HomeMy WebLinkAboutLee 16-02-23
IN THE MATTER OF AN ARBITRATION
BETWEEN:
George Brown College of Applied Arts and Technology,
Employer,
- and -
Ontario Public Service Employees Union,
Union
BEFORE: Michael Bendel, Arbitrator
APPEARANCES: For the Union:
Tim Hannigan, Counsel
For the Employer:
Daniel J. Michaluk, Counsel
Heard in Toronto, Ontario, on September 10, 2015. Post -hearing oral submissions on January 14, 2016.
Written submissions completed on February 12, 2016.
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INTERIM ARBITRAL A WARD
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The grievor, Maria Lee, has presented a grievance , dated October 23, 2014, claiming that
she had been harassed and bullied at work by her former manager, Ms. Janet Shang Au. She had previ -
ously been one of a group of employees who had formulate d a similar group grievance on February 26,
2013. Although most of the members of that group, it appears, have chosen not to pursue that grievance,
the grievor has referred it to arbitration and it has been consolidated, on consent, with the grievor’s indi vid -
ual grievance.
The grievor has particularized her claim of harassment and bullying, giving details of
numerous interactions with Ms. Shang Au and another manager, dating back to 2004, which, she alleged,
demonstrated a pattern of harassment and discri mination against her.
The employer has presented a preliminary objection, on which counsel have asked me to
issue a ruling before the merits of the grievances are addressed. In its objection, the employer, while not
disputing my jurisdiction over the grie vances as such, takes the position that most of the interactions with
her managers which the grievor has raised are beyond the permissible scope of the grievances.
I received the parties’ submissions on these questions in a telephone conference held on
J anuary 14, 2016.
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In the case of one of the interactions, having to do with a classification grievance, the
employer said that it would be an abuse of process to allow the grievor to complain about the classification
of her position in these grievances since a decision had been issued by a classification grievance arbitrator
on November 11, 2014. Counsel referred to City of Toronto v. Canadian Union of Public Employees, Local
79, [2003] 3 S.C.R. 77.
The other issues raised by the employer had to do with the timing of the particular interac -
tions. The employer said that, while the grievances themselves were timely and while harassment and
bullying grievances were necessarily based on a pattern or course of dealings, it was not open to a grievor,
in support of such grievances, to rely on interactions which preceded a gap of three years or more in the
course of dealings (the “hiatus objection”). The employer also said that arbitrators had a discretion to refuse
to hear allegations that were too old, particula rly where it would place an unreasonable burden on the
employer to respond to them, such as where the managers or other witnesses were no longer employed,
which was the case here (the “general timeliness objection”). Counsel referred to Coffin v. Amalgamated
Transit Union, Local 113 2010 CarswellOnt 18204 (OLRB), Re George Brown College and OPSEU (Lum
grievance) 1998 CarswellOnt 7535 (award of arbitrator Kaplan), Re Renfrew County & District Health Unit
and OPSEU (Correia grievance) 2013 CarswellOnt 12621 (award of arbitrator Parmar), Re Hotel Dieu
Grace Hospital and Ontario Nurses’ Association (1997), 62 L.A.C. (4th ) 164 (M. Picher), and University
Health Network v. OPSEU 2008 CarswellOnt 683 (award of arbitrator Albertyn).
On the question of the classific ation grievance, counsel for the union said that the grievor
was not attempting to re -open the question of the classification of her position, but was seeking to demon -
strate that the actions of Ms. Shang Au in relation to the classification grievance were part of her pattern of
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undermining the grievor. These allegations could not be dealt with in the classification grievance process
itself but were germane to the harassment grievances.
As regards the employer’s hiatus objection and its general timeliness objection, union
counsel maintained that, since no objection had been taken to the arbitrator’s jurisdiction to hear the griev -
ances as such, it was within the arbitrator’s discretion whether to give effect to these other objections. Arbi -
trators had been divided on this question. Counsel argued that, since the employer would not be in any way
prejudiced by evidence being given of the older allegations, the arbitrator should impose no artificial time
limits. Counsel for the grievor cited OPSEU (Patterson) v . Crown in right of Ontario (Ministry of Public Safety
and Security) (unreported award of G.S.B., Leighton, dated December 1, 2003), OPSEU (O’Brien) v. Crown
in right of Ontario (Ministry of Community Safety and Correctional Services), [2011] O.G.S.B.A. No . 8
(Leighton), and OPSEU (Lunan) v. Crown in right of Ontario (Ministry of Labour), 2015 CanLII 36166
(G.S.B., Leighton).
On January 27, following the telephone conference with counsel, I wrote to them to solicit
submissions on a point that had not been squarely addressed. I drew their attention to the following
passage from Re Taylor-Baptist (GSB #163/87) (cited in OPSEU (Patterson), supra), where Vice -Chair
Kennedy stated the following in relation to a harassment grievance :
Once the grievance is properly before us within the procedures laid down in the collective agree -
ment, the appropriate scope of evidence is governed by the normal principles dealing with the
admissibility of evidence and its relevance to the issues to be arbitrated.
I told the parties that I had difficulty understanding the possible basis for disregarding this opinion by Vice -
Chair Kennedy, particularly since it appeared to me to be required by the principle audi alteram partem. I
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referred them to Université du Québec à Trois -Rivières v. Larocque , [1993] 1 S.C.R. 471, and to Re Greater
Toronto Airport Authority and Public Service Alliance of Canada (2007), 158 L.A.C. (4th) 97 (Bendel), in
both of which it was held that, by reason of this principle, arbitrators had no discretion to ex clude relevant
evidence unless, of course, the courts had recognized a valid basis for doing so in the circumstances (such
as hearsay). I told counsel that, since audi alteram partem was a principle of natural justice, I could not
ignore the question in re lation to the grievances before me, even though it had not been raised in their
earlier submissions.
In response to my request, employer counsel maintained that its earlier submissions were
entirely consistent with the rule audi alteram partem. The emplo yer’s earlier submissions had sought to
define what subject matter referred to in the union’s particulars was arbitrable. The employer was not seek -
ing to exclude any relevant evidence of harassment. The employer’s primary position was that the alleged
pattern of harassment referred to in the grievor’s particulars was not the same pattern of conduct in exis -
tence at the time of the grievance and, for that reason, was not arbitrable. Its secondary position was that
the older harassment allegations had not be en raised in a timely manner and ought not to be dealt with in
view of the parties’ stated preference for resolving workplace disputes in a timely manner. Counsel
acknowledged that relevance should generally be decided only after evidence had been adduced about the
context, but it was open to the arbitrator to determine the subject matter and the parameters of a grievance
on the basis of pleadings and submissions, and that was what the employer was asking the arbitrator to do
in the present case.
While the employer acknowledged that harassment grievances inevitably involved
“repeated conduct” (as recognized in Article 4.6.2 of the collective agreement), it objected to a union
attempting to “draw in every other harassment allegation back in time”. “The only allegations that can be
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made part of a continuing harassment grievance are allegations that form part of the same course of
conduct. Allegations that are distinct in time by virtue of a hiatus or that are distinct in character no longer
continue – they are ‘stale’.” The grievor’s allegations in the present case, with the exception of the classifi -
cation allegations, related to interactions that occurred more than three years before the filing of the group
grievance (and four and one -half years before the filing of the individual grievance). Those allegations were
not part of the same course of conduct about which the grievor was now complaining.
Counsel also drew attention to Carillion Services (WOHC) Inc. v. Canadian Union of Public
Employees, Local 145 (Bascevan grievance), [2014] O.L.A.A. No. 189 (Goodfellow), where the arbitrator
excluded certain allegations from the scope of a harassment grievance on the basis of the doctrine of
laches .
Union counsel, in his written submissions, argued that it was i mportant that grievances
alleging harassment or bullying be considered in the proper context and not in a vacuum. As was acknowl -
edged in OPSEU (Patterson), (supra), it was “immaterial that [specific] past events can no longer form the
basis of a grievance due to the time limit provisions in the collective agreement.” The union was not seeking
a remedy as such in respect of the older incidents referred to in the grievor’s particulars, which had been
included to establish a pattern of conduct. Regardless of the date of the incidents, they were relevant to the
grievance and the arbitrator should hear evidence about them.
II
I want to comment first on the employer’s argument that it would be an abuse of process,
as discussed in City of Toronto v. Canadian Union of Public Employees, Local 79, [2003] 3 S.C.R. 77, for
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the grievor to raise any alleged actions by Ms. Shang Au in connection with the classification grievance,
since the classification grievance had been the subject of an arbitral award on November 11 , 2014. I find no
merit in the employer’s argument. The grievor, as I understand her position, is not seeking to impeach the
award, but intends to point to Ms. Shang Au’s behaviour in relation to the classification grievance as
evidence of harassment. It d oes not constitute abuse of process for the grievor to rely on this alleged
behaviour by Ms. Shang Au in support of her harassment grievances.
As regards the employer’s “hiatus objection” and “general timeliness objection”, I have
examined the case -law re lied on by counsel. It is obvious from these cases that, in grievances alleging
discrimination and harassment, arbitrators have struggled to find the proper approach to the admission of
evidence relating to incidents that occurred several years before the filing of the grievance. The competing
considerations are essentially these. Firstly, the time within which a grievance has to be submitted in the
first instance is typically a few days. (In the case of the current collective agreement, it is 15 days from the
date of the circumstances giving rise to the grievance: see Article 18.3.1.1.) Secondly, since grievances
alleging discrimination or harassment are typically based on a pattern of conduct extending over several
months or years, rather than on a single discrete incident, it would be unrealistic to limit the grievor’s
evidence to incidents that had occurred in the few days before the filing of the grievance. Thirdly, it would
place the employer in a very difficult, even impossible, position if grievors we re allowed to build their cases
on undocumented incidents said to have occurred many years previously, particularly where the supervisor
or manager in question was no longer employed by the employer.
Faced with these competing considerations, arbitrators in several of the awards referred to
by counsel proceeded on the basis that they had a discretion to limit a grievor’s evidence to incidents that
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had occurred within a certain time before the filing of the grievance (typically a three -year period) and to
exclude evidence of incidents that preceded a “hiatus” in the alleged pattern of harassment.
As I indicated to counsel when I wrote to them on January 27, I am not aware of any legiti -
mate source for the discretion claimed by the arbitrators in these case s. As the courts have made very clear
over the years, most recently the Supreme Court of Canada in Université du Québec à Trois -Rivières ,
supra, and the Ontario Court of Appeal in Ontario (Ministry of Community Family and Children Services) v.
Grievance Se ttlement Board and OPSEU (Larman), 2006 CanLII 21173 (ON CA), 81 O.R. (3d) 419, arbi-
trators 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 ba sis for excluding it that is recognized in
judicial case -law or established by statute). Failure to do so is a violation of the principle audi alteram
partem, which makes any resulting award liable to be set aside on judicial review.
I can sympathize with the view expressed by some arbitrators, as well as by counsel in their
submissions to me, that the arbitration of harassment grievances might well become “unmanageable” in the
absence of some temporal limits on the facts on which the grievor is permitted to rely. But I can find no justi -
fication in law for any such restrictions, which appear to fly in the face of the principle audi alteram partem.
Obviously, if the incidents on which a grievor wishes to rely are not relevant to the grievance – as might be
the case if they were isolated and occurred several years before the grievance – the arbitrator would refuse
to hear them. But I am not prepared to say, as a general proposition, that the staleness of the interactions or
their sporadic incidence is necessarily tantamount to irrelevance.
The employer, in its written submissions, has made two suggestions why its original
submissions were consistent with the rule audi alteram partem.
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Firstly, it says that that the alleged pattern of harassment referred to in the grievor’s
particulars was not the same as the pattern of conduct in existence at the time of the grievance. On the
basis of the information put before me for the purpose of the employer’s preliminary objection, it is impossi -
ble for me to rule on this submission, or even to understand it. The grievor’s claim is that she was the object
of personal harassment, not harassment due to race, sex, etc. I do not know what change, if any, occurred
in the nature of the alleged personal harassment over time, or if there was truly a new type of harassment
after a certain point in time. The employer is free to renew this objection once some evidentiary basis for it is
established.
Secondly, the employer says that the older harassment allegations were not raised with the
employer in a timely manner. As I understand the situation, the grievor, in grievances that are admittedly
timely, is alleging harassment, which she is seeking to support by reference to several incidents. Since a
finding of harassment is based on a repeated pattern of conduct, I am not persuaded that each incident in
the pattern has to be raised in a timely manner. It might well be that a grievor’s failure to react to particular
incidents is relevant to the question whether the incidents actually occu rred, but that is a different matter
from what the employer is now raising. I see no valid basis for this position by the employer.
I trust that, with this guidance, counsel will now be able to proceed with the hearing of the
grievances.
DATED at Thornhill, Ontario, this 23rd day of February 2016.
_____________
Michael Bendel,
Arbitrator
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