HomeMy WebLinkAboutLeroux 21-02-11IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act, 2008
BETWEEN:
CENTENNIAL COLLEGE
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 558
(“Union”)
(Grievance of S. Leroux)
_______________________________________________________________
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the College:
Timothy P. Liznick, Counsel, Hicks Morley Hamilton Stewart Storie LLP
Nancy Fisher, Director Labour Relations and HR
Alan McClelland, Dean, School of Transportation
On Behalf of the Union:
Kristaq Lala, Counsel, Goldblatt Partners LLP
David Sworn, Counsel, Goldblatt Partners LLP
RM Kennedy – Chair, OPSEU, Local 558
Stephen Leroux - Grievor
Hearing held in this matter on February 5, 2021, via videoconference.
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Introduction and Background
[1] I have been appointed to determine a grievance filed by Stephen Leroux, alleging he was unjustly
terminated. This decision deals with three preliminary motions filed by the Union seeking to exclude
evidence and compel production.
[2] In August 2019, the College terminated the Grievor’s employment as a professor. The termination
was based on the Grievor’s conduct in respect of two individuals, B and M. The College became aware
of this conduct when B and M complained of the Grievor’s conduct to the College in April 2019.
[3] B’s complaints relate to conduct from 2010 to 2019. In 2010, B, 19 years of age at the time,
enrolled in a program at the College. The Grievor was a professor in that program. It is alleged that the
Grievor engaged in sexually harassing behaviour towards B during her time in the program. The
allegations include sexually inappropriate comments and touching, solicitation, and refusal to
acknowledge B’s requests to stop the unwanted behaviour. The allegations include written
communications via email and text, copies of which B provided the College.
[4] It is alleged that the harassing behaviour continued after B’s graduation from the program in 2012,
through inappropriate and unwanted telephone and email communications. The College has copies of
such email communications dated from June 2012 to February 2016.
[5] Around August 2016, B was hired as a faculty member in the same program where the Grievor
was employed. It is alleged that after a short period of time the Grievor began to engage in the same
pattern of harassment, including unwanted sexual behaviour, solicitation, and reprisal.
[6] In and around March 2019, B had occasion to speak with M and they shared with each other their
individual experiences in relation to the Grievor. Together they both made their complaints to the
College’s VP Academic on April 12, 2019. The College decided that it would engage a third-party to
investigate these complaints. On April 15, 2019, the Grievor was advised he was placed on paid
administrative leave until its investigation was completed. The completed investigation report was
provided to the College on July 15, 2019. The College provided a copy of the report to the Grievor on
August 7, 2019. On August 26, 2019, the College held a meeting with the Grievor and his union
representative discussing the report and inviting him to provide any further information. Then on August
29, 2019, the Grievor’s employment was terminated. His employment record was discipline-free prior
the termination.
Exclusion of Allegations Prior to August 2016
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[7] The Union seeks an order excluding as inadmissible the following:
• The text messages allegedly exchanged between the Grievor and B in 2011 and 2012;
• Any allegations B made regarding the Grievor’s behaviour in relation to those text messages
and/or during that time period.
• Emails allegedly exchanged between the Grievor and B between October 2010 and February
2016
[8] In other words, the Union seeks to limit the College’s ability to rely upon any evidence related to
allegations of misconduct prior to February 2016.
[9] The Union submits that the delay in raising these allegations extremely prejudices the Grievor, as
the passage of time has put him in a position where he does not remember the circumstances, limiting
his ability to provide the appropriate context or gather potential witnesses/evidence. The Union notes
that some of the allegations are in respect of events that took place some nine years before they were
brought to the Grievor’s attention. The Union submits that the Grievor no longer has access to mobile
phones he used years ago in order to respond appropriately to the allegations of inappropriate texts.
[10] The Union notes there are time limits for commencing proceedings both under the Human Rights
Code and in civil proceedings, and submits those are to ensure natural justice so that a respondent can
properly respond. The Union submits that those principles of natural justice and fairness should be
recognized here, to limit the evidence upon which the College can rely. The Union also submits there is
essentially a gap in the allegations, because the bulk of the allegations are 2012 or earlier. The Union
admits there are some allegations from 2012 to 2016 but submits there is a break in the alleged pattern
at that time.
[11] The Union also notes that the College’s Harassment and Discrimination Prevention Policy (the
“HDPP”) provides a time limit for filing complaints:
5.1 Timelines
A complaint, either formal or informal, must be filed within six (6) months of the incident
except in extenuating circumstances that would explain the delay. Should a late complaint
be filed, the College will assess the extenuating circumstances against any prejudice to a
respondent and/or to the College to determine if the matter should proceed through the
complaint process.
[12] The Union submits the College has failed to follow its own policy and failed to provide any
explanation for not doing so. The Union submits that the College’s failure to do so is an unreasonable
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exercise of its management rights. The Union also submits it is unfair for B to use the College as a screen
to pursue an untimely complaint, especially in the face of the clear HDPP time limit.
[13] I find there is no basis to limit the College’s ability to rely upon evidence related to these
allegations.
[14] The grievance before me challenges the College’s decision to terminate the Grievor’s
employment, and therefore the issue is whether the College had just cause to take this action.
[15] While there is arbitral authority which suggests employers may be prevented from disciplining an
employee when they have unreasonably delayed in acting upon information which they knew about, there
is no evidence, nor even a suggestion, that the College engaged in any delay in the present case. In fact,
within three days of learning of the allegations, the College advised the Grievor of the fact of the
allegations and commenced its investigation. There has been no suggestion that the College failed to
provide the Grievor with information in its possession in a timely fashion.
[16] I find the analysis of Arbitrator Cummings in O.S.S.T.F v. Thames Valley District School Board,
(2012) 221 L.A.C. (4th) to be directly on point. The period between the alleged misconduct and an
employer becoming aware, or reasonably could become aware, of the misconduct is not considered in
determining whether there has been any delay justifying limiting an employer’s ability to respond to the
alleged misconduct by way of discipline. To do so, as she noted, would be “to grant immunity just
because the events happened years ago and the employer was in no position to know”. There is no legal
basis for such an approach.
[17] Most of the cases cited by the Union are of little assistance, as they address delay in a different
context. In most of those cases, the issue was whether the arbitrator should extend the time limit where
the grievance was not filed within the expressly defined time limit in the collective agreement, or whether
the arbitrator should limit a grievor’s ability to rely upon allegations of events years prior to the filing of a
grievance. The Union acknowledged the specific issues in those cases were different from that before
me, but suggested the analytical approach about the impact of delay, and the notion of fairness, should
be applied to the present case. In fact, the commentary in those cases about delay and its impact is only
of relevance to the present case to the extent they identify an obligation on a party to act in timely fashion
with respect to information in its possession, failing which its legal position at arbitration may be impacted.
There is nothing in those cases which suggests that a party’s legal position will be limited on the basis of
information they did not know about.
[18] There were only two cases cited by the Union which addressed the impact of delay on an
employer’s ability to discipline an employee, namely A.B.G.W.I.U v. AFG Industries Ltd., (1998) 75 L.A.C.
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(4th) 336 (Herlich) and OPSEU and Ontario (Ministry of the Solicitor General)(Frater), 2020 CarswellOnt
1226 (GSB). Again, while those cases underscore the obligation of an employer to act in a reasonably
expeditious manner in imposing discipline, they do not suggest that the period during which an employer
is unaware of alleged misconduct should be a factor in determining whether the employer had fulfilled
this obligation.
[19] With respect to the suggestion that the time limit in the HDDP should apply to the College’s ability
to impose discipline for misconduct that is harassment-related, I observe the policy makes clear that it is
just one avenue that may be used to address the issue of harassment:
5.5 Parallel Processes
It is recognized that complaints may be pursued under the Ontario Human Rights Code
directly with the Ontario Human Rights Commission or by way of a grievance procedure
outlined under their collective agreement.
[20] In other words, the time limit referenced in the policy is only with respect to the complaint process
under the policy. However, the policy expressly does not limit the right to pursue harassment-related
issues through other processes. Moreover, there is nothing in the policy upon which it could be concluded
that the policy has the intention or effect of limiting the College’s ability to the exercise its express
collective agreement right to discipline employees, subject, of course, to discharging its legal onus of
establishing just cause.
[21] As for the fact that there has been significant passage of time since some of the alleged events,
as noted by Arbitrator Cummings, the impact of that may have to be factored into my assessment of the
merits of the case. That is not, however, a basis to conclude the College may not raise those allegations
in support of its case.
[22] The Union’s motion to exclude evidence of any allegations prior to February 2016 is dismissed.
Exclusion of the investigation Report
[23] The Union acknowledges the investigation report would not be admitted as proof of the factual
conclusions reached therein. The Union also acknowledges there is no suggestion that I am bound by
the investigator’s findings.
[24] However, the Union submits the report should be excluded because it is hearsay. The Union
submits that in order to submit it, the College would have to call the investigator as a witness. That, the
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Union submits, would be a waste of time as I will ultimately be determining the factual issues address in
the report. As such, the Union submits the report itself is of little probative value.
[25] The Union relies on British Columbia Institute of Technology v. B.C.G.E.U, (1995) 47 L.A.C. (4th)
99 (Blasina) where an investigation report was not admitted. The arbitrator noted the report did not
constitute evidence of the allegations against the grievors, and found that it would be prejudicial because
of the “simple suspicion it would necessarily create. One would wonder whether my later determinations
of fact were somehow influenced by a non-probative document expressing opinions on exactly what I
have to decide”.
[26] I respectfully disagree. The report is part of the investigation process the College undertook. As
such, it is relevant to the issue of why the College decided to take disciplinary action – a fact noted in
Saskatoon (City) v. CUPE, Local 47, 2011 CarswellSask 545 (Hood), another case cited by the Union.
The fact that the College contracted a third-party to perform part of this work does not change its
relevance. The notion that it is prejudicial because it would create a “suspicion” that I was influenced by
the investigator’s conclusions on matters that are for me to determine fails to recognize the labour
relations context at the core of my role as an arbitrator. In a discharge case, it is typical that evidence is
admitted, oral and documentary, about how and why the employer concluded the employee engaged in
misconduct, as well as how and why the employer concluded that such misconduct warranted discharge.
In other words, an arbitrator is always faced with the evidence that someone else concluded the employee
engaged in misconduct. That is not a barrier to my assessing the relevant evidence independently, and
no reasonably informed person would think otherwise.
[27] As for the Union’s submissions that admission of the report would be prejudicial to the Grievor
because it was made in a process that was not an arbitration, with no ability for the Grievor to question
the complainant or review the notes of the investigator, I note this objection fails to recognize the report
is not being admitted as proof of the factual conclusions therein. The College must still present evidence
and meet the legal burden of proving the Grievor engaged in the alleged misconduct, and the Union and
Grievor will have the opportunity to answer that evidence.
[28] As for the objection that it is hearsay, the College has indicated it will call as witnesses the
investigator and the persons with whom the investigator spoke. In addition, the report speaks to a number
of different elements which are not hearsay, including the investigation undertaken and prior statements
made by all the individuals interviewed. To the extent any portion of it may be hearsay I exercise my
arbitral discretion under section 14(12) of the Colleges Collective Bargaining Act (the “Act”) to admit it in
its entirety. The Union is free to make arguments with respect to the weight to be given to any aspect of
the report in its closing submissions.
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[29] The Union’s motion to exclude admission of the investigation report is dismissed.
Production of Data
[30] The Union seeks an order that the College submit any mobile phones belonging to B and M for a
forensic analysis, in order to obtain all data related to text messages between B and the Grievor’s mobile
phone, and M and the Grievor’s mobile phone.
[31] The mobile phones of B and M are not in the care and control of the College. As such, the College
simply cannot produce them.
[32] What the Union really seeks is an order compelling B and M to produce the phones. I do not have
the authority to issue a production order against B or M. My authority under section 14(12)(b) of the Act
is limited to ordering “any party” to produce documents. While the Union asserted that word “party”
should be interpreted to mean anyone, when section 14 is read in its entirety it is clear that “party” means
a legal party to the arbitration. As this arbitration has been convened pursuant to the collective agreement
between the College and the Union, they are the only legal parties to this arbitration. B and M are not
parties to this proceeding.
[33] The Union noted that I do have authority, under section 14(12)(d), to summons a witness to testify
and compel them to bring to the arbitration any relevant documents. That is not what I have been asked
to do; rather I am being asked to issue a production order. The Union submits that it would be more
efficient that I order B and M to turn over the data on their mobile phones in advance of their attendance
as witnesses, since the Union will ultimately request that they do so when they testify. However, the
issue of efficiency is irrelevant as section 14(12)(d) does not provide me with the authority to order them
to produce it in advance.
[34] The Union’s motion for an order for production is dismissed.
Disposition
[35] All of the Union’s motions are dismissed.
Dated this 11th day of February, 2021.
“Jasbir Parmar”
___________________
JASBIR PARMAR