HomeMy WebLinkAbout2017-2936.Bremner.21-03-02 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# 2017-2936; 2018-2950
UNION# 2017-0205-0034; 2018-0205-0044
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bremner) Union
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE Gail Misra Arbitrator
FOR THE UNION Lauren Tarasuk
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 23, 2021
- 2 -
Decision
[1] This is the fourth decision issued in this case. It addresses the Employer’s
request that the two remaining grievances be dismissed, and the Union’s request
that the matters be adjourned sine die, along with the deadline for producing
documents and any other particulars to also be extended indefinitely.
[2] Grievance No. 2017-0205-0034, dated June 1, 2017, alleges that the Employer
failed to support the grievor’s return to work despite her ongoing efforts to make
such arrangements beginning on October 31, 2016. Grievance No. 2018-0205-
0044, dated November 27, 2018, alleges that the Employer has unjustly and
without just cause terminated the grievor’s employment.
HISTORY OF THE LITIGATION
[3] The first day of hearing was held in these matters on June 11, 2019, in Hamilton,
Ontario. Rather than following the Board’s normal process of holding hearings at
its office in Toronto, this arbitration was held in Hamilton to accommodate the
grievor’s health needs. While the parties had agreed to try to mediate resolution
of the three grievances that were then before me, mediation efforts were not
successful and the grievor indicated she wanted to proceed to arbitration. As
such, the parties requested that three dates be set for hearing, and in the
presence of the grievor, it was agreed that those dates would be January 9,
March 18, and May 20, 2020.
[4] At the hearing held on January 9, 2020 in Hamilton, it became clear that counsel
for the Union had only been able to provide to counsel for the Employer
particulars about all the grievances on the afternoon before the hearing date.
This despite that the grievor had known of the hearing date since June 11, 2019,
a period of almost exactly seven months. Since the Employer was taken by
surprise regarding some of the new allegations in the particulars, and had not
had an opportunity to properly review any of the particulars in advance of the
hearing, I ruled that while I would read them, I would not rely on them for more
than background at that juncture. I also advised the parties, in the presence of
the grievor, that in the future if particulars or documents were not provided in a
timely manner, I may not permit them to be relied upon at all.
[5] On January 9, 2020 the Employer made a motion to have the June 26, 2017
Grievance No. 2017-0205-0035 dismissed due to the untimeliness of the filing of
the grievance. At the end of that day, following the argument regarding the
grievance, the parties agreed that they would deal with all production issues
among themselves by January 23, 2020, and that if they had any outstanding
issues, they would contact me for a conference call.
[6] A decision upholding the Employer’s motion to dismiss Grievance No. 2017-
0205-0035 issued on January 17, 2020. In that decision I also directed that, in
the ongoing litigation of the remaining two grievances, the Union could not rely
- 3 -
on any particulars that it had provided to the Employer in support of the
dismissed grievance or of the timeliness motion as it related to that grievance.
[7] On January 27, 2020 counsel for the Union made a lengthy request for
particulars regarding the reasons for the termination, and sought full production
of all relevant documents concerning the failure to accommodate/return to work
grievance. It wanted these materials provided to it by February 14, 2020. The
Union also asserted that the Employer should proceed first in the arbitration, and
in that regard should advise the Union of its position by February 10, 2020.
[8] On February 27, 2020 counsel for the Employer provided to counsel for the
Union extensive particulars, and indicated it was prepared to proceed first.
However, before doing so, it required full disclosure from the Union with respect
to the accommodation/return to work grievance, and outlined specifically that it
was seeking production of the grievor’s medical records and any information
regarding the grievor’s employment activities between 2007 and 2018. It asked
for the production to be made by March 11, 2020.
[9] On March 5, 2020 a conference call was convened at the Employer’s behest to
address its motion to have certain paragraphs struck from the Union’s January 8,
2020 letter of particulars, or in the alternative, to require the Union to provide
further particulars and documents in respect of certain paragraphs of the
particulars. The Union also wanted to address the breadth of the Employer’s
request for production of documents relating to the grievor’s work and medical
records from 2007 to November 8, 2018, the date of termination.
[10] It is noteworthy that although the grievor had been aware of what was to be dealt
with at the March hearing, and despite my admonition at the January 9, 2020
hearing that I may not permit documents or particulars to be relied upon if they
were not provided to the Employer in a timely manner in advance of the next
hearing date, there had been no production of documents to the Employer in the
two months since the January hearing date, or indeed in the nine months since
the June 2019 hearing.
[11] Since the next hearing date was scheduled for March 18, 2020, I issued my
decision on the motion later in the day on March 5, 2020. Some paragraphs of
the Union’s particulars were struck, and for others I either denied the Employer’s
request to strike a paragraph, or reserved until the Union had provided the
Employer with all documents and any further particulars it may have relating to
that paragraph. I also declined to grant the Employer’s requests regarding
production of documents from 2007 on, and instead directed the Union to provide
the requested documents from 2014 to the date of the grievor’s termination in
November 2018 in respect of the grievor’s work, and from 2013 to the date of
termination in respect of the grievor’s medical records.
[12] Of significance is that in that decision I ordered the Union to provide all relevant
production and any further particulars to the Employer by March 12, 2020. I
- 4 -
indicated that “in the absence of agreement, reasonable excuse, or extenuating
circumstances, the Union may be precluded from relying on such documents and
particulars” (para. 10 of the March 5, 2020 decision).
[13] On March 13, 2020 another conference call was held with counsel, this time at
the behest of the Union. The Union sought adjournment of the March 18, 2020
hearing date because the grievor had provided a medical note indicating that she
could not attend at the hearing. The note, dated March 9, 2020, indicated that
the grievor was experiencing frequent panic attacks and was unable to attend the
hearing on March 18th. As well, the note indicated that Ms. Bremner had been
started on medications to attempt to assist with this medical problem. The note
was signed by Dr. A. DeRubeis.
[14] While the Employer was prepared to consent to the adjournment, it brought to my
attention that the March 12, 2020 deadline had passed, but that counsel for the
Union had been unable to get the grievor to provide her with the requisite
documents or further particulars. The Union sought a deadline extension to May
1, 2020.
[15] By a decision dated March 16, 2020 I granted the adjournment of the March 18,
2020 hearing date, and also granted the Union a further extension of the date by
which it had to produce to the Employer all documents or further particulars. The
new deadline was May 1, 2020, as the Union had requested. The decision again
contained the admonition that the Union may be precluded from relying on
documents and/or particulars if they were not provided to the Employer by May 1,
2020 (para. 3 of the March 16, 2020 decision). At para. 4 of the decision the
grievor was advised to make her best efforts to assist the Union in complying
with the deadline so that the hearing of her grievances could commence on the
next day of hearing.
[16] On April 30, 2020, when a further approximately six weeks had elapsed and the
next deadline of May 1st was looming, the Union requested adjournment of the
May 20, 2020 hearing date as the grievor had provided a medical note stating
that she was unable to attend. As well, the Union requested an extension of the
deadline to provide its document production and any further particulars “until the
grievor is medically able to participate”. The medical note, which was undated
and unsigned, stated that “Katherine was assessed via telemedicine on April 29,
2020. She is unable to attend appointments on May 1st and May 20th for medical
reasons, and is receiving care for her condition”. Dr. Stephanie Wu is listed as
the medical practitioner who allegedly wrote the note, but it is not signed by
anyone.
[17] On May 4, 2020 the Employer agreed to the Union’s adjournment request and to
the extension of the deadline for the filing of the Union’s documents and further
particulars.
- 5 -
[18] Since by that juncture two hearing dates had been lost due to the grievor’s
adjournment requests, on June 19, 2020 the Board sent the parties a Notice of
Proceeding outlining the three new dates that had been set for hearing: January
29, February 23 and March 18, 2021.
[19] On November 27, 2020 the counsel for the Union sought a third adjournment,
this time for January 29, 2021, and also asked for a continued extension to
provide additional particulars and production of documents. On December 8,
2020 counsel for the Employer requested the reason for the adjournment
request, and also asked when the Union expected to provide the particulars and
documents. Counsel for the Union advised the Employer on December 8th that
the reason was the same as it had been earlier, along with the added difficulty of
obtaining medical appointments due to COVID-related slowdowns. She also
advised that the “Union intends to provide particulars and production as soon as
the grievor is able to provide them to the Union”. Finally, she indicated that the
Union hoped to be in a position to submit the particulars and production so that
the February 23, 2021 hearing could proceed.
[20] On this occasion, no medical note was provided and the grievor simply
communicated the reasons she wanted the adjournment to Union counsel.
[21] The Employer agreed to the adjournment request, on the condition that it be
provided with full particulars and production by January 22, 2021 in order to allow
it to prepare for the February hearing date. Counsel for the Employer advised
the Union’s counsel that should full production of the documents and particulars
not be received by that date, the Employer intended to bring a motion to dismiss
the grievances. He also advised that if this deadline was not met, the Employer
requested an explanation along with supporting documentation as to why the
grievor had been unable to do so.
[22] Thus, the January 29, 2021 hearing date was adjourned.
[23] On December 17, 2020 counsel for the Union asked counsel for the Employer for
an adjournment sine die, and an indefinite extension for the provision of
particulars and production. On January 12, 2021 the Employer advised the
Union that it would not agree to adjourn this hearing sine die nor would it agree to
an indefinite extension for the provision of production and particulars. The Union
was also advised that on February 23, 2021 the Employer would be bringing a
motion to dismiss the grievances if the requested production and particulars were
not provided before that.
[24] Counsel for the Union was not able to produce to the Employer the grievor’s
documents or any further particulars by either January 22nd or the February date
of hearing.
[25] Thus, finally on February 23, 2021 a hearing was held via videoconference, more
than one year after the last day of hearing. The grievor did not attend. A medical
- 6 -
note dated January 16, 2021, more than one month before the hearing date,
states that the grievor was seen by “community psychiatry” in August 2020, and
was referred to another doctor for counselling, where she would be seen on
January 22, 2021. Most tellingly the note states “She [the grievor] states she is
unable to participate in grievance proceeding due to personal stress”, and that
“we will update you when enough progress has been made for her to participate
in these proceedings”. This note was signed by Dr. Ninh Tran.
[26] Despite the fact that the grievor was to have been seen by another medical
practitioner on January 22, 2021, no further medical was provided after that
appointment.
[27] The grievor was dismissed from her employment on November 6, 2018 for
excessive non-culpable absenteeism. While there has been no adjudication yet
of the termination grievance, in the dismissal letter the Employer outlined that
Ms. Bremner had been absent from work for medical reasons for almost all the
time between 2007 and the date of her termination in 2018. The Employer stated
that during that 11 year period Ms. Bremner had worked on a total of 68
occasions. In particular, it noted her attendance as follows:
2007 – worked 7 days
2008 – worked 17 days
2009 – worked 1.5 days
2010 – 2012 – did not work
2013 – 2014 – worked a total of 43 days
2015 – 2016 – did not work
2017 – worked 1 day
2018 – by November had not worked at all
[28] While the Union argues that this absenteeism record has not yet been proven, it
is also clear from its January 2020 statement of particulars that the grievor has
not claimed that there were any errors in the Employer’s records in this regard.
Rather, the grievor claims that the Employer failed to accommodate her, and that
was the reason she could not work much. As such, the Union asserts that the
termination and the accommodation grievances are related. The Union’s case
turns on the medical evidence it intends to rely upon for both outstanding
grievances.
[29] As outlined above, the grievor has provided medical notes from the Locke Street
Medical Clinic in order to support most of her requests for the adjournment of the
2020 and January 2021 hearing dates. On each occasion, a different doctor has
provided the medical note since this is what used to be a “walk-in clinic” and is
now, during COVID-19, operating by appointments that are conducted in a
telemedicine model.
[30] When I queried counsel for the Union whether the grievor had been asked to
provide counsel with medical consents to allow her to gather the necessary
- 7 -
medical documents to meet the production orders since the grievor seemed
unable to do so, she indicated that she had, but that the grievor refuses to
provide the required medical consents. As such, and while the grievor will not
herself provide the medical records that she wants to rely on in making her case,
she also will not permit counsel for the Union to request the medical files from the
grievor’s medical practitioners.
[31] It is in this context that the Employer makes the motion to dismiss the two
remaining grievances and the Union requests that the grievances be adjourned
sine die, and that the deadline for the production of documents and particulars be
extended indefinitely.
THE MOTIONS
[32] While the Union seeks an adjournment sine die, the Employer made the motion
to dismiss both remaining grievances arguing that there is no reasonable basis
for further adjournments in this case. It notes that despite the Board having set a
number of strict deadlines requiring the grievor to produce all relevant documents
and any further particulars, the grievor has repeatedly failed to comply. At this
juncture, the Employer argues that there is no reasonable prospect that the
grievor will be ready to proceed on the March 18, 2021 hearing date, or any
further hearing dates that may be set.
[33] Both counsel for the Employer and for the Union outlined the history of this
litigation. It is unnecessary to outline those submissions as I have already
outlined the history of this case.
[34] It is worth highlighting however that the Employer points to the reason for Ms.
Bremner’s termination from employment for frustration of contract as she simply
did not attend at work much in the 11 years prior to the termination. That,
according to the Employer, was despite her doctor at various times indicating she
should be able to return to work, but she would not do so, even with
accommodations in place. While the Employer concedes it has not had the
opportunity to lead its evidence in this regard, that would have been the
substance of its case had this arbitration commenced. Furthermore, it states that
these underlying facts bear on the request for the adjournment sine die. It also
points out that in the grievor’s first version of her particulars, submitted in early
January 2020, there was no substantial dispute about the level of the grievor’s
attendance in the workplace.
[35] The Employer argues that each time that the grievor has sought an adjournment
for medical reasons, she has provided the most vague of medical notes, from a
medical clinic, and from different doctors each time. As such, there is no
evidence of any continuity in treatment; the medicals are insufficiently detailed;
they contain no prognosis; and there is therefore no basis for an expectation that
Ms. Bremner will be able to attend a hearing in the foreseeable future.
- 8 -
[36] According to the Employer it is suffering real prejudice as a result of the many
adjournments already granted, which will only be amplified should the Union’s
current request that the matters be adjourned indefinitely be granted. In
particular, the Employer notes that it has already been 14 years since the grievor
last worked regularly in 2007, so the Employer would be required to lead
evidence from that time forward at whatever juncture the grievor is finally able to
provide production or participate in a hearing. The Employer named a number of
individuals who had had dealings with the grievor who are no longer working for
the Ontario Public Service. As time is progressing, people involved are leaving
or retiring from the public service, and their evidence is lost to the Employer. As
well, given the lengthy period of time about which evidence will have to be called,
memories are fading. Finally, it is increasingly difficult to locate email
correspondence from even four or five years ago, especially as those involved
have left their employment.
[37] Based on the medical evidence before the Board, the history of this file, and the
extreme prejudice to the Employer of the lengthy delay in this litigation, the
Employer asserts that there is no basis for an adjournment sine die, and instead
requests that these grievances be dismissed.
[38] The Employer relies on the following caselaw in support of its arguments:
OPSEU (Grievor) and Ministry of Transportation, 2015 CANLII 89916 (ON GSB)
(F. Briggs); OPSEU (Sitek) and Ministry of Community Safety and Correctional
Services, 2013 CANLII 84311 (ON GSB) (R. Devins); OPSEU (Toman) and
Ministry of Government and Consumer Services, 2019 CANLII 126488 (ON
GSB) (R. Devins); OPSEU (Amurao) and Ministry of Community and Social
Services, 2012 CANLII 34672 (ON GSB) (J. Carrier); OPSEU (Gilchrist-Duval)
and Ministry of Labour, 2015 CANLII 67990 (ON GSB) (N. Dissanayake);
OPSEU (Savdie) and Ministry of Government Services (August 6, 2013
Unreported decision, GSB File No. 2011-3785, D. Harris); OPSEU (Hussain) and
Ministry of Community and Social Services, 2012 CANLII 49863 (ON GSB)(J.
Carrier); OPSEU (Cupskey) and Liquor Control Board of Ontario, 2020 CANLII
32550 (ON GSB) (J. Parmar); Adrianna Biondic and Intact Financial Corporation
et al, 2017 HRTO 80 (CANLII) (M. Doyle).
[39] The Union seeks an adjournment sine die, and an indefinite extension for the
provision of production and particulars. It opposes the Employer’s motion to
dismiss the two grievances.
[40] The Union argues that the grievor has not failed entirely to participate in this
proceeding as she did attend at the mediation and for the first preliminary motion
in January 2020.
[41] With respect to the medical notes that the grievor has provided, given the serious
nature of the grievances, the Union asserts that the Board should not read too
much into the fact that they have been provided by different doctors. It argues
that the grievor should be given a further opportunity to provide clarity.
- 9 -
[42] The Union concedes that while the grievor has advised that some of her medical
appointments have been rescheduled, including the January 2021 date when she
was to see a doctor regarding counselling, no evidence has been provided to that
effect.
[43] The Union asserts that since the COVID-19 pandemic arose in March 2020,
there has been disruption in medical appointments, so that additional time should
be granted to allow the grievor to collect her documents and to participate in this
hearing. The Union argues that the medical notes that the grievor has provided
show that there is a human rights issue regarding disability in this case. It
asserts that the grievor will be substantially prejudiced if the grievances are
dismissed.
[44] The Union relied on the following caselaw in support of its arguments: Hamilton
(City) and ATU, Local 107 (Jovanovic), 2008 CarswellOnt 10456 (P. Chauvin),
Inco Ltd. and USWA, Local 6500(Bujold), 2003 CarswellOnt 10089 (G.
Luborsky), Ontario (MCSCS) and OPSEU (Heathcote), 2003 CarswellOnt 14107
(D. Harris).
[45] In its reply submissions the Employer notes that the caselaw the Union relies on
has vastly different facts than are before me in this case.
[46] While the Employer accepts that the COVID-19 situation was an issue that may
have underlain the first adjournment request, it states there is no evidence
thereafter that it has resulted in a delay in the grievor getting treatment. Indeed,
it points out that the grievor has in fact been assessed through telemedicine, as
one of the medical notes states, and there is no evidence to support a finding
that COVID-19 has delayed her ability to seek treatment.
[47] The Employer argues against setting another deadline by which production and
any further particulars must be provided, as even if they were, based on the
January 2021 medical note, there is no foreseeable date by which the grievor will
be able to participate in litigation of the two grievances. The Employer points
again to the fact that the grievor only attended at 68 days of work in eleven years
to show that the sheer magnitude of this grievor’s failure to attend at work should
give the Board reason to pause and to consider the implications of a further
indefinite adjournment.
ANALYSIS AND DECISION
[48] In reaching a decision I have reviewed the parties’ submissions, the documents
before me, and the jurisprudence that the parties relied upon.
[49] In the Ministry of Transportation decision, cited above, Arbitrator Briggs noted
that in considering whether to grant a request for an adjournment sine die, or to
grant an employer’s request to dismiss a grievance without hearing the merits,
the determination must be based on the particular facts in each case (para. 36).
- 10 -
While she recognized that there is reluctance on the part of arbitrators to dismiss
matters of significance, including termination grievances, labour relations
disputes cannot be held in abeyance for extended periods of time without good
reason (para. 37). The arbitrator outlined the test to be applied in cases where a
union is seeking an adjournment sine die as follows:
40. A review of the jurisprudence provided reveals that there must be demonstrable
and sufficient reasons for granting of requests for an adjournment sine die. In Re
Toronto District School Board (supra), Arbitrator Steinberg refers to a decision of
Arbitrator Stout in Re Sunnybrook Health Sciences Centre and ONA, 2010 CanLII
62291, wherein the factors to take into account in determining whether to grant an
adjournment are listed. Those factors were said to be:
• The nature of the proceeding
• The timing of the request
• The reason for the request
• The length of the requested adjournment
• The prejudicial effect of granting or not granting the request.
[50] Considering first the nature of the grievances before me, one is an allegation of
the employer failing to accommodate the grievor’s restrictions, and the other
relates to the grievor’s termination from employment due to frustration of
contract, which the grievor contests. There is no doubt that these are matters of
significance to the grievor.
[51] Regarding the timing of the request to adjourn these proceedings indefinitely, the
Union is making this request after it has already had three adjournment requests
granted for dates in March and May 2020, and January 2021. Although the last
date of hearing to deal with preliminary issues was held in January 2020, and
despite repeated orders from the Board for the grievor and Union to provide full
production and any further particulars by certain deadlines over the course of the
last year, to date the grievor has not complied with a single order or even any
aspect of the orders.
[52] It is puzzling that while the grievor purported to want to have this case proceed,
she has refused to comply with the directions of this Board for one year. The
Union has provided the grievor with copies of every decision issued.
Furthermore, I have every confidence that counsel for the Union has done her
best to impress upon the grievor the need to comply with the orders, and to
provide all relevant documents including the most important in this case, the
medical documents. The grievor has failed to do so. As well, and despite
counsel for the Union’s efforts to get the grievor’s consent so that counsel may
collect the medical documents herself, the grievor has also thwarted those efforts
by refusing to provide her consent.
[53] The reason for the request to adjourn sine die is the latest medical note provided
by the grievor to the Union in January 2021. That January 16, 2021 note states
that the grievor was seen by “community psychiatry” in August 2020, and was to
be seen by another doctor for counselling on January 22, 2021. As already
- 11 -
indicated, the note recounts that the grievor says she is unable to participate in
grievance proceeding due to personal stress, and that the Locke Street Medical
Clinic will advise “when enough progress has been made for her to participate in
these proceedings”. A medical note that states that the grievor told the doctor
that she is unable to participate in the grievance proceeding due to personal
stress is inherently unreliable. That is not the opinion of the physician, and may
only be viewed as a self-serving statement by the grievor. It is without medical
foundation. To the extent that the note stated that the grievor was to attend at
counselling on January 22, 2021, counsel for the Union advised the Board that
the grievor says that appointment was re-scheduled. There is no evidence to
support the grievor’s assertion in that regard.
[54] It may be that the grievor is suffering from some medical issue that is causing her
to be unable to comply with the Board’s directions. However, the medical
evidence she has supplied on each occasion has been woefully inadequate, both
in explaining her situation, what her treatment plan is, whether she has been
complying with that treatment plan, and what the prognosis is. It would appear
from the medical notes provided to date that the grievor is not actually receiving
any continuing care from a particular physician as the three notes provided have
each come from a different medical practitioner at a walk-in (now telemedicine)
clinic. Furthermore, since the grievor will not provide consent for counsel for the
Union to request a more useful medical report, that too is not available to this
Board.
[55] The length of the requested adjournment is another consideration. The Union is
seeking an indefinite adjournment of both the hearing and of the order to produce
medical and other relevant documentation, or to provide any further particulars in
response to the January 2020 decision. Based on the largely inadequate
January 2021 medical note, it appears that the Locke Street Medical Clinic would
advise us “when enough progress has been made” for the grievor to participate
in the arbitration proceedings. However, there is no medical evidence to support
that the grievor is in any form of treatment that would suggest that there should
be some foreseeable date by which she may be able to participate in this
grievance arbitration.
[56] The grievor began to supply the vague medical notes in March 2020. However, it
is noteworthy that prior to that, between June 2019 (when she knew what the
next hearing dates were) and March 2020, there is no evidence about why the
grievor was unable to collect the relevant medical or other documents that would
have been necessary to the proper litigation of her case. She had put her
medical condition in issue by filing the failure to accommodate grievance, but she
would not provide medical documentation to her counsel to support her case.
[57] The Employer has provided details of the prejudice it is already suffering as a
result of the grievor’s actions and the adjournment of hearing dates for one year.
Three of its potential witnesses are no longer with the public service. The
grievor’s allegations go back many years, and as noted earlier, she has not been
- 12 -
in attendance at work much since 2007. She claims that is due to the Employer’s
failure to accommodate her since at least 2013 or 2014. As such, the Employer
is required to have witnesses recall what may have occurred seven or more
years ago. The Employer is also having difficulties in finding emails from a
number of years ago.
[58] There is little doubt that the significant passage of time does not assist parties in
marshalling evidence as witnesses’ memories fade; documents that may have
been available at some point no longer are; and people who are needed as
witnesses leave the workplace, either through retirement or for other reasons.
Where, as in this instance, the grievor has what appears to be a remarkably high
level of absence from her workplace in the last eleven years of her employment,
the evidentiary issues are already considerable without an indefinite adjournment
to some indefinable point in the future.
[59] I have considered the jurisprudence relied upon by the Union, but have not found
most of it helpful as the facts in those cases were substantially different than
what is before me. In the City of Hamilton case, cited above, while the grievor
had a history of seeking adjournments or not appearing at hearings, he had at
least provided a full medical report from a psychiatrist on one occasion (at para.
5) and three documents purporting to substantiate his current request for an
adjournment (paras. 7 and 14). The decision addressed the union’s adjournment
sine die request, which included that the matter should only resume when the
grievor was fit to attend the hearing. The employer objected and sought to have
the grievance dismissed. Ultimately, the arbitrator granted the adjournment sine
die on various conditions.
[60] In the OPSEU (Heathcote) decision, cited above, the arbitrator gave very limited
reasons for his decision. However, it is apparent that there had only been one
adjournment about seven months earlier, which had been granted because the
grievor was unable due to his illness to assist in the preparation of his case or to
participate in his hearing. As such, the arbitrator granted an adjournment for six
months in order to give the grievor an opportunity to participate in the litigation of
his grievance. In the case before me, there have already been adjournments for
one year.
[61] The Inco decision, cited above, is in some respects the best case provided by the
Union, but even in that instance, the arbitrator had more cogent medical
evidence before him. In that case the employer sought dismissal of a grievance
because of the grievor’s refusal to authorize the release of his medical records
relevant to the issue, while the union sought an adjournment sine die. In the
course of the grievor’s examination in chief on a previous day of hearing, a
medical report from a doctor and a consultation note from the grievor’s
psychotherapist had been introduced in evidence. At that time the arbitrator, at
the employer’s request, had made an order for the grievor to produce copies of
all medical records that touched on the grievor’s alleged mental distress, which
were in the possession of the employer’s medical department. However, before
- 13 -
the next day of hearing many months later it became evident that despite the
union’s efforts, the grievor would not consent to the release of the medical
documents from either the employer’s medical files or from his psychotherapist.
At the hearing the grievor agreed to sign the consent form, but then withdrew his
consent the following day.
[62] The arbitrator in that case had the benefit of some medical evidence as he had
already received a full medical report from a doctor and had seen consultation
notes from a psychotherapist. He had also himself witnessed the erratic
behaviour of the grievor at the hearing. It was in that context that he granted the
adjournment sine die, and in doing so, imposed stringent conditions before the
matter could be brought back for hearing. In this case I have no medical report
before me, nor anything to establish that the grievor is suffering from a mental or
any other illness.
[63] In the OPSEU (Savdie) decision, cited above, the arbitrator dismissed a
grievance because the grievor had failed to diligently assist the union in the
advancement of his grievance. In that case the grievor did not attend two
hearing dates, had not advised the union that he was not going to attend, and
failed to produce documents in support of his allegations. The grievor claimed he
had a medical reason for his non-attendance, but did not provide any medical
proof to support his claim. The arbitrator found, at para. 11 of the decision, that
the grievor had demonstrated a complete lack of concern for the inconvenience
and expense to which he was putting the parties and the Board, as well as a total
lack of respect of the Board and its proceedings. He further noted that where an
individual claims that there is a medical reason to justify their failure to meet their
obligations, “more is required than a cursory statement”.
[64] Biondic, cited above, is a decision of the Human Rights Tribunal of Ontario. In
that case a complaint filed in 2013 was finally dismissed in 2017 after the
complainant repeatedly cancelled mediation and hearing dates, despite the
Tribunal’s attempts to accommodate her needs. She also failed to provide
witness statements or disclosure of documents when required to do so. Her
doctor provided a letter indicating that she could not meet deadlines and required
additional time. In addition, the doctor also testified about the complainant’s
situation at a half day of hearing. The employer agreed to numerous
adjournments, as well as a five month extension to allow the complainant to meet
her disclosure obligations, but the complainant continued to defy the Tribunal’s
directions. She generally claimed health reasons for her inability to meet
deadlines, file submissions, or when seeking adjournments. Ultimately, the
Tribunal dismissed the complaint, noting that lengthy delay can constitute an
abuse of process in the administration of justice. The Tribunal noted that in
determining whether it would be inappropriate for a proceeding to continue there
does not have to be a finding that a party’s conduct is due to culpable factors if
the effect of the complainant’s behaviour was to cause a tribunal to be unable to
deal with matters in a fair, just, and expeditious manner. The focus must be on
the impact of that conduct on the proceeding.
- 14 -
[65] What the HRTO decision makes explicit is that even in the face of medical
evidence that an individual may be suffering from a disability, that cannot
necessarily be the reason why an adjudicator permits lengthy or indefinite delays
in litigation. All parties to litigation have a right to a fair, just and expeditious
hearing.
[66] Ms. Bremner’s continued refusal to assist her counsel in complying with the
Board’s directions is inexplicable. In particular, in the absence of medical
evidence to support a finding that the grievor is, and has since June 2019, been
suffering from a disability that prevents her from being able to produce the
required documents, or attend at a hearing, nor any medical evidence regarding
what further accommodation may be required beyond what has already been
provided, I am of the view that there is no reasonable expectation that granting
an indefinite adjournment would bring the grievor to a future day of hearing.
[67] At this juncture, in weighing the interests of the grievor against those of the
Employer, I am satisfied that the scale tips in favour of the Employer. It has and
would continue to be prejudiced by the delays caused by the grievor’s refusal to
provide or facilitate production and her apparent inability to attend at any hearing
dates for the foreseeable future. It is reasonable for the Employer to expect
some finality to litigation processes, but based on the Union’s evidence to date,
none is reasonably foreseeable here.
[68] For all of the reasons outlined above, I decline the Union’s requests for an
adjournment sine die and indefinite extension for the provision of documents and
further particulars, and I grant the Employer motion. As such, the two grievances
are hereby dismissed.
Dated at Toronto, Ontario this 2nd day of March, 2021.
“Gail Misra”
Gail Misra, Arbitrator