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HomeMy WebLinkAbout2018-1346.Grievor.21-06-16 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# 2018-1346 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor) Association - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Brian McLean Arbitrator FOR THE ASSOCIATION FOR THE UNION Marisa Pollock and Nadine Blum Goldblatt Partners LLP Co-Counsel Avril Dymond (Grievance Officer) Ontario Public Service Employee’s Union FOR THE EMPLOYER Peter Dailleboust and Andrew Lynes Treasury Board Secretariat Legal Services Branch Co-Counsel HEARING Aug 22, Nov. 4, 2019; Jan 9, 14, June 5, 15, Dec 9, 2020; Jan 12, Feb 12, March 2, April 22, 2021 TELECONFERENCES Oct 24, 2019; April 16, 2020; Mar 12, 2021 - 2 - Decision [1] These are disputes which together have two distinct parts. In the first part, the Grievor alleges that a fellow employee, Ms. X, deliberately pushed her as they crossed paths in a hallway at their workplace. The second part of the disputes concerns the investigation into the alleged assault. A senior manager who is an experienced lawyer investigated and found, in essence, that the contact between the two employees was accidental and that the Grievor exaggerated her claim to extract a financial award from the Employer. The Grievor alleges that the investigation was flawed in several ways, most significantly that the investigator, who is a white man, was unconsciously biased against the Grievor, who is a black woman. Ms. X is also white. Ms. X and OPSEU are not, in this proceeding, contesting the investigation and, on my direction, played little to no part in that aspect of the case. This decision determines the disputes. Anonymity [2] AMAPCEO and the Employer assert that the names of the Grievor, Ms. X, and the Investigator should be anonymized in this decision. OPSEU does not take a position on whether these individuals should be named in this decision. [3] In Re OPSEU and Ontario (Ministry of Health and Long-Term Care) (Cull) (2017), 126 L.A.C. (4th) 199 (. G.S.B.) (Abramsky) Arbitrator Abramsky of the Board held: 22. …Having carefully considered the issue, the cases cited, the nature of the GSB and its role, I conclude that the open court principle does apply to the GSB. It is my view that there is a presumption that the Board’s hearings and decisions are to be public – and that its arbitrators have discretion to balance the interests established by the open court principle and the right of litigants to informational privacy. 23. The GSB is a public statutory tribunal. Its mandate is to adjudicate grievances that arise between the Province of Ontario, through its various Ministries and agencies, - 3 - and its employees, represented by Unions – OPSEU, AMAPCEO, CUPE and others. Those grievances, as evidence in this case, not only raise collective agreement issues but may also raise statutory issues. Re Parry Sound (District) Welfare Administration Board and OPSEU, Local 324, 2003 SCC 42 (CanLII), [2003] 2 S.C.R. 157 (S.C.C.). There often may be wide public interest in actions involving government agencies… [4] In Serco DES (Drivetest) v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), 2018 CanLII 64969 (ON LA) (Luborsky), the arbitrator suggested there should be a balancing of the open court principle against harm to the litigants: [75] Although transparency encompassed by the open court principle is perhaps more compelling for statutory employment tribunals, I conclude from the foregoing survey of the jurisprudence that in considering a request for anonymity in a published arbitration decision, the same balancing of individual privacy interests against the presumption of the publication of a grievor’s name under the open court principle is the prevailing norm for private arbitrations in Ontario as well, and thus is the appropriate standard in the case before me. Approving anonymity for a grievor or witness involved in an arbitration is reserved to those “exceptional circumstances” where the reasons for the individual’s request is sufficient to overcome the presumption of openness against the showing of a “significant risk of serious injury to other competing interests” or “some significant harm to be avoided”, which the party seeking anonymity should raise at “the earliest possible time” and has the onus to prove on a balance of probabilities. What may justify a conclusion that an individual’s name should be anonymized in an arbitration award is a fact specific inquiry having regard to all surrounding circumstances that even when satisfying the high threshold of the test in one case may not be enough to reach the same result in another context. [5] I am concerned that the fundamental benefits of “open courts” are being lost as society increasingly focuses on privacy “rights”. These kinds of requests seem to be becoming more and more often. Nevertheless, given the positions of the parties and the fact that the Grievor and Ms. X have not, for health reasons, returned to - 4 - work for some time following the events which give rise to this proceeding, I find it appropriate to anonymize the names of the Grievor and Ms. X. Furthermore, given the positions of the parties and that the Employer chose not to call the Investigator as a witness I find it appropriate to not name him either. Background [6] The Grievor is employed as a Senior Client Representative in the Ontario Public Guardian and Trustee (the “OPGT”), a part of the Ministry of the Attorney General. She has been employed at the OPGT since June 2003. She is represented in her employment relations with the Employer by AMAPCEO. [7] Ms. X is also employed at the OPGT. However, she is employed as a Client Representatives Assistant, a less senior role than that of the Grievor. She is represented in her employment relations with the Employer by OPSEU. In an earlier decision, I allowed OPSEU and Ms. X to intervene as parties in this case over the objections of AMAPCEO. [8] The Grievor’s and Ms. X’s supervisor is Maureen Chin. The workforce is divided into three teams each of which consists of one or more of a senior client representative, a client representative, a client representative assistant, and a team lead. The Grievor and Ms. X were on Team 1 as of the date the incident giving rise to these disputes occurred. As is suggested by their titles, the employees on a team work together to deliver service to clients. [9] The OPGT has offices in downtown Toronto where all the employees who gave evidence before me work. As part of the hearing (and prior to the pandemic), we took a view of the OPGT offices. In general, the office space is efficiently utilized so that it has a somewhat crowded feel. Employees work in cubicles and managers have offices. - 5 - The Incident [10] There is no dispute that on October 16, 2017, there was physical contact between the Grievor and Ms. X. There is also no dispute that the contact occurred in the corridor opposite the cubicles of Ms. Karen Bowyer and the Grievor whose cubicle is next to Ms. Bowyer’s. The cubicles were three feet three inches high at their lowest point and, in any event, were open towards the corridor. [11] In general, what happened is that the Grievor went to retrieve a document that she had printed. After picking it up she says she headed to a fax machine located directly opposite Ms. Bowyer’s cubicle so that she could fax the document. [12] There was a pillar next to the fax machine. Both the fax machine and the pillar jutted out into the hallway somewhat. Accordingly, while the corridor was generally quite wide through its length, at the critical point there were only three and a half feet between the adjacent pillar and the cubicles on the other side of the corridor. The fax machine is no longer there but it was immediately adjacent to the pillar, and it seems that it also extended into the corridor by a similar amount as the pillar. This narrowed spot is where the incident occurred. [13] Essentially, the Grievor was walking in one direction towards the pillar/fax machine and Ms. X was walking in the other direction towards the Grievor and the fax machine. Normally, they would have passed each other without incident, but that is not what occurred in this instance. Instead, there was contact between the two and each of them have quite different versions of what happened. In order to understand their respective versions of the event, it is necessary to recount and assess their evidence and the evidence of other “witnesses” in some detail. Importantly, no person, other than the Grievor and Ms. X saw the contact. The Grievor - 6 - [14] As noted, the Grievor is a senior client representative at the OPGT. She has been in that position since 2003 and a member of the public service since 1994. There was no suggestion that she had any disciplinary record or history of making WSIB claims. [15] In her role at the OPGT, the Grievor manages complex cases involving clients who are unable to run their own financial affairs, often for mental health reasons. Her cases can involve people that own property in Ontario and abroad. As a senior client representative, the Grievor had considerable responsibility in a highly professional workplace. [16] Ms. X and the Grievor worked on the same team. In her role, among other duties, Ms. X provides support to senior client representatives on the team. However, Ms. X was not assigned to assist the Grievor at the time of the incident. This was in part related to issues they had working together in the past which are discussed more fully below. [17] The Grievor gave evidence about the layout of the office. As noted, she worked in a cubicle which shared entry space from the corridor with Ms. Bowyer’s cubicle. On the other side of her wall was Ronald Teape. Across the corridor from Ms. Bowyer’s cubicle was the fax machine sitting on a table. The table was adjacent to the pillar. In examination-in-chief the Grievor testified that she could not remember that well how wide the corridor was. However, she believed it was a minimum of two persons wide. Ms. X’s workspace was some distance from the Grievor’s. [18] The Grievor normally finished work at 3:15. It was important for her to leave the office immediately after her shift ended so that she could catch a train that would allow her to pick up her daughter from daycare. [19] The incident occurred on October 16, 2017. At about 3:10 on that day the Grievor decided to do one last task before completing her workday, which was to send a fax - 7 - out. She printed off the document at a printer that was located some distance from her cubicle, down a different corridor, and then walked in the corridor towards the fax machine located near her cubicle. She testified that was not walking fast; she had plenty of time to send the fax and make it in time to catch her train. [20] Returning from the printer, the Grievor turned the corner into the corridor when she saw Ms. X coming down the corridor towards her. Ms. X was some distance away, approaching the fax machine/pillar from the other side of the corridor. According to the Grievor, Ms. X was walking on the right side of the corridor (so on the opposite side of the corridor as the Grievor). They made eye contact. At that point, the two were some distance away from each other. The Grievor continued walking on the right side of the corridor towards the fax machine and Ms. X continued to walk on the opposite side (The right side from Ms. X’s perspective). The Grievor testified that as they got closer to each other, she assumed that this would be a normal interaction where two people just walk by each other. They did not speak prior to contact. [21] At some point, according to the Grievor, they came close to each other and Ms. X “raised her two arms and pushed” her on the left side of her body. This occurred when the two were close to the fax machine. In her view, there was ample room for two people to pass each other at that point. [22] The Grievor says that she lost her balance because of the shove and nearly fell down. Ms. X continued walking without saying anything. The Grievor testified that she went into a state of shock and was really confused. She turned around and “yelled”: “excuse me!”. By that time, according to the Grievor, Ms. X had already walked the length of the corridor (eight or nine feet) and turned the corner. The Grievor could still see her over the top of the cubicle located at the corner (which was Steve Dymond’s workspace). Ms. X turned and “yelled” in response “don’t walk in front of me”. According to the Grievor, Ms. X looked really angry. - 8 - [23] Later in examination-in-chief, the Grievor was asked to explain her tone of voice. On this occasion, she said that her voice was slightly raised (as opposed to “yelled” when asked about it the first time). On this occasion, she said that Ms. X’s statement was made at a volume slightly lower than hers. [24] The Grievor testified that Ms. X. left her view after their exchange and the Grievor was mindful of the fact that she needed to leave to catch her train. So, she returned to her cubicle and began to collect her things in preparation for leaving. In cross-examination she was unable to provide any information about what happened to the fax she says she had intended to send. [25] While she was getting her things together in preparation for leaving, Ms. Bowyer and Mr. Teape, came over to ask what had happened. She told them that Ms. X had just pushed her. The Grievor testified that she felt like she was visibly upset. Mr. Teape told her that she handled the situation well and Ms. Bowyer agreed. Ms. Bowyer specifically mentioned that it was good not to have retaliated against Ms. X. Another employee also came by to ask what had happened, but she did not want to get into it with him. She needed to leave to catch her train and did so. [26] The next day she informed her manager, Ms. Chin, what had happened. As we shall see, she told Ms. Chin that Ms. X had “bodychecked” her. She told Ms. Chin that she felt threatened in the workplace and was humiliated. She did not feel mentally able to continue to work and requested and was granted leave to go home. Since that day she has not returned to work. [27] Under cross-examination there was much focus on the Grievor’s use of the phrase “bodycheck” in speaking with Ms. Chin. She testified that she understood that term to mean that “she lunged at me with her two arms and pushed to the side”. She denied that the contact between her and Ms. X was shoulder to shoulder and did not recall telling Ms. Chin that it was shoulder to shoulder. She said that she would not have told Ms. Chin that it was shoulder to shoulder since that is not what happened. - 9 - [28] She also confirmed in cross-examination that her workday ends at 3:15 pm and the incident occurred around 3:10 pm. She needed to leave by 3:15 to catch the train in order to be on time to pick her daughter up from daycare. Her daughter was her priority, and she was mindful of the time. [29] She confirmed that she made eye contact with Ms. X prior to the incident. She would have been looking at the fax machine as she approached it and she was walking straight towards it. I note here that from her perspective the pillar was in front of the fax machine and that if she was on the right side of the corridor, she may have had to veer around the pillar before reaching the fax machine. She could not recall whether her hands were up or down. [30] She thought it was impossible that Ms. X’s hands were up prior to the contact. She saw her hands clearly before the contact. She emphasized that Ms. X “lunged” at her with her hands. [31] She was asked about her testimony that Ms. X spoke to her after she had walked to the end of the corridor. She was asked for an explanation about why Ms. Bowyer testified that Ms. X spoke when she was near the pillar. She had no explanation for Ms. Bowyer’s testimony. [32] She said that she found Ms. X’s immediate reaction to the collision extremely uncomfortable because nothing was said. In her view, if one collides with someone in the hall you say something like “sorry”. However, she acknowledged that she did not say sorry to Ms. X. This was because she believed that Ms. X had done something to her, and she did nothing to Ms. X to warrant an apology. [33] The Employer also asked the Grievor questions about the medical assessment that the WSIB had conducted on her. The report prepared describes the incident as her co-worker “lifted both her hands and pushed” the Grievor on the left side of her body. There were findings by the medical assessor that the Grievor had trouble - 10 - remembering aspects of what happened and had to refer to her written statement in her meeting with the Investigator. The Grievor disagreed somewhat with that assessment while acknowledging that she cannot recall every single detail of the incident. [34] Under cross-examination by OPSEU, she confirmed that the train left at 3:40pm and the next one after that left at 4:10. She denied however that she was in any hurry prior to the incident. She would disagree if Ms. X’s testimony were that she was moving rapidly down the corridor. [35] OPSEU also asked her about her certainty that she was holding a piece of paper to be faxed. The Grievor was certain that she was, although could not identify what document was to be faxed. No records from the fax machine were put into evidence, assuming that the document was faxed the next day by someone else. [36] Counsel for OPSEU also cross-examined heavily on what was said at the time of the incident. The Grievor knows she said, “excuse me!” once and thinks it is possible that she said it twice but cannot remember. She thought there was a strong possibility that she “yelled” those words. She also said in this part of her evidence that Ms. X yelled at her. She could not explain why Ms. Bowyer testified that Ms. X did not yell except that was her recollection. She “just knew she [Ms. X] yelled”. Ms. X [37] Like the Grievor, Ms. X has lengthy service with the OPS, often participating in special projects at the request of management including outside the branch. In 2004 she was seconded to the OPGT as a client representative’s assistant. In 2005 she became permanent in that position but was seconded to special projects outside of the branch for a considerable period of time. In 2012 she returned to the OPGT as a client representative assistant on Team 2. As a CRA she assisted senior client representatives, including for a time the Grievor, in the management of - 11 - their caseload. While the senior client representatives in her team gave her work, she reported to the manager. Like the Grievor, there was no suggestion that she had any history of disciplinary conduct. [38] In or about 2017 she was assigned to assist the Grievor whom she had not previously met. Ms. X attempted to establish a relationship with the Grievor because they would be working as a team within the Team. According to Ms. X, the Grievor never wanted to have any kind of a relationship. [39] Their relationship will be discussed in more detail below. Suffice it to say at this point that their relationship was not good over a period of time. However, by the time of the incident they had not directly worked together for quite a long time. [40] On the day in question, Ms. X dropped some mail off in the mailroom and then was returning to her office walking through the corridor at issue. Ms. X testified that she walked on the left side of the corridor to not be intrusive to those who had open cubicles on the right side, like Ms. Bowyer and the Grievor (on the way to the mailroom she had walked on the right side for the same reason). She was not holding anything. She was not hurrying and was walking at a slow to medium pace. She was walking with her head down. She says that as she was passing the fax machine, she detected movement out of the corner of her eye. She looked up and saw the Grievor coming directly towards her on her left side, walking quickly. She attempted to go around to the right side of the Grievor as she thought she could make it without there being contact. However, she did not make it and they bumped shoulder to shoulder- not softly but not hard. [41] Ms. X was asked to provide details of her account and repeated her story, albeit with some differences. On the second version, she said she had first seen the Grievor as soon as she rounded the corner. The Grievor was walking very quickly at that point and had nothing in her hands. They made eye contact when they were a couple of feet apart. Neither of them slowed down when they made eye contact. (I note that this statement is not necessarily consistent with her evidence that she - 12 - saw her out of the corner of her eye just prior to impact unless she saw her out of the corner of her eye and then made eye contact) Ms. X realized that “she was not moving” out of the way. So, she made the decision to go around her. But it was a tight space, and she did not make it. She did not consider stopping- she made the split-second decision to go around her. [42] She did not go far enough, and her left shoulder hit the Grievor’s left shoulder hard. She said they both took a step and a half back from each other and looked at each other and therefore did not pass each other right away. Before Ms. X could say anything, the Grievor put her hands on her hips and in a loud, rude, aggressive voice said, “well excuse me”. The words “excuse me” were said in an elongated fashion like “excuuuse me”, very loud, just below a yell. At this point, Ms. X says that she was essentially at the level of the fax machine. The Grievor was at the other end of the pillar. [43] Ms. X testified that she was annoyed. Her arms were always by her side. She said to the Grievor- “Grievor, you walked into me” in a slightly raised voice. At no point were her arms raised. The Grievor appeared angry and was in an aggressive stance. Ms. X thought about apologizing, but her apology “died on her lips” when she saw how the Grievor had reacted. Ms. X then walked around the Grievor, walking further to the right than she had before. She spoke to no one about the incident on the day- she finished work and left the office like normal. She never raised her hands or pushed or shoved the Grievor and did not run into her intentionally. [44] The next day she came to work as normal and was going to see her manager to talk about an upcoming medical procedure. She attended a scheduled Team meeting and then her manager called her into her office. That meeting is discussed below. [45] Ms. X testified that she would never hit anyone, let alone a co-worker. This was simply an accident – she had no intention to make contact with the Grievor. - 13 - [46] The Employer’s cross-examination of Ms. X was brief. She stated that she understood that if she did assault a fellow employee that it could have serious repercussions to her employment. She had never been disciplined before. [47] AMAPCEO’s extensively cross-examined Ms. X. Ms. X agreed that the location of the incident was a little narrow but not a danger zone and that people walk that corridor without incident. She acknowledged that Ms. Bowyer did not see the Grievor with her hands on her hips. She said that she was not walking against the wall as she proceeded up the hallway. However, as she approached the fax machine, she moved more towards the middle in order to get around it as it was jutting out. [48] She was also asked about her initial statement to Ms. Chin which was the following: “[the Grievor] came around the corner and started down the hallway. I was already in the middle of the hallway. [the Grievor] then veers into me, moving into my space and bangs into me. I said [the Grievor] you banged into me. She said in a very loud and angry voice for everybody to hear Excuse Me.” [49] Ms. X testified that that statement “popped out of her mouth” after Ms. Chin advised that she had been accused of assaulting the Grievor. Ms. X agrees that the Grievor spoke first, and she responded, unlike what she told Ms. Chin. However, she claimed that the phrase “moving into my space” was correct. There was space for the Grievor to go around the pillar, but she took the corner too wide. She also reaffirmed that the Grievor veered into her. Ms. X’s position was that the collision was the Grievor’s fault to a point because she veered into her, but that Ms. X should not have tried to go around her; she should have just stopped. Later, she reemphasized how much of the blame was the Grievor’s. Ms. X had nowhere to go because she had the fax machine and pillar on her left and the cubicle walls on her right. - 14 - [50] Ms. X gave conflicting evidence about the order in which the two spoke. She initially appeared to agree that she misspoke in her conversation with Ms. Chin when she said that she spoke first. However, later she claimed that the mistake was Ms. Chin’s in how she recorded their conversation. This was despite the fact that she had earlier agreed that Ms. Chin’s notes were an accurate reflection of their conversation. Later she said there was no chance that she (Ms. X) got it wrong and that she had made a mistake when she had confirmed the accuracy of Ms. Chin’s notes. [51] She was also asked about her evidence that the Grievor’s words were an elongated “excuuuuuuse me’. It was pointed out to her that Ms. Chin’s notes do not reflect that. Ms. X claimed that she did tell Ms. Chin about the elongation. Counsel noted that Ms. Chin’s notes have a question mark after the words “excuse me” which suggests something entirely different than an elongated use of the word. Ms. X replied that it was “recorded incorrectly by” Ms. Chin. [52] Ms. X was also asked whether she had spoken to anyone about the incident after it had happened. Ms. X was very reluctant to testify about who she spoke to and repeatedly refused to answer until directed to do so. Eventually, she advised that it was a coworker named Binta whom she saw in the hallway before her meeting with Ms. Chin on the morning after the incident. [53] Ms. X was then asked about her conversation with Ms. Chin when Ms. Chin asked her “Did you speak to any of your colleagues or a manager after?” and Ms. X is recorded as having replied “No. I didn’t say anything to anyone. I didn’t think anything of it.” Ms. X’s evidence was that she took Ms. Chin’s question to refer to immediately after the incident had occurred and she had spoken with Binta the next day in the morning (moments before meeting with Ms. Chin). She was then asked about her statement to Ms. Chin “I didn’t think anything of it. I just went to my desk and continued to work”- how did that line up with the fact that she thought enough about it to bring it up with Binta. She could not remember why she spoke with Binta - 15 - about it. She then testified that she was “annoyed but continued working”. This was inconsistent with earlier testimony in which she said she thought nothing of the contact. [54] Later she was asked about her statement to Ms. Chin that she was “the injured party”. Ms. X said that statement just popped out of her mouth. It was an incorrect thing to say; she did not consider herself the injured party. She does not know why she told Ms. Chin that. She also claimed that the Grievor was taller and bigger than her (although that was not the case), that she felt pain in her shoulder, and that she felt like the injured party “as well”. [55] Ms. X was asked why she decided to go around the Grievor rather than stop given her alleged medical condition and worries about impeding her upcoming medical procedure. She replied that it was a “decision she made quickly; it was just a decision she made”. [56] She was also asked whether she liked the Grievor and she said that she did not because of how she had treated her in the past. She called her “difficult” to Ms. Chin because she had heard complaints about the Grievor from other people. She acknowledged that not “everyone” shared that opinion despite what she told Ms. Chin. She believes that Ms. Chin made another recording mistake where her notes say that they “banged arms”. I note that when Ms. Chin was cross-examined by OPSEU it was clear that her notes were accepted as accurate and there was no suggestion that she had made mistakes. Medical Condition [57] At the time of the incident, Ms. X had medical conditions which she believes are relevant for two purposes. First, she suggested that the conditions affected her balance and movement. She believes it is possible these symptoms could have played a role in her inability to get around the Grievor without contacting her. Second, there is no dispute that Ms. X was, at the time of the incident, anticipating - 16 - undergoing a procedure related to her medical conditions. She testified that the procedure was important to her and that she would not have jeopardized that by intentionally getting into physical contact with anyone, let alone the Grievor. Medical records were put into evidence and were the subject of considerable cross- examination which will be discussed below. [58] Ms. X testified that her health was very much on her mind at that time because her procedure was coming up on November 23 and she had a pre-procedure medical appointment scheduled for October 24, one week after the incident. Her evidence was that she was acting more carefully at that time so as not to do anything to jeopardize her procedure. Ms. X in fact had the medical procedure in November of that year. [59] Ms. X was the subject of considerable cross-examination about her health claims. I do not detail specifics about those claims here to protect her privacy. Suffice it to say, that reports were submitted from health care providers which did not really substantiate her claims that she was in constant pain. I find it unlikely that the health care providers were in error as Ms. X suggests. It is more likely that she either reported her pain levels to them and they were recorded or that they observed her movements and came to conclusions about her level of pain. I find little medical support for her claim that she was having balance issues. I also note that Ms. Chin testified that while Ms. X was walking with a limp, that was her normal gait and to her eyes was not experiencing any other difficulty. Ms. Bowyer [60] Ms. Bowyer has been a Senior Client Representative in the OBGT since 2010. As noted, Ms. Bowyer works in a cubicle located opposite the fax machine and pillar where the incident took place. The entrance to the cubicle, and the placement of the walls adjacent to it, offer a more or less clear line of sight to the fax machine and pillar. However, Ms. Bowyer did not see the incident as she was working and facing a different direction at the time. - 17 - [61] She testified that the corridor where the incident occurred was two or three body widths wide. During the middle of the hearing and after Ms. Bowyer testified, we took a view of the office space at issue. Measurements were taken. The width of most of the corridor was approximately five feet, nine inches wide. However, at the point of the pillar, approximately where the incident took place, the corridor was much narrower, approximately three and a half feet wide. [62] Although Ms. Bowyer did not witness the incident or anything that proceeded the incident, she did see the immediate aftermath. She looked up to see what was happening after she heard the Grievor loudly say “Excuse me, excuse me” at least twice. She recognized that something had happened between Ms. X and the Grievor. She testified that the Grievor had raised her voice loud enough to catch anyone’s attention. [63] When she looked up the Grievor and Ms. X were standing close to the fax machine. She could see both of their faces. However, she later testified that Ms. X was halfway up the corridor while the Grievor was just standing there. It was unclear how soon after the incident that Ms. Bowyer saw Ms. X move up the corridor. [64] She heard Ms. X’s response to the Grievor which she recalled as “well, if you weren’t in my way” or words to that effect. Shortly after that Ms. X walked down the corridor. [65] Ms. Bowyer’s view was that Ms. X’s demeanour was casual, an unraised voice, and unapologetic. Later she described her tone as “edgy” and that she could sense from the tone that it was not a happy encounter. [66] The Grievor then went to her cubicle as it was the end of the day for her. Ms. Bowyer asked her what had happened and the Grievor answered that Ms. X had “pushed her”. Ms. Bowyer thought that the Grievor looked surprised and taken aback- she could not believe what had happened. Ms. Bowyer believes that she told the Grievor that she handled it well but could not recall for certain whether that - 18 - was at the time or the next day. Ms. Bowyer did not recall the Grievor having a conversation with anyone else before she left for the day. [67] The next day Ms. Bowyer saw the Grievor and asked her about a team meeting that was scheduled for that day. The Grievor said that she was not going to the meeting. Ms. Bowyer may have told the Grievor that she handled the incident well. [68] Ms. Bowyer was aware that the Grievor and Ms. X had some type of problem previously, but she did not know the full extent of the situation. [69] The cross-examination of Ms. Bowyer was brief by both the Employer and OPSEU. Ms. Bowyer stated that she and Ms. X got along fine. She confirmed that the Grievor was louder than Ms. X when she said, “excuse me, excuse me”. [70] She said she was not sure whether Ms. X made her comment as she was walking away or whether she was standing still. She saw both faces when she looked up after hearing the Grievor’s comment and believes that the two were face to face when she looked up. She recalls Ms. X’s words but cannot be sure that what she recalls is verbatim. [71] OPSEU and AMAPCEO agree that Ms. Bowyer is a credible witness to those events she saw and heard. I agree with OPSEU that there are limitations to her evidence in that she cannot remember everything, including information that she could recall in front of the Investigator. Her admission that she cannot recall everything enhances her credibility with respect to the things she can recall. The Strained Relationship between the Grievor and Ms. X [72] The most obvious question the Grievor faces in her allegation is: why would a co- worker assault her completely out of the blue? Of course, the Grievor need not answer that question. She asserts that the event occurred, and it is not up to her to guess why Ms. X acted the way she did. However, the Grievor did suggest a - 19 - reason. She says that she and Ms. X have a lengthy history of not getting along and assumes that their poor relationship may have played a role in Ms. X’s treatment of her. The Grievor testified that the situation between the two of them was building up and the situation was escalating. [73] I note that the fact that the two of them do not get along is not really disputed by Ms. X. Nevertheless, it is important to describe briefly the events that occurred in the history of the working relationship between the two women in order to assess the likelihood that their history could have motivated an assault. [74] Ms. X worked briefly with the Grievor in 2012. In that year they had a meeting in their manager’s office where Ms. X alleges the Grievor raised her voice at her in front of the manager who did nothing. The Grievor denies raising her voice and says that it was not her practice to raise her voice in the workplace. Ms. X did not report this incident at the time because it had happened right in front of the manager. [75] In 2013 the two had little or no contact as they were both on leave for all or part of that year. In 2014, they did work together, and Ms. X testified that the Grievor had told her that she was not competent. Ms. X complained to their manager about this comment and about the fact that the Grievor had yelled at her and called her a name in 2012. The manager confronted the Grievor with the accusation and the Grievor denied having yelled at Ms. X or called her a name. Ms. X testified that she was upset because it appeared management did not take her claims seriously and as a result, she did not feel it was worth it to file a WHDP (workplace harassment) complaint. [76] The Grievor believes that these accusations arose out of the fact that Ms. X wanted some sort of relationship with the Grievor, but the Grievor had no interest, which made Ms. X angry. The Grievor acknowledges that this is just her opinion. Later, - 20 - given the accusation Ms. X had made to management, the Grievor wanted no part of any kind of relationship at all. [77] Ms. X asked to be taken off working with the Grievor. Following that request, the Grievor had no direct work contact with Ms. X. Management introduced a system where if the Grievor needed Ms. X’s assistance with something, the Grievor would advise management and then management would tell Ms. X what was required. When the work was completed, Ms. X provided it to management who would in turn give it to the Grievor. This arrangement continued until the incident. [78] The Grievor also testified in cross-examination that she felt Ms. X had caused another co-worker, Binta, who was friendly with Ms. X, to turn against her. She saw them whispering and talking and perceived that they were talking about her. [79] Ms. X denies that she wanted a closer relationship with the Grievor. However, she did indicate that she found it odd that the Grievor was so distant with her from the beginning. The fact that Ms. X was upset with the Grievor’s failure to have any kind of relationship was made clear in Ms. X’s comments to Ms. Chin immediately after the incident where she said: “Why is she making a big deal of this? You know, I have tried to engage her with kitchen talk but she is difficult”. And later, “She just ignores me. I am sure you know that we have had problems going back several years and everyone can tell you how difficult she is”. [80] After that, the Grievor felt awkward being around Ms. X. The Grievor testified that she never attributed anything that Ms. X did with respect to her as being racist, including the incident. That was AMAPCEO’s position virtually throughout this proceeding. In its closing AMAPCEO took a somewhat different approach but, in my view, it was too late to raise such issues and I do not address them in this decision. - 21 - [81] There was also evidence given by Ms. X and the Grievor about an incident in the office’s kitchen. The two of them wound up in the kitchen at the same time. The Grievor did not really recall the specifics of it, just that it was an uncomfortable situation. Ms. X recalled that she tried to engage in small talk with the Grievor but the Grievor did not respond. [82] The Grievor also testified that a few months prior to the incident at issue here, she and Ms. X passed each other in a hallway and Ms. X rubbed her shoulder against her shoulder. Both employees just kept walking after this occurred but at the time the Grievor felt uncomfortable because neither of them acknowledged that it had happened. [83] Ms. X also testified that she looked at the Grievor’s work diary on a day in 2014 and noticed that certain required payments had not been made. It is clear that she thought the Grievor was negligent, an opinion which the Grievor does not share. It is irrelevant except to demonstrate the level of animosity between the two and even if the diary was a “team diary’, accessible to all, it suggests that Ms. X was focused on the Grievor in a negative way. But this was some time before the incident at issue, at a time when it is clear the two had an actively poor relationship. [84] In 2015 Ms. X was assigned to team 2 and so worked with a different set of co- workers. In that year she had no interactions with the Grievor. In 2016 Ms. X was assigned to a special project and again had no interactions with the Grievor. Later, when Ms. X returned to regular duties, management decided that she would not assist with any of the Grievor’s caseload, presumably to keep them separated. They would occasionally see each other but have no interactions. [85] Ms. X gave evidence about her relationship with Binta, which was a friendly one. They discussed personal issues. Binta had complaints about the Grievor which she told Ms. X. Binta was upset about the Grievor but Ms. X denies advising Binta to behave in a particular way towards her. - 22 - The Investigation-early stages [86] The Grievor met with her manager Ms. Chin shortly after arriving at work the day after the incident. Ms. Chin testified about the meeting in a way that was not seriously challenged by any party. Ms. Chin was the Area Manager, Victims. and Vulnerable Persons, Office of the Public Guardian and Trustee. [87] On the agreement of the parties, Ms. Chin’s evidence in chief was put in through a will-say in order to save hearing time and because it was not anticipated that what she had to say would be controversial. The will-say says the following about what the Grievor told her: 4. She told me that the two of them were proceeding in opposite directions down a narrow hallway. [Ms. X] encroached on [the Grievor’s] side of the hallway and purposely bumped [the Grievor’s] shoulder and arm area. [The Grievor] said that [Ms. X] body checked her, that they collided at shoulder level. I asked her what she meant by that: “like in hockey?” She said, “that’s exactly what happened.” 5. I asked [the Grievor] if she fell, stumbled or was physically injured and she said “no” but she was caught off guard and shocked. She advised that she felt [Ms. X] meant to deliberately run into her as Ms. X didn’t turn around to acknowledge the collision nor did she say sorry. When [the Grievor] called her out by saying “excuse me” in a loud voice ([Ms. X] was by now some way down the hall), [Ms. X] simply turned around nonchalantly and said, “don’t walk in front of me then.” [88] Ms. Chin asked the Grievor why the incident was not reported to another manager on the day it occurred, and she replied that she was in a hurry to pick up her child from day care and she was in a state of shock that it happened. She also advised that she had issues with Ms. X going back several years which she “did not report to management” and wanted to keep the peace. According to Ms. Chin, the Grievor became emotional during the meeting and cried. [89] The Grievor took notes after their conversation which are less detailed but do not contradict Ms. Chin’s evidence. Importantly, the Grievor’s notes confirm that the - 23 - Grievor told Ms. Chin that Ms. X “bodychecked” her. There is no mention in the notes about the “shoulder and arm” area discussion noted by Ms. Chin. [90] Once the Grievor left Ms. Chin’s office, Ms. Chin immediately contacted a human resources adviser and the Ministry’s Workplace Discrimination and Harassment Prevention (WDHP) adviser. She also contacted the Ministry’s health and safety adviser to report the incident. He agreed the WDHP process was the appropriate route and also suggested that Ms. Chin meet informally with Ms. X to get her side of the story. Ms. Chin then advised the Grievor that a WDHP person would be in contact with her. [91] Shortly thereafter, the Grievor asked to go home as she was not able to concentrate on her work and Ms. Chin agreed. The Grievor said that she was ok to get home on her own. [92] At approximately 11 am, following the team meeting, Ms. Chin spoke to Ms. X about what had happened. Unfortunately, despite the subject matter of the meeting, Ms. Chin did not ask Ms. X if she wished to have union representation. According to Ms. Chin, Ms. X said that the Grievor came around the corner and started down the hallway. Ms. X was already in the middle of the hallway. The Grievor then veered into her, moving into her space, and banged into her. Ms. X told Ms. Chin that the Grievor said “in a very loud and angry voice for everyone to hear, “Excuse me?”. Ms. X told Ms. Chin that she did not speak to anyone about what had happened; she did not think anything of it and just went back to her desk and continued working. Ms. X also raised the fact that she had been doing physiotherapy and her movement was not as quick as it used to be. She did not understand why the Grievor was making an issue of this as neither of them was injured. [93] Ms. Chin then asked Ms. X how she knew the Grievor was not injured. Ms. X responded by saying that she considered herself the injured party; this was the Grievor’s fault. She advised Ms. Chin that she had tried to engage in “kitchen talk” - 24 - with the Grievor but the Grievor is “difficult”. Ms. Chin asked Ms. X what she meant, and she responded that she meant small talk if she saw the Grievor in the kitchen. However, the Grievor had ignored her, and Ms. X told Ms. Chin that she had problems with the Grievor going back several years and that everyone could tell her how difficult she is. [94] Ms. Chin then asked Ms. X to return to discussing the incident. Ms. X said that they had only banged arms and that her immediate response to the incident was to say “ow”. Ms. X then clutched her elbow to demonstrate. Ms. X said that she was not hurt but her use of the word “ow” was because she was caught off guard. Ms. X asked whether the Grievor claimed to be hurt and said if she was making such a claim, she would contact her union. [95] Following their meeting, in the afternoon of that day, Ms. X asked Ms. Chin to speak again. Ms. X advised that she has a medical condition and her doctor had advised her not to jar or shake herself unnecessarily. Ms. X told Ms. Chin that, as a result, she is careful how she walks and would not intentionally walk into someone to jeopardize her own health. She then provided Ms. Chin with details of an upcoming medical procedure including the date in November that the procedure was to occur. [96] All parties attempted to attack the credibility of the opposite protagonist by comparing the written and oral accounts they had given over time with the evidence given before me, including the statements given to Ms. Chin. While it did cross- examine her, AMAPCEO essentially accepts Ms. Chin’s notes as being an accurate reflection of the discussion the Grievor had with Ms. Chin. OPSEU and Ms. X initially agreed that the notes Ms. Chin took of the conversation she had with Ms. X were accurate. However, as noted, during cross-examination Ms. X challenged the accuracy of those notes on more than one occasion, apparently generally when those notes were inconsistent with other parts of Ms. X’s testimony. In closing argument, OPSEU took the position that Ms. Chin’s notes were flawed. - 25 - [97] I accept the accuracy of Ms. Chin’s evidence of her conversations with the Grievor and Ms. X. She took notes that were taken either at the same time or immediately after her conversations with the two women. In addition, with respect to her conversation with Ms. X, Ms. Chin was aware that conversation was at least a preliminary part of an investigation into a serious allegation. She had been instructed by human resources management to take the notes, she took them as Ms. X spoke, and I find it likely that she would have taken extra care to be accurate. OPSEU did not challenge the accuracy of those notes in cross-examination. [98] OPSEU also argues that Ms. Chin’s testimony about her conversation and her notes about that conversation with Ms. X ought not to be given weight because Ms. X was not afforded the opportunity of union representation during the conversation and this failure was contrary to the collective agreement. In this regard Article 22.4 of the collective agreement provides that “the employee, at his or her option, may be accompanied and represented by a Union representative at the Formal Resolution Stage of the grievance procedure”. [99] I need not decide whether the collective agreement mandates that the Employer afford the Grievor union representation at an investigatory meeting (assuming the meeting in question was an investigation meeting). Nor do I need to decide whether it is important that Ms. X did not ask for union representation at the outset of the meeting when Ms. Chin advised her that she was accused of assault. Whatever the legal outcome of those determinations I am satisfied that they do not operate to preclude AMAPCEO, which is not a party to the OPSEU collective agreement with the Employer on which OPSEU relies, from relying on Ms. Chin’s evidence about what Ms. X said in her meeting with Ms. Chin. [100] The Grievor provided a doctor’s note on October 20 indicating that she could not return to work. She was ultimately approved for WSIB benefits and has remained off work until at least the last hearing day on this matter (April 2021). Ms. X has - 26 - been off work since early 2018 and has been on LTIP since July 2018. I do not know whether her absence is related to this incident. [101] As part of the workplace complaint and investigation process, on November 7, 2017, the Grievor submitted a written statement of her version of the events. In Ms. Chin’s view, the Grievor’s written version differed from what she had said orally to Ms. Chin in that the Grievor now claimed that Ms. X actively raised her hands and pushed her as opposed to claiming that she had been bodychecked. November 7, 2017 [102] Chronology of events: … I recently experienced violence in my workplace. I believe that the individual responsible for this violence has also personally harassed me for years. I request that you undertake a serious and thorough review of the details of this workplace violence and personal harassment and take immediate corrective action to address both. Ms. X is a Client Rep Assistant who works on Team 1 and provides administrative support to 2 other Senior Client Representatives. Ms. X does not work directly with me at this time. In terms. of the circumstances of the assault, around 3:10pm on Monday October 16, 2017 I was on my way to the fax machine to perform my last activity before leaving for the day (my current work schedule is 7:30–3:15pm). I sit down the hall from the printer machine and therefore have to walk approximately 20 feet to get to the printer. The fax machine is located across the hall from my workstation. I therefore have to walk to get my correspondence from the printer, and then back to the fax machine. Ms. X's cubicle is located approximately 20 feet on the opposite side of the printer relative to my workstation and relative to the fax machine. As I approached the fax machine Ms. X was walking towards me. As we passed each other in the hallway Ms. X lifted both her hands to shoulder level, placed them both on my left shoulder, and pushed me sideways using the force she had built up by walking towards me. I remained standing after the physical contact took place, although the force of the encounter forced me to take a few steps back. Ms. X kept walking in the direction of her workstation. After realizing what had just happened and while still in a state of shock, I turned around and said to her "excuse me" Ms. X stopped walking, turned around and shouted in response "don't walk in front of me". - 27 - At that moment so many thoughts crossed my mind: should I confront her further about this? I was fearful the situation would escalate further given the heat of the moment and how angry she sounded. I perceived her response to be a verbal warning and viewed them as threatening comments to me. Her remarks were unapologetic and also confirmed her intent to physically attack me. In that moment I felt her deep hostility for me became clear. I started to pack up my things because as the mother to a 5 year old girl, I am responsible for picking her up every day from school and I needed to catch my GO train to be on time for this. She was my first priority. While getting my things together some of my colleagues (Karren Bowyer and Ronald Teape) were talking to me immediately following the incident. Karren Bowyer whose workstation is located next to mine and faces the fax machine, did not see the encounter but told me she saw my reaction to the incident. She also heard first hand Ms. X's response and she too was very shocked by what she had just witnessed. I believe my other colleague Ronald Teape overheard the exchange. I left work in a hurry, shaken & disturbed by this shocking incident. Prior to this incident the relationship between Ms. X and I had deteriorated since 2014. I think it's important to provide some context about our previous interactions and what brought us to this point. Ms. X worked briefly as my Client Rep Assistant in 2012. On or about May 14, 20141 was advised my manager at the time Angela Vincenzo about a discussion and complaint she received from my colleague Ms. X about me. This was when I first became aware that Ms. X had an issue with me. According to Ms. X she said I had yelled at her and called her a name 2 years prior (2012) when she worked briefly as my Client Rep Assistant. Angela was not working at the office at that time. I responded to these allegations that I behaved this way by informing my manager that to the best of my knowledge I never yelled at Ms. X or called her a name. My interactions with Ms. X and other colleagues have always been professional, respectful and wasn't aware she felt this way. Angela said my tone toward Ms. X was condescending. I believe these remarks and incident laid the groundwork for my future interactions with Ms. X. Ms. X's workspace is somewhat close to mine. Since the 2014 exchange with Angela, Ms. X and I do no not talk. I find it is awkward to be in her company. I recall an unpleasant moment in the lunchroom that occurred with Ms. X that left me feeling very uncomfortable after Angela left in 2015. It appeared that Ms. X was trying to provoke some type of conflict with me. There was a brief outburst from her that was directed at me. I'm not exactly sure what caused this. I am not sure if it was over the microwave or use of the sink. Since that incident happened I have tried to minimize my contact with her and I avoid her. I remember sharing this incident with one of my colleagues (Karren Bowyer) and how bizarre her behaviour was. I also recall another incident that took place between the two of us earlier this year when Ms. X and I were walking past each other in the hallway close to the printer room on Team 2. As we were passing each other, Ms. X came in close physical contact with me. I felt our arms touch and my immediate sense was that she was intending to come in close physical proximity because nothing was said. I felt uncomfortable about it, but again, I ignored this encounter and her behaviour to be the "bigger" person and the professional one. In both cases, although noteworthy, no verbal exchanges took place prior to these - 28 - incidents and I decided to take the high road and not engage her. I would not participate in this type of conduct and saw these behaviours by her as an attempt to get me upset or trigger some type of reaction from me that would not lead to a good outcome. Since this incident happened, I have been unable to return to work and I'm currently on medical leave as a result. This incident has taken a psychological toll on my life, my physical and emotional well-being. In terms. of my state of mind, I am unable to turn my thoughts and memories off about the situation because I was blindsided by her physical attack. This situation has made me feel vulnerable and exposed my vulnerability at work in a way that did not exist prior to this incident. In addition, I have had difficulty sleeping not to mention having frightening thoughts thinking about the incident. I find it hard to process that someone would go to this level to hurt me especially when unprovoked at my place of work. I am embarrassed and have concerns about being judged over this incident. Even though it is not my fault that my co-worker turned violent, I will forever be associated with this incident. All together I feel the different incidences, including personal harassment and acts of hostile aggressive behaviour described above that I've been subjected to amount to a course of vexatious comments from this person and conduct meant to intimidate and bully me, harass and target me to make me feel isolated and uncomfortable at work. These are clear violations of the OPS Workplace Violence Prevention Policy and Respectful Workplace Policy. (emphasis added) [103] Along with her written statement, the Grievor submitted a request for remedies. The way that document came into being was put into evidence before me. Prior to filing her submission, the Grievor and AMAPCEO had a discussion about what remedies she wanted out of the investigation process. The Grievor said that she wanted accountability. AMAPCEO then drafted items 1 to 4 and 6 (see immediately below) while the Grievor included item #5 as follows: 1) The immediate cessation of all violent and harassing behaviour and conduct towards me in the workplace 2) The creation of a workplace safety plan for me, which will be jointly created by management team and me, with support from my workplace. Included in the safety plan, among other items, would be the physical separation of myself and [Ms. X]. Preferably being relocated to a different place of work. - 29 - 3) Renewed and mandatory training for all staff (of all bargaining units) across the 3 teams on the Respectful Workplace Policy and the Workplace Violence Prevention Policy. 4) Management’s commitment to me to maintain a safe working environment. Posting the Workplace Violence Prevention summary poster conspicuously throughout the workplace. 5) Compensation for any loss of earnings incurred or vacation credits lost while on sick leave related to this incident. 6) Damages for mental anguish and other pain and suffering. [104] On November 20, 2017, Ms. Chin advised the Grievor by email that her complaint was deemed not personal harassment in violation of the respectful workplace policy and therefore it was “out of scope” of the WDHP. Moreover, most of the incidents which had caused animosity between the two women had occurred outside of the time limits for a WDHP complaint. She was also advised however, that an investigator (the Investigator”) had been appointed to investigate her complaint with respect to potential violence in the workplace (WVPP). [105] Ms. Chin gave evidence about the process in determining that a WVPP investigation was required. She also gave evidence about the decision to use an internal investigator rather than an external investigator. Management decided that an internal investigator would be appropriate as they were concerned about the length of time it would take an external investigator to complete the process. They had considered whether Ms. Chin should be the investigator but ultimately rejected the idea. They relied on the fact that Ms. Chin lacked experience in conducting investigations, a concern for how any findings might affect her working relationship with the two employees in the future, the fact that Ms. X might think that Ms. Chin might favour the Grievor because the Grievor was in a more senior position, that the Grievor might think that Ms. Chin would favour Ms. X because Ms. X was undertaking a special project for Ms. Chin. In addition, there was a concern of race coming into play. Ms. Chin is Black. Ms. X might be concerned because Ms. Chin - 30 - and the Grievor are both Black or that the Grievor would be concerned that she would overcompensate for the same reason. [106] In the end, the WDHP suggested that an OPS Manager from another department (who is also a lawyer) be appointed to investigate the matter. The person chosen had extensive experience as a lawyer dealing with employment-related matters of various kinds in the OPS. They agreed that he had the experience and skills necessary to conduct the investigation and he would be neutral because he did not know either of the two women. Ms. Chin accepted the recommendation, and the Investigator was appointed. [107] AMAPCEO does not suggest that the Employer’s decision to choose another investigator over Ms. Chin for race reasons (among other reasons) was improper- in fact, it asserts that it was the right thing to do. While I accept AMAPCEO’s position for the purposes of this hearing, I have my own concerns about what happened that I feel are important to express. Whenever there are interactions between people of different races there is always the possibility that race will be an issue. However, here the reaction to that possibility was to deny the Grievor the opportunity to have the investigation conducted by someone who knew her (for better or worse). Moreover, the assigning of the case to an Investigator who is of the same race as Ms. X was not seen as fraught with the same racial issues as appointing Ms. Chin, which is difficult to understand. It is somewhat perverse (but a reflection of the way race is in society) that the Employer was concerned that a Black investigator was seen as raising concerns because the Grievor was Black, while no similar concerns were raised about a White investigator being appointed when Ms. X is White. The Investigation – the Investigator’s Process and Report [108] Neither the Investigator nor any of the human resources professionals (the Team) that assisted him with the investigation and the drafting of the report were called as a witness in this matter. However, several versions of draft reports and a number of - 31 - emails between the Investigator and the Team were put into evidence. There is no dispute that those drafts and emails accurately reflect the process that was engaged in by the Investigator and the Team. [109] On December 6, 2017, the investigation team had a conference call in which they discussed how to approach the matter. The Investigator noted that the allegations seemed fairly straightforward and that he anticipated it would be a “she said/she said” situation. [110] The concise statement of allegation signed by the Grievor which was the subject of the investigation was: At around 310 pm on Monday October 16, 2017 when I was on my way to the fax machine, I observed [Ms. X] walking towards me. As we passed each other in the hallway, [Ms. X] lifted both her hands to shoulder level, placed then both on my left shoulder, and pushed me sideways using the force she had built up by walking towards me. I remained standing after the physical contact took place, although the force of the encounter caused me to take a few steps back. [Ms. X] kept walking in the direction of her workstation. After realizing what had just happened and while still in a state of shock. I turned around and said to her “excuse me”. [Ms. X] stopped walking, turned around and shouted in response, “don’t walk in front of me”. [111] On January 26, 2018, the investigation team met with Ms. Bowyer, Mr. Teape, the Grievor, and Ms. X to get their side of the story. They had prepared a question template for each witness which they completed as the witnesses gave their answers. Although the answers given to the Investigator were largely the same as is set out above, it is necessary to set out them out to highlight differences. Following the initial round of interviews, the Investigator spoke with two more OPGT employees, Roberto Guattieri and Steve Dymond because it was suggested they might have heard or seen something. Ms. Bowyer [112] Ms. Bowyer told the Investigator that the fax machine would have been in her sight at the time when the incident occurred had she been looking up. She did not see - 32 - what happened. She heard the Grievor say “excuse me, excuse me”. She saw Ms. X walking away back to the hallway which ran perpendicular to the corridor in question. Ms. X replied, “if you weren’t in my way” or “you were in my way” or something to that effect. She said that the tone was not pleasant. Ms. X was not loud, and it was not a screaming match. The Grievor spoke loudly, louder than Ms. X, whose response was not that loud. If she was not close by, she would not have heard Ms. X’s response. [113] Ms. Bowyer was asked if she spoke to either of the women after the incident. She replied that she spoke with the Grievor (whose cubicle is right beside hers) and asked what happened. The Grievor responded that Ms. X had pushed her. Ms. Bowyer told the Investigator that the Grievor was surprised and visibly upset. It was close to the time for the Grievor to go home. The next day they spoke again and the Grievor told Ms. Bowyer that she could not believe what had happened. Ronald Teape [114] Mr. Teape told the Investigator that he was sitting at his cubicle when he heard “excuse me excuse me” in a loud tone. He heard Ms. X say something that was not audible to him. Ms. X was speaking in a softer voice than the Grievor. [115] The notes of the interview of Mr. Teape are important in this section because the Investigator relied on what Mr. Teape said in finding that the Grievor was not credible. There are handwritten notes and typed notes. The handwritten notes state that Mr. Teape said: “spoke shortly with her [the Grievor]. She said [Ms. X] shoved her, was upset and left. Just me talking to her. I prob. not [ here the word “not” is not written. There is a scribble which may be a symbol indication “not”] speak with her”. The typed notes state: “She said that [Ms. X] shoved her and she was upset and left for the day.”. He thought it was just him speaking to the Grievor. He was asked whether he spoke to the Grievor and said, “No I don’t think so”. Mr. Teape was not called as a witness before me. He was not asked about Ms. Bowyer who must have been present. Nor was he asked to clarify how it was “just him - 33 - speaking to the Grievor” when he answered “no, I don’t think so” to the question “Did you speak to the Grievor”. It seems highly unlikely that he was “speaking” to the Grievor alone and she said something to him, and he said nothing back. Roberto Guattieri [116] Mr. Guattieri was called to speak to the Investigator after the first round of interviews. He was a Senior Client Representative and was in the office at the time of the incident but not in sight of the area where the incident occurred. He told the Investigator that he heard the Grievor’s voice. He could not remember the words used but he did recall her tone. According to him she was slightly louder than usual and had a “confrontational” tone. He did not hear Ms. X and did not even know she was involved. Mr. Guattieri was not called as a witness before me, and I do not draw any adverse inference from the failure of any party to call him as a witness. Based on what he told the Investigator he had nothing to add. Steve Dymond [117] Mr. Dymond heard and saw nothing although his cubicle was at the point where the Grievor asserts Ms. X made her comment. It is unclear whether he was in his cubicle at the time of these events. I do not draw any adverse inference from the failure of any party to call him as a witness. The Grievor [118] The Grievor told the Investigator that she turned down the hall towards the fax machine and noticed Ms. X coming towards her. The Grievor was on the right and Ms. X was on the left. Before the Grievor reached the fax machine Ms. X shoved her on the left side. She used “full force” with both arms on her left arm or shoulder pushing sideways. The Grievor stumbled sideways in the direction she was pushed. She did not fall and maintained her balance. The Grievor turned and said, - 34 - “excuse me, excuse me”. Ms. X stopped, turned, and said in a “bad” tone that she “should not have walked in front of me”. She thought that Ms. Bowyer had seen her stumble. [119] The Grievor explained that it was a long hallway and there was “ample room for 3 or 4 to get by”. It was not an inadvertent bump. There was a good view and ample space to avoid contact. They made eye contact as they approached each other but did not speak. The Grievor was looking at the fax machine and did not move into her. I note that the view of the fax machine would have been blocked or partially blocked by the Grievor the more to the right of the corridor she was. [120] The Grievor said that Ms. X “shouted” and looked directly at her. She felt threatened by her words. She physically attacked her. She thought that Mr. Dymond might have heard the exchange because his cubicle was near where Ms. X was when she talked to the Grievor. [121] Following the incident, she spoke to Karen Bowyer and Ronald Teape. She told them what happened and then said, “I can’t believe this. This is unacceptable”. Mr. Teape said she handled it well. [122] The Grievor gave the Investigator a concluding statement in which she said that she has been on the receiving end of vexatious comments and acts of hostile aggressive behaviour from Ms. X. She told the Investigator she had been bullied, intimidated, isolated, and made to feel uncomfortable at work. She wanted management to know how deeply this has affected her and that would affect her for the rest of her life. She constantly worries about her personal safety. She worries about a toxic work environment when she returns to work and being blamed and re- victimized. She believes there is a broader problem in the workplace, not just limited to one person. She told the Investigator that she hopes that management will consider her doctors’ reports which speak about the impact of this event on her health. - 35 - Ms. X [123] Ms. X told the Investigator that she went to the mailroom. When she returned, she walked on the left side of the corridor to stay away from the cubicles on her right to allow people working in those cubicles more privacy. She said that she then made the turn to the corridor in question and walked on the right side of the corridor (before me she said she was on the left side). She walked just past the fax machine, not looking up. She sensed movement. She looked up and saw that the Grievor was on the other side and Ms. X expected her to stay on that side. The Grievor crossed to her side and walked into Ms. X. Ms. X tried to get out of the way. Ms. X continued walking and expected the Grievor to slow down. She tried to go around on the Grievor’s left side but both left shoulders bumped. [124] She told the Investigator that it was not a strong bump, and no one lost their balance. Both of her hands were down at her sides. Both women stepped back and before she could say anything the Grievor put her hands on her hips and said in a loud, elongated voice “well excuse me”. Ms. X replied “[Grievor]you walked into me.” [125] Ms. X walked to the corner and looked back. She saw the Grievor talking to Ms. Bowyer in an animated way but could not hear the words. Ms. X was rubbing her shoulder and said “fuck” to herself softly, went back to her cubicle, shook it off, and went back to work. [126] The Investigator asked whether Ms. X saw the Grievor coming. She replied that she made eye contact but believed there was room for two people to pass. She denied raising both hands to push and did not know why the Grievor would say that. She also disagreed that the Grievor lost her balance; both took a step back. [127] She stated that the Grievor’s words were much louder than her words; Ms. X’s voice was raised but not to the same level as the Grievor’s. She also said that - 36 - Steve Dymond might have seen the incident because “he works closest to where the bump occurred”. [128] Before she knew this was an “incident” she talked to a coworker about it, but she did not see the co-worker that afternoon. [129] Finally, Ms. X discussed the medical issues she had. The incident was a month before she was scheduled to have a procedure related to those medical issues. She said that she was in “pretty constant pain”. She also said that she had balance problems and some difficulty walking which could have had an effect on how quickly she could get out of the way. Ms. X’s union representative, who was at the interview, asked the Investigator “Ms. X was in a lot of pain; why would she bodycheck someone?” [130] A few hours after the Investigator had heard from the final witnesses on February 2, he produced a first draft of his report. It was a rough draft with significant gaps, such as the statements given by each witness in response to his questions, that he asked the Team to fill in. He asked the Team to advise whether they had concerns with the draft report but clearly thought there would not be any as he concluded by saying that apart from “polishing the final version”, he assumed that he was now “done with this matter”. The Investigator’s initial analysis of the facts is relevant to the matters before me and is therefore set out as follows: Based on the evidence reviewed and on a balance of probabilities, it is determined that incident did not occur as described by the [Grievor]. There was physical contact between the [Grievor].and [Ms. X] in the hall way near the fax machine on October 16, 2017 at about 3:10pm. The contact occurred as described by [Ms. X]. Their two left shoulders bumped as they passed each other in the hall by the fax machine. I do not accept the assertions of the [Grievor] that [Ms. X] raised her hands and placed both of them on the left shoulder of the [Grievor], to push her aside in - 37 - a deliberate assault. Therefore, I find that there was no assault by [Ms. X] and no violation of the Workplace Violence Policy. The version of [Ms. X] is more consistent with the facts that are not in dispute. The [Grievor] was performing her last task of the day before going to pick up her daughter. I conclude that to do this as quickly as possible she went across the hall, directly towards the fax machine and thereby cut in front of [Ms. X]. [Ms. X] was walking on the right. She noticed the [Grievor] shortly before contact. She moved to the left to get out of the way. However, she did not move quickly enough to avoid contact. The witnesses who heard the verbal exchange that followed the contact all corroborate the version of events given by the [Grievor]. In particular, they all stated that the tone of voice of the [Grievor] was louder than that of [Ms. X]. Mr. Guattieri described the [Grievor’s] tone as threatening. He could not hear [Ms. X] at all. The other witnesses also do not support what the [Grievor] recalls of conversations immediately after the contact. The [Grievor] said that Mr. Teape told her that she handled it well. He recalls saying nothing to her. The [Grievor] recalls Ms. Bowyer stating that she saw what happened and making comments favourable to the [Grievor] about not retaliating. However, Ms. Bowyer saw nothing and states that she simply asked what happened. No explanation has been offered as to why [Ms. X] would commit a criminal offence. The assault is clearly and credibly denied by [Ms. X]. There was no evidence to suggest that she was inclined to violence of this nature and, even if she was, she described the pain that she was in from her medical condition, which makes it even less likely that she would assault someone at that time. [131] There are several errors in this first draft, some of which will be discussed below. [132] The Investigator added an important new paragraph in the next draft: - 38 - The evidence of the [Grievor] seems self-serving. She admits to no wrong, not even suggesting that she raised her voice after the contact. Her evidence, including her claims of the continuing impact of this minor physical altercation, seems calculated to support her various claims for relief, including compensation. [Ms. X] appeared more credible. She admits matters that could be perceived as against her interest. For example, she says that she could have stopped to avoid contact. She also concedes that she raised her voice in the exchange following the contact. [133] The members of the Team had several quite cogent comments about the early drafts of the report. These included the fact that Ms. X appeared to contradict herself about whether the Grievor had lost her balance, that Ms. Bowyer’s statement that the Grievor was visibly upset after the incident should be added; a question about whether they should ask for medical evidence to support Ms. X’s claim; and the fact that the two employees have a history of a stressed relationship. It was also suggested that the phrase “the evidence of the complainant seems self- serving” be replaced with the “evidence of the complainant appears to be subject to selective recollection”. [134] The Investigator submitted a new draft report on February 14, 2018, incorporating some of the suggested changes made by the Team. However, he retained the paragraph that no explanation had been offered why Ms. X would commit an assault even though it had been pointed out that there was in fact evidence of a strained relationship. He also continued to accept Ms. X’s claims that she was in constant pain without seeking medical support for that. [135] Again, there were comments from the Team. The concern about Ms. X’s conflicting statements about losing balance was identified again. The conclusion about the Grievor’s “selective recollection” was called a “stretch”. [136] In a version of the report the Investigator sent to the Team on February 15, the paragraph about the Grievor’s motivation was amended to “The evidence of the complainant seems contrived to support her various claims for relief”. The Team - 39 - again commented that this also seemed a “stretch” and suggested that it be removed. [137] On February 20, the Investigator submitted a new draft report. In the accompanying email, he stated, “I will make no further major changes”. Again, there were comments. The Team suggested that he remove a reference to the Grievor being in a rush and the way the accident occurred because it was “opinion based” and “not based of the facts of the investigation”. The Investigator declined the suggestion, saying it was a “reasonable inference from the facts that are not in dispute”. [138] The Team also noted with respect to the Grievor’s motivation, that the Investigator’s conclusion that the incident was minor, failed to take into consideration that what is perceived as minor to one person may not be minor to another. It appears that the Team was attempting to have the Investigator give up his conclusions about the Grievor’s motivations for filing the complaint and to recognize that the Grievor may have a genuine belief and feelings about what had happened. They also asked the Investigator how he concluded that the Grievor’s claims about the hostility of the Grievor to Ms. X were exaggerated. [139] On February 21, the Investigator replied that he would “like to be done with it” and if they still thought the reasoning was weak on “exaggeration” he could take that out. They had a discussion in which he replaced the paragraph where he stated that the hostility towards Ms. X was exaggerated and replaced it with the paragraph that is in the final version which is set out below. Later that day one Team member wrote to another to say that they had done all that they could do: At this point we have provided [the Investigator] with our advice, but ultimately he is the investigator and these are his findings. This may prove problematic when its grieved. One more approach you may want to consider when you respond to him is flagging that the report will ultimately be shared with OPSEU and AMAPCEO through the grievance process, and confirming that he’s comfortable with the findings with that in mind. - 40 - [140] It appears that shortly after that email was sent, the Investigator sent a new draft of the report. Accordingly, one Team member wrote to the other: Hi T. Please disregard my email that I sent earlier this morning with the previous findings. [The Investigator] has reached out to me this afternoon and after some thinking he has decided to amend one of the paragraphs and replace the wording (as is discussed above)….ultimately the rewording of this paragraph is the advice we provided to [him] initially…he thought it over and had a change of approach”. [141] The final report was sent to Ms. Chin on February 23, 2018. It states: SUMMARY OF INTERNAL FACT-FINDING/INVESTIGATION BACKGROUND A Workplace Violence Prevention Policy internal investigation was initiated in response to an allegation filed by the complainant against the respondent on October 17, 2017. The complainant alleged that the respondent had subjected her to violence in the workplace as detailed in the attached Statement of Allegations. Please see Appendix A attached The complainant is a Senior Client Representative in the Office of the Public Guardian and Trustee of the Ministry of Attorney General and has been in this position since 2003. The respondent is a Client Representative Assistant in the Office of the Public Guardian and Trustee of the Ministry of Attorney General and has been in this position since 2004. The complainant and respondent are co-workers. They have no direct reporting relationship, although they work in the same office area. INTERNAL INVESTIGATION PROCESS This investigation was conducted by [the Investigator] [who is a lawyer in the OPS]. Neither the complainant nor the respondent, nor any of the other - 41 - witnesses, have a reporting relationship, either direct or indirect, with the Investigator. Before this investigation the Investigator had no direct contact with any of them. During the course of the investigation, the Investigator reviewed documentary evidence, and interviewed the complainant, respondent and four other potential witnesses, only three of whom had evidence to offer. Documents reviewed included a chronology of events prepared by the complainant dated November 7, 2017 and an email message from the complainant of the same date that sets out the redress that she seeks. The complainant asked the investigator to consider both. Also considered was a rough sketch of the office area where the alleged incident took place. This was prepared by the respondent during her interview. ALLEGATION FINDINGS Incident: The complainant observed the respondent walking towards her. As they passed each other in the hallway, the respondent lifted both her hands to shoulder level, placed them both on the complainant's left shoulder/arm, and pushed the complainant sideways using the force she had built up by walking towards the complainant. This forced the complainant to take a few steps back. When she said "excuse me" the respondent shouted at her. Complainant Position: The complainant stated that on October 16, 2017, at about 3:10 pm, she was walking in a hallway towards a fax machine. This was to do her last task for the day. Her day ends at 3:15. She had to leave quickly in order to pick up her five- - 42 - year-old daughter from school. She needed to catch a GO train to be on time and this was her “first priority.” As she passed the respondent in the hallway, the respondent raised her hands, placed them on the left shoulder/arm of the complainant and pushed her sideways, using the force that she had built up as she walked towards the complainant. This was not an inadvertent bump. The complainant said, “she shoved me on the left side, both arms, full force" and "she physically attacked me.” There was plenty of room in the hallway to pass without contacting each other. They could see each other coming. They made eye contact and there was ample time to avoid making physical contact. No words were exchanged before the contact. The complainant stumbled sideways in the direction she was pushed, but maintained her balance. The complainant was in shock. The respondent kept walking. The complainant said "excuse" me" to the respondent, who then stopped, turned and shouted at her "don't walk in front of me? The complainant felt threatened and did not know why she deserved this. In her written statement, the complainant states, that the respondent's "remarks were unapologetic and also confirmed her intent to physically attack me." She adds, "In that moment I felt her deep hostility for me became clear? She also states that she was afraid that, "the situation would escalate further given the heat of the moment and how angry she sounded." The complainant returned to her work station, where she spoke with witness 1 and witness 2. She says that witness 1 said she saw her stumble and saw her reaction. She said that it was good that she did not retaliate. Witness 2 told her that she handled it well. The complainant named 2 other individuals, identified as witnesses 3 and 4 below, as possible additional witnesses. - 43 - The complainant says that she has always been professional and respectful towards the respondent. The complainant cannot explain her hostile and aggressive behaviour. She wants management to know how deeply she has been affected by the incident and the "damage and hurt" that she will carry "for the rest of my life". She claims that the physical force and verbal statement of the respondent are violations of the WDHP, the Workplace Violence Prevention Policy and the Respectful Workplace Policy. She claims that she has been "bullied, intimidated, isolated and made to feel uncomfortable at work." She states that she has been unable to return to work since this incident. The complainant requests numerous remedies, including compensation for any loss of earnings or vacation credits while on sick leave related to this incident as well as damages for mental anguish and other pain and suffering. She also wants to work with management on a workplace safety plan for her, which preferably involves the respondent being "relocated to a different place of work." Documentary Evidence: The first piece of documentary evidence reviewed was a "Chronology of events" prepared by the complainant, dated November 7, 2017, which confirmed and elaborated on the complainant's version of events. Please see Appendix B attached. The second piece of documentary evidence reviewed was an e-mail message from the complainant copied to her manager Maureen Chin, dated November 7, 2017 (the last in an e-mail chain that begins on October 20, 2017), which sets out the "redress" that she seeks. Please see Appendix C attached. The third piece of documentary evidence is a chart drawn by the respondent during her interview which shows the scene of the incident. Please see Appendix D attached. - 44 - Findings of the Investigator There is no dispute that there was physical contact between the complainant and the respondent in the hallway near the fax machine on October 16, 2017, at about 3:10 pm. There are dramatic differences in the recollections of the complainant and the respondent as to how this contact occurred. The two versions cannot be reconciled. As the Investigator, I must decide on a balance of probabilities whether the contact was the deliberate assault described by the complainant or the accidental bump described by the respondent. I am mindful of the factors to consider in assessing credibility. In particular, I am guided by the following summary. I have had regard to the demeanor of the witnesses, but in assessing what is most likely to have occurred, placed greater emphasis on whether the assertions of the witnesses were consistent with other objective information and, simply, what seems most likely to have happened, supported by reliable evidence. CUPE, Local 3261 v. University of Toronto (Tropak Grievance) (2014), 248 L.A. C. (4th) 181, at para 83 (Cummings). No explanation has been offered as to why the respondent would commit a deliberate assault. An allegation of physical assault is extremely serious. If true, the misconduct alleged against the respondent would arguably constitute a criminal offence. There is no evidence to suggest that she was inclined to violence of this nature. An accidental bump due to carelessness seems more likely. The evidence of the respondent is more consistent with the facts that are not in dispute. The complainant was performing her last task of the day before going to pick up her daughter. Whether she was in a rush to do this as quickly as possible, or simply not mindful of the presence of the respondent, I find that she went across the hall, directly towards the fax machine and thereby cut in front of the - 45 - respondent. She did not slow down as she approached the respondent. She was likely focused on her "first priority", which was to catch the GO train in order to pick up her daughter. The respondent was walking on the right. This would respect the privacy of people working behind low walls on the left. She noticed the complainant shortly before contact. She notes that she should have stopped in order to avoid contact. Instead, she moved to the left to get out of the way. However, she did not move quickly enough to avoid the bumping of left shoulders. This is consistent with her health issues that she described. The evidence of the complainant seems contrived to support her various claims for relief. I refer to the relief claimed in the second piece of documentary evidence noted above. She does not admit to any wrongdoing on her part, not even raising her voice after the contact. By her own account, the physical contact was not enough force to knock her off balance. Her evidence on the continuing harm from this event, that she will carry "for the rest of my life", seems calculated to lead to the requested relief, including compensation. The respondent appeared more credible. She was candid in giving her evidence and admits matters that could be perceived as against her interest. For example, she says that she should have stopped to avoid contact. She also concedes that she raised her voice in the exchange following the contact and used profanity. The witnesses appeared to have no vested interest in the dispute, and I accept their evidence as credible. While no one else saw the physical contact, the witnesses who heard the verbal exchange that followed all corroborate the version of events given by the respondent. In particular, Witness 1 and Witness 2 stated that the voice of the complainant was louder than that of the respondent. Witness 3 described the complainant's tone as "confrontational". He could not hear the respondent at all. - 46 - The witnesses also do not support what the complainant recalls of conversations immediately after the contact. The complainant recalls Witness -I stating that she saw some of what happened and making comments favourable to the complainant about her not retaliating. However, this witness states that she saw nothing and that she simply asked the complainant what happened. The complainant said that witness 2 told her that she handled it well. He is not sure that he said anything to her at this time and there would be no basis for this remark if, as he states, all he can recall is the complainant saying a loud "excuse me, excuse me" and something softer and inaudible in reply from the respondent. Based on my review of the evidence, and on a balance of probabilities, I find that the physical contact occurred as described by the respondent. As the complainant and the respondent passed each other in the hallway near the fax machine their two left shoulders bumped. This contact was accidental. Neither person intended to make physical contact. I do not accept the assertions of the complainant that the respondent raised her hands and placed both of them on the left shoulder or arm of the complainant, to push her aside in a deliberate assault. Therefore, I find that there was no assault by the respondent and no violation of the Workplace Violence Prevention Policy. CONCLUSION Based on the entirety of the information and evidence reviewed during the course of the investigation, I conclude that on a balance of probabilities the complainant's allegation that the respondent subjected her to a physical assault is unsubstantiated. The Investigation- Wrap Up [142] The Investigator provided his final report to Ms. Chin on February 23, 2019. Ms. Chin had a “close out” meeting with the Grievor on April 5, 2019. The Grievor’s - 47 - union representative and a human resources advisor also attended. Ms. Chin communicated the Investigator’s findings and advised that the next steps would be figuring out how the workplace could function once the two women returned from leave. Ms. Chin testified that they were open to discussing ideas about how to do this. However, the Grievor took a break shortly after the Investigator’s findings were communicated and did not return to the meeting. The meeting was never reconvened. [143] AMAPCEO complains about the way the meeting was handled. I disagree with its position. The Employer conducted an investigation, and a report was drafted. It is hardly surprising that the Employer would act on the findings of the report. Moreover, the Employer recognized that the Grievor might not be happy by the outcome and signaled it was open to having discussions about taking steps to return to a functioning workplace for the Grievor and Ms. X. This was not, as AMAPCEO suggests, a statement that the Grievor had done anything wrong. It was an attempt to find a practical solution to the fact that the two employees did not get along with a view to having them co-exist in the same workplace. [144] What AMAPCEO seeks, in effect, is for the Employer to have completely ignored the findings of the report. It is hardly surprising that the Employer did not do that. I do note that despite the Investigator’s findings about the Grievor’s motivations for filing the complaint, the Employer did not take any disciplinary or other action with respect to that. [145] The Employer did not provide the Grievor with a copy of the Investigator’s report. Its policy was that such reports were confidential, and it would be counterproductive to provide such reports to complainants and respondents. The Grievor ultimately obtained a copy of the report through the WSIB process. - 48 - WSIB [146] The Grievor has not returned to work since the day following the incident. Initially, she was in receipt of short-term sick credits but eventually, she applied for and was granted workers compensation benefits. The Grievor says that she is unable to return to that workplace. The Effect on the Grievor [147] The Grievor testified that she is a private person and found this incident humiliating. Her whole life has changed and all components of her life have been affected. She is constantly preoccupied with what happened to her. She has difficulty sleeping properly. She has been diagnosed and is being treated for a variety of psychological conditions which I need not detail as they are not in dispute. It is clear on the evidence before me that the Grievor has been significantly affected by the events giving rise to the grievance. The Grievor’s evidence is supported both by medical assessments and the decision of the WSIB to award her benefits. It is unclear what proportion of those effects is attributable to the incident and what proportion, if any, is attributable to the investigation and the report. Decision [148] This grievance requires a determination, in part, about two highly and almost inherently improbable events. The first improbable event is that Ms. X was walking along an office corridor and then randomly decided to assault the Grievor by aggressively shoving her in the shoulder with both hands. The second improbable event is that the Grievor, a long service employee of the Government holding a quite senior and responsible position with no history of spurious claims, decided to make up or exaggerate an allegation against Ms. X in order to obtain a monetary settlement. With respect to that second improbable event, neither the Employer or OPSEU argued that was the Grievor’s motivation and I easily find that the Grievor was not so motivated. I am satisfied that the Grievor genuinely believes something - 49 - terrible happened to her and that belief has affected her in a deleterious way. However, the questions remain: did something terrible and intentional happen to the Grievor and was the Investigator’s conclusion that the Grievor made this allegation up in order to obtain monetary damages, among other conclusions, affected by an incompetently conducted investigation, incompetence or unconscious racial bias. I determine first what happened in the corridor on the day in question. What Happened? [149] Making the ultimate factual determination in this case is exceedingly difficult because there were no witnesses to the contact between the Grievor and Ms. X. Moreover, the two cannot even agree on basic things like which side of the corridor Ms. X was walking as she approached the Grievor. That being said, there are certain facts that are not in dispute and a discussion of those is the most useful place to start an analysis of the situation. For this purpose, I accept Ms. Bowyer’s and Ms. Chin’s evidence as reliable. They have nothing to gain by being dishonest and their credibility was not diminished on cross-examination. [150] The contact happened in a corridor in the OPGT office. The evidence of the Grievor, Ms. X, and Ms. Bowyer suggests that the contact occurred at the fax machine or pillar which were located side by side and which together jutted into the corridor. While the corridor is quite wide for most of its length, the point at which the contact occurred was narrower because the pillar and fax machine jutted out. During the hearing we took a view of the location and measurements were taken of various locations. The distance between the pillar (the fax machine and the table it was sitting on are no longer there) and the opposite wall (formed by office cubicle partitions) was only three and one-half feet wide. In other words, the contact occurred at a choke point in the corridor. [151] The first factual point of contention was how easy it was for two people to pass each other in that corridor. In this regard, I disagree with the Grievor’s evidence that there was “ample” room for two people to pass at that point. In fact, I am - 50 - satisfied that at the point of the pillar or fax machine it would be difficult, if not impossible, for two average-sized women to pass each other walking in a straight gait without touching each other if, as one would expect, they each left room between their side and the wall/pillar, so they were not brushing against those structures. Two people passing at that point would likely angle themselves as they were walking to avoid contact. There is no suggestion that either person did that here. [152] A second factual dispute was which side of the corridor Ms. X was walking on as she approached the fax machine/pillar and the Grievor. The Grievor says that Ms. X was walking on the right side (from Ms. X’s perspective) and Ms. X says she was walking on the left side. There is no dispute that the Grievor was walking on the right side of the corridor (from her perspective). In other words, Ms. X says she was walking on the same side of the corridor as the Grievor and the Grievor says Ms. X was on the other side of the corridor. [153] Ms. X testified that she was walking along the left side of the corridor (from her perspective) to avoid disturbing people who were working in cubicles on the right side (from her perspective). While, as noted, this is disputed by the Grievor, it is not clear that this makes much difference in my assessment of the evidence. If I accept Ms. X’s evidence that she was walking on the left side, that means she was walking on the same side as the fax machine/pillar and would have had to move to her right to get around them to continue down the corridor. So, she would have had to move to the right in any event. [154] For the purposes of this decision, I will assume that the two women were at some point walking on the same side of the corridor towards each other. Crucially, the side of the corridor the two were walking on is the same side as the fax machine and pillar were located. Ms. X was closest to the fax machine and the Grievor was closest to the pillar, which she had to pass to get to the fax machine which was located on the other side of the pillar. - 51 - [155] I observe at this point that Ms. X was walking on the “wrong” side of the corridor in that the custom is for people to walk on the right side and that for the most part people do so. I believe that I can take judicial notice of that fact. I also note that Ms. X felt a need to explain why she was on the left side (to avoid disturbing people in cubicles) which I take as tacit acknowledgement that her walking on that side required an explanation. Obviously, there is nothing inherently improper about walking on the left side, but it is important in the context of these facts, given Ms. X’s reaction to the contact. [156] What can be assumed from the foregoing assessment of some of the known facts is that when both women reached the fax/pillar they each likely would have had to veer to go around them. Ms. X would have had to veer to her right and the Grievor would have had to veer to her left. If they arrived at the pillar/fax at approximately the same time, as it seems they did, then they could well have veered into each other especially, as seems likely based on their evidence, that neither of them was paying particular attention. Although it must be kept in mind that the fax machine and pillar occupied about three feet of the width of the corridor. [157] Obviously, the crucial point before me is not whether there was contact (which is agreed) but whether Ms. X shoved the Grievor with two hands. In my view that is entirely possible and even likely. Ms. X’s evidence was that she was looking down as she approached the fax machine. She testified that she noticed movement out of the corner of her eye and sought to avoid a collision by attempting to walk around the Grievor. It seems to me likely, that Ms. X would put up her hands to avoid the force of the collision. That would be an entirely natural thing to do especially since Ms. X believed, and testified, that the Grievor was walking quickly and Ms. X was walking with her head down. It would also be an entirely natural response to a possible collision to use those hands to ward off the Grievor. I also have little confidence in the ability of Ms. X to actually remember doing so (as she denies); it would have been an automatic, unconscious act. It seems unlikely that Ms. X, seeing that a collision was imminent, would not raise her hands as she claims. - 52 - [158] But was it a deliberate violent act? I have difficulty concluding that Ms. X would walk by the Grievor and then suddenly and for no reason give her a hard two- handed shove. It is likely that the location of the contact- at the narrow part of the corridor- where two people could not easily pass, played the most significant role in this incident. To the extent that Ms. X used two hands to push the Grievor it was most likely to have been to ward her off in order to avoid or cushion the collision. Given the narrowness of the location it is also difficult to see how Ms. X could have “lunged” at the Grievor; there was not enough room for that kind of action. I do not have sufficient evidence before me to come to any other conclusion. She may have overdone her warding off, but I am unable to find that it was an assault or pre- meditated. [159] In coming to this conclusion, I have considered a number of factors. The first is that Ms. X’s reaction was outside of what would normally occur when two people accidentally bump in the hallway especially when one of the people was on the “wrong side of the road” so to speak and, on her best case, acknowledges that it was a mistake to attempt to walk around the Grievor. One would normally expect that a person in that position would immediately, almost instantaneously, apologize. Ms. X claims that her apology “died on her lips after the Grievor yelled “excuse me, excuse me” (as I agree she did). Whether the words were “excuse me” or “excuuuuse me” they were most likely a reaction to the lack of an immediate apology which the Grievor placed emphasis on in her discussion with Ms. Chin. They also likely reflect the fact that Ms. X walked away from the Grievor following the contact and the Grievor was shocked that Ms. X had not stopped to deal with the situation. I believe that Ms. X’s failure to apologize or say anything at all was most likely a result of who she had made contact with and the lengthy unpleasant history between them rather than a reaction to the Grievor’s words. [160] Since I accept Ms. Bowyer’s evidence, I find that Ms. X responded to the Grievor by saying something like “well, if you weren’t in my way” rather than “Grievor, you walked into me” as Ms. X claims or “don’t walk in front of me” as the Grievor claims. While the three versions of her statement are similar and convey a similar - 53 - message, the version I accept is in my view the least deserving of sympathy. It says, in effect, the reason I hit you is because you were in my way and I need not alter my path to avoid you. However, it really tells us nothing about what the nature of that hit was and the purpose behind it. [161] However, whatever the animosity was between the two- and there was a substantial amount-I see no basis on which I could conclude that animosity would cause Ms. X to assault the Grievor. There is no dispute that they had little to do with each other for a considerable period of time prior to the incident. The last instance of explicit acrimony between the two was almost two years before. It is difficult to imagine that Ms. X was somehow so angry with the Grievor that she would choose the occasion of them passing closely in the hallway to assault her; it does not make sense. Of course, people frequently do things that do not make sense but that is still a significant factor, in the absence of direct independent evidence, which makes it unlikely that an assault occurred, particularly in this kind of work setting. [162] Apart from what is set out above, I take little guidance from the anomalies and contradictions in the evidence and conduct of the two women. The parties each made detailed and extensive submissions casting doubt on evidence given by one side or the other in arguing, in essence, that because they were not telling the truth in giving one piece of their evidence (or statement to another party) their testimony before me ought not to be believed. There is no doubt that such arguments can be successful in assisting the trier of fact in choosing one side or the other in difficult cases. However, as is set put below, here I find some flaws in the testimony given by both protagonists and therefore, overall, find this method of analysis of limited assistance. [163] Starting with the Grievor there were at least three areas of evidence where she was wrong or made inconsistent statements. The first and most important was that the Grievor made various inconsistent written and oral statements about what contact happened in the corridor. It is useful to review them: - 54 - To Ms. Bowyer and Ronald Teape: Ms. X shoved me To Maureen Chin: encroached on the Grievor’s side of the hallway and purposively bumped the Grievor’s shoulder and arm area. The Grievor told Ms. Chin that Ms. X had “bodychecked” her. Ms. Chin asked, “like in hockey?” and the Grievor confirmed that is what the contact had been like. Ms. Chin asked whether she had stumbled and she replied that she did not. Nov. 7 written statement: As we passed each other in the hallway Ms. X lifted both her hands to shoulder level, placed them both on my left shoulder, and pushed me sideways using the force she had built up by walking towards me. I remained standing after the physical contact took place, although the force of the encounter forced me to take a few steps back. Official Complaint: the same as the Nov. 7 statement. To the Investigator: Before the Grievor reached the fax machine Ms. X shoved her on the left side. She used “full force” with both arms on her left arm or shoulder pushing sideways. The Grievor stumbled sideways in the direction she was pushed. She did not fall and maintained her balance. Before me: In chief: Ms. X “raised her two arms and pushed” her on the left side of her body. She lost her balance as a result of the shove and nearly fell down. In cross: that “she lunged at me with her two arms and pushed to the side”. The contact between her and Ms. X was not shoulder to shoulder. [164] OPSEU and the Employer ask me to pay close attention to what the Grievor said to Ms. Chin the day after the incident. I do so. I find that the Grievor was inconsistent about whether she had lost balance. However, I am unable to conclude that the Grievor told Ms. Chin in that conversation that they had merely bumped shoulders. I also draw little from her statement that it was a bodycheck, like in hockey. A hockey bodycheck can mean many things to different people and the Grievor likely saw a push as being within the definition. - 55 - [165] More problematic for the Grievor is the way her recounting of the contact has evolved over time. One could conclude from the various statements the Grievor made about the nature of the contact that the violence of the contact tended to increase on the retelling. She went from a shove to a full force push to a lunge. She went from not stumbling because of the contact to nearly falling down. [166] While this can be seen as troubling, the most important aspect of this to me is the first thing she said to Ms. Bowyer and Mr. Teape moments after the contact occurred- that she had been “shoved”. That is the simplest and most likely description of what occurred. It is consistent also with what I described above as the most likely scenario. I see no difference between “shoving” and “using two hands to ward off’. It is more likely than the more extreme versions of the Grievor’s account. [167] Another problematic area for the Grievor was her description of the volume of her voice and Ms. X’s voice. Quite simply, those descriptions changed and were sometimes inconsistent with the evidence. While this is not directly relevant to determining what occurred – the relative tone of voices do not matter- they do affect how much evidence can be trusted. I accept Ms. Bowyer’s (and Mr. Teape’s) evidence that the Grievor said “excuse me, excuse me” at Ms. X in a loud voice and that Ms. X responded in a lower volume, but with an edgy tone and reject all other versions. [168] What have the Grievor’s various statements been on the two comments at issue? To Ms. Chin: called out to her by saying “excuse me” “in a loud voice” November 7 statement I turned around and said to her "excuse me" To the Investigator - 56 - The Grievor turned and said “excuse me excuse me”. Ms. X “shouted”. Examination-in-Chief: The Grievor said she “yelled”: “excuse me”. Ms. X “yelled”: do not walk in front of me”. The Grievor later said in examination-in-chief that she said “excuse me” in a “slightly raised voice”; she said it loud enough so that Ms. X could hear her. Ms. X spoke in a “slightly louder” voice than what the Grievor had used. Cross-Examination The Grievor says there is a strong possibility that she yelled at Ms. X. Ms. X yelled at her. The Grievor testified that she “just knows [Ms. X] yelled”. Re- Examination- The Grievor acknowledges that she yelled or shouted at Ms. X. [169] The evidence is that at various times throughout this process the Grievor downplayed her own tone of voice when she said, “excuse me”. There is nothing inherently wrong if the Grievor yelled those words given what she believed had happened to her. But the inconsistency in her recollections is cause for concern, particularly before me, especially when she knew that the Investigator had attached some significance to this point. One would have expected more consistency. This concern is enhanced by her insistence that Ms. X yelled at her even after she had heard Ms. Bowyer’s testimony, which I accept, does not support that. [170] A further, albeit less important, area, where the Grievor’s recollections do not line up with the facts that I have accepted is the location of Ms. X when Ms. X made her retort to the Grievor. Given that Ms. X did not speak loudly and given that Ms. Bowyer heard her comment (and testified that she saw her face) it seems unlikely, as the Grievor insists, that Ms. X was down the hallway and had turned the corner when she spoke. - 57 - [171] Finally, there was something incongruent about the Grievor’s focus on the lack of apology and what she says happened to her. The Grievor’s position has always been that Ms. X deliberately assaulted her in a violent manner. If that is what happened, it is difficult to see what relevance an apology has, yet the Grievor mentioned it as if the lack of apology confirmed Ms. X’s intent rather than, as she appears to say now, that her intent was clear from her actions. Ms. Chin’s evidence in chief was that the Grievor told her that “she felt [Ms. X] meant to deliberately run into her as [Ms. X] didn’t turn around to acknowledge the collision nor did she say sorry.” In her written statement she states: “[her] remarks were unapologetic and also confirmed her intent to physically attack me.” If Ms. X had acted as the Grievor now says- a two-handed push with full force” it would be clear that there was a deliberate assault. There would not be any need to assess Ms. X’s words. The fact that the Grievor raised the lack of apology as evidence of Ms. X’s intent suggests that the Grievor did not at the time view Ms. X’s actions in the same way she does now. [172] I also have concerns about the evidence given by Ms. X and what it means for the reliability of her evidence. The first is her decision not to apologize or say anything to the Grievor after the contact. As I have indicated above, I do not accept that she was going to apologize but was stopped short when the Grievor spoke. Such an apology was inconsistent with her mindset at the time as exhibited in her conversation with Ms. Chin. There are no words from Ms. X in that conversation that suggests she was sorry, quite the opposite. Had Ms. X simply said sorry there is a fair chance that none of this would have happened. More importantly, her evidence on this point affects her credibility. [173] Further, it is clear that Ms. X was not truthful with Ms. Chin. She now acknowledges that when she told Ms. Chin that she spoke first that was not the case. I do not understand her position that her claim just popped out of her mouth. I also find her claim that the Grievor said “excuse me” in an elongated fashion is not supported by the evidence and does not in any event make sense given what had - 58 - occurred. It is likely that Ms. X’s testimony on this point is designed to make the Grievor look bad. [174] Another area of concern is the fact that she spoke about the incident the day after it occurred. Her position was that the contact between her and the Grievor was no big deal and, essentially, a “nothing”. Yet she still spoke to a coworker the next day and showed a strong and unexplained reluctance in her testimony before me to say who she had spoken to. I do not find, as AMAPCEO suggests that Ms. X lied about speaking to Binta. It is clear that there was confusion in her evidence; when asked about whether she had spoken to anyone, it is likely she did know that she was being asked about the immediate aftermath of the incident and not some other time. I note, in this regard, that Ms. X was transparent with the Investigator that she had spoken with a co-worker about it, but not on the afternoon of the incident. [175] Finally, Ms. X’s evidence that the two collided and took a step backwards is not supported by the available evidence. If that had happened that would mean that the two women would have had to pass each other after the contact had been made and after each had made their comments. Ms. Bowyer did not suggest that happened and, at that point, she was looking at the two of them. She was not cross-examined on this point. Ms. X’s version is not consistent with anything that we know happened. [176] When adjudicators are confronted with two witnesses who tell quite different versions of the same situation it is often useful to consider which one of them is the most consistent with the facts as known and which appears to be telling the truth. Here I have identified issues with the evidence given by both of the main witnesses. In these circumstances, I am unable to find support for the positions taken by either side. I am unable to determine that Ms. X assaulted the Grievor. I am similarly unable to determine that Ms. X simply brushed by the Grievor with only their shoulders touching in a way that was not hard. For this reason, this aspect of the disputes must be dismissed, and I am unable to provide any remedy for the contact - 59 - that occurred during the incident. However, I strongly urge the Employer to ensure that these two employees do not work in the same workplace in the future. Their working relationship is permanently damaged. Investigator Failures or Bias? [177] The Occupational Health and Safety Act requires Ontario employers to establish a policy for the investigation of complaints of workplace violence: 32.0.2 (1) An employer shall develop and maintain a program to implement the policy with respect to workplace violence required under clause 32.0.1 (1) (a). 2009, c. 23, s. 3. (2) Without limiting the generality of subsection (1), the program shall, … (d) set out how the employer will investigate and deal with incidents or complaints of workplace violence; and … [178] As is discussed above, the Employer has such a policy, which simply states that a manager or supervisor shall conduct an immediate review of the facts surrounding the workplace violence incident and report the findings with a written recommendation. The collective agreement provides general Employer obligations and employee rights with respect to health and safety but does not have specific provisions for workplace violence or investigations. Nevertheless, in AMAPCEO’s submission the Investigator’s investigation and report does not meet the required standard, whatever that is, because the Investigator: 1) failed to consider relevant evidence; 2) pre-determined the result of the investigation and was not otherwise objective; 3) was not sufficiently careful in conducting the investigation and writing the report; 4) came to speculative conclusions; 5) considered irrelevant facts and conclusions in finding against the Grievor. - 60 - [179] I agree with the Employer that it is not the role of an arbitrator to sit as an appeal judge of an investigator’s report by parsing through an investigator’s report. In this regard, I agree with the following passage from Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CanLII 23226 (ON LA) (Bendel) The union has also argued that Mr. Tapley made errors in his report, particularly by stating that “no essential facts were in dispute”. I am not satisfied that Mr. Tapley made errors. While the testimony of Ms. Pierce and the grievor differed on certain details of their interactions, their evidence before me was largely consistent, with the result that, in all likelihood, “no essential facts were in dispute”. But, more fundamentally, I am not persuaded that the role of an arbitrator on a grievance like the present is to parse an investigator’s report in the manner being suggested by the union. The employer’s obligation under the collective agreement is to ensure that “a complaint of this nature shall be promptly investigated and, where warranted, appropriate action taken.” The employer is not made the guarantor of the accuracy of every statement made by the investigator or of the validity of every conclusion reached by him. If the complainant is dissatis-fied with the investigator’s conclusion, he or she has recourse under the collective agreement to a grievance arbitrator, who conducts a de novo hearing. As a result, I do not think that it is appropriate for an arbitrator to engage in a detailed critique of the investigator’s report: cf. Canada Employment and Immigra-tion Commission v. Lewis, [1986] 1 F.C. 70 (F.C.A.), per Marceau, J.A. For the same reason, while Mr. Tapley’s report was brief, the employer undoubtedly complied with its obligation to have the grievor’s complaint investigated promptly, and I have no mandate to rule on the adequacy or cogency of his report. [180] For the most part, therefore, I do not think it is my role to criticize the Investigator’s process or report so long as it meets certain standards. Part of the reason for that is there is a real danger excessive scrutiny will harm the whole system of workplace investigations. In my experience, OPS workplace investigations, like private sector investigations, often take a long time to complete. The danger of an arbitrator acting as “Monday morning quarterback” is that this tendency will be exacerbated as investigators will feel the need to write for the arbitrator and to leave no stone unturned. The clear goal of this Investigator was to conduct a speedy investigation and then write a report within a short period of time after the investigation had been concluded. This is to be commended. [181] While AMAPCEO makes a number of complaints about the way in which the Investigator conducted the investigation and wrote his report I do not believe that - 61 - many of those criticisms rise to the level of failure to investigate as is set out in the cases it relies on, even assuming, without finding, that the same standard applies to investigations of workplace violence as apply to workplace harassment allegations. The Investigator, in this case, met with all witnesses (including two witnesses that were not called before me) who were given a full opportunity to explain their side of the story. The Investigator then wrote a report. While AMAPCEO asserts the Investigator was hasty in writing the report and did not consider the evidence before him, it is apparent that for the most part the Investigator did so. The Investigator wrote a first draft of the report which contained clear errors and omissions. However, he and the Team then went through an extensive process of identifying those errors and omissions and mostly correcting the report. The Investigator came to conclusions which AMAPCEO does not like or agree with. However, many of those were conclusions that it was open for the Investigator to make. For example, it was open for the Investigator to conclude that the Grievor was in a hurry because she had a train to catch. [182] In doing so, the Investigator was engaging in the same process that the parties before me did, albeit with less information. The parties before me argue that I should find the assault occurred or did not occur, because the Grievor and Ms. X have flaws (inconsistencies, falsehoods) in their evidence and then, based on those flaws, ask that a negative inference be drawn about that party’s version of what happened in the contact. I take no issue with the fact that the Investigator engaged in this process since it was essentially the only way to come down on one side or the other without falling back on onus as the tool for determination. [183] However, the Investigator’s conclusions about what actually occurred prior to the contact were not central to his task, which was to determine whether an assault had occurred by Ms. X placing two hands on the shoulder of the Grievor. That determination was an enormously difficult one, as can be seen from this decision, which was made with the benefit of extensive evidence and examination and cross- examination of skilled counsel. Yes, he could have reviewed more material such as Ms. Chin’s notes or Ms. X’s medical records and perhaps he would have been wise - 62 - to do so, but I seriously doubt that any of that would have impacted his final report especially since he was rightly convinced by his able Team to drop his reliance on Ms. X’s health concerns as a basis for finding in her favour. [184] In my view, it was open to the Investigator to make a positive conclusion based on the information before him. The Investigator appropriately engaged in a process of finding inconsistencies in the descriptions given by the two protagonists and comparing their stories against the known facts as established through the impartial “witnesses”. Moreover, it was open for him to conclude on the evidence before him that the Grievor was in a hurry. Many of his other conclusions, however, are concerning. The question is whether those conclusions ought not to be second- guessed or whether they flow from an inappropriate process and ought to be set aside. [185] AMAPCEO relies on two cases for the proposition that the GSB can review the Employer’s investigation in order to determine whether it met the required standard. In Ontario Public Service Employees Union (Grievor) v Ontario (Solicitor General), 2020 CanLII 74251 (ON GSB) (Harris) the arbitrator stated: [95] As set out in my reasons above, and in the Employer’s submissions, the Employer knew that many of the ORs directed against the Grievor had no merit. However, rather than duly investigate the incidents fomented by her coworkers in the form of groundless ORs, it abdicated its duty under OHSA s. 32.0.7(1)(a). In MoT and OPSEU (Louis), supra, at paragraph 93, I found, sitting as a Vice-Chair of the Grievance Settlement Board, that the Employer there had failed in its duty to thoroughly investigate the circumstances evident in that case. I relied on paragraph 80 found in Ranger, supra, a case which was laid before me by the Union in the instant matter. That paragraph bears repeating here, and I rely upon it; it reads as follows: [186] Counsel for the union argued that there is some authority that an employer is strictly liable for the discriminatory acts of its employees whether they are “employees’ or managers and cited Robichaud and Janzen, supra, and urged me to find the employer strictly liable here. Counsel for the employer submitted that the GSB has - 63 - considered and decided this issue and I should follow those decisions. The issue was addressed by Vice-Chair Dissanayake in Simon, supra. The board quoted Chan, (1990/90) which held: There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is thereby exposed to liability. The employer’s liability depends on its knowledge of the offensive conduct and its response to it. However, in considering the employer’s knowledge the test is not purely subjective. If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, this does not exonerate it. To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless. The employer would be able to circumvent that obligation by merely closing its eyes and ears. The parties could not have intended that. [187] As can be discerned from the quote, that case is about an Employer’s failure to investigate at all. Moreover, it is a workplace harassment case, not a workplace violence case, and the harassment provisions of the OHSA provide a specific requirement and standard, “appropriate in the circumstances”, to investigate: 32.0.7(1) To protect a worker from workplace harassment, an employer shall ensure that, (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances. [188] That requirement is what is relied on by Arbitrator Harris in finding that the investigation was not appropriate in the circumstances. [189] The second case relied on by AMAPCEO is also a harassment case, Ontario Public Service Employees Union (Grievor) v Ontario (Solicitor General), 2020 CanLII 74251 (ON GSB), (Mikus), which also alleged a, more or less wholesale, failure to investigate: - 64 - [91] There are other aspects of the Fact-Finding Report that might explain the grievor’s dissatisfaction. The April report was prepared without the input of CO Levy [who had acknowledged her role in the harassing behaviour]. It concluded that his allegations had not been substantiated without even hearing her side of the story. I assume the report concluded that the allegations of discrimination and harassment had not been substantiated but the report appears to discount the grievor’s account in total. It makes no mention of the other witnesses’ Occurrence Reports which corroborated the grievor’s account. [190] Clearly Vice-Chair Mikus’s decision is more on par with what is before me. However, it addresses a somewhat different issue that limits its assistance. The issue before Vice Chair Mikus was the same as the case excerpt contained in paragraph 95 of the Harris decision set out above. That issue is whether the Employer is liable for harassment in its workplace when the harassment occurs between two bargaining unit employees. According to Vice-Chair Dissanayake in Simon, there is normally no such liability. However, such liability can arise depending on the employer’s knowledge of the harassment and its response to it. What the Mikus case says is that where an employer learns of harassment and then fails to properly investigate it, as it is required under the OHSA to do, liability can attach to the Employer for subsequent harassment. [191] I accept the Employer’s argument that a failure to follow policy is not something that can be grieved unless that failure amounts to a breach of the collective agreement or statute. In Ontario Public Service Employees Union The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Tims) 2017 CanLII 65618 (ON GSB) the vice chair stated: [238] The Board’s jurisprudence relied upon by the Employer in these proceedings is clear that alleged nonadherence with an Employer policy does not, in and of itself, form the basis for a grievance absent a demonstrated breach of contractual or relevant statutory obligations. While it is open to the Union to seek to demonstrate that a breach of policy also amounts agreement to a violation of contractual or statutory obligations, the latter must be established to substantiate a grievance under the collective. - 65 - [192] However, I am satisfied that AMAPCEO’s argument does not rely on a breach of the Employer’s investigations, guidelines or any other of its policies. AMAPCEO’s argument is more fundamental than that. It argues that the failure to carry out a fair and unbiased investigation violated the Code, the OHSA and the collective agreement. [193] The problem with the argument that the failure to conduct a proper investigation is a violation of the Code is that AMAPCEO is not alleging that Ms. X’s violence towards the Grievor was racially motivated. There is therefore no underlying legal basis to find a particular standard of investigation applies for the purposes of the Code. I am also satisfied that the Employer was reasonable in not treating this incident as harassment under its policy. There was no course of vexatious conduct as the last interaction between the two was almost two years before the incident before me. The harassment alleged was a complaint filed by Ms. X to the Grievor’s manager about an event that occurred in 2012. There was also an alleged brief outburst in the kitchen in 2015 about which the Grievor did not complain at the time it happened. In these circumstances, it made sense to treat the incident before me as an alleged act of workplace violence rather than a pattern of behaviour, although clearly the prior alleged harassment was relevant. [194] That leaves a potential breach of the OHSA and the health and safety provisions of the collective agreement. As noted, unlike for workplace harassment allegations, the OHSA does not contain a specific standard for investigations of alleged workplace violence. Does that mean that any investigation complies with the OHSA and the collective agreement? In my view, it cannot mean that. It must be implicit in the OHSA’s requirement that the Employer have an investigation process (of some kind) that the investigation be fair. Only by providing a fair investigation process does the Employer take every reasonable precaution for the protection of workers under s.25(2)(h) of the OHSA and make reasonable provisions for the health and safety of its employees as required by the collective agreement. Among the purposes of workplace violence investigations is clearly to determine what happened with a view to preventing similar events in the future. An unfair - 66 - investigation does not advance that purpose and makes it impossible for the Employer to take every reasonable precaution going forward. Conducting a fair investigation is essential to fulfilling the requirement to take every reasonable precaution for the health and safety of workers. [195] Was this investigation fair and unbiased? In my view, it was not. I have serious concerns about the Investigator’s processes and conclusions. [196] First, the Investigator’s finding that the Grievor made the complaint up in order “to support her various claims for relief” and her evidence of continuing harm “seemed “calculated to lead to the requested relief, including compensation” was particularly harsh and not based on any actual evidence. His Team suggested that these conclusions be removed as “a stretch”. To call it a “stretch” was kind and probably reflects an attempt at respectful deference. The Investigator was not tasked with investigating the motives behind the Grievor’s complaint and yet for some reason took it upon himself to draw such conclusions. The suggestion that the Grievor was making this complaint in order to get money was never put to the Grievor and was not suggested by Ms. X. Had the Grievor been given an opportunity to respond to the Investigator’s claim she might have pointed out, what we now know, that it was AMAPCEO which suggested (months after the incident) that she claim damages and that at the beginning she only wanted the workplace repaired and compensation for lost wages and vacation credits. He would have realized that the basis for his suspicion was illusory. The Investigator’s failure to ask the Grievor to respond to the Investigator’s own theory was improper and deeply unfair. [197] It is likely the Investigator thought from the outset that the Grievor’s claim was improbable. However, he did not consider how improbable it was that the Grievor would just make her claim up. He did not consider the possibility that she truly believed what she alleged. As I have noted, the Grievor was in a highly responsible position at an important branch of the government. The question should have been asked: why would such a person make up a story like this? None of the parties before me suggested that the Grievor was faking. Nobody suggested that she - 67 - made a false or exaggerated complaint in order to extract money. I suspect that even had the Investigator asked Ms. X why she thought the Grievor was making this claim she would have referred to their history of not getting along or the Grievor’s personality. [198] Moreover, the Investigator appears not to have considered any of the evidence that supported the conclusion that the Grievor was not making this up. This included Ms. Bowyer’s evidence. It appears the Investigator, like me, found Ms. Bowyer’s evidence to be entirely credible and yet he appears never to have given any consideration to Ms. Bowyer’s evidence (and Mr. Teape’s) that the Grievor immediately said she had been shoved and seemed shaken by the incident. This evidence of the Grievor’s statement was virtually an excited utterance and ought to have been given weight, or at least some consideration. Had he done so, he surely might have thought it implausible that the Grievor would cook up a scheme on the spot to make a false claim in order to seek compensation. [199] Second, it was unfair for the Investigator to rely on a diagram of the workplace which was drawn by Ms. X without asking the Grievor or any other witness to draw a similar map or to comment on Ms. X’s diagram. Ms. X’s diagram was seriously flawed and completely misrepresented the physical layout of the workplace. The diagram appears to show the distance traveled by Ms. X down the corridor as four or five times the distance traveled by the Grievor, and the distance traveled by the Grievor as relatively short. This exaggerated the difference in the amount of time each of the women was walking down the corridor. In fact, the fax machine was close to halfway down the corridor and the distance traveled by the Grievor down the corridor was between 8 and 9 feet at a minimum. The pillar was not shown on Ms. X’s diagram. Nor was the fax machine shown as jutting out. [200] The first diagram below is the one drawn by Ms. X. The second one is taken from an official floorplan with additions added by AMAPCEO which the parties (and I based on my observations during the view) agree are accurate. The - 68 - measurements were taken by the parties when I took a view of the office. The cubicle marked “Karen B” is Karen Bowyer’s cubicle. - 69 - [201] It is obvious to me that the Investigator’s conclusion about what happened (“I find that she went across the hall, directly towards the fax machine and thereby cut in front of the respondent”), a conclusion which was not advanced by any party before me and makes no sense based on the actual layout of the workplace, was influenced by Ms. X’s uncontradicted diagram. It is also clear on this point that the Investigator misunderstood his own notes when he said: “Instead, she moved to the left to get out of the way. However, she did not move quickly enough to avoid the bumping of left shoulders”. The Investigator’s finding that Ms. X moved to the left makes no sense. The two women were walking towards each other; had Ms. X moved to the left they would have hit head on or hit the fax machine or brushed right shoulders. The Investigator’s own notes say that Ms. X told him that she “tried to go around on her [the Grievor’s] left side. It is likely this mistake could have been - 70 - avoided if the Investigator had a more accurate understanding of the physical layout of the area. [202] Third, the Investigator appears to have discounted or ignored many of the things that might support the Grievor’s version of events or cast doubt on Ms. X’s version. I have noted Ms. Bowyer’s statement and Mr. Teape’s confirmation. The Investigator relied on Ms. Bowyer for the Grievor’s tone of voice but did not mention her statements about how the Grievor looked following the incident. He accepted Ms. Bowyer’s evidence but gave no consideration as to how that evidence aligned with Ms. X’s or how that evidence bolstered the Grievor’s account. The Investigator’s notes state that Ms. Bowyer told him that “I heard [the Grievor] say ‘excuse me excuse me!’ I saw [Ms. X] walking away. When [the Grievor] mentioned excuse me, she [Ms. X] was walking back to the hallway. Ms. X said, “if you weren’t in my way”. Ms. Bowyer’s statement is almost completely supportive of the Grievor’s version (in fact, more so than in her testimony before me). The Investigator appeared not to consider the fact that on Ms. Bowyer’s version, Ms. X made contact with the Grievor, and just continued walking without saying anything until the Grievor spoke. The Investigator made no comment at all on the significance of Ms. X’s statement “if you weren’t in my way”. That statement gives one the impression that Ms. X ran into the Grievor because she was in her way, not that the Grievor ran into her. It is also quite different than Ms. X’s recount of her statement which was that she said, “don’t walk into me”, which, again, the Investigator made no comment about. [203] Fourth, the Investigator gave Ms. X credit for acknowledging that she said “fuck” under her breath following the incident. Why that acknowledgement should be given credit is not easy to understand. I presume it is not a disciplinable offence for employees to swear under their breath in a way that no one can hear. Moreover, the Investigator did not ask why she swore under her breath, if, as Ms. X said, what happened in the corridor was nothing. He also accepted, without further investigation, her health claims and did not ask why she was rubbing her arm as she walked away. In essence, and including his reliance on Ms. X’s map, the - 71 - Investigator appears not to have questioned anything about Ms. X’s version of events. [204] Fifth, the Investigator’s conclusion that “No explanation has been offered as to why [Ms. X] would commit a deliberate assault’ is simply not true. He may have thought that their poor work history should not have led to an assault, but he did not analyze the issue at all. In fact, he never asked Ms. X about the Grievor’s claims about their work history despite the Grievor raising these issues in her meeting with him and in her statement. Had he asked Ms. X about the Grievor’s statement Ms. X would likely have confirmed it. Instead, when asked about their working relationship Ms. X simply said that the two had not worked together for a long time and the Investigator left it at that. His Team noted this omission but again, he simply disregarded his Team’s comments about this. [205] Obviously, given that there were no witnesses to the event, the Investigator would have been wiser to simply determine the primary issue before him on the basis of onus. Had he done so, it is likely we would not be here. Once he chose to both make a determination about what actually happened and then find both that the Grievor was responsible for the contact and had exaggerated or lied about what happened in order to get compensation, the Investigator’s process was exposed as biased and flawed. In my view, the Investigator’s flawed process likely stems from an early conclusion that the Grievor’s account was inaccurate or false and the failure to consider the Grievor properly. He had little empathy for her and his treatment of her was quite different than his treatment of Ms. X. Again, this occurred despite suggestions from his Team which, had they been given due consideration, could have led him on a different path. It is apparent that the Investigator quickly came to a conclusion about the Grievor’s claim and then wrote the report with that conclusion in mind. [206] The Investigator came to damaging conclusions without giving the Grievor a chance to respond and, in my view, without proper consideration of evidence that supported - 72 - the Grievor’s claims. The report was written in a way meant to justify the Investigator’s early conclusion without a fair consideration of the evidence. This did not meet the minimum requirements for a fair investigation. Unconscious or Implicit Bias [207] The final question I must determine is whether, in addition to predetermination bias and procedural unfairness, implicit anti-Black bias also played a role in the Investigator’s process and conclusions. The Expert Witness [208] AMAPCEO called Dr. Kerry Kawakami, a professor at York University, to give expert evidence with regard to, broadly speaking, implicit racial bias, especially with respect to Black people. She provided an expert report in advance of her testimony. [209] The Employer objects to the admissibility of Dr. Kawakami’s evidence. It accepts that she is an expert in the field but argues that her evidence is irrelevant to the issue before me, in part because she is unable to provide an opinion about whether implicit bias affected the Investigator’s investigation and report. In this regard, Dr. Kawakami’s report states: In summary, based on my reading of the report, it is not obvious to me whether the complainant or respondent was telling the truth or who was more credible. However, research related to the biased interpretation of Black behaviour, as well as my own research on the prevalence of implicit racial biases and their impact on person perception, raises question about whether a similar conclusion would have been reached by a White investigator if the complainant was White or the respondent was Black. Although most people want to be fair, research suggests that they may be unaware of their own racially biased tendencies or the impact of these negative associations on their - 73 - judgements. It is possible and probable, based on recent research in social psychology, that despite the good intentions of the investigator, he may not have been aware of how implicit biases influenced his perceptions of the incident, the complainant, and the respondent. …(citations omitted). [210] I accept the Employer’s position that Dr. Kawakami does not provide a specific opinion about whether implicit anti-Black bias influenced the Investigator in this case and will have more to say about that below. The most that she can do, as the second paragraph from her reports suggests, is to rely on probabilities; since most White people have implicit anti-Black biases, then it is likely the Investigator did. I also note that the expert did not state, as AMAPCEO suggested in its opening statement that she would do, (although that was well before the report was prepared) that the Investigator’s report contained specific language which could be identified as signaling a Black stereotype such as “the angry black woman”. [211] Regardless, I accept that Dr. Kawakami, as an expert in the field, has much to offer this proceeding. Even those who have had training in implicit bias may not be aware of the research behind that training, some of which Dr. Kawakami has performed and much of which, her report and oral testimony make clear, she is intimately familiar with. In addition, I accept that she is able to provide a nuanced analysis of the research which makes it more applicable to the facts before me. [212] For all these reasons I accept Dr. Kawakami’s expert report and her evidence about that report for the purposes of this matter. [213] Dr. Kawakami’s evidence is that there is a long history of social science research, which demonstrates that White people frequently have racial bias against Black people which can operate outside of conscious awareness and is often considered automatic. While overt racial discrimination has declined in society, implicit bias persists to a significant extent. - 74 - [214] Her conclusion is not surprising. In fact, the courts and employment law tribunals have recognized this for many years. In Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) 116 OR (3d) 81 — 363 DLR (4th) 598 the Court of Appeal noted that the fact that anti-Black racism is prevalent in Canadian Society has been recognized by Courts going back more than twenty years. This discussion occurred in the context of a judicial review of the HRTO’s finding that social science research, expert evidence of which had been called in other human rights cases, had demonstrated, among other things, that racial stereotyping can occur as a result of unconscious prejudices: [111] At the outset of his analysis, the Vice-Chair referred to Radek v. Henderson Development (Canada) Ltd. (No.3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302, and Phipps v. Toronto Police Services Board, 2009 HRTO 877 (CanLII) for the following propositions: 1) the prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor; 2) there is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant; 3) the prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element; 4) there need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and 5) racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices. [112] The first four of these are long established propositions of law. The Vice-Chair did not refer to Radek and Phipps as sources of authority for these propositions but because - 75 - they provided a convenient summary of them. I see no relevance to the fact that Radek involved security guards and Phipps involved a police officer. [113] This court has repeatedly recognized the fifth proposition as a sociological fact. For example, Doherty J.A. has said in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.), at para. 54: Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. [114] The Supreme Court of Canada has also endorsed the proposition. For example L'Heureux-Dubé J. and McLachlin J. writing in R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 46, cited Doherty J.A.’s statement with approval. … [123] Finally on this point, I note that neither the Divisional Court nor the respondents expressed any issue with the actual proposition the Vice-Chair drew from Nassiah. The proposition that implicit stereotyping can affect the manner in which individuals continue to deal with others after an encounter begins does not seem to me to be a matter that would provoke much controversy. (emphasis added) The Ontario Court of Appeal recently reaffirmed this consensus when it stated in 8573123 Canada Inc. o/a Elias Restaurant v.Keele Sheppard Plaza Inc. and Castlehill Properties Inc. (2021 ONCA 371) (June 2, 2021): [14] The application judge was entitled to take judicial notice of anti-Black racism in Canada. He found that whether the Landlord’s racial stereotyping was conscious or not, it was a matter he could take account in the exercise of his discretion to grant relief from forfeiture. As he put it, at para. 38, “the societal realities pertaining to Black businesspeople like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.” [215] Dr. Kawakami’s evidence is that two kinds of implicit bias are implicit prejudice and implicit stereotypes. Implicit prejudice is a non-conscious attitude towards certain - 76 - people. For example, research shows that 70-80% of people in North America have an anti-Black bias in which they associate negativity towards Black as opposed to White people. Implicit stereotypes, the second form of implicit bias, occurs when specific characteristics are associated with a particular group. Research has demonstrated automatic stereotypic activation for a range of social groups including Black and Asian people. For example, common negative traits associated with Black men include that such persons are loud, threatening, aggressive, hostile, criminal, and poor. [216] Research has shown that stereotypes and other constructs associated with Black men are also imparted to people’s perception of Black women. Black women are not seen as “prototypical women” and are judged as more masculine than White women and are seen as more dominant, aggressive, and unfeminine. These unconscious biases are learned early in life and persist. [217] In addition, Black people are often perceived on a non-conscious level as untrustworthy. These evaluations can occur automatically when perceiving others. Further, White people are likely to have less empathy when bad things happen to Black people than when bad things happen to White people. [218] Critically, according to Dr. Kawakami, the more ambiguous a situation is, the more likely that implicit bias will play a role in a White person’s assessment of the situation when there is a Black person involved. For example, in her research, Dr. Kawakami studied the way in which people perceived a picture of two men bumping in a stairwell. The pictures shown to participants in the study were identical except for the race of the two men. In one picture the two men were White, in a second, one man was White and the other Black. Few participants specifically mentioned race when they were asked to describe what was going on in the pictures. However, race appeared to impact their interpretation of events. When both men in the picture were White, only 33% of the participants mentioned the bump or any conflict in the situation in the picture. However, when one person in the picture was White and one Black, 53% mentioned conflict. Similarly, in another study, when - 77 - study participants were shown an ambiguous shove, study participants were more likely to label the shove as violent where the shover was Black. Additionally, when the shover was White, a considerable number of participants said that the shove was playful or dramatizing. [219] Under cross-examination, Dr. Kawakami testified that a person cannot control their own biases and it is impossible to predict who is going to be biased. Just because a person is a White male does not mean they will be biased but, statistically, the majority are. Dr. Kawakami acknowledges that she knows nothing about the Investigator (other than she assumed he is White and male) including his background and life experiences. She acknowledges that some of the examples she gave in her report (which examples I have not described) might have been bad examples. She acknowledges also that she does not know whether the Investigator engaged in racist stereotyping of any kind. [220] I also have no difficulty finding that anti-Black biases are present in the Ontario Public Service, simply because there is no reason to think that public servants would be immune from the effects described by Dr. Kawakami. In coming to this conclusion, I have also taken into consideration a report prepared by Arlene Huggins regarding a review of the WDHP program in a different Ministry through an anti-racism (specifically anti-Black racism) lens. The report describes the problems that employees in that ministry, and especially Black employees, encounter with the WDHP process. Some of the issues identified by Ms. Huggins intersect with the issue before me. They suggest that there is significant racism in the OPS. Among her recommendations are to ensure Investigators have racism training including implicit bias training. She also recommends that the Employer provide reasons for a finding that a complaint is “out of scope” of the WDHP, not use internal investigators for WDHP complaints. Obviously, these are issues that came up before me directly or indirectly. That being said, aside from reaffirming that there is racism in the OPS and that Black employees have serious misgivings about the way investigations are handled, I find the report of little relevance to the determination of these disputes. I know that there is racism in the OPS. I also - 78 - know that the OPS is not exempt from implicit biases as described by Dr. Kawakami. However, the report cannot provide much assistance with the largely factual determinations that are before me. [221] As is discussed above, the idea that unconscious race-based bias is prevalent in Canadian society, as described by Dr. Kawakami, is well established in the law. The real issue is how does an adjudicator apply that fact to a specific situation; how do I determine in this case whether unconscious bias on the part of the Investigator played a part in his assessment of the Grievor and Ms. X? AMAPCEO did not argue that the mere fact that it is statistically probable that a white person holds these unconscious biases means that I must find on a balance of probabilities that the Investigator did so and allowed them to creep into his investigation. That must be right. In fact, to say otherwise, would essentially disqualify me from determining these grievances, although AMAPCEO agreed to my appointment. In my view, in order to find that the Investigator was unconsciously biased against the Grievor due to her race, there must be actual evidence, apart from the statistics, to suggest such bias. There must be words or conduct which, on a balance of probabilities, lead to the conclusion that such bias was present and affected conduct. [222] AMAPCEO argues that it has established a prima facie case of discrimination the onus shifts to the Employer to establish that its process was not tainted by (in this case) unconscious bias. As the Canadian Human Rights Tribunal stated in Turner v. Canadian Border Services Agency: [53] If a complainant establishes a prima facie case, the onus shifts to the respondent to show by way of a reasonable explanation that either discrimination did not occur or that the conduct was not discriminatory. (see Morris 2005 FCA at para. 26; A.B. v. Eazy Express Inc., 2014 CHRT 35, at para. 13.) Any such explanation must be credible, and not a mere pretext for discrimination. (see Bombardier at para. 37.) [223] In the Supreme Court’s decision in Moore v. British Columbia (Education) 2012 SCC 61, Justice Abella stated the following in a case which alleged a breach of the - 79 - service provisions of the B.C. code as opposed to the employment provisions, but which are nonetheless of assistance: To demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [224] In the employment context, tribunals have applied a similar test (as cited in Nelson v. Lakehead University, 2008 HRTO 41 (CanLII)) which I adopt here: [32] I accept that the legal test for establishing a prima facie case of discrimination is set out by the Supreme Court of Canada in O’Malley v. Simpsons-Sears Ltd. (1985) 7 C.H.R.R.D/3102 (S.C.C.). In O’Malley, at paragraph 24782, the Supreme Court of Canada held that a prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”. 2008 HRTO 41 (CanLII) [33] Once the prima facie case is established, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If the respondent provides such an explanation, the complainant has the ultimate burden of demonstrating that the alleged discrimination is more probable from the evidence than the actual explanation offered by the respondent. [225] There is no dispute that the Grievor has a characteristic protected from discrimination under the Code in that she is Black. I also agree that she experienced an adverse employment impact. The relevant provision of the Code states: 5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. - 80 - [226] Since the Investigator did not testify, the issue is whether the Grievor has demonstrated a prima facie case that she did not receive “equal treatment” with respect to employment …because of her race”. In my view, she has not. There are any number of reasons why the Investigator might have investigated the way he did and came to the conclusions that he did and the Grievor’s race is one of them but the fact that it was part of his investigating and decision making was not proven. In coming to this conclusion, I am mindful of the fact that AMAPCEO need not prove that the Grievor’s race was the sole or even most significant part of the Investigator’s unconscious motivation or acts; if race played any role, then that taints the whole investigation. Here, based on the evidence I heard I am unable to find on a balance of probabilities that race played any role in the Investigator’s process. There is no prima facie case of illegal discrimination made out. [227] This conclusion is not made lightly. There are indications that race might have played an unconscious role in the investigation, but those indications are insufficient to make it more likely than not that race was a factor. The most critical of these, in my view, is this statement from the Investigator’s first draft, which may well have been written without reference to the notes the Investigator took: The witnesses who heard the verbal exchange that followed the contact all corroborate the version of events given by [Ms. X]. In particular, they all stated that the tone of voice of the [Grievor] was louder than that of [Ms. X]. Mr. G described the [Grievor’s] tone as threatening. He could not hear [Ms. X] at all. (emphasis added) The “Mr. G.” is a reference to Mr. Guattieri. The investigator was wrong in this first draft about how Mr. Guattieri described the Grievor’s tone of voice. He did not say her tone of voice was “threatening’. Mr. Guattieri said her tone of voice was “confrontational” and “louder than usual”. The word “threatening” is quite a different word than “confrontational”. There can be no dispute that an assessment of the Grievor’s words and tone might characterize them as confrontational. There had been a bump in the hallway and Ms. X had not apologized or said anything. The Grievor was attempting to have Ms. X account for what had just happened. Rather than just let it go, she - 81 - confronted her. However, there is no basis on which one could conclude that the Grievor’s words were threatening. Not one witness suggested that, not even Ms. X. In fact, Ms. X said that the words “excuse me” were said in an elongated fashion which makes them less than threatening. [228] So where did the Investigator get the idea that the Grievor’s words were threatening? In the absence of any explanation from the Investigator it is possible that the Investigator’s first draft of his report was influenced by subconscious considerations of her race. Dr. Kawakami’s evidence was that “common negative traits associated with Black men are “loud, threatening, aggressive, and hostile…”. She also reported that recent research indicates that stereotypes associated with Black men, especially threat and dominance constructs, are often generalized to Black women. I find that may have happened here. While eventually the draft report was amended to reflect Mr. Guattieri’s actual statement, the Investigator’s initial draft was potentially revealing of an unconscious bias. [229] Another potentially revealing aspect of the investigation is the unusually harsh conclusions reached by the Investigator and his failure to give serious consideration to the Grievor’s claims, as is discussed above. I have detailed the flaws in the Investigator’s process and the unnecessary and harsh findings that he made against her. The Grievor was found, based on little to no evidence and without a chance to respond, that she had made the complaint fraudulently in order to extract a monetary settlement. This conclusion might have been influenced by the types of stereotypes detailed by Dr. Kawakami. The Investigator’s report was provided to the Grievor’s manager which ran the risk of permanently damaging their relationship and her career. The Investigator clearly believed the White person’s account and did not believe the Black person’s version and gave it little consideration. These decisions, again, might be tainted. [230] This is an incredibly difficult assessment to make. I must try to ascertain what was in a person’s subconscious. But ultimately it is AMAPCEO that must prove the existence of implicit anti-Black bias and, after careful consideration, I am unable to - 82 - find, on a balance of probabilities, that implicit bias was at work here. There is insufficient evidence before me to do so. In my view, the Investigator’s first draft which as AMAPCEO pointed out, was drafted quickly, simply contained an error. It is a suspicious error but standing alone is not enough to demonstrate unconscious bias. [231] I acknowledge that the transposition to the word “threatening” bears some similarity to the Human Rights Tribunal of Ontario decision in TM v. Bradford West Gwillimbury (Town) 2019 HRTO 1500. In that decision, the facts before the Tribunal were that the complainant, a 14-year-old black male, was in a fight at the town’s recreation centre. Following the fight, the complainant was banned from the recreation centre and the library. The complainant alleged that the severity of the suspension and the investigation into the incident were tainted by anti-Black racism. In particular, the fight was repeatedly referred to as “the most violent incident’ they had ever seen despite the fact that the fight lasted a minute, and nobody got hurt. More importantly to the Tribunal, and unlike the case before me, that phrase was repeated over and over. In addition, there were other facts that suggested racism, including the fact that the Town had a police officer deliver a copy of the ban letter to the complainant’s house. Moreover, among other indicators, the Town had not followed its own code of conduct when it imposed a 12 or 15 month suspension rather than the 3 month suspension indicated by the code. In my view, it is the clear racial indicators that are present in the Bradford case, and which are not present here, that limit the applicability of that case. [232] AMAPCEO suggests that the Investigator’s focus on the Grievor’s demeanour and loudness of voice is indicative of the influence of the stereotype of the “angry black woman” on his conduct. I disagree. It is apparent to me that despite the Investigator’s use of the phrase “admit to wrongdoing”, the Investigator was not focused on the Grievor’s demeanour for the purposes suggested by AMAPCEO. Rather, considering the totality of what the Investigator said in the report, the demeanour was a focus because it was the only aspect of the Grievor’s version where it was clear that the Grievor was almost certainly wrong. It did not matter - 83 - that the Grievor spoke in a loud voice and Ms. X did not, except that the Grievor denied doing so. As I have already stated, given the difficulty in determining which version of the stories was correct, it was appropriate, and not indicative of unconscious racism, for the Investigator to focus on that aspect of the Grievor’s complaint. [233] In addition (and together with the writing of the word “threatening”), I am unable to find that the Investigator’s harsh conclusions about the Grievor and his general treatment of her were tainted by implicit bias. Race is one of the possibilities for the way in which the Investigator conducted his investigation and reached his conclusions, but it is not the dominant possibility. He was dealing with an event that is objectively difficult to believe. I am satisfied, as I have already found, that he was affected by his perceptions of the unlikelihood of the event. It is therefore more likely that the Investigator thought the Grievor was, at best, making a “mountain out of a molehill” and this affected every aspect of his report writing and dealings with the Grievor. [234] I note that there are no specific words in the report, draft reports or internal Team communications which are racist. In fact, the Grievor’s race or that of Ms. X was not even mentioned at all by the Investigator; not in the report, not during the course of his investigation and in none of the behind-the-scenes emails between him and his Team. None of that is a surprise, as race was not an issue raised by the Grievor prior to or at a time of the Investigation (a fact which might have given the Investigator pause about the Grievor’s motives). I agree with AMAPCEO that evidence of racial bias is rarely so obvious. I also agree that making an explicitly race-based statement of any kind is not a requirement for determining that racial discrimination occurred especially where, like in this case, the racism alleged is unconscious or implicit racism. However, I cannot find that the use of the word “threatening” rather than “confrontational” amounts to a prima facie case of implicit anti-Black bias. - 84 - [235] I note that Dr. Kawakami, who had almost all of the same facts in front of her that were in front of me (because she was provided with all of the documents that I have referred to and more), was unable to conclude that implicit anti-black bias infected the Investigator’s report. She found it was not obvious which party was telling the truth. The most she could say, based on the preponderance of anti-Black racism in society, was that it was questionable whether the Investigator would have reached the same conclusion if the complainant was White, and the respondent was Black. I agree that it is questionable- it is a question I have struggled deeply with-but saying something is questionable is not the same as saying it has been demonstrated on a prima facie basis on a balance of probabilities. [236] As the Supreme Court and other cases relied on by AMAPCEO make clear the reverse onus does not apply until illegal discrimination has been proven. Here, in my view, AMAPCEO has not proven on a balance of probabilities that, to use the words of the Supreme Court, “that the protected characteristic was a factor [no matter how small] in the adverse impact”. There is no doubt, as I have described, that the Investigator did not give fair consideration to the Grievor’s complaint. However, the evidence that his treatment was affected by anti-Black bias is thin. The Investigator’s conduct can be explained by any number of factors both proper and improper including, as I have suggested, the probability that he decided early on that the complaint was without merit. I draw no adverse inference from the Employer’s failure to call the Investigator as a witness because the case is about implicit or unconscious bias about which he could say nothing and because the Employer was not obligated to call him when a prima facie case of illegal discrimination had not been made out. [237] Having arrived at this conclusion, the onus did not switch to the Employer to, again using the words of the Supreme Court, “to justify the conduct or practice, within the framework of the exemptions available under human rights statutes” or in other contexts to provide a reasonable explanation for the behaviour. - 85 - [238] In conclusion, I have determined that while there is concern that the Investigation process was tainted by anti-Black bias, the evidence in favour of that conclusion is too thin to reach the required burden of proof (balance of probabilities). I am therefore unable to find implicit bias or other improper discrimination in this case. [239] For all of the foregoing reasons I allow the disputes in part. Remedy [240] I declare the Investigator’s report was tainted by unfairness and did not meet the standards required to meet the Employer’s obligations under the OHSA and the collective agreement. I Order the Employer to remove the report from the Grievor’s personnel file and that of Ms. X and that the contents of the report not be relied on for any purpose. [241] I remit the matter back to the parties to attempt to agree on an appropriate award of monetary damages for the Employer’s failure to provide a fair investigation and remain seized for the purposes of determining an appropriate monetary remedy if necessary. Dated at Toronto, Ontario this 16th day of June, 2021. “Brian McLean” ________________________ Brian McLean, Arbitrator