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Home My WebLink AboutP-2019-1829.Bowmaster et al.20-04-16 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB# P-2019-1829, P-2019-1891, P-2019-1892, P-2019-1932, P-2019-1953, P-2019-2026, P-2019-2088, P-2019-2089, P-2019-2090, P-2019-2156 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Bowmaster, Lessel, Lessel, Dalton, Narburgh, Dwyer, Cartwright, Tomlinson, Reay, Kloosterman Complainants - and - The Crown in Right of Ontario (Ministry of the Solicitor General) (Ministry of Children, Community and Social Services) Employer BEFORE Marilyn A. Nairn Vice Chair FOR THE COMPLAINANTS Self Represented FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel FINAL SUBMISSIONS April 9, 2010 -2 - Interim Decision [1] Each of these complaints challenges the Employer’s treatment of the complainant in respect of their performance rating and the associated compensation. Although the factual bases in each case differ somewhat, the complaints essentially all assert that, having conducted a performance evaluation of the complainant, the Employer then improperly changed that performance rating to the detriment of each complainant. The alleged reasons for the Employer’s actions vary but include allegations that the Employer acted in a manner that was arbitrary, discriminatory, and/or in bad faith. Some of the complaints specifically make allegations of discrimination under the Human Rights Code. [2] In each case, and relying on sub-paragraphs 4 and 5 of section 4(2) of Ontario Regulation 378/07, the Employer takes the preliminary position that the Board has no jurisdiction to entertain the complaint and seeks to have each complaint dismissed without an inquiry into its merits. The Employer also took the position that, at least for purposes of hearing and determining the preliminary issue, the complaints should be consolidated. [3] The Board issued a direction in each of these complaints asking complainants to indicate whether they objected to their complaint being consolidated with the others, for the purpose of hearing of the preliminary objection and, if so, to set out the grounds for their objection. Those representations have now been received and reviewed. The Employer made no further submissions in reply. [4] This interim direction deals with the issue of whether these complaints ought properly to be consolidated for purposes of hearing and determining the preliminary objection. [5] The Board’s rules allow it to consolidate the hearing of complaints. Rule 22 provides: The Board may consolidate or hear cases at the same time or immediately one after the other when it appears to the Board that: a. the complaints have a question of law or fact in common; b. the relief claimed in the complaints arises out of the same transaction or occurrence or series of transactions or occurrences, or; c. for any other reason an order ought to be made under this rule. [6] Notwithstanding certain alleged factual differences relating to each complainant’s particular experience through, and following the performance review process, as well as somewhat different allegations made against the Employer, the core issue underlying each complaint is the same. They all complain of the manner in which the Employer utilized the performance review process, generally complaining that following a review and result, the Employer then changed that result and applied a compensation result different from what the original rating contemplated. The remedial requests all arise out of these series of occurrences. -3 - [7] In addition to this similarity of fact, it is the case that the scope of the Board’s jurisdiction to entertain the complaints is a common question of law in all of the complaints. [8] I note that a number of the complainants have stated that they do not want their cases to proceed with a representative complainant. Yet, absent the consolidation of the hearing of at least the preliminary objection, someone’s complaint would have to proceed first. On the common issue of the scope of the Board’s jurisdiction to entertain the complaints, that first case would likely dictate the preliminary outcome in the other complaints. That is a further factor warranting the consolidation of the complaints for purposes of hearing the preliminary objection, as it allows each complainant to make their own representations on the issue, while still ensuring a reasonably efficient hearing process. [9] I find therefore that it is appropriate in the circumstances that these complaints be consolidated for purposes of hearing and determining the preliminary objection as to the scope of the Board’s jurisdiction to entertain the complaints. [10] The inability to conduct in-person hearings at this time (due to Covid-19 restrictions) poses the need for an alternate means to receive the parties’ facts and submissions. At this stage, I hereby direct as follows. The Employer and each complainant are hereby directed to prepare a “will-say” statement as follows. The Employer is to prepare a written statement setting out the facts it asserts and upon which it intends to rely in support of its position that the Board has no jurisdiction to entertain any of these complaints. Upon receipt of that statement, each complainant is directed to indicate in writing whether they agree or disagree with any fact alleged by the Employer and, as well, to similarly set out in writing the facts they assert and upon which they intend to rely in support of their position that the Board does have the jurisdiction to entertain their complaint. The Employer will be provided with an opportunity to agree or disagree with each complainant’s factual assertions, or indicate that, for purposes of the preliminary objection only, it will not contest the assertion and/or will assume any disputed facts as true and provable by the complainant asserting said fact. [11] Therefore, having regard to the finding at paragraph [9] above, and to the direction in paragraph [10] above, I hereby direct as follows: a) The Employer is hereby directed to provide to the Board with a copy to each complainant, its written “will-say” statement as outlined above in paragraph [10], relating to its preliminary position that the Board has no jurisdiction to entertain these complaints, by no later than May 13, 2020. b) Upon receipt of the Employer’s “will-say” statement, each complainant is hereby directed to provide to the Board with a copy to the Employer, their written “will-say” statement as outlined above in paragraph [10], relating to their preliminary position that the Board does have the jurisdiction to entertain their complaint, by no later than June 10, 2020. -4 - c) Upon receipt of each complainant’s “will-say” statement, the Employer is hereby directed to provide to the Board with a copy to each complainant, its written response as outlined above in paragraph [10] to each complainant’s written assertions of fact, relating to the Employer’s preliminary position, by no later than June 24, 2020. [12] Upon receipt of that written material the Board will review the extent to which facts are in agreement, in dispute, or not contested for purposes of the preliminary issue. Subject to that review, and subject to consideration of any Covid-19 restrictions in place at that time, further direction will issue with respect to any need to resolve any factual issues, and /or the means whereby the parties’ legal submissions may be received. Dated at Toronto, Ontario this 16th day of April, 2020. “Marilyn A. Nairn” ________________________ Marilyn A. Nairn, Arbitrator