HomeMy WebLinkAboutAbraham 12-10-23IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE SCARBOROUGH HOSPITAL
("the Employer")
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 575
("the Union")
IN THE MATTER OF:
GRIEVANCE OF ,ANNIE ABRAHAM — OPSEU # 2009-0575-0002
SOLE ARBITRATOR:
Kevin M. Burkett
APPEARANCES FOR EMPLOYER:
Robert Weir - Counsel
APPEARANCES FOR UNION:
Chris Bryden - Counsel
The Union grieves in this matter that the grievor, a senior lab technician, has
been subject to a prolonged pattern of harassment in the workplace in breach of article
3 of the collective agreement. The grievance was filed in June 2009. The allegations
of inappropriate conduct toward the grievor by two named supervisors go back to
1992 and extend forward from the date of the filling of the grievance to June 2011.
The Employer, relying on the time limits for the filing of a grievance under article
9.03 of the collective agreement (seven calendar days for the taking up of a complaint
with the supervisor and, failing settlement, a further seven calendar days for the filing
of a grievance), argues that the events complained of that occurred more than 14 days
prior to the filing of the grievance are out of time. The Employer argues further that
the events complained about that occurred after the filing of the grievance are not
admissible for the purpose of establishing the pattern of harassment complained of in
the grievance.
The Union relies on the grievor's evidence that she did not appreciate at the
time that various separate acts constituted harassment but later came to see that the
totality of the behaviour complained about constituted a pattern of harassment. The
Union argues that such evidence is relevant and necessary for the purpose of
establishing this pattern. In the circumstances, I am asked to exercise my discretion
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under Section 48(16) of the Act to relieve against any time defect if predisposed to
find that such a time defect would otherwise exist. The Union makes essentially the
same agreement in support of the admission of evidence concerning the post
grievance events that are complained about. The Union asserts that it "is likewise
seeking to go forward in time from the grievance to establish that there is indeed a
pattern to the behaviours."
Oral submissions with respect to the admissibility of the pre -grievance events
were made at the September 13, 2012 hearing. Written submissions with respect to the
post -grievance events were tendered after the September 13, 2012 hearing. Various
authorities were submitted by both sides in support of their respective positions. These
submissions and the authorities cited have been fully considered.
I confirm, firstly, that I have a broad discretion under Section 48(16) of the Act
to relieve against collective agreement time limits. However, this is not a case where
the grievance itself is out of time but rather this is a case in which there are challenges
to the admissibility of evidence that the Union seeks to rely upon in support of the
grievance. I have a broad discretion under Section 48(12)(b) to accept or reject
evidence "whether admissible in a court of law or not."
I deal, firstly, with the pre -June 2009 evidence that the Union seeks to adduce.
Arbitrator M. Picher was faced with the same issue in re: Hotel -Dieu Grace Hos ital
and ONA (1997) 62 LAC (4`h) 164. While accepting that limits must be drawn, the
Board in that case stated:
We appreciate that when the success of a grievance rests on showing a
pattern of discrimination which would establish the tolerance, if not
encouragement, of a poisoned atmosphere in the workplace, some scope
must be allowed for evidence which would pre -date the nine day
limitation period contemplated in article 7.03 of the collective
agreement.
In that case, it was directed that the evidence be limited to a period commencing three
years prior to the date the grievance was filed.
Similarly in re: Toronto (Qyj and Canadian Union o Public Employees,
Local 79 (1999) OLAA No. 446 (Starkman), also dealing with this issue, the arbitrator
stated:
Harassment grievances by their very nature however raise particular
problems. In general, in order to demonstrate harassment it must be
shown that there was some pattern or persistency to the behaviour which
could lead to a conclusion that an employee was being harassed. Thus
any individual incident may not be sufficient to cause the affected
employee to conclude in their mind that they were being harassed. Given
this fact, it is not reasonable to hold a grievor to the strict time limits set
out in the collective agreement for the filing of a grievance, when the
essence of the grievance is that the employer has engaged in a course of
conduct over a period of time which the grievor believes amounts to
harassment.
Finally, in re: Universitv Health Network and OPSEU (2008) OLAA No. 74
(Alhertyn), the arbitrator, in striking the appropriate balance, stated:
What is required, I think, when determining the scope of the harassment
grievance, is to give the Grievor a fair opportunity to show the history
and background to her claims of harassment and discrimination, leading
to her termination, and, at the same time, to give the Hospital an
opportunity to respond to that case with evidence that is accessible. The
history should go back far enough that the context for the Grievor's
claims in her grievance is properly grounded, yet the history cannot go
back so far that the witnesses' recollections will have so faded as to be of
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little probative value. A fair balance needs to be struck as was said by
Arbitrator M. Picher in Hotel -Dieu Grace Hospital.
In that case, the arbitrator admitted evidence going back four years from the date of
the grievance.
This is a case in which it is claimed that the grievor has been the victim of a
prolonged pattern of harassment. I accept, as have the arbitrators quoted above, that in
a case such as this the Union must be given sufficient latitude in the calling of its
evidence to establish the existence of a pattern, if one exists. This is not to say,
however, that this latitude should be open-ended, without regard to the fairness
considerations that always arise when the evidence that is sought to be adduced relates
to events which occurred years before. Memories fade, recollections become
uncertain and witnesses may no longer be available. Having regard to the particulars
that have been filed in this case, I have determined that an appropriate balancing of
these competing considerations would allow the Union to call evidence in respect of
the events that have been particularized as having occurred on or after October 2008 —
a period of nine months prior to the filing of the grievance. Considering both the main
particulars and the supplementary particulars, there are seven such events. This is a
sufficient number of events upon which to establish a pattern if one exists and the
time frame (nine months) will not prejudice the Employer, especially where the two
management protagonists remain in place.
I now turn to the post -June 2009 events in respect of which the Union seeks to
adduce evidence for the purpose of establishing the existence of the complained about
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pattern. Asa starting point, the observation of arbitrator Surdykowski in re: Toronto
Police Services Board and Toronto Police Services Association (2006) CAN LII
50481 is instructive as a general proposition:
At some point the parameters of any piece of litigation must be faxed.
Otherwise, new claims could be constantly raised as the litigation
proceeds. There is no reason why that point should not be the date that
the grievance (the notional equivalent of a statement of claim) is
delivered ... The determination of the merits of a grievance cannot
depend on anything that does not exist when the grievance is delivered,
although actions taken after a grievance is delivered can exacerbate the
harm occasioned by a collective agreement breach.
The issue of whether post -grievance evidence should be admitted in the context
of an alleged pattern of discriminatory treatment was addressed in re: Religious
Hos itallers o Hotel -Dieu o St. Jose h of the Diocese o London and QNA (1995) 47
LAC (4th) 84 (Watters). The arbitrator concluded that he was "not satisfied that such
post -grievance evidence is helpful in the resolution of the threshold issue as to
whether the employer improperly discriminated against the grievor prior to the filing
of her grievance. In our judgement the answer to that question will have to be
determined on the basis of the pre -grievance evidence." It should be noted that in
Hotel -Dieu Grace Hospital and QNA (supra), the arbitrator found that post -grievance
evidence could not be adduced to prove events or a state of affairs that existed at the
time the grievance was filed. Similarly, in re: Toronto City and Canadian Union o
Public Employees, Local 79 (supra), arbitrator Starkman ruled that the union could
not "include as a foundation for the harassment grievance incidents which occurred
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many months after the grievance has been filed and which had not been considered in
the grievance procedure."
The only case cited that allowed post -grievance evidence to be adduced in the
context of alleged racial discrimination is OPSTU and Liquor Control Board o
Ontario (2 008) 174 LAC (4th) 348 (Dissanayake). In that case, the arbitrator identified
the issue as whether an individual's (a manager) state of mind in 2006 (post -
grievance) helped to shed light on the individual's state of mind in 2005. He
concluded that "in my view racial bias is not normally a propensity or state of mind
that changes from year to year (and therefore) I conclude that the subsequent conduct
— and, therefore, the state of mind that led to that conduct — although not conclusive
proof, at least 'helps shed light' on the issue I am called upon to decide...." Apart from
a reluctance, in the absence of expert evidence, to make and rely upon a sweeping
generalization with respect to the intractability of an individual's racial bias as the
basis for allowing post -grievance evidence for the purpose of establishing (or even
helping to establish) the earlier complained of misconduct, this decision runs up
against the rationale that supports the similar fact evidence rule. The similar fact
evidence rule makes it difficult to adduce evidence of prior confirmed "bad acts" to
establish a later alleged "bad act". If what an individual actually did before the
complained about conduct is problematic, then surely what an individual is alleged to
have done afterwards is more problematic. It is this rationale, along with the fixing of
the parameters, referred to by arbitrator Surdykowski that underlies in the awards
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previously referred to in which post -grievance evidence was not allowed to be entered
for the purpose of establishing the earlier complained of misconduct. I rely on these
awards in preference to OPSEU and Ontario Liquor Control Board of Ontario
(supra).
Having regard to the foregoing, I hereby rule that post -grievance evidence is
inadmissible for the purpose of establishing the pattern of harassment complained
about in the grievance. That issue stands to be determined on the basis of the pre -
grievance evidence extending back to and including October 2008, as has been
particularized.
This matter is to proceed to a hearing on the merits.
Dated this 23`d day of October 2012 in the City of Toronto.
&4�r4
KEVIN BURKETT
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