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HomeMy WebLinkAbout2003-0187.Waraich.05-01-07 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0187 UNION# 2003-0154-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (WaraIch) Union - and - The Crown In RIght of Ontano (Mimstry of Labour) Employer BEFORE Michael V Watters Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght, Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING November 22,2004 2 DeCISIon At the heanng of November 22,2004 counsel for the Employer asked for the Issuance of an order to prohIbIt the Umon from leadIng eVIdence related In any way to events predatIng a Memorandum of Settlement agreed to by the partIes on June 7 2002 ThIS prelImInary motIOn relatIng to the admIssIbIlIty of eVIdence was opposed by the Umon. The partIes presented theIr arguments wIth respect to the motIOn and asked that I provIde a rulIng on same pnor to the commencement of a heanng on the ments of the dIspute ThIS proceedIng was ImtIated by a gnevance dated March 25 2003 filed by Mr Terry WaraIch, an OccupatIOnal Health and Safety Officer II workIng for the Mimstry of Labour In Windsor Ontano The gnevance reads, In part "STATEMENT OF GRIEVANCE I gneve that the management of the Mimstry of Labour has and contInues to vIOlate the collectIve agreement. Reference to ArtIcle 3 - DISCnmInatIOn - Health and Safety - Ontano Human Rights Code - Mimstry of Labour Statement ofPnncIples and PolIcIes- DIfferentIal treatment and by creatIng a pOIsoned work envIronment, but not lImIted to the above SETTLEMENT DESIRED Full redress Cease and desIst the above practIces To be compensated for the above vIOlatIOns and appropnate momes for the above vIOlatIOns due to duress (ExhIbIt # 1) The gnevor filed two (2) earlIer gnevances dated Apnl17 2001 and October 11 2001 They were filed In thIS proceedIng as exhIbIts #2 and #3 respectIvely The gnevances read, In part 3 "STATEMENT OF GRIEVANCE Employer contravened artIcle 3 - no dISCnmInatIOn of collectIve agreements SETTLEMENT DESIRED Full redressal of the gnevance IncludIng (i) A wntten apology from the ActIng DIstnct Manager and (iI) SensItIvIty TraInIng for the ActIng DIstnct Manager " (ExhIbIt #2) -and- "STATEMENT OF GRIEVANCE I was demed travel expenses to have a medIcal form filled out from my doctor In London, Ontano after beIng dIrected to do so by the DIstnct Manager SETTLEMENT DESIRED That I be fully compensated for tIme and travel expenses" (ExhIbIt #3) A heanng was scheduled In Windsor Ontano on June 7 2002 before thIS Vice-Chair relatIng to the gnevances of Apnl 17 2001 and October 11 2001 At the heanng, the partIes were able to negotIate a settlement. The matenal part of the Memorandum of Settlement dated June 7 2002 reads "In respect of gnevances dated Apn117/01 (GSB#375/01) and October 11/01 (GSB#1566/01) the partIes hereby agree to the folloWIng as full and final settlement of the above captIOned gnevances, wIthout precedent or preJudIce, as follows 1) With respect to the Independent medIcal eXamInatIOn, It IS agreed that the Employer wIll provIde three (3) names of medIcal practItIOners to the gnevor The gnevor wIll respond wIth hIS chOIce of the medIcal practItIOner WIthIn ten (10) calendar days of beIng provIded wIth the lIst. The Employer wIll then advIse the gnevor of the date of the eXamInatIOn and wIll provIde the questIOns to the examInIng medIcal practItIOner The Employer wIll provIde the questIOns to the gnevor ten (10) calendar days In advance of the scheduled appoIntment. The Employer wIll reImburse any mIleage costs or wIll provIde the use of a Government vehIcle to attend the eXamInatIOn and wIll ensure that the gnevor receIves full wages for the day In questIOn. It IS understood that the gnevor wIll sIgn a waiver authonzIng the release of InformatIOn regardIng accommodatIOn reqUIrements or a prognOIs (SIC) to the Employer 4 2) The Employer agrees to pay the gnevor one hundred and fifty dollars ($150 00) to resolve the gnevance dated October 11/01 (GSB#1566/01) 3) A letter IS to be provIded to the Gnevor from the manager (See Attached) 4) The Gnevor and OPSEU agree to wIthdraw these gnevances Dated thIS 7th day of June, 2002 " (ExhIbIt #4) The letter referenced In paragraph #3 of the Memorandum of Settlement, reads "June 7 2002 T WaraIch Windsor DIstnct Office Windsor Ontano Dear Terry I regret that you feel that you were dIscnmInated agaInst. As DIstnct Manager In Windsor I wIll contInue to endeavour to ensure there IS no practIce of dISCnmInatIOn In the Windsor DIstnct Office Yours truly JudIth Cragg DI stn ct Manager-Windsor" Another heanng was scheduled In Windsor Ontano before thIS Vice-Chair on February 26 2004 At that tIme, the partIes by way of a Memorandum of Settlement resolved a further gnevance filed by the gnevor on June 24 2003 They also expressly provIded In the settlement that "the gnevance dated March 25 2003 stIll remaIns and IS not resolved by thIS settlement" Counsel for the Employer observed that the gnevances of Apnl 17 2001 (ExhIbIt #2) and March 25 2003 (ExhIbIt #1) both allege dISCnmInatIOn on the part of the Employer From hIS perspectIve, the Umon IS attemptIng to use eVIdence relatIng to the earlIer gnevance to support the current gnevance Counsel suggested that thIS Intent IS apparent from a readIng of the partIculars supplIed by the Umon. More specIfically he argued that the Umon wIshes to rely on 5 events whIch predate the Memorandum of Settlement of June 7 2002 In order to establIsh that Ms JudIth Cragg, the DIstnct Manager dIscnmInated agaInst the gnevor It was hIS submISSIOn, sImply put, that the Umon should not be permItted to do so for the reasons set out below Counsel for the Employer emphasIzed that the Memorandum of Settlement of June 7 2002 expressly states that the terms contaIned thereIn constItute "full and final settlement of the above captIOned gnevances" and that the gnevor and the Umon agreed to wIthdraw same On hIS analYSIS, the Umon In the Instant case may ask me to make adverse findIngs agaInst Ms Cragg In respect of events whIch led to the gnevance of Apnl17 2001 As noted above, that gnevance alleged dISCnmInatIOn on the part of the Employer and sought remedIes agaInst Ms Cragg. It was the thrust of counsel's submIssIOn that eVIdence underlYIng a gnevance whIch has been settled should not be admItted In support of a later gnevance He argued, In substance, that It IS Improper for the Umon to use the events whIch gave nse to the Apnl, 2001 gnevance, whIch was subsequently settled, to support the current gnevance of March 25 2003 Counsel asserted that a prohIbItIOn agaInst such usage should apply regardless of whether the settled gnevance was the gnevance of the gnevor or some other employee I was referred to the folloWIng authontIes Re Hotel-Dieu Grace Hospital and Ontario Nurses' Association (1997) 62 L.AC (4th) 164 (PIcher) OPSEU (Dale et al.) and Ministry of Health and Long-Term Care GSB No 0783/00 1314/00 0883/01 (Abramsky) In Re Hotel-Dieu Grace Hospital the Board of ArbItratIOn addressed a number of prelImInary obJectIOns raised by the Employer as to the permIssIble scope of eVIdence In that Instance, the Umon sought to Introduce eVIdence of events, whIch occurred In the SIX (6) year penod pnor to the filIng of the gnevance, for purposes of establIshIng a pattern of racIal dISCnmInatIOn In the HospItal over a substantIal number of years The Umon also wIshed to adduce eVIdence relatIng to another nurse, Ms Pat Pnma, whose gnevance and human nghts 6 complaInt allegIng dISCnmInatIOn were settled. The Employer opposed both of the Umon's requests The Board observed that In a case lIke the one before It, It was Important "to stnke a fair balance between the concerns of both partIes" It ultImately determIned that eVIdence be lImIted to a penod commencIng three (3) years pnor to the date the gnevance was filed. AddItIOnally the Board decIded agaInst heanng any eVIdence concermng the complaInts ofMs Pnma. The award reads as follows on thIS latter pOInt: "We have sImIlar concerns WIth respect to allowIng eVIdence to be adduced wIth respect to the treatment of nurse Pnma, to the extent that her human nghts complaInt was fully settled on a wIthout preJudIce basIs We must have senous pause before proceedIng down a road whIch mIght Involve us makIng adverse findIngs agaInst the employer In respect of ItS treatment of another employee when that very Issue has been qUIeted by a mutual settlement" (pages 166-167) -and- "Further we do not consIder It appropnate to admIt eVIdence concermng the events whIch gave nse to the complaInt of nurse Pnma, to the extent that that matter IncludIng a compamon gnevance filed by the Umon, was resolved on a wIthout preJudIce basIs " (page 167) Counsel for the Employer asked that I adopt a sImIlar approach to the eVIdence surroundIng the gnevances of Apnl17 2001 and October 11 2001 whIch, as noted prevIOusly were resolved by a Memorandum of Settlement dated June 7 2002 In Dale et al the Gnevance Settlement Board addressed a total of SIX (6) gnevances, one (1) dated July 3 1998 another dated November 2,2000 and four (4) other gnevances filed In 2001 The Issue before the Board related to the admIssIbIlIty of eVIdence concernIng seventeen (17) other gnevances filed In 1996 whIch the partIes later settled In March, 1999 The Umon sought to rely on the facts and CIrcumstances underlYIng these earlIer gnevances to support ItS allegatIOn that the actIOns taken by the Employer In the cases before the Board were based on antI-umon ammus The Employer obJected to the IntroductIOn of such eVIdence on the basIs that 7 the matters had been fully and finally settled by the partIes The preamble to the Minutes of Settlement stated that It was In "full and final settlement of all matters In dIspute wIthout preJudIce or precedent, and wIthout any admIssIOn of lIabIlIty or culpabIlIty of any of the partIes " Paragraph #5 of the Minutes of Settlement provIded, as follows "All partIes to these Minutes of Settlement agree that all matters In dIspute between them raised In the gnevances have been resolved and no further actIOns respectIng these matters wIll be taken under the common law the collectIve agreement, statute or otherwIse" The Umon In Dale et al as here argued that It was not attemptIng to relItIgate the earlIer gnevances whIch were settled and also stressed that It was not seekIng a remedy In relatIOn to those gnevances Instead, It was attemptIng to lead eVIdence of the Employer's past actIOns to establIsh a contInUIty of conduct IndIcatIve of antI-umon ammus The Umon In Dale et al relIed on the Junsprudence of the Ontano Labour RelatIOns Board relatIng to unfair labour practIce proceedIngs The relevant Junsprudence IndIcates that although no remedy may be sought for unfair labour practIce matters that have been settled or wIthdrawn, eVIdence about them IS admIssIble for the lImIted purpose of establIshIng a pattern of unlawful actIvIty see Craftline Industries Limited, (1977) OLRB Rep Apnl246 Comstock Funeral Home Ltd (1981) OLRB Rep Dec 1755 Vice-Chair RH. Abramsky In Dale et al observed that the Gnevance Settlement Board "has long recogmzed the cntIcalImportance of settlements and theIr enforcement" (page 8) She referenced the folloWIng comments found at pages 8-9 In Landry-King GSB No 1593/84 (Knopf) as to the effect to be gIven to final settlements reached between the partIes "The Board wIshes to do everythIng possIble to foster and honour settlements reached by the partIes Once settlements are achIeved, partIes must feel confident that they can rely upon them OtherwIse, there would be no InCentIve for the partIes to even attempt to settle matters Unless there IS a compellIng reason why a settlement once obtaIned, cannot be honoured by the partIes, thIS Board should not even attempt to Interfere wIth the Settlement" 8 Vice-Chair Abramsky then contInued, as follows "Once a matter IS settled, the expectatIOn IS that the matter IS resolved and wIll not reappear In some dIfferent gUIse As the Board held In OPSEU (Pitirri) and Ministry of Correctional Services supra at p 12 'With respect to those (gnevances) covered by the settlements, one need only observe that the partIes enter Into agreements of thIS kInd wIth the expectatIOn that theIr agreements wIll remaIn In effect and that the gnevances that have been resolved by theIr terms wIll not reappear In some dIfferent gUIse' " (page 8) Vice-Chair Abramsky noted that the Junsprudence of the Ontano Labour RelatIOns Board, referred to above does permIt eVIdence concermng settled or wIthdrawn complaInts to be admItted for the lImIted purpose of establIshIng a pattern of unlawful actIvIty She found, however that the Junsprudence was InapplIcable to the gnevances before her for the folloWIng reasons (i) At the tIme the 1996 gnevances were settled In March of 1999 the gnevance of July 3 1998 had already been filed. The latter gnevance was not a fresh complaInt anSIng after the settlement or a subsequent development. Rather at the tIme of the settlement, It was an eXIstIng and ongOIng gnevance In her Judgment, the underlYIng premIse of the Junsprudence of the Ontano Labour RelatIOns Board dId not apply when the conduct complaIned of eXIsted at the tIme of the settlement; (iI) Vice-Chair Abramsky gave a broad InterpretatIOn to paragraph #5 of the Minutes of Settlement. She concluded that the language contaIned thereIn precluded the Umon from relYIng on the matters whIch led to the settled gnevances to support the 1998 gnevance In thIS regard, she consIdered It matenal that the latter gnevance had been filed pnor to the 1999 settlement. The award reads as follows on thIS pOInt 9 "By consentIng to a 'full and final' settlement and agreeIng that 'no further actIOns respectIng these matters wIll be taken ' the Umon cannot now rely on those settled matters to support a gnevance that eXIsted at the tIme these matters were settled. There IS no eVIdence that anythIng was said to the employer to the effect that, despIte the settlement, the facts underlYIng the settled gnevances would be used to establIsh antI-umon ammus In relatIOn to the 1998 gnevance Indeed, It would be tantamount to bad faith to settle a matter but plan to rely on the facts whIch underlIe It to support an eXIstIng gnevance " (page 11) 111) Vice-Chair Abramsky sImIlarly determIned that the settled 1996 gnevances could not be used by the Umon to support the November 2000 and 2001 gnevances even though they arose after the settlement and would, therefore, arguably be captured by the ratIOnale of the Ontano Labour RelatIOns Board Junsprudence ThIS determInatIOn was premIsed, pnmanly on the fact that there was a passage of a substantIal penod of tIme between the conduct whIch led to the 1996 gnevances and the filIng of the 2000 and 2001 gnevances Vice-Chair Abramsky next consIdered the Re Hotel-Dieu Grace Hospital award referenced above It IS clear that she accepted the balancIng of Interests approach artIculated In that case She concluded as follows after applYIng thIS approach to the facts before her "The events of 1996 occurred more than four years before the November 2000 gnevance before me and the probatIve value of that eVIdence, gIven the passage of so many years, IS relatIvely lImIted. On the other hand, the prospect of opemng thIS heanng to the 17 matters whIch arose In 1996 and were settled In 1999 after a lengthy heanng on those same Issues, gIves thIS Board "senous pause, both from an eqUItable and a procedural standpoInt." Procedurally It would very sIgmficantly lengthen the heanng. From an eqUItable standpoInt, requmng the Employer who belIeved that these 17 matters were fully and finally settled as of March 1999 to re-defend these matters at thIS late date would be IneqUItable and preJudIcIal ConsIdenng the competIng Interests Involved, the balance of Interests favours not admIttIng the eVIdence concernIng the 1996 settled gnevances 10 I also note that the Board In Hotel-Dieu Grace Hospital found It Inappropnate to admIt eVIdence concernIng the events whIch gave nse to the complaInt of another employee, "to the extent that that matter IncludIng a compamon gnevance filed by the Umon, was resolved on a wIthout preJudIce basIs" (p 3) The Board stated that "(w)e must have senous pause before proceedIng down a road whIch mIght Involve us makIng adverse findIngs agaInst the employer In respect of ItS treatment of another employee when that very Issue has been qUIeted by a mutual settlement." (p 2) Although the settled matters In thIS case concern the gnevors rather than another employee the same concerns are present In thIS case" (page 15) It IS matenal, In my Judgment, that Vice-Chair Abramsky shared the concern expressed In Re Hotel-Dieu Grace Hospital that acceptance of the Umon's posItIOn could Involve her In makIng adverse findIngs agaInst the Employer In respect of an Issue or Issues that had been prevIOusly settled. I note that she had such concern even though, unlIke the sItuatIOn In Re Hotel-Dieu Grace Hospital the settled matters Involved the gnevors rather than some other employee Counsel for the Umon asserted that the gnevor expenenced dISCnmInatory and dIfferentIal treatment, pnmanly lInked to an accommodatIOn he reqUIred for a medIcal condItIOn, from the outset ofMs Cragg's appoIntment as DIstnct Manager In September 2000 He further asserted that thIS treatment contInued untIl Ms Cragg left the posItIOn In August, 2003 It was counsel's submIssIOn that the eVIdence of events over thIS entIre penod IS relevant, as such eVIdence wIll dIsclose a pattern of dISCnmInatIOn agaInst the gnevor He also argued that It would be unfair to lImIt the Umon's nght to present eVIdence about the entIre penod In Issue as many If not most, of the events complaIned of were connected to the gnevor's on-gOIng need to be accommodated. Counsel suggested that gIven thIS causal lInk, It would be counter productIve to establIsh an artIficIal cut-off date VIS-a.-VIS the admIssIbIlIty of eVIdence From hIS perspectIve, the Employer would not be preJudIced by an order permIttIng the Umon to adduce eVIdence about ItS treatment of the gnevor between 2000 and 2003 11 Counsel for the Umon submItted that the Memorandum of Settlement of June 7 2002 was breached by the Employer In two (2) respects FIrst, the Employer and Ms Cragg specIfically vIOlated the settlement In the manner In whIch she commumcated wIth, and the InfOrmatIOn she forwarded to the doctor selected for the Independent medIcal exam. Second, that whIle Ms Cragg undertook In the attached letter "to endeavour to ensure there IS no practIce of dISCnmInatIOn In the Windsor DIstnct Office" the pattern of dISCnmInatIOn agaInst the gnevor by the DIstnct Manager contInued. Counsel argued that these vIOlatIOns of the Memorandum of Settlement serve to dIStIngUISh thIS case from the facts eXIstIng In the awards relIed on by the Employer UltImately he submItted that these vIOlatIOns entItled the Umon to go behInd the settlement and to examIne the facts and CIrcumstances whIch led to the filIng of the gnevances of Apnl17 2001 and October 11 2001 Counsel noted that the Umon was not seekIng a remedy for the events pnor to June 7 2002 Rather It sought relIef for events occurnng after that date He observed, however that eVIdence of what occurred pnor to June 7 2002 would provIde a context to better understand what occurred after The Umon relIes on the awards In OPSEU (Mirosolin) and Ministry of the Attorney General GSB No 2054/90 (Venty) and OPSEU (Akbar Maghsoudi) and Ministry of Transportation GSB No 0988/97 (LeIghton) In Mirosolin the gnevance dated August 3 1990 claimed dISCnmInatIOn from alleged dIfferentIal treatment on the basIs of race contrary to ArtIcle A of the collectIve agreement. ArtIcle A was then a new contractual provIsIOn whIch came Into effect on June 15 1990 The partIes agreed that the Board's JunsdIctIOn under ArtIcle A was lImIted to the penod June 15 1990 to the date of filIng of the gnevance on August 3 1990 They dIsagreed, however on the scope of the eVIdence the panel should hear The Employer sought to lImIt the IntroductIOn of eVIdence to the penod between June 15th and August 3 1990 gIven there was no JunsdIctIOn to grant a remedy for events outsIde that penod. In contrast, the Umon sought to Introduce three 12 (3) categones of eVIdence gOIng back as far as 1986 The Umon acknowledged that no remedy was beIng claimed pnor to June 15 1990 Its counsel contended that the panel should hear the background eVIdence In lIght of the lengthy hIstOry of fnctIOn, complaInts, alleged management InactIOn and harassment In order to properly understand the events beIng gneved. The Board In Mirosolin ruled that the Employer's prelImInary obJectIOn was wIthout ment. It relIed on sectIOn 20(8) of the Crown Employees Collective Bargaining Act (now sectIOn 48(1)) whIch provIded the Gnevance Settlement Board wIth the statutory authonty to determIne Its own practIce and procedure by gIVIng "full opportumty to the partIes to present theIr eVIdence and to make theIr submIssIOns" The Board determIned that It had a wIde latItude to hear eVIdence and to thereafter assess the weIght, If any to be accorded to such eVIdence The Board adopted the approach reflected In the folloWIng excerpt from the award In OPSEU (A. Taylor-Baptist) and Ministry of Correctional Services GSB No 163/87 (Kennedy) "Once the gnevance IS properly before us wIthIn the procedures laid down In the collectIve agreement, the appropnate scope of eVIdence IS governed by the normal pnncIples dealIng wIth the admIssIbIlIty of eVIdence and ItS relevance to the Issues to be arbItrated. In the context of labour relatIOns, matters cannot and ought not to be determIned In a vacuum, and past events are customanly covered In the eVIdence In order to place a partIcular IncIdent that IS the subJect matter of a gnevance Into ItS proper context In the lIght of the on-gOIng employment relatIOnshIp It IS Immatenal that those past events can no longer form the basIs of a gnevance due to the tIme lImIt provIsIOns of the collectIve agreement. If we were to accept Mr BenedIct's obJectIOn that eVIdence be lImIted to events occurrIng no earlIer than 20 days pnor to the gnevance, we would In substance exclude the greater proportIOn of eVIdence that IS heard In numerous cases by thIS board on a day-to-day basIs" (pages 4-5) In Akbar Maghsoudi the gnevor's posItIOn as a Semor Research TechmcIan 5 was declared surplus on July 2, 1997 The gnevor filed a gnevance on the folloWIng day In whIch he alleged that the decIsIOn to declare hIm surplus was a vIOlatIOn of artIcles 3 and 20 of the collectIve agreement, as It constItuted dISCnmInatIOn on the basIs of race and Umon actIvIty It 13 was the Umon's posItIOn that the surplus notIce was a culmInatIng IncIdent In a pattern of dISCnmInatIOn agaInst the gnevor that began In 1979 The Umon conceded that It was not seekIng remedIes back to 1979 The Employer raised a prelImInary motIOn to dIsmIss the gnevance on three (3) grounds FIrst, the gnevance was untImely Second, the doctnne of estoppel barred the heanng of the gnevance and, lastly the Board had no JunsdIctIOn to reVIew the enforceabIlIty of an alleged promIse of a promotIOn to a new posItIOn. Counsel for the Employer In Akbar Maghsoudi argued that the gnevor should not be permItted to gneve about events In three (3) tIme penods subsequent to 1979 These were as follows I) events between 1979 and 1988 whIch had been the subJect matter of a complaInt to the Ontano PublIc ServIce Labour RelatIOns Tnbunal The complaInts agaInst the Employer and the Umon were dIsmIssed by the Tnbunal In 1988 because of the delay In bnngIng them, 11) events between 1989 and 1993 relatIng to seventeen (17) allegatIOns whIch were InvestIgated under the Workplace DISCnmInatIOn and Harassment PolIcy WhIle two (2) of the allegatIOns were substantIated, the InVestIgator found no eVIdence of dISCnmInatIOn, and 111) events between 1993 and 1995 relatIng to an alleged promIse by semor management to put the gnevor Into a hIgher posItIOn. In substance, It was the Employer's posItIOn that the gnevor was out of tIme to gneve the events related to all of the above pen ods Vice-Chair D.J.D LeIghton found that the gnevance of July 3 1997 was tImely She determIned that the eVIdence In respect of the penod 1979 to 1988 was admIssIble to prove the alleged pattern of dISCnmInatIOn. She further determIned that the eVIdence In respect of the penod 1989 to 1993 relatIng to the matters InvestIgated under the Workplace DISCnmInatIOn and Harassment PolIcy was sImIlarly admIssIble as no remedy was beIng sought for any dISCnmInatIOn dunng that penod. The Vice-Chair permItted the Umon to advance the eVIdence 14 to agaIn, show the alleged pattern of dISCnmInatIOn. UltImately the Umon was not restncted to post 1995 eVIdence In reply counsel for the Employer demed that the Memorandum of Settlement had been breached. He suggested that even If It had been contravened, the proper course for the Umon was to file a tImely gnevance allegIng breach of the terms of settlement. Counsel also dIsputed the Umon's suggestIOn that June 7 2002 was an arbItrary date for purposes of lImItIng the eVIdence From hIS perspectIve that date was sImply a consequence floWIng from the Memorandum of Settlement. He argued that the Umon could have reserved a nght In the settlement to rely on earlIer events Lastly counsel submItted that the awards relIed on by the Umon are dIstIngUIshable from the present dIspute, as neIther Involved an attempt to lead eVIdence about gnevances that had been settled. I accept that In cases where a pattern of dISCnmInatIOn IS alleged, some scope may be allowed for the admIssIOn of eVIdence In respect of CIrcumstances and events predatIng the tIme lImIt provIsIOns of the collectIve agreement. WhIle past events may no longer entItle an employee to file a new gnevance or to seek a remedy In respect of same, the eXamInatIOn of such pnor events may establIsh the context for better asseSSIng the CIrcumstances and events surroundIng matters whIch have been gneved In a tImely fashIOn. The awards In Re Hotel-Dieu Grace Hospital and In Dale et al make It clear that In establIshIng lImIts relatIng to the extent of the eVIdence, a Board of ArbItratIOn or the Gnevance Settlement Board must endeavour to stnke a fair balance between the concerns of both partIes To repeat, the settled gnevances were filed on Apnl17 2001 and October 11 2001 Paragraph #13 of the Umon's Statement of PartIculars states that "a large motIvatIng cause behInd the gnevances filed In 2001" was Ms Cragg's refusal to accept the gnevor's dIsabIlIty and consequent accommodatIOn, her repeated demands for medIcal documentatIOn and her contInuIng efforts to termInate the accommodatIOn. The Memorandum of Settlement whIch 15 encompassed the above-mentIOned gnevances was executed by the partIes at a heanng of June 7 2002 The gnevance now before thIS Vice-Chair was subsequently filed on March 25 2003 As I understand the Umon's posItIOn, It seeks In thIS proceedIng to present eVIdence gOIng back to 2000 and, more partIcularly to the tIme at whIch Ms Cragg assumed the posItIOn ofDIstnct Manager In September 2000 In substance, the Umon wants to lead eVIdence In respect of a penod of approxImately two and a-half (2 1/2) years In contrast, the Employer wIshes to prohIbIt the IntroductIOn of eVIdence pertaInIng to events pnor to June 7 2002 The penod In respect of whIch the Umon seeks to lead eVIdence IS less, In terms oflength of tIme than the penods permItted In Re Hotel-Dieu Grace Hospital Mirosolin and Akbar Maghsoudi AddItIOnally the Umon seeks to adduce eVIdence underlYIng only two (2) gnevances, rather than seventeen (17), as was the case In Dale et al As a consequence, It IS unlIkely that the heanng would be sIgmficantly lengthened by a rulIng In the Umon's favour NotwIthstandIng the above, I find that the overndIng consIderatIOn, In thIS Instance, IS the fact that the partIes agreed to a full and final settlement of the gnevances of Apnl17 2001 and October 11 2001 through the Memorandum of Settlement executed on June 7 2002 I have no doubt that the partIes Intended to fully and finally resolve these dIsputes and to take appropnate steps that would hopefully result In the development of a more productIve, and less acnmomous, employer-employee relatIOnshIp Unfortunately the latter dId not occur Nevertheless, I share the concerns expressed In Re Hotel-Dieu Grace Hospital and Dale et al wIth respect to the consequences whIch could potentIally follow from a decIsIOn In the Umon's favour More specIfically thIS Vice-Chair could be called upon to make adverse findIngs agaInst the Employer In respect of ItS treatment of the gnevor when that very Issue has been the subJ ect of a mutual settlement. I, too am most reluctant to proceed down that road, as I belIeve that It could serve to undermIne the partIes' confidence In final settlements and theIr legItImate expectatIOn that settled matters wIll not reappear In some dIfferent gUIse I accept the concerns artIculated by Vice-Chair 16 Abramsky In Dale et al on thIS pOInt. I am lIkewIse dIsInclIned to apply the Junsprudence of the Ontano Labour RelatIOns Board to the CIrcumstances eXIstIng In thIS case I recogmze that the Memorandum of Settlement dated June 7 2002 dId not contaIn a provIsIOn lIke paragraph #5 of the Minutes of Settlement In Dale et al It IS clear from a readIng of the latter award, that Vice-Chair Abramsky dId not premIse her decIsIOn In respect of the November 2000 and 2001 gnevances solely on the wordIng of paragraph #5 It would appear that her conclusIOn on that aspect of the case was also based on the substantIal passage of tIme and on a balancIng of the Interests In accordance wIth the approach taken In Re Hotel-Dieu Grace Hospital After fully consIdenng the submIssIOns of both partIes, I find that the Umon should be precluded from presentIng eVIdence about the facts and CIrcumstances underlYIng the settled gnevances of Apnl17 2001 and October 11 2001 I am satIsfied that the Umon, however IS entItled to lead relevant eVIdence about events occurnng In the penod October 11 2001 to March 25 2003 I note from a readIng of the Umon's Statement of PartIculars that It does not Intend to rely on many events In the penod from October 11 2001 to June 7 2002 to support the gnevance Indeed, the vast maJonty of events referenced In the Statement of PartIculars occurred after the executIOn of the Memorandum of Settlement. I further note that the Umon asserts that the Employer breached the terms of the settlement. That assertIOn has not persuaded me to permIt the Umon to go behInd the Memorandum of Settlement and to hear eVIdence about the CIrcumstances surroundIng the settled gnevances The Umon IS entItled, however to lead eVIdence that the settlement was breached and that such breach was part of a long pattern of dISCnmInatIOn, as alleged. I have attempted, In the CIrcumstances of thIS case to balance the Interests of the partIes I have accepted the Employer's obJectIOn to the extent that I am not prepared to receIve eVIdence about the events and CIrcumstances underlYIng the settled gnevances of Apnl17 2001 and 17 October 11 2001 As mentIOned earlIer I have reached that conclusIOn, In large part, to ensure and promote the sanctIty of final settlements WhIle the Umon IS prohIbIted from leadIng eVIdence about the above gnevances, I am satIsfied that It contInues to have sufficIent opportumty to establIsh the pattern of dISCnmInatIOn that It alleges occurred In respect of thIS gnevor If the partIes expenence any dIfficulty In prepanng theIr respectIve cases as a consequence of thIS Intenm award, such dIfficulty can be addressed at, or pnor to the heanng on the ments To be clear thIS Intenm award relates exclusIvely to the extent of eVIdence whIch can be led wIth respect to the gnevance of March 25 2003 The partIes wIll later have the opportumty to make representatIOns as to what remedy If any flows from the eVIdence led dunng the course of the heanng on the ments of the gnevance Dated at Toronto Ontano thIS ih day of January 2005 M. V Watters