HomeMy WebLinkAboutMiller 21-08-20IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act, R.S.O. 1990 c. 15
BETWEEN
SENECA COLLEGE
(the “College”)
And
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 560
(the “OPSEU” or the “Union”)
GRIEVANCE OF DR. MARCIA MILLER
(GRIEVANCES # 2019-0560-0006)
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the College:
Patricia G. Murray, Hicks Morley LLP
For OPSEU:
Christine Davies, Goldblatt Partners
ISSUE ADDRESSED BY VIDEOCONFERENCE ON AUGUST 19, 2021
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INTERIM PROCEDURAL AWARD
[1] This matter concerns an April 10, 2019, grievance filed by OPSEU on behalf
of Dr. Marcia Miller (also referred to as the “grievor”) alleging that the College
violated the Collective Agreement, the Occupational Health and Safety Act, R.S.O.
1990, c. O.1 (“OHSA”) and the Human Rights Code R.S.O. 1990, c. H.19 (the
“Code”), by1:
• Failing to do everything reasonable to keep Dr. Miller from getting hurt or
sick on the job, with respect to a swarming incident that occurred in
November 2018;
• Failing to take remedial action when Dr. Miller filed a written report of the
incident with the security department.
• Discriminatory comments made by Chair Nina Koniuch, on multiple
occasions directed at Dr. Miller, referencing her ethnicity and the manner in
which she speaks;
• Choosing not to renew Dr. Miller’s partial-load contract for the Winter 2019
semester, despite available work opportunities, due to one or both of;
retaliatory stance adopted when Dr. Miller filed a health and safety issue
with security and being a “Black” female and considered “Other.”
• Subtly affirming systemic segregation within the Nursing Faculty at the King
Campus;
• Treating Dr. Miller as a sessional employee despite her partial-load contract
being in force until December 14, 2018, and despite reassurances from
Chair Tony Mallette that her partial-load status would continue
notwithstanding her agreement to assist the department due to sickness of
full-time faculty
• Failing to provide Dr. Miller with a Record of Employment within the
prescribed time frame; and
• Failing to exercise management functions in a manner consistent with the
Collective Agreement.
1 While the grievance does not refer to the Code, it is apparent on the face of the grievance
that the allegations raise issues under the Code. This was also made clear by OPSEU counsel
in her opening statement and Dr. Miller’s subsequent filing a complaint with the Human
Rights Tribunal Ontario.
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[2] Dr. Miller seeks an immediate partial-load assignment in Nursing at the King
Campus and to be made whole with respect to lost wages, seniority, pensions and
any other benefits or rights. Dr. Miller also seeks an apology and an order that her
Chair and Dean complete sensitivity and cultural competence training.
[3] On June 16, 2019, Dr. Miller filed a complaint with the Human Rights
Tribunal of Ontario (HRTO), which included allegations of discrimination on the
grounds of race, colour, place of origin, ethnic origin and reprisal or threat of
reprisal. The allegations are essentially the same as those made in the grievance
and the remedies sought are similar, including compensation for lost salary and
benefits.
[4] The College provided a response to the grievance on June 27, 2019. The
College advised that they were taking the position that as a sessional faculty
employee, Dr. Miller did not have the right to grieve and therefore her grievance
was denied. The College also indicated that without waiving their right to object to
the grievance, they were initiating a formal investigation into the allegations, to be
conducted by an external investigator.
[5] The College retained Esi Codjoe, a lawyer and former Vice Chair at the
HRTO, to conduct the investigation. Ms. Codjoe concluded that only one allegation
made by Dr. Miller was substantiated. The other allegations of violating the Code,
OHSA and Seneca’s Discrimination and Harassment Policy were not
substantiated.
[6] The grievance was referred to arbitration and the hearing commenced on
April 26, 2021. On the first day of hearing the parties agreed to mediate in an
attempt to resolve the grievance. Unfortunately, those efforts did not prove to be
fruitful. However, the College did agree to drop their preliminary objection to the
grievance on a without prejudice or precedent basis. The parties agreed that I
could hear and determine all the issues in dispute, including those particularized
in the HRTO Complaint. In terms of procedure, OPSEU insisted that the case be
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determined in the normal course with viva voce evidence heard over Zoom. It was
agreed that counsel would address production issues and contact me if there was
any dispute that required my intervention.
[7] The hearing continued on July 12, 2021. The parties provided opening
statements. OPSEU’s opening statement was consistent with the allegations found
in the grievance and the HRTO Complaint. The College responded by denying all
allegations and asserting that Dr. Miller was treated appropriately. It was the
College’s position that Dr. Miller was not provided with another partial-load
assignment because students complained about her being condescending,
abruptly rude, dismissive and lacking empathy. The College asserted that their
decision not to re-engage Dr. Miller was for legitimate reasons, without any
discriminatory motivation.
[8] After opening statements, Dr. Miller provided her viva voce evidence.
During her evidence, Dr. Miller described the impact of not having been given
another assignment by the College. Dr. Miller described her mitigation efforts in
quite detail up to and including obtaining her current position as a Director of Care
at a nursing home. The hearing adjourned before any cross-examination could
take place.
[9] On July 14, 2021, counsel for the College wrote OPSEU counsel indicating
that Dr. Miller’s evidence of her mitigation efforts was “difficult to follow, and often
contradictory.” College counsel sought production of arguably relevant documents
related to mitigation efforts. In particular College counsel sought “further
information related to other contracts held by the grievor during (and after) her
partial-load and sessional engagements with the College including any efforts to
secure further employment from the date at which her employment with the
College ceased, to present date.
Such documentation includes but is not limited to:
• A full listing of earnings;
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• T-4’s and Income Tax returns
• Offer Letters
• Employment Contracts;
• Pay Stubs;
• Documents related to the use of job search platforms, services, placement
ort similar employment services;
• A log of Job Postings;
• Submitted Job Applications;
• Resumes and Cover Letters;
• All communications with prospective employers including letters and s-mail
correspondence;
• Notes demonstrating such efforts.”
[10] OPSEU and Dr. Miller objected to producing the documents. As a result, I
was contacted by the parties and a videoconference was held on August 19, 2021.
[11] During the videoconference, College counsel argued that the requested
documents were clearly arguably relevant, and the jurisprudence supported
ordering production to insure a fair hearing. OPSEU counsel strenuously objected
taking the position that Dr. Miller has a right to keep such records private and
production is not necessary at this stage. OPSEU counsel advised that Dr. Miller
is of the view that her evidence is sufficient, and that disclosure of her private
records would be prejudicial. In addition, Dr. Miller believes that production should
not be required as she was not required to share such private information with the
College when she was employed.
DECISION
[12] There is no dispute that an Ontario arbitrator has the power to make interim
orders concerning procedural matters, including but not limited to requiring any
party to furnish particulars or produce documents that may be relevant to the
matter being heard, see s. 48 (12) of the Labour Relations Act, 1995, S.O. 1995,
c. 1, Sched. A (as amended). In exercising the power to make interim procedural
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orders, an arbitrator is guided by the general principle that the parties are entitled
to an expeditious fair hearing.
[13] The jurisprudence relating to the production of documents is well
established and the test is arguable relevance. If a document is arguably relevant
to an issue in dispute, then the document ought to be produced. There are two
arbitral approaches applying this test. The liberal approach is articulated by
Arbitrator Owen Shime in Toronto District School Board and CUPE 4400, 2020
CarswellOnt 4762. While a more stringent test is articulated by Arbitrator Paula
Knopf in West Park Hospital and Ontario Nurses’ Association, 1993 CarswellOnt
1283. I have also addressed the issue in Amalgamated Transit Union, Local 113
and Toronto Transit Commission (Candela), 2016 CarswellOnt 19288, where I
indicate that the added element of proportionality must be applied to provide a fair
and efficient hearing.
[14] Regardless of which test is applied, I am satisfied that the documents
requested by the College are arguably relevant to the issue of mitigation, which
has been placed squarely on the table and in dispute. Dr. Miller has provided
detailed evidence about her mitigation efforts and the College has the right to
cross-examine her on that issue.
[15] Mitigation is a live issue in any case involving loss of employment. As
indicated in the Supreme Court of Canada decision, Red Deer College v. Michaels
[1976] 2 SCR 324, in the ordinary course of litigation respecting wrongful dismissal,
the plaintiff (in this case Dr. Miller) would lead evidence respecting her losses or
damages as a result of the dismissal. The onus is then on the defendant (in this
case the College) to demonstrate that the plaintiff has failed in their duty to mitigate.
The burden is quite high as the information necessary to show a failure to mitigate
is for the most part in the hands of the plaintiff. In my view, fairness dictates that
the College have production of the documents they requested, which are arguably
relevant, have been sufficiently particularized and have a clear nexus to the
mitigation issue in dispute.
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[16] I note that production of mitigation documents has also been ordered by
Canadian human rights tribunals, see Ghinis v. Crown Packaging Ltd. [2002]
BCHRTD No 30 and De Francesca v. Centric investigation Services Inc. [20017
OHRTD No 800.
[17] I fully appreciate Dr. Miller’s privacy concerns, as emphatically articulated
by OPSEU counsel. I note that it is not unusual to make orders protecting the
confidentiality of certain documents in arbitration proceedings. Confidentiality
orders are almost always sought in relation to the production of an employee’s
medical records. A similar order will protect Dr. Miller’s privacy, while still providing
for a fair hearing.
[18] Therefore, after carefully considering the parties’ submissions, I order that
Dr. Miller and OPSEU produce the documents requested by the College as noted
above. The documents are to be produced within 90 days, subject to an extension
if reasonably required to obtain such documents. The documents produced are to
remain confidential and are subject to the following confidentiality conditions:
a) All documents are to be kept confidential as among the parties;
b) The documents shall be produced to counsel, and they may share the
documents with one advisor;
c) No copies shall be made of any document except for the purpose of
the hearing of this grievance;
d) No copies of the documents are to be circulated to third-parties,
without a further order from me;
e) The documents are to be used only for the purposes of this hearing
and for no other or improper purpose. Specifically, the documents are not
to be used in any other proceeding and are not to be shown or provided to
any other party or person once the hearing is completed;
f) All copies of the documents are to be returned to Dr. Miller or destroyed
at the conclusion of this proceeding and any judicial review proceedings
arising out of this proceeding, save for one copy to be retained by each
counsel in her file; and
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g) No personal information contained in any of the documents, shall be
disclosed to any person except for the purposes of this proceeding, or
except as required by law.
[19] Either party may apply to me for further orders and directions with respect
to the production of documents, including seeking amendments to this order, if
necessary, to ensure a fair hearing.
[20] My office shall schedule dates for this matter to continue.
Dated this 20th day of August 2021 in the City of Toronto, Ontario.
_________
John Stout, Arbitrator