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HomeMy WebLinkAbout2012-3928.Sparkes.19-12-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2012-3928; 2012-3929; 2013-3452; 2013-3453; 2013-3454; 2014-0970; 2014-0971; 2014-0972; 2014-1722; 2014-1723; 2014-1725; 2014-1726 UNION#2012-0517-0117; 2012-0517-0118; 2013-0517-0026; 2013-0517-0027; 2013-0517-0028;2014-0234-0116; 2014-0234-0117; 2014-0234-0118; 2014-0234-0279; 2014-0234-0280;2014-0234-0282; 2014-0234-0283 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sparkes) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS FILED June 27, September 16, October 18, November 4, and November 8, 2019 - 2 - Interim Decision [1] Seventeen grievances filed by the Union on behalf of Constance Sparkes have been referred to the Board for arbitration. This is the third interim decision issued in this case. It addresses the Employer’s motions to dismiss some grievances without hearing, strike paragraphs from the Union’s particulars, and a request that the Board make orders relating to the Union’s medical disclosure to date. [2] The Employer had initially made a motion that a number of the grievances be dismissed without a hearing as they are either moot or insufficiently particularized. These include the first six grievances, and the ninth to twelfth grievances of the seventeen before me. However, on November 4, 2019, before the parties’ agreed- upon process for the filing of submissions was complete, the Employer made a new submission that all of the grievances be dismissed without a hearing. The Union argues that the Board should not consider the Employer’s latest submission, but has made its arguments in opposition. I appreciate the Union’s position, as the latest Employer position has made what is already an extremely difficult task even more so as it appears there is a moving target in this litigation. Nonetheless, rather than having more time wasted by having to engage in another round of submissions, I will address all the Employer’s motions in this decision. [3] In its original submission, the Employer is also seeking to have many paragraphs of the Union’s Amended Particulars struck before the commencement of the hearing on the bases that they do not assert a breach of the collective agreement, they are improperly particularized, they are an improper expansion of a grievance, or that they are untimely. These include the following: Paragraphs 11 to 39; paras. 44 to 46; paras 48 to 53; paras. 91 and 92; paras. 95 to 97; and paras. 101 to 105(b). [4] In the event that any of the grievances are dismissed and paragraphs of the particulars struck, as requested by the Employer’s original submission, the Employer seeks an order that all documents that relate to those matters be removed from the Union’s Book of Documents, and that the Union be precluded from calling any evidence in relation to the dismissed grievances and struck particulars. [5] With respect to what the Employer’s original submission characterizes as missing and incomplete medical disclosure, it is seeking an order that the Union and Grievor not be permitted to adduce any medical evidence in any form in this arbitration. It also has some other alternative positions in this regard which will be outlined later. As noted earlier, on November 4, 2019 the Employer made further submissions. In summary, the latest submission is that all grievances should be dismissed because the Grievor and Union have continued to fail to provide relevant medical disclosure, and to the extent that the Union provided the Grievor’s WSIB file, or part thereof, on October 29, 2019, it has again done so under conditions - 3 - which this Board has already dismissed in a previous order. As such, in the latest submission the Employer argues that in the face of the Union and Grievor’s continuing failure to abide by Board orders, there should be significant consequences. HISTORY OF LITIGATION OF THE GRIEVANCES [6] The seventeen grievances were filed between December 31, 2012 and May 22, 2014. On April 24, 2017, the Board issued a notice of hearing indicating that the arbitration was scheduled for October 5, 2017. On April 28, 2017, well in advance of the first day of hearing, counsel for the Employer requested full particulars from the Union regarding the substance, nature and allegations being made through the grievances. As well, all arguably relevant documents were requested. The Union provided nothing before the hearing held on October 5, 2017. [7] As mediation efforts to resolve the grievances were unsuccessful on October 5, 2017, a second date of hearing was scheduled for May 31, 2018. The Union had agreed to provide the Employer with the requested particulars and documents in advance of that date. The Union again provided nothing before the hearing held on May 31, 2018. [8] On June 12, 2018 the Board issued its first interim order setting deadlines for the Union’s production of particulars and documents. They were to be provided to the Employer by August 31, 2018. Following that date, the Employer was also to provide its particulars and documents by November 30, 2018. The next hearing date was set for April 15, 2019. [9] After the Union sought two extensions of the deadline from the Employer, it finally provided its particulars on October 10, 2018, amended on October 11, 2018, but did not provide any documents. On November 8, 2018 the Union provided the Employer with its book of documents. On April 9, 2019, shortly before the April 15th hearing date, the Union provided the Employer with medical records. However, on the Grievor’s instructions to counsel, they had been heavily redacted. In short, the Union failed to fully comply with the Board’s June 12, 2018 order, and to the extent that it did so, it was either late, or extremely late, in doing so. [10] The Union has provided a number of explanations, none of which is reasonable or acceptable to me. It asserts that the Grievor and counsel had to compile a massive amount of information and documents to provide the particulars and production. The Grievor filed these grievances and the Union referred them to arbitration together. The scope of this litigation was therefore completely foreseeable. In any event, the Employer had made a legitimate request for production in late April 2018; one year later by May 31, 2018 it had received nothing; and following the Board’s first order, the Union had a further four months before it provided anything in October 2018. Furthermore, with respect to the medical documentation, by October 2019, two and a half years after the Employer’s original request for - 4 - production, it was still slowly providing documents to the Employer, some under the most restrictive of conditions. It appears as though the Grievor herself has been an obstacle to the Union’s ability to properly respond to the Employer’s requests and to this Board’s orders, which is most unfortunate as it has led to considerable delay and the need to issue Board orders. [11] Following the April 15, 2019 hearing, the Board issued a second interim order (on April 24, 2019) addressing Employer counsel’s request that she be permitted to review the medical documents with her advisor and instructor. This was necessary as the Grievor was objecting to such disclosure. The Employer reserved the right to make a motion regarding the extensive redactions in the medical records, and that is an aspect of the current motion before me. The April 24, 2019 decision also outlined the timetable for written submissions to address the Employer’s other motions. [12] The Union finally provided the Employer with an unredacted version of the Grievor’s medical records on October 29, 2019. However, it has done so on the same basis as the original redacted version was provided, i.e. that only Employer counsel can review these medical documents. GRIEVOR’S HISTORY OF EMPLOYMENT [13] According to the Employer, the Grievor worked as a Correctional Officer from May 21, 1986 until April 30, 2001. At that point she became a Volunteer Coordinator at the Toronto West Detention Centre (“TWDC”) where she worked until early December 2013, around the time that the TWDC was being closed. As of December 9, 2013, the Grievor took a lateral transfer to a Volunteer Coordinator position at Maplehurst Correctional Complex (“Maplehurst”). She left work at Maplehurst on May 30, 2014, and was thereafter in receipt of short term disability benefits. Commencing on December 1, 2014, she began to receive long term disability benefits. Two years later, the Grievor retired from the public service as of November 30, 2016, at which point her long term disability benefits were discontinued as she began to receive her pension. [14] The Union takes issue with the Employer’s insertion of this brief history of the Grievor’s employment in its submissions. However, I note that the Union’s particulars state at para. 2 that the Grievor worked as a Correctional Officer at the TWDC from 1986 to 2000; that she was the Volunteer Coordinator at the TWDC from 2000 (para. 2) to December 9, 2013, when she started at Maplehurst (para. 56); that she went to Maplehurst as a result of having accepted a lateral transfer to that facility on November 11, 2013 (para. 54); that she went off work effective May 31, 2014 and did not return to the workplace thereafter (paras. 2 and 99); that she received long term disability benefits beginning on December 1, 2014 (para. 103); and that she retired effective December 1, 2017 (para. 104). - 5 - [15] In the Union’s Sur-Reply submission filed on November 8, 2019, it appears that the Grievor is resiling from her own particulars in that the Union now maintains that she never worked as a Correctional Officer at the TWDC, and always worked as a Volunteer Coordinator. [16] Nonetheless, the only significant factual difference between the dates posited by each of the parties, at least based on the Union’s particulars and the Employer’s submissions, is that the Grievor claims she became a Volunteer Coordinator in 2000, and the Employer claims it was in April 2001. This is not a material issue for the purposes of reaching a decision in these motions. For the purposes of this decision, I simply note the Grievor’s employment history as asserted by both the Employer and the Union, as their respective versions appear to provide a generally consistent time frame regarding where in the history of Ms. Sparkes’ employment the 17 grievances arose. I am making no findings of fact at this juncture. LEGAL TESTS TO BE APPLIED IN THE MOTIONS Mootness [17] In OPSEU (Coelho) v. Ontario (Ministry of Children and Youth Services), 2014 CanLII 30245 (M. Lynk), the Board cited the Supreme Court of Canada case, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, as setting the modern framework for assessing mootness arguments. At paras. 28 to 30 of the Lynk decision, it states as follows: [28] The Supreme Court disagreed, and unanimously ruled that Mr. Borowski’s claim was moot. Mr. Justice Sopinka stated in para. 15 that: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. - 6 - [29] The Supreme Court in Borowski proceeded to lay out a two-step analysis to determine whether a litigated matter should be found to be moot in the particular circumstances. First, it said: “it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic” (para. 16). In essence, this requires the court or tribunal to assess whether a live controversy or a concrete dispute still remains between the parties, or whether the raison d’etre of the litigation has been effectively determined by other events. [30] If a court or tribunal has found that a live controversy no longer exists, the second step of the analysis would require the legal decision-maker to exercise its discretion as to whether to hear the case absent the live controversy, based on the consideration of the following three criteria: (i) whether a true adversarial relationship still exists, so that all or any collateral consequences and issues can be fully argued; (ii) the need to preserve judicial economy, and whether the issue is a recurring one such that a ruling will assist in future cases; and (iii) the need to respect the legislative function, and not pronounce on issues that may intrude upon the role of the legislature. These criteria are factors to consider, not iron rules that must all be satisfied. [18] Arbitrator Lynk, in Coelho, cited above, noted that “arbitrators have dismissed mootness arguments and proceeded to hear the merits of a grievance where a “live controversy” remained because some remedies remained unaddressed, notwithstanding the disappearance of one remedial option (York University (2010), 199 L.A.C. (4th) 233 (Slotnick))” (at para. 36). He went on to state at para. 37 “that grievances should be adjudicated and decided on their merits unless it is plain and clear that the live or real difference between the parties has been effectively resolved, and there is no longer a purposive industrial relations reason to proceed to the merits: Brown & Beatty, Canadian Labour Arbitration (4th ed.), 2:3240.” Similarly, in Waterloo (Regional Municipality) v. C.U.P.E., Local 1883, 93 C.L.A.S. 43 (G. Luborsky), the arbitrator noted at para. 37 that “in order to satisfy the “live controversy test”, set out in Borowski, it is not necessary for all aspects of the grievance to remain in issue; rather it is sufficient if only one portion of the grievance remains outstanding”. [19] The Supreme Court of Canada decision in Dayco (Canada) Ltd. v. C.A.W. [1993] 2 S.C.R. 230, is often cited by arbitrators when considering the jurisdiction of an arbitration board to address a grievance where a collective agreement has expired. The arbitrator in Columbia Forest Products v. IWA-Canada, Local 2995, 2003 CarswellOnt 3499 (Haefling) cited the Dayco decision in the following excerpt from his decision: - 7 - [31] The Supreme Court in Dayco emphasized and, apparently, cited with approval the following passage from the Red River decision (ibid): To close, then, expiry of the contract out of which the claim arises does not, without more put an end to the right of either of the parties to the agreement to call for settlement of a dispute arising thereunder in accordance with the arbitration procedure to that end established by their contract, when the dispute concerns the existence of a benefit allegedly vested during the term of the agreement in question, and is within the terms of reference of the arbitration clause. [S.C.C.’s emphasis] Without actually saying so, the Supreme Court’s decision in Dayco appears to have adopted or accepted the concept that, even after expiry of a collective agreement, the grievance arbitration process in some cases must be deemed to continue and may be invoked to resolve a dispute arising out of the expired agreement. That may be an application of the legal maxim: Ubi jus, ibi remedium (“where there is a right, there is a remedy”). … Failure to provide particulars or sufficiency of particulars provided [20] The Board has addressed the issue of failure to provide particulars, or the insufficiency of particulars provided, in many decisions. [21] In OPSEU (Gates et al.) v. Ministry of Health and Long-Term Care, (Unreported decision of Vice-Chair N. Dissanayake, January 22, 2007), the Board considered an employer motion to dismiss grievances on the grounds that the union had failed to provide particulars in compliance with a Board order. The Board noted that in considering the adequacy of the particulars, the background and history between the parties in relation to the grievances was very relevant (at p. 2). The Board went on at p. 3 to note what particulars must include: It is trite to say that the obligation to exchange information by way of particularization continues following the referral of a grievance to arbitration. This is particularly so where the Board has issued an order that particulars be provided. What constitutes adequate particulars has been considered in numerous decisions of the Board. In Re Damani, 1581/95 (Gray), the Board described the obligation of a union as “to provide employer counsel with written particulars of the facts that it and the grievor say demonstrate the discrimination alleged. With respect to each act or omission alleged, the union particulars shall indicate what was done, or not done, when, where, by what means and by whom”. In Re Ross, 2690/96 (Herlich), the Board ordered that the “written particulars are to include not merely legal conclusions, but in addition, the facts which the union and the - 8 - grievor assert support any such conclusion and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant fact, with what motivation”. [22] Ultimately the Board held that the union would only be able to proceed with a grievance that had been particularized, and would be restricted to any instances that had been particularized. In addressing the consequences of failure to provide particulars, the Board noted at p. 5 as follows: I agree that the outright dismissal of a grievance for lack of particulars is to be treated as an extraordinary remedy and may appear to be harsh on the particular grievor. However, that must be balanced with the broader interests of the parties, who by agreeing to Articles 22.14.4 and 22.14.5, have clearly recognized that the full and timely exchange of information relied upon by the respective parties in relation to a grievance is critical to the efficacy of the grievance and arbitration procedure. Moreover, where the failure to provide particulars occurs in the face of a Board order, the integrity of the Board’s authority also becomes a significant consideration. [23] In OPSEU (Singh) v. Ministry of Community Safety and Correctional Services, (Unreported decision of Vice Chair R. Abramsky, July 6, 2005), the employer had moved for dismissal of grievances due to the insufficiency of the particulars filed. In that case, as here, there were multiple grievances filed, all of which said very little on their face; there had been a substantial period of non-cooperation regarding the provision of particulars; and the Board had therefore been required to issue an order for particulars from the union and grievor. [24] In dismissing six of the nine grievances, the arbitrator noted at p. 8 of the decision that “it is not for the Employer to guess the specifics of the alleged differential treatment, or to try to figure it out. Nor is it required to wait until the grievor’s evidence on examination in chief to learn the basis of the grievor’s claim of differential treatment”. She went on at p. 9 to say that if a grievor could relate his observations about something at the hearing, he could provide particulars about that in advance and in accordance with the requirements of Article 22.14.5 of the collective agreement, which requires full disclosure at the earliest stage of the grievance procedure. The employer does not have to wait until the hearing to hear what a grievor is alleging occurred (p. 9), nor does it have to comb its records to try to ascertain who a grievor may be complaining about (p. 11). [25] While recognizing that the grievor in that case appeared to fully believe that he had been repeatedly mistreated and discriminated against by the employer, the Arbitrator explained the rationale for the requirement of provision of particulars (at p. 17) as follows: - 9 - …Arbitration is a legal process which provides rights to all of the parties, including the employer. The employer has the right to know, in advance, the case it has to meet. By failing to provide the required specifics, as ordered [by the Board], the grievor precluded the employer from fully knowing the Union’s case, investigating and defending against the allegations made. It precluded the Employer from making potential timeliness or other procedural objections. As Chair Carter stated in Gardiner, supra at p. 4, “all grievors, regardless of whether they retain legal counsel, are expected to take responsibility for the carriage of their grievance by providing the basic particulars underlying their grievance …”. [26] The Grievance Settlement Board has been clear in its jurisprudence that parties are entitled to expect that Board orders will be respected. That principle has been referred to in decisions cited above, but was dealt with quite specifically in OPSEU (Morsi) v. Ontario (Finance), 2008 CanLII 70531 (R. Devins). In that case the Board had issued an order requiring the union to provide full and sufficient particulars, including some specific directions. The grievor declined to disclose the names of her co-workers, and the employer sought dismissal of the allegations relating to those particulars. The arbitrator found that the parties had engaged in protracted discussions about particulars; ultimately an order had been issued for them; and she held that there was no basis to excuse the grievor from complying with the clear terms of the order. The unparticularized allegations were therefore dismissed. Expansion of the scope of grievances [27] The Employer has sought dismissal of grievances that claim a “free-standing” violation of Article 2, the Management Rights clause of the OPSEU collective agreement, over which the Employer asserts that the Board lacks jurisdiction. This employer has argued, in cases which only alleged Article 2 breaches, that the union is precluded from later alleging breaches of other articles of the collective agreement when it files its particulars, as that is argued to constitute an improper amendment or expansion of a grievance. In such cases, the Board is required to determine the nature and ambit of the grievance itself, as it must determine the scope of the issues being raised. The Board requires that the true nature of the grievance must have been communicated to the employer. [28] This issue was addressed in OPSEU (Jones et al) v. Ontario (Labour), 2010 CanLII 28609 (ON GSB) (R. Abramsky), in a group grievance about the workload of Employment Standards Officers. In that grievance the employees alleged a breach of Article 2, the Management Rights clause. However, the Union later indicated that it was claiming a breach of Article 9, the Health and Safety clause, and Article 21.1, the Discipline and Dismissal provision. The employer moved for dismissal of the grievance on the basis of the Board’s lack of jurisdiction to decide - 10 - on an Article 2 breach, as well as for the purportedly improper change to the grounds of the grievance. At para. 14 of the decision the arbitrator wrote: 14. The two objections are intertwined because if the Employer is correct that the Union’s allegations concerning Articles 9 and 21.1 are an improper change in grounds, all that is left is a “free standing” violation of Article 2 and the Employer’s preliminary objection must succeed. The Board has repeatedly and consistently held it has no “free standing” jurisdiction to review the exercise of management rights for reasonableness, and the “Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement”. OPSEU (Dobroff et al.) and Ministry of the Environment, GSB No. 2003-0905 et al., at p. 25 (2008) (Dissanayake); OPSEU (Ashley et al.) and Ministry of Community, Family and Children’s Services), GSB No. 2001-1700 (2003) (Abramsky); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2002-1151(2007) (Abramsky). Timeliness of union allegations [29] In OPSEU (Finn) v. Ontario (Ministry of Agriculture, Food and Rural Affairs), (March 11, 2019) GSB No. 2017-0553 et al (Dissanayake), the Board considered the untimely nature of some of the union’s allegations. At para. 2 of the decision the arbitrator referred to the collective agreement provision applicable as follows: Article 22.2.1 of the collective agreement provides: It is the mutual desire of the parties that complaints of employment be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. It is well established, that if a grievance is not filed within the time limits in the collective agreement between these parties, it is not arbitrable unless the Board exercises its discretionary power under section 48(16) of the Labour Relations Act to extend time limits. [30] In that case, the union argued that issues raised in two grievances were not untimely because they were part of a continuing grievance, one that had claimed issues of accommodation, discrimination and harassment. The arbitrator noted at para. 8 that: 8. The Board agrees that failure to accommodate, discrimination, and harassment grievances may, and often do, involve a pattern of conduct and - 11 - that each employer action forming such a pattern need not be grieved as they occur, to comply with the timeliness requirements. In pursuing accommodation/discrimination/harassment grievances, a grievor would not be precluded from leading evidence relating to employer action, which he/she claims form part of the pattern of conduct, because they took place more than 30 days prior to the date of filing. [31] The Union relies on the Board’s jurisprudence in which it has adopted the “three year rule” with regard to harassment grievances in order to permit the Union and grievors to establish a pattern of harassment over a period of time. In OPSEU (Brown) v. Ontario (Ministry of Labour), (February 23, 2012) GSB No. 2011-0583 (Dissanayake), the Board stated as follows: 23. The Grievance Settlement Board has held that a grievor should be entitled to lead evidence over a period of three years preceding the filing of a harassment grievance to establish a pattern of harassment. See, Re Patterson, 2001-0925 et al (Leighton) and Re Patterson, 1989-1546 et al (Abramsky). Counsel for the employer did not dispute the “three year rule” recognized by the Board, although he pointed out quite correctly that if is not a hard and fast rule but only a rule of thumb. Indeed, the Board has departed from this three year rule due to circumstances of the particular case. Burden of proof where allegations of anti-union animus [32] In OPSEU (Damani) and Ministry of Health, GSB No. 1581/95, 1703/98 (2000) (Gray), the Board addressed allegations of anti-union animus and the burden of proof. In that case the grievor claimed that the denial of promotional opportunities was on the bases of race and union activity. As the arbitrator made clear at paras. 17 to 22 of the decision, the onus is on the Union to establish that an employer decision is tainted by anti-union animus; and that while it may be inferred from circumstantial evidence, some proof is necessary: it cannot simply be inferred from a grievor’s subjective belief that it is so. [33] According to the Union, there is rarely a “smoking gun” in relation to allegations of anti-union animus, and that the Board is entitled to draw inferences from all the evidence in a case, including circumstantial evidence (OPSEU (Dobroff) v. Ontario (Ministry of the Environment), April 28, 2008 (GSB No. 2003-0905)(Dissanayake), at paras. 45-46). COLLECTIVE AGREEMENT [34] Article 22.14.4 of the collective agreement states as follows: - 12 - The parties agree that the principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member … are key elements in amicable and expeditious dispute resolution processes. *** [35] Having reviewed the relevant jurisprudence and the collective agreement provisions, I turn now to addressing the Employer’s motions. MOTION FOR DISMISSAL OF SPECIFIC GRIEVANCES Grievance Nos. 2012-0517-0117 and 2012-0517-0118 [36] Grievance No. 2012-0517-0117 was filed on December 31, 2012. It alleges that managements’ actions were in violation of Appendix 17 of the collective agreement. By way of remedy the Grievor seeks to be granted all factor 80 rights and entitlements, and she seeks specific, general and punitive damages. [37] Grievance No. 2012-0517-0118 was also filed on December 31, 2012. It alleges essentially the same thing as does the previous grievance, except that in this grievance the Grievor alleges a breach of Article 2, the Management Rights clause. She seeks the same remedies as in Grievance No. 2012-0517-0117. [38] The Employer seeks dismissal of these grievances as they raise an issue that is moot, since the Grievor retired in 2016. According to the Employer, in order to receive the remedy she seeks, the Grievor would have to repay pension monies she has already received. As well, the Employer asserts that Appendix 17 no longer forms part of the collective agreement as it was deleted in the 2013 collective agreement. [39] The Employer posits that these grievances have not been properly particularized, which should lead to their dismissal. It notes that the only particular provided is that in December 2012 the Grievor asked Mr. Tony Roth, the Deputy Superintendent of the institution, to let her exercise her Factor 80 pension entitlements, and he rejected her request. [40] The Union argues that the Grievor has provided sufficient information to ground her grievances; they are not moot since the Grievor did not receive the benefit of Factor 80 pension entitlements at the time when she sought them, and since these grievances had been filed under the collective agreement which contained the relevant Appendix at that time, it is irrelevant that Appendix 17 was deleted in the 2013 agreement. Finally, the Union asserts that the Employer’s denial of her Factor 80 rights was an example of a pattern of bullying and harassment to which the Grievor was subjected. [41] Having considered the submissions of the parties, I decline to dismiss Grievance No. 2012-0517-0117. I agree with the Union that it has provided sufficient - 13 - particulars at this juncture to ensure that the Employer knows the case it needs to meet. While it may have been helpful to know why the Grievor believed she met the Appendix 17 thresholds, that is a matter that will have to be established through her evidence. The matter is not moot to the extent that had the Grievor met the requirements, and had she been granted the retirement request in 2012, she would not have had to continue working thereafter. Without the benefit of seeing Appendix 17, or hearing any evidence in respect of this grievance, it is simply too early in the proceeding for me to decide that the grievance should be dismissed, or to find that there is no remedy appropriate in all the circumstances. [42] With respect to Grievance No. 2012-0517-0118, this grievance only asserts a breach of Article 2 of the collective agreement, and is hereby dismissed. Having regard to the jurisprudence outlined earlier, I have no “free standing” jurisdiction to review the exercise of management rights, especially in the absence of any particulars. In my view, the decision to dismiss this grievance does not prejudice the Grievor’s ability to claim that the denial was an example of a pattern of bullying and harassment to which the Grievor was subjected as Grievance No. 2012-0517- 0117 addresses the same issue, and was filed on the same date. Grievance Nos. 2013-0517-0026, 2013-0517-0027, 2013-0517-0028 [43] Grievance No. 2013-0517-0026, filed on December 2, 2013, alleges that Tom O’Connell, Superintendent of the TWDC, violated the collective agreement, including but not limited to Article 2, the Management Rights clause. By way of remedy, the Grievor seeks to have Mr. O’Connell abide by the terms of the collective agreement, and that she be made whole. [44] The Employer seeks to have Grievance No. 2013-0517-0026 dismissed on the basis that the Union’s particulars do not identify any action by Superintendent O’Connell that violated the collective agreement. According to the Employer only paras. 53 and 55 of the Union’s particulars relate to this grievance, and in its assessment, they do not show that Mr. O’Connell violated the collective agreement. In addition, the Employer asserts that all that the Grievor appears to be relying on is a work assignment issue (that Volunteer Coordinator work was assigned to someone else), and that is outside the scope of the grievance. [45] The Employer seeks the dismissal of Grievance No. 2013-0517-0027, also filed on December 2, 2013. That grievance alleges that Superintendent O’Connell violated Article 3, the No Discrimination/Employment Equity clause of the collective agreement. The remedies sought include that the Superintendent cease and desist from discriminating against the Grievor because of her union activities; that he abide by the terms of the collective agreement and, $100,000 in damages. [46] In the Employer’s view, there are no particulars provided by the Union regarding any union activity in which the Grievor was involved, that she was not allowed to - 14 - undertake, or that anything that the Superintendent did could have been construed as a reprisal for her union activity. [47] Grievance No. 2013-0517-0028, the third grievance filed on December 3, 2013, claims that the Superintendent violated Article 9, the Health and Safety provision of the collective agreement, causing the Grievor undue stress and grievous bodily harm. The remedies sought include that the Superintendent be disciplined for causing her grievous bodily harm; an apology from the Superintendent; $100,000 in damages for the Superintendent’s intentional unjust and unfair treatment of the Grievor; and, that he desist from causing her undue stress and grievous bodily harm. [48] Relying on the dictionary definition of “grievous bodily harm”, or “serious bodily harm”, from Black’s Law Dictionary, the Employer submits that there is not a single particular that has identified any injury to the Grievor that could be so described. It urges the Board to dismiss the grievance as there are no particulars to support it. The Black’s Law Dictionary definition is as follows: Serious physical impairment of the human body; esp., bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ…Typically, the fact finder must decide in any given case whether the injury meets this general standard. Generally, an injury meets this standard if it creates a substantial risk of fatal consequences, or, when inflicted, constitutes mayhem. [49] The Union maintains that all three of the grievances filed on December 2, 2013 are dealt with in paras. 45 to 55 of the particulars, covering the period of May to November 2013, and that the Employer is incorrect in its view that it is only a few paragraphs covering periods after October 7, 2013 and up to December 2, 2013 that relate to these grievances. According to the Union, paras. 45 to 50 address the Superintendent’s unilateral reassignment of the Grievor’s duties to others, and his failure to respond to her concerns in that regard; paras. 51 to 53 deal with the Employer’s failure to address the Grievor’s complaints about Ms. Kim Lengert, and its failure to provide her with a safe and healthy workplace, free of harassment; and, para. 55 concerned the Employer’s failure to accommodate the Grievor’s family status needs. [50] Having reviewed the Union’s particulars at paras. 45 to 55, I find the following: - Para. 45 is a work assignment issue and even taken as true and provable, would not be found to constitute harassment of the Grievor. It is therefore struck. - Para. 46 simply states that the Grievor wrote to Mr. O’Connell documenting a number of issues that had developed with student placements, but provides no details. The letter is not in the Union’s document book. Given the dearth of - 15 - information in the Union’s particular in this regard, and the lack of any indication regarding the issues that were purportedly being raised, this paragraph is struck. - Paras. 47 to 50 all relate to matters that are referred to in para. 50 as follows: “Grievances were filed on October 7, 2013 in relation to this action and the issues the Grievor had suffered to that date, as particularized above.” There are no October 7, 2013 grievances before me, so these paragraphs are struck for the purposes of this arbitration. - Based on the Union’s submissions, which essentially lump the three grievances together, it remains entirely unclear what the Grievor is claiming was the violation of Article 2, the Management Rights clause, in Grievance No. 2013- 0517-0026. In the absence of any particulars to support that grievance, it is dismissed. - Even when all of paras. 45 to 55 of the particulars are considered, there are no particulars whatsoever regarding anything relating to the Grievor’s union activities, or how any action at all by the Superintendent could be characterized as a reprisal for union activity during the period in question leading to the filing of Grievance No. 2013-0517-0027. While the grievance alleges a breach of Article 3, which addresses discrimination and harassment, the Grievor has stated in the grievance that this is in relation to her union activities. In the absence of any particulars to support that grievance, it is dismissed. - While Grievance No. 2013-0517-0028 alleges a breach of Article 9, the health and safety provision of the collective agreement, and while the Grievor claims that the Superintendent was causing her “grievous bodily harm”, there is not a single particular to support that particular characterization. However, in this grievance the Grievor is also claiming that the Superintendent was causing her undue stress due to the alleged intentional unjust and unfair treatment she was experiencing. This grievance appears to rely on paras. 51 to 53, and para. 55, which if true and provable, could meet the threshold of a prima face case. As such, I decline to dismiss Grievance No. 2013-0517-0028 at this stage of the proceeding, or the paragraphs of the particulars referred to above which relate to this grievance. Grievance No. 2014-0234-0116 [51] This grievance, filed on May 13, 2014, alleges a breach of Article 2, the Management Rights clause, in that the Employer is claimed not to have exercised its management rights in a reasonable and fair manner, and to have failed to apply its policies in a just and equitable fashion, resulting in the Grievor being injured. The remedies sought include a declaration of violation of the Grievor’s rights, full redress and $10,000 in damages. [52] The Employer seeks to have this grievance dismissed on the basis that there are no particulars relating to what policies were applied to the Grievor in an unjust and inequitable manner. - 16 - [53] As will have become clear already from the grievances addressed above, the problem with this Grievor is that, despite purportedly having been a union steward for a long time, she had a penchant for filing multiple grievances on the same day that each appear to have largely arisen out of one set of circumstance. Each grievance would claim a single collective agreement breach, and each would claim damages. It is why there appear to be an unwieldy number of grievances before me in this arbitration. [54] Grievance No. 2014-0234-0117, also filed on May 13, 2014, claims a violation of Article 9 of the collective agreement, government policies, the Occupational Health & Safety Act (“OHSA”), and the Human Rights Code (“Code”), because the Employer is alleged to have failed to make reasonable provisions for the Grievor’s health and safety and failed to accommodate her disability. In that grievance she seeks a declaration of breach, and damages of $10,000. The Employer is not requesting the dismissal of this grievance as it appears to be satisfied that there are sufficient pleadings to proceed with it. [55] Grievance No. 2014-0234-0118, the third grievance filed on May 13, 2014, claims a violation of Article 3 of the collective agreement, and alleges that the Employer engaged in a course of vexatious behaviour towards the Grievor; that it took reprisals against her for exercising rights under s. 43 of the OHSA; that she suffered differential treatment; that the Employer created a toxic workplace; and that it either removed her accommodations or failed to make reasonable provisions for her as an injured worker. In addition to declarations, the Grievor was again seeking $10,000 in damages. The Employer is not requesting the dismissal of this grievance either, as it appears to be satisfied that there are sufficient pleadings to proceed with it. [56] The Union lumps the Grievor’s many grievances filed in May 2014 together (which includes the first one outlined above as well as others that the Employer seeks to have dismissed), and states that they all concern events that occurred over several months in late 2013 and early 2014, after the Grievor began working at Maplehurst. It claims that all these grievances are central to the case as they “finally drove the grievor out of work, onto LTIP, and into retirement earlier than she otherwise intended” (para. 87, Union’s written submissions dated September 16, 2019). [57] While that may be the Union’s position, the fact is that there is nothing in the Union’s pleadings that refers to any specific policies that the Employer is alleged to have breached, and there is nothing therefore pled regarding Grievance No. 2014-0234-0116. I am satisfied that the other two grievances filed on May 13, 2014, as outlined above, appear to amply capture what the Grievor was complaining about at the time regarding the alleged failure to accommodate her; the alleged breaches of the OHSA and Code, as well as Ministry and local policies; and her allegations of differential treatment and a toxic workplace. I therefore dismiss Grievance No. 2014-0234-0116, on the bases that no particulars have - 17 - been provided to support it, and it simply claims a breach of Article 2, the Management Rights provision of the collective agreement. Grievance Nos. 2014-0234-0279 and 2014-0234-0280 [58] Grievance No. 2014-0234-0279 was filed on May 22, 2014. It claims that the Employer violated Article 9, the Health and Safety provision of the collective agreement, and caused the Grievor undue stress at work on April 17, 2014, when it held a meeting with her and a union representative. The remedies sought include a declaration and $10,000 in damages. [59] Grievance No. 2014-0234-0280 was also filed on May 22, 2014. It claims that the Employer violated Article 3, the No Discrimination provision of the collective agreement, when it discriminated against, and harassed, the Grievor at the same April 17, 2014 meeting referred to in the grievance referred to in the previous paragraph. Again, the remedies sought include a declaration and $10,000 in damages. [60] The Employer seeks to have these two grievances dismissed. It argues that the two grievances are almost identical, and while it concedes that the Union has provided particulars with respect to the April 17, 2014 meeting, it is of the view that those particulars would not ground a finding of breaches of the collective agreement. The Employer submits that the grievances should be dismissed because it is not a breach of the collective agreement for management to have ensured that the Grievor’s choice of union steward was actually a steward; nor was it a breach for the Employer to let that individual participate only as an observer. [61] The Union’s response to the dismissal request regarding these two grievances is that each of the grievances not only claims breaches because of the choice or role of the union steward, but also includes claims of undue stress and discrimination, and that these grievances must be viewed in the context of the several months of the Grievor’s conflict with the Employer at that juncture. [62] While Grievance Nos. 2014-0234-0279 and 2014-0234-0280 appear to be somewhat repetitive, they do raise issues that go beyond the choice of union steward: the grievances are also about how the Grievor felt she was being treated differentially, and the effect that the treatment had on her. There being sufficient particulars pled in regards to these two grievances, and having regard to how they fit into the Grievor’s allegations around that time, I decline to dismiss these two grievances at this early stage of the litigation. Grievance Nos. 2014-0234-0282 and 2014-0234-0283 [63] It would appear that the Grievor filed many grievances on May 22, 2014. Grievance No. 2014-0234-0282 was another one filed on that day. It claims a breach of Article 2, the Management Rights provision of the collective agreement, - 18 - and Part VI of the OHSA, in that the Employer is alleged to have exercised its management rights in an unreasonable, unjust and unfair fashion when the Grievor was ordered to write an Occurrence Report concerning matters that were the subject of a work refusal. By way of remedy, the Grievor is seeking a declaration of the violation of her rights, and $10,000 in damages. [64] Grievance No. 2014-0234-0283 was also filed on May 22, 2014. It claims a breach of Article 9, the Health and Safety provision of the collective agreement, and Part VI of the OHSA, in that the Employer is alleged to have caused the Grievor undue stress and tremendous anxiety in the workplace when it ordered her to write an Occurrence Report during a work refusal. By way of remedy, the Grievor is seeking a declaration of the violation of her rights, and $10,000 in damages. [65] The Employer seeks the dismissal of these grievances because it claims that no details have been provided to support how the request to write an Occurrence Report was unreasonable, unjust or biased. In addition the Employer asserts that the Union has not pled any details regarding the anxiety and stress that the Grievor claims she suffered as a result of the request. According to the Employer, writing an Occurrence Report is a standard request that forms part of the ordinary work assignment of employees, and does not amount to a breach of the collective agreement. [66] The Union maintains that these two grievances do not deal solely with the Employer’s request of the Grievor to write an Occurrence Report, but more generally refer to the manner in which the Employer responded to the Grievor’s work refusal and the circumstances that had led to it, which was the Employer’s failure to properly accommodate the Grievor. The Union points out that these grievances were filed in the period during which there was considerable conflict between the Grievor and the Employer, and was not long before she left the workplace permanently. It argues that the Employer is advancing an unduly technical and narrow reading of the grievances, one that is inconsistent with the arbitral jurisprudence. [67] Having reviewed the extensive particulars filed about the period in question when these grievances were filed, I am satisfied that there is sufficient pled that on a prima facie basis I cannot dismiss these grievances. In both grievances violations of the OHSA are alleged, as well as the assertions that the Grievor was being treated in a manner that caused her stress and anxiety. While it is not necessary for the Union at this juncture to provide details of the stress and anxiety, it will have to prove these aspects of the grievances, as it bears the burden of proof. [68] The Employer’s motion for dismissal is denied in respect of these two grievances. - 19 - MOTION RE PARTICULARS THAT SHOULD BE STRUCK [69] The Employer requests that the following paragraphs of the Union’s particulars should be struck: a. Paragraphs 11 to 39 inclusive; b. Paragraphs 44 to 46 inclusive; c. Paragraphs 48 to 49 inclusive; d. Paragraphs 50 to 53 inclusive; e. Paragraphs 91 to 92 inclusive; f. Paragraphs 95 to 97 inclusive; and, g. Paragraphs 101 and 105(b). [70] The Employer also asserts that in light of the Union’s undue delay in providing any particulars, and the partial disclosure provided, that the Union should not be given any further time to amend or add further particulars. Should any particulars be struck, any documents that supported those particulars should also be removed from the Union’s Book of Documents, and no evidence should be allowed in respect of the struck particulars. [71] The Union’s position is that none of the particulars should be struck, or documents removed. [72] In the following review of the Employer’s requests, where I have found that any particulars are to be struck, it should be understood that documents relating to those particulars are to be removed from the Union’s Book of Documents, and no evidence respecting the struck particulars will be allowed. Paragraphs 11 to 39 inclusive [73] With respect to paras. 11 to 14 of the particulars, the Employer argues that nothing in these paragraphs appears to relate to any grievance before me, and even if they were true and provable, they do not demonstrate any breach of the collective agreement. It notes that these particulars appear to relate to some time prior to January 2012 when the Grievor claims that she heard CO Tracy Holloway make a disparaging remark to male maintenance workers about college placement students. The Grievor states that one of the students became upset, and that the Grievor filed a complaint and an Occurrence Report about the incident, but to her knowledge, nothing came of it. [74] With respect to paras. 15 to 21 of the particulars, the Employer notes these paragraphs appear to relate to the Grievor’s belief that CO Holloway was not fit to have been assigned to the Volunteer Coordinator role while the Grievor was off sick for some time; that some of her job functions and duties were changed during her absence; that CO Holloway had run the volunteer program in a different - 20 - manner than had the Grievor; and that there was difficulty in the Grievor’s transition back into her role upon her return to work. [75] With respect to paras. 22 to 25 of the particulars, the Employer notes that the particulars state that the Grievor brought a number of her concerns about CO Holloway doing Volunteer Coordinator work to the attention of Mr. Tony Roth, Deputy Superintendent of Programs, and at the Grievor’s request, Mr. Roth sent a memo out to everyone to advise them that the Grievor would be returning to her role as the Volunteer Coordinator. [76] The Employer argues that the paragraphs should be struck as there were no timely grievances filed regarding these events; that none of the grievances before me can be expanded in their scope to include these issues, and they certainly don’t relate to the December 2012 grievances; it further argues that even if the particulars were accepted as true and provable, they disclose no breach of the collective agreement. Finally, the Employer asserts that pursuant to para. 50 of the particulars, all these allegations had been contained in grievances filed on October 7, 2013, none of which are before me. [77] The Union argues that all these paragraphs are evidence of the pattern of bullying and harassment that the Grievor was suffering at the hands of the Employer, and that they should not be dismissed based on the Board’s “3 year rule”. [78] Having reviewed paras. 11 to 25, I agree with the Employer that these particulars should be struck. They do not relate in any manner to the December 2012 grievance (which I have not dismissed). While the Union may assert that the “three year rule” may be applicable when considering harassment and bullying grievances that may have been filed much later, nothing in these particulars, even if accepted as true and provable, would demonstrate that the Employer had acted in a manner that amounted to harassment or bullying. [79] One of the Grievor’s issues was with Ms. Holloway’s fitness to do the Volunteer Coordinator job in the Grievor’s absence: that is not a matter over which a bargaining unit employee has any authority, and as such, even if paras. 11 to 14 were taken as true and provable, it is a management right to decide who will fill in for an absent employee, subject only to any restrictions in the collective agreement. No such collective agreement restriction has been asserted, either in the grievance or in the particulars. [80] Paras. 16 to 21 of the particulars recount the Grievor’s claims about what Ms. Holloway was doing following the Grievor’s return to work in early April 2012. The Grievor claims that Ms. Holloway kept doing some of the duties that the Grievor believed should have come back to her; that in the Grievor’s absence Ms. Holloway had destroyed a number of volunteer tags and replaced them with new tags; and, the Grievor took issue with the manner in which Ms. Holloway had changed how she did the Volunteer Coordinator job. Paras. 22 to 24 of the particulars outline - 21 - that the Grievor took her concerns to management, and that Mr. Roth sent out a memo to advise everyone that the Grievor was back in her Volunteer Coordinator role. Nothing in these particulars, taken as true and provable, would support a finding that the Employer was bullying or harassing the Grievor in any way. [81] It would be a waste of the parties’ and the Board’s resources to allow the calling of evidence regarding matters that are tangential to a proceeding, and which would serve no purpose in the decision-making process. While I appreciate that it may have assisted the Grievor in her recollection of events to have outlined in her recitation of her particulars a detailed history of all of her concerns over the years, only particulars relevant to the grievances that are before me can be considered in this proceeding. Paragraphs 11 to 25 are hereby struck from the Union’s particulars, and any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. [82] With respect to paras. 26 to 31 of the particulars, the Employer asserts that the paragraphs should be struck as there is no timely grievance before me addressing the events outlined, and that none of the grievances can be expanded in scope to include these issues. In addition, the Employer argues that pursuant to para. 50 of the particulars, the Union and Grievor have asserted that “Grievances were filed on October 7, 2013 in relation to this action and the issues the Grievor had suffered to that date, as particularized above”. [83] Having reviewed the Union’s particulars at paras. 26 to 31, I am satisfied that they appear to relate to the Grievor’s general allegations of harassment and bullying by the Employer; they fit within the “three year rule”; and if true and provable, may assist her in arguing her position. I therefore decline to strike paras. 26 to 31 of the particulars. [84] Para. 32 of the particulars is a bald allegation that Mr. Tilling had behaved as he had towards the Grievor because she was a union representative, and that she was treated unfairly because of her union activity. That particular is struck as it does not meet the standard required of particulars, and is simply a bald assertion with nothing in the preceding or following paragraphs to ground the assertion. Although it is unclear whether there are any documents in the Union’s Book of Documents that relate to this paragraph, if there are, they are to be removed. [85] Paras. 33 to 36 of the particulars address an April 2012 incident of the Grievor seeing Ms. Holloway allegedly doing work that the Grievor believed was part of her Volunteer Coordinator job; she complained to Mr. Roth about it; he told the Grievor to just move forward, and noted that the facility was closing anyway. The Grievor construes that as a lack of support for her efforts to maintain the integrity of the volunteer program, and that Mr. Roth was not supporting her return to work after her lengthy absence. - 22 - [86] I have already struck the particulars regarding other allegations about the Grievor’s discontent with the Employer’s assignment of the Volunteer Coordinator work to Ms. Holloway while the Grievor was off work, and upon her return to work. These paragraphs are simply more of the same, and are struck for the same reason. Nothing in these particulars, taken as true and provable, would support a finding that the Employer was bullying or harassing the Grievor in any way. Any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. [87] Paras. 37 to 39 of the particulars are about how different representatives of the Employer communicated to the TWDC staff that the institution was closing. The Grievor was apparently confused, as some memoranda indicated the TWDC was closing, while other management articulated to staff that it was not closing, but that the work was being transferred to the new Toronto South Detention Centre. As such, the Grievor did not know whether her work as a Volunteer Coordinator was going to be transferred to the new institution, and her inquiry of the Superintendent Tom O’Connell, was not answered. However, at para. 39 the Grievor outlines that Mr. Roth told her that there would be a transfer of the operation from one institution to another that was opening. [88] Nothing in paras. 37 to 39 of the particulars suggests other than that the Grievor was confused about whether her institution was closing or not; and that was clarified for her by Mr. Roth. As such, nothing in these particulars, taken as true and provable, would support a finding that the Employer was bullying or harassing the Grievor in any way in respect of this matter, and the paragraphs are therefore struck. Any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. Paragraphs 40 to 44 [89] Paras. 40 to 43 of the particulars address the Grievor’s contention that the Employer improperly denied her a lateral transfer to a Volunteer Service Coordinator position at Maplehurst Correctional Centre in and around May 2012. She asserts she was the most senior person on the lateral transfer list to Maplehurst for this position; that her institution was closing, so she believed she would have priority for transfers to other jails; and the Grievor had indicated to management that she needed a family status accommodation as she would not be able to travel to the new TSDC. [90] It is not clear whether the Grievor filed a timely grievance about this matter, and the Employer asserts that no timely grievance was filed about it. As such, the Employer seeks to have these paragraphs struck, as to let them stand would be to allow the expansion of other grievances that have been filed, none of which address this matter. - 23 - [91] The Union argues these particulars are evidence of a pattern of bullying and harassment by the Employer, and that they should not be struck based on the three year rule. [92] The allegedly improper failure to follow the lateral transfer list may have been a grievance that the Grievor should have filed at the time of the event. There is nothing in the particulars to indicate when the Grievor allegedly told management at her own institution that she could not travel to the TSDC, and by May 2012 it seems unlikely that would have occurred since on the Grievor’s particulars it appears that the closure of the TWDC was announced between March and May 18, 2012, but it is not apparent that any discussions had begun regarding the date of the closure or the timing of the transfer of employees to the new facility. There is nothing in the particulars to tie the Maplehurst job, the manner in which the transfer list is managed, and the family status accommodation request together in any particular time frame. I agree with the Employer that this is a discrete matter, which had the Grievor wanted to, she could have grieved at the time. It is quite apparent she knew how to grieve, based on the number of grievances the Grievor had already filed. Given the nature of this set of particulars, it does not appear to fall within the ambit of the Grievor’s bullying and harassment grievance and the three year rule. A such, paras. 40 to 43 are hereby struck, and any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. [93] Para. 44 of the particulars relates to Grievance No. 2012-0517-0117, which was filed on December 31, 2012. I have already ruled, above, that grievance may proceed, so I decline to strike this paragraph of the Union’s particulars. Paragraphs 45 to 46 and 48 to 50 [94] Paras. 45 to 50 of the particulars have been addressed earlier, and have already been struck. Any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. Paragraphs 51 to 53 [95] Paras. 51 to 53 of the particulars address the period of October 28 to November 7, 2013, during which time the Grievor became aware that Ms. Kim Lengert, a Correctional Officer, was alleged to have pressured one or more Sheridan College students to launch formal complaints against the Grievor in exchange for a positive evaluation report. The Grievor asserts that she reported the matter to Mr. Roth, but that no action was taken by management, which in the Grievor’s view, demonstrated that Ms. Lengert was receiving preferential treatment when compared to how the Grievor was being treated. [96] I accept the Union’s submissions that these paragraphs should not be struck. On the assumption that the particulars are true and provable, they may be evidence - 24 - of a pattern of bullying and harassing treatment of the Grievor, and are within the time frame covered by the three year rule. Paragraphs 91, 92, 95 to 97, 101 and 105(b) [97] The Employer asserts that paras. 91, and 95 to 97 of the particulars note grievances filed on May 8, 2014 and May 20, 2014, none of which are before me. As such, it requests that these paragraphs be struck. [98] The Union took no position regarding this request. [99] I agree with the Employer that since these grievances are not before me, reference to them should be struck from the particulars at paras. 91, and 95 to 97. Any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. [100] Para. 92 is struck since it relates to Grievance No. 2014-0234-0116, which as already outlined above, has been dismissed. Any documents in the Union’s Book of Documents that relate to this paragraph are to be removed. [101] The Employer requests that paras. 101 and 105(b) be struck as there are no grievances filed with respect to the Grievor’s retirement, and none of her other grievances could be expanded to include any allegations that her retirement was anything other than voluntary. Para. 101 states that but for the Employer’s repeated violation of the Grievor’s rights, she would have continued to work, and would have done so to at least age 65. In para. 105(b), the remedies particular, the Grievor is seeking to be compensated for her earnings lost had she been able to work to age 65. [102] The Union made no submissions in respect of these two paragraphs of the particulars. [103] There being no grievances before me regarding the Grievor’s retirement, I agree with the Employer that paras. 101 and 105(b) should be struck. Any documents in the Union’s Book of Documents that relate to these paragraphs are to be removed. MOTION RE MEDICAL INFORMATION [104] In its original submission, filed on June 27, 2019, the Employer argued that the Union should not be permitted to adduce any medical evidence (documentary, written, or by way of oral testimony) in this proceeding. The basis for the motion was that the Union had failed to provide such documentation in a timely manner, in part based on the Grievor’s instructions to either not disclose documents, or to heavily redact information, neither of which the Employer argues are legally sustainable positions. The Employer stated that despite the Board’s first order of June 12, 2018 for the provision of particulars and documents, and the passage of - 25 - more than a year by the time of filing of the Employer’s June 2019 submission, it had still not received full production of all arguably relevant medical information. [105] The Employer notes that it was only on April 9, 2019 that the Union provided any medical documents, and those documents had been heavily redacted at the Grievor’s behest. The Employer has outlined in detail what it needed, including the WSIB file, the Long-Term Insurance Plan (“LTIP”) applications, and the files of various physicians or specialists involved in the Grievor’s medical care. [106] Since the Union had conceded that it was acting on the Grievor’s instructions, the Employer asserted that this was not a matter of inadvertence or mistake, but was intentional non-compliance with no legal foundation. According to the Employer, it shows blatant disregard of the Board’s direction, which amounts to a breach of process, and is antithetical to the fair and expeditious administration of these proceedings. Therefore, the Employer makes the extraordinary request that the Union and Grievor not be permitted to submit any medical information in the course of this litigation. [107] In the alternative, the Employer asserted that the Board should issue an order for complete, unredacted medical disclosure to Employer Counsel in a timely way, so as to permit it to review and make challenges prior to the commencement of the hearing. In particular, the Employer seeks access to the Grievor’s WSIB file, and the complete unredacted medical notes from all of the Grievor’s treating practitioners and/or providers who are arguably relevant to the issues before the Board. Although by the time that the Employer made its submission the Union had not even been able to file its response to the many Employer motions, the Employer was seeking this medical production by October 30, 2019. Should such production not be provided, the Employer wanted an order that the Union and Grievor should not be permitted to adduce any medical evidence (documentary, written, or by way of oral testimony) in this proceeding. [108] The Union submission states that it and the Grievor acknowledge and regret the delays that occurred in procuring the relevant medical records, and providing them to the Employer. It claims that the Grievor was not seeking to disregard the Board’s processes. It also claims that the Board’s orders issued by September 16, 2019, the date of filing of the Union’s submissions, had not required the Grievor to provide fully unredacted copies of her medical records to the Employer. [109] In any event, the Union maintained that the Grievor was prepared to comply with many of the Employer’s requests for the production of medical documents. In particular, and subject to a number of restrictions and conditions, she was prepared to allow Union counsel to provide to Employer counsel unredacted copies of the medical records in the Union’s possession; to obtain a copy of her LTIP file; and to obtain copies of the medical records of a number of other health care practitioners listed in para. 204(c) of the Employer’s June 2019 submissions. - 26 - [110] According to the Union, the Employer’s first request for particulars and production in April 2017 had made no mention of medical records. It maintains that it was only after the Board’s order of May 31, 2018 that the Union and Grievor began to work on the preparation of particulars and documents, which it claims was a lengthy process. It claims that it was not until August 2018 that it became clear which medical practitioners had to be contacted. Once the Union received the large volume of medical documents, it took a long time to review them because of the Grievor’s “bona fide and reasonable concerns about guarding her medical privacy” (at para. 132 of Union’s Sept. 16, 2019 submission), which further contributed to the delay. The Union notes that it was not until the filing of its June 2019 submissions that the Employer had asked for the LTIP file or the files of the many named medical practitioners. [111] The Union is only prepared to disclose the unredacted documents now sought if those documents will remain in the sole custody of Employer counsel; will not be disclosed or discussed with her advisors unless the Grievor and Union consent, or the Board orders otherwise; the Board’s order of April 24, 2019 will continue to apply to the redacted version of the records that have been provided to the Employer; and, the unredacted documents will be returned to Union counsel at the close of the proceedings. The Grievor seeks these conditions as she maintains that the redacted portions of the medical records are not relevant to the case, and concern deeply personal and private information. Since Employer counsel would have both the redacted and the unredacted versions, counsel would be able to satisfy herself that the redactions are irrelevant to the conduct of this case, and that information would not have to be disclosed to the Employer’s advisors. Should any parts of the redacted version be seen as necessary and relevant, the Employer may raise such matters with the Board. [112] In its reply submissions dated October 18, 2019, the Employer submits that the Union has breached the Board’s second order requiring the Union and Grievor to provide an unredacted version of the medical records to Employer counsel to permit challenges to the redactions (at para. 5 of the Second Interim Decision dated April 24, 2019). While recognizing the Grievor’s concerns about her privacy, the Employer notes that she has put her medical condition in issue, and hence, the medical records must be disclosed. The Union and Grievor should be censured for their delay and breach of the Board’s orders. [113] In supplementary submissions dated November 4, 2019, the Employer sought to amend its order requests from its original submissions, and instead requested that all the grievances should be summarily dismissed because of the Union and Grievor’s “continued, deliberate and flagrant disregard for orders of the Board; and for the resulting inability of the Parties to conduct this matter in a timely, efficient way” (para. 4, p. 2 of November 4, 2019 Employer submission). In the alternative, and in respect of the orders regarding medical disclosure, the Employer sought an order that the Union and Grievor not be permitted to rely on any medical evidence - 27 - in the furtherance of the grievances (para. 6, p. 2 of November 4, 2019 Employer submission). [114] The Employer’s supplementary submissions were filed in response to the Union finally providing Employer counsel with an unredacted version of the Grievor’s WSIB file on October 29, 2019. It appears that on October 29, 2019 the Union and Grievor provided Employer counsel with what may be a portion of the WSIB file, but counsel is unable to ascertain whether she has received the full WSIB file. Since this was unredacted medical disclosure, it was accompanied by conditions regarding the disclosure of the file to the Employer’s advisors, conditions that were different from the Board’s April 2019 order. [115] It is unclear whether the Union has also provided Employer counsel with the unredacted version of the earlier medical document disclosure. The Union’s November 8, 2019 sur-reply submissions appear to suggest that it finally provided Employer counsel with the unredacted version of those medical documents on October 29, 2019. The Union characterizes this as a “significant gesture on the grievor’s part”. It is not. It is an example of the Grievor’s defiance as it has taken approximately six months to comply with a Board order. [116] In the June 12, 2018 Board order, the Union was directed as follows: - By August 31, 2018 the Union will provide to the Employer full particulars regarding the grievances, and all relevant documents within the care and control of the Grievor. - The Union and Grievor will also make their best efforts to obtain relevant documents that may be in the hands of third parties, and will provide them to the Employer by August 31, 2018. (Emphasis added) [117] At that juncture the Employer had requested that should the Union fail to meet the August 31, 2018 deadline, that all grievances should be dismissed. I declined at that stage of the proceeding to make directions regarding the consequences of non-compliance with the Board order. However, at para. 4 of the decision the Union and Grievor were warned that “failure to substantively comply, may lead to dismissal of the grievances”. [118] As has already been noted earlier, the Union did not in fact comply with the deadline for the filing of particulars, sought extensions from the Employer to do so, finally provided particulars in October 2018, and provided a redacted version of some medical documents in April 2019, the latter on a variety of conditions. The conditions led to the Board having to issue another order on April 15, 2019. [119] The relevant parts of that order are as follows: - 28 - 4. As such, pursuant to the authority of s. 48(12)(b) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, I hereby order the Union and the Grievor to forthwith produce to counsel for the Employer all arguably relevant medical records for Ms. Sparkes subject to the following conditions: 1. Counsel for the Employer, her advisor and her instructor, Ms. Laura McCready and Ms. Rhonda Franks, are permitted to access and use the medical records solely for the purposes of this hearing, and subject to the following conditions: a) Any person permitted to access and use these documents will keep them strictly confidential except for documents entered as exhibits in the hearing and subject to any further orders in that regard; and, b) To the extent that those identified above are provided with copies of these documents, upon completion of this case, all physical documents will be returned to the Union's counsel or destroyed. 2. Counsel may make copies of the medical record, or any portion of the medical record, in order to submit the document(s) into evidence. 3. Any documents produced pursuant to this order and not submitted into evidence shall be returned to Union counsel, or destroyed, at the conclusion of these proceedings. [5] I note that the Employer has retained the right to make arguments regarding the redactions made to the medical records. If the Employer objects to the redactions, and needs this issue resolved by the Board, such a motion must be made well in advance of the next hearing day so that this matter can proceed as scheduled. [120] Not surprisingly, the Employer is of the view that the Union continues to act in disregard of the Board’s production orders, and it is difficult to see how it may be viewed otherwise. The June 12, 2018 order required to Union to provide full particulars, all relevant documents, and relevant documents from third parties (which at the time was understood to include medical professionals) by August 31, 2018. That did not happen. When the Union finally provided some redacted medical documents in April 2019, it did so on the basis that they could not be shared at all with the Employer’s advisors. That led to the Employer request for the second order, which issued on April 24, 2019. [121] Since the Union had purportedly worked for months to produce the redacted copy of the medical documents, it clearly had an unredacted copy at the time of the - 29 - Board’s April 24, 2019 order. It should have provided that unredacted copy to Employer counsel forthwith after the April 24, 2019 order issued, but did not do so. [122] I find the positions of the Grievor and Union regarding the provision of unredacted copies of the medical records to counsel for the Employer troubling. It is the Board’s expectation that when it orders the production of arguably relevant documents, including medical records, that they will be provided by the party ordered to make such production. When the Union first knew of the Grievor’s instruction regarding the considerable redaction of the medical records, it should have so alerted the Employer, and in the absence of agreement on a way to proceed, the parties could have sought direction from the Board in a more timely manner. It is disingenuous for the Union to now claim that since the Board had not ordered unredacted copies of the medical records, it has not breached the Board’s order. The Board expects parties to act in good faith when fulfilling production orders, and to do so fully. Furthermore, para. 4 of the April 24, 2019 order does not refer to the provision of redacted medical records: it refers to “all arguably relevant medical records for Ms. Sparkes”. [123] The Grievor appears not to understand that given the nature of her claims and remedies sought, she has put her medical state in issue, and that since, in most of the grievances filed, she and the Union bear the onus of proof, she has to provide her medical records. Since the Grievor has repeatedly and consistently claimed in various grievances that she should be awarded large amounts of damages because she has been affected by incidents, actions, or inaction by the Employer, she will have to prove the alleged negative effects on her. As such, both her and the Union’s continuing wilful failure to provide timely production of these documents can only be viewed as disregard for the Board’s processes and orders. [124] While I decline the Employer’s requests that all the grievances be dismissed, or that the Union be precluded from calling any medical evidence in this proceeding, I agree with the Employer that an order is required to ensure that all medical production is made as soon as possible. I therefore order as follows: a. In the event that the Union has not already produced to Employer counsel a complete unredacted version of the medical records that had been produced in April 2019, it is hereby ordered to do so on or before December 13, 2019. All unredacted versions of the Grievor’s medical records will remain solely in the custody of Employer counsel, and but may be discussed with the Employer advisors. All such information must be maintained confidential, and not disclosed to others, except on consent of the Union and Grievor, or pursuant to a Board order. b. The Union and Grievor are ordered to provide to Employer counsel all other complete unredacted arguably relevant medical disclosure on or before January 6, 2020. Unredacted medical disclosure will be - 30 - provided solely to Employer counsel, and will be subject to the conditions outlined in sub-para. (a) above. c. Failure to provide the unredacted medical information outlined above on or before the dates indicated will result in neither the Union nor the Grievor being permitted to adduce any medical evidence of any sort in this litigation. The Union and Grievor should also understand that further defiance of the Board’s orders may result in the dismissal of the grievances. d. The deadline in this order may be extended on agreement of the parties. [125] I remain seized. Dated at Toronto, Ontario this 5th day of December, 2019. “Gail Misra” Gail Misra, Arbitrator