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HomeMy WebLinkAbout2021-1711.Middleton.23-07-26 Decision GSB# 2021-1711 UNION# G-097-21-SOW IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Middleton) Union - and - The Crown in Right of Ontario (Metrolinx) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Alec Stromdahl Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING July 20, 2023 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 - 2 - Decision [1] This matter concerns two grievances filed by the Amalgamated Transit Union, Local 1587 (the “Union”) on behalf of Tobi Middleton (the “grievor”). One grievance concerns a 10-day suspension, the second grievance concerns a dismissal. Following the provision of particulars by the Union in respect of the suspension grievance, Metrolinx (the “Employer”) advised that it intended to bring a preliminary motion that the Union was attempting to raise matters that do not fall within the scope of the grievance (the “scope issue”). The Union responded with its own motion that the scope issue should not be bifurcated from the hearing on the merits. This decision deals with the issue as to whether the scope issue should be dealt with as a preliminary matter. [2] The suspension grievance was filed on September 1, 2021. It reads: I hereby grieve the employers [sic] decision to issue me a letter of suspension dated August 3/21 reissued August 27/21 as being unjust, without cause, and or to [sic] severe. As remedy I seek the following: 1. Full redress of all lost wages, premiums, benefits. 2. Removal of said letter dated August 3, reissued August 27 from all files. 3. A declaration the company has violated the Collective Agreement. 4. Employee to be made whole. 5. Any other remedy as the union may advise and/or an arbitrator may deem appropriate. [3] The 10-day suspension was imposed based on six allegations. One of the allegations is that the grievor failed, after being given a direction to do so, to open a washroom door for a customer (the “insubordination allegation”). Another is that she failed to wear PPE (the “PPE allegation”). [4] By way of email dated June 26, 2023, the Union advised the Employer that, in respect of the insubordination allegation, the grievor had exercised her right to refuse unsafe work and disciplining the grievor and characterizing it as insubordination constitutes an unlawful reprisal in breach of section 50 of the Occupational Health and Safety Act (“OSHA”). I will refer to this particular as the “reprisal allegation.” The Union further advised that it reserves the right to argue the discipline is discriminatory due to a disability/perceived disability in respect to the accommodations sought by the grievor regarding the wearing of ankle bands. I will refer to this particular as the “discrimination allegation.” The Employer argues that neither the reprisal allegation nor the discrimination allegation falls within the scope of the grievance. [5] At the hearing, the Union advised it is not seeking any damages for either the reprisal or discrimination allegation. The Union seeks a finding that there was no - 3 - just cause to discipline the grievor for the insubordination allegation because she was exercising her rights under the OHSA and that there was no just cause for the PPE allegation as the discipline was discriminatory. The Union characterizes its position as raising legal defences as opposed to independent claims. For clarity, the Union does intend to seek a finding that there has been a violation of section 50 of the OHSA and section 5 of the Ontario Human Rights Code (“OHRC”) and argue that those violations render the discipline unjust. [6] For the purposes of this motion, and without prejudice, it has been stipulated that, on July 30, 2021, the Employer told the grievor: As per our conversation there's no reason for you to go home as the ankle bands will go through the accommodation process with Health and Wellness. Health and Wellness will communicate with you any next steps that are needed with regards to medical documentation. For the time being while this goes through Health and Wellness you are being accommodated to not wear your ankle bands and only the vest. [7] For the purposes of this motion, and without prejudice, it has been stipulated that, at the time the grievor refused to open the washroom door, she told the employer she would not do so because she felt unsafe. Submissions [8] The Union does not dispute that the grievance does not refer to a violation of section 50 of the OHSA or section 5 of the OHRC and further agrees that nothing was said about either of these alleged statutory violations during the grievance procedure. The Union asserts that both the reprisal and discrimination allegations are legal defences that the Union is entitled to raise while challenging whether there was just cause for discipline. As indicated above, the Union submits it is not putting forth these allegations as independent claims. [9] The Union argues, to decide this matter, it is necessary to consider what evidence the Union would need to call to put forward its best case in the course of arguing the scope issue. The Union relies on North Bay General Hospital v. OPSEU, 2006 CarswellOnt 8751 (Randall) at paragraph 64 and following for the following summary of jurisprudence on this point: 64 The preponderance of arbitral opinion is that it is inappropriate to take either a too technical or overly rigid approach to the grievance document. It is drafted early, under strict time-limits and without the benefit of a specialist. This approach ensures that the real issues between the parties are addressed and not defeated by alleged technical difficulties. It is also consistent with an essential feature of sound labour relation's policy and one of the principles underlying the Supreme Court of Canada's decision in Weber enabling all aspects of a dispute to be dealt with in one proceeding. - 4 - 65 Obviously, while the grievance should be construed liberally, the Union is not allowed to argue a whole new matter, and certainly not one requiring an entirely different factual foundation. 'We can't be left with', in the words of arbitrator Goodfellow (see Cold Springs Farms Ltd. v. Cold Springs Farms Employees' Assn., Local 100 (2000), 88 L.A.C. (4th) 213 (Ont. Arb.), at 222) an attempt by the Union to expand the original grievance to include both legal and factual issues that were not raised previously and that would, if allowed, support an independent breach of the collective agreement and provide an entirely separate basis for relief. 66 While the distinction needs to be made on a case by case basis, the following test articulated by arbitrator Abramsky in Canac Kitchens Ltd. v. C.J.A., Local 1072 (1996), 58 L.A.C. (4th) 222 (Ont. Arb.), at 238 is helpful: Consequently, under the cases cited it seems clear that a liberal as opposed to technical reading of grievances is required and that new arguments, and at times, new issues, may be raised. But there must be a tie to the original grievance, or, as counsel for the union so eloquently phrased it, the issue must be "encompassed in and flow naturally from what is expressed in the grievances." The corollary to that, of course, is that if an issue is a distinct, substantively new issue that may not be reasonably viewed as encompassed in and as flowing naturally from the grievance, and was never addressed during the grievance process, it would not be arbitrable. [Emphasis in original.] 67 Latitude in construing the scope of the grievance and, where necessary, granting an amendment to same, needs to be tempered with considerations of surprise and prejudice. It is one thing to interpret a grievance liberally in the wake of and in accordance with broad discussions during the grievance procedure and another to do that in the middle of the arbitration. The latter denies the other party the right to investigate the claim and to make an informed and timely offer to settle. 68 Informed by these principles and the somewhat unique circumstances of this case, I am allowing the Union's 'amendment'. This is a termination case. The Grievor has alleged that she has been "unjustly dismissed". In the normal course, arbitrators construe the allegation broadly and insist that employers meet their procedural and substantive burden: is there convincing (and untainted) evidence proving culpability, have all procedural requirements - contractual notice, representation rights, reliance on the proper record - been met, is the penalty appropriate, - 5 - given a host of factors, including discriminatory treatment? These are all elements which flow naturally from the allegation of an unjust dismissal and, subject to issues of prejudice and waiver, need not be pleaded specifically. They are all part of the standard panoply of defences to a termination. 69 In my view, the alleged breach of the Grievor's medical privilege, whether founded on the statute or not, is such a defence and is "encompassed or flows naturally" from the assertion that she was "dismissed unjustly". As Mr. Presley argues, "it is not an attempt to change the statement of the grievance because the illegal information sharing is directly implicated in the unjust dismissal and the cause of it". While I don't fully adopt that characterization, the point is well made. That the foundation for the assertion arises out of relevant cross-examination of the Employer's witnesses underscores the point and confirms that the factual basis for the claim is the same. [10] The Union argues that the test for determining whether the reprisal and discrimination allegations are within the scope of the grievance is to ask if the Union is raising a new issue. To answer that question, the Union submits, it is necessary to hear the evidence relevant to the merits of the grievance to see if it overlaps with the evidence in respect of the challenge to the imposition of the discipline on the basis that there was no just cause. It would be severely prejudicial, the Union argues, to require the Union to call its evidence on the merits of the grievance to argue the scope issue. It would require the Union to call the grievor as a witness and subject her to cross-examination prior to the Employer, who bears the onus in this matter, putting in its case. [11] The Union argues the evidence to be called in respect of the reprisal and discrimination allegations will be heard regardless of the outcome of the scope issue as it is all part of the events that led up to the imposition of discipline. As such there are no efficiencies to be gained by dealing with the scope issue as a preliminary matter. It is the very same conduct that led up to the imposition of discipline that forms the basis for the allegations. The Union points to the July 30, 2021, email sent to the grievor by management telling her she was being accommodated and not required to wear the ankle bands and the fact that she was disciplined for not wearing PPE three days later. That evidence is relevant and will be adduced in connection with the Union’s position that there was no just cause for the imposition of discipline and it overlaps with the evidence relevant to the reprisal allegation. The Union submits, upon a review of the evidence, it will be apparent that the reprisal and discrimination allegations flow naturally from the allegation of an unjust dismissal and are thus in scope. [12] The Union objects to the scope issue being dealt with as a preliminary matter on the basis that it amounts to an attempt by the Employer to curtail its legal defences when the Union should be able to hear the Employer’s evidence and then decide on its legal defences. The Union points to the fact that the issue in respect of - 6 - which Arbitrator Randall in North Bay General Hospital, supra, permitted the Union to raise, was raised during cross-examination by the union of an employer witness. The issue was found to flow from the claim of unjust termination. The Union argues that the Employer has the onus in this case, and it does not get to curtail the legal defences that the Union is permitted to put forward. Rather, the Union is permitted to hear the Employer’s evidence and then decide on its defences. [13] The Union relies on Hiram Walker & Sons Ltd. v. B.F.C.S.D., Local 61, 1973 CarswellOnt 1483 (Adams): 6. One important function of arbitration is to supply "speedy relief" to the parties, and this function should not be overridden by mere speculation. In fact, it is common knowledge that this speculation is not the reason why a party will ask for a separate hearing on the issue of arbitrability. Parties normally make this request in order that the hearing take on a structure that will insure that the arbitrator does not let the merits of the grievance affect his decision on its arbitrability — and there is nothing improper in this motivation. Arbitrators are only human and can be affected by the merits of a grievance in dealing with a technical argument concerning the availability of relief. An arbitrator's approach to the issue of arbitrability may, therefore, be little more than a "sham" and this affects the integrity of the entire process. Consequently, if a bifurcation of the hearing will strengthen the integrity of the arbitral process without unduly impinging upon its function of providing "speedy relief", requests that this be done should be given serious consideration. But they should not be acceded to unless: (1)the party requesting the adjournment made this fact known to the other party before the hearing date to enable the other party an opportunity to refrain from having his witnesses in attendance; (2) the merits appear to be severable from the issue of arbitrability; (3)the delay will not seriously affect the availability of witnesses; and (4)no other serious prejudicial effect, uncompensable by money, will be experienced. [14] The Union submits that the first factor is not applicable; the second factor has not been met as it would be necessary to get into the merits of the case in order to adjudicate the scope issue; and the fourth factor strongly favours the Union as it would have to call the grievor to give evidence in the context of the motion and that would be highly prejudicial to its case on the merits. [15] The Union relies on Ontario Public Service Employees Union v. Ontario (Ministry of the Solicitor General and Correctional Services), [2000] O.G.S.B.A No. 88 in which Vice-Chair Harris states: - 7 - REASONS FOR DECISION: 8 In deciding whether to bifurcate proceedings the Board seeks to maximize efficiency in the hearing process. If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful procedural tool, provided there is no unfairness to any party in following such a procedure. [16] The Union argues that one of the factors to consider is whether dealing with an issue as a preliminary matter will be dispositive of the matter in dispute. The Union argues that such is not the case in this instance. Regardless of the outcome of the Employer’s objection, the hearing will proceed on the merits. Far from being dispositive, the Union argues, all the evidence will be called regardless of the outcome of the objection and accordingly there are no efficiencies to be found in dealing with the matter on a preliminary basis. [17] The Union relies on Cargill Foods v. UFCW Local 175 & 633, 2009 CarswellOnt 7692 (Marcotte) for further support that a matter should only be dealt with on a preliminary basis if it would be dispositive of the matter: 22 In applying the above approach to the matter of bifurcation before me, I first and foremost note the Employer's allegation that a decision on the preliminary issue would not be dispositive of the grievance, firstly, in alleging that the Employer did not rely on the grievor's statements made in the impugned meeting on April 8, 2009, and, secondly, if it is found that the discharge is void ab initio, it would not be appropriate to re-instate the grievor in all the circumstances Re TRW Canada Ltd., supra. That is, regardless of the decision in the preliminary issue, the merits of the grievance will have to be dealt with in this hearing. Thus, it would not be an efficient or economical use of time to bifurcate the hearing. Nor in my view would it be practical to bifurcate the hearing. Because the merits of the grievance will have to be dealt with, witnesses called to provide evidence on the preliminary issue, including the grievor and Mr. Kyle and, perhaps, others such as Mr. Do and Mr. Hogan, would be called a second time in dealing with the merits of the grievance. Not only is such a circumstance impractical, but it would be un-necessarily stressful on the witnesses to be called twice to testify at the hearing. 23 Based on the foregoing, I find it is not appropriate in the instant case to bifurcate the hearing for procedural purposes. [18] In Ontario (Ministry of Government and Consumer Services) and OPSEU, 2016 CarswellOnt 15944 Vice Chair Dissanayake dealt with the issue of bifurcation as follows: 37 However, the case law is consistent that any efficiencies that may be gained by bifurcation should not be pursued, where it results in unfairness or prejudice to any party. To quote Vice-chair Harris in - 8 - O.P.S.E.U. v. Ontario (Ministry of Solicitor General & Correctional Services) (supra), "If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful procedural tool, provided there is no unfairness to any party in following such a procedure". (Emphasis added). In Nova Scotia Police Assn. v. Amherst (Town) (supra) at para. 32, the arbitrator wrote: "It may be said then that while there is a "general reluctance on the part of arbitrators to bifurcate hearings", ... the ultimate decision is dependent "upon fairness to the parties, the practicality and economy of time." (Emphasis added). In O.L.B.E.U. v. Ontario (Liquor Control Board), (supra) at para. 15 the Board wrote: 'While bifurcation would avoid dealing with certain issues such as the dispute as to the admissibility of the surveillance evidence, I have determined that in balancing the limited potential for gaining efficiency with the need for fairness, the overall considerations do not favour bifurcation in the particular circumstances of this case". (Emphasis added). Similar observations are found also in Toronto (City) v. C.U.P.E., Local 79 (2004), 128 L.A.C. (4th) 217 (Ont. Arb.) (Kirkwood) at p. 220; Canadian Broadcasting Corp. v. C.U.P.E. (Broadcast Council), (supra) at p. 18; and Cariboo-Chilcotin School District No. 27 v. Cariboo-Chilcotin Teachers' Assn. (1994), 46 L.A.C. (4th) 385 (B.C. Arb.) (Kinzie) at pp. 386-87. [19] The Union argues that the most important of the four factors set out in Hiram Walker, supra, for deciding whether to bifurcate an issue is the second factor “the merits appear to be severable from the issue of arbitrability” and such is not the case in this instance. While the Union may be able to advise as to its expected evidence, it is impossible to determine what the evidence in the matter will be until it has been adduced. The Union argues that there is a danger that the objection will be upheld on an assumption as to what the evidence will be only to later discover that that assumption was incorrect. In this regard, the Union points to Arbitrator Adams’ decision in Hiram Walker, supra, as an example. [20] The Employer argues that it is extremely common for disputes concerning the scope of a grievance to be dealt with a as a preliminary matter. The Employer submits, its review of the case law where an objection has been made to the scope of a grievance, overwhelmingly demonstrates this fact. The scope issue is always dealt with as a preliminary matter, the Employer argues, because it goes to the heart of an arbitrator’s jurisdiction. It also results in efficiencies as it avoids the calling of unnecessary evidence. It obviates the challenge of having to rule on a matter after having heard extraneous evidence. [21] The Employer argues that it is entitled to know the case it must meet and not to have the cloud of findings of breaches of the OHSA and OHRC hanging over its head. The Employer submits that there would be additional evidence the Employer would be required to call if it is at risk of a finding that there has been a breach of the OHRC or the OHSA. - 9 - [22] The Employer submits that there is no question as to what evidence is relevant to the question as to the scope of a grievance. The relevant evidence consists of what the Union put forward in its grievance as well as what was discussed in the grievance meetings. The question to answer is whether the matters now being raised are reflected in the earlier presentation of the grievance. Evidence concerning the merits of the matter is not relevant. [23] The Employer distinguishes the cases relied upon by the Union on the basis that, in those matters, there was a real overlap in the evidence to be called. The Employer submits that there is no overlap in this case. [24] The Employer submits the Union is asking for a finding of discrimination under the OHRC and a finding of a violation of the OHSA. That, the Employer submits, is a different claim than a claim there was no just cause for discipline. The Employer further argues that there is a difference between the way parties litigate cases concerning discrimination or reprisals than cases where the challenge is to the existence of just cause. The Employer submits, adducing evidence as part of the grievor’s explanation for her conduct, is different from arguing that the Employer was motivated by improper considerations and committed statutory violations. The Employer argues that the difference will result in a radical change in the way it will put forward its case. The Employer submits that the evidence it would put forward will be different depending upon the determination as to the scope of the grievance and that there is a shifting onus that will have to be taken into consideration if allegations of discrimination go forward. The Employer argues that, not only will the nature of the evidence to be called be different, but it will also affect the examination of witnesses and will be time consuming. [25] The Employer relies on Teamsters Local 847 and Stericycle Inc. Brampton, 2023 CarswellOnt 4345 (Jesin) in which the employer brought a motion to strike portions of the particulars filed by the union on the basis they constitute an expansion of the grievances. In that matter, the grievor had been terminated and a grievance filed. In opening statement, union counsel alleged that some of the discipline was implemented in reprisal against the grievor because of a discrimination complaint he had made and thus was contrary to sections 8 and 9 of the OHRC and was also an unlawful reprisal contrary to section 50 of the OHSA. The hearing was adjourned to allow the union to file full particulars of its allegations. Particulars were filed including claims of discrimination and reprisals and the employer objected to the allegations on the basis that they were not raised in the grievance or during the grievance procedure. Arbitrator Jesin ruled as follows: 13 In my view this case bears some similarity to the facts present in the City of Windsor case. A claim that a discharge of an employee is not justified is not the same as a claim that the Employer has acted in reprisal contrary to s. 50 of OHSA or ss. 8 and 9 of the Human Rights Code. Quite clearly an employer in a termination case has an onus to establish the allegations which justify the discharge. However an additional claim of reprisal contrary to OHSA or the Human Rights Code place an additional - 10 - burden on the Employer to establish that the Employer did not act in reprisal as alleged. Such claims should clearly be made early in the grievance process so that the Employer may gather the available evidence in support of its position. To raise such claims in an untimely way places an unfair burden on the Employer in its effort to meet its onus. The fact the grievor may have alleged at the outset that he was being harassed does not support that he raised these allegations of reprisal contrary to OHSA or the Human Rights Code in a timely way. In this case I am not satisfied that the claims of reprisal contrary to OHSA and the Human Rights Code are new claims that has been made in a timely way. It is my determination that those claims cannot be pursued in this case. 14 The real issue raised in the grievance is whether the grievor has in fact committed the transgressions alleged by the Employer. The Union asserts that he has not. If that turns out to be the case then the grievor will no doubt succeed. Still, in any case alleging unjust discipline the motive of the Employer is always relevant if for no other reason than to assess whether the penalty is appropriate for the misconduct alleged. To that end I find some merit to the proposition espoused by the Union that allegations of harassment or discrimination or are part of the inquiry as to whether the discipline was justified. However, it is not for the Employer to disprove those allegations when the allegations are not raised in a timely way and particulars are not filed until two years after the grievances were filed. It would be appropriate for the Union to question the Employer witnesses with regard to its motivation for the discipline implemented based on facts that were apparent at an early stage of the grievance procedure including the timing of the discipline and the amount of discipline issued in such a short time. [26] The Employer further relies on Zehrs Markets v. UFCW, Local 1977, 2009 CarswellOnt 5090 in which, after the grievor was reinstated by the employer, the employer brought a preliminary motion that the discharge grievance had become moot. The union argued that there remained an outstanding issue as to whether the employer had violated the grievor’s rights under the OHSA. Arbitrator Solomatenko ruled as follows: 22 Furthermore, in my view, the legislation is also clear that a complaint under section 50 of the Act must be placed before the arbitrator in the same manner that any dispute would be brought to arbitration under the collective agreement. In other words, the grievance must have alleged that there has been a contravention of the Act. In the instant case, the company has never disputed that an arbitrator has the remedial powers to deal with an allegation of an employer's contravention of subsection 50(1) of the Act. Its position throughout has been simply that the union has never alleged the contravention of the Act until after what the company views to be the resolution of the suspension/discharge grievance. - 11 - 23 As previously noted, the union has argued that, notwithstanding the reinstatement of the grievor with full redress, the issue of the contravention of the Occupational Health and Safety Act was still alive because it was inherent to the grievance as fled. In my view, there is nothing inherent in an allegation of unjust suspension or discharge that it also constitutes a complaint of reprisal under the Occupational Health and Safety Act. In order for the union's argument to succeed in that respect, one would have to find that any grievance of suspension or discharge inherently involves a complaint under section 50 of the Act. That proposition flies in the face of both logic and common sense. [27] The Employer further relies on Cherubini Metal Works Ltd. v. U.S. W. A. Local 4127, 2008 CarswellNS 432 (Christie) in which a timeliness issue was raised by the union in connection with a grievance filed by the employer. One of the issues dealt with in the award was the union's request that its preliminary objection to the arbitrability of the grievance be heard and ruled upon before proceeding with the hearing on the merits. Arbitrator Christie ruled on this issue as follows: 82. As I have stated above, given the nature of this matter, I do not think that bifurcating the hearing of the Union's preliminary objections and the merits of the Employer’s grievance will greatly prolong the hearing in this matter if the preliminary objection is not upheld. If it is upheld, the hearing will be very much shortened. In my opinion “fairness to the parties, and the practicality and economy of time” will be best served by bifurcating the hearing in this matter. 83. I do not hold that the fact that some of the evidence of the preliminary issue of time limits may not be able to be adduced separate and apart from the merits means I should not bifurcate the hearing. The intertwining of the evidence seems to me to be less important than the intertwining of the issues. If I could not decide on the preliminary objection without, in effect ruling on the merits I would not bifurcate; But such is not the case here. 84. For most of the purposes of the preliminary objections I will be able to proceed on the assumption that the Employer's allegations are factual, whatever may prove to be the case when the merits are heard. [28] The Employer submits that an overlap in evidence is not a sufficient reason not to bifurcate. The more concerning issue is where the issues are intertwined. As indicated above, the issue as to whether the Union would be required to call any evidence during the motion to determine the scope issue and was resolved when the Employer agreed to the stipulations set out in paragraphs 6 and 7 above. As such, in this case, no evidence would be called in connection with the scope issue. The Employer distinguishes the cases relied upon by the Union on the basis that they involved situations where the evidence on the preliminary matter overlaps with the evidence to be called on the merits. The Employer argues the issues were - 12 - intertwined in Hiram Walker, supra, and OPSEU v. Ontario (Ministry of the Solicitor General and Correctional Services (Stewart Grievance) [2000] O.G.S.B.A. No. 88. In Cargill Foods, supra, the Employer submits the decision, at paragraph 22, finds that, regardless of the outcome of the issue, the merits of the grievance would have to be dealt with. On this basis it was found that it would not be an efficient or economical use of time to bifurcate the hearing. The Employer distinguishes North Bay General Hospital, supra, based on the unique circumstances of the allegation of a violation of the OHSA arising out of answers given by an employer witness during cross-examination. In the present case, the issue was known to the Union at the time the grievance was filed. [29] The Employer submits that the Union’s assertion that it would not be seeking damages for violations of the OHSA and OHRC and its statement that, if it were, it could see that such would amount to an expansion of the grievance is telling. The same result must follow where the Union is advancing the claim and seeking a finding of a violation. Affirmative defences must be put forward and the grievance must contain a reference to all alleged breaches of the collective agreement and statutes. [30] Following the hearing, by way of email, I sought the following clarification from the Union: Alec, do the stipulations cover all of the evidence the Union would want to rely on in the motion to determine the scope of the grievance or is it the Union's submission the entirety of the evidence on the merits is relevant to a determination as to whether the reprisal and discrimination allegations are inherent in the unjust dismissal allegation. Counsel for the Union responded: The Union would submit that the entirety of the evidence on the merits is relevant in order for you to possess the complete factual context that (in the Union’s submission) is needed for you to make a fully informed decision regarding the proper scope of the grievance. Should you disagree and decide that the issue should be bifurcated the Union will be forced to argue the issue on the limited basis of the Employer’s stipulations. While these stipulations partially address some of the union’s concerns regarding fairness to the Grievor (and the unions case) the Union submits that a full evidentiary record remains both relevant and necessary for the proper adjudication of the issue. An email from Employer counsel followed: The Employer fails to see how evidence beyond that which is stipulated (i.e. which counsel himself put forward in his letter as evidence in support of the Union’s position on scope) could be arguably relevant to the - 13 - question of scope. The Union had ample opportunity during the last day of hearing and did not make any argument which should lead you to conclude that additional evidence is needed; never mind the full evidence on the merits. The Employer submits that the Union’s assertion of a need for the full evidence is baseless. Analysis and Decision [31] Before beginning my analysis, it is helpful to set out the context within which the dispute as to whether the scope issue should be bifurcated from the merits has arisen. [32] The Employer argues the reprisal and discrimination allegations are stand-alone allegations that had to be referred to in the grievance or during the grievance process failing which they are out of scope (see: Stericycle Inc., supra and Zehrs Markets, supra.). The Employer submits the evidence that is relevant to a determination of the scope issue is the grievance and communications between the parties during the grievance process. [33] The Union argues that the reprisal and discrimination allegations are inherent in, or flow from, the allegation of unjust discipline and did not need to be pleaded specifically (see: North Bay General Hospital, supra, paragraph 68.) The Union submits that the evidence that is relevant to a determination of the scope issue is the evidence that will be called in respect of the unjust discipline as it is that evidence that will show whether the reprisal and discrimination allegations are inherent to the unjust discipline allegation. [34] That is the context within which the issue as to whether I should exercise my discretion and bifurcate the scope issue from the merits arises. [35] As argued by the Employer, the issue of the scope of the grievance is commonly dealt with as a preliminary matter. However, in most cases there is no dispute between the parties as to the test to be applied to determine the scope of the grievance and what evidence must be called. In most cases, there is no argument that the evidence one of the parties requires to fully present their argument in respect of the scope issue is the evidence that will be called on the merits. [36] The Union’s argument as to why the scope issue cannot be bifurcated stems from the evidence the Union relies upon to establish that the reprisal and discrimination allegations are inherent in, or flow from, the unjust discipline allegation. Either the Union must call the evidence it would call on the merits as part of its case on the scope motion, which would be highly prejudicial, or it must argue the motion without the benefit of the evidence it needs. Accordingly, the Union argues, it would be unfair if the scope issue is bifurcated from the merits. [37] The Employer, in the email exchange following the hearing, disputes that evidence beyond that which has been stipulated is arguably relevant and further contests - 14 - that the Union made any argument that additional evidence is needed. On the argument the Union is making I find it to be premature to determine what evidence yet to be called may or may not be relevant to the scope issue. Further the Union’s argument was that it is the evidentiary record on the merits that it will rely upon in support of its argument on the scope issue. I find that the Union did state during its submissions that, to be able to put forth its best case, it must be able to rely on the evidence adduced on the merits. [38] I turn then to consider what factors are relevant to my determination as to whether I should bifurcate the scope issue from the merits. Cherubini Metal Works Ltd., supra, considered whether a timeliness objection raised by the Union should be dealt with before proceeding on the merits. Arbitrator Christie, in making his decision, considered “fairness to the parties, and the practicality and economy of time.” These factors are cited repeatedly in the cases relied upon by the Union. I find that fairness to the parties, the practicalities, and the economy of time are relevant factors to consider when deciding whether bifurcation is appropriate. [39] Practicalities involves the question of whether it is even possible to separate the issues raised in the matter to be bifurcated from all the other issues in the case. Fairness looks at the impact of deciding the matter on a preliminary basis to both of the parties. Economy of time considers the time and resources that will be required to deal with the matter on preliminary basis versus dealing with it as part of the merits of the case. [40] As a practical matter, the Union intends to advance an argument that the application of the test to be applied to determine the scope of this grievance involves determining whether the allegations are inherent in the unjust discipline allegation and that question is answered by looking at the evidence on the merits. As such, I find that the evidence relevant to the scope issue is intertwined with the evidence on the merits. As such, the practicalities weigh against bifurcation. [41] With respect to fairness, the dispute as to whether, in the context of an unjust discipline grievance, statutory violations are stand alone allegations that must be specifically pleaded has been the subject of very few decisions with inconsistent results. Caution should be exercised when in unsettled territory so as not to prejudge and/or prematurely foreclose a party from putting forward their case. The argument the Union is making requires it to be able to refer to the evidence that will be adduced on the merits just as the Employer’s argument requires it to be able to refer to the grievance and grievance process. Neither party should be foreclosed the right to advance its argument or rely on the evidence it requires. [42] The Employer argues not bifurcating would be unfair as it ought not to have to bear the burden of having the allegations hang over its head and it is entitled to know the case it must meet. Having the allegations outstanding is not a considerable unfairness to the Employer. By way of this decision, it has notice of the allegations that will be advanced by the Union during the hearing and may be found to be in scope. I find the issue of fairness weighs against bifurcation. - 15 - [43] Turning to the factor of efficiency, the Union, regardless of the outcome of the scope issue, is entitled to challenge the justness of the discipline imposed by leading evidence, and challenging the Employer’s evidence, to support a finding that the Employer, when it disciplined the grievor for the washroom incident, was motivated by her having raised a safety issue. Equally, the Union is entitled to adduce evidence and challenge the Employer’s evidence to establish that the grievor was disciplined for the PPE incident when the employer had granted her an accommodation. Any additional evidence required because the Union is seeking a finding that the Employer’s conduct violated section 50 of the OHSA and section 5 of the OHRC is not likely to be lengthy. I note that in Cherubini Metal, supra, Arbitrator Christie found “the hearing will be very much shortened” by dealing with the objection to the arbitrability of the grievance as a preliminary matter. I am not convinced the hearing of this matter would be very much shortened by dealing with the scope issue as a preliminary matter. [44] I have considered the schedule of the remaining hearing dates. The two days scheduled will not be enough to finish this case regardless of whether the scope issue is bifurcated or not. If I exercise my discretion to bifurcate the scope issue, one of the scheduled dates can be used to argue the scope issue but the second date, given its proximity to the first, would be lost. If I do not bifurcate the scope issue, I have been advised that the parties are not prepared to proceed on the merits on the first of the two scheduled dates, however, I assume the hearing could commence on the second date. Thus, by not bifurcating, the hearing can commence on one of the two dates set. [45] For these reasons, I decline to bifurcate the scope issue from the merits. [46] The parties are hereby directed to advise the Grievance Settlement Board as to whether they agree to adjourn July 28, 2023, and/or August 8, 2023. Dated at Toronto, Ontario this 26th day of July, 2023. “Diane L. Gee” _______________________ Diane L. Gee, Arbitrator