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HomeMy WebLinkAbout2019-3028.McCallum.21-03-30 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# 2019-3028; 2020-1924 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (McCallum) Association - and – The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE ASSOCIATION Christine Davies Goldblatt Partners LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 9, 2021 - 2 - Decision [1] There are two grievances 1 before me. The Complainant stopped working for reasons of disability on April 13, 2017. The first grievance raises several issues, including delays on the part of the Employer in providing the Complainant with the forms she required in order to apply for Long Term Income Protection (“LTIP”) from July, 2017 until September or October, 2017. The grievance was filed on January 28, 2020 and revised on February 12, 2020. The Complainant returned to work in April, 2020. The second grievance relates to issues arising since her return to work. It was filed on October 5, 2020 and revised on October 23, 2020. [2] The Association provided particulars in response to a request from the Employer. The Employer gave notice that it intended to bring four preliminary objections. Two of those objections relate to issues of remedy. The parties agreed to bifurcate issues of remedy and on that basis the Employer agreed to defer its objections related to remedy. This decision determines the Employer’s other two preliminary objections. Timeliness of Dispute With Respect to Delay in Providing LTIP Forms [3] The Employer seeks to have the allegations concerning its failure to provide the LTIP forms dismissed on the basis that they are untimely. Those allegations relate to the time period July, 2017 until January 26, 2018. The grievance in relation to those allegations was filed on January 28, 2020, but since the parties agreed to hold timelines in abeyance as of December 16, 2019, the grievance can be treated as having been filed on that date. [4] For the purpose of the Employer’s preliminary motions, the parties filed an Agreed Statement of Facts. That Statement indicates that it is not to be relied upon for the hearing on the merits. It also provides: The parties are agreed that no adverse inference should be drawn from either party’s failure to call a witness or cross-examine a witness given their agreement [to] proceed by way of agreed facts. [5] Article 15 (3.1) of the collective agreement provides: If the complaint is not resolved to the satisfaction of the employee through the 1 The collective agreement uses the word “dispute” in the way most collective agreements use the word “grievance”: as a noun to describe a complaint which has progressed to a formal stage. In this decision, unless the context demands otherwise, I do not use the word dispute in that sense, but as a verb. - 3 - informal resolution stage, the Association, on behalf of the employee, may submit a dispute in writing to the manager, for transmittal to the designated management representative, 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. [6] There is no dispute that the grievance in this case was filed well outside of the time period provided for in Article 15 (3.1). [7] The parties agree that section 48(16) of the Ontario Labour Relations Act, 1995 applies and gives me the discretion to extend the time lines at any step in the grievance procedure “where satisfied that there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by the extension.” [8] The Employer’s position is that there are no reasonable grounds for an extension and that it would be prejudiced. The Association’s position is that there are reasonable grounds and that the Employer would not be prejudiced. [9] The Employer notes it is incumbent upon the Association to establish reasonable grounds for the extension. The Employer notes six factors which are typically considered by arbitrators in deciding whether or not to extend timelines in the grievance procedure: (i) the reason for delay; (ii) the length of delay; (iii) the nature of the grievance; (iv) whether the delay occurred in initially launching the grievance or at a later stage; (v) whether the grievor is responsible for the delay; and (vi) whether the employer could reasonably have assumed the grievance had been abandoned The Reason for the Delay [10] The major dispute between the parties relates to the reasons for the delay. In support of its position, the Association relies upon a letter dated December 14, 2020 from the Complainant’s family physician, Dr. Tyler Curtis. That note reads: - 4 - This letter is in response to your request for information regarding this patient's delay in filing a dispute regarding delayed provision of LTIP forms in 2017. I can confirm that from April 2017 until December 2019, the patient did have medical diagnoses which would have Impacted their ability to submit the dispute In question. They were under the care of myself and a specialist and were receiving treatment for these conditions during the listed period. Without divulging diagnoses, the patient was experiencing multiple significant mental health symptoms which adversely affected their daily functioning and would have impaired their ability to submit said dispute. Do not hesitate to contact me if you require further information. [11] The Employer argues that Dr. Curtis’ letter does not provide sufficient explanation for the delay for two reasons. First, the Employer notes the Association’s request to Dr. Curtis asked him for the following: 1. Your opinion regrading [sic] whether McCallum had a medical condition or disability that affected her ability to file a dispute with her Employer regarding their delay in providing her with LTIP forms in 2017; and if so: a. a description of McCallum’s symptoms and their severity or impact on her functioning; b. how her medical condition/disability would be expected to interfere with the ability to file a legal dispute with the Employer; c. the time period(s) during which McCallum’s medical condition or disability affected her ability to bring a dispute with the Employer. The Employer characterizes the response provided by Dr. Curtis as cursory, in that it failed to provide a true description of the Complainant’s symptoms, the severity of their impact or how they would interfere with her ability to file the grievance. [12] Second, the Employer argues, the Complainant’s conduct as described in the Agreed Statement of Facts for the period July, 2017 to December, 2019 is inconsistent with Dr. Curtis’ opinion that her ability to file a grievance with respect to the Employer’s failure to provide her with LTIP forms was “impacted” or “impaired” during that period. In January, 2018, the Complainant contacted the Employer by email about the interruption of her benefit coverage, responded to a reply from the Employer and provided information about the change of her address. The Complainant also left a voicemail for a representative of the Employer about her benefit coverage and indicated in an email that she had contacted her assigned caseworker with the benefit carrier three times about her coverage. Each of the Complainant’s responses was sent within a few hours. The Complainant also attended a return to work meeting with the Employer on June 15, 2018. Notes of the meeting show the Complainant actively participated in the meeting and voiced concerns about insufficient involvement of her doctor in the - 5 - development of the plan. The Employer notes that the Complainant did not raise the LTIP issue during this meeting. Commencing in August, 2019, the Complainant had renewed discussions with the Employer about her return to work, this time centred on whether it was the responsibility of the Employer or the insurer to initiate the return to work process. There were several emails and telephone calls or teleconferences involving the Complainant about this over the next several months up to and including December 16, 2019 when the Employer agreed to the Association’s request to hold timelines in abeyance. Despite her ability to engage in these discussions during this August to December, 2019 period, at no point does the Complainant raise the issue of the Employer’s delay in providing her with the LTIP forms. The Employer also notes that while Dr. Curtis’ letter of December 14, 2020 indicates the Complainant’s ability to file a grievance was “impaired” up until December, 2019, Dr. Curtis had provided a letter dated August 28, 2019 which indicated the Complainant was able to return to work, with accommodation, as of October 1, 2019. [13] The Association argues the letter from Dr. Curtis provides a full answer with respect to the delay. It notes that its letter to Dr. Curtis enclosed the particulars which it had provided to the Employer in this case. Dr. Curtis must, therefore, be presumed to have known the basis for the grievance and the events giving rise to it. The parties agreed to proceed on the basis that Dr. Curtis’ letter would be filed on consent and no adverse inference would be drawn from his failure to testify. Dr. Curtis’ opinion that the Complainant’s ability to file the grievance is clear and there is no medical evidence to the contrary. [14] The Association argues the fact the Complainant was able to communicate with the Employer in January, 2018 about her benefit coverage is not necessarily inconsistent with the inability to file a grievance with respect to the failure to provide her with LTIP forms in or about July, 2017. The fact that the Complainant was unable to return to work following the meeting in June, 2018 is consistent with her continuing impairment. The period of time from August, 2019, when the parties resumed discussions about the Complainant returning to work, until December, 2019, when they agreed to hold time lines in abeyance, does not represent a meaningful delay. [15] In my view, the Association has not established the reasonableness of the Complainant’s delay. The onus is upon the Association to do so. It is correct that Dr. Curtis’ December 14, 2020 letter is the only medical opinion before me on the issue, but the weight to be given to that opinion is another matter. An opinion is only as good as the assumptions upon which it is based. In this case, the opinion - 6 - does not set out the assumptions on which it is based either expressly or by reference. The Association asserts that Dr. Curtis should be presumed to have taken its particulars into account when he provided his opinion. It is not at all clear that such a presumption is warranted. Further, and in any event, the Association’s particulars would not have informed Dr. Curtis of all of the facts on which the Employer relies. The particulars contain allegations in relation to the return to work discussions commencing in August, 2019 but not in relation to the Complainant’s communications with respect to her benefit coverage in January 2018 or in relation to the return to work discussions in June, 2018. I agree with the Employer that Dr. Curtis’ December 14, 2020 letter is cursory and that it appears to be inconsistent with his August 28, 2019 letter in which he expressed the view that the Complainant was able to return to work, with accommodation, as of October 1, 2019. Accordingly, I am not inclined to give Dr. Curtis’ December 14, 2020 letter much weight. Finally, and in any event, I note that Dr. Curtis’ December 14, 2020 letter does not state that the Complainant would have been unable to file the grievance in a timely manner. He states that her ability to do so over an extended period of time would have been “impaired” or “impacted”. Given her other interactions with the Employer over that period of time, I am not satisfied that she was unable to file the grievance in a timely manner. The Length of the Delay [16] The length of delay in this case is at least 18 months. By any measure that is excessive. The Nature of the Grievance [17] The grievance alleges the Employer failed to provide the Complainant in a timely manner with the necessary forms so that she might apply for LTIP benefits. The result was that the Complainant was without income for a period of approximately 12 weeks. While this is serious, it is not akin to a grievance alleging termination of employment. In this respect, it is important to note that the Complainant did receive LTIP benefits for the period in question retroactively. The Association alleges, however, that the Complainant was homeless during the period she was without income. The Association also alleges that she was unable to afford to drive, was required to use public transportation and was assaulted as a result. It seeks additional damages for these derivative claims. Assuming without deciding that the Employer could be liable for these additional damages, I am not satisfied that either the Agreed Statement of Facts or the Association’s particulars provide a basis for such claims. - 7 - Whether the delay occurred in initially launching the grievance or at a later stage [18] The delay in this case occurred in initially launching the grievance. The significance of this is that the Employer had no notice of the prospect of the grievance. Whether the Grievor is Responsible for the Delay [19] The Complainant was responsible for the delay. Whether the Employer Could Reasonably Have Assumed the Grievance Had Been Abandoned [20] Since the delay in this case relates entirely to the launching of the grievance, this issue does not arise. Prejudice [21] The Employer notes that if there are not reasonable grounds for the extension, then the issue of prejudice does not arise. It argues however that prejudice can be inferred in this case from the length of the delay even in the absence of actual prejudice. The Association argues that there is no evidence of actual prejudice. Further, the Association argues that the evidence with respect to the Employer’s failure to provide the LTIP forms in a timely way is largely documentary and therefore this is not a case where prejudice should be inferred from the mere passage of time and its effect on memory. [22] The difficulty with the Association’s argument is that this part of the Complainant’s grievance relates not so much to the Employer’s delay in providing the LTIP forms but to damages which are said to be derivative from that delay. The evidence with respect to those damages will not be limited to documents. Further it will relate to events which took place outside of the employment relationship. In my view, substantial prejudice to the Employer as a result of delay can be inferred in these circumstances. Conclusion on Timeliness of Claim With Respect to Delay in Providing LTIP Forms [23] For the foregoing reasons, in my view the Association has not established reasonable grounds for extensions of the timelines in relation to the claim that the Employer failed to provide the LTIP forms in a timely way. In the alternative, I am satisfied the Employer would be substantially prejudiced by the extension of the - 8 - timelines in relation to that issue. Accordingly, the Employer’s motion is allowed and paragraphs 1 to 8 of the Association’s particulars are struck. No Prima Facie Case with Respect to Right to Representation [24] The Employer seeks to have the Association’s allegations concerning a breach of the right to representation dismissed on the basis that there is no prima facie case. Those allegations are particularized by the Association as follows: D. Right to Representation 50. The Employer violated McCallum’s right to representation. Ramganesh [the Complainant’s manager] emailed McCallum [the Complainant] on October 31, 2019 inviting her to a meeting to discuss return to work/accommodation on November 4, 2019 while excluding her AMAPCEO representative and did not provide her with the opportunity for representation. Just before this meeting was scheduled to start Ramganesh emailed McCallum an apology on November 4, 2019 for failing to provide her with advanced [sic] notice of her right to representation. 51. Please see paragraph 62 noted below describing further violation of McCallum’s right to representation. Throughout the remainder of the accommodation process the Employer has continued to refuse to directly involve McCallum’s Workplace Representative in communications – despite McCallum’s requests. [25] The Articles of the collective agreement said to be engaged are: 7.1 Where a supervisor or other Employer representative intends to meet with an employee: … (e) for matters related to the development, implementation and administration of an accommodation or return to work plan; or …. the employee shall have the right to be accompanied by and represented by an Association representative. The Employer shall notify the employee of this right and set the time and place for the meeting. 7.2 If the employee requests representation by an Association representative, the Employer shall set the time and place for the meeting, which is mutually agreeable to the Employer and the employee. Failing agreement the Employer shall allow up to 3 days from the notice in Article 7.1 for the employee to secure an Association representative for the meeting. However, where urgency is required, the Employer shall give the employee notice so that the employee can be represented by an Association representative in person or by teleconference. - 9 - [26] It is an agreed fact that the meeting took place between the Complainant, an Association representative and representatives of the Employer. The Employer argues that the only logical conclusion on the facts alleged by the Association is that the Complainant was able to obtain Association representation and that the meeting proceeded with their agreement. Accordingly, there could not have been a breach of Articles 7.1 or 7.2. [27] The Association notes that there is no case law to date interpreting Article 7.1. It asserts that Article 7.1 provides two separate rights: the right to Association representation at a meeting; and the obligation of the Employer to inform the employee of that right and set a time and place for the meeting. On that theory, the Employer has breached the second of those obligations and the Association is entitled to a declaration to that effect. Accordingly, the Employer’s motion should be dismissed: see OPSEU (Martin) v. Ontario (Ministry of Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson). Further, evidence with respect to the meeting is relevant to other allegations made with respect to breach of the Employer’s duty to accommodate and will need to be heard in any event. [28] In my view, the Association has articulated a legal theory which on the facts it has alleged could reasonably support a violation of the collective agreement. Further, as argued by the Association, the evidence with respect to the meeting is relevant to other allegations and will need to be heard in any event. Accordingly, the Employer’s motion to dismiss the allegations set out in paragraphs 50 and 51 of the Association’s particulars is dismissed. Dated at Toronto, Ontario this 30th day of March, 2021. “Ian Anderson” Ian Anderson, Arbitrator