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Home My WebLink About2020-2967.Kopec.2022-10-27 Decision Crown 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#2020-2967; 2021-1207; 2021-1629; 2021-2487 UNION#2021-0212-0002; 2021-0212-0003; 2021-0212-0004; 2021-0212-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kopec) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Legal Services Branch Treasury Board Secretariat Counsel HEARING October 24, 2022 - 2 - Decision [1] This Decision considers the Employer’s motion to have this case dismissed for abuse of process because the Grievor failed to comply with the Board’s Interim Decision, dated May 12, 2022, ordering production of medical documents. The Union submits that the Grievor should be given a further opportunity to comply with that Interim Decision. [2] This arbitration deals with the consolidation of four grievances relating to the Grievor’s inability to wear a mask for medical reasons during a period in 2021 when Courthouse staff were subject to the Ministry’s Personal Protective Equipment (PPE) and Critical Supply Usage Policy, as well as directions from management regarding COVID-19 Health and Safety protocols and procedures. The Grievances challenge, among other things, a one-day suspension, an unpaid leave of absence, failure to provide a medical accommodation to the Grievor all related to allegations of harassment, violations of health and safety, the Respectful Workplace Policy and, discrimination on the ground of disability in the Collective Agreement and under the Ontario Human Rights Code. [3] The parties attended a videoconference hearing on October 24, 2022 to address the Employer’s motion to dismiss. Submissions were heard from Counsel for the Union and the Employer. The Grievor was also given an opportunity to make submissions in response to the motion. This matter is also scheduled for a hearing on October 27, 2002 and November 9, 2022. Due to the Employer’s motion to dismiss, it was agreed that the October 27, 2022 hearing date would be cancelled and that the November 9 hearing date would continue to remain scheduled. [4] For the reasons set out below, I have decided not to dismiss the case at this time. However, given the passage of over five months during which the Grievor had the opportunity to comply with my Interim Order and failed to do so, she is required to comply with my May 12, 2022 Order for production by November 4, 2022 in advance of our next hearing date of November 9, 2022. Should the Grievor not comply with my Interim Order of May 12, 2022, this case will be dismissed. [5] This hearing commenced on May 5, 2022 during which submissions were made about production of the Grievor’s medical documents that related to the Grievor’s requests for a medical accommodation related to her inability to wear a face mask while working in her position as a Court and Client Representative. In that Decision I determined that the medical documents that the Employer was seeking are arguably relevant and that their disclosure is required for the adjudication of these grievances. It was ordered that within 45 days before the next hearing date, the Union produce Dr. Davies clinical notes, tests, and information gathered from the Grievor that formed the basis of his recommendations and conclusions in medical notes provided to the Employer - 3 - dated March 4 and July 5, 2021. The Order also set out several conditions relating to confidentiality including limiting access and disclosure of the medical information for the purposes of the arbitration hearing. [6] During this hearing, the Employer advised that it had not received any of the medical documentation ordered in the Interim Decision which was due by September 9, 2022. In late August 2022, the Employer also became aware that the Grievor wished to be self-represented and that despite efforts by the Union and Union Counsel, the Grievor was not willing to comply with the Order. The Union also agreed that the Interim Decision and Order is binding and that compliance is required. The Union submitted that it wants to comply with the Order but that, despite its repeated requests, the Grievor has refused to give her consent to either have the Union seek the medical documentation or to provide the medical documentation to the Union on her own accord. [7] When I asked why she has not complied with the Order, the Grievor stated that she has been denied access to justice, access to a fair proceeding and no longer wished to be represented by the Union. She believes that the Union did not present all the information that could have been used to support her case and submitted that had the Union done so, a different result would have been reached in the Interim Decision. Essentially, the Grievor disagrees with the Interim Decision and believes that the Employer has no right to any medical documentation, particularly given Provincial regulations regarding Personal Protective Equipment that were in place during the time of the incidents leading up to her grievances. [8] During this hearing I explained to the Grievor that, despite her view of the Interim Decision, it is a final and binding legal order to produce arguably relevant evidence and that the Decision was based on my review of the thorough submissions and legal arguments made by both the Union and Employer Counsel. In addition, I pointed out to the Grievor that the Order was limited and contained several conditions intended to protect confidentiality and her privacy. I also advised that it is in her interest to have the case heard through this arbitration process, and confirmed to her that no one is “sweeping her case under the rug”, as she suggested. When I asked the Grievor, during her submissions, if she intended to comply with the Order, she responded with “no comment.” Further, when I asked the Grievor if she would comply if she was given extra time to gather the documentation required by the Order she again responded with “no comment”. [9] The Employer takes the position that the Grievor has had more than five months to comply with the Order and failed to do so. In addition, the Employer emphasized that the Grievor’s responses to my questions about whether she intended to comply, even with more time, is further evidence showing that she has no intention of either cooperating in the arbitration process or producing the medical evidence that was ordered. - 4 - [10] The Employer asked me to consider the decision in ATU -Local 1587 (Kay) v. Ontario (Metrolinx), 2021 CanLII 59438 (Flaherty) which sets out the general legal 20 principals regarding an arbitrator’s jurisdiction for non-compliance at paragraph 12 noting that: “There is no dispute that an arbitrator has jurisdiction to dismiss a grievance where there has been noncompliance with an order. The cases relied on by both parties support this proposition: see Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175, 2000 CarswellOnt 5849 (Davie) at para. 12; Baycrest Centre for Geriatric Care and ONA (Pavlovych), Re, 2021 CarswellOnt 6801 (Gedalof); ATU, Local 113 and Toronto Transit Commission, Re, 2018 CarswellOnt 3853 (Shime); Serco DES Inc. and USW, Local 9511 (Bartley), Re, 2014 CarswellOnt 1151 (Luborsky); Hamilton Wentworth Catholic District School Board and OECTA (Hicks), Re 2014 CarswellOnt 10293, 119 C.L.A.S. 339 (Tacon).” [11] The Employer acknowledged, as noted in Arbitrator Flaherty’s decision above, that a decision to dismiss a grievance for abuse of process should not be exercised lightly, particularly where a grievance deals with more serious issues. Among the factors to be considered is whether other, less extreme measures could fairly remedy the Grievor’s non-compliance. [12] In this case, given the seriousness of the grievances and the issues to be addressed in the hearing, the Union requested that the Grievor be given some leeway of time to comply with the Order before the next hearing date. In support of this argument, the Union asked me to consider analogous situations where a grievor fails to attend a hearing but is given a second chance to provide an explanation for non-attendance (OPSEU Ruddcock-Rhoden v. MCSC (Petryshen) 2018 CanLII 77320 and OPSEU (Clear) v. MGCS (Petryshen) 2021 CanLII 48179). [13] The Grievor’s behaviour in refusing to comply with the Interim Order is of serious concern. She has had over five months to gather the information and provide it to the Union, despite her knowledge of the Order and requests by the Union and Union Counsel. What is more troubling is her refusal to provide an answer in this hearing when I asked her multiple times whether she intended to comply with the Order, even with an extension of time. While I am tempted to immediately dismiss the case considering the Grievor’s answers of “no comment” to my questions as an indication of non-compliance, I want to give her a last chance to comply, considering the serious allegations and issues outlined in her grievances. Even though the Grievor disagrees with the Interim Decision, it is a final and binding Order to produce arguably relevant documents, that must be complied with for this matter to be fairly adjudicated. - 5 - [14] The Grievor is ordered to provide the medical documentation, referred to in my Interim Order of May 12, 2022, to the Employer and to the Union by Friday November 4, 2022, failing which this case will be dismissed. Dated at Toronto, Ontario this 27th day of October 2022. "Dale Hewat” Dale Hewat, Arbitrator