HomeMy WebLinkAbout2015-1660.Patterson.17-03-21 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#2015-1660, 2015-1661, 2015-2196, 2016-0106, 2016-0107
UNION#2015-0629-0019, 2015-0629-0020, 2015-0629-0022, 2016-0629-0001,
2016-0629-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Patterson) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING December 5, 2016
- 2 -
Decision
[1] Prior to this matter proceeding to hearing, the Union provided the following
particulars to the Employer and the Board:
• The grievances before the Board in this hearing are:
o 2015-1660 (2015-0629-0019): failure to deal with workplace
harassment and bullying, filed July 6, 2015
o 2015-1661 (2015-0629-0020): failure to respond in a timely
manner, filed July 6, 2015
o 2015-2196 (2015-0629-0022): failure of managers to deal with
WDHP complaint in timely manner, filed Sept. 17, 2015
o 2016-0106 (2015-0629-0001): failure to deal with the issues,
including that of the duty schedule, filed March 4, 2016
o 2016-0107 (2015-0629-0002): continuing failure to deal with the
issues of harassment and bullying, filed March 8, 2016
• The grievor has been employed in the Ministry and/or in the Ministry of
Children and Youth Services in the Sudbury area since 1982.
• For the first 26 years she worked as a Correctional Officer or Youth
Worker in custodial facilities. In 2008 she was transferred to the
Sudbury Probation and Parole Office as a Probation and Parole
Officer.
• In the period up to and including 2008, the grievor had been active in
the Union. Her work and engagement in the Union brought her from
time to time into conflict with management. In the period prior to her
transfer to Probation and Parole, the grievor had filed a number of
grievances. The transfer was part of a settlement of those grievances
incorporated into a Memorandum of Settlement signed by the parties
on September 25, 2008. One of the terms of the settlement (Paragraph
15) provided that “this settlement is meant to give the grievor a ‘fresh
start’”. All parties agreed “to undertake to implement it in good faith”.
The grievor says that she has fulfilled her commitment under the MOS
at all times.
• The Union says that the Employer has failed to fulfill its commitment
under Paragraph 15.
• Paragraph 14 of the MOS confers on Vice-Chair Abramsky jurisdiction
to resolve disputes. The Union requests that the Employer consent to
- 3 -
transferring jurisdiction for resolving any dispute in respect of
compliance with Paragraph 15 to Vice-Chair Briggs.
• From beginning of the grievor’s time at the Sudbury Probation and
Parole Office a number of employees expressed strongly negative
feelings against the grievor. This was conveyed in body language and
verbally including their tone of voice in conversation with her. As noted
in paragraph 11 below, this escalated to physical assault on three
occasions. The grievor was totally ostracized and excluded from many
things within the office and from functions outside the office involving
the staff. Three employees, (names omitted for the purposes of this
decision) essentially didn’t talk to her unless it was unavoidable
because of the work of the office. They haven’t done so since the
grievor arrived at the office. A few of the staff who did treat the grievor
with respect and in a friendly manner eventually left employment in the
office. As they left things got even worse.
• Ms. A. was the leader of the negative reception the grievor received.
Ms. A. and the grievor knew each other for many years before the
grievor came to the Probation and Parole Office. They weren’t
particularly close but were on friendly terms. The grievor was surprised
and shocked at Ms. A’s intensely negative attitude and behavior
towards her from the outset. The contrast heightened her awareness of
the negativity.
• From the beginning of the grievor’s assignment to the P and P Office,
Ms. A’s very negative attitude escalated over the years and included
Ms. A. persistently and increasingly making derogatory comments to
and about the grievor, frequently giving her “dirty looks”.
• The grievor quickly came to believe that Ms. A’s attitude towards the
grievor, and that of others who followed Ms. A’s lead on this, was
based on the fact that Ms. A. had learned, though not from the grievor,
that the grievor’s appointment was the result of the settlement of her
grievances. The grievor’s appointment was understood by Ms. A. and
others in the office to have deprived another employee in the P and P
Office, Ms. B., of the position to which the grievor was appointed. Ms.
B. had a contract position and had expectations that she would have
got the job if it hadn’t been given to the grievor. There was no other
reason the grievor can think of for their negative attitude and conduct.
Ms. A. confirmed this in a conversation with another person in the
- 4 -
office. Ms. A.’s husband who works at the Sudbury Jail also confirmed
it in a discussion with an employee at the Jail.
• On February 5, 2015 and again on February 11, 2015 Ms. A. physically
assaulted the grievor at work, on two occasions putting her hands on
the grievor and pushing her. Another similar incident happened around
the same time. The details of the assaults are set out in the grievor’s
WDHP complaint.
• The grievor reported the assaults to the police and to the Employer,
locally and at the regional level. After her discussions with the police,
the grievor decided to use the internal processes available to her as an
employee in the Ontario Public Service, to raise the issue and to seek
a remedy, including that the assaults and other negative conduct were
stopped. Included in those efforts were the filing of a WDHP complaint
and reporting the conduct directly to management.
• Notwithstanding, Ms. A.’s harassing and bullying behavior towards the
grievor continued to escalate, sometimes in front of the grievor’s
clients.
• On March 6, 2016, for example, the grievor attended a charity event
along with other co-workers. Ms. A. attended. She and a co-worker
who was with her, Ms. C., “cold-shouldered” the grievor in a manner
that was entirely obvious to others, including the other co-workers.
Their action could only have been intended to publicly snub and
humiliate the grievor. Ms. A., followed by Ms. C., then made a show of
turning away and leaving the event because they disapproved of the
grievor and her presence at the event. The grievor was deeply hurt and
humiliated by Ms. A.’s conduct and that of Ms. C. Relations with Ms. C.
have been tense ever since.
• On a number of occasions, the Grievor asked the Regional Director
(RD) to deal with the increasingly difficult situation. The RD promised
she would look into the issues and deal with them. The grievor never
heard back from the RD or anyone from her office. Nor were the issues
dealt with. The Employer took no steps, to the knowledge of the grievor
or the Union, to put an end to the negative conduct towards the
grievor, and hasn’t to this day.
• The conduct of Ms. A. and the other staff was well known to
management because they were able to observe it and because the
- 5 -
grievor frequently complained about it, asking that management
intervene to end it. Management knew and ought to have known that
the negative conduct had a seriously deleterious effect on the grievor’s
health.
• The Employer’s response to the grievor’s complaint about the conduct
of Ms. A. and the others towards her was slow and inadequate. The
WDHP investigation was repeatedly delayed. The area manager acted
as if she were afraid of Ms. A. and did nothing.
• The excessive period of time it took for the investigation to be launched
and concluded was particularly stressful. The grievor was advised that
a manager would be in the office at all times while the investigation
was proceeding so as to afford the grievor some protection in the event
of retaliation by Ms. A. The promise was not kept. In view of the earlier
assaults the grievor was concerned for her safety.
• To the stress of the situation with Ms. A. and the others was added a
failure on the part of management to provide the grievor with a
functioning computer application essential to her work. It was due to
start up in January of 2015 and wasn’t operative for four and a half to
five months. Only after the grievor filed a grievance was anything done
to remedy the situation.
• In October, 2015 two managers from Corporate Office attended at the
Sudbury office and conducted interviews into the complaints from the
office. As of March, 2016, nothing had been heard in the office despite
promises made in October that recommendations to deal with the
situation would be forthcoming quickly. The Sudbury manager said in
March that she knew nothing and had heard nothing.
• The grievor sought medical attention as a result. Medication was
prescribed and the grievor has been required to stay on medication
since 2014 as a result.
• The grievor has suffered significant mental, emotional and physical
distress as a result of the Employer’s failure to deal with or prevent the
harassment and bullying to which she was subjected.
• The first two grievances (2015-1660 and 2015-1661) are very similar.
They were filed July 6, 2015 and were based on the facts outlined
above up to and including that date.
- 6 -
• By September 17, 2015, the date of the third grievance (2015-2196),
the failure of the Employer to process the grievor’s WDHP complaint
provoked another grievance.
• The fourth grievance (2016-0106) filed March 4, 2016 involved a failure
by the Employer to deal with the duty schedule problem.
• Finally, the fifth grievance (2016-0107) filed March 8, 2016 was based
on the failure of the Employer to deal with the issues described above
and which were continuing.
• The Union seeks general damages for pain, loss of dignity and
humiliation, and for pain and suffering and a direction that the
Employer take immediate steps, in consultation with the grievor and
the Union, to correct the issues in the workplace, and such other
remedies as the Board sees fit. The Union asks the Vice-Chair to
retain jurisdiction on remedy to resolve any disputes between the
parties on this issue.
• The Union requests full disclosure and production by the Employer of
all documents, including emails, in the possession of the Employer
relevant to the issues raised in this matter.
[2] During a conference call held subsequent to the delivery of the above particulars
the parties agreed that it makes much labour relations sense for the Board to first
hear submissions regarding what remedy could be provided by this Board. A
hearing day was held for this purpose.
[3] The Employer agreed to admit the above particulars as proven for the purpose
only of this preliminary motion. Indeed, it strongly urged that in the event the
hearing proceeds on the merits, it would call evidence to the contrary of much of
what is set out in the particulars.
[4] The parties were agreed that these grievances proceed in accordance with
Article 22.16 and therefore this decision is without precedent or prejudice.
[5] This decision deals only with the Employer’s preliminary motion.
- 7 -
EMPLOYER SUBMISSIONS
[6] Mr. Dailleboust, for the Employer, submitted that – in a nutshell – this Board is
precluded from awarding the compensatory damages sought by the grievor in
accordance with Re OPSEU v. Ontario (Ministry of Community Safety and
Correctional Services and Ministry of Children and Youth Service - Monk et al)
[2010] O.G.S.B. A. No 119 (Gray), upheld by Divisional Court [2012] O.J. No.
4301 and the Court of Appeal [2013] O.J. No. 2369. It was noted that all of the
grievances before this Board refer to violations of Articles 2, 3, and 9 of the
Collective Agreement – that is to say, Management Rights, No
Discrimination/Employment Equity and Health and Safety. Violations of Article 9
are at the very centre of Re Monk and Vice Chair Gray determined, at paragraph
110 that:
I find that this Board cannot award a grievor damages “for or by
reason of an accident happening to the worker or an occupational
disease contracted by the worker while in the employment of the
employer” if the alleged accident or disease is or was compensable
under the WCA/WSIA, whichever applies.
[7] Accordingly, the only provision left for this Board to consider is Article 3. Article 3
states:
3.1 There shall be no discrimination practiced by reason of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, marital status, family status, or
disability, as defined in section 10 (1) of the Ontario Human Rights
Code (OHRC).
3.2 The shall be no discrimination or harassment practiced by
reason of an employee’s membership or activity in the Union.
3.3 The Parties are committed to a workplace free from workplace
harassment, including bullying, by other employees, supervisors,
managers, any other person working or providing services to the
Employer in the workplace, clients or the public, in accordance with
the law. Workplace harassment is engaging in a course of
vexatious comment or conduct against an employee in the
workplace that is known or ought reasonably to be known to be
unwelcome.
3.4 It is recognized that in accordance with section 14 of the
Ontario Human Rights Code, the Employer’s employment equity
program shall not be considered a contravention of this article.
[8] It was noted by the Employer that there is no allegation of discrimination based
on an enumerated ground under the Ontario Human Rights Code (“OHRC”) in
the grievances before this Board or as set out in the particulars.
- 8 -
[9] The Employer asserted that Article 3.3 is a relatively new provision in the
Collective Agreement introduced in 2012 subsequent to the passage of Bill 168.
It is this clause that the Union relies upon in the grievances at hand. There is a
difference between damages as a result of violations of the OHRC – as set out in
Articles 3.1 and 3.4 – and allegations of workplace bullying and harassment on
non-enumerated grounds.
[10] It was contended by the Employer that the phrase “in accordance with the law”
found in Article 3.3 refers to the Ontario Health and Safety Act (“OHSA”). Indeed,
a review of Article 3.3 and OSHA reveals that the words used are virtually
identical. Therefore, when contemplating whether the WSIA would apply and
disentitle this Board to award compensatory damages, Article 9.1 and 3.3 stand
in the same shoes. Both refer the OSHA and therefore the restriction from
awarding damages applies.
[11] Mr. Dailleboust said that it is long standing and trite law that this Board can order
damages as the result of a breach of the OHRC as set out in Articles 3.1 or 3.4.
However, the decision in Re Monk – which was upheld in the Court of Appeal -
precludes the Board from awarding damages as the result of workplace bullying
and harassment on non-enumerated grounds. If an injury – or illness – could
attract benefits under the Workplace Safety Insurance Act, then no damages can
be ordered by this Board.
[12] The Employer submitted that it is now the law that instances of mental illness that
are directly related to employment are compensable illnesses under the WSIA. In
Re WSIAT Decision No. 2157/09 it was determined that the provision in WSIA
stating that “a worker is entitled to benefits for mental stress that is an acute
reaction to a sudden and unexpected traumatic event arising out of and in the
course of his or her employment” was an infringement of Section 15(1) of the
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
Schedule B to the Canada Act, 1982 (U.K.) 1982 c. 11 (the “Charter”) and did not
constitute a reasonable limit that could be “demonstrably justified in a free and
democratic society.” The Tribunal declined to apply the subsections 13(4) and (5)
which are the provisions of the WSIA disentitling the worker’s claim for benefits
as the result of mental stress that was not a consequence of a sudden and
unexpected traumatic event but was the result of her employment. This finding
and remedy was again applied in WSIAT Decision No. 1945/10 when the
Tribunal stated that “the worker’s claim for initial entitlement for mental stress is
granted.”
- 9 -
[13] For all of these reasons, according to the Employer, this Board should grant the
preliminary motion and state that it is without jurisdiction to award damages for
mental distress that resulted from bullying and workplace harassment.
UNION SUBMISSIONS
[14] Mr. Brewin, for the Union urged this Board to deny the Employer’s motion
because there has been no injury – as that term is used in Re Monk – in the case
at hand. To be clear, there is no allegation of an illness or disease. What is the
essence of the matter before this Board is “unchartered territory.” It is clear from
the jurisprudence that a human rights breach by the Employer is excluded from
the limitation of jurisdiction to award damages.
[15] Before this Board are a number of grievances that contemplate injuries which
may arise from bullying, according to the Union. There is no finding by any
adjudicative body that states these injuries are compensable under the WSIA.
[16] It was noted by the Union that there is no definition for injury that would assist
this Board and therefore the plain meaning of the word should be applied. There
must be serious physical, mental or emotional symptoms to be an injury that
would rob this Board of its jurisdiction to award damages. Further, it must be a
compensable injury.
[17] The Union relied upon Re City of Toronto and CUPE Local 79 (August 11, 2015)
unreported (Herman). In that case, a city employee who witnessed a shooting
was awarded a five thousand dollar damage award. The grievor did not make a
claim of any sort under the WSIA. It was said, at paragraph 20 that the necessary
determination for the Board to make was whether the grievor “could have made a
valid claim under the WSIA for compensation for pain and suffering and/or
mental distress. It was noted at paragraph 21:
Shaw did not suffer a lasting workplace injury, it does not appear
from the evidence that he had or has any permanent impairment,
and he did not miss any work or lose any income. Neither party
referred to a section of the WSIA under which Shaw could have
made a claim for damages in these circumstances, nor was it
suggested how he could have made such a claim, where there was
no continuing injury, no permanent impairment and no loss of work
hours or income. I accordingly do not find that a stand-alone claim
by Shaw for damages or benefits could have been made to the
WSIB or would have been compensable under the WSIA. His claim
for damages for pain and suffering and/or mental distress is not,
therefore, barred by Section 26(2) of the WSIA.
- 10 -
[18] The Union urged that in this matter Article 3.3 commits the Employer to a
workplace that is free from workplace harassment including employee bullying.
Mr. Brewin took issue with the Employer’s view that the phrase “in accord with
the law” in Article 3.3 is limited to mean the OHSA. Where the parties wanted to
make specify reference to legislation by name in the various provisions of the
Collective Agreement, they did so. It is not set out in Article 3.3 and that is
because it is not just the OHSA that is to be considered.
[19] The Union also referred to the Employer’s Workplace Discrimination and
Harassment Prevention Policy which has – as its policy statement – a
commitment to “fostering and sustaining an inclusive, equitable and accessible
workplace that is respectful and free from discrimination and harassment.” Under
this policy the Employer agrees to “prevent workplace discrimination and
harassment and promote awareness of rights and responsibilities” as well as to
“identify and eliminate workplace discrimination and harassment in a timely
manner.
[20] In closing the Union urged that the grievances are about violations of Article 3.3
and a finding by this Board that general damages for these breaches is barred
from the list of potential remedies would be wrong.
EMPLOYER REPLY
[21] Turning first to the WDHP submissions made by the Union, Mr. Dailleboust
asked the Board to note that the policy itself defines harassment as “engaging in
a course of vexatious comment or conduct against an employee or other worker
in the workplace that is known or ought reasonably to be known to be
unwelcome.” The wording is strikingly similar to that of Article 3.3 of the
Collective Agreement. The WDHP policy deals with all aspects of Article 3 with
the exception of anti-union animus.
[22] Regarding the matter of compensation – or lack thereof – under the WSIA, the
Employer submitted that claims under the Act are not just for time lost but also
include “non-economic losses”. These payments are for matters that impact on
life style – that occurred in the workplace - but do not necessarily impact upon
one’s ability to earn wages. If the facts of this case were to be put before the
WSIAT, the issue would be whether this claim is a compensable injury or illness
taking into account that the genesis of the complaint occurred during the course
of the grievor undertaking her duties in the workplace.
- 11 -
[23] The Employer asked the Board to reject the finding and order in Re City of
Toronto. It was suggested that the hearing was held prior to the issuance of both
WSIA decisions and for some reason, it appears that the Arbitrator did not have
either case before him. Further, the Arbitrator in that matter declared, at
paragraph 21 that he “did not find a stand-alone claim for Shaw for damages or
benefits could have been made to the WSIB or would have been compensable
under the WSIA.” That is not the case in the matter before this Board. According
to paragraphs 21 and 22 of the particulars in evidence the grievor sought medical
attention and was prescribed medication.
[24] For all these reasons, it was urged that the Board should uphold the Employer’s
preliminary request.
DECISION
[25] After consideration of the particulars, the submissions and the jurisprudence, I
am of the view that the Employer’s motion must be upheld for the reasons set out
below.
[26] In Re WSIAT Decision #2157/09 the Workplace Safety and Insurance Appeals
Tribunal considered a claim that had been made by a nurse who was ill treated at
the hands of a physician over a twelve-year period. When she complained to her
supervisor she was told that her duties would be significantly reduced and was
arguably demoted although her classification did not change. She was unable to
continue to work and sought medical and psychiatric treatment. She was
diagnosed with an adjustment disorder with mixed features of anxiety and
depression which was thought to be as a direct result of her work environment in
the view of her medical practitioners. She applied for benefits under WSIA but
was initially denied because she did not have “an acute reaction to a sudden and
unexpected traumatic event” which was the only mental illness that was covered
by Sections 13(4) and (5) of the WSIA.
[27] The nurse’s union appealed the matter and argued that the finding was contrary
to section 15 of the Canadian Charter of Rights and Freedoms Part 1 of the
Constitution Act 1982, Schedule B of the Canada Act, 1982, (U.K.) 1982, c. 11.
[28] In the well-reasoned decision of the Tribunal, it was ultimately found, at
paragraph 278, that “the lines drawn are not consistent with the evidence and the
impugned provisions do not represent a reasonable or equitable approach to the
identified purpose of establishing the work-relatedness of mental disorders.”
- 12 -
Accordingly there was no justifiable reason to infringe on the claimant’s Charter
rights by section 1.
[29] In Re WSIAT Decision # 1945/10 the Tribunal addressed whether it should find
that Section 13 of the WSIA should not apply to the case before it. In its
determination to uphold the worker’s appeal, the Tribunal stated, at paragraph
34:
The present Panel is persuaded, by the reasoning and the analysis
of the evidence in Decision No. 2157/09, as supported by the
evidence and submissions made to us, and in the absence of
contrary submissions, that the analysis and findings in Decision No.
2157/09 should be followed in the present case. In particular, we
are persuaded of the following:
• The purpose of subsections 13(4) and (5) of the WSIA was
to exclude certain types of injuries from entitlement to
benefits under the Insurance Plan.
• The intent of the legislation was to treat a claim for a chronic
stress injury resulting in mental disability differently from a
gradual onset physical injury, and differently from an acute
onset mental injury.
• The provisions thereby created a distinction between
workers who suffer a work-related mental disability and
those who suffer work-related physical disability.
• The provisions exclude from the historical trade-off workers
who suffer a mental disability as a result of gradual-onset
work related stress by either excluding them entirely from
entitlement to benefits from the Insurance Plan or subjecting
them to entitlement criteria that implies that their
injury/disability is the “real”.
• This distinction creates a disadvantage by perpetuating
prejudice or stereotyping because it assumes that the work-
relatedness of a gradual onset mental disability cannot be
reliably established.
• It also implies that such claims have less veracity.
• Individuals with a mental disability are at a historical
disadvantage, a fact not challenged in the present case.
• The distinction has no ameliorative purpose nor is there a
reasonable degree of correspondence between the
differential treatment and the reality of individuals with
mental disability.
• Mental disability is an enumerated ground in subsection
15(1) of the Charter.
- 13 -
• The provisions of subsections 13(4) and (5) of the WSIA are
not saved by section 1 of the Charter as a reasonable limit
demonstrably justified in a free and democratic society.
[30] The appeal was allowed and because the earlier decision determined that the
worker would have had entitlement but for sections 13(4) and (5), the claim for
benefits was granted.
[31] In consideration of the Employer’s preliminary motion it is necessary to consider
the view of Vice Chair Gray as set out in Re Monk, at paragraph 111:
In determining whether this restriction applies to any particular one
of the grievances that allege adverse health effects resulted from
exposure to second hand smoke, the question is not whether a
claim for compensation was made and granted under the pertinent
statute in respect of the injury or illness alleged in the grievance.
The proper question is whether an injury or illness of the sort
alleged by the grievor would be or would have been compensable
under the applicable statute if proven. If that question has been
answered in proceedings under the WCA/WSIA, then that answer
governs. If that questions has not been answered in proceedings
under the WCA/WSIA, either because no claim for compensation
has been made with respect to the alleged injury or illness or
because such a claim was refused for reasons from which it is not
apparent whether the tribunal considered an injury or illness of the
sort alleged to be compensable in nature, then in any case in which
the parties cannot agree on the answer I will have to determine the
question myself, as arbitrator Sim did in the University of
Saskatchewan matter, subject to any contrary ruling that the union
or grievor may be able to obtain in proceedings under the
WCA/WSAI. (emphasis not mine)
[32] The parties have asked this Board to determine – assuming that the facts as set
out in the particulars are proven to be true – whether damages would be
awarded to the grievor. It is to be recalled that in the particulars provided to this
Board the following was stated:
• The grievor sought medical attention as a result. Medication was
prescribed and the grievor has been required to stay on medication
since 2014 as a result.
• The grievor has suffered significant mental, emotional and physical
distress as a result of the Employer’s failure to deal with or prevent
the harassment and bullying to which she was subjected.
[33] In considering this matter I have taken into account that in order to have a “viable
claim” it is not necessary to have lost wages. I agree with the submission of the
- 14 -
Employer in that regard. I also agree with the Employer that the phrase “in
accordance with the law” in Article 3.3 refers to the OSHA. Given the virtually
identical phrasing – it would be difficult to come to a different view.
[34] Accordingly, given the frequent reference to stress and the grievor’s claim in her
particulars, I am of the view that there is “an injury or illness” of the sort that
“would be or would have been compensable under the applicable statute,” as set
out in Re Monk.
[35] The Union relied upon Re City of Toronto. I note that the Arbitrator appears not to
have been given the decisions of Worker’s Safety and Insurance Tribunal Re
Decisions #1945/10 and 2157/09. I have found those decisions of tremendous
assistance in the determination of this matter. For that reason and with the
greatest respect, I do not find the decision in Re City of Toronto persuasive.
[36] For all these reasons, the Employer’s preliminary objection is upheld.
[37] This matter will continue as scheduled.
Dated at Toronto, Ontario this 21st day of March 2017.
Felicity D. Briggs, Vice-Chair