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HomeMy WebLinkAboutReed 18-05-07 IN THE MATTER OF AN ARBITRATION BETWEEN: PEEL REGIONAL PARAMEDIC SERVICES OF THE REGIONAL MUNICIPALITY OF PEEL (“the Employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 277 (REED #2016-0277-0007 & 0008) (“the Union”) PRELIMINARY AWARD Re: Motion for Dismissal and Production Order Sole Arbitrator Kelly Waddingham APPEARANCES For the Employer: Chris Sansom - Counsel Marcella Kowalchuk - H.R. Associate For the Union: Val Patrick - Grievance Officer Robert Reed - Grievor A hearing held in Toronto, Ontario on April 26, 2018. 2 1. The present matter arises out of a grievance between the Ontario Public Service Employees Union Local 277 (“OPSEU” or the “Union”) and the Region of Peel (the “Region”). This decision provides the written reasons for an oral ruling I made on April 26, 2018 in response to preliminary motions by the Region. In that ruling, I denied a motion by the Region to dismiss the grievance on the basis of an abuse of process. I also denied the Region’s alternative request for an order that the Grievor produce medical information. Background 2. The Grievor started his employment as a paramedic with the Region in 1984. On April 15, 2014, the Grievor went off work for reasons relating to an injury he suffered around that time. In May 2014, in accordance with terms set out in the parties’ collective agreement, the Grievor began receiving long term disability insurance (“LTD”) benefits from Sun Life Financial Canada (“Sun Life”). He received those benefits until July 30, 2016, at which time Sun Life determined that he no longer qualified for them. 3. By letter dated September 16, 2016, the Region informed the Grievor that his employment was terminated. The reasons given for the termination were that the Grievor had been absent from work for approximately two and a half years, and that he was unlikely to return to work in the foreseeable future. The letter stated that the termination was in accordance with Article 12.06(c) of the Collective Agreement. Article 12.06 provides: Seniority shall terminate and an employee shall cease to be employed by the Employer when he/she: … c) Is off work for a continuous period of twelve (12) months, except that if the employee is off work due to a compensable injury under the Workplace Safety & Insurance Act or if the employee is in receipt of long-term disability benefits under the Article 19, the period is twenty-four (24) months. It is understood that this provision may be subject to the Ontario Human Rights Code. 4. The grievance before me was initiated on September 25, 2016. It alleges that the Region violated the Collective Agreement and the Ontario Human Rights Code, R.S.O. 1990 c. H.19, when it terminated the Grievor’s employment in September 2016. It further alleges that the Region violated the good faith provisions of the Collective Agreement by notifying the Grievor of his termination by mail. The Grievor also launched a civil action against Sun Life for continuation of his LTD benefits. 5. This matter came on for hearing on October 11, 2017, at which time the parties engaged in lengthy settlement discussions. The parties were unable to reach an agreement to settle the grievance. Consequently, the parties scheduled additional hearing days for February 27, 28 and April 26, 2018. 6. By e-mail correspondence dated February 13, 2018, OPSEU’s representative advised me that the parties had agreed to adjourn the February 27 and 28 hearing dates 3 on the basis that there would be no ongoing liability of the Region to the Grievor between February 27 and April 26, 2018. 7. The following events occurred prior to the April 26th hearing. On March 7, 2018, the Region wrote OPSEU to request production of the Grievor’s medical documents from the date of termination of his employment to the present. The Region also requested all documents related to the Grievor’s civil action against Sun Life, including all supporting medical documentation. On March 8, 2018, OPSEU’s representative advised the Region that it would not produce the Grievor’s medical documents. It took the position that as the Region bears the onus of justifying its termination of the Grievor, it did not require (and was not entitled to) further documentation of the Grievor’s medical condition. Employer Submissions 8. The Region submits that the Grievor’s medical documentation is relevant and fundamental to its ability to defend the termination. First, the documentation is relevant to the question of remedy, given that the Grievor is seeking retroactive wages from the date of termination of his employment to the present. Second, the documentation is relevant to the merits of the grievance – that is, to the question of whether the Grievor was able to return to work on the date of termination. Indeed, the Region asserts, the requested medical information is crucial to determining whether or not the termination was justified. With respect to documents relating to the Grievor’s civil claim against Sun Life, the Region submits that they are relevant in that the Grievor’s position in the claim is that he has an ongoing disability, which contradicts his position in this grievance that he was fit to return to work in September 2016. 9. The Region asks me to dismiss the grievance on the grounds that OPSEU’s (and/or the Grievor’s) conduct following the October 2017 hearing date amounts to an abuse of the arbitration process. The Region submits that it agreed to adjourn the February 27 and 28 hearing dates on the understanding that adjourning the dates would allow OPSEU to obtain the requested medical documents from the Grievor. The Region asserts that OPSEU’s failure to produce the documents, in view of the adjournments the parties agreed to for that very purpose, constitutes an abuse of process. The Region submits that it is not now open to OPSEU to argue that these documents are not relevant. 10. In the alternative, the Region seeks an order requiring OPSEU to produce the requested medical documents within 30 days of the April 26 hearing. The Region submits that pursuant to subsections 48(12) (b) and (i) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “LRA” or the “Act”), I have the authority to make such an order. The Region requests, further, that should OPSEU fail to produce the documents, I dismiss the grievance. 11. The Region provided the following decisions in support of the proposition that an arbitrator has authority under section 48 of the Act to dismiss a grievance where the union (or the grievor) fails to comply with an order and/or the union’s (or the grievor’s) conduct amounts to an abuse of process: National-Standard Co. of Canada Ltd. v. C.A.W. Local 4 1917 (1994), 39 L.A.C. (4th) 228 (Palmer); Serco Des Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9511 (2014), 241 L.A.C. (4th) 194 (Luborsky); Budget Car Rentals Toronto Ltd. v. U.F.C.W. Local 175 (2000), 87 L.A.C. (4th) 154 (Davie); Beacon Hill Lodges Inc. v. ONA (1990), 15 L.A.C. (4th) 323 (Craven); Ontario (Liquor Control Board) and OPSEU (Tafesse) 2007 CanLII 6891 (ON GSB); Ontario (Liquor Control Board) and OPSEU (Patchett) 2016 CanLII 27643 (ON GSB). Union Submissions 12. OPSEU submits that there has been no abuse of process in its conduct of this case. It asserts that the Region’s request for the Grievor’s medical information at this stage in the proceedings is premature. OPSEU further asserts that the Grievor’s conduct does not amount to an abuse of the arbitration process. In any event, unlike in the cases cited by the Region (Budget Car Rentals, supra; OPSEU (Patchett), supra; and OPSEU (Tafesse), supra), the Grievor has attended the hearings into this matter. 13. OPSEU asserts that additional medical information is relevant only to the question of remedy, in the event that the Region is found to have violated the Collective Agreement and/or the Ontario Human Rights Code. The determination to be made in this case, OPSEU contends, is whether the Region’s decision to dismiss the Grievor in September 2016 violated Article 12.06(c) of the Collective Agreement (as subject to the Human Rights Code). That determination must be made based upon the medical information the Region had at the time it made its decision to terminate the Grievor. The Region is not now entitled to further medical information that might support that decision. If the Region’s decision to terminate the Grievor is found to have violated the collective agreement – including the duty to accommodate – then the Grievor’s post-termination medical information will be relevant to the question of remedy. 14. In support of its submissions, OPSEU referred to Wilmot v. Ulnooweg Development Group Inc., 2007 NSCA 49 (CanLII); McGill University Health Centre v. Syndicat des Employes de L’ Hopital General de Montreal, 2007 SCC 4 (CanLII); Naccarato v. Costco Wholesale Canada Ltd., 2010 ONSC 2651 (CanLII); Budd v. 783720 Ontario Inc., 2015 HRTO 825 (CanLII). Analysis 15. Arbitrators in Ontario have authority under subsection 48(1)(b) of the LRA to require a party to produce documents, and authority under subsection 48(12)(i) to make interim orders, including orders for production. Arbitrators also – as affirmed by the Divisional Court – have authority to enforce orders, including the power to dismiss a grievance when an order is not complied with (see: Serco Des Inc., supra, at paragraphs 41-47). Arbitrators may also dismiss a grievance where other conduct by a party (or a grievor) raises an “insurmountable barrier” to the adjudication of the grievance – for example where a grievor refuses to cooperate with the union or to accept the arbitrator’s authority (Beacon Hill Lodges Inc., supra at para. 22), or where the grievor fails to attend 5 hearings (Budget Car Rentals Toronto Ltd., supra; OPSEU (Patchett), supra; OPSEU (Tafesse), supra). As observed by Arbitrator Davie in Budget Car Rentals Toronto Ltd. (at para. 14), an arbitrator should only dismiss a grievance for alleged “abuse of process” in the “clearest cases”, bearing in mind the labour relations reasons underlying the arbitration process. In Serco Des Inc., supra (at para. 55), Arbitrator Luborsky described dismissal of a grievance without a hearing on the merits as an “extraordinary remedy”. He was prepared to apply such remedy in that case, on the basis that the grievor “had created a circumstance of unjustifiable impasse to the balanced and fair hearing of the Union’s grievances, constituting an abuse of process”. 16. The primary issue in this case is whether the Region violated the Collective Agreement and the Ontario Human Rights Code when it terminated the Grievor’s employment on September 16, 2016 for purported “frustration of contract”. The Grievor’s medical condition at the time of the termination of his employment is central to the dispute between the parties, and is therefore relevant to this proceeding. However, the Region must justify its decision to terminate the Grievor’s employment based on the information it had when it made the decision. It is on that information alone that the determination of whether or not the Region violated Article 12.06 (c) and the Human Rights Code must be made. Additional information regarding the Grievor’s medical condition at the time of his termination is therefore not relevant at this stage of the proceedings. For the same reason, medical information about the Grievor’s condition post-termination is also not relevant. 17. Accordingly, on the basis of the principles set out above and the facts of this case, I find that neither the Union’s nor the Grievor’s conduct constitutes an abuse of the arbitration process. I make this finding notwithstanding the fact that the February hearing dates were ostensibly adjourned to allow OPSEU to obtain medical documents from the Grievor, and that OPSEU – if it did, in fact, obtain any such documents – has since declined to produce them to the Region. It is reasonable at this stage in the proceedings for OPSEU to refuse the Region’s request for production of the Grievor’s medical information. Additionally, unlike the grievors in Beacon Hill Lodges Inc, OPSEU (Tafesse) and OPSEU (Patchett), supra, the Grievor has attended the hearings into the grievance. Neither the Union’s nor the Grievor’s conduct has raised an insurmountable barrier to the adjudication of the present grievance. 18. For corresponding reasons, I am not at this stage in the proceedings prepared to order that the Grievor produce his medical information or the documents relating to his civil action against Sun Life (including supporting medical documentation). The parties agree – and I concur – that the if the Region’s decision to terminate the Grievor is found to have violated the Collective Agreement – including the duty to accommodate under the Human Rights Code – the Grievor’s post-termination medical information will bear upon the matter of remedy. 19. At the hearing, I advised the parties that my refusal to issue an order was without prejudice to the right of the Region to request the Grievor’s medical documentation from OPSEU if it so required later in the proceedings. However, I am optimistic that the Grievor will cooperate with OPSEU’s representative and counsel for the parties (the Region and 6 OPSEU) will be able to agree upon the documents that ought to be the subject of production. Conclusion 20. I trust that these preliminary rulings will enable the parties to examine their positions, and determine how to proceed with the introduction of evidence. 21. The case should now proceed to a hearing of the merits or to a mutually agreed upon resolution of the outstanding issues. Dated at Toronto on May 7, 2018.