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HomeMy WebLinkAbout2002-2375.Ranger.06-11-01 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2002-2375,2004-1217 UNION# 2002-0411-0038,2004-0411-0071 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Ranger) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Deborah 1. D. Leighton Gavin Leeb Barrister and Solicitor Paul Meier Counsel Ministry of Government Services September 14 & 20, 2006. Union Employer Vice-Chair 2 Decision Robert Ranger has been a correctional officer with the Ministry since 1991. On December 19, 2002 he grieved: That the employer is in violation of specifically, but not exclusively, Article 3, no discrimination/employment equity, and 9, health and safety and video display terminals. The employer had condoned, and continues to condone direct employee and management harassing behaviour that has created a poisoned work environment. The poisoned environment has caused me to suffer harassment and discrimination due to my sexual orientation. A second grievance, dated June 18,2004, alleges that the employer has failed to accommodate the grievor. After a number of attempts to settle these matters, the hearing began in September of 2004. The board heard from two witnesses and the grievor, in-chief before these motions were brought before it on September 14 and 20,2006. On December 1, 2005, Mr. Robert Doucet, a therapist at the Gatineau Memorial Hospital Centre, who testified that he was part of the treatment team for the grievor, was cross examined on his clinical notes, particularly the grievor's allegation of harassment by a union president. After cross-examining on this issue, Ms. Ferina Mmji, counsel for the employer, stated for the record that she wished to put the board on notice that should the Ministry be found liable in this case, the employer would be seeking an order for damages against the union. By way of providing background for the two motions before me, counsel for the union explained that Ms. Mmji's statement to the board caused the grievor some concerns that the union was in a conflict of interest with him in this case. The grievor consulted and retained his counsel in early 3 August of2006, Mr. Ross Dunsmore. Mr. Dunsmore wrote to Mr. Leeb on August 14, 2006 regarding what the grievor considered to be a conflict of interest. The union recognized that there could be a conflict between the grievor and the union, and was concerned that the hearing not proceed with what it termed a "cloud" over the proceeding. (I have not been asked to rule on whether there is a conflict of interest between the grievor and the union.) Thus on September 14 and 20, 2006 counsel for the union put two motions before the board. The first motion is for a declaration that the board has no jurisdiction to entertain what is in effect a counterclaim or grievance by the employer against the union for damages, should the grievor prove his case. In the alternative, if the board finds it has jurisdiction, the union takes the position that given the issue of co-payment of damages was not raised until day nineteen of the hearing, it is too late to raise the claim of joint liability. The second motion is seeking an order that if! accept that there is no jurisdiction to hear the employer's claim for joint liability, then the union seeks an order that I will not make a ruling that is adverse against the union. The employer objects to the union's motions and states that the issue before me is a pure question of law. The question is whether the board can make a ruling against the union for a breach of the Human Rights Code. Counsel for the employer, Mr. Meier, stated that the allegation that the union president was the main harasser of the grievor makes it clear that the union is involved in harassment based on a prohibited ground. The employer took the position that in an appropriate case the board does have jurisdiction to find the union liable, and this was such a case. 4 THE UNION'S SUBMISSION Counsel for the union argued that the jurisdiction in the grievance before me flows from the grievances that have been submitted by the union for hearing. These grievances are directly against the employer. The employer's attempt to argue that notwithstanding this the union is partially liable for any potential damage that the grievor has suffered would require a substantial amendment of the grievance. He argued further the fact that throughout the grievance and arbitration process the grievance was dealt with only with regard to its allegations against the employer meant that the union has had no notice that it should be calling evidence to protect its own interests. Where there is no clear allegation against the union in the grievance, the board can have no jurisdiction to deal with it. Counsel argued that the employer could have filed a grievance had it wished, but has not done so. Mr. Leeb also noted that the employer counsel made no opening statement, and it was not until day nineteen of the hearing that the union was put on notice that the employer would be seeking co-payment of damages should there be a finding of liability against the employer. Thus the delay alone should be enough to bar this claim. The union, the grievor and the board would be prejudiced to allow the claim to be raised so late in the day. In the alternative, counsel for the union argued that it would be an abuse of process at this late stage of the proceeding to allow this kind of argument to be made. Since arbitrators have the power to make rulings to protect the process of the hearing, counsel argued that such an order should be made to avoid very real consequences of prejudice and a waste of resources of the board. In summary, counsel argued that the board had no jurisdiction to entertain what was in effect a grievance against the union in this proceeding, that it should not do so late in the day given the 5 real consequences of prejudice, and finally that if the union's position was accepted, there would be no labour relations purpose to make adverse findings against the union in this matter. Thus counsel asked me to make an interim decision, that should the union have done something wrong in this case, there should be no specific findings adverse to the union. Counsel relied on the following cases in support of his submission: New Brunswick v. 0 'Leary (1995) 125 D.L.R. (4th) 609 (S.C.C.); Airline Pilots Association. v Canadian Airlines International Ltd (2000) B.C.J. No. 1698 (BC Sup. Ct.); Fanshawe College and OPSEU (2002) 113 L.AC. (4th) 328 (Burkett); Tudor House Ltd and Service Employees Union, Local 308 (Elliott) (1993) 35 L.AC. (4th) 387 (Freedman); Ontario (Attorney General) v. Bowie (1993) 16 O.R. (3d) 476 (Ont. Div. Ct.); OPSEU (Union Grievance) v. Ministry of Community Safety and Correctional Services (GSB 2003-3075) (Herlich); Puchala, Tovernic and Canadian Human Rights Commission and Time Air Inc. (unreported case 1994) (Canadian Human Rights Tribunal); Moburne Inc. and USWA (Rouest) (1998) 74 L.AC. (4th) 436 (Barrett). THE EMPLOYER'S SUBMISSION Counsel for the employer made three points in opening his submission on these motions. The first was that as soon as the evidence came out in the hearing that the union president was the main harasser it was appropriate for the employer to put the board on notice of its intended claim against the union. Counsel further stated that the union cannot say it had no notice of this allegation because they have known for some time that the alleged main harasser was the union president at the time. Therefore, they cannot argue that they had no idea that they should be concerned about a potential conflict of interest. The second point addresses the argument that the board cannot go beyond the face of the grievance in adjudicating the issues before it so that the board should not deal with a human rights complaint against the union. Counsel argued that 6 this position ignores the effect of Parry Sound, infra, and the board's obligation to hear human rights complaints. The union must not be allowed to use the grievance forum to insulate itself from liability. The third point was that the union is taking the position that it cannot be held liable because it is not a party to this proceeding. However, counsel argued that it is only OPSEU and the employer that are parties. Further, counsel for the union owes a fiduciary duty to his client, the union. The union owes the grievor the duty of fair representation. Counsel for the employer argued that the issue before me was whether as a question of law the union could be found liable for a breach of the human rights code. He further stated that the nub of the issue here is whether the law gives the board the power to examine the issue of the union's liability in this case. Counsel relied on Renaud, Parry Sound, Cami Automotive, and Weber, infra, in support of his submission that the board has clearly got the jurisdiction to deal with the union breaching the Human Rights Code. Counsel was of the view that it was "mechanistic in the extreme that the person who framed the grievance ensures that the board cannot look at the issue of their possible violations of the Code." Counsel submitted that this does not fit with the public function of the board or with the multi-party approach that discrimination is everybody's business. Thus counsel argued that given the allegation that a union person has breached the Code, I should look at all of the facts and eventually decide whether the employer and/or the union are liable in this case. Counsel for the employer argued with regard to the union's delay argument that there had been no delay on the part of the employer here. The employer is claiming a substantive right to make a legal argument that the union may be liable for breaching the Human Rights Code. They cannot be said to have waived a substantive right because this would require an express commitment that they would not hold the union liable. Further, the doctrine of laches or waiver 7 involves a change of position and the employer has never changed its position in this case. In the alternative, counsel for the employer argued that it is not for those asking for an equitable remedy to come before the board without "clean hands." Counsel stated that it is the union's position that the main harasser was the union president, yet it wants to use equity to prevent an examination of the union's actions or responsibilities under the Human Rights Code. In the further alternative, the employer argues that the employer should not be deprived of making a legal claim against the union because of when the employer put the union on notice of its claim. In support of this submission the counsel argued that the union has suffered no prejudice, nor has the grievor. If the employer is permitted to argue that the union is jointly liable and this is supported, then the grievor wins. Counsel argued that the union was "fear- mongering" by arguing that the hearing was potentially in jeopardy of continuing if I should make a finding that the employer can proceed with its argument that the union is jointly liable. Mr. Meier also noted that there is a significant difference between the waiver of a procedural matter and something that relates to a substantive right. Counsel noted that it is typical in labour arbitrations that the employer puts in a defence after hearing the union's case. In this case the employer's defence is that the union participated in the harassment and discrimination of the grievor and, therefore, is potentially liable. He noted that there is no case law from the union on the abandonment of legal claims. He noted further that this is not a pleading-based system so that the employer has to be allowed to raise this issue in its defence. Counsel noted in closing that the conflict between the union and the grievor was inherent and existed from the very beginning of the case, that it existed despite any claim by the employer that the union was jointly liable. In summary, the employer argued that this board has the jurisdiction 8 to find the union liable for a breach of the Human Rights Code and that the board has a duty and obligation to adjudicate human rights disputes. Counsel for the employer relied on the following cases in support of his submission: Central Okanagan School District No. 23 v. Renaud (1992) 95 D.L.R. (4th) 577 (S.C.C.); Parry Sound (District Social Services Administration Board) v. OPSEU, Local 324 (2003) 230 D.L.R. (4th) 257 (S.C.C.); Weber v. Ontario Hydro (1995) 125 D.L.R. (4th) 583 (S.C.C.); Cami Automotive Inc. and CA. W, Local 88 (1994) 45 L.AC. (4th) 71 (Brandt); Roosma v. FordMotor Company (1988) 9 C.H.R.R. D/4743 (Ont.Bd.Inq.); Moffatt v. Kinark Child and Family Services (4) (1998) 35 C.H.R.R. D/205 (Ont.Bd.Inq.); A. UP.E. v. Lethbridge Community College (2004) 238 D.L.R. (4th) 385 (S.C.C.); Oil, Chemical andAtomic Workers and Polymer Corp. Ltd (1959) 10 L.AC. 51 (Laskin); Imbleau v. Laskin (1962) S.C.R. 338 (S.C.C.); Berry v. Pulley (2002) 211 D.L.R. (4th) 651 (S.C.C.); Office and Professional Employees International Union, Local 267 v. Domtar Inc. (1992) 8 O.R. (3d) 65 (Ont.Div.Ct.); Syndicate des employe(es) de terminus Voyageur Colonial Ltee v. Goyette (1999) 185 D.L.R. (4th) 366 (Fed.Ct.); Burley v. OPSEU et a!. (2004) 133 L.AC. (4th) 97 (Ont.Div.Ct.); Professional Institute of the Public Service of Canada v. Canada (Attorney General) (2002) 222 D.L.R. (4th) 438 (Ont.C.A); Ontario Power Generation and Society of Energy Professionals (2004) 137 L.AC. (4th) 44 (Goodfellow); Extendicare (Canada) Inc. and ONA (2004) 135 L.AC. (4th) 359 (Harris); Auto Workers' Village (St. Catharines) Ltd v. Blaney, McMurtry, Stapells, Friedman (1997) 0.1. No. 6405 (Ont.Gen.Div.). 9 DECISION The employer has argued in this case that the question before me in this interim ruling is whether or not the board has the jurisdiction to adjudicate an alleged breach by the union of the Human Rights Code. Stated more precisely the true question is whether this board is obligated by law to entertain in effect a counterclaim made by the employer against the union. The employer states that it is part of its defence that the union contributed to the discrimination and harassment of the grievor and, therefore, it should be permitted to argue at the end of the day that the union is jointly liable for its actions. The union has argued that my jurisdiction flows from the grievances that the union has filed on behalf of the grievor. These grievances allege that the employer has failed in its duty under the Human Rights Code when the grievor was allegedly harassed on the basis of his sexual orientation in the workplace and then not accommodated after he became ill as a result of the harassment. Having carefully considered the submission and cases of the parties, I have decided that the issue before me is whether the employer can in effect raise a "counterclaim" or a grievance, against the union for damages at this stage in the hearing. Given all the circumstances of this case, I have decided that it would be inappropriate to permit this now. Counsel for the employer spent considerable time and argument on the point that arbitrators have the obligation to consider human rights issues put before them, and that the unions have a well- established obligation under the Human Rights Code not to discriminate against their members. Union counsel conceded that unions are obliged to follow the Human Rights Code, and that it is well established that arbitrators have the jurisdiction to hear human rights complaints, but, he was adamant that this does not support the finding that the employer's 'counterclaim' is 10 appropriately before me in this case. I agree that where there is a claim properly advanced against the union, an arbitrator does have jurisdiction to hear the human rights complaints and per Polymer, supra, has a full range of remedial authority. In Cami Automotive an arbitrator heard a grievor' s complaint against both the union and the employer. The employer had raised an objection to the arbitrability of the grievance, which the arbitrator did not address because the union took the position that the allegations made by the grievor were properly before the board. However, these are not the circumstances before me. There is no concession here by the union and there is no grievance filed against the union. The employer could have filed a grievance against the union, but it did not. The Airline Pilots Association case, supra, is helpful in this regard. In that case a pilot was terminated for fabricating a moving expense claim. The pilot's union grieved the wrongful termination on his behalf, and the employer sought the return of the money paid for the fabricated moving expense. The arbitrator upheld the dismissal and ordered the grievor to pay the money back to the employer. On judicial review the court held that the arbitrator only had the jurisdiction to consider the grievance that was submitted to him under the terms of the collective agreement. The court further noted that the association had not consented to have the issue of damages presented to the arbitrator and, therefore, the order of damages in this case was beyond the jurisdiction of the arbitrator. The court noted, citing New Brunswick v. 0 'Leary, supra, that the employer could have filed a grievance against the grievor for return of the money that it alleged was improperly paid. The court further noted, The jurisdiction of an arbitrator to adjudicate upon a submission to arbitration is circumscribed by the terms of the submission. When an issue falls beyond the submission, like the damages issue here, that issue must be processed independently and in accordance with the grievance and arbitration procedures set out in the collective agreement. .. (para. 51). 11 And finally the court held in supporting its decision: While arbitrators have the right to avoid a non-technical, formalistic approach to the matter before them so as not to get bogged down in technicalities, and to decide the real issue, the collective agreement did not give this arbitrator the right to decide an entirely different matter. (para. 58) In the case before me, the issue is whether or not the employer has breached the grievor' s rights under the Code when he was allegedly harassed by managers and staff and allegedly not accommodated properly by the Ministry. The employer could have filed a grievance in this matter and the parties might well have decided to have one arbitrator hear the grievances together; however this is not what has happened. Thus I am convinced that I have no jurisdiction to hear an entirely different matter, that is, the alleged breaches by the union of the grievor's human rights. I do not accept the employer's submission that the jurisdiction to hear human rights complaints at arbitration gives me the right and responsibility to conduct a hearing into allegations that have never been properly grieved by the employer. Further, there is no reason to suggest that the employer just learned of this possible grievance or that there was any surprise to them in the evidence that was proffered on December 1, 2005. The employer has been aware of the allegation against the union president since its own internal investigation into the matter well before the hearing began. Also, the employer was put on notice when the union provided particulars to it before the hearing began that one of the alleged harassers was the then union president. The employer is now well beyond the time limits of filing a grievance and cannot in all fairness be permitted to raise a claim against the union for joint liability that it is too late to grieve. 12 In summary nothing in the cases put before me by the employer supports a ruling that the employer should be allowed to claim against the union for damages without a grievance. I am satisfied that to make such an order in all the circumstances of this case would be to exceed my jurisdiction, which flows from the grievances before me and the collective agreement. Having thus decided, I do not need to address the union's waiver or abuse of process arguments. This brings me to the union' second motion, that I should not make any adverse findings of fact against the union in rendering my final decision on the merits of this case. Having carefully considered this motion I have decided to deny it. A decision not to make adverse findings against any party prior to hearing all of the relevant evidence in the case would amount, in my view, to a breach of natural justice and a denial of fairness. It is really asking the board to prejudge the evidence, without having heard it. For the reasons noted above the union's first motion is granted and the second motion is hereby denied. Dated at Toronto this 1 st day of November, 2006