HomeMy WebLinkAbout1992-3155.Howe,Dalton.Loach.95-05-23
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO .
(.f- ilII GRIEVANCE COMMISSION DE
,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
{ 180 DUNDAS STREET WEST SUITE 2'00, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/T~L~PHONE (416) 326-1388
~,_.,...!~g,.,~prp.Y~DAS Oyg.~.m.t!ilEAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILE ITEL~COPIE (416) 326-1396
R~rt\cIV~D
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GSB # 3155/92, 643/93, 656/93, 2168/93
MAY 2 5 1995 OPSEU # 93A242, 93D868, 93D869, 93D905, 94A038
PUBliC SERVICE IN THE MATTER OF AN ARBITRATION
APPEAL BOARDS
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Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Howe/Dalton/Loach)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Correctional Services)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
T. Browes-Bugden Member
M. Milich Member
FOR THE B. Symes
GRIEVOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE L Marvy
EMPLOYER Counsel I
Legal Services Branch
Management Board Secretariat I
HEARING January 10, 11, 24, 25, 26, 1995
February 7, 8, 22, 23, 24, 1995 I
March 6, 7, 1995 I
April 19, 26, 1995
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INTERIM DECISION
The Board is seized with five individual grievances filed by
three female grievors. While the grievances raise several aspects
and issues, for the purpose of this decision it suffices to observe
that the grievors have alleged that they were subjected to .sexual
harassment and sexual discrimination at work.
During the union's case, the union presented as an expert
w~tness Dr. Maeve W. McMahon. The employer challenged her
qualifications to tender the proposed opinion evidence. The Board
heard testimony from Dr. McMah0n, and submissions from the parties
based on that evidence, as to whether she was qualified to give the
proposed opinion evidence. Subsequently on April 22, 1995 the
following ruling was sent to the parties via facsimile:
The union tendered Dr. M. W. McMahon as a qualified
sociologist and criminologist, and a renowned academic,
for the purpose of giving opinion evidence on the
following:
"Employment of women correctional officers in
male institutions in ontario, the problems
women correctional officers face, including
discrimination and harassment, the responses
of the Ministry and its policy initiatives to
these issues, whether women correctional
officers at the Haileybury Jail have
experienced discrimination and harassment, the
impediments to reporting harassment and
discrimination, and as to what steps are
necessary to effect real change at the
Haileybury Jail and how properly to respond to
what happened to end discrimination and
harassment".
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On the basis of the evidence, we have no hesitation
recognizing that Dr. McMahon is an accomplished and well
recognized academic. She may also qualify as an expert
with respect to certain aspects in corrections, such as
penology issues
However, the majority of the Board, with the union
member dissenting, rules that the witness does not meet
the test to be qualified as an expert to give opinion
evidence on the proposed issues.
Neither party requested written reasons for the ruling.
However, in light of the attached dissenting opinion issued by the
union board member, written reasons for the majority decision are
warranted.
Dr. McMahon holds the degrees of B. Soc. Sc. (Sociology and
Social Administration) from University College, DUblin, (1977);
M.A. (criminology) university Toronto (1983); and Ph.D. (Sociology)
University of Toronto (1988).
Dr. McMahon's employment history is set out in her resume
under the headings of (1) teaching employment (2) policy employment
and (3) research employment.
Her teaching employment record, consists of the following:
1979-81 Tutor at University college, Dublin in Social Policy; 1989
Visiting guest lecturer (6 lectures) at the University of Oslo
Institute of Criminology on Imprisonment and Alternatives, the
following Teaching Assistantships at university of Toronto, Mass
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Media and Communications and Urban Socioloqy (1982-83) ,
Introduction to Criminoloqy (1982-84), Historv of Social Theorv
(1987-88); undergraduate lectures in the summers of 1990 and 1991
at Woodsworth College on Introduction to Criminoloqy and graduate
lecture in 1982 on Penology at the University of Toronto Centre of
criminology. In 1993 Dr. McMahon received an appointment to her
present position of Assistant Professor at Carleton University, but
immediately took a one year leave of absence and undertook for that
period an assignment as Visiting Associate Professor at Vilnius
University in Lithuania teaching Introduction to Criminoloqy and
Qualitative Research Methods in Sociology. currently she is back
in her position at Carleton University teaching Criminal Law in
Context, criminal Justice Reform and Law Crime and Social Order.
Dr. McMahon's "policy employment" consisted of the following
In 1990-91 she served as policy advisor to the Ontario Minister of
Correctional Services for seven months on secondment from the
University of Toronto. In 1991-92 she was Executive Assistant to
the ontario Solicitor General and Minister of Correctional Services
for seven months again on secondment. In 1993-94 she was the
Baltic Academic Coordinator for the Civic Education Project of Yale
university and the Central European University in the Czech
Republic.
Dr McMahon's "Research Employment" consists of a Research
Assistant position in Dublin dealing with Homeless youth in Dublin
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in 1978-79, a further four month Research Assistantship in 1979 in
Dublin relating to Younq offenders in Ireland, and co-Principal
Investigator (part-time) at the Uni versi ty of Toronto Centre of
criminology, examining sentencing and corrections in Ontario.
In addition, Dr. McMahon received several scholarships and
awards and has numerous publications to her credit.
Under cross-examination, Dr. McMahon testified that her
masters thesis dealt with police Reform in Ontario and that her
doctoral thesis was on "Imprisonment and Alternatives". She agreed
that neither thesis had any relevance to the issues in this case
although she suggested that she dealt with harassment of citizens
by the Police in her masters thesis.
As for her current teaching courses, Dr. McMahon c.onceded that
none of the courses have the three issues of sexual harassment, sex
discrimination or employment equity as the focus or the core theme.
However, she testified that her "Criminal Law in Context" course
included one or two lectures a year dealing with equity and
discrimination issues and that in the other courses students are
required to read articles on topics such as women working in Police
and Corrections and racism in corrections, and that therefore
issues relating to sexual discrimination, sexual harassment and
employment equity may arise.
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With regard to her Research Employment, Dr McMahon agreed
that her Baltic Academic Coordinator position had to do with
Education Reform and therefore unrelated to the 3 issues She
testified that as Executive Assistant to the Minister of
Correctional Services she was involved in political and policy
issues dealing with corrections. However, she did not testify that
such involvement had anything to do with the 3 specific issues
relating to women working in prisons.
As policy advisor to the Minister of Corrections also, she
dealt with senior civil servants on corrections issues. But she
did not testify that she had occasion to deal with any of 3
specific issues. The most she could state was that the policy
advisor position was a political job and that from time to tim.e
employment equity issues relating to the Police arose.
Dr. McMahon agreed on cross-examination that she had not held
any job which had as its focus, the issues of sexual
discrimination, sexual harassment of employment equity, either as
it related to female employees in corrections, or even generally.
She also agreed that the same was true of all of her publications,
although she qualified it by stating that issues of discrimination
harassment and equity "arose" virtually in every one of her
publications. When asked for examples, she pointed out that one
article dealt with discrimination against Russians in Lithuania and
the torture of Lithuanian women by the Soviet Government, and that
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a book she published dealt with police discrimination against
racial groups.
Dr. McMahon testified that in October 1992 she co-presented a
workshop on "Dangers for Women Working in Corrections" at the
Annual Research Forum of Corrections Canada in Kingston, ontario to
16 participants from Corrections Canada. The other co-presenter
was Ms. K.H. Moffat, a doctoral student at the University of
Toronto. She admitted that Ms. Moffat's doctoral research was on
women inmates and not women employees in jails. Dr. McMahon
testified that together with Ms. Moffat she surveyed the published
material relating to women working in jails. She stated that there
was little literature relating to women working in Canadian jails,
but that there was a body of literature relating to American jails
which she was able to review. She also reviewed reports on surveys
conducted by Corrections Canada relating to Federal jails in the
Ontario, prairie and Atlantic Regions, even though she agreed that
they were not academic writings. Dr. McMahon testified that the
presentation was made to 16 participants at a breakfast meeting
which lasted about two hours. A month later, Dr. McMahon and Ms.
Moffat used the same material to co-present a paper titled
"Experiences of Women Working in Corrections" at a Conference of
the Women's Advisory Group to the Correctional Service of Canada,
in Kingston, ontario. The conference was attended by 200 to 300
persons working for Corrections Canada Subsequently Dr. McMahon
applied for teaching positions at a number of universities. As
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part of her job competition process she had to make a presentation.
She testified that her presentations at two of the universities
were on the topic of women in corrections.
Based on the candid evidence of Dr. McMahon and a review of
her resume, there can be no doubt that the focus of her
professional and academic life has been the reform of police and
correctional systems. Her interest with regard to corrections, as
evidenced by the many publications and presentations she had made,
has been the reform of the penal systems, primarily, the
alternatives to incarceration. The focus was on the inmates in the
correctional systems and not employees. She candidly admitted that
it was only recently that she "began to look at the issue of women
working in male institutions".
The o~inion evidence proposed to be adduced through this
witness has been set out in the rUling of the majority reproduced
above. It is evident that she is called upon to give very specific
opinions on a number of specific issues which are directly before
the Board in this case We fully endorse the quotation from the
Supreme Court of Canada in R v. Mohan set out in the union member's
dissenting opinion As the court points out an expert witness (a)
Must have acquired special or peculiar knowledge (b) That special
or peculiar knowledge must be acquired through study or experience
and most importantly (c) that special or peculiar knowledge must be
on the "matters on which he or she undertakes to testify"
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Dr. McMahon has never testified as an expert before She has
taught at a university on a full-time basis only for one year Her
teaching has not dealt with women working in corrections at all.
Nor has her teaching focused on sexual discrimination, sexual
harassment or employment equity even generally. Similarly, none of
her publications deal with women working in corrections While
some of her work dealt with types of discrimination (eg. against
Lithuanian women by the soviet State, against racial groups by
Police forces in Canada) that has little or no relevance to sexual
discrimination against women working in corrections. While she was
involved in policy issues as Executive Assistant and Policy Advisor
to the Minister of Correctional Services, in either capacity she
had no involvement in policy development relating to women working
in corrections specifically or issues relating to sexual harassment
or sex discrimination She candidly testified that the Bell Cairne
Centre issue did not corne to her attention at the time, and further
that while she was aware that the Ministry was developing its WDHP
pOlicy, she had no involvement in that regard.
It is undisputed that Dr McMahon has no "experience" on the
issues she was called upon to testify about Therefore any special
or peculiar knowledge she obtained on the issues of sexual
discrimination, sexual harassment, and employment equity issues
relating to women working in male institutions, must have been
acquired through "study" However, Dr. McMahon frankly admitted
that it was only recently that she had "begun to look at women
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working in jails". Her first involvement was in preparation for
the October 1992 workshop That involved a review of the available
literature Based on the review of literature she made part of the
presentation at a 2 hour workshop to 16 people. Even then, she
admitted that the Canadian literature on the issue was extremely
thin. A month later, she used the same material to present a paper
at a conference. That review of the literature, followed bY the
two presentations has been the onlY direct involvement Dr. McMahon
has had on the specific issues about which she was to testify. She
testified that she hoped to continue her research into the issue
and publish her work, but admitted that at the present time she did
not even have a draft manuscript, and that pUblication will take
several years of more work
As the union claims, Dr. McMahon may well be an outstanding
scholar, who is recognized internationally. However, her scholarly
pursuits and achievements have been for most part in areas which
have little or no relevance to the very specific areas about which
she has undertaken to testify Her very limited work to date in
those areas in our view does not qualify her to adduce opinion
evidence which would be of assistance to this Board in determining
the issues before it
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Dated -this ,2>3rd day of May, 1995 at Hamilton, ontario.
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N.Dissa ake
Vice- Chairperson
"I Dissent"
(See dissent attached)
TBrowes-Bugden
Member
c:LJ.JiliY
M. Milich
Member
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GSBIt 3155/92, 643/93, 656/93, 2168/93
OPSEUff 93A242, 930868, 930869, 930905, 94A038
OPSEU (Howe/Dalton/Loach)
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
DISSENT
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I must dissent with regard to the majority ruling that Dr McMahon,
who is a sociologist and criminologist, is not an expert in
Corrections and is not entitled to give opinion evidence of the
systemic problems faced by women correc~ional officers working in
male institutions
In di~f ining a properly qualified expert, the Supreme Court of
Canada in R. v. Mohan (1994) 2 S.C.R. at page 25 state the
following
Finally the evidence must be given by a witness
who is shown to have acquired special or peculiar
knowledge through study or experience in respect
of the matters on which he or she undertakes to
testify
Dr McMahon began workin3 twenty years ago as an academic ard
researcher in the fields of Sentencing and Corrections Dr
McMahon completed her doctorate in 1988 from the University of
Toronto, and in 1992 the University of Toronto press published her
book, "The Persistent Prison? Rethinking Decarceraticn and Penal
Reform" Currently, Dr McMahon is a faculty member of the
Department of Law at Carlton University She has established an
international reputation as a reformer in the field of Corrections
She has been awarded the most prestigious academic f e 11 OvlS hip, a
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Canadian Research Fellowship, for three years at the Centre of
Criminology at the University of Toronto She has published
extensively in referred journ"\ls
Dr McMahon was seconded in 1990 to 1992 to be the Policy Advisor
to the Ministry of Corrections and then oto Executive Assistant,
that is the Chief-of-Staff, to the Solicitor General and Minister
of Correctional Services for the province of Ontario During her
secondment, the government passed the employment equity amendments
to the Police Services Act and drafted regulations and guidelines
to implement this pioneering legislation
In 1992, Dr McMahon, together with a graduate student, Kelly
Hannah Moffat, began a research project They were invited by the
Correctional Service of Canada to present a vlOrkshop entitled
"Dangers for Woman Worring in Corrections" at the Fourth Annual
Research Forum Dr McMahon was then invited to present her
research to a Conference of the Womens' Advisory Group to the
Correctional Service of Canada She has given numerous
presentations both in Canada and in Europe Dr McMahon is
recognized as one of the few Canadian academics working in this
area
Therefore, I have no doubt Dr McMahon, 35 an academic has through
speci31 stuJy and research in the field af Correctian2 acquired th~
special knowledge of the problems women correctional officers face
worYing in prisons for men Dr McMa~on should be entitled to give
her opinion evidence in this matter
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T Browes-Bugden
Union Nomlnpe
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, :: -; .,'~, ,'~;;; ',. '''-' ~ ONTARIO EMPLOYES DE LA COURONNE
'::t:. ;:. c,:' , :'; :.: ;;: CROWN EMPLOYEES DE L 'ONTARIO
i:; . ..,''-,. -', GRIEVANCE COMMISSION DE
1111 SETTLEMENT .
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE: (416) 326-7388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396
September 27, 1995
AMENDMENT
RE 3155/92, 643/93, 656/93, 2168/93 OPSEU (Howe/Dalton/Loach)
and the Crown in Right of ontario (Ministry of
Correctional Services)
Please attach the enclosed Dissent of Mr M Milich to your copy
of the above noted decision
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L stickland
Registrar
LS/dbg
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Dissent
in the matter of
OPSEU ( HowelDalton/Loach)
and
Ministry of Correctional Services
Having reviewed the interim decision in this matter, I find that I cannot concur
wjth my colleagues 'would have excercised the jurisdiction and ordered Ms.
Howe to submit to a psychiatric examination as requested by the employer
While there are differences between the cases, the parallels between this case
and Wilson are, in my view, competling. Both grievers put their mental state in
issue claiming that their depression was a result of their work environment. The
time frames are similar Ms. Wilson went off work in August, 1992, while Ms.
Howe did so in November, 1992. The issue regarding a psychiatric examination
in both cases arose during arbitation hearings some three years later
The key differences between the cases are that Ms. Wilson returned to work in
June of 1993 while Ms. Howe remains off work. As well, Ms. Wilson brought her
complaint forward as a health and safety grievance while Ms Howe's grievance
is one of sexual harassment.
The nature of a case does not change or atter the criteria or pnncipJes
applicable to the detennination of whether an order for the grievor to submit to a
medical or psychiatric examination is appropriate. In short, the governing
principles are the, same regardless whether the case arises out of a health and
safety grievance or one of sexual harassment. If I undestand Wilson correctly,
there are three principles Firstly, thegrievor must have put hisJher physical or
mental state in issue The Board must then be satisfied that the past or present
state of the grievor's health is in issue in the proceedings, and, finally, that as
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such could properly be subject to expert eVidence based upon an appropriate
examination by an expert.
There is no question that the case before us meets these criteria. This is not a
case where the employer or third parties made an issue of the griever's mental
state Ms Howe did so herself and. in the process detailed her problems as did
her treating psychiatrist. By putting her mental state in issue, the grievor has
diminished the degree of intrusiveness that such and examination would
otherwise have, and, therefore, cannot be as telling in the balancing of interests
that my colleagues have undertaken. Having forayed out that door the grievor
cannot now retreat behind it for the fun scope of its protection.
The purpose of ordering such examination is to ensure a fair hearing to all
parties concerned in the current proceedings. Stating that such an order may
have a chilling effect on the remedies sought in Mure cases is akin to the
floodgate arguements that board's of arbitration have rarely if ever supported.
The fact that a remedy may not be easily achieved does not necessarily
translate into a relunctance to bring forward a complaint or to request the
remedy
Further in balancing the interests of the parties in teons of remedies, it should be
borne in mind that the remedies sought in this case range from individual and
systemic remedies to the dismissal of two management employees. These
circumstances must also be taken in oonsideraUon in determining the
appropriate balance required to ensure a fair hearing.
Nor, can we assume that such orders would become routine in these cases.
Wilson sets out clear and cogent criteria which must be met before an order is
contemplated.
As in Wilson, we cannot definitively assess the potential weight or usefulness
of the examination at this time. The Board in Wilson faced with similar
circumstances with respect to the time frames, changed circumstances, and
treatment was uncomfortable with prejudging the possible outcome or value of
the evidence that such an examination might generate. I have the same
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misgivings in this case and would have followed the example set by the Board In
Wilson,
As I understand it, the rule in Qrowne V$. Dunn is meant to ensure a fair trial It
is not meant to create a situation unfair to either party As a board of arbitration,
we are not required to follow the rule blindly We have the authority to establish
our own procedure to ensure that a fair hearing is held RecaJling Dr Bell in
rebuttal, while perhaps inconvenient, is certainly not unfair tn fad, it may even
enhance the faimess of the proceeding since the grievor and her counsel would
have the beneit of hearing the expert's ,evidence and preparing accordingly
before Dr Bell is called in rebuttal.
For these reasons, I would have ordered that the grievor to submit to a
psychiatric examination by an independent expert.
~d~U~'X
Michael Milich
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL'ONTARIO
-'" _II GRIEVANCE COMMISSION DE
~.
. SETTLEMENT REGLEMENT
-. . - BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON. M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUR.EAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396
_," --~~~4lI&t_
RECEIVED GSB# 3155/92, 643/93, 656/93, 2168/93.
MAR 1 6 1995 OPSEU# 93A242, 93D868, 93D869, 930905, 94A038
PUBLIC SERVICE IN THE HATTER OF AN ARBITRATION
APPEAL 60ARDS Under ~
,
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before '" ,
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Howe/Oalton/Loach)
Grievor
- and -
The Crown in Right of ontario -
(Ministry of Correctional Services)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
T. Browes-Bugden Member
M. Milich Member
FOR THE B. Symes
GRIEVOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE L. Marvy
EMPLOYER Counsel
Legal services Branch
Management Board Secretariat
HEARING January 5, 6, 1995
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DECISION
This decision deals with a motion brought by. th~ employer
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for reconsideration of a previous interim decision of the.
Board dated October 11, 1994. The following background forms
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the basis for this motion.
The Board was seized with five individu~l grievances
filed by three female qrievors. In the interim decision (with '.~
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the employer member dissenting) at pp. 3-4 the Board set out
the nature of the dispute before it as follows:
No evidence was called at this stage of the
proceeding. Union counsel set out the foregoing
factual background in very general terms, and
informed the Board that the union will be taking
the position that as a direct result of the conduct
of Mr. Erickson and Mr. O'Donnell, both of whom are
members of management, a poisoned environment has
been created at the Haileybury jail. It is alleged
that the employer contributed to the continuation
of the poisoned environment by failinq to take
appropriate ~ction in response to the grievors' .
complaints. In these grievances the .union contend'S
that the investigations conducted, as well as the
action taken in response to the investigation
results were so inadequate that the employer has
thereby failed to comply with its obligations under
article A and/or article 27".10 of the collective
agreement.
The parties mutually requested the Board to
rule upon a dispute between them as to the scope of
the Board's remedial juri'sdiction in the event the
grievances are upheld. The Board was advised that
the union will be seeking, inter alia, a direction
that the employer take specific action against Mr.
Erickson and Mr. O'Donnell, namely, that they be
transferred or discharged. The issue between the
parties was whether the Board had the jurisdiction
to make such a remedial order. Employer counsel
assured the Board that Mr. Erickson and Mr.
O'Donnell received notice of this proceeding and
that both had indicated that they did not wish to
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participate in the hearing on the issue of the
Board's remedial jurisdiction However, the
parties felt that it was necessary to obtain a
r4ling from the Board ,on this issue prior to
hearing the merits of the grievances, so that Mr.
Erickson and Mr.. O'Donnell would be able to make an
informed decision. whether to participate .in the
hearing with their own counsel as affected third
parties.
The Board having agreed to the parties' ,.
request, the issue to be determined was framed as
follows: ,
Does the Grievance Settlement Board have " - ,
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jurisdiction to direct the employer to
take any specific disciplinary action
against a member of management, as a
remedy in a sexual ha1;'assment
/discriminatlon grievance?
The Board's decision is summarized at pp. 22-23 as
follows:
To summarize then our decision flowing from
all of the foregoing, we find that, if based on all
of the evidence the Board concludes that it is ~
absolutely necessary to direct the employer to take
specif ic disciplinary action against a member of
management, i'norder to reme,dy a grievance, it has
the jurisdiction to do so. Because such an order
is absolutely necessary, it is remedial in nature,
and within the Board's jurisdiction. The fact that
such an order may have the incidenta! resul t of
penalizing the member of management, and of
encroaching into areas reserved to tlle employer as
exclusive management rights, does not mean that the
Board must decline to exerci~e its authority to
remedy a violation of the collective agreement
found to. exist.
The other side of the coin is that if the
Board is satisfied that other remedial orders can
reasonably be expected to provide full redress, the
direction of specific discipline takes the flavour
of a pqnitive direction which will be beyond the
jurisdiction of the Board. Then it is also an
unauthorized usurpation on the part of the Board of
the management's exclusive functions
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Having regard to the reasons the parties
sought a ruling on this issue, the short answer is
that the Board has jurisdiction to direct the
removal of a harasser through a tra,nsfer or
discharge, if the Board concludes on the basis ,of
the evidence that the particular order sought is
absolutely necessary to finally and effectively
remedy these grievances.
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At the hearing that led to the foregoing interim
decision, the employer counsel was Ms. Anna Gulbinski. At the ,
hearing into the merits, Mr. Leonard MarVy ( "employer
counsel It) replaced her. The hearing into the merits commenced
on October 14, 1994 and was continued on October 27, 1994. At
the commencement of the next hearing day November 15., 1994,
employer counsel made the present motion that the Board should
reconsider its interim decision dated October 11, 1994 and
rehear arguments on the issue.
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Empl6Y$r counsel submitted that the, Board should permit
him to re-argue the issue that was the subject of the interim
decision, -because ih his opinion relevant legislative
provisions which had a bearing on the extent of the Board's
remedial juris4iction had not been brought to the attention of
the Board. Counsel contended that at the previous hearing
relevant provisions in the regulations under the Rublic
Service Act had not been brought to the attention of the
Board More importantly, he submitted that his predecessor
counsel had made her submissions on the basis of the Crown
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Employees Collective Bargaining Act (lithe old Act") It was
his ~iew that these grievances, which were filed between
November 26, 1992 and April 19, 1993, ought to have been
governed by Bill 117, (lithe new Act"), which received Roy~l
Assent on January 19, 1994. Counsel sub~itted that the Board
should tak~ the unusual action of rehearing the jurisdiction
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issue in these circumstances, where the Board had ~ot had the
benefit of legal arguments based on applicable legislation
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which had a direct impact on the very issue the Board wa~
called upon to decide.
Once employer coun~el made this motion, the parties
agreed that the Board should hear submissions on the motion
and make a ruling, while the hearing into the merits (which
the parties estimate will require about 30 he~ring <;lays)
continued. At the hearing convened on January 5 and 6, 1995, .
the parties mad~ extensive submissions on ~ number of complex
issues. Counsel gave their interpretations of the transition
prov~sions of Bill 117 and whether that Act or the old Act
applied to these grievances. If the Board conc~udes that the
old statute governed, the parties disagreed as to whether or
not the Board was functus officio with regard to the remedial
jurisdiction issue it had determined in its interim decision.
If the Board concluded that Bill 117 applied, the parties
disagreed as to the effect of that legislation on the Board's
remedial jurisdiction. While employer counsel took the
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position that Bill 117 would have led the Board to a different
concl~sion from the one it made in its interim decision,
counsel for the union submitted that the new legislation would
not have made any di"fference because in her view that
legislation, in fact conferred on the ~oard broader remedial
jurisdiction than under the old Act. The parties argued about
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whether the Board had jurisdiction to reconsider or revoke its
decisions under either the old or new legislation. Finally, ~
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the parties made submissions on policy consid.erations arid
whether in the particular circumstances, the Board ought to
e~ercise its discretion to reconsider its decision and rehear
arguments, even if it had jurisdiction to do so under the
applicable legislation.
it must be emphasized that the issue in dispute was
~
agreed upon by the parties and a specific question was put to
the Board. The particular proceeding was akin tea stated
case. Both parties requested that the Board 'determine an
agreed upon question prior to commencing the hearing on its
merits. The Board provided full opportunity to both parties
to make sUbmissions on the issue in dispute and determined the
very question put to it, in its decision dated October 11,
1994.
Of utmost significance is the fact that both Bill 117 and
the regulations under the Public Service Act, now relied on by
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7
the present employer counsel, were in existence in the present
form at the time of the original hearing. Thus it .was open
for the then employer counsel at that hearing to have made the
same' arguments that employer counsel now seeks to make. Even
though employer counsel attempted to couch his request in a
different light, he is in effect stating that. the previous
~
employer counsel failed to make certain legal arguments that
\ could have been made He now wishes to have .a second
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opportunity to try a different argument in the hope of
persuading the Board to accept the employer's position.
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In our view, we need not determine any - of the legal
disputes raised by the parties as to which statute, the old
Crown Employees Collective Bargaining Act or the new Bill 117,
applied to these'~rievances or whether the Board has the power
to reconsider its decisions under either statute. If such a
power existed under the applicable statute, there can be no
doubt that it would be a discretionary. power. We are ,of the
view, that even if we had the power to reconsider our previous
award and rehear submissions on the issue this is simply not
an appropirate case to do so It is of pa~amount importance
from a policy point of view that the Board's decisions have
finality. Indeed this is mandated by the Board's constituent
legislation. The decision dated October 11, 1994, even though
determininq an interim issue, was a final decision on that
issue. The parties put a specific issue before the Board and
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8
the Board fully answered the issue i;lnd there was nothing left
to be done on that issue. To permit employer counsel during
the hearing into the merits to re~qrgue the very same issue
because upon review he has concluded tQ.at th:ere were other
legal arguments which could have per~uaded the Board, would
seriously erode the finality of th~ Board's dec;:isions.
~
Employer counsel relied on Chandler v. Alberta Assn. of
Architects" (1989) 62 D.L.R. (4th) 577 (S.C.c.), where Sopinka
J. advo~ated a more flexible and less formalistic approach in
applying the doctrine of "Functus Officio" in proceedings
before administrative tribunals. Co~ns~l su~mitted that the
employer may face serious prejudice if the Bo~rd refused to
reopen the case, becq~se the Board's deci~ion dated october
11, 199-4, which in his view was 1l\ade without considering
relevant legislative 'provisions, would- stand as a precedent in .
other hearings before the Board. He pointed out that the
employer was not in a position to judicially review the Board
decision, because as- a policy the Divisional Court refuses to
entel;"tain applications fQr judicial revi,ew of interim
decisions relating to remedial jurisdiction, unless anQ until
the Board in fact had exerci~ed the jurisdiction-.
-
We do not see prejudic;::e as a compelling reason to
.exercise our reconsideration power, assuming. such a power
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exists. At p. 596 of the Chandler decision Sopinka J
observed as follows:
To this extent, the principle of funct;us.
officio applies It is based, however, on the
policy ground which favours finality of proceedings
rather than the rule which was developed with
respect to formal judgments of a court whq$e.
decision was subject to a full appeal. For this
reason I am of the opinion that its application {
must be more flexible and less formalistic in
respect to the. decisions of administrative
tribunals which are subject to appeal only on a
point of law. Justice may requir~ the reopening of ,
administrative proceedings in order to provide
relief which would otherwise cbe available on
appeal.
It is apparent that Mr. Justice Sopinka's concern about
strictly applying the doctrine of "Functus Officio" is the
absence of a right of appeal from most administrative tribunal
decisions, except on a point of law. This concern does not
arise in our case because the Board's interim decision was
.
solely concerned with a point of law, namely the extent of the
Board's remedial jurisdiction. That would be clearly an issue
which is subject to judicial review. Therefore we find that
we are functus officio with regard to the issue that was
determined.
If at the end of the proceeding the Board exercises the
remedial jurisdiction it found to exist, the employer would
then be in a position to have that decision reviewed by the
courts. If on the other hand there is no exercise of that
jurisdiction by the Board, either because the grievances fail
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10
or because the Board finds that such a remedy was
inappropriate in the particular circumstances, the employer
would suffer no. prejudice. The employer would not face any
practical consequences from the Board's interim decision, as
far as this:partic~lar case is concerned. In any future case
it would be open for the employer at that time to make any new
legal submissions it deems appropriate. If our interim
decision had not considered those legal arguments, the panel '" ,
hea~ing the particular case would be obliged to consider the
merits of the legal arguments presented to it.
For the foregoing reasons it is our finding that, even if
we had the power to reconsider and revoke our decision dated
October 11, 1994, in the particular circumstances of this case
we ought not to use our discretion to exercise that power.
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Therefore, the employer's motion fails.
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Dated this 15th day of March 1995 at Hamilton, ontario
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N . Di~sanayake
~~rs .
T.Browes-Bug
Member
4/JJ2tcX
M. Milich
Member