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HomeMy WebLinkAboutMiller 21-10-19IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act 2008, S.O. 2008, 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 (GRIEVANCE # 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 WRITTEN SUBMISSIONS 2 INTERIM PROCEDURAL AWARD [1] This interim award addresses a preliminary objection raised by OPSEU to the admission of a May 20, 2020, Investigation Report authored by Esi Codjoe (the “Investigation Report”) as an exhibit in these proceedings. [2] By way of background, 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 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. 3 • Failing to exercise management functions in a manner consistent with the Collective Agreement. [3] 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, pension 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. [4] 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. [5] The College provided a response to Dr. Miller’s 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. [6] The College retained Ms. Codjoe, a lawyer, and former Vice Chair at the HRTO, to conduct the investigation. Ms. Codjoe issued the Investigation Report on May 20, 2020, concluding that only one of Dr. Miller’s allegations was substantiated. The other allegations of violating the Code, OHSA and Seneca’s Discrimination and Harassment Policy were not substantiated. [7] 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, the mediation did not prove to be fruitful. However, the College did agree to drop their preliminary objection to the 4 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. [8] In terms of procedure, a Joint Book of Documents was admitted into evidence as well as a copy of HRTO Complaint was made an exhibit. OPSEU insisted that the case be determined in the normal course with viva voce evidence heard over Zoom. It was agreed that counsel would address production issues between themselves and contact me if there was any dispute that required my intervention. [9] As a preliminary matter, OPSEU raised an objection with respect to the inclusion of Ms. Codjoe’s Investigation Report as an exhibit. I ordered the parties to file written submissions. [10] The submissions may be summarized as follows: • OPSEU argues that the Investigation Report is not relevant as it was created after the grievance was filed and it was not relied upon by the College in making their decision not to offer Dr. Miller a partial-load assignment. OPSEU also objects to the admission of the Investigation Report because it is hearsay and prejudicial. In addition, OPSEU notes that the findings letter of the investigation’s outcome is already included in the Joint Book of Documents. In their view, the findings letter provides sufficient evidence to confirm that the College undertook an investigation and its outcome. • The College submits that the Investigation Report is relevant to addressing Dr. Miller’s allegations that the College violated the Code and OSHA. The College asserts that there is a sufficient nexus between the events giving rise to the grievance and the Investigation Report and therefore it must be admitted as an exhibit. The College has indicated that they intend on calling any witnesses required to corroborate the evidence found in the Investigation Report. Accordingly, they see no prejudice to admitting the Investigation Report. 5 Decision [11] After carefully considering the parties’ submissions, for reasons that follow, I am admitting the Investigation Report and it shall be marked as an exhibit. Counsel is free to argue what, if any, weight should be given to the Investigation Report during its final submissions. [12] The Colleges Collective Bargaining Act, 2008, S.O 2008, c. 15, s. 14(12)(f) provides that an arbitrator has the power “to accept the oral or written evidence as the arbitrator or arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not.” Arbitrators routinely exercise their discretion to admit such documents, even when objections are raised by one of the parties, see Centennial College and OPSEU, Local 558 2021 CanLII 10820. [13] I acknowledge that the Investigation Report is hearsay containing statements that were not taken under oath. However, the fact that the Investigation Report may be classified as hearsay does not, in and of itself, restrain me from admitting the document. I do not understand the College to be entering the Investigation Report as proof of the contents. Rather the Investigation Report is evidence that the College conducted a full investigation of Dr. Miller’s complaints. In this regard, they have indicated that they will call the witnesses that they need to call to prove the facts to support their case. In this regard, OPSEU and Dr. Miller will have the opportunity to test the evidence by cross-examination. [14] Arbitrators understand the difference between hearsay and non-hearsay evidence. They also understand that the right to a fair hearing requires them to only rely upon evidence that has cogency in law. In Yee Hong Centre for Geriatric Care v. SEIU, Local 1 Canada, 2019 CanLII 54740 (“Yee Hong”), I was faced with a similar issue relating to the admissibility of an investigation report. I admitted the investigation report subject to arguments about admissibility and weight to be provided later. This is the normal way of dealing with such evidence. I note that ultimately, after assessing all the evidence, I concluded that the investigation report 6 in Yee Hong was not reliable and had little probative value. The grievor in Yee Hong was not prejudiced in those proceedings because I was able to see past the investigation report, relying on the evidence presented in the hearing, which is precisely what all arbitrators do when they hear a case, see Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Gillis) [2005] OGSBA No. 142. [15] I also acknowledge that the Investigation Report may be characterized as subsequent event evidence because it was created after the grievance was filed. However, subsequent event evidence is admissible if it helps to shed light on the reasonableness and appropriateness of the decision(s) that were made giving rise to the grievance. In my view, it is just too early in the proceedings to evaluate the weight to be given to the Investigation Report. It may well be that the Investigation Report must be given very little weight. On the other hand, the Investigation report may be found to provide insight into the College’s decision not to renew Dr. Miller’s partial-load assignment. At a minimum the Investigation Report will provide insight into the investigation undertaken and provide prior statements of those who were interviewed by Ms. Codjoe. In my view, the prudent course to take is to admit the Investigation Report and decide the issue of weight after assessing all the evidence. [16] Therefore, for all the reasons stated above I am dismissing OPSEU’s objection. The Investigation Report is to be made an exhibit, subject to argument as to what, if any, weight should be given to it at the end of the day. I remain seized. Dated this 19th day of October 2021 in the City of Toronto, Ontario. _____ _ __ John Stout, Arbitrator