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HomeMy WebLinkAboutGordon 18-10-23IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended (Grievance #2008-0529-0004 - Gordon) BETWEEN: TORONTO COMMUNITY HOUSING CORPORATION (Security Group) (the "Employer") and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") SUPPLEMENTARY AWARD #2 Sole Arbitrator: Marilyn A. Nairn Hearing held: April 19 and September 28, 2018 (Toronto, Ontario) APPEARANCES For the Union: Eric del Junco For the Employer: Donald B. Jarvis SUPPLEMENTARY AWARD #2 [ij By decision dated April 19, 2016, the Toronto Community Housing Corporation (the "Employer" or'TCHC") was ordered to pay Janice Gordon (the "Grievor") the sum of $10,500.00 as general damages. That damage award arose from an earlier finding on March 16, 2015 that the Employer had failed to adequately and appropriately respond to the existence of the poisoned work environment arising from the sexual harassment of the Grievor, which failure resulted in and/or constituted a discriminatory term or condition of employment contrary to section 5(1) of the Ontario Human Rights Code (the "Code") and the collective agreement. The award determining the merits of the grievance and the supplementary award assessing the appropriate remedy provide the necessary and lengthy context. [21 In the March 16, 2015 award, it was determined, inter alfa, that: 317. The employer was aware that employees had been exposed to, and were circulating a rumour claiming that the Grievor was engaged in a sexual relationship with a supervisorand was receiving preferential treatment in exchange for sex. The deleterious effect of this kind of rumour is not limited to the subject individuals. The workplace environment was poisoned not only because of overt discussion of sexual practices, but because of the increasing resentment toward perceived unfairness; that someone was getting special treatment, benefits, and/or protection at work in exchange for sex. That concern was, or should have been apparent to the employer in November 2006. 318. At the same time, the employer accepted and believed that there was no sexual relationship between the Grievor and the supervisor and that therefore the premise of the rumours was not valid. It was in the unique position to be able to counteract the effect of the rumours. However, nothing was done... [3) In the April 19, 2016 supplementary award, the Employer was directed to pay to the Grievor as general damages the sum of $10,500.00 within 60 days of the date of that award. 141 During the course of the earlier proceedings before me, the Employer terminated the Grievor's employment and a number of grievances asserting further discrimination and challenging the termination as being withoutjust cause proceeded to hearing before Arbitrator Cummings. The parties and the Grievor convened on June 9, 2016 for the purpose of continuing that hearing before Arbitrator Cummings with respect to those grievances. [51 The Employer relies on what took place at the end of the day on June 9, 2016 and subsequent conduct in support of its threefold position that; 1) it has fully complied with the award ordering it to pay damages to the Grievor; 2) in the alternative, if there was not compliance, the Grievor had, in any event, waived her right to the payment of those damages and; 3) in the further alternative, the Grievor had abandoned her right to the award and/or was no longer entitled to the award on the basis of laches. Fundamentally, it is the position of the Employer that it is now relieved of any responsibility or obligation to pay the damages awarded. This decision deals with that issue. [6j The parties filed an agreed statement of factwith respect to the issue before me and called limited viva voce evidence. The agreed statement of fact provides: 1. The parties agree on the following facts relating to the events of June 9/16: 2 a. There was a hearing day before Ms. Cummings on a lengthy ongoing arbitration dealing with several grievances filed by OPSEU against TCHC on behalf [of] Ms. Gordon against TCHC [sic]. b. OPSEU was represented by counsel, Ms. Ferreira, and TCHC was represented by counsel, Mr. Jarvis. c. There was no other OPSEU representative present on June 9, 2016 apart from Ms. Ferreira (and possibly a student from Ms. Ferreira's office). d. Ms. Ferreira was not retained by OPSEU to represent or advise Ms. Gordon in respect of the Nairn arbitration. e. The parties disagree aboutwhether Ms. Gordon understood she was offered a cheque in payment of the Nairn award on June 9, 2016. 2. Following the hearing on June 9, 2016, Mr. Jarvis left a voicemail message for Eric del Junco (OPSEU counsel in the Nairn arbitration) later that same day in which Mr. Jarvis indicated that Ms. Gordon had refused to accept payment of the Nairn damages award when tendered to her. 3. On June 9, 2016, Mr. del Junco confirmed receipt of that voicemail message in a voicemail message for Mr. Jarvis. Mr. del Junco advised OPSEU of Mr. Jarvis' voicemail via email on the same day. 4. On June 22 and 23, 2016, Mr. Jarvis sent emails to Mr. del Junco indicating that the Grievor had refused payment of the Nairn damages award on June 9, 2016. (These emails and their attachments are attached at Tabs 1 and 2, respectively). 5. Mr. del Junco forwarded this correspondence to OPSEU on June 23, 2016 and advised OPSEU he would take no steps in relation to the issue of payment unless instructed to do so. OPSEU did not instruct Mr. del Junco to take any steps regarding the payment issue until June 19, 2017. 6. TCHC made no efforts to deliver the payment to Ms. Gordon at any time after June 9, 2016 up to the present. 7. Neither TCHC nor Mr. Jarvis (acting as counsel forTCHC) was contacted by OPSEU or OPSEU counsel regarding the events of June 9, 2016 and/or the issue of the Nairn damages award until June 20, 2017, when Mr. del Junco left a voicemail message for Mr. Jarvis advising that he had now received instructions from OPSEU to pursue the issue of damages awarded to Ms. Gordon by Arbitrator Nairn. 8. These instructions received by Mr. del Junco were confirmed in a telephone conversation between Mr. del Junco and Mr. Jarvis on June 22, 2017 (see e-mail chain between Mr. del Junco and Mr. Jarvis between June 22, 2017 and July 31, 2017, at Tab 3). 9. The reason OPSEU did not contact TCHC regarding the payment issue at any time between June 9, 2016 and June 20, 2017 was inadvertence on the part of OPSEU. J 10. Ms. Gordon did not contact OPSEU or Mr. del Junco regarding this payment at any time after June 9, 2016 until June 7, 2017 when Vickie McPhee, a support person for Ms. Gordon, emailed Mr. del Junco and enquired about the outstanding payment. 11. On June 19, 2017, OPSEU instructed Mr. del Junco to raise the issue of the alleged non-payment of the Nairn damages with TCHC. 12. On July 31, 2017, Mr. Jarvis advised Mr. del Junco by email that TCHC was of the view that it was under no obligation to make the payment to Ms. Gordon in all of the circumstances (see Tab 3). 13. Following without prejudice discussions between the parties about possible ways of resolving this issue, Mr. del Junco wrote to Ms. Nairn via email on September 14, 2017 and requested that she convene a hearing to determine whether Ms. Gordon remains entitled to receive the damages awarded by Ms. Nairn in 2016. 14. Ms. Gordon filed a DFR complaint before the OLRB on September 12, 2017 relating to, inter glia, the issue of the alleged non-payment of the Nairn damages by TCHC. Following an exchange of pleadings and submissions by the parties, the OLRB issued an interim decision dated January 15, 2018 (attached at Tab 4). 15. TCHC does not rely on any delay on the part of the Grievor or OPSEU in pursuing the issue of payment of the Nairn damages forthe period following June 20, 2017. Scope of Further Evidence 16. Subject to paragraph 17, the parties will not call any evidence to supplement these agreed facts, except to the extent that such evidence is relevant to determining: • What happened on June 9, 2016 Why persons or parties did what they did on June 9, 2016; or • What actions were taken, conclusions reached, or reliance placed upon the events of June 9, 2016. 17. If Ms. Gordon testifies, she will also be permitted to give evidence about her reasons for not contacting OPSEU or Mr. del Junco about the payment until June 7, 2017. [7] Vishnu Ramsamujh, the Employer's advisor, and currently TCHC's Interim Director, Labour Relations, had been present throughout the hearing before Arbitrator Cummings. He had also been tasked with executing the supplementary award arising out of the proceedings before me. He prepared a short letter and had the letter and the cheque in an envelope at the hearing on June 9, 2016, a date he knew fell within the 60 -day window for payment directed by the April 19, 2016 award. 9 [8] On June 9, 2016 Evan Daikov was an articling student and was attending the hearing with Employer counsel in that capacity. Shortly thereafter he was called to the Ontario Bar and is currently a practicing member of the Law Society of Ontario. Before that hearing began, Mr. Ramsamujh told Mr. Jarvis and Mr. Daikov that he had brought a cheque with him in the amount of $10,500 representing payment of the damages award. They decided that they would meet with the Grievor at the end of the day and deliver the cheque personally. Mr. Ramsamujh testified that in the past they had been contacted by a courier attempting delivery to the Grievor who complained that he had been harassed in attempting to deliver material to her. He also testified that there had been some issues in the past where the Grievor had indicated that she had not received letters or documents sent by the Employer by mail or courier. [9] According to Mr. Daikov, at some point during the day, Mr. Jarvis advised Ms. Ferreira of the Employer's intention to meet with the Grievor at the end of the day to present her with payment of the award, asking that she be present. There was no objection from Ms. Ferreira and, atthe conclusion of the hearing day, there was a brief meeting in a small break-out room at the hearing facilities. The meeting was attended by Mr. Jarvis, Mr. Ramsamujh, Mr. Daikov, Ms. Ferreira, and the Grievor. [10] Mr. Daikov could not recall whether it was Mr. Jarvis or Mr. Ramsamujh who indicated to the Grievor that the Employer was tendering payment of the damage award. He believed that Mr. Ramsamujh presented the Grievor with the envelope. In cross-examination Mr. Daikov disagreed with the suggestion that nothing was said to the Grievor about what was in the envelope. (11] The Grievor did not accept the envelope. Mr. Daikov testified that, to the best of his recollection, the Grievor verbalized a response to the effect that she didn't want it, to keep it. He testified that nothing in the Grievor's manner suggested that she was confused or did not understand what was being presented to her. Rather, he characterized her reaction as disdainful and prideful. Mr. Daikov interpreted the Grievor's response as saying, 'I don't want this — this is beneath me'. The Grievor then left the room. Mr. Daikov testified that he understood that the Grievor had refused to accept the payment. [12] It did not occur to Mr. Daikov at the time that the nature of the interaction might become significant or that the Grievor might so respond. Nor did he make any contemporaneous notes of what had transpired. He understood that Mr. Jarvis intended to follow up with Mr. del Junco. He confirmed that there had been no discussion of, for example, using a process server or requiring a signature by courier delivery in the context of the discussion about an effective means of delivery of the monies to the Grievor. [13] Mr. Ramsamujh testified that, on entering the small break-out room, Mr. Jarvis stated that they were there to execute the Nairn award for damages. Mr. Ramsamujh then read his copy of the letter aloud. He testified that the Grievor responded by saying something to the effect that'I don't want it. Mr. Ramsamujh believed that the Grievor referred to it as 'an insult. He testified that he asked her if she was sure she did not want it, that the Grievor replied 'no', and that she got up and left the room, followed by Ms. Ferreira. [14] Mr. Ramsamujh testified that a couple of weeks later, and in the absence of further instructions they felt they had executed the arbitral direction. The cheque was cancelled and, according to Mr. Ramsamujh, the funds were re -directed to TCHC programs and subsequently spent. He testified that the Employer relied on the fact that the Grievor did not accept the cheque and did not want it. He noted that the TCHC had many uses for the money. [15] In cross-examination Mr. Ramsamujh agreed that there had been no contact to Mr. del Junco regarding the letter or any interest in delivering the cheque in person prior to the events at issue. Mr. Ramsamujh testified that, "the fact she said no was not overly surprising, but [he] had no qualms [about the form] of delivery". When asked about his lack of surprise, Mr. Ramsamujh responded that, "she said it was an insult". He was aware that the Grievor had asked for significantly more by way of damages but indicated that he could not comment on whether the Grievor felt the entire process had not been responsive to her concerns. [16] The Grievor testified that at the end of the hearing day on lune 9, 2016, Mr. Jarvis indicated that he had something for her and could they meet in the break-out room. She testified that either Mr. Jarvis or Mr. Ramsamujh extended the envelope and said, 'this is for you'. According to the Grievor she was somewhat shocked as she did not know what it was. She looked at Ms. Ferreira and understood Ms. Ferreira to shrug her shoulders as if to say she didn't know what it was either. The Grievor testified that she then left the room and went home. She denied saying anything in the room and denied that Mr. Ramsamujh had read anything to her or that she understood there was a cheque in the envelope. She denied saying anything at the meeting to the effect that it was insulting or to keep it, or that she disdainfully rejected payment. When pressed in cross-examination as to the conflicting evidence from the Employer's witnesses, she testified that they were lying. In response to the question of whether she had ever intended to waive her right to payment, the Grievor responded, "absolutely not". [17] Notwithstanding concurrent claims of financial hardship, the Grievor explained her delay in contacting OPSEU over the non-payment of the award on the basis that she was overwhelmed with academic work and the demands of caring for a special needs son. She acknowledged that Ms. McPhee had reached out to her and that the Grievor had forwarded that email inquiry to OPSEU. In cross- examination the Grievor denied reaching out to the Union because she knew what had happened at the meeting and only later changed her mind. [18] In cross-examination the Grievor was asked to recall the submissions made at the earlier hearing before me with respect to the amounts claimed as damages. Over the objection of the Employer, I had allowed the Grievor to make submissions as to the damage amount independently of OPSEU. The Grievor had asked for $110,000 in damages. During her cross-examination in this proceeding, the Grievor denied being angry or disappointed as to the amount awarded. She disagreed with the suggestion that she thought it beneath her to accept the amount awarded. However, she stated that she was "shocked" with "the response of Arbitrator Nairn". That 'shock' can only reasonably be explained on the basis that the award was significantly less than what the Grievor had expected or hoped for, and that she felt the amount awarded was an entirely insufficient response to the issues and effects raised by the grievance. [19] By decision dated June 22, 2017 the grievances before Arbitrator Cummings alleging discrimination were dismissed. However, Arbitrator Cummings found that the Employer did not have cause to terminate the Grievor's employment. A further decision by Arbitrator Cummings dated September 10, 2018 (reported at 2018 Cantil 85978 (ON LA)) has issued awarding the Grievor damages in lieu of reinstatement in respect of that finding. That decision notes: 17. Ms. Gordon holds a deep animosity and distrust towards TCHC and anyone who acts on its behalf. [20] The cheque that Mr. Ramsamujh offered the Grievor was dated May 11, 2016. 3 [21] The Employer argued that the evidence of Mr. Daikov and Mr. Ramsamujh had to be preferred over that of the Grievor. The Employer also asked that an adverse inference be drawn from the failure of Ms. Ferreira to testify as to the events of the June 9, 2016 meeting. In the result, the Employer argued, the Grievor had been told in clear terms that TCHC had a cheque for her with respect to the payment of the damages award and that, knowing what was being offered, the Grievor expressly rejected acceptance of the cheque. It was obvious, argued the Employer, that the Grievor was angry about the amount of the award, a conclusion consistent with her disdainful and prideful reaction. [22] Then, argued the Employer, despite her ongoing protestations of financial hardship and even though pursuing costly academic interests, the Grievor did not follow up for over a year, even though entitled to the money within 60 days. The Employer argued that the Grievor subsequently changed her mind and decided that she wanted the money after all, requiring her to lie about the circumstances of the meeting on June 9, 2016 and to justify in her mind why she waited a year before raising the issue. [23] The Employer argued that it had fully complied with the earlier order and that I was now functus with no remaining remedial jurisdiction. Once payment had been offered, argued the Employer, it was up to the Grievor to do with the payment as she saw fit, including ripping up the cheque, donating it to charity, or putting it towards her own uses. After the cheque was offered to her, the Employer argued, she effectively told the Employer to keep it. In refusing to take possession of the cheque, the Grievor made a free and informed choice, argued the Employer. Having been told to keep it, the Employer then used the money towards worthwhile program expenses, it argued. The Employer offered payment and the Grievor chose what she wanted to do with the money, argued the Employer. That was dispositive of the case, it argued. [24] In the alternative, argued the Employer, the Grievor had waived any entitlement to damages. As a matter of equity, the Employer argued, waiver acts to bar a claim where the right has been abandoned, such that it is no longer fair or just to enforce the right against the other parry. OPSEU does not own the right to waive, argued the Employer, as the direction was for the Employer to pay the Grievor. While often used with respect to procedural concerns, the Employer argued that it can also relate to substantive issues, requiring only the intentional relinquishment of some known right or advantage. That intention can also be inferred from conduct, argued the Employer. The order to pay was the known right, argued the Employer, and the events on June 9, 2016 reflected the intentional relinquishment of that right. Taking a year before changing her mind was conduct that underscored the intention, argued the Employer. The Employer argued that the Grievor could not be rewarded for her false testimony by finding anything other than that she waived her right. Those who seek equity must do equity, argued the Employer, and the fact that the Grievor fabricated her evidence is reason to preclude her from expecting the Employer to tender payment a second time, some two years later. [25] In the further alternative, argued the Employer, the Grievor must be found to have abandoned her claim to the damages and/or laches applied. At some point, argued the Employer, it is too late for the Grievor to change her mind and approach OPSEU to pursue a claim to the money. In the context of a remedial award that directed payment within 60 days, waiting a year to change one's mind is simply too long, argued the Employer. Delay matters in labour relations, argued the Employer. [26] The length of delay required for a finding of laches is similar to abandonment, argued the Employer. This equitable doctrine prohibits the prosecution of claims where there has been undue delay, a determination based on the circumstances of each case, argued the Employer. In this case, the Employer argued, the delay is excessive, the Grievor was less than truthful, and the Employer had relied on those circumstances and reallocated the funds to other legitimate purposes. The Employer argued that this amounted to laches. Itfurther argued that such a finding did not undermine the importance of a remedial award of damages for infringement of the Human Rights Code, but reflected a fair and just decision on the facts of the case and the decision by the Grievor to reject the money and direct TCHC to keep it. The Employer argued that I ought not to be afraid to make the right decision that TCHC properly reallocated that money to social assistance tenants in Toronto. [27] The Employer asked that I dismiss any request for payment and deny any direction to do again what it had already done. [28] OPSEU took strong issue with the Employer arguing that an adverse inference be drawn against the failure of Ms. Ferreira to testify. The Union noted that Ms. Ferreira had been under summons from the Employer, and that the summons had been withdrawn by the Employer for the same reason that Mr. Jarvis had not been required to testify, that is, their ongoing role as counsel to one or other of the parties. At the very least, pursuing the argument meant that a negative inference ought also to be drawn against the failure of Mr. Jarvis to testify, argued the Union. [29] With respect to the Employer's first position, the Union argued that it was appropriate to be dismissive of the argument. Payment was made when monies were withdrawn from the account, it argued. Had the cheque been lost, it argued, no one would suggest that payment had been made. Nor was it appropriate to argue the metaphysics of when a payment is made in circumstances that would bring the administration of arbitration into disrepute, argued the Union. [30] With respect to waiver, the Union argued that the Employer must show reliance and prejudice. None had been established, argued the Union. To say the money was spent elsewhere did not support a claim of reliance as the amount represented by the cheque was otherwise available to the Employer, argued the Union. There was no reliance or unfairness to the Employer, argued the Union, but rather a crassly opportunistic and cynical response to the Grievor, in circumstances where the Employer then spent the cost of two days of hearing fighting the Grievor's right to claim the amount ordered. Any truthfulness on the Grievor's part was irrelevant, noted the Union, as she was relying on an order to pay the amount of the damages and was not the one seeking a claim in equity. [31] The Grievor testified that she did not know what was being offered, noted the Union. However, even if one were to accept the Employer's evidence, argued the Union, that evidence established only that the Grievor was upset by the amount awarded and in a moment of upset did not accept the cheque. The Employer's approach was ill-considered, argued the Union, knowing how the Grievor felt and knowing that it would be humiliating for her. [32] The Union noted that it was agreed that the Grievor did not contact the Union for some 12 months and that the Union did not raise the matter over that same period through inadvertence. That delay was not excessive, argued the Union, and was explained by her other obligations. OPSEU had also acknowledged its inadvertence in losing track of the matter and to suggest that the employee could waive a right or that the Employer could be relieved of its legal obligation to pay in the absence of any union involvement or sanction was untenable, argued the Union. [33] The consistent theme in the application of waiver, delay or abandonment, argued the Union, was the need for evidence of full knowledge and an unequivocal intention. In this case, it argued, there was nothing more than an emotional outburst by someone extremely frustrated by the process and by what she understood and believed was the limited recognition of the violation of her rights, a reaction and response that the Employer understood. In any event, argued the Union, a waiver may be retracted if there is notice and no prejudice to the other party. (34] The Union sought a declaration that payment of the award of damages had not been waived or abandoned and directing payment within 14 days with interest accruing from June 22, 2017 when the Employer was advised that payment was being sought. [35] In reply, the Employer argued that there was no reason not to call Ms. Ferreira if she could be a corroborating witness in the same way that the Employer had called Mr. Daikov to corroborate the evidence of Mr. Ramsamujh and that a negative inference was warranted as to what she would have said. The Employer argued that the Union was conceding that the Grievor was not credible and must be held to the Employer's version of the events of June 9, 2016. The Employer argued that there was an intentional relinquishment of the right; that the Employer relied on that intention; and that its action in response was material. It argued that an order of interest was both surprising in the circumstances and not warranted, given that the Union knew what the Employer thought had happened. [36] 1 was referred to and have reviewed Brown & Beatty, Canadian Labour Arbitration, chapters 2:2212; 2:3130; and 2:3233; WestlawNext Canada, CED Equity 11.6 (a); Snap-On Tools of Canada Ltd. v. U.S. W.A., Local 5483, 2008 CarswellOnt 4310 (Baxter); and Manitoba Metis Federation Inc. v. Canada (Attorney General), (2013] 1 S.C.R. 623. [37] The Employer cited chapter 2:2212 of Brown & Beatty, supra, with respect to waiver. The excerpt states that "all that is required is an intentional relinquishment of some known right or advantage". What constitutes "intentional" is referred to at footnote 3, citing p. 368 of the decision in Calgary Co-operative Assn. (2012), 220 L.A.C. (4`^) 329 (Ponak) that "a waiver of an express mandatory provision must be explicit and fully informed; mere silence or lack of opposition to a course of action is insufficient". [38] At paragraph 71 of the decision in Snap-On Tools, supra, the arbitrator cites the decision of the Supreme Court of Canada in Saskatchewan River Bungalows v. Maritime Life Assurance Co. where the Court stated at page 484: Waiver occurs where one party to a contract or to proceedings takes steps which amount to foregoing reliance on some known right or defect in the performance of the other party. Waiver will be found only where the evidence demonstrates that the party waiving had (1) full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. [39] At paragraph 72 of the decision in Snap-On Tools, supra, the arbitrator also cites an excerpt from the award in Re Metropolitan Toronto (Municipality) and Toronto Civic Employees Union, Local 43 (Node) wherein Arbitrator Starkman states at page 12: Is ...the more important the issue, the more difficult it becomes to infer that a party has waived its right to rely on the provision or actions without some significant indication of the party's intention to do so... [40] Notably in Snap-On Tools, supra, the Employer was found not to have waived its right to raise an objection to the arbitrability of a grievance as there was no evidence that the Employer, through its representatives, had knowledge of the legal principles or the ramifications of the concepts of issue estoppel or res judicata, until it had retained counsel who then raised the issue. [41] Both abandonment and laches rely on the passage of time and are equitable doctrines. [42] 1 am not prepared to draw a negative inference from the fact that Ms. Ferreira did not testify. She had been served with a summons to appear at the behest of the Employer. The Employer is aware that issue was taken with that summons given Ms. Ferreira's role as legal counsel to OPSEU in the grievances proceeding before Arbitrator Cummings. The Employer had withdrawn the summons priorto hearing, but specifically without any admission that Ms. Ferreira was not properly compellable. As a result, that issue was never tested and neither party sought to have her testify. Those circumstances do not warrant the drawing of a negative inference against the Union. [43] The issue of whether the Employer complied with the award depends on whether it took appropriate and effective steps to ensure that there was compliance with the order to pay. That involves the Employer's June 9, 2016 actions and response to the Grievor's conduct on that day. For the reasons that follow, I am not persuaded that the Employer either complied with the award or that there has been a waiver or abandonment of the right to claim the damages awarded. Nor, in my view, is the Union, on behalf of the Grievor, precluded by laches from seeking compliance with the award. [44] The Union is relying on an order made against the Employer to pay damages to the Grievor for having violated the Code to the Grievor's detriment. The Union is not pursuing a claim in equity. The Union is seeking the enforcement of an award. Until such time as a party is relieved of its obligation to comply with an arbitration award, that obligation continues. The fact that payment was to be made within 60 days simply speaks to the point at which other consequences may arise for the Employer should it fail to comply with the award in a timely way. [45] Notably, the Employer did not consider any delivery of the payment of damages to the Union or its counsel as a means of dealing with its concern about acceptance by the Grievor. Nor was there any communication between the parties or counsel as to a preferred and effective means of delivery, notwithstanding thatthe cheque had been prepared and was available to Mr. Ramsamujh as early as May 11, 2016. By lune 9, 2016 the 60 -day direction for payment was fast approaching. [46] The evidence also does not support a finding of prejudice suffered by the Employer either as a result of the circumstances of the June 9, 2016 meeting or any subsequent delay. The fact that the Employer cancelled the cheque is entirely insufficient to find either prejudice or reliance. Other than Mr. Ramsamujh's assertion that the money was spent on programs, there is no evidence to that effect or any evidence that any decision to fund programs was in any way contingent on or predicated on the availability of the monies ordered payable to the Grievor. Cancelling the cheque merely resulted in the funds being returned to the Employer's accounts. It could as readily and convincingly be asserted that the monies were used to pay the costs of pursuing and participating in this proceeding. 10 [47] The Union and the Employer are the parties to this proceeding. The Grievor holds a beneficial interest but is not a party, and the Employer's arguments do not take account of the implications of that fact. There was no union representative present at the meeting and the Union cannot be found to have acted in response to the offer of the envelope so as to relieve the Employer of its obligation under the award. Ms. Ferreira had not been retained on the matter before me and cannot be held to have been representing either the Union or the Grievor in connection with this matter. [48] That may well constitute the end of the matter. However, even assuming that the Grievor can waive or abandon a claim to an award of damages independently of, and/or without any confirmatory action on the part of the Union, I am not persuaded that such a conclusion is appropriate in the circumstances. [49] 1 understand the significant frustration of the Employer in dealing with the Grievor since 2006. She has been, in many respects, herown worst enemy. Atthe same time, these employment issues started when, as a relatively new employee, she went to the Employer with her concern that she was being sexually harassed at work. She was the subject of a damaging rumour circulating in the workplace that she was obtaining favourable workplace treatment from a supervisor in exchange for sexual favours, and, notwithstanding acknowledging both being aware of the rumour and believing it to be untrue, the Employer failed to take either adequate or reasonable steps to counter that sexual harassment. Suffice to say, the evident frustration and animosity is mutual as between the Employer and the Grievor. Arbitrator Cummings has since concluded that, notwithstanding that the Employer terminated the Grievor's employment without just cause, reinstatement to employment would not be an appropriate remedy as the employment relationship is irreparably broken. [50] 1 also have no doubt that both the Employer and its counsel fully understood that the Grievor does not trust the grievance and arbitration process and the institutional and individual participants in this process. I have observed and understood the same, having been involved in the arbitration of this grievance as an institutional participant with the parties and the Grievor from at least early 2009. [51] 1 do not accept the Grievor's evidence that she was not given some explanation that she was being offered a cheque for the amount of the damages awarded or that she was silent in response. In that regard, I prefer the evidence of Mr. Daikov, an individual having only a limited connection to the parties and a newly -minted obligation as an officer of the court. His evidence was corroborated by Mr. Ramsamujh, although I am less persuaded by the perceptions or conclusions drawn by Mr. Ramsamujh. I reject Mr. Ramsamujh's evidence that he further asked the Grievor to clarify and verify by asking whether shewas'sure you don't want it, and thatshe responded. That was not referred to in Mr. Daikov's evidence and, from the Employer's perspective, would have been material. [52] In the result, I find that when presented with the envelope, the Grievor responded in a disdainful and prideful manner with words that were interpreted as indicating "I don't want it, keep it", and that she thereafter left the premises. I accept that the Grievor understood that the envelope contained a cheque in the amount of $10,500, in payment of the awarded damages. [53] Neither Mr. Daikov nor Mr. Ramsamujh could recount the actual words used by the Grievor and the evidence reflects their interpretation of the Grievor's response. I am not prepared to conclude that a recollection of, and interpretation of "words to the effect", and a refusal to take the cheque at that moment amount to any reliable and/or unequivocal expression of the Grievor's intention to forego or relinquish entitlement to the award of damages. 11 [54] The meeting was held at the end of a hearing day before Arbitrator Cummings. Mr. Jarvis asked the Grievor to meet with the Employer. Ms. Ferreira was not the Union's counsel in respect of the proceedings before me and no union representative was present. Rightly or wrongly, the Grievor would have been mistrustful of the circumstances. It would also have been understood by the Employer that the Grievor was, as pursued by Employer counsel in her cross-examination, angry and disappointed by the level of damages awarded, if only because of her submissions with respect to that issue during the remedial portion of these proceedings. [55] The proper finding as to the events of the meeting is fully and appropriately determined by the fact that Mr. Ramsamujh was not surprised by the Grievor's response. The Employer effectively seeks to capitalize on the Grievor's momentary emotional outburst in a meeting where she had no representation with respect to this issue and in circumstances where the Employer knew she would be suspicious and mistrustful of whatever the Employer was attempting to do. Consistent with my own observations of the Grievor's comportment over many days of observing her as a witness and in the hearing room, the Grievor's reaction to being offered the cheque can readily and most appropriately be understood as her being unwilling and/or unable at that moment to come to grips with the factthat the amount of the award was significantly less than what she had anticipated or felt appropriate and her feeling that the immediate circumstances were requiring her to make a concession in accepting that amount directly from the Employer. To extrapolate that emotional response to a finding that she intentionally and consciously relinquished her entitlement to the award of damages and has therefore waived her right to that claim is simply not warranted or substantiated by the evidence. [56) To come before an arbitrator and seek to be relieved of an obligation to pay an order of damages, an obligation arising from a finding of both a statutory and collective agreement breach, based on the circumstances leading up to and involving this brief interaction is also, in my view, an extraordinary and unwarranted labour relations position. [571 Having regard to the above, I find that the Grievor did not waive her right to claim the award of damages based on the events of lune 9, 2016. [58] Both abandonment and laches reflect issues of delay and are equitable remedies. The Employer argued that those who seek equity must do equity. It is the Employer that is seeking equitable relief from the payment of an order made under the statutory authority of the Labour Relations Act 1995 as amended and the Code following a finding that the Employer violated both the Code and the collective agreement between the parties. [59] The Employer had no reasonable basis in June 2016 for taking the position that it was relieved of its obligation to pay based on what had occurred in the meeting. Nor is there evidence that the Employer actually took the position that it was no longer under any obligation to make payment, except in July 2017 after the Union had raised the issue. Its obligation to meet the terms of the award continued throughout that period. Yet it did nothing. The Employer could have utilized the arbitration process and sought relief from its obligation to pay the awarded damages if it believed that the Grievor had unequivocally relinquished her right to those damages on June 9, 2016. Instead, Employer counsel notified Union counsel that the Employer had attempted to deliver the cheque directly to the Grievor on June 9, 2016 and that the Employer would hold onto the cheque for a few weeks, suggesting that the Employer did not then believe that it had either successfully delivered the cheque or that the Grievor had unequivocally relinquished her right to make the claim, notwithstanding what had occurred at the meeting. 12 [60] With respect to the delay, the Union failed to follow up with the Grievor or the Employer for reasons explained as inadvertence until a year later. As noted above, the Employer did nothing until pressed, notwithstanding that the obligation to pay rested with it. While the Grievor also failed to follow up, the delay cannot be placed solely at her feet. [61] The Employer also did not give full and proper consideration to how it could meet its obligation under the award having regard to its stated concerns. It chose a delivery method that resulted in a response that came as no surprise to the Employer. It took no further action to meet its obligation under the award and a year passed. That delay resulted in no demonstrated prejudice to the Employer. The parties also continued to be engaged with the Grievor's employment issues until as recently as the issuance of the September 10, 2018 award from Arbitrator Cummings. The delay in all of these circumstances does not support an expression of an intentional waiver of rights or warrant a finding of either abandonment of a claim or laches. [62] Having regard to all of the above, I find that the Employer has not complied with the award dated April 19, 2016 in that it has failed to pay to the Grievor the amount directed to be paid. I further find that the Employer remains obligated to pay to the Grievor as general damages the sum of $10,500.00 and hereby order the Employer to forthwith pay to the Grievor the sum of $10,500.00. (63) 1 further find that this is an appropriate case for an award of interest, payable by the Employer in accordance with the provisions set out for post -judgment interest in the courts, on the amount of damages, such interest accruing from June 22, 2017 when the issue was raised with the Employer, to the date of payment. [64] In the result, the Employer is hereby ordered to forthwith pay the amount of damages of $10,500 plus interest to the Grievor in accordance with the terms of this award. I will remain seized with respect to any issue regarding the implementation of this award. Dated at Toronto, Ontario this 23rd day of October, 2018. �21" (�-� Marilyn Nirn, Arbitrator.