement, and the Association and Complainant were therefore seeking relief. In particular, the Association is seeking expedited relief as it alleges that the breach is causing the Complainant considerable and on-going harm. By way of interim remedy, the Association seeks an order that the Employer remove a decision which refers to the Complainant from the Employer’s website. [2] The original dispute included a challenge to the Complainant’s termination from employment at the Office of the Independent Police Review Director (“OIPRD”), an allegation of a poisoned work environment, as well as the Employer’s alleged breach of the collective agreement and the WDHP prior to the Complainant’s dismissal from employment. [3] At para. 1 of the Memorandum of Settlement reached on August 11, 2015, the Employer agreed “to rescind the letter of termination dated November 13, 2014”, and the Complainant agreed to resign from employment effective that date. Pursuant to para. 7 of the settlement, the Employer agreed to provide the Complainant with a letter of employment, and inquiries from prospective employers were to be responded to in a manner consistent with the letter of employment. That letter indicated that the Complainant had left employment with the OIPRD to pursue other opportunities. [4] At para. 12 of the settlement the parties agreed as follows: The Parties agree that the terms of this Memorandum of Settlement shall be kept confidential and that the contents will not be disclosed to any person, including but not limited to current and former employees, except for [the Complainant’s] immediate family, legal or professional financial advisors, and as required to implement the terms of this agreement and as required by law. [5] The parties also agreed that I would remain seized to deal with any issues relating to the interpretation or implementation of the terms of the settlement (at para. 14). [6] According to the Association, the Complainant has been applying for jobs since the settlement was reached, but has not been successful in finding work. Apparently recently the Complainant went through four rounds of interviews for a job, and was advised that the Complainant was one of two finalists. However, it is alleged that the Complainant was subsequently advised that the prospective employer had, through an internet search, learned that the Complainant had been dismissed from employment. As such, the prospective employer was apparently of the view that the Complainant had lied, and would not therefore be considered further for the position in question. - 3 - [7] The Association alleges that there is a decision of the OIPRD, the Complainant’s former employer, on the internet. That decision issued a number of months after the settlement was reached. Reference is made in the decision to evidence given by the Complainant prior to the settlement of the dispute at the GSB. In that earlier proceeding, the Complainant had testified to having been dismissed by the OIPRD for deceit. The Association notes that while some aspects of the decision were redacted prior to being posted on the internet, the Employer failed to redact references to the Complainant’s name, thereby breaching the terms of the settlement. [8] The Association had requested that the Employer remove the decision from the internet, and remove all references to the Complainant if it reposts the decision in question again. As a result of the Employer’s refusal to do so, the Association posits that the Complainant continues to suffer harm. In its initial submission the Association was seeking to have the GSB address the issue of removal of the decision from the internet on an interim basis pending a hearing. However, in its final submission it indicated it was seeking a declaration that the Employer had violated the Memorandum of Settlement; a declaration that the settlement was null and void, and that the dispute dated December 23, 2014 could proceed; full compensation for the Complainant for all losses arising out of the Employer’s breach of the settlement and its duty of good faith; and damages for the Employer’s breach of its duty to act honestly in the performance of its contractual obligations. [9] The Employer denies any breach of the terms of the settlement; indicates it is bound by statute to post decisions of the type in question; notes that the Complainant was aware that evidence had been given in a proceeding and that a decision had not yet issued at the time the Complainant and the Association entered into the settlement, yet no issue was raised in August 2015 in this regard, and thus it was not addressed by the parties to the settlement. In any event, the Employer argues that the GSB has no authority to direct the OIPRD to contravene its enabling statute. [10] There appears to be no dispute that the OIPRD is an arms-length body of the Ministry of the Attorney General that is responsible for receiving, managing and overseeing all public complaints about the police in Ontario. The head of the OIPRD is the Independent Police Review Director (the “Director”). [11] The Police Services Act (“PSA”) requires the OIPRD to screen every complaint about police it receives (s. 59), and if a complaint is screened “in”, it must be investigated (s. 61). The Director may refer the complaint to a police service for investigation, or may decide to retain the investigation of the complaint within the OIPRD (s. 61(5)). Investigation reports, including those prepared by the OIPRD, are required to include an analysis and conclusion of whether there are reasonable grounds to substantiate misconduct under the PSA (s. 66(1) to (3); s. 67(1), and s. 68(1) to (4)). [12] Where reasonable grounds exist, as found by either a police service or the OIPRD, the chief of police is required to hold a hearing (s. 66(3); s. 68(3) to (5)). The OIPRD does not manage discipline or disciplinary hearings held by the police services: those disciplinary hearings are conducted by hearing officers appointed by chiefs of police (s. 94), and the OIPRD is not a party to such hearings (s. 83(3)). - 4 - [13] Disciplinary hearings are open to the public unless the hearing officer rules that the matter fits within one of the exceptions outlined in s. 9 of the Statutory Powers Procedure Act. The hearing officer may issue a publication ban, but that authority is apparently typically exercised in exceptional circumstances where social policy or the law requires (e.g. in cases of youth, sexual offence victims, confidential informants, on- going police investigations). [14] The PSA provides for recording of oral evidence given at a hearing, and for copies of the transcripts to be provided on the same terms as in the Superior Court of Justice. [15] The PSA mandates that hearing decisions be made publically available. Individual chiefs of police are required to make a hearing decision available to the public in the manner that they consider appropriate in the circumstances, and to give a copy of every decision to the Director (s. 86(1)). The Director is also required to publish the decision by posting it on the internet upon receiving a copy from a chief of police (s. 86(3)). Section 86(3) states: “On receiving a copy of a decision from the chief of police or board, the Independent Police Review Director shall publish the decision by posting it on the Internet.” [16] The Complainant testified in a hearing held pursuant to Part V of the Police Services Act regarding two police officers of the York Regional Police. The Complainant testified at the hearing on two dates, in January and March 2015. A Hearing Officer, who was a Superintendent of the York Regional Police, adjudicated the matter. The Complainant was summoned to testify at the disciplinary hearing by counsel for the respondent police officers, and the OIPRD apparently notified AMAPCEO of the summons. The OIPRD also provided the Complainant with independent legal counsel, from the same law firm as is currently representing AMAPCEO in this proceeding. That counsel was present with the Complainant at the hearing on the two dates that the Complainant testified. According to the Employer, the Complainant’s counsel at the disciplinary hearing did not seek standing nor ask the Hearing Officer for a publication ban on the Complainant’s evidence. [17] The Hearing Officer’s decision issued several months later. The version of the decision provided to me was apparently from the OIPRD website, and has an address blacked out; initials are used for the names of civilians involved in the complaint; and a house number is blacked out. It seems that the use of initials was in the original decision, but the address information was specifically blacked out at some later point. [18] In the decision, the Complainant’s evidence was outlined and particular reference was made to length of employment, the dismissal for deceit and other issues, and the reasons for the alleged deceit and other issues that had formed the basis for the termination of employment. The decision noted that the cause for the dismissal was being contested, that the Complainant had counsel assisting with the grievance, and that counsel had attended the hearing but did not have standing in that proceeding. [19] According to the Employer it was pursuant to its obligation under s. 86(3) of the PSA that the OIPRD, once it received it, had to post the hearing decision at issue in this - 5 - case. The Employer argues that the GSB would have no authority to direct the York Regional Police to redact information from the Hearing Officer’s decision, nor should it require the OIPRD to do so. [20] The Employer notes that the police officers have filed an appeal and advises that appeal decisions are available to the public on the Canadian Legal Information Institute (“CanLII”) website. [21] The Employer submits that the public interest in police discipline and the policing community requires the OIPRD to maintain a complete record of all disciplinary decisions. It argues there was nothing in the settlement that required it to expunge the Complainant’s personnel file, nor any provision that the Hearing Officer’s decision be redacted to remove any reference to the Complainant. [22] It states that the confidentiality clause in the settlement required the parties to keep confidential the terms of the Memorandum of Settlement, except in limited circumstances, including as required by law. The Employer suggests that the terms of the settlement cannot apply retroactively to when the Complainant gave evidence at the police proceeding, especially as the Complainant knew that the decision in that matter had not issued by the point at which the parties were negotiating the settlement, but neither the Complainant nor the Association raised it as a concern at that juncture. [23] According to the Employer, in any event, the information that the Association claims to be subject to the confidentiality clause was already in the public domain by virtue of the public hearing at which the Complainant testified, and where no publication ban was sought at the time. Secondly, it asserts that the transcripts of the hearing are required by the PSA to be made available pursuant to section 83(10). Thirdly, it remains open to the particular police service to post the decision on its own website should it wish to do so. Finally, since the hearing decision has been appealed, the appellate decision will be made publically available on CanLII. As such, the Employer argues it cannot be that the confidentiality clause in the settlement was intended by the parties to require the Employer to control all these sources of information, or to redact the Hearing Officer’s decision. [24] Even if the decision is subject to the confidentiality clause, the Employer argues that it is governed by the exception “as required by law” as the OIPRD is specifically required under s. 86(3) of the PSA to post the decision upon receipt from a chief of police. It argues there is no discretion that would permit the OIPRD to redact or amend the decision prior to posting it on the internet, and notes that while a chief of police has the discretion to post or not post any hearing decision, the Director does not have that discretion. As such, the Employer argues that the GSB has no jurisdiction to order the OIPRD to redact the decision of a third party, in this instance, the York Regional Police, and to act contrary to the OIPRD’s statutory responsibility. [25] Finally, the Employer argues that an order requiring redaction of the Complainant’s name from the decision would be inconsistent with the obligation of the OIPRD to maintain transparency of the police public complaints process, as required by section 86 of the PSA. It notes that the decision reflects poorly on the OIPRD, because - 6 - the actions of the Complainant become the actions of the employer. As such, any attempt by the OIPRD to redact the Complainant’s name from the decision would be viewed by the policing community, and the public, as an attempt to tamper with the integrity of the decision in an effort to shield an employee of the agency from public embarrassment. [26] The Association’s main concern is that as a result of the posting of the decision, the Complainant has essentially lost important aspects of the bargain reached in the Memorandum of Settlement: the conversion of the dismissal into a resignation, and a chance to start afresh, with a letter of employment indicating that the Complainant had left of their own accord. Both the “terms” and the “contents” of the settlement were to be kept confidential. However, as a result of the posting of the decision on the internet, the Complainant cannot take advantage of the conversion of the termination from employment into a resignation without running the risk, as occurred recently, of being accused of lying about their situation. There is now information in the public sphere that the Complainant was dismissed, the reasons for that dismissal, and that the Complainant was challenging the termination. Having the letter of employment to offer, in those circumstances, makes it obvious that a settlement was reached pursuant to which the dismissal was converted into a resignation. As such, the Association argues that the Employer has breached the confidentiality clause by posting the hearing decision on the internet. [27] In addition, the Association argues that since the termination was converted into a resignation in para. 1 of the settlement, by posting the decision on line, the Employer has negated that provision. Similarly, para. 7 of the settlement required the Employer to provide the Complainant with a letter of employment, indicating that the Complainant had left the OIPRD voluntarily, and to give the Complainant references consistent with the letter of employment. However, as a result of the posting of the decision, those provisions have been rendered meaningless. It notes that the intent of those provisions was to guard against the prejudice that the Complainant would suffer as a result of the termination, but which the Complainant is now allegedly suffering as a result of the posting of the decision. [28] The Association challenges the Employer’s suggestion that the Complainant and AMAPCEO should have raised concerns about the posting of the OIPRD decision during settlement negotiations: Rather, it states, the Employer is the party which knew what decisions generally contain, and it knew that it had an obligation to post hearing decisions. These were not matters that the Complainant or AMAPCEO knew about. Therefore when the OIPRD posted the decision after having concluded the settlement, it is alleged that it did so in violation of the terms of the settlement. AMAPCEO argues that it is irrelevant whether the information may be in the public domain through other sources, as it is only the Employer that the Association is arguing has breached the settlement it had reached. [29] The Association challenges the Employer position that the Director must post the hearing decision on line with the Complainant’s name in it. It notes that the OIPRD redacted some information from the decision in this particular instance, but chose not to redact the Complainant’s name. It also points to a sampling of other decisions in which - 7 - the OIPRD has redacted names or other identifying information: in one instance it redacted the name of a school, and the name of a complainant who had not sought a publication ban, but had died after the hearing; in others, it redacted all references to internal police investigations; in one, birth dates were redacted; in another, the name of a complainant whose identity was protected by the Youth Criminal Justice Act was redacted. Some of the decisions have cover notes made by the OIPRD explaining the redactions, others have no such notes despite having redactions. (I note that the decision in issue here does not have a cover note from the OIPRD explaining the redactions). [30] As noted earlier, in its’ reply submissions the Association sought by way of relief a declaration that the Employer has violated the settlement; a declaration that the settlement is null and void and that the dispute dated December 23, 2014 can proceed; full compensation for the Complainant for all losses arising out of the Employer’s breach of the settlement and its duty of good faith; and, damages for the Employer’s breach of its duty to act honestly in the performance of its contractual obligations. [31] The Employer made sur-reply submissions. It argues that the OIPRD does not have the power to substantively redact or otherwise amend a police disciplinary hearing decision before posting it on the OIPRD website, unless required by law (as in the Freedom of Information and the Protection of Privacy Act (“FIPPA”) or the Youth Criminal Justice Act (“YCJA”)). While the OIPRD has the power to establish procedures related to the functions of the office, it cannot create procedures that would contravene the legislation governing the functioning of the office. On this basis the Employer argues that it would be highly inappropriate for the OIPRD to make substantive changes to hearing decisions, except as mandated by statutes. [32] The Employer notes that the majority of hearing officers are not lawyers, and as such may not be familiar with privacy legislation, thus including information in decisions that should not be made public. It is that sort of information that the OIPRD seeks to redact before posting a decision on the internet. The Employer states that there are 70 decisions on the OIPRD website, and the Association could only point to six of those decisions to show redactions. According to the Employer each of those six decision redactions were carried out pursuant to the FIPPA, the YCJA, or because the redacted portion of the decision was outside the posting mandate of the OIPRD. [33] With respect to the decision in question, the Employer states that the issue addressed therein was regarding the complainant’s daughter, who at the time of the incident was under 18 years old. As such, she was protected by the YCJA, and any identifying information, such as her name, her parent’s name, and the address where the incident occurred, had to be dealt with in a manner that would prevent identification of the youth. The Employer states that the hearing officer had used initials for the parent and the daughter so that their identities were protected, but had included the address, which therefore had to be redacted before posting the decision on the internet. [34] For each of the OIPRD decisions with redactions that the Association relied upon, the Employer provided an explanation which suggested that it was a FIPPA or YCJA issue; the decision had contained information about internal complaints (which - 8 - are not within the OIPRD mandate to address public complaints as outlined in sections 66 and 68, see also s. 76 of the PSA); or, one decision addressed an issue that predated the inception of the OIPRD, and was therefore not within its posting mandate. [35] In one decision, regarding York Regional Police Service, Constable Wood, April 28, 2014, it appears that the OIPRD decided to redact a complainant’s name even though that complainant had not asked for his name to be anonymized. According to the Employer, it determined to redact the name, along with the name of a school, “in order to respect the identity of a deceased teacher named in the judgement”. It is not clear whether the complainant had died before the decision issued, or whether the OIPRD is claiming that a teacher who had committed suicide’s name was in the decision. I cannot see any reference in the decision to the name of the person who had committed suicide, but in any event, it is not at all clear why that would lead to the need for redaction of the complainant’s name. [36] The Employer challenges the Association position that the OIPRD had information about the fact that public decisions issue and the form of such decisions, while the Association and the Complainant did not, or that the Employer acted in bad faith when it did not disclose that a hearing decision was pending, and the impact that decision may have on the terms the Employer was agreeing to in the settlement. The Employer reiterates that the Complainant was represented by a lawyer from Goldblatt Partners at the hearing; that the same firm is representing the Association in this matter, and negotiated the settlement reached in August 2015. Counsel at the police services hearing knew that the hearing was being recorded, and that the disciplinary hearing was open to the public. The Employer asserts that counsel could have brought a motion to require a portion of the hearing to be held in the absence of the public, but did not do so. [37] The Employer asserts it could not have known that the final hearing decision would contain any mention of the Complainant. It notes that the Complainant was initially called as a witness by the police officers in anticipation of an abuse of process motion. The Hearing Officer issued a ruling on the abuse of process motion in April 2015, wherein he referred to the Complainant’s evidence regarding termination from employment, and the reasons therefor. None of the Complainant’s evidence had related to the alleged misconduct subject matter of the hearing, so the OIPRD would have had no reason to expect that the final decision of the Hearing Officer would make reference to the Complainant again. The April 2015 ruling on the motion was not posted on the OIPRD website as it had not been “a decision made after a hearing” (s. 86 of the PSA). [38] As such, the Employer argues it did not act in bad faith during the negotiation of the settlement, as it had no more information than did the Complainant or the Association at that juncture. DECISION [39] The situation the parties have described is both complex and highly unusual. One might say that there are a number of ‘moving parts’, which have resulted in the - 9 - Complainant’s extremely unfortunate situation. The question is what can be done at this juncture. [40] Since the parties did not make submissions as to whether the Complainant’s employment history is or is not a matter covered by FIPPA, that remains an open question. It appears that one of the purposes of FIPPA is to protect the privacy of individuals with respect to personal information about themselves held by institutions (s. 1(b)). Furthermore, “Personal information” is defined in FIPPA as “information relating to … employment history of the individual …” (section 2(1)). [41] It appears that the OIPRD has been exercising discretion to ensure that certain personal information is redacted from hearing decisions, so it is unclear why it may not have considered information relating to the Complainant’s employment as worthy of protection. Various sections of FIPPA refer to employment related information as being protected, and in s. 21(3)(d), the legislation states that a disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information relates to employment history. In any event, as the significance of FIPPA to the Complainant’s situation has not been argued, I will not address it further. [42] During the settlement negotiations neither party raised for consideration the implications of the Complainant having testified at the police service hearing. That may well have been because the Hearing Officer had already issued an interim ruling on the affected police officers’ motion in April 2015, and there may have been no expectation that there would be further reference to the Complainant’s testimony in the final decision. It is difficult, and counterproductive, to attribute blame at this point about the failure of either party, or the Complainant, to raise the concern about the posting on line of a final hearing decision in that litigation. [43] The undeniable problem however remains that since the OIPRD will not redact the decision to remove the Complainant’s name, the Complainant has lost one of the most significant aspects of the settlement bargain. [44] The removal of reference to termination from employment, the ability to honestly say that one resigned from employment, and a reference consistent with that, are extremely important to an employee in order to facilitate search for new employment. The Complainant gave up the right to pursue litigation of complaints against the Employer alleging a poisoned work environment, harassment, discrimination, and unjustified termination from the OIPRD in exchange for a clean exit and a monetary settlement. The Complainant also gave up the right to pursue the Employer in any other venue. [45] Furthermore, the parties agreed that the terms of the settlement would be maintained in confidence so that it would not appear to the outside world as though there had been a dismissal; nor that, post-dismissal, there had been some negotiations; and that as a result, the Complainant now had a resignation on the employment record. An employee’s re-employment prospects can be tainted by such information being available to a prospective employer as it casts a shadow on the person’s employability, - 10 - whether or not the original employer had just cause to terminate the individual’s employment. It is in recognition of that reality that parties agree routinely that where a termination is, in whatever manner, removed from an employee’s record, that references will be given such that there may be no future allusion to the original dismissal from employment. It is also why parties routinely agree on confidentiality clauses so that no one outside the immediate parties will know anything beyond what has been agreed to be the public face of the matter. [46] As a result of the OIPRD posting the hearing decision on the internet, it has effectively put the Complainant in the position where it is impossible to credibly maintain that the Complainant resigned from employment. Anyone conducting an internet search of the Complainant’s name can find the decision, the review of which casts doubt on both the letter of reference and any oral reference that the OIPRD may give to a prospective employer pursuant to the terms of the settlement. It appears as though that is precisely what has occurred, as unbeknownst to the Association and the Complainant, some time late last year the Employer posted on line the hearing decision in question. [47] In sum, I find that the Complainant is not able to realize some of the most significant benefits of the bargain struck. As noted, in the situation where the OIPRD maintains there is nothing it can do about the hearing decision, the Association asks that the Memorandum of Settlement be declared null and void, and that the dispute between the parties remain outstanding. I accept that this is the best way to address the situation at this juncture, so that the parties can address the changed situation in light of the decision with the option to find a new negotiated solution, or have the Complainant’s claims litigated [48] I decline at this stage to grant any other relief requested by the Association. [49] The dispute is remitted back to the parties to either attempt to reach a new resolution, or failing resolution, to request new dates from the Grievance Settlement Board for the hearing of the dispute. I remain seized. Dated at Toronto, Ontario this 18th day of May 2016 Gail Misra, Vice Chair