HomeMy WebLinkAbout2019-0222.Del Casale.20-10-08 DecisionCrown 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# 2019-0222
UNION#2019-0542-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Del Casale) Union
- and -
The Crown in Right of Ontario
(Ministry of Government & Consumer Services) Employer
BEFORE
Dale Hewat
Arbitrator
FOR THE UNION
Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 28, 2020 (by videoconference)
-2-
DECISION
[1] This decision deals with a non-suit motion made by the Employer in a proceeding
involving a claim by the Union that the Grievor’s manager engaged in a course of
conduct that included micromanaging, bullying and harassment resulting in a
poisoned work environment for the Grievor who has a health-related workplace
accommodation. The Union also claims that the manager’s behaviour caused
stress for the Grievor which could trigger her medical condition. The Union asserts
that the Employer violated the Collective Agreement including, but not limited to
Articles 2 (Management Rights), Article 3 (Harassment and Discrimination) and
Article 9 (Health & Safety) and the Ontario Human Rights Code.
[2] Both the Union and Employer Counsel were in agreement on the general
principles that should be considered when deciding a non-suit motion, including
that I need to only hear testimony from the Union in response to the Employer’s
assertion that no prima facie case can be established.
[3] In a recent decision of this Board in Ontario Public Service Employees 2019 Union
(Pacheco) v. Ontario (Solicitor General), 2020 CanLII 38998 (ON GSB), Arbitrator
Petryshen sets out the general principles that this Board has adopted in
determining a non-suit motion at paragraph 9:
[9] There are a number of decisions of this Board which summarize the primary
principles to be utilized when deciding a non-suit motion. With one addition, I adopt the
following principles that are summarized in OPSEU (Whan et al.) v. Ontario (Ministry of
Transportation), supra, as follows:
1. The Board will not put the moving party to an election of whether or not to call
its own evidence as a matter of course. The appropriateness of putting the
moving party to an election will be determined based upon the considerations
of expedition and fairness in the particular circumstances of each case.
2. In a non-suit motion, the standard of proof expected from a responding party is
that of a prima facie case, which is significantly lower than the standard of proof
on a balance of probabilities.
3. In determining whether a prima facie case has been made out, the test is
whether some evidence exists to support the claim, which requires an answer or
explanation from the other side.
4. In applying the standard of a prima facie case, any conflicts in or doubts about
the facts must be determined in favour of the party responding to the motion.
5. In assessing the existence of a prima facie case, viva voce evidence as well as
all documentary evidence before the Board must be considered.
6. In examining the evidence before it, the Board will not assess the quality,
reliability or the credibility of the evidence.
-3-
7. Where a non-suit motion is granted, a written decision with reasons will follow.
However, where a non-suit motion is denied, no reasons, oral or written, will be
issued.
[4] Arbitrator Petryshen also remarks at paragraph 10 of his decision, that in addition
to the above-noted principles, the determination of whether a prima facie case
has been made out, the evidence must meet a minimum threshold of credibility.
[5] In this case, in assessing the Grievor’s evidence objectively, in light of the
principles noted above, the Union also urged me to consider the Grievor’s
testimony in the context of her unique employment situation in which she is
accommodated by working at a different work location resulting in her being
physically isolated from her colleagues and management team. I agree with the
Union that the Grievor’s accommodation arrangements are relevant to my
consideration of the Grievor’s evidence related to her claims of bullying,
harassment and discrimination as alleged in her grievance.
[6] I have carefully considered the Grievor’s testimony applying the general
principles outlined above and considering the context of her workplace
accommodation. I have determined that there is some credible evidence in
support of establishing a prima facie case, and therefore the Employer’s non-suit
motion must fail. Accordingly, the Employer’s non-suit motion is hereby
dismissed. In accordance with the practice of the Board, I will not provide
reasons for that determination.
[7] The parties are directed to contact the Board to schedule a date for the hearing
of this matter.
Dated at Toronto, Ontario this 8th day of October, 2020.
“Dale Hewat”
______________________
Dale Hewat, Arbitrator