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HomeMy WebLinkAbout1998-1665.Gareh.02-09-16 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#1665/98 0336/99 0311/00 0312/00 0313/00 UNION#99B072,99B073 99B507 00A384 00A385 00A386 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Gareh) Grievor -and- The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Steve Wahl, Counsel Koskie Minsky BarrIsters and SOlICItorS FOR THE EMPLOYER Len Marvy Sr Counsel MeredIth Brown, Counsel Management Board Secretanat HEARING June 16 July 6 Aug, 23 Sept. 11 Nov 15 & 16 Dec 20 & 21 2000 Oct. 29 & 30 Nov 8 9 & 29 Dec 6 13 14 & 19 2001 Jan, 10 11 & 17 July 3 4 10 & 15 2002 2 DECISION DebbIe Gareh IS an unclassIfied court reporter SIX gnevances by her were consohdated and heard together by agreement of the partIes 1 The first gnevance IS dated November 10, 1998 and states I gneve a vIOlatIOn of artIcle 3, 9 1, 31 11 1, 31 15 specIfically but not exclusIvely The employer IS actmg m bad faith, dIfferentIal treatment, harassment m work assIgnments I feel that my workplace IS a pOIsoned enVIromnent 2 The second gnevance IS dated March 17, 1999 and states I gneve a vIOlatIOn of artIcle 3, 9 1 The employer has acted m bad faith I contmue to be harassed. My manager has created a pOIsoned work enVIromnent and contmues to by resortmg to an assault on me 3 The tlurd gnevance IS dated March 28, 2000 and states I gneve that the memo dated March 8, 2000 from Susan MIgnardI IS totally maccurate and untrue and agam a contmuatIOn of harassment, dIscnmmatIOn and also mtllnIdatIOn Art 3 & 21 4 The fourth gnevance IS also dated March 28, 2000 and states I gneve that I have been dIscIphned wIthout Just cause m that I was replaced as court reporter m the court that I was assIgned to and a contmumg vIOlatIOn of artIcle 3 5 The fifth gnevance IS dated Apnll0, 2000 and states I gneve that I have been dIscIphned wIthout Just cause m a letter dated March 28, 2000 ThIS letter contams slanderous and mahcIOus statements and IS not a true representatIOn of dIscussIOns 3 that occurred March 9 & 20/2000 Art 21 & 3 exclusIvely but not specIfically 6 The sIxth gnevance IS dated June 15,2000 and states Pursuant to my servmg a step 1 m dIscussIOns wIth Susan MIgnardI, Manager of Court Reporters, m her office on the 3rd floor at 2 05 p.m on Monday, June 5, 2000 m that I alleged that unfairness & dIscnmmatIOn & a contmumg pOIsoned work envIromnent IS stIll bemg condoned m our office I specIfically but not exclusIvely gneve R. v Parnum bemg heard m front of Ewaschuk J whIch IS a long tnal that IS bemg reported by Courtney MIddleton & shared wIth Crystal DeIstmg, two reporters who I submIt are 'favountes" on the staff and who have an mordmate amount of long, lucratIve tnals m the courthouse I gneve artIcles 3& 21 and any other artIcles that are apphcable to dIscnmmatIOn, unfairness m workplace, pOIsoned work enVIromnent The alleged contraventIOns of the collectIve agreement IdentIfied by umon counsel fall mto five categones (1) a vIOlatIOn of artIcle 31 15 based on the employer's refusal to convert the gnevor to classIfied status, (2) rehgIOus dIscnmmatIOn contrary to artIcle 3 1, (3) harassment on grounds other than rehgIOn constItutmg a vIOlatIOn of artIcle 31 11 1 dealmg wIth health and safety, (4) dIscIphne wIthout Just cause contrary to artIcle 21 1, and (5) a vIOlatIOn of an Imphed duty to ensure a fair and reasonable dIstributIOn of opportumtIes to earn mcome from transcnpt productIOn--a duty asserted by the umon and demed by the employer The gnevor also alleges she was slandered by the memo, dated March 28, 2000 to her from Susan MIgnardI As slander IS verbal whereas hbelIs wntten, I wIll treat tlus allegatIOn as deahng wIth hbel not slander I 4 At the conclusIOn of the umon's case, counsel for the employer made a motIon for a non-smt Counsel for the umon dId not object to tlus motIon bemg entertamed wlule the employer retamed the optIOn of leadmg eVIdence If the motIon was demed. The partIes agree my task m ruhng on a motIon for non-smt IS not to detennme whether the umon has proven ItS case on the balance of probabIhtIes, at least not m the way I would make that sort of detennmatIOn after both sIdes had closed theIr cases There IS also agreement that at tlus stage m the proceedmgs the credibIhty of the umon' s wItnesses should not be scrutImzed and all mferences reasonably supported by dIrect eVIdence should be made m favour of the umon and gnevor However, the partIes dIsagree on two pomts The first IS what weIght should be gIven to the testImony of a wItness on a pomt about whIch he or she has provIded contradIctory accounts The second IS how much eVIdence the umon needs to have adduced m order to defeat the motIon for non-smt Umon counsel contends all that IS reqmred IS "some" eVIdence of probatIve value, whereas counsel for the employer contends there must be "sufficIent" eVIdence The standard of "sufficIent" eVIdence was adopted by the Ontano Court of Appeal m Hall v Pemberton (1974), 5 O.R. (2d) 438, page 439, where the Court quoted wIth approval the followmg passage from Paifitt v Lawless (1872), 41 L.J.P &M. 68 I conceIve, therefore, that m dIscussmg whether there IS any case eVIdence to go to the Jury, what the Court has to consIder IS tlus, whether, assummg the eVIdence to be true, and addmg to the dIrect proof all such mferences of fact as m the exerCIse of reasonable mtelhgence the JUry would be warranted m drawmg from It, there IS suffiClent to support the lssue (pages 72, emphasIs added) 5 The only reasonable mterpretatIOn of "sufficIent to support the Issue" IS adequate to allow a Jury to rule m favour of the party resIstmg the non-smt In other words, a Judge ruhng on a non-smt motIon m a Jury tnal, assummg wItnesses to be credible and makmg all reasonable mferences m favour of the party resIstmg the non-smt, must detennme whether the eVIdence IS "sufficIent" m the sense that It could lead a properly mstructed Jury to rule m favour of that party The standard of "sufficIent" eVIdence was agam apphed by the Court of Appeal m Re Gallant and Roman Catholzc Separate School Board of DlstrzCt of Sudbury (1985) 56 O.R. (2d) 160 In deahng wIth such a motIon, a Judge must decIde whether sufficlent przma facle eVldence has been presented by the apphcant At tlus stage, the plamtIff [opposmg the motIon] IS entItled to have the facts mterpreted m the manner whIch IS most favourable to hun or her Hall v Pemberton (page 167, emphasIs added) In advocatmg a lower standard of "some eVIdence," counsel for the umon rehes upon the decIsIOn of the DIvIsIOnal Court m Ontarzo v OPSEU ((>ahoon), (1990),37 O.A.C 218 quaslung a decIsIOn of the Gnevance Settlement Board whIch had allowed a motIon for non-smt brought by the umon m that case The Court wrote The Board began by settmg out ItS understandmg of a non-smt WhIle It held that a przma facle case had not been made out, ItS reasons make It clear that It beheved a przma facle case had to be estabhshed on the balance of probabIhtIes ThIS IS, of course, mcorrect The standard of proof on a non-smt IS that of a przma faCle case, not a case on the balance of probabIhtIes If a przma facle case has been shown a non- smt must not be granted. It IS erroneous to detennme a non-smt on the basIs of the hIgher onus of the balance of probabIhtIes A przma facle case IS no more than a case for the defendant to answer 6 A motIon for non-smt m modem practIce IS made by the defendant, contendmg that the tner of fact should not proceed to evaluate the eVIdence m the normal way, but should dIsmIss the actIOn The defendant must satlsfy the tnal judge that the eVldence lS such that no jury actzng judlczally could find zn favour of the plazntfff The decIsIOn of the Judge m both Jury and non-Jury actIOns IS a questIOn of law Sopmka, The Tnal of An Actzon, p 124 (Butterworths) The "normal way" m a cIvIl actIOn would be on the balance of probabIhtIes Where aJudge IS sIttmg WIth a JUry, the Issue IS whether there IS some eVldence to support the darm If there IS, the case goes to the Jury If there IS none, It does not (emphasIs added) The DIvIsIOnal Court's comment that a motIon for non-smt should be dIsmIssed If there IS "some eVIdence to support the claim" must be mterpreted m the context of the Immediately precedmg passage from Sopmka's The Tnal of an Actzon saymg the Issue to be determmed by the Judge IS whether "no Jury actmg JudIcIally could find m favour of the plamtIff" Based upon the DIvIsIOnal Court's apparent approval of thIS passage, I understand the Court's reference to "some eVIdence to support the claim" to mean eVIdence whIch could lead a Jury (or some other tner of fact) to nlle m favour of the party opposmg the motIon, If the tner of fact found that party's wItnesses to be credible and made all reasonable mferences m ItS favour ThIS standard IS no dIfferent m substance than the test of "sufficIent" eVIdence utIhzed by the Court of Appeal m the Hall and Gallant cases In the case at hand, I must decIde the motIon for non-smt as well as serve as the tner of fact At thIS stage, my task IS to determme whether the eVIdence presented could be sufficIent to lead me to rule m favour of the umon, If I assumed ItS wItnesses to be credible and drew m ItS favour all mferences reasonably supported by dIrect eVIdence 7 It IS not logIcally possIbly to make tlus detennmatIOn wIthout takmg mto account the apphcable standard of proof whIch IS on the balance of probabIhtIes The questIOn to be decIded IS whether I could rule that the umon has proven ItS case on the balance of probabIhtIes, If ItS wItnesses are beheved and It IS granted the benefit of all reasonable mferences The decIsIOn-makmg process on a motIon for non-smt cannot Ignore the standard of proof, but tlus process entails an apphcatIOn of that standard whIch dIffers markedly from the way It would be apphed after both partIes had closed theIr case At that pomt, m detennmmg whether the umon had proven ItS case on the balance of probabIhtIes, I would scrutImze the credibIhty of wItnesses, and I would not draw mferences so as to resolve doubts m favour of the umon, because the benefit of doubt should not be granted to the party beanng the onus of proof Counsel for the employer contends no weIght should be gIven to the eVIdence of a wItness on a pomt about whIch he or she has provIded contradIctory accounts Counsel referred me to the decIsIOn of the BntIsh Columbia Court of Appeal m Fenton v Baldo [2001] B C J No 250, a case mvolvmg a pedestnan struck by a motor velucle The crucial Issue was how far the car dnven by the defendant was belund the one m front ofhlln, an expert havmg testIfied the defendant could have aVOIded the accIdent If tlus space was 19 metres or more The dnver of the front car estImated the dIstance between the two velucles as bemg as httle as 9 meters He also estImated the mterval between them as bemg as much as three seconds at a speed of fifty kllometres per hour, an estImate whIch mdIcated a space of 38 metres Upholdmg the decIsIOn of the tnal Judge grantmg a motIon for non- smt, the Court of Appeal wrote 8 As can be seen from the chart, the eVIdence relatmg to tlus crucial dIstance vanes from 9 1 to 38 4 metres Accordmgly, there IS eVIdence that he [the defendant] could not have aVOIded the accIdent and eVIdence that he could have aVOIded the accIdent There IS no eVIdence as to whIch of these two alternatIves IS the correct one I am of the opmIOn that by a proper apphcatIOn of the prmcIples concernmg a no-evIdence motIon, that If one detennmes there IS no eVIdence to be found to support whIch of two proposItIOns IS the correct one, then there IS no eVIdence that IS fit to go to the JUry (paragraphs 35 and 36) Faced wIth contradIctory eVIdence supportmg each of the only two legally relevant possibIhtIes about the dIstance between the carS--I e less than 19 metres and 19 metres or more--the Court of Appeal concluded there was no eVIdence supportmg the plamtIff s contentIOn that the dIstance was great enough that the accIdent could have been aVOIded. I accept tlus as bemg the correct approach to a contradIctIOn m the testImony of a wItness II The gnevor claims her status as an employee should be converted from unclassIfied to classIfied. ArtIcle 31 15 1 sets out two cntena for the converSIOn of a posltzon from classIfied to unclassIfied (1) the same work has been perfonned by an employee m the unclassIfied serVIce for a penod of at least two years, and (2) the employer has detennmed there IS a contmumg need for that work to be perfonned on a full-tIme basIs When a posltzon IS converted to classIfied status, there IS a tlurd cntenon, found m artIcle 31 15 2, whIch an unclassIfied employee must meet before she IS entItled to claim that posItIOn as a classIfied employee he or she must have been m the posItIOn for at least two years 9 I hmIt my analysIs to tlus tlurd cntenon In the normal course of events, It IS satIsfied by an employee workmg full-tIme hours for two years and receIvmg an hourly wage for the tune worked. ThIS IS sometlung Ms Gareh has not done Umon counsel contends tune worked at an hourly wage IS not all that should be consIdered m the mstant case I was urged also to take mto account (1) hours for whIch the gnevor was demed paid standby duty, (2) hours for whIch the umon alleges she should have been paid an hourly wage for transcribmg at home, and (3) all tune spent by her transcribmg eVIdence at home, even If she was not entItled to be paid an hourly wage for tlus work. The umon's argument about converSIOn reflects the two types of work performed by court reporters and the two types of remuneratIOn receIved by them They are paid an hourly wage by the MmIstry as employer In addItIon, when a reporter produces a transcnpt at the request of a party to a legal proceedmg, or anyone else, the reporter IS paid by the party placmg the order, wIth the amount charged per page of transcnpt bemg fixed by tanff m most, If not all, cIrcumstances When a transcnpt IS ordered by a Judge or by the provmcIaI crown, the MmIstry pays for It Reporters also receIve payment for transcnpts from defence counsel, the federal crown and cIvIl htIgants among others Reporters are paid an hourly wage not only when they are m court but also when they are on standby duty at the courthouse Ms Gareh contends she dId not receIve a fair share of standby assIgnments In partIcular, she testIfied her request for standby duty was demed on four occaSIOns m 1994 (March 24, Apnl 8 and 18, and June 27), five tunes m 1995 (October 25, November 26 and 30, and December 19 and 22), and once m 1996 (Apnl 10 10) Faced m cross-exammatIOn wIth the assertIOn that the employer capped the number of people on standby before 1998, the gnevor rephed that Penny Stewart, then manager of court reportmg, would say she had a budget The gnevor went on to say "You could get standby even pnor to 98 If you requested It, but not me " In cross-exammatIOn, Ms Gareh conceded smce 1998 unclassIfied reporters have been allowed standby whenever they were not assIgned court Asked dunng exammatIOn-m-clllef about a "standby Issue" on November 6, 1998, she rephed merely "I was upset and went home" The gnevor testIfied that, when her court finIshed at 1 30 p.m on March 20,2000, Marc Jones, the group leader, said he dIdn't need her on standby and she "could sIgn out" If she "wanted to " Accordmg to the gnevor, she elected to remam at work untIl 3 45 There IS no eVIdence that Ms Gareh was ever denIed standby duty m 1998 or subsequent years As to years precedmg 1998, Ms Gareh's complamt IS that she got fewer hours of standby duty than other reporters The UnIon mtroduced mto eVIdence court schedules hstmg who was assIgned to standby dunng each of nme weeks five m 1994, three m 1995, and one m 1996 Sundar documents were not provIded for the vast maJonty of the penod between 1994 and 1997 The gnevor's name does not appear on any of the nme weekly standby hsts provIded. Nonetheless, her testImony that she was "consIstently denIed" standby IS contradIcted by her admIssIOn that she was on standby for November 26 and 27,1997 and may have been on standby for Apnl29 and June 27, 1994 ThIS contradIctIOn coupled wIth the absence of standby hsts for most of the penod m questIOn means there IS no rehable eVIdence as to how often the gnevor was assIgned to standby In addItIon, there IS no 11 eVIdence as to how often other reporters were on standby dunng most of tlus penod. There IS eVIdence that certaIn reporters were assIgned to standby on certaIn days dunng nIne weeks when the gnevor had no such assIgnments, but there IS not sufficIent eVIdence to demonstrate the gnevor worked fewer standby hours than others dunng the penod from 1994 to 1997 Ms Gareh also claims she was demed paid transcribIng weeks--I e tune out of court spent transcribIng eVIdence and paid at an hourly rate-- whIch were granted to other reporters The gnevor IdentIfied a number of occaSIOns when she stayed at home to transcribe wIthout reCeIVIng an hourly wage Ms Gareh testIfied she transcribed the eVIdence for the TerceIra case for the seven weeks commenCIng September 26 and October 3, 10 and 17, November 21 and 28, and December 5, 1994 AccordIng to the gnevor, for SIX weeks from Apnl 23 untIl June 8, 1998, she was at home transcribIng the eVIdence for the Bernardo and Osborne cases Ms Gareh also testIfied she transcribed at home on Apnl 11, 12 and 13, 1999 The gnevor testIfied reporters, both classIfied and unclassIfied, used to be routInely granted paid transcnbIng weeks, free of all other dutIes, when necessary to catch up on a transcnpt backlog However, she conceded the employer's general practIce has changed so that a reporter wIth a transcnpt backlog IS now assIgned to standby duty In the court house for a week or so A reporter on standby IS assIgned to reportIng dutIes In court If some unexpected need anses Ms Gareh eqUIvocated as to when tlus change In practIce occurred. Dunng examInatIOn-In-cluef, she first said It happened before Penny Stewart's tenure as manager--I e sometIme before 1994 The gnevor then corrected herself and said tlus change happened when Ms Stewart left--I e 1996 FInally, the gnevor said transcribIng weeks were 12 aVailable untIl two years ago--I e 1998 In cross-exammatIOn, Ms Gareh conceded she could not recall whether the change occurred before or after 1994 Jamce Manna, a classIfied reporter called as a wItness by the umon, testIfied transcribmg weeks were elunmated m 1992 or 1993 GIven the gnevor's contradIctory eVIdence and her admItted uncertamty, the only rehable eVIdence IS Jamce Manna's testImony mdIcatmg that the general practIce of grantmg paid transcnbmg weeks ended before 1994 Ms Gareh named a few unclassIfied reporters whom she contends have gotten transcribmg weeks m recent years Asked m cross-exammatIOn about the basIs for tlus contentIOn, the gnevor said It IS based on what she had "heard" and on seemg these reporters transcribmg m theIr offices As the gnevor conceded reporters transcribe m theIr offices wlule on standby duty, what she saw offers no proof that the reporters m questIOn had been granted transcribmg weeks ThIS leaves no rehable eVIdence--I e no eVIdence other than uncorroborated hearsay--that such weeks have ever been granted smce 1994 The foregomg analysIs leads me to conclude the umon has not estabhshed a przma facle case that the gnevor was wrongfully demed standby duty or paid transcribmg weeks In the alternatIve, even If she should have been granted standby duty or transcribmg weeks on the occaSIOns she claims one or the other was demed, she would stIll not be entItled to converSIOn In tlus scenano, the number of hours of work attributed to her m the employer's records would have to be adjusted by addmg the hours wrongfully wIthheld. Such an adjustment would stIll leave the gnevor wIthout "full-tune" hours many smgle year, let alone m two succeSSIve years ArtIcle 31 152 defines "full-tune" to mean eIther 1,732 75 13 or 1,912 "straight-tune hours as apphcable" From 1994 to 1999, the gnevor's recorded hours of work ranged from a low of773 75 to a lugh of 1233.25 annually Based upon her testImony, the adjustment for any year would be approxImately 38 days or 300 hours The adjusted total for each and every year would fall short of 1,732 75 Counsel for the umon also argued tune spent by a reporter transcribmg eVIdence at home counts for the purpose of converSIOn, even If he or she IS not entItled to an hourly wage for tlus work I reject tlus mterpretatIOn of artIcle 31 15 because much transcnpt IS produced at the request of tlurd partIes and paid for by them, wIthout any mvolvement on the part of the employer In the alternatIve, even If all hours devoted to the productIOn of transcnpt dId count for the purpose of converSIOn, the eVIdence adduced about the tune spent by the gnevor transcribmg would not support her claim to be converted The only eVIdence IS that recounted above whIch reflects msufficIent hours to satIsfy the contractual defimtIOn of "full- tune" work. Umon counsel's final argument about converSIOn IS that the gnevor should be credIted wIth hours worked by an "agency reporter" assIgned to replace her I need not consIder the legal basIs for tlus argument because It lacks an eVIdentIary foundatIOn sufficIent to ground a claim for converSIOn The gnevor was asked dunng exammatIOn-m-cluefwhether agency reporters worked when she was laid off from December 20, 1994 to January 5, 1995, and she rephed. "I don't know" She dId testIfy about bemg replaced by an agency reporter on Apnl 26, 1999 from the start of court that day untIl the mornmg break. ThIS IS the only eVIdence mdIcatmg the gnevor was replaced by an agency reporter and the tune mvolved IS mSIgmficant 14 In summary, the umon has not estabhshed a przma facle that the gnevor IS entItled to the status of a classIfied employee III Ms Gareh also complams of dIscnmmatIOn on the ground of rehgIOn In umon counsel's summary of the eVIdence, he cIted a number of mCIdents as proof of dIscnmmatIOn based upon the gnevor's JewIsh faith I wIll consIder the allegatIOn of rehgIOus dIscnmmatIOn m two stages, first by exammmg each of the mCIdents cIted for any mdIcatIOn of dIscnmmatIOn, and then by revIewmg all of them together to detennme whether there IS a pattern of dIscnmmatIOn The first mCIdent IS the gnevor's layoff m late August and early September of 1994 The umon objects not to the layoff Itself but rather to ItS tnnmg The gnevor testIfied she was laid off for the weeks commencmg August 22 and 29 and September 5, whereas she would have preferred to have been off for the weeks commencmg August 29 and September 5 and 12 Accordmg to the gnevor, Penny Stewart mItIally told her she would be laid off for the month of August, and she responded by askmg for the layoff to be delayed so as to mclude "the begznnzng of September for the JewIsh hohdays and the first day of school" There IS no eVIdence that the gnevor specIfically requested to be laid off dunng the second week of September as well as the first In her testImony, Ms Gareh mentIOned "a JewIsh hohday" m first week but she made no reference to Yom KIppur, whIch fell m the second. In partIcular, the gnevor dId not mentIOn dIscussmg Yom KIppur wIth Ms Stewart Ms Gareh dId testIfy she would have preferred to be at home dunng the second week of September because It was the second week 15 of school for her daughters VIewed In IsolatIOn, tlus testImony does not estabhsh a przma facle case of dISCnmInatIOn because there IS no eVIdence the gnevor specIfically requested to be laid off dunng the second week of September for rehgIOus reasons The umon also rehes upon a remark about Jews allegedly made to the gnevor by Valene Boyce, a classIfied reporter, on August 31, 1998 Ms Gareh testIfied that, dunng a dIscussIOn about speed walkIng at lunch tune, she IndIcated an Interest In takIng part and Ms Boyce rephed another employee also wanted to partIcIpate but she was JewIsh and "Jews don't make good athletes" AccordIng to the gnevor, a few days later she reported tlus comment to Nell Porteus, the then group leader wIth whom Ms Boyce shared an office, and on September 14 she reported It to Deborah Paulseth, then DIrector of Court ServIces For the purpose of the non-smt, I must assume the comment was made by Ms Boyce and reported to management as the gnevor testIfied. If the employer dId not respond appropnately to a complaInt about a rehgIOus slur by a fellow worker, a findIng of rehgIOus dISCnmInatIOn mIght result In comIng to tlus conclusIOn, I have not overlooked the two cases cIted by the employer In relatIOn to tlus IncIdent Wel Fu v Mlnzstry ofSolzcltor General, [1985] C.H.R.R. D/2797, and Parsonage v Canadzan Tlre Corp (1991),28 C.H.R.R. D/42 The racial slur In Wel Fu was "not dIrected at Mr Fu or made to hun" (page D/2812), whereas the alleged comment In tlus case was made to Ms Gareh In Parsonage, the Board of Inqmry concluded "a sIngle and InsultIng Joke does not constItute a vIOlatIOn of the Human Rlghts Code" (page D/55) However, In that case a manager InvestIgated the allegatIOn of a racIal slur by speakIng to the person alleged to have made It 16 and to those sIttmg at the lunch table where It was allegedly made, all of whom demed the allegatIOn The decIsIOn m Parsonage leaves open the possibIlIty that the Code would be vIOlated by an employer who faIled to take actIOn m response to a complamt about a smgle dlscnmmatory comment As knowledge about management's response resIdes wIth the employer, the umon cannot be faulted for offenng no eVIdence on tlus matter m the mstant case ThIS analysIs leads me to conclude the eVIdence before me establIshes a przma case of dlscnmmatIOn on tlus occaSIOn EVIdence was also led about a dlscnmmatory remark allegedly made by Nell Porteus and reported to the gnevor by Karen Model, another reporter Ms Gareh testIfied that on September 2, 1998 Ms Model telephoned her to say Mr Porteus had made a comment about the gnevor behavmg like a spOIled JewIsh gIrl who lIved m Forest HIll and suggestmg she was a JAP (1 e JewIsh Amencan Pnncess) although he had not used that word. When the gnevor testIfied about her conversatIOn wIth Ms Model, counsel for the employer objected to the admIssIOn of tlus hearsay eVIdence, and I ruled that uncorroborated hearsay eVIdence was not sufficIent to prove Mr Porteus had made the comments attributed to hUll Accordmg to Ms Gareh, two days after the phone call from Ms Model, she confronted Mr Porteus and told hUll to stop 'bad-moutlung" and "defammg" her, and he dId not deny engagmg m these actIvItIes As the gnevor's testImony about tlus conversatIOn contams no mdlcatIOn that she specIfically accused Mr Porteus of makmg an antI-SemItIc comment, any failure on Ius part to deny her accusatIOns would fall short of corroboratmg the hearsay eVIdence about hUll makmg such a comment Accordmgly, there IS no relIable eVIdence that he made the remark alleged. 17 The umon further objects to the gnevor's work assIgnment on the second day of Rosh Hashanah In 1998 Ms Gareh testIfied tlus relIgIOus holIday fell on September 21 and 22, that she dId not work on the 21 st, but that as a reformed Jew she worked on the 22nd. AccordIng to the gnevor, when she reported for duty that day Mr Porteus said he was "surpnsed" to see her Counsel for the umon contends Ms Porteus should have known that Ms Gareh would be at work on the 22nd, because her wntten request for leave was for the 21 st only and that request had been approved on the 15th by Ira Greenland, the then manager of court reporters Counsel submItted the gnevor was dIscnmInated agaInst by beIng put on standby on the 22nd rather than beIng assIgned to court However, Ms Gareh testIfied she was unsure as to whether the day was spent on standby or In court GIven her testImony on tlus pOInt, I conclude there IS no eVIdence of relIgIOus dISCnmInatIOn on tlus occaSIOn when It IS vIewed In IsolatIOn Ms Gareh testIfied she was demed unpaid leave on Apnl 1, 1999, whIch was part of the JewIsh Passover Her testImony about beIng thrown out ofMs Greenland's office on March 3, 1999 IS set out below In the aftermath oftlus IncIdent, the gnevor was on paid leave untIl Wednesday, March 31 She dId not work on Thursday, Apnl1 and was not paid for that day The courts were closed for the Easter weekend on both Fnday, Apnl2 and Monday, Apnl 5 and the gnevor returned to work on Tuesday, Apnl 6 Her contemporaneous notes IndIcate she Infonned Lou BartuccI, then the manager In charge of the court house, that she wanted to stay at home untIl after Easter and Passover, and he later Instructed her to return to work on Apnl 1 Counsel for the umon submIts the employer's refusal to pay the gnevor for the JewIsh holIday on Apnl1Is dISCnmInatIOn of the grounds of 18 relIgIOn However, the gnevor testIfied she would have been at work that day If she had been "healthy" As Ms Gareh attributed her absence from work to poor health rather than her faith, there IS notlung to suggest the demal of pay for Apnl 1 amounted to dISCnmInatIOn on the ground of relIgIOn In other words, there IS no eVIdence of relIgIOus dISCnmInatIOn on tlus occaSIOn vIewed In IsolatIOn Ms Gareh testIfied that on Monday, May 17, 1999 Mr Porteus offered her a JUry tnal whIch was expected to contInue throughout a penod when she was scheduled to be absent from work and whIch Included the relIgIOus holIday Shavuot Susan MIgnardI, then manager of court reporters, had approved the gnevor's wntten request to be on vacatIOn from Thursday, May 20 to Tuesday May 25, a request whIch IndIcated tlus penod Included Shavuot In examInatIOn-In-cluef, the gnevor testIfied her unpendIng absence prevented her from acceptIng the tnal, because she would not be present to read eVIdence to the JUry Counsel for the umon argued Mr Porteus offered the gnevor a long tnal at tlus tune because he expected her to declIne It or he Intended to remove her from It when she went on vacatIOn In my VIew, there IS no eVIdence of relIgIOus dISCnmInatIOn on tlus occaSIOn vIewed In IsolatIOn There IS notlung to IndIcate that Mr Porteus saw the gnevor's vacatIOn request or knew from some other source that a JewIsh HolIday fell dunng the week In questIOn Also sIgmficant IS the gnevor's testImony that upon returnIng from vacatIOn she was assIgned to a tnal reqUInng transcnpt and that she may not have wanted to work on the days leadIng up to her vacatIOn The umon contends that on Yom KIppur In 1999 Mr Porteus struck a deal wIth counsel on the Trans Amenca case for the gnevor to provIde "dIrty 19 copy" transcnpt at a rate of 55 cents per page No transcnpt was ordered because she was not wIlhng to provIde It at tlus rate Counsel for the umon submItted Mr Porteus mtentIOnally made a deal adverse to the gnevor on Monday, September 20 when she was absent from work observmg Yom KIppur The gnevor testIfied plamtIff s counsel told her Mr Porteus had negotIated a rate of 55 cents on her behalf As tlus eVIdence IS hearsay and totally uncorroborated, It could not be rehed upon to prove the alleged deal I also note, even If the alleged deal was struck, there IS no eVIdence whatsoever of tlus havmg occurred on Monday, September 20th, rather than on Thursday September 16, when the gnevor testIfied she was mItIally assIgned to the tnal, or on Fnday, September 17 In short, there IS no eVIdence of rehgIOus dIscnmmatIOn on tlus occaSIOn vIewed m IsolatIOn I have already concluded the umon has estabhshed a przma facle case of dIscnmmatIOn m relatIOn to the antI-SemItIc comment attributed to Valene Boyce WIth respect to each of the remammg mCIdents vIewed m IsolatIOn, the analysIs set out above demonstrates the allegatIOn of rehgIOus dIscnmmatIOn IS supported m some mstances by no eVIdence and m the remammg mstances by no rehable eVIdence--I e no eVIdence other than uncorroborated hearsay In the absence of any rehable eVIdence concernmg these mCIdents, there IS not a przma facle case showmg a pattern of dIscnmmatIOn IV Umon counsel contends the collectIve agreement places the employer under an Imphed duty of "fairness and reasonableness" whIch reqUIres It to ensure an eqUItable dIstributIOn among reporters of court assIgnments generatmg 20 transcnpt mcome In response, counsel for the employer submIts management's only obhgatIOn m dIstnbutmg such work IS to act m good faith Counsel for the umon rehes upon the decIsIOn of the Supreme Court of Canada zn Wznnzpeg Teachers' Assoczatzon No 1 of the Manztoba Teachers' Soclety v Wznnzpeg School D,v,szon No 1 (1975), 59 D.L.R. (3d) 228 In the mmonty Judgement m that case Mr JustIce Laskm wrote Contract relatIOns of the kmd m eXIstence here must surely be governed by standards of reasonableness m assessmg the degree to whIch an employer or superVIsor may call for the performance of dutIes whIch are not expressly spelled out They must be related to the enterpnse and be seen as fair to the employee and m furtherance of the prmcIpal dutIes to whIch he IS commItted. (page 235) Based upon tlus reasonmg, the mmonty went on to conclude the collectIve agreement nnposed upon teachers an Imphed duty to provIde noon-hour supervIsIOn The maJonty Judgement reached the same result for dIfferent reasons, relymg upon a provIsIOn relatmg to noon-hour superVISIOn contamed m the Code of Rules and RegulatIOns for the School DIVISIOn to whIch the collectIve agreement referred. As the maJonty made no mentIOn of fairness or reasonableness, tlus case adds notlung to the law relatmg to an Imphed duty to act fairly and reasonably Umon counsel also referred me to the Judgement of the Court of Appeal mMunzclpalzty of Me tropo lz tan Toronto and Canadzan Unzon of Publzc Employees (1990),69 D.L.R. (4th) 268 ThIS decIsIOn IS the most recent m a tnlogy of cases decIded by the Court and IS best understood when vIewed m the context of the other two In the first case of the tnlogy, Metropolztan Toronto Board of Commlsszoners of Polzce and Metropolztan Toronto Polzce Assoc (1981), 21 124 D.L.R. (3d) 684, the gnevors were the only employees m theIr classIficatIOn who were not mVIted to partIcIpate m an annual mventory, whIch provIded an opportumty to earn extra mcome They were excluded because theIr supervIsor dId not like theIr attItude, even though It dId not affect theIr abIhty to perform the task at hand The assIgnment of mventory work was not specIfically addressed by the collectIve agreement, and the employer argued the management nghts clause granted It an unfettered dIscretIOn to select employees for tlus work. The arbItrator allowed the gnevance because the gnevors had been smgled out for special treatment on grounds not reasonably related to the management of the employer's enterpnse ThIS award was quashed by the Court of Appeal, whIch wrote Havmg regard to the nature of the agreement, and to ItS proVIsIOns, we see no necessIty m tlus case to Imply a tenn that the management nghts clause wIll be apphed fairly and wIthout dIscnmmatIOn If such a term were to be Imphed, It would mean that every decIsIOn of management made under the exclusIve authonty of the management nghts clause would be hable to challenge on the grounds that It was exercIsed unfairly or dIscnmmatonly In our opmIOn, the management nghts clause gIves management the exclusIve nght to detennme how It shall exerCIse the powers conferred on It by that clause, unless those powers are otherwIse cIrcmnscribed by the express prOVISIOns of the collectIve agreement The power to challenge a decIsIOn of management must be found m some prOVISIOn of the collectIve agreement (page 687) In short, the employer was not under an Imphed duty to act reasonably when assIgnmg mventory work because notlung m the collectIve agreement cIrcmnscribed management's nghts m makmg an assIgnment oftlus sort The subject of an Imphed duty to act reasonably was next consIdered by the Court of Appeal m (1ouncZ/ ofPrzntzng Industrzes of(1anada and Toronto Przntzng Pressmen & Asslstants' Unwn (1983), 149 D.L.R. (3d) 53 22 In that case, artIcle 22 of the collectIve agreement stated "the employer shall permanently classIfy tlurty-four employees" but the agreement said notlung about the process for selectmg those to be granted permanent classIficatIOn Accordmg to other prOVISIOns m the contract, permanently classIfied employees would enJoy almost complete ImmUnIty from layoff, whereas the rest of the workforce was vulnerable to layoff m reverse order of senIonty The net effect of these prOVISIOns was that the pennanent classIficatIOn of any partIcular employee would enhance Ius or her Job secunty at the expense of employees who had greater senIonty In other words, the selectIOn of one person to be pennanently classIfied would reduce the protectIOn agamst layoff afforded to others by the contractual prOVISIOns relatmg to senIonty A board of arbItratIOn held the employer was under an ImplIed duty to act reasonably m choosmg employees for pennanent classIficatIOn under artIcle 22, because such a duty was necessary to hannonIze the dIscretIOn conferred upon the employer by tlus artIcle WIth the senIonty nghts of employees The Court of Appeal sustamed the board's award saymg "In our VIew the mterpretatIOn placed upon art 22 by the board m lIght of the whole collectIve agreement was "one It could reasonably bear" (page 60) The eXIstence of a duty to act reasonably m the first case of the tnlogy but not the second can be explamed by an Important factual dIstmctIOn The employer's decIsIOn not to assIgn mventory work to the gnevors m Metropolltan Toronto Board ofCommlsslOners of Pollee dId not adversely affect a nght arIsmg from any prOVISIOn m the collectIve agreement Management's nghts were unfettered because no conflIctmg contractual entItlements were at stake In contrast, the employer m Counezl of Przntzng Industrzes was oblIged to act reasonably when choosmg employees for 23 permanent clasSIficatIOn because tlus chOIce unpmged upon semonty nghts conferred by the collectIve agreement ThIS dIstmctIOn was lughhghted by the Court of Appeal m the final case of the tnlogy, Munzclpalzty ofMetropolztan Toronto There the employer promulgated a rule reqUInng ambulance dnvers to utIhze warnmg hghts and SIrens when respondmg to all emergency calls As anyone who dIsobeyed tlus promulgatIOn was subject to dIscIphne, the umon challenged the rule as vIOlatmg a contractual prolubItIon agamst dIscIphne wIthout "reasonable cause" The employer responded to tlus challenge by contendmg the management nghts clause gave It the nght to estabhsh rules Relymg upon the contractual protectIOn agamst dIscIphne enjoyed by employees, a board of arbItratIOn detennmed the employer's authonty to promulgate rules was cIrcUInscribed by an obhgatIOn to act reasonably, and the board went on to strike down the rule on the ground It was unreasonable ThIS award was upheld by the Court of Appeal Notmg that the rejectIOn of an Imphed duty offmmess mMetropolztan Toronto Board ofCommlsslOners ofPolzce rested upon the fact that the Impugned exerCIse of management nghts m that case was not "cIrcumscribed by express provIsIOns" of the collectIve agreement, the Court went on to say It would seem tlus was exactly the loophole used by tlus Court m Counczl of Przntzng Industrzes, supra, to find a duty to act reasonably The arbItrator's use of ArtIcle 3 02 [prohibItIng an exerCIse of management nghts mconsIstent wIth the rest of the agreement] and the "reasonable cause for dIscIphne" prOVISIOn m ArtIcle 3 01(u) IS of a sundar character In neIther of these cases was the prOVISIOn rehed on entlrely exphcIt However, It does not seem patently unreasonable to VIew the collectIve agreement m a hohstIc manner, where even management rzghts may be clrcumscrzbed zn order to avold negatzng or unduly lzmltzng the scope of other prOV1SlOns (page 286, emphasIs added) 24 How do these decIsIOns of the Court of Appeal apply to the case at hand? The employer would be under a duty to act fairly m dIstnbutmg tnal assIgnments WIth the potentIal to produce transcnpt mcome If, and only If, the denIal of tlus work had the effect of "negatmg or unduly IUllItmg" nghts conferred upon employees by "other provIsIOns" m the collectIve agreement Counsel for the UnIon contends depnvmg an unclassIfied employee, such as the gnevor, of opportunItIes to produce transcnpt would negatIvely affect her nght to be converted to classIfied status under artIcle 31 15 One of the cntena for converSIOn under tlus artIcle IS that the employee must have worked full-tIme for at least two years I have already ruled that tUlle spent transcnbmg eVIdence at home, wIthout entItlement to an hourly wage, does not count for the purpose of converSIOn The only hours that count for tlus purpose are those for whIch an employee IS entItled to be paid at an hourly rate There IS no correlatIOn between the number of such hours worked by an employee and the opportunIty he or she has to earn transcnpt mcome a reporter assIgned to a smgle tnallastmg one hundred days and generatmg a huge amount of transcnpt IS paid for the same number of hours as IS a reporter assIgned to fifty cases of two days each whIch reqUIre no transcnpt As only tUlle paid at an hourly rate counts for the purpose of converSIOn, and as there IS no correlatIOn between such hours and transcnpt mcome, the denIal of an opportUnIty to earn mcome from transcnpt does not negatIvely affect the nght to be converted. The assIgnment of reporters to trails wIth the potentIal for transcnpt IS m general analogous to the dIstributIOn of mventory work m Metropolltan Toronto Board ofCommlsslOners of Pollee Just as the collectIve agreement 25 there gave employees no claim to Inventory work, the agreement here contaInS no reference to transcnpt productIOn The wIthholdIng of Inventory work dId not derogate from any contractual nght In that case, and the demal of an opportumty to earn transcnpt Income entails no derogatIOn from any such nght In tlus case Unlike the Impugned management decIsIOns In Munzclpalzty ofMetropolztan Toronto and Counczl ofPrzntzng Industrzes, the dIstributIOn of tnals wIth a potentIal for transcnpt productIOn as a rule has no adverse affect on eIther the semonty nghts of employees or theIr contractual protectIOn agaInst dIscIphne There may be one exceptIOn to tlus rule I consIder below whether the contractual prohibItIon agaInst dIscIphne wIthout Just cause, found In artIcle 21 1, fetters management's nghts In assIgnIng work In the partIcular context of an employee beIng removed from an assIgnment for dIscIphnary reasons In the absence of such dIscIphne, management IS not under any contractual obhgatIOn to act fairly or reasonably In dIstributIng work assIgnments whIch provIde an opportumty to earn Income from transcnpt Absent dISCIplIne, the dIstributIOn of tlus sort of work IS analogous to the dIstributIOn of overtIme In the sense that neIther type of dIstnbutIOn affects nghts anSIng from other contractual prOVISIOns As noted by umon counsel, the collectIve agreement specIfically addresses the apportIOnIng of overtIme In artIcle OAD8.2 1 In the assIgnment of overtIme, the Employer agrees to develop method~ of dIstributIng overtIme at the local workplace that are fazr and eqUltable after havIng ensured that all of ItS operatIOnal reqUIrements are met The eXIstence of tlus artIcle does not assIst the umon In the Instant case To achIeve an eqUItable dIstributIOn of tnals reqUInng transcnpt, the umon 26 would have to negotIate a prOVISIOn about tnal assIgnments analogous to the overtIme artIcle V The umon contends the gnevor has been the vIctIm of harassment by management whIch produced a pOIsoned work enVIromnent and caused a detenoratIOn m her relatIOns wIth other reporters The testImony and documents relatmg to tlus allegatIOn are revIewed m tlus sectIOn of my decIsIOn In subsequent sectIOns, I wIll consIder how tlus eVIdence bears upon the umon's allegatIOns that the employer acted m bad faith m dIstributmg work and also endangered the gnevor's health A summary of the eVIdence prepared by umon counsel cItes numerous mCIdents of alleged harassment occurnng between 1994 and 2000 The umon rehes upon four mCIdents m 1994 Ms Gareh testIfied that on Thursday, March 10, wlule at home transcribmg, she receIved a call from Penny Stewart about her contract as an unclassIfied employee whIch would expIre on March 31 The gnevor stated. "She [Ms Stewart] demanded that I run down to the courthouse" to sIgn a new contract "or I would not be renewed." Accordmg to a contemporaneous note made by the gnevor, the phone call occurred at 1 00 p.m and the contact was sIgned at 5 00 p.m The second mCIdent related to the gnevor's assIgnment to travel to Ghana to take commISSIOn eVIdence Ms Gareh testIfied on Apnl28 or 29 she receIved a telephone call from Mark Cullen, crown counsel wIth the Department of JustIce, saymg that Penny Stewart "had called human resources at 720 Bay to try to bump you" from tlus assIgnment ThIS uncorroborated hearsay IS the only eVIdence about Ms Stewart's mvolvement m tlus assIgnment The 27 gnevor dId make the tnp to Ghana m the end. The tlurd mCldent occurred at a retIrement party held shortly after that tnp Ms Gareh testIfied. "I belIeve Nell Porteus was there Penny [Stewart] was there They were as cold as Ice to me " The gnevor went on to say they dId not speak to her and were "rude" m theIr "body language "Ms Gareh testIfied she was laid off from December 20, 1994 untIl January 5, 1995 but classIfied reporters were not In cross-exammatIOn the gnevor conceded not knowmg whether other reporters who held unclassIfied posItIOns like hers were laid off as she was EVIdence was led about two mCldents m 1995 Ms Gareh testIfied that on November 10, Ms Stewart suggested the gnevor was placed m "conflIct of mterest" by her company, Anshan Reportmg ServIces, and asked her to provIde a wntten statement about the company Anshan employed reporters who recorded legal proceedmgs such as exammatIOns for dIscovery at the company's leased premIses and elsewhere Accordmg to the gnevor, she dId not comply wIth Ms Stewart's mltIal request or wIth a second one made by her on November 15 Ms Gareh testIfied that on December 21 Ms Stewart wrongly asserted that the gnevor's hourly rate was $15 50, leadmg her to fear that she "would be bumped down" As tlungs turned out, her hourly rate remamed unchanged The umon relIes upon three occurrences m January and February of 1996 and a senes of events later that year relatmg to Anshan Reportmg Ms Gareh testIfied that m January Mr JustIce Watt asked for her to be assIgned as Ius pennanent reporter and that Ms Stewart declIned to do so, cltmg the gnevor's transcnpt backlog as the reason Accordmg to the gnevor, she had no more transcnpt outstandmg than anyone else and was not then the subject of any court order to expedIte the productIOn of transcnpt Ms Gareh also 28 testIfied that In February Ms Stewart removed her from a tnal reqUInng daily transcnpt, saYIng other reporters would not work wIth her AccordIng to the gnevor, she spoke to two of these reporters, and one said she could not keep up wIth her wlule the other said he would not work wIth her but gave no reason Counsel for the umon suggested that Ms Stewart faIled to keep an appoIntment wIth the gnevor on February 22, but the gnevor was less than certaIn, testIfYIng "I don't tlunk It [the meetIng] went ahead" As to Anshan ReportIng, Ms Gareh testIfied that on Apnl 15, 1996 Ms Stewart and Mr Hall, then the manager In charge of the court house, met wIth her to dISCUSS her company and her deahngs wIth Juamta Eggens who was employed by the company as well as workIng at the courthouse AccordIng to the gnevor, both managers refused to dIsclose the subject of the meetIng In advance, and they proceeded to address theIr concerns despIte her ObjectIOn to them dOIng so In the absence of her umon representatIve or lawyer Ms Gareh retaIned counsel to deal wIth tlus matter AccordIng to the gnevor, Ms Stewart objected to the Involvement of a lawyer, cancelled a meetIng whIch he had arranged, and agaIn requested a wntten submIssIOn from the gnevor deahng wIth conflIct of Interest A letter from the lawyer to the employer, dated May 6, asserted that Ms Eggens was no longer an employee of Anshan and that there was no conflIct of Interest Mr Hall conceded the absence of any conflIct In a letter dated June 12 In short, the matter of a conflIct of Interest relatIng to Ms Gareh's company was dropped by the employer In June of 1996 soon after the gnevor's lawyer provIded the wntten statement whIch was first requested by Ms Stewart In November of 1995 Counsel for the umon suggested the gnevor was treated dIfferently than other reporters wIth theIr own 29 companIes, but there IS no eVIdence as to what mqUInes the employer made of these reporters, nor IS there any eVIdence to mdIcate theIr companIes, like Anshan Reportmg ServIces, provIded servIces other than the transcnptIOn of eVIdence recorded at the courthouse Ms Gareh testIfied that m the fall of 1997 Ms Greenland assIgned her to an AIDS tnal reqUInng real-tIme transcnpt, before Mr JustIce Ground, but then cancelled tlus assIgnment before the tnal started, saymg the tnal Judge had asked for her to be removed based on mfonnatIOn he had receIved from Mr JustIce Bonns Accordmg to the gnevor, she spoke to both of these Judges and each denIed makmg any complamt about her The frequency of mCIdents of alleged harassment mcreased markedly m 1998 Counsel's summary refers to mCIdents on Apnl27 and May 15, but my reVIew of the eVIdence dIsclosed notlung relatmg to these occurrences Ms Gareh testIfied that on June 8, 1998 Ms Greenland removed her from the Canso Insurance case before Madame JustIce McDonald, a tnal reqUInng transcnpt, wIth the manager saymg the Judge had lost confidence m the gnevor She also testIfied her request for tune off from June 15 to 19, 1998, to get her cluldren ready for camp, was denIed by Ms Greenland who said she was short of reporters Accordmg to the gnevor, on November 9 she asked Mr Porteus where she had been assIgned for the day and he told her to look at the assIgnment hst The gnevor said she was "cordial" and he was "rude" Accordmg to the gnevor, on December 1, she arnved early and asked Mr Porteus for the sIgn-m sheet and he answered m a "snarky tone" that It was not out yet She testIfied that the next day another reporter who used to be fnendly, Clair Humphnes, gave her a "complete cold shoulder" 30 Ms Gareh also described her encounter wIth Juamta Eggens at the sIgn-m desk on November 17, 1998 I asked If she receIved my message at home about her back orders I was always calm wIth her I said It WIth sugar on my tongue She ran out of there and ran mto Greenland's office and said I was harassmg her" Accordmg to Ms Gareh, on November 26 Ms Greenland told her not to talk to Juamta Eggens anymore and the gnevor demed domg so She asked to see a wntten complamt, but Ms Greenland dId not produce one and threatened to call secunty The gnevor also stated m exammatIOn-m-cluef "I tlunk she even pushed me out [of her office] wIth her shoulders" Ms Gareh' s contemporaneous note states she was "summoned" from the office by Ms Greenland but refused to leave As to what the manager dId then, Ms Gareh wrote "She mtllnIdated and walked nght up to me as If to push me out of her office I Just stayed there and told her I wanted the pIece of paper" There IS notlung m the note to mdIcate the gnevor actually was pushed. Asked m re-exammatIOn about tlus note, Ms Gareh said the word "summoned" was used to mean "pushed" The umon also relIes upon the refusal of Mr Porteus and Ms Greenland to assIgn the gnevor to long tnals m the fall of 1998 On September 9, Ms Greenland mfonned the gnevor that she would not be gIven the Royal Bank tnal because she had not completed the transcnpt for the Bernardo and Gayle cases Accordmg to the gnevor, she told Ms Greenland, m the presence of Mr Porteus, that her part of the Bernardo transcnpt was complete and she was waItmg for her partner on that case, Joanne Anderson, to transcribe her part As to the Gayle transcnpt, the gnevor testIfied she told Ms Greenland that It was complete except for a 31 ten-page ruhng by the Judge whIch already had been submItted to hun for reVIew The date of the completIOn of the Gayle transcnpt IS not a matter of controversy a certIficate of completIOn was filed on September 16 There IS a dIspute as to when the gnevor finIshed her part of the Bernardo transcnpt Accordmg to her, m September she told not only Ira Greenland but also Lou BartuccI and Debra Paulseth that It was finIshed. The gnevor testIfied It had been completed m August On December 10, the gnevor filed a certIficate of completIOn whIch stated. "D Gareh's portIOns have been completed as of Oct 31/1998 As ofDec 10/98 stIll aWaItmg Joanne Anderson's portIOns" Asked m cross-exammatIOn why she had not filed a certIficate of tlus sort earher, the gnevor said she dId not want to get Ms Anderson m trouble In a letter to Mr JustIce Lasage, dated March 4, 1999, Ms Gareh agam asserted her portIOn of the Bernardo transcnpt "was completed by October of 1998 A certIficate of completIOn for the entIre Bernardo transcnpt, mcludmg Ms Anderson's part, was filed m January of 1999 As noted by UnIon counsel, the "New Crunmal Appeal Rules" Issued by the MmIstry on July 23, 1993 state "In those cases where the transcnpt for a case mvolves more than one reporter, only one certIficate of completIOn sIgnIfymg completIOn of the whole of the transcnpt should be filed" (page 5, emphasIs added) Ms Gareh testIfied that whenever she requested assIgnment to a long tnal dunng the fall of 1998, her request was denIed on the grounds that she had not completed the Bernardo transcnpt She alleges such a request was denIed on the followmg occaSIOns (1) by Mr Porteus on November 9 m relatIOn to the Mmchella case, (2) by Ms Greenland on or about November 32 23 m relatIOn to a sIx-week tnal, and (3) agam by Ms Greenland on November 26 m relatIOn to the Dawson tnal IncIdents related to the Bernardo transcnpt contmued mto 1999 The gnevor testIfied about a televIsed press conference held by ChIef JustIce McMurtry on Wednesday, January 6 She dId not see the press conference but a number of people told her the ChIef JustIce had said that transcnptIOn of the eVIdence for the Bernardo case took three years Counsel for the umon argued the employer deliberately provIded maccurate mfonnatIOn to the ChIef JustIce m order to damage the reputatIOn of the gnevor The gnevor testIfied the last order for any portIOn of the Bernardo transcnpt, placed wIth her or her partner, was dated December 30, 1997, just over one year before theIr transcnpt was completed. However, she dId not say when the first order was placed. The gnevor and her partner reported most of the Bernardo tnal, but other reporters were also mvolved at the begmnmg, and there IS no eVIdence as to how long they took to produce theIr transcnpt Pat Campbell, an unclassIfied reporter, testIfied a newspaper artIcle about the press conference was on the table outsIde Mr Porteus' office where she sIgned m the next day Accordmg to Ms Campbell, when she asked Mr Porteus If "tlus was gomg to put our jobs m jeopardy," he suggested she speak to Ms Gareh Ms Campbell testIfied about "confrontmg" the gnevor but offered no details of theIr conversatIOn Ms Gareh testIfied Ms Campbell accused her of "bemg the reason the government IS gettmg nd of court reporters" Accordmg to the gnevor, on Monday, January 11 Juhe Hunt, also a reporter, yelled at her about not domg the Bernardo transcnpt sooner Ms Gareh testIfied that on January 27 she asked Mr Porteus when she would be assIgned to a long tnal and he rephed. "Y ou take three years to 33 get your transcnpts out" AccordIng to the gnevor, she said that was not true and he rephed. "Then a year It takes you" She testIfied they were both yellIng and the conversatIOn ended wIth hun slammIng a door There were also IncIdents In 1999 not dIrectly related to the Bernardo transcnpt Ms Gareh testIfied that on January 25 Ms Greenland dIrected her to prepare a transcnpt of the Jury charge In the McKee case and told her to bIll for It on an InVOICe for personal servIces, but refused to say who had ordered the transcnpt The gnevor complaIned that she was never paid for tlus work, but In cross-eXamInatIOn she admItted not submIttIng an InVOICe There were three IncIdents In 1999 about steno pads Ms Gareh testIfied she nonnally used two or three pads per day AccordIng to the gnevor, on February 15 she took SIX steno pads for a couple of days and receIved a "lecture" from Ms Greenland about takIng more than one, and the next day Mr Porteus suggested she usually took too many pads In cross- eXamInatIOn, the gnevor conceded beIng told by Ms Greenland that steno pads were In short supply at the tune Ms Gareh also testIfied that on June 3 she agaIn had SIX pads for the next two days, Mr Porteus accused her of havIng too many, and she reported tlus "harassment" to Ms MIgnardI On Wednesday, March 3, 1999, the gnevor deposIted In the office for pIck-up by counsel a copy of her transcnpt for the TerceIra case and an InVOICe for $550 Later that day she returned to the office to find the transcnpt gone and no cheque by way payment In response to the gnevor's InqUInes, the secretary told her to see Ms Greenland. Dunng eXamInatIOn- In-cluef, the gnevor gave the folloWIng account of what happened when she approached her manager I followed her Into JustIces' receptIOn I wanted the secretanes and everyone to hear I said where IS It I need my $550 I was yelhng and 34 shakmg She's SIX foot one She said enough from you young lady, sIgn out nght now I followed her mto her office down the hall I was wIld. She goes belund her desk and won't talk to me I had book bag on one shoulder and purse on the other She said get out of here or I'm gomg to call secunty I said I needed the money She said she would call secunty I said fine but gIve me the money She goes to pIck up the phone, she puts It back, comes around the desk and grabs my left ann and nght wnst My face IS m her breast I said let go of me, what are your domg She would not let go of me She tWIsted me and pushed me back and threw me out I almost lut the door whIch was ajar I landed on the floor In cross-exammatIOn, Ms Gareh conceded Ms Greenland said two or three tunes that said she would call secunty If the gnevor dId not leave A contemporaneous note made by Ms Gareh states she was "physIcally put out" of the office but offers no details of how tlus transpIred. Ms Gareh testIfied that the next day she was "sore on the left sIde, had shootmg pams, and was brUIsed on the ann and wnst The gnevor remamed at home on paid leave from March 4 to March 31 wIth the approval of Lou BartuccI On March 12, she met wIth Mr BartuccI and John ContI, human resource manager at the courthouse She testIfied that dunng the course of tlus meetmg Mr BartuccI said she mIght be charged wIth fraud and Mr ContI shouted at her On Apn18, 1999 Ms Gareh arrIved for work at 9 50 but recorded her arrIval as 9 30 on the sIgn-m sheet and Mr Porteus commented on the twenty-mmute dIscrepancy She testIfied he "harassed" her by saymg she would have gotten a better assIgnment If she had arnved on tune Accordmg to the gnevor, she skIpped her break that day to make up for arrIvmg late On Apnl 19, Ms MIgnardI spoke to Ms Gareh about not recordmg the correct sIgn-m tune on the 8th The gnevor described tlus as more 35 "harassment" and testIfied she told Ms MIgnardI that she felt "smgled out" by Mr Porteus because other reporters often arrIved at 9 45 or 9 50 and sIgned m for 9 30 ThIS matter was agam addressed at a meetmg on Apn127 attended by Ms MIgnardI, Mr BartuccI, a umon representatIve and the gnevor, a meetmg whIch she charactenzed as yet more "harassment" Ms Gareh conceded she was not dIscIphned for what happened on Apnl 8 and "probably" was paid for the twenty mmutes m dIspute Susan MIgnardI replaced Eya Greenland as manager of court reporters on Apn113, 1999 Ms Gareh testIfied Nell Porteus Ignored her when he mtroduced other reporters to theIr new manager and she had to mtroduce herself However, a contemporaneous note made by the gnevor states "Met new supervIsor, Susan, mtroduced by Nell " On Apn126, 1999, Ms Gareh was agam late for work. She testIfied about arnvmg at 10 08, havmg already called Mr Porteus to say she would not be on tune TestIfymg she had not been allowed to Jom her assIgned tnal untIl the "mornmg" break, wIth the result that she lost transcnpt mcome, the gnevor suggested the court proceedmg should have been delayed untIl she arrIved. The gnevor testIfied that on August 12, 1999 she receIved a cham letter through the mall at her home address A copy of the letter, mtroduced mto eVIdence, describes some recIpIents dymg or expenencmg other types of mIsfortune and others havmg good fortune, dependmg upon whether they forwarded the letter as mstructed. Ms Gareh contends the address on the outsIde of letter IS wntten m Mr Porteus' hand. The umon elected not to lead expert eVIdence m support of tlus claim 36 Also entered mto eVIdence IS a note saymg, "DebbIe, we have to know where you are" and sIgned "Nell" Ms Gareh testIfied the sIgnature belongs to Mr Porteus and the note was stuck to the tnne sheet for reporters on August 25, 1999 Accordmg to the gnevor, at 11 00 that day she told Marc Jones, who was m the group leader's office, that she was gomg to the library, and she saw tlus "humIlIatmg" note upon her return Ms Gareh testIfied that on November 18, 1999 she asked Marc Jones, the then group leader, to be removed from the Trans Amenca case, a long tnal whIch turned out not to reqUIre daily transcnpt as had been expected. Accordmg to the gnevor, Mr Jones stated he had been mstructed "not to mterfere" wIth her court assIgnment and he acknowledged havmg no snnIlar mstructIOns for other reporters Ms Gareh gave other testImony about the way people looked at her or behaved towards her m 1999 Accordmg to the gnevor, Mr Porteus gave her "dIrty looks" on June 2 and 3, Valene Boyce "glared" at her on October 19 and Lou BartuccI gave her a "not very nIce look" on October 25 and a "cold stare" on December 24 Accordmg to Ms Gareh, on July 22, 1999 Marcey McPherson, a reporter whose desk IS next to hers, yelled at her "What are you talkmg about my lIfe for" The gnevor reported tlus mCIdent to Ms MIgnardI and that afternoon the two of them "went lookmg for office space" but dId not find anytlung sUItable Ms Gareh testIfied that on October 18 John Goddard, also a reporter, ran down the escalator, stopped on the step belund her, and stayed there "breatlung down" her neck. She recounted an mCIdent on December 29 when she asked a small favour of Arnell WIllIams, a reporter, and was told. "Fuck off bItch" Asked If she had any explanatIOn 37 for that attItude, the gnevor rephed m the negatIve, testIfymg It was 'Just the whole attItude m the office" Ms Gareh testIfied that on January 5, 2000, Courtney MIddleton, a reporter, passed her makmg a chckmg sound, like a gun gomg off, and gestunng as If she was pulhng a tngger Accordmg to the gnevor, she reported tlus mCIdent to Ms MIgnardI Ms Gareh testIfied that on Tuesday March 7 Ms MIgnardI objected to her gomg on vacatIOn dunng the followmg week, even though the manager had sIgned an approval for tlus leave m December of 1999 The gnevor testIfied she had felt harassed but conceded Ms MIgnardI may have forgotten the approval The vacatIOn took place as scheduled. The umon also objects to the employer's deahngs wIth Ms Gareh m relatIOn to the events of February 14 and March 8, 2000 The gnevor testIfied that on February 14 the proceedmg to whIch she was assIgned ended at 10 10 a.m , she remamed m the courtroom untIl 11 20 and then told Marc Jones, group leader that day, that she was gomg to the library Accordmg to the gnevor, at 12 55 p.m she went home for lunch and there receIved a phone call at 1 40 from Susan MIgnardI who "yelled" at her for bemg at home and told her not to bother commg back to work even though she offered to return by 2 15 The gnevor testIfied she actually returned to the courthouse by 2 30 She was docked pay for two hours and receIved the followmg memo, dated March 8, from Ms MignardI ThIS IS to confirm our conversatIOn of March 7,2000 concernmg the procedures for sIgnmg m and out at the workplace SpecIfically, we dIscussed the mCIdent on February 14,2000, whereby you recorded your sIgn m tune and sIgn out tunes as 9 30 a.m and 4 30 p.m respectIvely when m fact you left the workplace pnor to 430 p.m In fact, I contacted you by telephone at your resIdence at 2 00 p.m 38 As we dIscussed, on February 14,2000, when your mItIal court assIgnment ended you clearly mdIcated to me that you had mfonned Marc Jones, the Group Leader, at approxImately 10 30 a.m that your court assIgnment had ended and that you were aVailable m the workplace m case your servIces were reqUIred for court At approxImately 12 20 p.m , you were needed to cover your assIgned court but you could not be located by Marc Jones, who looked for you m the receptIOn area and your desk area. Later on February 14,2000, when Marc Jones reqUIred you to work m another court commencmg at approxImately 1 45 p.m you could not be located m eIther the receptIOn area or m the area of your desk. I successfully contacted you at 2 00 p.m on that day by telephone at your resIdence You stated that you could return to the Court House by 2 40 p.m I mdIcated that was not acceptable and that your attendance was no longer needed that day The consequence of your leavmg the workplace wIthout pennIssIOn was that two other reporters had to be located at short notIce to cover the two courts m questIOn Had we not been able to locate these other reporters your unauthonzed absence could have resulted m courts bemg delayed or canceled. Further, It was entIrely mappropnate for you to record your sIgn-out tune as 4 30 p.m when m fact you were clearly not at the workplace at 2 00 p.m when I contacted you at home It IS for tlus reason that your tune sheet for that day has been adjusted to show 2 00 p.m as your sIgn-out tune As dIscussed, m future, all sIgn-m and sIgn out tunes recorded by you must accurately reflect the hours that you have actually worked. If you have to leave the workplace for any reason, you are to notIfy the Group Leader or me dIrectly Should you have any questIOns about the procedures for sIgmng m and sIgnmg out or other admmIstratIve concerns relatmg to your employment, please feel free to bnng them to my attentIOn Ms Gareh testIfied she read tlus memo on March 8 and was upset by It because was entItled to go home for lunch and because Ms MignardI had mIsrepresented both the tune of her call and the tune when the gnevor mdIcated she could be back at work. Accordmg to the gnevor, she returned to work on the Walker tnal after readmg the memo but "was breakmg down" 39 and "could not make a proper record" for "about thIrty mInutes" On March 9, Ms MIgnardI told Ms Gareh that Mr JustIce Lafonne had asked that she be removed from the Walker tnal Ms Gareh asked to speak to the Judge and Ms MignardI said she would InqUIre whether he wIshed to meet wIth the gnevor The gnevor testIfied that the next day she wrote to the Judge askIng whether he would meet wIth her to dISCUSS Ius concerns Ms Gareh contInued to work on the Walker tnal on Thursday, March 9 and Fnday, March 10, producIng daily transcnpt She was on vacatIOn dunng the week commenCIng Monday, March 13 Dunng the week of March 20, Instead of returnIng to the Walker tnal, the gnevor was assIgned to summary convIctIOn appeals before Mr JustIce Gans, an assIgnment whIch generated no transcnpt Ms Gareh subsequently receIved the folloWIng memo, dated March 28, from Ms MignardI ThIS memorandum IS to confinn the substance of our dIscussIOns on March 9 and 20,2000 concernIng my decIsIOn to remove you as court reporter In the above-noted tnal As I explaIned to you In our meetIng on March 9, 2000, the presIdIng Judge had advIsed me that you dId not appear able to take down the record wIth sufficIent speed to be able to keep up wIth the proceedIngs In court HIS Honour further advIsed me that you had to Interrupt the proceedIngs more frequently than IS nonnally the case due to your InabIhty to InItIally capture on record the substance of the proceedIngs When I asked you In our March 9 meetIng If you had dIfficulty In takIng the record, you IndIcated that you had not had any dIfficulty and that you had not Interrupted the proceedIngs on a frequent basIs to clanfy the record. However, HIS Honour advIsed me that tlus was In fact the case, and, as a result, I IndIcated that I would be remOVIng you from the tnal As you are aware, upon return from your vacatIOn on Monday, March 20,2000 you were assIgned to another tnal 40 Dunng our March 9, 2000 meetmg, you expressed an mterest m speakmg dIrectly wIth the Judge concernmg tlus matter I responded to you that I would contact the Judge to detennme whether he wIshed me to provIde any further details to you regardmg your performance as court reporter m that tnal, and that I would let you know whether the Judge would be agreeable to meetmg wIth you You proceeded after our dIscussIOn on March 9, 2000, and wIthout my knowledge, to contact the Judge verbally and speak wIth the Judge dIrectly Under the cIrcumstances, It was mappropnate for you to approach the Judge dIrectly on tlus matter The final decIsIOn to assIgn or reassIgn a court reporter to be reporter of record IS one that rests wIth MmIstry management and not wIth the JUdICiary WhIle concerns of the court may be one of the factors taken mto consIderatIOn by management m makmg such decIsIOns, ultImately It IS up to management to make a final detennmatIOn In future, I expect you to dISCUSS assIgnment Issues WIth me dIrectly Should you have any concerns or questIOns m that regard, please feel free to approach me for a meetmg at a mutually convement tune Contestmg the accuracy of tlus memo, the gnevor testIfied that she had not contracted the Judge verbally and that she had admItted to Ms MIgnardI havmg trouble recordmg the eVIdence on March 8 because wItnesses had "strong accents" and the Judge faIled to "control" the pace of the proceedmgs VI Was Ms Gareh the vIctIm of bad faith by management m the allocatIOn of tnals wIth the potentIal of transcnpt mcome? Counsel for the employer contends that to prove tlus allegatIOn the umon would have to show both that the gnevor receIved less than a proportIOnate share of tlus work and that such lack of proportIOn was caused by bad faith on the part of management rather than by some legItunate factor I agree In detennmmg whether the 41 umon has estabhshed a przma facle case that tlus IS what happened, I wIll bear m mmd the eVIdence of alleged harassment recounted above and other eVIdence revIewed m tlus sectIOn To detennme whether the gnevor receIved less than a proportIOnate share of work wIth the potentIal of generatmg transcnpt mcome, I must compare her expenence throughout the penod m questIOn wIth that of other reporters able and wIlhng to do the tlus sort of work. The record m tlus case does not pennlt a companson of the amount of transcnpt mcome earned by the gnevor wIth the amount earned by other reporters The employer created a document showmg the amount of transcnpt mcome receIved from the Mmlstry by each reporter As the umon objected to the admIssIOn of such data dunng the presentatIOn of ItS case, I wIll Ignore tlus document m decldmg the non-smt motIon There IS no central reposItory of data about transcnpt mcome from sources other than the Mimstry The umon led eVIdence as to how much the gnevor earned from such sources but dId not call any other reporters to testIfy about theIr earnmgs There IS eVIdence of the number of days worked on long tnals by the gnevor and by other reporters whom she alleges receIved more than a fair share of such assIgnments, and the partIes agree there IS a dIrect correlatIOn between the length of a tnal and the probablhty It wIll result m transcnpt bemg ordered. The umon produced bnefs for 35 cases showmg whIch reporters were assIgned to each case and how many days were worked by each of them Counsel for the umon prepared a table summanzmg tlus data. Employer counsel dIsputed some of the mfonnatIOn m tlus table, but for present purposes I wIll assume It accurately reflects the contents of the bnefs, as notlung turns on the alleged dIscrepancIes The table mdlcates that 42 m all but a few cases one reporter dId the entIre tnal or the hon's share of It Where addItIonal reporters were assIgned to one of these tnals, theIr assIgnments tYPIcally lasted only a day or two In analyzmg the table, I have passed over any assIgnment of five days or less For assIgnments of longer duratIOn, I have computed the total number of days worked on the 35 cases by each of the 29 reporters wIth such assIgnments Eleven reporters each worked 50 days or less, SIX worked between 51 and 100, and ten worked between 101 and 200 That leaves only two reporters who worked on these long tnals for a total of more than 200 days Gary Ohver wIth 203 days, and Karen Woon Sam wIth 350 days Ms Gareh was not assIgned for more than five days to any of the durty-five cases surveyed by the umon, but she dId spend substantIal tune on some tnals that lasted twenty days or more The gnevor testIfied her assIgnment to the Bernardo tnallasted from May 31 to September 7,1995, a penod whIch mcludes 69 weekdays excludmg statutory hohdays She also testIfied about spendmg 20 to 22 days on the Gayle tnal m the fall of 1995, 101 days on the Osborne tnal m 1996 and 1997, and 30 to 35 days on the Canso Insurance tnal m 1997 and 1998 All of these cases generated mcome from transcnpt The gnevor also worked on the Trans Amenca case m 1999, but It YIelded no such mcome because she and counsel were unable to agree on a rate for "dIrty copy" The Trans Amenca case cannot be overlooked when companng the gnevor wIth other reporters, because there IS no eVIdence that transcnpt mcome resulted from most of the assIgnments reflected m the umon's table dealmg wIth the others The gnevor testIfied that her assIgnment to Trans Amenca began on September 21 and ended on November 26, but that the tnal dId not proceed dunng the first week of 43 November Excludmg that week and statutory holIdays, there were 43 weekdays between the commencement of her assIgnment and ItS completIOn In summary, the gnevor's testImony mdIcates she spent between 258 and 265 days on assIgnments lastmg 20 days or more For the purpose of companson, I wIll use the lower figure of 258 (ThIS number does not mclude tune spent on the Techfonn and Walker cases, whIch generated transcnpt mcome, because the eVIdence does not mdIcate how long these tnals lasted.) How does the number of days worked by Ms Gareh on long tnals compare wIth the numbers for other reporters reflected m the umon's table? The gnevor's figure of 258 IS exceeded only by the figure of 350 for Karen Woon Sam who spent 332 days on a smgle case The figure of258 days for the gnevor exceeds the figure for all other reporters A maJonty of the twenty-mne reporters have 100 days or less ThIS analysIs does not conclusIvely demonstrate that the gnevor placed second among reporters m assIgnments to long tnals The foregomg companson would be Imperfect to the extent, If any, that the cases summanzed m the umon's table do not mclude all assIgnments of more than five days on tnals lastmg more than 20 days Nonetheless, the umon bears the onus of establIslung a przma facle case that the employer acted m bad faith m dIstnbutmg work among reporters, and m detennmmg whether tlus onus has been dIscharged I cannot Ignore the only comparatIve data before me EVIdence also was led about a method of selectmg reporters for long tnals by drawmg a name from a cookIe Jar On Apnl 27, Susan MIgnardI posted a memo lIstmg reporters "who have not partIcIpated m a long tnal 44 smce January 2000 who have expressed an mterest m domg so "The memo names 17 reporters mcludmg the gnevor and mdIcates that the selectIOn of a reporter from among those named would be done "randomly" The memo goes on to say "If your name IS not on the hst and you tlunk It should be, please let me know" Ms Gareh testIfied Sue Crandall was assIgned to a long tnal m the Edwards case on May 12 even though her name does not appear on the hst posted on Apnl 27 Accordmg to the gnevor, she asked Ms MIgnardI about tlus and was told Ms Crandall had submItted an e-mail askmg to have her name added to the hst In the absence of any eVIdence mdIcatmg she had already done a long tnal smce January of 2000, there IS notlung to suggest her name should not have been on the hst Ms Gareh also testIfied that on or about May 12,2000 Courtney MIddleton was assIgned to a long tnal m the Parnum case and that, when she took a week off, Crystal DeIstmg replaced her (Both of theIr names are on the hst posted by Ms MIgnardI on Apnl27 ) Ms Gareh's most recent gnevance objects to the assIgnment of the Parnum tnal to these two reporters on the ground they are "favountes" of management The gnevor testIfied that Ms MIddleton "consIstently" worked wIth JustIce Ewaschuk whose court "always" produced transcnpt because he dId murder tnals, but the eVIdence contams no mdIcatIOn as to the duratIOn of the aSSOCiatIOn between tlus Judge and reporter Other than Ms Middleton's assIgnment to the Parnun case, the length of whIch IS not dIsclosed by the eVIdence, the only long-tnal assIgnment for Ms MIddleton specIfically mentIOned by the gnevor IS a five-week tnal endmg m Apnl of 1999 Ms MIddleton dId not work on any of the 35 long tnals hsted m the umon's 45 table Accordmg to tlus table, Ms Delstmg spent more than five days on each of four tnals for a total of 102 days The only other eVIdence about Ms Delstmg's assIgnments IS the gnevor's testImony that she regularly sat wIth JustIce McCombs Ms Gareh also testIfied each of several other reporters regularly worked wIth a partIcular Judge, but there IS no eVIdence about the nature or duratIOn of theIr tnal assIgnments whIch would mdlcate what potentIal theIr work had to generate transcnpt In summary, the eVIdence does not pennlt me to compare the mcome from transcnpt earned by the gnevor wIth that earned by other reporters The number of days worked by the gnevor on long tnals exceeds the correspondmg number for all but one of29 reporters mcluded m the umon's table of long cases The eVIdence does mdlcate that the 258 days worked by the gnevor IS less than the 350 worked by Karen Woon Sam who spent 332 days on a smgle tnal WhIle tlus tnal could have been shared among a number of reporters, as were several others hsted m the umon's table, the gnevor testIfied expenence on a case enhances the quahty of reportmg by allowmg a reporter to buIld up a "dIctIOnary" ThIS enhancement would be a legltllnate consIderatIOn for management when asslgnmg tnals and could explam Ms W oon Sam's very lengthy assIgnment to one case Welglung all of the eVIdence recounted above, I conclude the umon has faIled to estabhsh a przma facle case that the gnevor receIved less than a proportIOnate share of desIrable assIgnments as a result of bad faith on the part of management VII 46 The health and safety of unclassIfied employees IS addressed m artIcle 31 11 1 of the collectIve agreement whIch states The employer shall contmue to make reasonable prOVlswns for the safety and health of lts employees dunng the hours of theIr employment It IS agreed that both the Employer and the Umon shall co-operate to the fullest extent possIble m the preventIOn of accIdents and m the reasonable promotIOn of safety and health of all employees (emphasIs added) The umon's allegatIOn that management faIled to make "reasonable prOVISIOns for the health and safety" of the gnevor rest m part upon the eVIdence relatmg to harassment and work assIgnments recounted above The umon also relIes and upon letters from two doctors who have treated her A letter dated September 3, 1999 from Dr MIchael Wemstock, the gnevor's famIly doctor, states I am wntmg tlus medIcal report to you concernmg Ms DebbIe Gareh ThIS IS also to mfonn you that I am lIcensed to practIce by the College of PhysICIanS and Surgeons of Ontano I began to treat Ms Gareh m March 1994 and she contmues to be my patIent In revIewmg my notes, I found that the first complamts of stress related to her workmg condItIon goes back to Apnl 1996 She complamed to me of harassment by her supervIsors She complamed that her workload was bemg reduced compared to the amount of work that she had prevIOusly been gIven Her prevIOus workload was well wItlun her capabIlItIes She felt 'shut-out' of the system When she tned to get an explanatIOn for the cutback m her work, she was Ignored. As tlus sItuatIOn began to peak m the latter part of 1998 and mto 1999, Mrs Gareh became very depressed. She couldn't concentrate and spent a lot of tune at home, aVOIdmg any socIal contact She wIthdrew from her own famIly She would call me or come to see me and would start to cry when dIscussmg her sItuatIOn 47 Her sItuatIOn was compounded by a severe reductIOn m her mcome and her savmgs were depleted at a rapId rate ThIS financial pressure only served to mcrease her depressIOn I saw her on March 4, 1999 She related that she had been assaulted the day before She was grabbed by her ann and she was pushed mto the hall At tlus VISIt, I made note of an abrasIOn on her nght upper ann, and a brUIse over her left (medial) wnst She was tender to palpatIOn over a pamful area of her left upper chest She called me on March 8, 1999 complammg of spasm over her left chest wall and left breast regIOn She was crymg wlule dIscussmg the sItuatIOn She returned on March 15, 1999 She had ongomg soreness and tenderness of her left upper chest wall Her left buttock and left nb cage was sore She had a new bruIse over her left knee that appeared 2 days after her VISIt of March 4, 1999 I felt that her mJunes were compatible wIth the assault as she described It to me DebbIe had sought psycluatnc help at a walk-m chmc m the mIdst of the dIfficultIes m March 1999 COIncIdentally, she saw a colleague of mme, Dr Jonathan Rootenberg whom I called and asked hun to contmue to treat her I saw her last on May 19, 1999 for an assessment of an mJured left thumb that was unrelated to tlus problem MEDICAL- OPINION It IS my opmIOn that DebbIe has been suffenng from reactIve depressIOn and stress related to the ongomg harassment that she described to me She mdIcated that her workload was bemg reduced and she was frustrated and upset because there were no responses to her mqUInes Her condItIon was aggravated by a senously detenoratmg financial sItuatIOn The second letter, dated September 7, 1999 IS from the gnevor's psychIatnst, Dr Jonathan Rootenberg It states 48 I am wntIng In response to your letter dated August 26, 1999, askIng me to detail my Involvement as her psycluatnst Ms Anshan-Gareh IS a 44 year old caucaSian woman who was referred to me by her famIly physICian Dr MIchael WeInstock, for assessment and momtonng of her depressIve symptoms I first met wIth her on March 12, 1999, and have been meetIng wIth her bIweekly SInce that tnne, and contInue to do so She IndIcated that she had been workIng as a court reporter for the Attorney General for approxImately 20 years Ms Gareh complaIned that her work sItuatIOn had been steadIly worsenIng SInce approxImately 1993, cOIncIdent wIth a partIcular male superVIsor movIng to her office, she felt that there were some antI-SemItIc comments dIrected towards her at her place of work, and beheved that she was "passed over" for many favorable assIgnments In favour of many of her less-expenenced colleagues, despIte her sterhng perfonnance record. She described the workplace as a "warzone" and found herself becomIng IncreasIngly frustrated and depressed - tlus was exacerbated by marked financial stress, compounded by beIng gIven short-term assIgnments, not the longer, more lucratIve tnals that she expected to receIve, based on her track record and semonty The most traumatIc event at work reportedly occurred on March 3, 1999, when Ms Gareh stated that she was assaulted by a female manager In the courthouse I came out of the JustIce's receptIOn on the 3rd floor and saw 'Eya' In the hallway, she was talkIng to a secretary Then she stopped and went to walk away I asked her for a transcnpt back, she walked away and I said, 'do you want to be charged wIth theft?' I wanted my envelope back. She's 6 feet tall and qUIte IntnnIdatIng, I followed her back to her office and she said' get out of my office now' She tned to close the door on me and I kept my foot there and she couldn't close It, she said she'd call secunty and I said, 'fine, but gIve me my envelope back' She was on the phone I walked to her desk and thought I saw my transcnpt there She put down the phone and grabbed me and used exceSSIve force and threw me out of the office SInce the above IncIdent, Ms Gareh stated that she has expenenced physIcal dIscomfort, but more problematIcally has had recurrent 49 mghtmares, flashbacks to tlus encounter, Impaired sleep, hypervIgIlance, and mcreased preoccupatIOn wIth tlus event She had charactenstIc neurovegetatIve symptoms of depressIOn, specIfically markedly depressed mood, sUIcIdal IdeatIOn, frequent crymg epIsodes, Impaired appetIte and sleep, anhedoma (loss of mterest m pleasurable actIvItIes), very low energy, and low self-esteem She also notIced a profound decrease m her social actIvItIes, and became more wIthdrawn and apathetIc Due to the aCUIty of the above symptoms, It was recommended to her that she start antIdepressant medIcatIOn and she was reluctant mItIally, then agreed to do so She was started on Manerax (MoclobemIde), begmnmg at 75 mg per day, then gradually tItratmg upwards to her current dose of 375 mg per day She has begun to demonstrate Improvement m her neurovegetatIve symptoms, but stIll appears notIceably affected by the traumatIc event of March 3, 1999, and IS strugghng to cope at work (after some tune off work, she returned on Apnl 6, 1999) In my psycluatnc opmIOn, tlus lady's acute depressIve symptoms were exacerbated by her dIfficult work envIromnent, and certamly by the physIcal confrontatIOn wIth her female supervIsor on March 3, 1999, resultmg m post-traumatIc symptoms that have not fully abated at tlus tune She appears to be a very proficIent court reporter based on aVailable mfonnatIOn and seems to greatly enJoy workmg m tlus arena, however, the steadIly worsenmg enVIromnent over the last 5-6 years has played a sIgmficant role m tnggenng her depressIve symptoms, m my opmIOn I plan to contmue meetmg wIth her regularly, everyone to two weeks, to momtor her symptoms, make any adjustments m her medIcatIOn If warranted, and contmue wIth SupportIve and mSIght- onented psychotherapy She appears lughly motIvated to Improve her condItIon and resume her prevIOUS lugh level of functIOnmg She attends all scheduled appomtments wIthout fall Thank you for askmg me to provIde a summary of my mvolvement wIth tlus very pleasant lady DId the employer contravene artIcle 31 III? In answenng tlus questIOn, I begm wIth the gnevor's allegatIOn that she was assaulted by Ms Greenland on November 26,1998 The umon has faIled to estabhsh aprzma 50 facle case In relatIOn to tlus IncIdent because Ms Gareh's testImony that she was "pushed" out of the manager's office IS dIrectly contradIcted by the gnevor's contemporaneous note statIng she was "summoned" from the office Ms Gareh also alleges she was assaulted by Ms Greenland on March 3, 1999 Employer counsel contends Ius chent would have no legal habIhty for a sIngle IncIdent of assault by a manager I do not agree The employer acts through ItS managers and IS hable for conduct by one of them, whether IntentIOnal or neghgent, whIch endangers an employee The gnevor admIts shoutIng and refusIng to leave the manager's office, but she claims Ms Greenland was the first to use physIcal force An IncIdent of the sort described would amount to a breach of management's obhgatIOn, under artIcle 31 11 1, "to make reasonable prOVISIOns for the safety and health" of the gnevor As there IS no contradIctIOn In the eVIdence about the second alleged assault, I conclude the umon has estabhshed a przma facle case that a health and safety vIOlatIOn occurred on tlus occaSIOn AllegatIOns of assault aSIde, the umon contends the employer Impaired Ms Gareh's psychologIcal health by subjectIng her to harassment and an unfair dIstnbutIOn of work. For the purpose of the non-smt motIon, employer counsel does not dIspute that the gnevor suffered from depressIOn and stress dunng the relevant penod, but counsel contends there IS no eVIdence that her psychologIcal condItIon was caused by anytlung that happened at work. The medIcal OpInIOnS provIded by the gnevor's two doctors demonstrate that her psychologIcal state could have been caused by the workplace condItIons whIch she descnbed to them, but the condItIons 51 recounted m theIr letters dIffer sIgmficantly from those revealed by the eVIdence at hand. The opmIOn of both doctors rests m part upon the gnevor's allegatIOn that work was not dIstnbuted fairly, but the umon has not estabhshed a przma facle case that there was an unfair dIstributIOn Both medIcal letters refer to harassment by one or more supervIsors, but the doctors provIde no details of any harassmg conduct described to them by the gnevor, so I am unable to detennme whether the alleged harassment upon whIch theIr opmIOns are based accords wIth the eVIdence adduced before me The alleged assault on March 3 IS the only specIfic mCIdent mentIOned by the doctors, and I already have concluded there IS a przma facle case concernmg tlus allegatIOn As to the remammg allegatIOns of harassment, I conclude proof of the facts alleged would not constItute a failure on the part of management "to make reasonable prOVISIOns for the health and safety" of the gnevor VIII The gnevor contends the memos she receIved from Ms MIgnardI, dated March 8 and 28, 2000, constItute dIscIplme wIthout Just cause Employer counsel stIpulated that these memos were not mtended as dIscIphne and fonn no part of the gnevor's dIscIplmary record. GIven tlus stIpulatIOn, there IS no need for the umon to pursue tlus element of the gnevances I have already consIdered the umon's argument that these memos are part of a pattern of bad faith conduct on the part of management The contentIOn that the March 28 memo IS hbellous IS consIdered below In tlus sectIOn of my decIsIOn, I wIll address the gnevor's contentIOn that she was dIscIphned wIthout Just cause by bemg removed from a tnal m 52 March of2000 For the purpose of the non-sUIt motIon, my only task IS to detennme whether the UnIon has estabhshed a przma case that the gnevor was dIscIphned. If dIscIphne occurred, the employer would bear the burden of provmg Just cause for It As recounted above, Ms Gareh was removed from the Walker tnal because of a complamt by Mr JustIce Lafonne about her reportmg She testIfied tlus tnal reqUIred daily transcnpt Accordmg to the gnevor, the Walker tnal contmued after March 20, the date when she was reassIgned to summary convIctIOn appeals whIch generated no transcnpt ThIS eVIdence mdIcates the gnevor suffered a financmlloss as a result of bemg reassIgned. The reassIgnment of an employee to lower-paid work because of mfenor performance IS vIewed by arbItrators as a fonn of dIscIphne The long-standmg arbItral consensus IS that such reassIgnments are dIscIphnary, although there are two schools of thought as to whether tlus IS an acceptable fonn of dIscIphne, as Illustrated by the followmg passage from Brown and Beatty's, Canadzan Labour Arbltratzon A second technIque by whIch employees who persIst m madequate and unacceptable work habIts may be mduced to adhere to the nonns of the plant IS to assIgn them to lower rated and less cntIcal Jobs untIl they have demonstrated a wIlhngness and abIhty to adequately dIscharge the assIgned dutIes m theIr fonner posItIOns InItIally, some arbItrators were of the VIew that unless the collectIve agreement specIfically referred to such powers, demotmg an employee was not a proper form of dIscIphne because It was Said to abndge senIonty nghts and because of ItS mdefinIte effect However, m more recent awards, where the employee has shown Ius unsUItabIhty, mcompetence, or mabIhty to do the Job m questIOn the vast maJonty of arbItrators have come to accept the demotIOn or transfer of an employee as a legItnnate fonn of dIscIphne After some reasonable penod of tnne, whIch necessanly wIll vary wIth the facts of each case, the employer wIll be expected to 53 reassess the sUItabIhty of the gnevor for Ius fonner posItIOn (at 7 3544) When Brown and Beatty speak of a "lower rated" Job, they mean one wIth a lower wage or salary In the mstant case, the reassIgnment of the gnevor had no Impact on her hourly rate, but It dId depnve her of mcome from transcnpt For the purpose of detennmmg whether she was dIscIphned, I VIew tlus as a fonnal dIstmctIOn wIthout any substantIve dIfference The loss of transcnpt mcome was a financial penalty and therefore dIscIplmary In short, the umon has estabhshed a przma facle case of dIscIphne IX The umon alleges Ms Gareh was libeled by Ms MIgnardI' s memo of March 28,2000 The hbelIs said to resIde m allegedly false accusatIOns that the gnevor demed havmg dIfficulty recordmg testImony m court on March 8 and that she spoke to JustIce Lafonne after bemg told not to do so As noted by employer counsel, there IS no eVIdence that tlus memo was pubhshed m the sense that Ms MIgnardI sent It to anyone other than the gnevor For tlus reason alone, the umon has faIled to estabhsh a przma facle case of hbel X I have concluded. (1) the umon has estabhshed a przma facle case m relatIOn to the antI-SemItIc comment allegedly made on August 31, 1998, (2) the umon has estabhshed a przma facle case m relatIOn to the assault allegedly commItted on March 3,1999, (3) the umon has estabhshed aprzmafacle case that the gnevor was dIscIphned m relatIOn to the mCIdent of March 8, 54 2000, but (4) the umon has not estabhshed aprzmafacle case III relatIOn to any of the other alleged vIOlatIOns of the collectIve agreement Dated at Toronto tlus 16th day of September, 2002 ~~ ~~ RIchard Brown VIce-Chair