HomeMy WebLinkAbout2017-0583.Bonacci.21-11-04 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2017-0583; 2017-0698
UNION# 2017-0551-0006; 2017-0551-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bonacci et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Ed Holmes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Counsel
HEARING April 19 and June 16, 2021
DECISION
[1] There are two matters before me. The parties disagree as to whether they consist of
two group grievances or one group grievance and ten identical individual grievances
from another group of employees. It is not necessary for me to determine that issue
for the purposes of this decision. For convenience, I shall refer to the matters before
me as the Falconi group grievances and the Bonacci group grievances.
[2] The grievors are all probation and parole officers (“PPOs”). The grievances relate to
the Employer’s use of a case audit process known as Case Management Review
(“CMR”) to evaluate the performance of duties by probation and parole officers.
[3] The Employer brings four preliminary objections to the grievances. The Employer
argues: they are untimely; insufficient particulars have been provided; the particulars
which have been provided, for the most part, fail to establish a prima facie case; and
that grievances filed by three members of the Bonacci group ought to be dismissed
on the basis that they raise issues which were raised, or could have been, in prior
grievances by those individuals which were resolved by a settlement dated January
23, 2017.
[4] I note the parties’ agreement that these preliminary objections are advanced without
prejudice to the Employer’s right to advance arguments: with respect to the
application of Monk; challenging the relevance of any evidence advanced on the
basis that it constitutes an expansion of grounds; the application of the “three year
rule” to events which pre-date the grievances by more than three years.
Procedural History
[5] The Falconi group grievances were filed on April 26, 2017. They state:
We grieve that management has violated Section 2.1 of the Collective Agreement
and any other applicable sections of the CBA by performing the stated case
management review process in a clearly unfair, punitive, non-collaborative
manner that lacks transparency and does not accurately reflect the totality of the
work we do.
Settlement desired
To be made whole including, but not limited to, management immediately ceasing
and desisting from this unfair labour practice.
[6] The Bonacci group grievances were filed on April 27, 2017. They state:
We grieve that management has violated section 2.1 of the collective agreement
and any other applicable sections of the collective agreement by failing to
perform case management reviews according to Ministry policy which states:
case management reviews should be fair and transparent and supports [sic] a
collaborative approach between the manager or designate and is a valuable
learning opportunity for PPOs, managers and their designates to improve skills
and knowledge and service.
Case management reviews (CMRs) were conducted contrary to many aspects of
this policy but most notably in an unfair, non transparent and non collaborative
manner therefore my rights under the collective agreement have been violated,
including but not limited to, Article 2 and 3, Health & Safety issue, work load
issues and any other applicant legislations [sic] or statutes.
Settlement Desired:
That these reviews be rescinded and that further reviews adhere to the case
management review policy and specifically that they are fair, transparent and
collaborative rather than punitive. Full redress and any other remedy that in the
opinion of an arbitrator will make the grievor whole.
[7] Formal Resolution Stage meetings were held with respect to the Falconi and Bonacci
group grievances on May 29, 2017 and May 18, 2017 respectively. They were
referred to arbitration on June 20, 2017 and June 5, 2017 respectively.
[8] The parties agreed to schedule the Falconi group grievances and the Bonacci group
grievances to be heard together. This was reflected in the notice of proceeding sent
by the Grievance Settlement Board on August 31, 2017.
[9] Ultimately, both matters were scheduled for mediation on January 9, 2018. At that
time the Employer was engaged in a review of the CMR process (the “CMR
Review”). The parties agreed to adjourn the grievances sine die on a without
prejudice basis. The Employer gave notice that if the matters proceeded it would be
seeking particulars and depending on those particulars, might bring preliminary
motions to have the grievances dismissed on the basis of timeliness, jurisdiction and
lack of a prima facie case. This was the first time the Employer raised the issue of
timeliness.
[10] Both the Falconi group and the Bonacci group made written submissions to the CMR
Review.
[11] The Union requested the grievances be brought back on for a hearing. The
Employer repeated its request for production and particulars. (Employer counsel’s
assertion that it requested particulars on December 21, 2017, August 26, 2020, and
January 29, 2021 was not contested.). A schedule was established for this purpose.
The Union provided some production and particulars. The Employer requested a
conference call during which it requested further and better particulars, noting it
wished to use them for the purposes of its preliminary motions. The Union
maintained that it had provided sufficient particulars. The Union was directed to
provide any further particulars upon which it sought to rely by a specific date. The
Union subsequently filed further particulars. Following review of the particulars, the
Employer gave notice it wished to proceed with the four preliminary objections
identified at the outset of this decision.
[12] During the hearing of the preliminary matters, Union counsel advised that all but
three of the grievors in the Bonacci group had withdrawn their grievances. The
remaining three are: Paula Bonacci, Hernani Pereira and Sam Cole.
Timeliness and Particulars
[13] I find it useful to address these two issues together.
[14] The Employer concedes that sufficient particulars have been provided in relation to
the Bonacci group grievances, but asserts that insufficient particulars have been
provided in relation to the Falconi group grievances and seeks to have them
dismissed on that basis.
[15] The Employer argues neither the Falconi nor the Bonacci group grievances have
been filed within thirty days of the date on which the circumstances giving rise to the
complaint occurred or ought reasonably to have come to the attention of the
employees, as required by the collective agreement. The Employer acknowledges
an arbitrator of the Board has jurisdiction under s. 48(16) of the Labour Relations Act,
1995 (“OLRA”) to extend the time lines set out in the collective agreement, but
argues the discretion afforded by that section should not be exercised in this case.
[16] The Union argues the Employer has waived the right to raise a timeliness objection,
that in any event the subject matter of the grievances is a continuing breach of the
collective agreement with the result that each fresh breach gives rise to a new
grievance and in the further alternative this is an appropriate case to exercise the
discretion afforded by s. 48(16) to extend the time lines.
[17] I agree with the Union that the subject matter of the grievances is an allegation of a
continuing breach of the collective agreement. In essence, the grievances on their
face allege the Employer’s use of the CMR process constitutes a breach of the
collective agreement. Each fresh use of the CMR process in the manner alleged
would constitute a new breach of the collective agreement and give rise to a new
grievance. The issue in the first instance is whether a timely grievance has been filed
in relation to any such new breach.
[18] The Union relies upon OPSEU (Hunt) v. Ontario (Ministry of the Attorney General),
2003 CanLII 52888 (ON GSB) (Abramsky). In that case, a group of court reporters
grieved the employer’s practice of scheduling them in a certain manner, alleging it
resulted in their being “forced to perform authorized duties on overtime hours with no
overtime pay” contrary to the collective agreement. There was no dispute that the
employer’s practice was substantially as alleged and that it had been the practice for
a number of years: see p. 3. The employer brought a preliminary motion seeking to
have the grievance dismissed as untimely, given that the change in practice had
commenced some years prior to the grievance. Arbitrator Abramsky dismissed the
motion, finding the grievance was not a challenge to the change of practice itself but
rather a challenge to the ongoing impact of that change. As such, the matter before
her was a continuing grievance which she found to be timely. I note that in her
review of the case law, at pp. 10-11, she quotes with approval from a decision of
Arbitrator Burkett in which he said that in cases of continuing breaches of a collective
agreement “the time limits for filing of a grievance … must be found to be triggered by
the breach closest in time to the filing of the grievance”. There was no dispute in the
case before Arbitrator Abramsky that an application of the employer’s scheduling
practice had occurred within the time limits for the filing of a grievance.
[19] By contrast, there is very much a dispute before me about whether there was any
use of the CMR process within the time limits for filing a grievance, let alone one
which could be said to be unfair, punitive, or non-collaborative as generally alleged
by the grievances. Neither grievance, on its face, refers to a specific event nor
otherwise indicates the date or dates on which the use of the CMR process alleged to
breach the collective agreement took place. In the absence of this information, the
Employer would have been unable to determine whether the grievances were timely.
I thus reject the Union’s argument that by participating in the grievance procedure the
Employer waived its right to raise a timeliness objection. The contrary conclusion
would impede labour relations between the parties, as it could result in the Employer
either making boilerplate objections or insisting on full and proper particulars prior to
participating in the grievance process lest it be accused of waiver.
[20] The cases provided by the Union in relation to waiver are not inconsistent with this
conclusion.
[21] The Union cites OPSEU (Union) v. Ontario (Ministry of Community Safety and
Correctional Services), 2005 CanLII 55200 (ON GSB) (Herlich) for the proposition
that the taking of a fresh step in the grievance procedure is sufficient to constitute
waiver. I agree that it may. I note, however, that Arbitrator Herlich cited with
approval the following statement (at p. 11):
The concept of “waiver” connotes a party not insisting on some right, or giving up
some advantage. However, in order to be operative, waiver will generally
require both knowledge of and an intention to forego the exercise of such a right.
[My emphasis.]
Arbitrator Herlich found the grievance before him provided sufficient information on its
face for the employer to have been alerted to a timeliness objection: see p. 13.
Accordingly, the employer’s subsequent steps in the grievance process constituted
waiver. The matters before me are group grievances, or a group grievance and a
group of individual grievances. The parties’ collective agreement contemplates that
such grievances are to be filed in relation to “specific incidents or circumstances”: see
Article 22.11.1 and Article 22.2. The date of the specific incidents or circumstances
giving rise to the grievances are not apparent on their face, and were not disclosed,
in case of the Bonacci group grievances, until the Union provided particulars.
[22] The Union relies upon OPSEU (Jackson) v. Ontario (Ministry of Children, Community
and Social Services), 2020 CanLII 74277 (ON GSB) (Banks). In my view, that case
does not assist the Union. In that case, the issue was whether the employer had
waived its right to object to an untimely referral of the grievance to arbitration, not to
the untimely filing of the grievance itself. Arbitrator Banks makes this distinction
explicitly at para. 38, and notes that while not relevant to the issue before him, lack of
particulars may be relevant to the determination of whether or not a grievance has
been filed in a timely way. That is the issue in the case before me.
[23] The Union relies upon Fung/Anand, GSB # 1798/89 and 104/90, April 16, 1991
(Stewart). Arbitrator Stewart held at p. 11, “that an objection based on non-
compliance with time limits is waived when there has been a failure to raise the
objection in a timely manner and the taking of a fresh step prior to raising the
objection.” However, earlier in the same paragraph, at p. 10, Arbitrator Stewart noted
that the “timeliness of [the] grievance was clear from the information available to the
Employer at the time the grievance was filed.” The same cannot be said in the
grievances before me.
[24] Finally, on the issue of waiver, the Union relies upon George Brown College of
Applied Arts and Technology and OPSEU, 1995 CarswellOnt 6780, 42 CLAS 304
(Burkett) as further authority for the proposition that the taking of a fresh step
constitutes waiver of a procedural objection. The grievance in that case alleged
improper lay off. The collective agreement contained a provision which required the
written referral of such a grievance identify positions held by two individuals the
grievor claimed to be entitled to displace, which positions would then become the
subject matter of the arbitration hearing. The written referral to arbitration did not
contain this information, however, the evidence before the arbitration board
established two positions had been identified orally by the union. The appointment of
the arbitrator was held to constitute a fresh step waiving the technical requirement
the positions be specified in writing in the referral.
[25] I see no parallel to the case before me. There is no evidence to suggest that the
events said to form the basis for the grievances were identified by the Union in any
manner prior to the provision of written particulars to the Employer. Instead, the
Employer had to request particulars from the Union repeatedly. Ultimately, the Union
was in fact ordered to provide particulars. Once the Employer received the
particulars, it formally made its objection to the timeliness of the grievances.
[26] As noted, the Employer contests the adequacy of the particulars provided in relation
to the Falconi group. They are contained in two documents.
[27] The first document is an email dated March 15, 2021 from counsel for the Union to
counsel for the Employer. (The particulars in the email were also applicable, in large
part, to the Bonacci group grievances.) The email sets out the history of the CMR
process, starting with its introduction in 2003. The CMR process as it then was is
summarized and described as having been used in a transparent and collaborative
way. The Union alleges the use of the CMR process changed in 2013 and became
objectionable. The Union alleges thereafter, “the Employer used the CMR tool to
provide: excessive performance management, which would allow for the employer to
utilize the tool to single out and target members; focussed on errors not development;
used the tool as a method to threaten discipline or other punitive action; no longer
provided proper advance notice of the audit; [and] had a pool of managers doing the
audit review ….[who] would not be familiar with the employee ….” This is the
conduct which the Union alleges violates the collective agreement and various
statutes.
[28] The March 15, 2021 email contains only one specific reference to anyone from the
Falconi group. It refers to an incident between Ms. Falconi and a manager in April,
2018. This post dates the grievance by one year. The incident need not be set out
here as it does not constitute particulars of events giving rise to the Falconi
grievance.
[29] The second document is the written submissions made by the Falconi group to the
CMR Review. Those submissions are similar to the assertions made in the March
15, 2021 email. They also assert that there are insufficient staffing levels in the
office in question and that current CMR process does not take into account the daily
realities and stress faced by PPOs in the performance of their work.
[30] Taken together, these particulars provided in relation to the Falconi group grievances
assert that the Employer’s use of the CMR process constitutes a breach of the
collective agreement, but are completely silent on when that breach occurred. In my
view the Falconi group grievances must be dismissed for the failure to provide
particulars, specifically particulars which would permit an assessment as to the
timeliness of the grievance. I note similar conclusions were reached by Arbitrator
Abramsky in OPSEU (Singh) v. Ontario (Ministry of Community Safety and
Correctional Services), GSB 2001-1070, June 27, 2005, at p. 14.
[31] As noted, the Employer concedes sufficient particulars were provided in relation to
the Bonacci group grievance. The general particulars provided in relation to the
Bonacci group are similar to the particulars provided in relation to the Falconi group.
They assert the Employer’s use of the CMR process since 2013 constitutes a breach
of the collective agreement, but do not identify any specific events where such a
breach is said to have taken place. Individual particulars, however, were filed on
behalf of Ms. Bonacci, Mr. Cole and Mr. Pereira.
[32] As an overall comment, I note that Bonacci, Cole and Pereira each state that they
experienced significant ongoing stress, if not health issues, as a result of the manner
in which CMRs were conducted. While one can only sympathize with the stress
described, what matters for the timeliness issue is whether the circumstances alleged
to give rise to that stress, i.e. a CMR or some other action (or inaction) of the
Employer, occurred within the thirty day period prior to the filing of the grievances.
As noted, their grievances were filed on April 27, 2017.
[33] The Cole particulars complain of a number of events. The years 2007, 2017 and
2020 are all referenced in the course of the narrative, but not in a manner that is
sufficiently clear to identify when the complained of events took place. As with the
Falconi group grievances, in my view the Cole grievance must be dismissed for
failure to provide particulars which would permit an assessment as to the timeliness
of the grievance.
[34] The Employer argues the Bonacci particulars establish that her grievance is
“grounded” in an email dated November 19, 2016. Since this pre-dates the filing of
the grievance by six months, the Employer argues the grievance is untimely.
[35] The chronology in the Bonacci particulars does commence with allegations in relation
to an email dated November 19, 2016 which she received from her manager, Andrew
Burston, but they do not end there. The Bonacci particulars allege Mr. Burston’s
email indicated that a “recent” CMR was attached. The CMR attached is said to have
been from June 28, 2015 to March 2, 2016. There is then reference to a further
email dated November 30, 2016 from Mr. Burston with respect to another “recently
completed” CMR. This CMR is alleged to date back to March, 2016. Ms. Bonacci
did not consider either of these CMRs to be “recent”. Her particulars indicate she
found the situation stressful and describe a number of steps which she took to
attempt to address this stress over the next several months. Ms. Bonacci then
indicates that she received an email on March 27, 2017 from Mr. Burston indicating
that he had completed six CMRs and that he wanted to schedule a review meeting
for April 3, 2017. While it is not entirely clear whether this group of six subsumed the
two CMRs referenced in the November 19 and 30, 2016 emails, it appears in any
event that there were additional CMRs which were to be discussed at the April 3,
2017 review meeting. Ms.Bonacci met with Mr. Burston on April 3, 2017 to discuss
the CMRs. Ms. Bonacci alleges that at no time during this discussion did Mr. Burston
indicate that any disciplinary action would be initiated by management. The
grievance was filed on April 27, 2017. On June 19, 2017, it appears Ms. Bonacci
received a notice of an allegation meeting from Mr. Burston in relation to the CMRs
discussed on April 3, 2017.
[36] In her particulars, Ms. Bonacci complains about the CMRs she discussed with her
manager on April 3, 2017. Accordingly, Ms. Bonacci’s grievance is timely to the
extent it relates to those April 3, 2017 events. I note that a number of events
referenced in the Bonacci particulars are more than 30 days before April 27, 2017, or
post date April 27, 2017. Some of these events may be relevant to establishing a
course of conduct alleged to constitute harassment on or about April 3, 2017, as
subsequent event evidence relevant to what occurred on April 3, 2017, or as
evidence of the degree of harm caused by any such harassment. To be clear, I
make no decision on those questions.
[37] The Pereira particulars describe specific events related to CMRs from January, 2012
to May, 2016. These include reference to allegations of wrongdoing Pereira received
from the Employer in relation to CMRs in April, 2016. There is also reference to the
fact that he was suspended on May 5, 2016 while under investigation for something
which is only described as “unrelated to CMR”. This is the last event, other than two
emails received in May, 2016, specifically identified in the particulars. The length of
the suspension is not set out in the particulars, other than to say it was extended for
“months”. Mr. Pereira indicates after he returned to work, notwithstanding that his
managers had changed, “the tone of the CMRs “Allegations of wrongdoing” impacted
me and made me feel like I had committed a crime.” This appears to be a reference
to the effect on Mr. Pereira of the allegations of wrongdoing which he received in
April, 2016, but in any event no specific events subsequent to May, 2016 are
identified. I conclude that Mr. Pereira’s grievance is untimely.
[38] I turn to the question of whether I should exercise the discretion afforded me by s.
48(16) of the OLRA to extend the time limits for filing the Pereira grievance. That
section provides:
Except where a collective agreement states that this subsection does not apply,
an arbitrator or arbitration board may extend the time for the taking of any step in
the grievance procedure under a collective agreement, despite the expiration of
the time, where the arbitrator or arbitration board is satisfied that there are
reasonable grounds for the extension and that the opposite party will not be
substantially prejudiced by the extension.
Exercise of the discretion requires both conditions be met. The Employer does not
assert prejudice in this case. The only issue, therefore, is whether there are
reasonable grounds for the extension.
[39] The factors commonly considered by this Board are those set out by Arbitrator
Burkett in Becker Milk Company and Teamsters Union, Local 647 (1978), 19 LAC
(2d) 217: (i) the reason for the delay given by the offending party; (ii) the length of the
delay; and (iii) the nature of the grievance. In this case, no reason has been offered
for the delay. The length of delay in relation to the Pereira grievance is some 10
months beyond the time for filing of a grievance. The Employer points to a number of
decisions of this Board in which grievances were dismissed as untimely for shorter
delays than that, including OPSEU (Berday) v. Ontario (Ministry of Transportation),
2008 CanLII 70540 (ON GSB) (Devins) where a grievance related to the termination
of employment was dismissed for a four month delay. The Pereira grievance alleges
unfair, punitive conditions of employment which are said to violate the Occupational
Health and Safety Act. These are serious allegations, but not more serious than
cases involving termination of employment. Having regard to the lack of
explanation, the length of the delay and the nature of the grievance, I am not satisfied
there is sufficient reason to exercise my discretion to extend the time for the filling of
the Pereira grievance.
[40] In the result, all the grievances but the grievance of Ms. Bonacci are dismissed for
want of particulars or because they are untimely.
No Prima Facie Case
[41] The test for a no prima facie case motion is set out in Ontario Public Service
Employees Union (Martin et al) v Ontario (Community and Social Services), 2015
CanLII 60449 (ON GSB) (Anderson):
[3] There is little disagreement between the parties as to the principles applicable
to a motion alleging the particulars of a grievance fail to make out a prima
facie case. In order to succeed, the moving party, in this case the Ministry, must
establish that the “facts asserted in support of a grievance, if accepted as true,
are not capable of establishing the elements necessary to substantiate the
violation alleged”: Couture, 2011 CanLII 100922 (ON GSB),
(Dissanayake). Arguments or conclusions do not constitute allegations of
fact. Accordingly, they need not be accepted as true for the purposes of a
no prima facie case motion.
….
[5] The Union notes that in Evangelista, 2011 CanLII 41847 (ON GSB)
(Harris) the Board stated that it was not appropriate to weigh the quality of the
proposed evidence in determining whether there was a prima facie case: see
para. 11. The Union asserts that as a result, for example, I would be required to
accept as true the assertion that the moon is made of blue cheese. With respect,
I disagree. In Evangelista, the proposed evidence was capable of belief. That is
not the case with the Union’s hypothetical example. As I noted in Bharti, 2015
CanLII 19330 (ON GSB) at para. 10:
In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R (3d)
1 the Ontario Court of Appeal held that for the purposes of
determining whether or not a plaintiff’s pleadings made out a prima
facie case, alleged facts that were patently ridiculous or incapable of
proof need not be accepted as true.
[6] The question is whether the asserted facts, taken as a whole, constitute
particulars capable of supporting the violation of the collective agreement
alleged. As the Union argues, the words “capable of supporting the violation” are
of some significance. What matters for the purposes of the no prima facie case
motion is whether the party responding to the motion, in this case the Union, has
articulated a legal theory which, on the facts it has particularized, could
reasonably support a conclusion that there is a violation of the collective
agreement. Therefore, the particulars are to be assessed against the responding
party’s theory of the case. Whether that theory is correct need not be determined
at this stage in the proceedings. Provided the responding party’s theory is
reasonable and it has provided particulars which, if true, would result in a finding
of a breach on the application of that theory, the motion should be dismissed.
To this statement should be added that where the motion is to be dismissed, no
reasons are to be given. This is to ensure the moving party does not get “two bites at
the apple”.
[42] The theory advanced by the Union is stated in its particulars: “the Employer used the
CMR tool to provide: excessive performance management, which would allow for the
employer to utilize the tool to single out and target members; focussed on errors not
development; used the tool as a method to threaten discipline or other punitive
action; no longer provided proper advance notice of the audit; [and] had a pool of
managers doing the audit review ….[who] would not be familiar with the employee
….”. Reference is made on the grievance form to Articles 2 (management rights), 3
(no discrimination or harassment) and 9 (health and safety).
[43] The Employer argues to the extent the grievance alleges a breach of Article 3, there
are no particulars of behaviour which could be construed as harassment. I disagree.
[44] The Employer argues the implementation of a policy is an exercise of management
rights. The Employer argues to the extent the grievance alleges a breach of Article 2,
the management rights clause, there is no allegation of discrimination or arbitrary
behaviour and that the particulars are not capable of supporting a finding of bad faith.
The Employer further argues that in any event this Board has no jurisdiction to deal
with an allegation of a breach of Article 2 absent a “hook” into some other provision of
the collective agreement. The Union argues that as a result of
Bhasin v. Hrynew, 2014 SCC 71, there is no longer a need for a “hook”. The Union
further argues that in any event, the fact that the use of the CMR may have
disciplinary consequences is sufficient to give rise to a hook.
[45] In my view, the issue before me is not the implementation of the CMR policy in 2013,
but rather its subsequent application. Given that in my view there is a prima facie
breach of Article 3, there is at least that hook. I need not address the balance of the
parties’ arguments further at this time.
[46] The Employer argues that to the extent the grievance alleges a breach of Article 9
and claims damages for health effects as a result of the implementation of the CMR
Policy, there are no particulars which would permit the conclusion that those
damages were reasonably foreseeable. Again the issue before me is not the
implementation of the policy but its subsequent application. In my view, the
pleadings are capable of supporting a finding that it was applied in a manner which
was contrary to Article 9 of the collective agreement. What remedy is available in
relation to such a breach is a matter which may be addressed after the evidence is
heard.
The January 23, 2017 Settlement as a Bar
[47] This motion by the Employer may be quickly addressed. The Employer’s argument is
that the January 23, 2017 settlement acts as a bar to all issues that were or could
have been raised as of the date of the settlement. Thus far I have concluded the
grievance of Ms. Bonacci may proceed only in relation to the events surrounding her
April 3, 2017 CMR. Those events post date the settlement. Accordingly, the
settlement does not bar Ms. Bonacci from proceeding with her grievance in relation to
those events.
Summary
[48] For the reasons stated:
(i) The Falconi grievances are dismissed for want of particulars;
(ii) The Cole grievance is dismissed for want of particulars with respect to timeliness;
(iii) The Pereira grievance is dismissed as untimely;
(iv) The Employer’s motions to dismiss the Bonacci grievance are dismissed.
Dated at Toronto, Ontario this 4th day of November 2021.
“Ian Anderson”
______________________
Ian Anderson - Arbitrator