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HomeMy WebLinkAbout2020-1960.Green.23-06-23 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# 2020-1960 UNION# 2020-5112-0225 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Green) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING June 15, 2023 -2 - Decision [1] This decision deals with a motion by the employer relating to a grievance dated September 28, 2020, filed under article 22.16 by Ms. Rhona Green, (“grievor”) a Mental Health Nurse employed at the Toronto West Detention Center. The grievor alleges that she was assaulted by an inmate on September 3, 2020, and that this assault resulted from the employer’s failure to provide a safe workplace. The grievance form refers to articles 2 (Management Rights), 3 (Discrimination) and 9 (Health and Safety), as well as “any /all applicable Acts, Policies, standard practice etc.” [2] The grievance alleges several failures on the part of the employer which exposed the grievor to an unsafe workplace, and led to the assault which resulted in serious injury to her. [3] The redress sought in the grievance may broadly be divided into two categories. First, changes to policies, staffing, training, and the physical structure of the RN station area including erecting of barriers between inmates and nurse and adding emergency exits at the rear of each examination bay. The Union asserts that the foregoing non-monetary remedies necessary to ensure that the grievor and other nurses are not subjected in the future to similar health and safety violations and assaults. [4] The second aspect of the remedial request is monetary. First, that the employer cover, as part of the ministry benefits package, all expenses the grievor has incurred and may incur in the future, for treatments prescribed by her medical practitioner. Second, the grievor claims damages for physical and psychological harm she had to endure. [5] The employer agrees that if the alleged violations are proven, the Board has jurisdiction to award the non-monetary remedies set out at para. 3. However, it argues that the Board lacks jurisdiction to award the monetary awards sought in -3 - para. 4. Employer counsel submitted that those monetary remedies are compensable under the Worker Health and Safety Act, and therefore, outside the jurisdiction of the Board, as held in Re Monk, [2010] OGSBA No 119 (Gray), upheld by Ont. Div. Ct [2012] O.J. No. 4301 and Ont. Ct. of Appeal [2013] OJ No. 2369. [6] The instant motion, however, is not a typical Monk motion. In this motion the dispute is not about the Board’s jurisdiction to grant any of the remedies sought. It is about whether the Monk motion the employer intends to bring should be dealt with at the front-end of the proceeding as a preliminary issue or at the end after the merits are heard and decided. [7] The union argued that the Monk issue, the jurisdiction to award remedial requests, is a remedial issue. Counsel pointed out that the usual procedure and practice followed by the courts, as well as arbitrators, is to first hear the evidence and submissions on the merits of the allegations, and if liability is established in whole or in part, to then deal with remedies that flow from those violations. Counsel submitted that the Board ought not depart from this well-established fundamental practice, unless it is convinced that there are good labour relations reasons for doing so. Counsel pointed out that if the Monk motion is dealt with first, regardless of the outcome, the Board would still be required to hear all evidence and submissions relating to the merits of the case. If it concludes that no violation had been proven that would end with the proceeding with the dismissal of the grievance. In that event there would be no need to spend time and resources to hear and determine a Monk motion. If, and only if, the Board upholds the grievance, the Board will be required to deal with a Monk motion. Counsel submitted that therefore, there is potential for substantial savings by deferring the Monk motion until the Board decides whether any violation is proven. The worse case scenario is that the motion would be dealt with at the end, if necessary, rather than at the front end when it is unknown whether a Monk motion would be of any relevance. Counsel submitted also that by deferring the -4 - motion to the end there is no prejudice to either party, but there is potential to gain greater efficiency. [8] In addition to Re Monk (supra) the employer relied on the following decisions of this Board: Re Rosali (OPSEU) and MCSCS (Anderson); Re Wilson (AMAPCEO) and MNRF 2016-1556 (Dissanayake); Re Khan (OPSEU) and MAG; 2018-3413 (Hewat); Re Mohamed and MAG, 2015-3016 (Gee). The union relied on Re Pereira et al and MCSCS, 2013-0016 (Harris) and Re Schultheis and MCSCS, 2015-3255 (Wacyk). [9] As I observed earlier, the issue in the instant motion is a process or procedural issue, not a jurisdictional issue. The issue is about WHEN the Monk motion should be dealt with, at the front-end, as a preliminary issue as the employer wants, or at the end as an issue relating to remedy as the union proposes. [10] None of the decisions relied upon by the employer addresses this process or procedural issue. They deal with jurisdictional disputes as to the Board’s authority to grant remedies sought. In those cases the Monk motion was dealt with at the front end. Employer counsel pointed out that in Re Monk itself and all later cases she cited, that was the approach followed by the Board, and submitted that there is no reason to depart from the Board practice. Employer counsel submitted that in Re Monk, as well as the later cases she relied on, the parties had agreed that the Monk motion should be dealt with at the front end. That appears to be correct since there is no mention in of those decisions that either party objected to the motion being dealt with as a preliminary issue. [11] The union’s particulars set out detailed facts it asserts contributed to the assault on the grievor and describes the assault itself. Then the impact of the incident on the grievor is described as follows: The grievor suffered very serious injuries during the assault. The grievor was granted WSIB benefits arising out of the assault. Not all the grievor’s care and costs were covered by WSIB. Moreover, -5 - the grievor is not sure what, if any, long term health impacts may arise in the future. DECISION [12] Since the motion before the Board is about a procedural issue, it is important to consider the statutory authority conferred on the Board relating to matters of practice and procedure. Section 48(1) of the Crown Employees Collective Bargaining Act provides: Subject to the specific requirements in this part and to any requirements in the Labour Relations Act, 1995, the Grievance Settlement Board shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions. [13] In Re Schultheis (supra), the Board discussed the practical considerations the Board takes into account in exercising its statutory power in S. 48(1) and applied those factors in the particular circumstances to decide the issue of when to deal with the Monk motion. The Board wrote: [27] In his decision in Ontario (Ministry of Government and Consumer Services) and OPSEU, supra Arbitrator Dissanayake stated at paragraph 27: [27] S. 48(1) of the Crown Employees Collective Bargaining Act provides that the Board “Shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make submissions”. In exercising this statutory power in relation to the issue of bifurcation, the Board is required to take into account practical considerations such as economy of time, resources and expenses. However, those considerations must be subject to the statutory obligation to give to the parties, the full opportunity to present their evidence and submissions. There has to be a balancing of considerations of savings and efficiency on the one hand, and fairness on the other hand. -6 - 28] In this instance, it is apparent numerous issues would have to be addressed in arguing the preliminary motion. These include: whether the facts or law in this case give rise to novel issues; possible distinctions to be made regarding the cases relied on by the parties; and arguments regarding the degree to which the facts required to address the issue of remedy are integrated or dependent on the context of the merits; whether the primacy provision in the OHRC allows for another analysis vis a vis subsection 26(2) of the WSIA and the damages at issue, i.e. injury to dignity, feelings and self-respect, or are those damages subsumed in the psychological injuries the Board has already addressed and, whether the Board’s authority to grant damages for a failure to accommodate remains post-Monk. [29] None of this argument and analysis will be required if the grievances do not succeed on their merits, and no OHRC damages are found. [30] Nor is it at all apparent that proceeding to hear the preliminary argument would be faster or more efficient in resolving the dispute between the parties. There is no suggestion that dealing with these somewhat complex legal issues as a preliminary matter would resolve the entire dispute between the parties, or even eliminate the need for any aspect of the anticipated evidence on the merits, as there is no dispute I have the jurisdiction to, at the very least, make declarations regarding alleged breaches of the OHRC. [31] Rather, proceeding with the preliminary motion would require the setting of at least one more day for that purpose, and further delay while the parties await my decision on the preliminary issue. [32] I find there would be little efficiency gained by addressing the issues of damages as a preliminary issue, as doing so, regardless of the result, would be resource intensive, cause further delay in proceeding with the merits, and may, at the end of the hearing on the merits, be unnecessary. [33] Further, the Board ought to be cautious in limiting its own jurisdiction, and decisions to do so, particularly in the first instance, ought to be fully considered. A factual context is often of assistance in that regard, and its absence may in fact, be prejudicial to one or both parties. [34] Accordingly, I find it would be more efficient, fairer, and therefore makes more labour relations sense to simply proceed with at least hearing the evidence in its totality. [35] I say “at least” because, while I find there is little to be gained by proceeding with the issue of damages as a preliminary matter, I encourage the parties to consider whether there may be merit in delaying that argument until a determination is made on the merits. Any efficiencies to be gained appear more likely with such an approach. -7 - Determination: [36] The union’s motion is allowed. The Board will not hear argument regarding the Board’s authority to award damages pursuant to the OHRC as a preliminary matter. The grievances will proceed in the normal course. [14] The Board’s jurisprudence indicates that in the vast majority of proceedings, where a Monk motion is made, the parties have agreed to deal with the motion as a preliminary issue, and the Board has proceeded in accordance with the parties’ agreement. However, there is nothing in the case law to the effect that there is a “usual” or “normal” practice of the Board in the absence of agreement between the parties. In that situation the Board determined the appropriate approach in the particular case. Thus in Re Schultheis (supra), where the parties were disagreed on the issue of “when”, the Board considered the particular circumstance in the case before it and determined that it was more efficient and faster in all of the circumstances to not determine the Monk motion as a preliminary issue. [15] In the instant case the union clearly and strenuously objected to the proposed motion being dealt with at the front end. As agreed to by both parties, all evidence and submissions on the merits will have to be heard by the Board regardless of the outcome of a Monk motion heard as a preliminary issue. Therefore on an analysis of costs-benefits there is no savings in time or financial resources and no efficiency to be gained by that approach. However, if the Monk motion is deferred to the end there is the possibility that the grievance may not succeed on its merits and that the grievance will be dismissed. In that situation the Board and the parties would not be required to spend time and financial resources to deal with the Monk motion. That would be more efficient and makes good labour relations sense. [16] The employer has not pointed to any benefit in terms of efficiency or savings in time or financial cost by dealing with the Monk motion as a preliminary issue in this case other than employer counsel’s suggestion that it would be good for the -8 - employer to know in advance whether it would be facing a monetary award, in addition to any other non-monetary orders the Board may make, if the grievance is upheld. She suggested that it would enable the parties to formulate their strategies accordingly. [17] The determination of the appropriate time for dealing with a Monk motion must be done on a case by case basis. I conclude upon consideration of all the circumstances of this case, that the proposed Monk motion should be deferred and not dealt with as a preliminary issue. The Board remains seized with the grievance, and the hearing will continue on dates scheduled. Dated at Toronto, Ontario this 23rd day of June 2023. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator