HomeMy WebLinkAbout2015-1330.Dubuc.16-11-02 Decision
Crown 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#2015-1330
UNION#2015-0453-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dubuc) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Jesse Gutman
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Kevin Dorgan
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 6, 17, 2016
Decision
[1] Stephane Dubuc (the “grievor”) was discharged from his employment as a Fire
Inspector in the Office of the Fire Marshall on May 19, 2015. The union has filed this
grievance contesting the propriety of that termination.
[2] Each of the parties has raised a preliminary issue. The union seeks the
production of certain documents to be effected prior to the commencement of the case
and, certainly, prior to the calling of any viva voce evidence. The employer, for its part,
objects to the scope, breadth and vintage of much of the evidence the union seeks to
adduce. This decision deals with the employer’s objection.
[3] The case the union advances falls broadly into two categories. First, it asserts
that the discharge was without just cause. However, it also claims that the employer’s
decision to terminate the grievor was borne of improper motives. In support of this latter
claim, the union has filed some 17 pages of particulars containing what it describes as
its “positive allegations”. For the purposes of this decision, I am assuming that evidence
regarding these particulars would be, at least arguably, relevant. Essentially, the union
claims that the termination was (at least in part) a reprisal visited upon the grievor
because he has exercised protected rights under the Occupational Health and Safety
Act (“OHSA”). It also claims that the grievor, a French Canadian, was targeted because
of his place of origin. Connected to that assertion is evidence the union seeks to adduce
that the grievor took steps to seek the enforcement of his linguistic rights.
[4] The union is clear that, in adducing the evidence relating to its positive
allegations, it is not seeking any remedy in respect of the events in question. Rather it
seeks to rely on these events to establish the pattern of improper conduct it asserts
culminated in the discharge. But while it seeks no remedy specific to the events in
question, it does assert the need to consider and litigate those facts.
[5] Some of the facts alleged date back over a decade. A significant portion of the
facts pleaded relate to events which took place more than three years prior to the filing
of the grievance.
- 2 -
[6] The employer seeks to have the Board follow its “rule of thumb” as set out in
OPSEU (Patterson) and the Crown in Right of Ontario (Ministry of Public Safety and
Security) GSB File No. 2001-0925 et. al. (Leighton), a decision which has been followed
in numerous subsequent cases. In that case, which involved claims of harassment and
discrimination, the union sought to adduce evidence which pre-dated the filing of the
grievance by up to 14 years. The Board “in balancing the interests of the union to prove
its case of an alleged poisoned work place and the employer’s right to defend itself”,
ruled that it would permit evidence of events which pre-dated the filing of the grievance
by three years, but not more. It is this case, and the manner in which it has been
followed, that has evolved into the three-year “rule of thumb” which is familiar to the
parties who regularly appear before this Board.
[7] The union did not seriously dispute the existence of the rule. And rather than
focusing on the reasons, if any, to depart from it in the facts of the instant case, it chose
to more directly attack the soundness of the rule itself.
[8] The union relies principally on a decision of Arbitrator Bendel in Re Greater
Toronto Airport Authority and Public Service Alliance of Canada (2007) 158 L.A.C. (4th)
97 (“GTAA”) (and the theme as reprised in a more recent case decided by the same
arbitrator in a factual context closer to ours in George Brown College of Applied Arts
and Technology and OPSEU, 2016 CanLII 9122(ON LA)). Like Arbitrator Bendel, the
union also referred to the decision of the Supreme Court of Canada in Université du
Québec à Trois Rivières v Laroque [1993] S.C.R. 471.
[9] The union submits that Arbitrator Bendel appears to have interpreted portions of
the decision of the Supreme Court as establishing a clear principle – that the exclusion
of relevant evidence is a breach of natural justice and that labour arbitrators have no
authority to do so without offending the rules of natural justice. Whether or not the
union’s submission is correct, it is bolstered perhaps by the arbitrator’s subsequent
comments in the George Brown case, where, in a grievance claiming harassment, the
union wished to call evidence of events which dated as far back as 10 years prior to the
filing of the grievance. The arbitrator rejected the employer’s preliminary motion to
exclude the evidence and, in the course of his award (at page 8) and after referring to
- 3 -
cases where the admission of evidence had been restricted (“typically a three-year
period”) offered the following:
I am not aware of any legitimate source for the discretion claimed by
the arbitrators in these cases. As the courts have made very clear over the
years… [and then referring once again to the decision of the Supreme
Court] … arbitrators must allow a full and fair hearing of grievances, which
means permitting a party to adduce any evidence relevant to the issues in
dispute (unless there exists a basis for excluding it that is recognized in
judicial case-law or established by statute). Failure to do so is a violation of
the principle of audi alteram partem, which makes any such award liable to
be set aside on judicial review.
[10] The employer points out, however, that (whether we examine the union’s
interpretation of the Bendel awards or Arbitrator Bendel’s interpretation of the Supreme
Court decision) the conclusion that the exclusion of otherwise relevant evidence is
automatically and invariably a breach of natural justice is mistaken. We were pointed to
the following observations of Lamer C.J.C. (at page 491):
For my part, I am not prepared to say that the rejection of relevant
evidence is automatically a breach of natural justice. A grievance arbitrator
is in a privileged position to assess the relevance of the evidence presented
to him and I do not think it is desirable for the courts, in the guise of
protecting the rights of parties to be heard, to substitute their own
assessment of the evidence for that of the grievance arbitrator. It may
happen, however, that the rejection of relevant evidence has such an
impact on the fairness of the proceeding, leading unavoidably to the
conclusion that there has been a breach of natural justice.
[11] In my view, the reading proffered by the employer is more apt. In that regard I
note, firstly, that arbitrator Bendel himself, in the GTAA case (at page 110)
acknowledged that:
- 4 -
… in deciding whether an arbitrator has violated the principle audi alteram
partem by excluding relevant evidence, the courts will judge the validity of
the arbitrator’s decision by reference to the fairness and credibility of the
arbitration.
[12] Thus (and again whether one considers the arbitrator’s reading of the Supreme
Court authority or union counsel’s reading of the arbitration awards), I am satisfied that
there is no invariable or inflexible rule that the exclusion of relevant evidence is, in and
of itself, always a violation of the rules of natural justice.
[13] And, with the greatest respect to the learned arbitrator, I do not share the view
that relevant evidence must always be admitted unless there exists a judicial or
statutory basis for its exclusion. One need only, for example, consider an aspect of the
fundamental labour relations doctrine of progressive discipline. There can be little doubt
that an employer seeking to adduce evidence of prior undisciplined misconduct
(however serious) to support the discharge of an employee with no prior formal
discipline would face significant and likely impenetrable barriers to the introduction of
such evidence. Such evidence might clearly be relevant but equally clearly inadmissible,
despite the lack of any judicial or statutory basis for such exclusion.
[14] And there is a certain irony that flows from this example. It is, in some respects,
the mirror image of efforts to rely on events which significantly pre-date the filing of a
grievance. In the typical such case (in this regard the instant case is not entirely typical
– a point to which I shall return) the union seeks to assert (otherwise untimely)
allegations of prior employer collective agreement violations. However, it is precisely in
recognition of the systemic barriers and other difficulties associated with the timely
prosecution of cases in which a pattern of improper conduct amounting to harassment,
discrimination or bullying that this Board has developed its three-year rule of thumb,
permitting a grievor to rely on and point to events which would not otherwise properly
form part of a grievance.
[15] That rule of thumb is just that – a point of departure, not an inflexible rule to be
mechanically applied in all cases. In the present case, no circumstances were pointed
- 5 -
to that would support or necessitate an enlargement (or contraction) of the three-year
period.
[16] For these reasons alone, I would, subject to an exception that follows, allow the
employer’s objection and limit the events to be the subject of evidence to those which
occurred not more than three years prior to the filing of the instant grievance.
[17] But in the instant case there is further reason to restrict the calling of evidence.
One of the factors that underlies the Board’s approach to the three-year rule is that
grievors who are subject to patterns of improper employer conduct may not always be
aware of the nature of their rights to challenge such behaviour. That is clearly not the
case here. The grievor is well versed in his legal rights. Indeed, much of the conduct the
union wishes to point to has already been the subject of prior complaints, including a
complaint filed by the grievor in May 2009 at the Ontario Labour Relations Board
asserting improper reprisal for the exercise of rights under OHSA. In addition, a
grievance was filed in March of 2010 protesting alleged improper discipline. There is a
significant overlap (if not complete identity) as between the facts of these two
complaints and the facts the union points to in its “positive allegations”. Both of these
complaints were the subject of settlements between the respective parties (the
grievance was settled in September 2011; the OHSA complaint in January 2012).
[18] Thus, even apart from the three-year rule, any inquiry into the facts which formed
part of these complaints would be inappropriate. The sanctity and unimpeachability of
settlements is an axiomatic principle in labour relations. And while the union concedes
that it seeks no remedy in relation to these events, it nonetheless asks that this Board
hear and make a determination with respect to the allegations which were the subject of
the settlements. There would be little incentive for parties to enter into any settlements if
the events in question could then subsequently be the subject of fresh litigation.
[19] This, however, leads me finally to the “exception” to which I have adverted. In the
course of the parties’ submissions on this issue, a number of documents were filed: the
2009 OHSA complaint, the employer’s response and further submissions by the grievor
as well as the settlement dated January 2012 and the prior grievance dated March 2010
- 6 -
as well the resulting settlement dated September 2011. These documents are now
exhibits in these proceedings. They obviously establish that prior complaints were filed,
the nature of those complaints and their resolution. In view of the settlements, however,
these documents establish nothing about the merits of the complaints. However, to the
extent the union (or the employer) wishes to advert to or rely upon any or all of these
documents, they are free to do so.
[20] In the result and subject to the exception just set out, the Board will not entertain
any evidence in this matter which pre-dates the filing of the grievance by more than
three years.
Dated at Toronto, Ontario this 2nd day of November 2016.
Bram Herlich, Vice Chair