HomeMy WebLinkAbout2019-0169.Policy.21-11-05 DecisionCrown Employees
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GSB# 2019-0169
UNION# G-012-19-COR
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Policy) Union
- and -
The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE
Marilyn A. Nairn
Arbitrator
FOR THE UNION
Simon Blackstone
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Bonnea Channe
Filion Wakely Thorup Angeletti LLP
Counsel
HEARING September 10, 2021
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INTERIM DECISION
[1] This decision deals with the issue of whether or not to consolidate various grievances
for hearing and/or whether to direct that certain grievances be heard together. The
Amalgamated Transit Union, Local 1587 (the “ATU” or the “Union”) seeks an order that
two policy grievances be consolidated for hearing. In addition, the Union seeks an
order that the policy grievances be heard together with five individual grievances. The
Employer opposes the Union’s requests.
[2] All of the grievances involve the application of a Fitness for Duty Policy (the “Policy”)
implemented by Metrolinx (the “Employer”) that was amended in early 2019 to include
certain specific reference to cannabis following the legalization of the use of various
cannabis products. Provisions of the policy at issue include:
3.2 CANNABIS
5. Due to Metrolinx’s commitment to the health and safety of its employees, the
public, and the communities we serve, all positions deemed Safety Sensitive
(appendix A) are prohibited from any recreational use of cannabis and/or cannabis
products both on and off duty.
…
3.3 MEDICATIONS
8. Metrolinx is committed to preserving the health and safety of all employees. Any
employee who is currently prescribed or has received a new prescription for pain
management medications, narcotics or other potentially impairing medications are
required to notify Health and Wellness, the Program Administrator or their
Supervisor prior to beginning their shift. (Refer to Appendix C for examples of
medication).
…
7.0 CONSEQUENCES OF A POLICY VIOLATION
7.1 GENERAL
Any violation of the provisions of this Policy, including a positive test result or a
refusal to test, may result in discipline up to and including termination of
employment. Each violation of the Policy will be assessed on a case-by-case basis.
The appropriate discipline in each particular case depends on the nature of the
Policy violation and the circumstances surrounding the situation. In all situations,
an investigation will be conducted and documented to verify whether a violation
has occurred.
Management has the discretion to remove any individual from work who is believed
to be involved in a violation of this Policy, pending the completion of an
investigation.
…
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[3] The seven grievances are described as follows. Policy Grievance #G-012-19-COR (the
‘prohibition’ grievance) dated April 12, 2019, alleges that the Employer engaged in an
unreasonable exercise of management rights and violated the collective agreement,
the Ontario Human Rights Code (the “Code”), and the Charter of Rights and Freedoms
(the “Charter”) by imposing in Article 3.2.5 of the Policy an absolute prohibition on the
off duty use of cannabis for workers employed in safety sensitive positions. Secondly,
the grievance asserts that the Policy fails to provide for the accommodation of those
using medical cannabis, contrary to the collective agreement, the Code, and the
Charter.
[4] Policy Grievance #G-064-20-COR (the ‘impairment’ grievance), dated October 5,
2020, alleges that the use of oral fluid swabs to test impairment and the setting of an
impairment level of 10 nanograms per millilitre of THC are unreasonable and arbitrary
with respect to assessing impairment.
[5] Grievance #G-039-19-BOW (Sinclair #1) dated April 17, 2019 alleges that the
Employer discriminated against this grievor on the basis of disability and engaged an
unreasonable exercise of management rights in breach of the collective agreement
and the Code as well as the Freedom of Information and Protection of Privacy Act
(“FIPPA”) by requiring that the grievor execute an extensive and full release with
respect to his medical information and undergo a review of that medical documentation
by a third party on behalf of the Employer following disclosure of medical authorization
for the use of medical cannabis. The Union alleges that the Employer improperly
deemed the grievor to be unfit and improperly relied on that decision to remove the
grievor from his safety sensitive position, effectively and improperly applying an
absolute prohibition from working in a safety sensitive position for any use of cannabis,
including medical cannabis.
[6] Grievance #G-039-20-BOW (Sinclair #2) dated July 17, 2020 alleges that the Employer
breached the collective agreement, the Code and the Labour Relations Act, 1995 (the
“Act”) by failing to return this grievor to work as a bus driver and by requiring the grievor
to enter into Minutes of Settlement in order to allow him to return to work, which Minutes
the Union alleges are disciplinary, discriminatory, and constitute a reprisal against the
grievor. The parties have agreed that Sinclair #1 and Sinclair #2 are to be heard
together.
[7] Grievance #G-140-19-BFF (Wong) dated November 8, 2019 raises the same
allegation as that made in the Sinclair #1 grievance, that being, this grievor reported
his authorization for medical use of cannabis and it is alleged that he was required to
undergo an unreasonable, discriminatory, and inappropriately invasive medical review
by a third party on behalf of the Employer. The Union alleges that the Employer
deemed the grievor unfit for any safety sensitive work and removed him from his
position as a maintenance worker, effectively and improperly applying an absolute
prohibition against working in a safety sensitive position as a result of any use of
cannabis, including medical cannabis.
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[8] Grievance #G-141-19-BOS (Beynon) dated October 16, 2019 challenges the
Employer’s decision to terminate this grievor’s employment as a bus operator as a
result of a positive post-incident Fit for Duty test. The Union asserts that this grievance
incorporates a challenge to the parameters utilized by the Employer for testing
impairment as challenged in the impairment policy grievance as well as the application
of an absolute prohibition against cannabis use under the Policy.
[9] Grievance #G-014-20-BOE (Sousa) dated March 5, 2020 raises a similar allegation as
that in Sinclair #1 and Wong and alleges that the Employer failed to properly
accommodate this grievor in violation of the collective agreement and the Code by
failing to provide him with an accommodated work assignment. The Union alleges that
the grievor was using medical cannabis and was removed from his position based on
the Employer’s improper application of a complete prohibition against any cannabis
use when working in safety sensitive positions.
[10] The Employer has also advised that it intends to raise preliminary objections to the
Board’s jurisdiction to hear the impairment testing policy grievance and the Sinclair #2
grievance, on the basis that the referrals to arbitration were outside the required time
limits and were otherwise untimely.
[11] The Employer also referred to Grievance G-142-19-BOE as a further individual
grievance allegedly raising the same allegation as the Sinclair #1 and Wong
grievances, noting that this grievance had been referred to arbitration and was
proceeding separately before a different arbitrator at the Board. According to the
Union, the grievor in that case was terminated from employment and was reinstated.
The grievance involves his subsequent return to work.
* * *
[12] The Union referred me to, and I have reviewed the following caselaw; OPSEU and
Ontario (Ministry of Community Safety and Correctional Services) (Cody), Re, 2018
CarswellOnt 17662, (Parmar); Ontario (Ministry of Community Safety and Correctional
Services) and OPSEU (McClelland), 2013 CarswellOnt 14286, 116 C.L.A.S. 259, 238
L.A.C. (4th) 424 (Briggs); Ontario (Ministry of Community Safety and Correctional
Services) and OPSEU (Moore), 2014 CarswellOnt 10291, 119 C.L.A.S. 215 (Nairn);
O.P.S.E.U. v. Ontario (Ministry of the Attorney General), 2004 CarswellOnt 2910, 75
C.L.A.S. 420 (Abramsky); O.L.B.E.U. v. Ontario (Liquor Control Board), 2004
CarswellOnt 10396, [2004] O.G.S.B.A. No. 2, 75 C.L.A.S. 347 (Dissanayake); Ontario
(Ministry of Community Safety and Correctional Services) and OPSEU (Upson), Re,
2013 CarswellOnt 11154, 115 C.L.A.S. 334 (Harris); OPSEU and Ontario (Ministry of
Transportation) (Pozderka), Re 2019 CarswellOnt 14368, 141 C.L.A.S. 112 (Leighton);
and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving
Pulp & Paper, Ltd., [2013] 2 S.C.R. 458.
[13] The Union makes its request for reasons of efficiency of the litigation, and to avoid both
the need to call the same evidence twice, and any resulting potential for inconsistent
results. The Union argued that the Policy is enforced through oral testing and it
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anticipates the need for expert evidence with respect to both policy grievances. That
expert evidence will also be relevant to the individual grievances, argued the Union,
and the individual grievances provide a factual framework for understanding the issues
raised by the policy grievances. The Union asserts that its proposal both ensures
appropriate use of the Board’s resources and enhances the broader integrity of the
Board’s proceedings. It argues that a roster arbitrator has the ability on behalf of the
Board to either consolidate the hearing of grievances and/or order that they be heard
together, relying on Rule 3 of the Board’s Rules and the decision in Cody, supra,
where, as here, the matters have been referred to the Board. While the Union
acknowledges that the grievances are not all identical, it argued that there was
significant overlap of both fact and law so as to warrant them proceeding together. The
core issue in the policy grievances was the application of the KVP standard of
reasonableness, argued the Union; that it was the Employer’s onus to show that the
Policy appropriately balanced the interests described by the Supreme Court of Canada
in Irving, supra. Nor was there any prejudice or unfairness to the Employer in making
the order requested and proceeding accordingly, argued the Union.
[14] The Union argued that the timeliness issues were not relevant to this consideration as
they could be dealt with in the context of the broader litigation. It noted that the
Employer had only raised the timeliness issues on August 25, 2021, shortly before
these preliminary proceedings.
*
[15] The Employer referred me to, and I have reviewed the following caselaw; Re The
Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
and OPSEU (Samsone), 2006 CanLII 31467 (ON GSB); Ontario Public Service
Employees Union v Ministry of Community, Family and Children’s Services, 2002
CanLII 45779 (ON GSB); AMAPCEO (Chiba/Argyropolous) v The Crown in Right of
Ontario (Ministry of Attorney General), 2017 CanLII 7061 (ON GSB); and Ontario
Public Service Employees Union v. The Crown in Right of Ontario (Ministry of the
Attorney General), 2020 CanLII 32578 (ON GSB).
[16] The Employer agreed with the general principles set out with respect to the importance
of the efficiency of the litigation and the need to avoid inconsistent results. It argued
however, that the policy grievances gave rise to different and distinct issues and that
the legal tests to be applied were different. It noted that the Union’s request to
consolidate the hearing of the impairment testing grievance with the first policy
grievance occurred on July 23, 2020, prior to its referral to the Board in October 2020.
[17] In any event, argued the Employer, there was not sufficient overlap as between the
policy grievances to warrant consolidating them for hearing. The impairment testing
policy grievance deals only with the appropriateness of that testing measure, argued
the Employer, and the prohibition grievance does not give rise to any issue of the
appropriate cut-off level for impairment. As well, the Employer argued, it intends to
bring a preliminary motion seeking to have the impairment testing policy grievance and
the Sinclair #2 grievance dismissed prior to any hearing on the merits.
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[18] The Employer asserted that section 3.2.5 of the Policy created an absolute ban only
with respect to recreational use of cannabis and that other provisions of the Policy deal
with medical use. The Employer argued that using medication that rendered one
unsafe still prohibited one from reporting for work. The Policy, argued the Employer,
imposed a pro-active approach; employees are required to report to the Employer the
use of any medication that may impact their ability to safety perform their work, and
the Employer has a corresponding duty to accommodate. These matters are further
dealt with in separate policies dealing with accommodation and return to work and are
administered on a case by case basis, asserted the Employer.
[19] In the result, argued the Employer, the individual grievances of Sinclair #1, Sousa, and
Wong all give rise to evidence that is specific to the individual circumstances of each
grievor; their medical condition, medications, and the type of cannabis product and its
THC or CBD concentration. Nor do these inquiries involve discipline, argued the
Employer, as does the Beynon grievance.
[20] The Employer acknowledged that the Beynon grievance involves a positive test for
THC arising from a post-incident test and that it will be required to support that test
result and the circumstances surrounding the positive impairment finding in support of
its decision to terminate the grievor’s employment. It concedes that the Union will be
entitled to challenge the testing protocol for impairment of 10 ngs/ml of THC in the
context of the Beynon grievance but argues that those issues are entirely separate
from those raised by the prohibition policy grievance and the other individual
grievances. The Employer asks that I proceed only with the prohibition policy
grievance.
*
[21] In reply, the Union argued that the Employer could not rely on an assertion of
untimeliness to support a decision not to consolidate the hearing of grievances. The
Employer conceded an overlap of the Beynon grievance to the impairment testing
policy grievance, argued the Union. In addition, the Employer was asserting that
Beynon used recreational cannabis, also resulting in an overlap of issue with the
prohibition policy grievance, argued the Union. Finally, the Union argued, the silos
sought by the Employer for each grievance reflected a fundamental lack of utility and
economy in having these matters determined.
DECISION
[22] The parties agreed that I was to hear the ‘prohibition’ policy grievance. However, there
is no dispute as to my jurisdiction as a roster arbitrator at the Board to make such
procedural orders and directions as may be warranted for the reasonable and
appropriate conduct of any or all of this litigation currently before the Board. See
generally OPSEU and Ontario (Ministry of Community Safety and Correctional
Services) (Cody) (Parmar), supra at paras. 35, 37, and 44. And see Rule 3 of the
Board’s Rules of Procedure.
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[23] Similarly, the parties do not disagree as to the considerations to be applied in
assessing whether matters should be consolidated, or alternatively, be heard together.
The parties disagree as to what is appropriate in the circumstances here. Efficiency of
the litigation, the overlap of issues and attendant evidence, and avoiding potentially
inconsistent results are all appropriate concerns.
[24] The prohibition policy grievance is not delineated so narrowly as the Employer asserts.
While it references Article 3.2.5 of the Policy it also expressly states that the issues
raised are both with respect to whether a complete ban on off duty cannabis use is
reasonable and the Employer’s asserted improper use of the complete prohibition on
off duty cannabis use to fail to accommodate those using medical cannabis. The Union
asserts that the Policy is being applied in such a way as to preclude anyone using
medical cannabis from working in safety sensitive positions. There is no dispute that
the significant majority of available work with the Employer is considered safety
sensitive.
[25] It is the case that the Sinclair #1, Wong, and Sousa grievances all give rise to the issue
of the reasonableness of being removed from a safety sensitive position following the
report of medical use of cannabis. The reasonableness of a complete ban on
recreational use for those working in safety sensitive positions arguably stands
alongside that issue in circumstances where the employee is not seeking an
accommodation based on disability arising from medical use of cannabis yet has been
removed from their safety sensitive position.
[26] The prohibition policy grievance does not obviously give rise to issues about
impairment as the asserted ban on use is complete – seemingly without regard to
impairment. Thus, there is not so much an overlap of issue as a continuum of issues.
The prohibition policy grievance asks whether introducing a complete ban on use is
reasonable and questions the manner in which the Policy is being applied to those
using medical cannabis (use). The impairment policy grievance asks at what level does
testing reasonably infer impairment in relation to one’s ability to perform the work safety
(impairment).
[27] It may be difficult to assess the individual grievances in the absence of a determination
as to both policy issues relating to both use and impairment. As well, there may be
issues relevant only to a particular individual grievance. At the same time, there is a
common theme underlying the Sinclair #1, Wong, and Sousa grievances. There is a
balance to be found between ensuring an efficient hearing of like issues while avoiding
an unwieldy process. I am persuaded that it makes sense to have the Sinclair #1,
Wong, and Sousa grievances heard with the prohibition policy grievance, particularly
as those factual underpinnings may provide relevant context for the policy
considerations relevant to that grievance. Given the parties’ agreement that both
Sinclair grievances be heard together, Sinclair #2 would fall within this group.
[28] The impairment policy grievance and the Beynon grievance involve the issue of testing.
Contrary to the Union’s submission, the termination letter provided to Beynon does not
indicate that the grievor’s employment was terminated because he used recreational
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cannabis but that he tested positive post-incident in violation of the Policy. Any issue
of whether the use was recreational is not referenced in the termination letter.
[29] I am not persuaded that expert evidence will be duplicated should the policy grievances
be heard separately. The impairment policy grievance is limited to considering the
testing for impairment. The prohibition policy grievance does not depend on testing for
impairment, as impairment is secondary to the asserted imposition of a prohibition on
use. While I have some concerns about splitting this spectrum, I am more concerned
that the hearing will become too unwieldy and individual cases be too delayed should
all of these matters proceed together.
[30] Therefore, having regard to all of the above, I hereby direct as follows:
a) The following grievances are to be heard together before this arbitrator:
-Policy Grievance #G-012-19-COR (the ‘prohibition’ grievance)
-Grievance #G-039-19-BOW (Sinclair #1)
-Grievance #G-039-20-BOW (Sinclair #2)
-Grievance #G-140-19-BFF (Wong)
-Grievance #G-014-20-BOE (Sousa)
b) The following grievances are to be heard together but may proceed before
any roster arbitrator at the GSB:
-Policy Grievance #G-064-20-COR (the ‘impairment testing’ grievance),
-Grievance #G-141-19-BOS (Beynon)
[31] A case conference will be convened in short order to discuss procedural matters in
relation to the grievances at sub-paragraph 30 a) above. Those grievances are
scheduled to proceed to hearing on January 27, 2022.
[32] The parties are hereby directed to agree to a roster arbitrator for purposes of dealing
with any and all issues arising in connection with the grievances at sub-paragraph 30
b) above and to forthwith advise the Board of same.
Dated at Toronto, Ontario this 5th day of November, 2021.
“Marilyn A. Nairn”
______________________
Marilyn A. Nairn, Arbitrator