HomeMy WebLinkAbout2017-1142.Derjugin et al.21-04-23 DecisionCrown Employees
Grievance Settlement
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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
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Derjugin et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
Max Halparin
Dewart Gleason LLP
Counsel
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING
March 26, 2021
-2-
DECISION
[1] I have sixteen grievances before me filed on behalf of ten Provincial Bailiffs.
In essence, the Grievors and the Union allege that the Employer failed to prevent a
poisoned work environment by not taking adequate steps to address the harassing and
bullying conduct of Mr. J. Pacheco and by re-instating Mr. Pacheco to the Offender
Transfer Operations unit in 2017. They allege that the Employer’s conduct or its failure
to respond appropriately contravened the Collective Agreement, as well as the Code of
Conduct and Professionalism, the Workplace Discrimination and Harassment
Prevention Policy, the Occupational Health and Safety Act and the Ontario Human
Rights Code.
[2] We are at the stage in this proceeding where the Union has completed its
evidence. That evidence consists of the testimony from all of the Grievors and
numerous exhibits. The Employer has requested that the grievances be dismissed.
This decision only addresses the Employer’s motion.
[3] In support of the motion, Employer’s counsel relied on the following
decisions: OPSEU (Bharti) and Ministry of Natural Resources and Forestry, 2015
CanLII 19330 (Anderson); OPSEU (Pacheco) and Ministry of the Solicitor General
(2020), GSB No. 2010-2654 (Petryshen); OPSEU (Tardiel et al.) and Ministry of
Community Safety and Correctional Services (2009), GSB Nos. 2005-1443 et al.
(Albertyn); OPSEU (Pacheco) and Ministry of Community Safety and Correctional
Services (2017), GSB No. 2010-2654 (Petryshen); John Pacheco v. OPSEU, [2020]
OLRB No. 1414-20-U; OPSEU (Grievor) and Ministry of the Solicitor General (2020,
GSB No. 2015-0618 (Harris); OPSEU (Jones et al.) and Ministry of Labour (2010), GSB
No. 2006-1204 et al. (Abramsky); Borowski v. Canada (Attorney General, [1989] 1 SCR
342; OPSEU and Community Safety and Correctional Services, 2010 CanLII 52643
(ON GSB Abramsky); OPSEU (Coelho) and Ministry of Children and Youth Services,
2014 CanLII 302245 (ON GSB Lynk); and, Bazger and (Ontario) Ministry of Community
Safety and Correctional Services (2018), PSGB No. P-2014-2859 (O’Neil).
-3-
[4] In defending the motion, Union counsel referred me to Brown & Beatty,
Canadian Labour Arbitration, 5th Edition, sections 2:3240 and 3:2640, and relied on the
following decisions: Ontario (Attorney General) v. Ontario (Information and Privacy
Commissioner) (2002), 62 O.R. (3rd) 167 (Div. Ct.); OPSEU (Whan et al.) and Ministry of
Transportation, 2007 CanLII 6889 (Dissanayake); Ontario v. OPSEU (1990), 37 O.A.C.
218 (Div. Ct.); Re Southern Alberta Institute of Technology and A.U.P.E., Local 39
(1994), 43 L.A.C. (4th) 261 (McFetridge); Re Toronto District School Board of Education
and CUPE, Local 4400 (2008), 168 L.A.C. 94th) 339 (Swan); Re Waterloo (Regional
Municipality) and CUPE, Local 1883 (2008), 171 L.A.C. (4th) 107 (Luborsky); Re Wild
Rose School Division No. 66 and CAAMSE (Reil) (2014), 244 L.A.C. (4th) 416
(Wallace); Re York University and CUPE, Local 3903 (2010), 199 L.A.C. (4th) 233
(Slotnick); and, OPSEU (Ranger) and Ontario (MCSCS) (2010), 190 L.A.C. (4th) 317
(Leighton).
[5] I referenced the principles that are applied by the GSB in resolving non-suit
motions in OPSEU (Pacheco) and Ministry of the Solicitor General, supra, by adopting,
with one addition, the following summary at paragraph 9 in OPSEU (Whan et al.) and
Ministry of Transportation, supra:
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.
-4-
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.
The additional comment I made in relation to point 3 is that “the test of whether there is
some evidence to support the claim assumes that the evidence meets a minimum
threshold of credibility.” This comment is consistent with the views expressed in Re
Southern Alberta Institute of Technology and A.U.P.E., supra, and in other recent
decisions.
[6] In dealing with the Employer’s motion, I have reviewed the testimony of the
Grievors and the documentary evidence, and I have considered the basis on which the
Employer has sought to have the grievances dismissed. I have also carefully
considered the thoughtful submissions made by counsel. In applying the appropriate
principles set out above, I am satisfied that it would be inappropriate to dismiss the
grievances at this stage of the proceeding. Accordingly, the Employer’s non-suit motion
is hereby dismissed. In accordance with the Board’s practice, I will not provide reasons
for this determination.
Dated at Toronto, Ontario this 23rd day of April, 2021.
“Ken Petryshen”
______________________
Ken Petryshen, Arbitrator