HomeMy WebLinkAbout2009-1065.Mazara.12-02-10 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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GSB#2009-1065
UNION#2009-0440-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Mazara) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION Eric del Junco
Counsel
FOR THE EMPLOYER Omar Shahab
Ministry of Government Services
Labour Practice Group
Counsel
HEARING September 19, 2010, June 22, July 19 and
July 20, 2011, and January 10, 2012.
DECISION
[1] On or about May 29, 2009 the union filed the following grievance1
on the
grievor’s behalf:
Statement of Grievance
I grieve that the Employer as represented by [J. E.], but not exclusively, has
harassed and discriminated against me contrary to Art. 3 of the Collective
Agreement and applicable legislation on the basis of my disability and union activity.
Settlement Desired
To be made whole.
The grievance relates to events that occurred on and before December 3, 1999.
[2] The employer objects that the grievance was filed long after the time limit for
filing that is specified in the collective agreement, and is therefore inarbitrable. The
union says that the grievance is not untimely and, in the alternative, asks that any
applicable time limit be extended in the exercise of this Board’s statutory discretion to
do so. The employer’s timeliness objection, and the union’s request that the time limit
be extended, were addressed together as preliminary issues.
[3] Despite union counsel’s the very thorough questioning of the grievor about her
perspective on the events on which she relies, and his forceful and imaginative
arguments in closing, I find that the filing of the written grievance was untimely and
that the Board’s statutory discretion should not be exercised to extend the collective
agreement time limit for filing this grievance by more than nine years.
The Grievance
[4] The union provided very comprehensive and detailed written particulars of the
factual allegations on which the grievance is based. The first 16 paragraphs of the
particulars contain this summary:
1
In quotes from documents, and elsewhere in this decision, references to people about whom the
grievor makes allegations or with whom she had dealings have been replaced with initials. Likewise,
I have taken care not to say more about the grievor’s illness and its manifestations before and after
December 1999 than seems necessary to provide reasons responsive to the issues raised by the
parties in this proceeding.
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1. Gail Mazara commenced employment with the Ministry (MCSCS) in April 1986
in the Administration Office at the Brockville Jail.
2. In December 1986 she was hired as a Correction Officer (CO) and assigned to the
Rideau Correctional & Treatment Centre in Burritt’s Rapids, Ontario.
3. Her employment record was exemplary and she was very active in her local
union, serving in various offices, including local President from 1991. She was
also active in the union at a provincial level, having been elected to the Provincial
Women’s Committee for two years, appointed to the Workplace Discrimination
and Harassment Training Advisory Group (Union/Management), co-facilitating
(Union/Management) Workplace Discrimination & Harassment training within
Corrections, participated in provincial bargaining 1994-1996 and was Chair of
the Corrections’ Bargaining Team in 1998 and 1999
.
4. In December, 1997 she fell at work and suffered soft tissue injuries to her arms,
shoulders and upper back and, over the next two years, was off work occasionally
and was in receipt of WSIB benefits during these absences. Upon completion of
the Corrections’ Bargaining in April 1999, WSIB approved therapy until June
1999 before returning to the workplace.
5. She returned to work in June, 1999 to her regular duties as a CO with medical
restrictions arising from her disability, including that she not have any inmate
contact.
6. This accommodation was inappropriate because:
a. it exposed Ms. Mazara’s fellow officers to undue risk as Ms. Mazara was not
allowed to respond in an emergency to aid fellow officers but was instructed
to push the emergency button (blue button) and wait for backup to travel
from the Correctional Centre to the Treatment Centre/Assessment Unit.
Waiting for backup from the Correctional Centre exposed her fellow officers
to unnecessary risk for an extended period of time; and
b. Given the culture of the workplace in 1999, the employer knew or ought to
have known that Ms. Mazara would inevitably be the target of harassment
and discrimination by officers and managers as a result of her medical
restrictions if she returned to work as a CO in a backup position but was
restricted from having any inmate contact.
7. Therefore, the employer ought to have placed her in a position at the Treatment
Centre/Assessment Unit that did not require any inmate contact in the normal
course or should have placed her in one of the designated Accommodation/Light
Duty posts.
8. Alternatively, if this accommodation did not entail undue risk to other COs, the
employer should have taken adequate steps to protect Ms. Mazara from the
harassment and discrimination which was foreseeable if she was assigned to
work as a CO and which, in fact, ensued immediately on her return to work.
9. From her return to work in June 1999 until December 1999, Ms. Mazara was
subjected to on-going harassment and discrimination in the workplace by fellow
officers and managers because of her medical accommodations.
10. ln December, 1999 she suffered a complete mental breakdown as a direct result
of the unbearable stress caused by the on-going harassment and discrimination
she experienced following her return to work in June, 1999.
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11. She remains totally disabled to the present day.
12. The employer took no or inadequate steps to stop this harassment between June
and December, 1999, in violation of its obligations under the Collective
Agreement, the Human Rights Code and the Occupational Health and Safety Act.
13. Prior to December, 1999, Ms. Mazara had not suffered from any psychiatric
disability that prevented her from functioning effectively at a high level at work
or in other areas of her life. The range of her engagement and activities is
reflected in the document entitled Courses, attached as Appendix A.
14. Since her breakdown, Ms. Mazara has often been unable to cope with the most
minimal demands of daily living. Although she has been unemployed for 11 years
and her children are adults and therefore she has no work or family demands on
her time, she has completely withdrawn from any social or recreational activities
or hobbies outside her home.
15. Some of the facts relating to the harassment and discrimination suffered by Ms.
Mazara are set out in an appeal decision of the WSIB dated June 13, 2007
allowing her claim for wage loss benefits retroactive to December, 1999 for
psycho-traumatic disability caused by harassment in the workplace.
16. The union relies on those facts set out in this decision adverse to the employer
and asserts that these factual findings are binding on the employer but reserves
the right to supplement these facts through further evidence in this case.
[5] The last shift that the grievor worked was on December 3, 1999. Subparagraph
26(h) of the union’s particulars addresses the events of that day:
December 3, 1999 - Ms. Mazara’s last day at work
i. Each shift, the employer posted the roster designating the duties each staff
member was assigned to complete. Despite the fact that Ms. Mazara was not
allowed to enter the inmate dorms (per her signed Accommodation Plan) to
perform rounds and despite the fact that the Shift Supervisor would verbally
tell the staff at the shift muster before the start of the shift that Ms. Mazara
was not allowed to enter the dorms and that the rounds would be performed
by her co-workers, the roster continued to indicate that she should perform
the rounds every two hours.
ii. This caused her co-workers to be angry and feel they had the right and duty
to follow the written roster over the verbal instructions. It was the
responsibility of the employer to post proper and appropriate designation of
duties. In addition, since there had been several individual and group
refusals to work with her, the employer knew or ought to have known that
Ms. Mazara was being placed in a position to be harassed.
iii. Ms. Mazara was scheduled to work the night shift for the duration of the
accommodation period.
iv. During the muster before the commencement of the shift, the Shift
Supervisor told the COs on shift that they would have to cover Ms. Mazara’s
rounds because of her accommodation. This public discussion of her
accommodation was demeaning and humiliating to Ms. Mazara. This was
inappropriate in any circumstances but made worse by the fact that this
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accommodation had been such a point of contention within the bargaining
unit since Ms. Mazara’s return to work.
v. At 3AM, CO [S. H.], refused to cover Ms. Mazara’s rounds despite the
direction from management. The written roster indicated that she was to
complete the dorm rounds at 3:00, 3:30, 4:00 and 4:30 a.m. and CO [S. H.]
insisted that he would not perform her duties.
vi. After months of harassment, this was the final straw for Ms. Mazara. She felt
an inmate could be in trouble in the dorms and staff would not be aware of
any problems for two hours. As a result, an inmate could be sick, injured or
die. In the event of a problem in a dorm, the staff on duty would be subject to
an investigation and possible charges if they did not complete their duties
properly. She felt rejected by her co-workers as well as being torn between
the responsibilities of her job and reporting her co-worker to management.
She broke down and started crying uncontrollably because management had
failed to protect her from on-going harassment caused by an inappropriate
accommodation.
vii. She called [P. M.], Acting Manager, who was at the Correctional Centre and
he came to the Treatment Centre. She told [P. M.] she had to leave
immediately given how distraught she was but he asked her to complete her
shift. This request was inappropriate but Ms. Mazara agreed to stay even
though she was unable to stop crying. She stayed until 7 AM and was
subjected to being in this upset state in front of all the staff reporting for the
next shift. She went home and has not returned to the workplace since.
Is the grievance timely?
[6] The collective agreement in force in 1999 provided, in pertinent part, as follows:
ARTICLE 22 - GRIEVANCE PROCEDURE
22.1 It is the intent of this Agreement to adjust as quickly as possible any
complaints or differences between the parties arising from the interpretation,
application, administration or alleged contravention of this Agreement,
including any question as to whether a matter is arbitrable.
STAGE ONE
22.2.1 It is the mutual desire of the parties that complaints of employees be
adjusted as quickly as possible and it is understood that if an employee has a
complaint, the employee shall meet, where practical, and discuss it with the
employee’s immediate supervisor within thirty (30) days after the
circumstances giving rise to the complaint have occurred or have come or
ought reasonably to have come to the attention of the employee in order to
give the immediate supervisor an opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor
within seven (7) days of the discussion and/or meeting, it may be processed
within an additional ten (10) days in the following manner:
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STAGE TWO
22.3.1 If the complaint or difference is not resolved under Stage One, the employee
may file a grievance, in writing, through the Union, with the senior human
resources representative for the ministry or his or her designee.
…
22.14.1 Where a grievance is not processed within the time allowed or has not been
processed by the employee or the Union within the time prescribed it shall be
deemed to have been withdrawn.
22.14.3 The time limits contained in Article 22 may be extended by agreement of the
parties in writing.
[7] The circumstances giving rise to the grievance occurred and came to the
attention of the grievor no later than December 3, 1999. The union says that the 30 day
time limit specified in Article 22.2.1 can have no application to an employee who was
absent from the workplace due to disability and by reason of that disability could not
have had a discussion with her immediate supervisor.
[8] I note that the union alleges – and the employer has agreed for purposes of the
preliminary issues – that prior to December 3, 1999, the grievor had informed
management of her concerns about the suitability of the accommodation, the
unwelcome co-worker conduct it had engendered and the impact that conduct was
having on her, and that before she left work on December 3, 1999, she had informed her
immediate supervisor, P. M., of the further unwelcome co-worker conduct she had
experienced that day and of the effect it had had on her. In those circumstances it is not
apparent what further meeting Article 22.2.1 required of the grievor prior to her giving
the union a written grievance to file with the employer, which the grievor actually did
on December 3, 1999 before she left work.
[9] In any event, assuming that it was not practical for the grievor to have a further
meeting with her supervisor before filing the grievance, I am not persuaded that that
made the 30 day time limit inapplicable. I am not aware of any decision of this Board in
which a grievor’s having failed to meet with a supervisor at Stage One to discuss a
complaint was treated as either precluding a timely filed written grievance based on
that complaint or suspending the 30 day time limit for filing a written grievance. In my
experience, in matters involving these parties it is frequently the case that the
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complaint that is eventually said to be the basis of a written grievance was not
discussed by the grievor with the grievor’s immediate supervisor before a written
grievance was filed. In practice, the parties’ understanding has seemed to me to have
been that if a Stage One meeting is not practical for whatever reason, including a
grievor’s reluctance, then the 30 day requirement may be satisfied by simply filing the
written grievance within that time. The notion that the impracticality of a “Stage One”
meeting gives a grievor the option to delay resolution of his or her complaint
indefinitely is inconsistent with the parties’ shared intention, evidenced in the language
of Article 22, that complaints on which grievances are founded be addressed as quickly
as possible.
[10] Accordingly, I find that this grievance was not filed within the time limit to
which the union agreed in Article 22 of the pertinent collective agreement.
Should the time limit be extended?
[11] These proceedings are governed by the Crown Employees Collective Bargaining
Act (“CECBA”), which incorporates by reference provisions of the Labour Relations Act
(“the LRA”), including subsection 48(16):
(16) 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.
[12] It is well settled,2
and not disputed before me, that in exercising this discretion
this Board should consider the factors described by Arbitrator Burkett in Re Becker
Milk Company Ltd. and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217 at 220-
221:
The exercise of the equitable discretion vested in an arbitrator under s. 37(5a)
[now 48(16)] of the Act requires a consideration of at least three factors. These are: (i)
the reason for the delay given by the offending party; (ii) the length of the delay; (iii)
2
See, for example, Gamble, 1996-1635 (Gray), Wilson, 1996-2804 (Abramsky), Szabo, 1998-1811,
[2001] O.G.S.B.A. No. 15 (Herlich), Berday, 2007-3132, [2008] O.G.S.B.A. No. 240 (Devins),
Liantzakis, 2008-3252 (Petryshen) and Flynn, 2007-2956, (Dissanayake).
- 7 -
the nature of the grievance. If the offending party satisfies an arbitrator,
notwithstanding the delay, that it acted with due diligence, then if there has been no
prejudice the arbitrator should exercise his discretion in favour of extending the
time-limits. If, however, the offending party has been negligent or is otherwise to
blame for the delay, either in whole or in part, the arbitrator must nevertheless
consider the second and third factors referred to above in deciding if reasonable
grounds exist for an extension of the time-limits. … The purpose of the section is to
alleviate against technical bars. If the offending party has been negligent in its
processing of the grievance but the delay has been of short duration an arbitrator
would be permitted to rely on the short period of delay as constituting reasonable
grounds for an extension. If the grievance involves the termination of an employee, as
distinct from some lesser form of discipline, this is also an equitable consideration
which must be taken into account, in deciding if there are reasonable grounds to
extend the time-limits. One arbitrator has gone so far as to state that in a discharge
grievance,
... there would have to be a very clear case of unexcused, unreasonable delay and
prejudice to the employer before it would be proper to deprive the grievor of the
right to a hearing on the merits.
(Emphasis added.) See Re Lincoln Place Nursing Home and Service Employees
Union, unreported, July 8, 1977 (Rayner). The term “reasonable grounds for the
extension” as found in s.37(5a) of the Act is not synonymous with the reasonableness
of the excuse advanced by the offending party. Having regard to the purpose of the
section the term carries a broader signification which requires the arbitrator to weigh
a number of factors, including but not necessarily restricted to those which have been
set out above.
The Board’s decisions frequently also refer to the award in Re Greater Niagara General
Hospital, (1981) 1 L.A.C. (3d) 1 (Schiff), which adds three more considerations to those
identified in Re Becker Milk: whether the delay occurred in initially launching the
grievance or at some later stage; whether the grievor was responsible for the delay;
and, whether the employer could reasonably have assumed the grievance had been
abandoned.
[13] The union says there are reasonable grounds here to extend the time limit by
over nine years. Its position is set out in paragraphs 17 through 20 of its particulars,
and amplified in paragraphs 122 through 130:
17. Because of her on-going complete mental disability from December, 1999, and the
extreme psychological fragility caused by this disability, Ms. Mazara was unable
to deal with the stress of initiating a grievance against the employer for
permitting her to be victimized as of result of her disability.
18. Further, it was medically inadvisable for her to initiate a grievance as this would
have aggravated her disability and increased her mental suffering.
19. Therefore, she did not file a grievance until May, 2009.
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20. The employer has suffered no prejudice as a result of the delay in filing a
grievance that was not caused by its own intentional misconduct, negligence or
its own choice to ignore these issues because:
a. It knew or ought to have known before the grievor left the workplace in
December, 1999 that she was being harassed and should have taken
adequate measures forthwith to investigate these issues and to end the
harassment promptly. Its failure to do so was a violation of its duty to provide
a safe workplace free from harassment and discrimination pursuant to its
contractual and statutory obligations under the Collective Agreement, the
Human Rights Code and the Occupational Health and Safety Act.
b. It was put on notice of these factual and legal issues both before and after the
grievor’s departure from the workplace through:
i. Oral communications by the grievor and her co-workers to supervisors
and managers
ii. Occurrence reports filed by the grievor and/or her co-workers and
managers
iii. A claim for LTD benefits commenced by the employer on the grievor’s
behalf shortly after her departure from the workplace
iv. a claim for WSIB benefits based on psycho traumatic disability caused by
workplace harassment, commenced shortly after departure from the
workplace.
…
Union’s Position on Time Limits
…
122. … Ms. Mazara relies on her continuing total mental disability in support of
her position that there are reasonable grounds to extend the time limits in all
the circumstances because she was incapacitated and/or it was medically
inadvisable for her to expose herself to further stress by filing a grievance
against her employer.
123. During her last shift on December 3, 1999, Ms. Mazara spoke to her
supervisor, [P. M.], about the workplace harassment which had culminated
with the refusal of CO [S. H.] to work with her on December 3. Both [P. M.]
and CO [S. H.] submitted Occurrence Reports to management.
124. Ms. Mazara also wrote relevant information on an Occurrence Report
regarding this incident so she would have a record of the details for future
reference. She did not file this report with the employer.
125. She also filled out a grievance form alleging harassment based on her
disability and gave the grievance to [B. T.], her union steward, before she left
the workplace with the understanding he would submit the grievance for
processing.
126. Later in December 1999, [B. T.] phoned Ms. Mazara, and said “I can’t handle
this grievance for you”. [B. T.] did not elaborate why but Ms. Mazara
assumed he was reluctant to file a grievance alleging harassment by union
members in violation of the Human Rights Code. By this time, Ms. Mazara
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was too distraught and emotionally overwhelmed to argue with [B. T.] or to
take other steps to ensure that a grievance was filed by someone else.
127. Ms. Mazara did not initiate anything further regarding the grievance as she
was unable to initiate any activity. The tasks of daily living required physical
and emotional resources she simply lacked for many years as a result of her
disability.
128. She did initiate contact with [L. B.] in 2003 with a view to filing a grievance
at that time but was too distraught to follow through when she met with [L.
B.].
129. Occasionally between 2000 and May, 2009, Ms Mazara spoke to her doctors
and therapists about the workplace harassment and the possibility of
pursuing a grievance, and their reaction was to caution her that engaging in
a legal confrontation with her employer might worsen her condition.
130. Due to the anger and feelings of injustice she felt following her breakdown,
she always had it in her mind to file a grievance and discussed the subject
with almost all doctors and her counsellors. They all advised her that she
could not handle the stress because of her extreme mental fragility.
[14] The actual filing of the grievance in May 2009 is described in paragraph 119 of
the particulars:
119. Following is an outline of the immediate circumstances pertaining to the
filing of the grievance herein in May, 2009:
a. Around the beginning of May, 2009, Ms. Mazara decided she was feeling
strong enough to file a grievance and to seek an accounting in relation to
the employer’s misconduct which had caused her such severe harm.
b. She contacted [L. B.], a staff representative at the OPSEU Regional
Office in Brockville.1
c. Ms. Mazara met with [L. B.] who drafted the grievance for her. It was
signed by Ms. Mazara and then forwarded by [L. B.] to OPSEU’s head
office in Toronto to begin the process.
The staff representative referred to in subparagraphs b. and c. of this paragraph is the
same “L. B.” to whom paragraph 128 refers. A footnote to subparagraph b. amplified on
paragraph 128:
1
She chose to contact [L. B.] because [L. B.] had tried to assist her in or around 2003
in relation to these issues. However, at that time Ms. Mazara had been too disabled
to address these issues and follow through with filing a grievance. Ms. Mazara called
[L. B.] in 2003 and indicated she wished to file a grievance. When [L. B.] came to her
home to discuss the grievance, Ms. Mazara was emotionally distraught and unable to
stop crying. As a result she was unable to give [L. B.] a coherent account of the
subject matter of her grievance. [L. B.] asked her if she wanted to proceed or wait
until she felt better. Ms. Mazara told [L. B.] she would wait until she felt better. [L.
B.] asked Ms. Mazara to contact her again when she felt able to move forward and
Ms. Mazara did so in May, 2009.
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[15] The time limit in issue here is the time within which “the employee may file a
grievance, in writing, through the Union” (my emphasis). An assessment of the reasons
for a delay in filing a grievance must necessarily consider the conduct of the union as
well as that of the grievor. While one of the pertinent considerations is “whether the
grievor was responsible for the delay,” the position of a union seeking an extension to a
time limit is not improved if it is the union itself, rather than the grievor, that is
responsible for the delay.3
It is important to recognize, however, that the union’s
conduct is not assessed to determine whether it has acted in accordance with its duty to
the employee. Under CECBA, assessments of that sort are the exclusive responsibility
of another tribunal. The focus in a matter of this kind is on the obligation of diligence
that employees and the union together owe the employer (and that the employer
likewise owes to the union and employees when it considers grieving) under Article 22
of the collective agreement and whether, in all the circumstances, there are reasonable
grounds to deprive the respondent to the grievance (usually the employer) of its right
under Article 22.14.1 to have an untimely grievance “deemed to have been withdrawn.”
[16] The employer stipulated that for purposes of these preliminary issues it would
only dispute the claim that the grievor had been unable to file the grievance (or that it
had been “medically inadvisable” to do so) before she did, and that, to the extent they
might be relevant to the preliminary issues, any facts alleged by the union in
connection with the merits could otherwise be assumed to be true in determining the
preliminary issues. This was without prejudice to its right to contest those assumed
facts in a hearing on the merits if the grievance was found to be timely or made so by
an exercise of the Board’s statutory discretion.
[17] The parties’ counsel collaborated on a book of documents for purposes of the
hearing of these preliminary issues. For those purposes, and with the exception of some
3
In this regard, in his closing argument employer counsel referred to Re Casellholme Home for the
Aged and C.U.P.E., Local 146 [1982] O.L.A.A. No. 16, 3 L.A.C. (3d) 377 (H. D. Brown), Gabriel of
Canada Ltd. and I.A.M., Local 1295, [1988] O.L.A.A. No. 89, 34 L.A.C. (3d) 42 (T. A. B. Jolliffe),
Helen Henderson Care Centre and S.E.I.U., Local 183, [1992] O.L.A.A. No. 136, 30 L.A.C. (4th
) 150
(Emrich), and Kitchener-Waterloo Hospital and L.D.S.W.U., Local 220, [1994] O.L.A.A. No. 125, 44
L.A.C. (4th
) 293 (H. D. Brown).
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of the documents,4
they agreed that each document in the book could be taken to be a
true copy of an original created by the apparent author, that a document with an
addressee could be taken as have been sent to that addressee on or about its apparent
date and received by the addressee in due course, and that a document that purported
to record what the grievor had said to its author on some occasion could be taken as
evidence that on that occasion she had said what the document recorded. There was no
agreement that any documents, or any statements by the grievor that a document
recorded, could be treated as evidence of the truth of their contents. There was no
agreement that any of the documents created by medical practitioners could be received
as evidence of any medical opinion it contained without calling the author to testify.
[18] During the grievor’s testimony union counsel was given wide latitude in
questioning her about events that occurred before and on December 3, 1999. This
resulted in her giving testimony about factual allegations that were assumed to be true
and, therefore, not in dispute for purposes of the preliminary issues. The employer’s
cross-examination and closing arguments focused on the facts in dispute – the grievor’s
capacity to initiate things on and after December 3, 1999, and events after that date
that were pertinent to the preliminary issues. Employer counsel did not challenge or
lead evidence to contradict the grievor’s testimony with respect to the allegations of fact
that were assumed to be true for purposes of these proceedings.
[19] One of the positions taken on the grievor’s behalf in closing argument was that
by failing to challenge the grievor’s testimony or lead contradictory evidence with
respect to the allegations on which the grievance is based, the employer had conceded
that it was at fault in causing her disability. It is not entirely clear whether this
argument related only to the employer’s not having participated in the earlier WSIB
proceedings, which shared a factual foundation with the grievance, or whether it
related also to what happened in these proceedings. To the extent this position related
to the way the preliminary issue was framed and litigated in these proceedings, it is
4
The documents to which this agreement did not apply were those numbered 2, 2.1, 7, 13, 18, 19,
24, 27, 37, 59, 63 and 65 in the index to the book of documents.
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without merit. I will address the significance of the WSIB proceedings later in these
reasons.
[20] The grievor was the only witness to testify. Although that testimony and the
union’s particulars identified a number of physicians, union representatives and other
people with whom the grievor had had dealings during the period December 1999 to
May 2009, none of those individuals were called as witnesses.
The explanation for the delay
[21] As I have noted, the union’s explanation for the delay is that before May 2009
the grievor had been unable to initiate a grievance or, alternately, that it had been
“medically inadvisable” that she do so.
[22] Assessment of these explanations must start with the admitted fact that on
December 3, 1999, the grievor filled out and signed a written grievance substantially
similar to the one with which these proceedings are concerned, and gave that grievance
to B. T., a union shop steward, “with the understanding he would submit the grievance
for processing.” When she left work that day she took a copy of the grievance with her.
She also took with her written notes of what had happened that night, in the form of an
occurrence report that she did not submit to management.
[23] The union concedes that the grievor was capable of initiating a grievance on
December 3, 1999. Its position is that she had become became totally incapable of doing
so between that time and time of the telephone call she received from B. T. later that
month.
[24] The grievor testified that when B. T. telephoned her a few weeks later he said he
“was not going to be able to proceed” with the grievance. She did not ask him why. She
just said “OK,” and hung up before he could say anything more. She testified that she
believed then that what B. T. had said reflected unwillingness on the part of the local
union to advance a grievance concerning alleged harassment by its members. She also
testified, however, that in May 2009 she obtained information from which she
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concluded that when B. T. called he had been unable to process the grievance because
he was absent from the workplace due to injury.
[25] In closing argument union counsel invited me to infer that B. T. had not
processed the grievance because he did not want to incur the wrath of his co-workers.
Employer counsel disagreed that I should take that view of the matter, but observed
that if I did it would not improve the union’s case for an extension.
[26] B. T. was not called as a witness. There is no suggestion that he was beyond the
reach of a summons. I am not in a position to determine why he said what he did to the
grievor in December 1999. Whatever B. T. might have taken from the grievor’s saying
“OK” in response, I accept that she was not then content with union’s not processing
her grievance. Clearly, though, she was on notice that if she wanted her grievance to be
filed with the employer she would have to ask some other union official to do that. She
testified that she did not then consider contacting anyone else in OPSEU about filing
the grievance “because I had given it to him” and because she was “not in any shape to
consider anything.”
[27] The grievor’s claim that she was not then in any shape to consider or initiate
anything is not consistent with the evidence of what she actually did do thereafter,
particularly with respect to the claim for WSIB benefits that, as the union’s particulars
note, was “commenced shortly after” December 3, 1999. That use of the passive voice
obscures an important question: whose initiative was that? The evidence does not
displace the natural presumption that it was the grievor’s.
[28] The grievor never returned to work. Her application for long term disability
(“LTD”) benefits under the employer’s Long Term Income Protection plan was
eventually accepted by the insurer, first on the basis that she was totally disabled from
performing the duties of her occupation, and later on the basis that she was totally
disabled from performing the duties of any occupation.
[29] Because the terms of her disability coverage required that she do so, the grievor
applied for CPP disability benefits and was awarded those benefits after going through
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an appeal hearing in March 2005 with the assistance of a social worker. The issue in
that proceeding was whether the grievor “had a severe and prolonged disability in or
before December 2002 and … remains so disabled.” The tribunal’s decision finding that
she had such a disability noted that a disability is “severe” for CPP purposes if the
individual is incapable regularly of pursuing any substantially gainful employment,
and “prolonged” if it is likely to be long continued and of indefinite duration.
[30] The grievor had a pre-existing WSIB file with respect to her 1997 injury. This
was expanded after December 3, 1999 to include a claim for income loss benefits based
on the alleged unsuitability of the accommodation offered and on psychotraumatic
workplace injury caused by the unwanted co-worker behaviour and the employer’s
alleged failure to restrain it. The WSIB initially rejected those claims. The grievor then
sought and received union representation with respect to an appeal of those initial
determinations. On appeal, the WSIB awarded her income loss benefits for the period
from and after December 3, 1999. In his decision released in June 2007, the WSIB
Appeals Resolution Officer (“the ARO”) who had heard the appeal concluded:
Under the circumstances, after carefully considering all of the information on the
claim record, I am satisfied that although this worker had a significant longstanding
non-compensable psychiatric history pre-accident, that the sequelae of the accident of
December 1997 led to what appears to be a permanent aggravation of that condition,
as the return to work in 1999 was to a Job that was not properly monitored by the
employer, and in addition, had the potential to significantly violate the worker’s
restrictions, putting not only herself at risk, but also her co-workers,
Under the circumstances, I am satisfied that the worker has entitlement to
psychotraumatic disability and also that the job offered by the employer was not
suitable.
[31] The ARO’s decision refers to the WSIB’s Operational Policy 15-04-02. A copy of
the April 2003 version of that policy was put before me. Entitled “Traumatic Mental
Stress,” the policy elaborates on the propositions that “a worker is entitled to benefits
for traumatic mental stress that is an acute reaction to a sudden and unexpected event
arising out of and in the course of employment” but not “traumatic mental stress that is
a result of the employer’s decision or actions.” Those propositions mirror the provisions
of subsections (4) and (5) of section 13 of the Workplace Safety and Insurance Act, 1997,
S.O. 1997, c. 16, Sched. A.
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[32] There can be no doubt that the grievor was disabled by mental illness
throughout the period of delay in issue. What is in issue here is the extent of the
disability. I do not accept union counsel’s argument that the awards of disability
insurance benefits, CPP disability benefits and WSIB benefits for “psychotraumatic
injury” amounted to or reflected findings (whether binding on the employer or not) that
she was suffering from “mental paralysis,” as he put it in argument, or otherwise
“incapable of initiating anything” at all material times prior to May 2009, nor that her
entitlement to those benefits is sufficient to support such conclusions.
[33] The question here is not whether, in the weeks immediately following her last
day of work, the grievor could have investigated the factual and legal basis for the
grievance she wrote out on December 3, 1999, nor whether she could have acted as her
own advocate in the process that would have followed the filing of a written grievance
with the employer, nor even whether she could have given testimony at an arbitration
hearing. As employer counsel noted in argument, if the grievor had been unable to
participate in an arbitration hearing when the grievance and arbitration process
reached that stage, the union could have asked that the matter be held in abeyance. If
the employer had not agreed to an extension, the question whether the hearing should
be delayed to accommodate the grievor’s mental health could have been determined by
the Board. The question is simply whether the grievor was capable of asking a union
representative to file with the employer her December 3, 1999 grievance, or something
like it, or, in the alternative, whether her doing even that was so “medically
inadvisable” as to provide reasonable grounds for an extension of the time limit.
[34] As of December 3, 1999 the grievor was seeing a psychiatrist, Dr. B. G., with
respect to the “significant longstanding non-compensable psychiatric history pre-
accident” to which the ARO’s decision refers. She had been seeing Dr. B. G. for about 15
years at that point, and continued to see her every two weeks for another six months
thereafter. The grievor testified that she stopped seeing Dr. B. G. in June 2000 because
the doctor had decided to change her method of treatment, and the grievor did not think
she could benefit from the new form of treatment. From the grievor’s testimony it seems
that their parting was amicable.
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[35] One would have thought Dr. B. G. could say whether the grievor’s disability was
so extreme in and after December 1999 that she was then incapable of initiating a
grievance or, if not, that it had nevertheless been “medically inadvisable” that she do
so. There was no suggestion that Dr. B. G. was beyond the reach of a summons at the
time of the hearings in this matter, nor any other explanation for the union’s failure to
call her as a witness.
[36] Among the documents produced by the union that was excluded from the
agreement referred to earlier is a chronology about which the grievor was cross-
examined. She testified that she prepared the document over the period described in it,
which ends in early January 2001. It consists of a cover page with addresses and
telephone numbers for people involved in the grievor’s WSIB claim and her application
for LTD benefits, followed by a series of pages with dated entries in chronological order.
The grievor testified that she created this document on her computer, that she made
the entries in it from handwritten notes made around the times of the events, which
notes she transcribed into the computer document soon after they were made. She
stated that the information she had entered would have been accurate and true.
[37] The chronology describes activities of the grievor during the year 2000. These
include her making numerous telephone calls to the WSIB and to the disability insurer
about the processing of her WSIB and LTD claims, meeting with her psychiatrist, her
family doctor and her chiropractor concerning treatment and completion of forms
relating to those claims, and faxing or mailing (or having others fax or mail) documents
concerning the claims. Some of the entries in the chronology record the actions of others
on her behalf, such as a telephone call made by a friend on March 14, 2000 to someone
in “Membership Benefits” at “OPSEU HO” to ask who is responsible for “reporting a
new claim or opening an old claim.”
[38] Some of the entries in the chronology record telephone conversations in which
the grievor asked and was told about the status of the WSIB claim or the LTD claim,
and explained the basis of her claim and the features of it to which she felt the WSIB or
the disability insurer was being unresponsive. Entries dated March 20, 2000, record
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that when the person handling her file at the WSIB did not return her calls she called
that person’s manager and left a complaint about the failure to return calls and the
difficult position she was in “re salary, etc.” Entries dated November 16, 2000 begin
with a summary of her argument with the employee of the disability insurer who was
handling her claim there, concerning their conclusion that material filed did not
support the claim. The entry records that person’s having said (in response to the
grievor’s reference to her financial problems) that the grievor should go on welfare for
money to pay her bills, and the grievor’s retort that she had worked all her life and paid
for benefits and should not have to go to welfare. The next entry that same day records
that the grievor then called that person’s supervisor and left a message.
[39] When cross-examined about these and other entries in the chronology, the
grievor said that she had constantly been crying in this period and had had help from
others filing out the forms and drafting the letters to which the chronology refers. She
conceded, however, that she had nevertheless been able to make the many telephone
calls listed in the chronology, and engage in the conversations to which it refers.
[40] During his closing argument union counsel submitted that while the grievor had
done some things before 2009, they were only things that she was told by others to do.
The application for CPP disability benefits and subsequent appeal proceeding, for
example, were things that the disability insurer had required that she do pursuant to
the disability policy’s requirements. The idea of her applying for LTD benefits, the
grievor had said, was the employer’s.
[41] However much the evidence may support the proposition that some of her
activities before 2009 were at the direction of others, it does not support that
proposition with respect to the claim for WSIB benefits.
[42] I accept that during 2000 the grievor was suffering from a mental illness that
interfered to an increasing extent with her ability to function as well as she had before
her return to work in mid 1999. On the evidence before me, however, she was
sufficiently capable of initiating things to cause her WSIB claim to be expanded shortly
after December 3, 1999 to include circumstances on which this grievance is based, and
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to later get the union involved in representing her with respect to that WSIB claim. I
am not persuaded that the person who during the year 2000 prepared the chronology
and did the things described in it, albeit with help from others, was so mentally
paralysed or incapable of considering or initiating anything that during that year she
could not also have asked someone in the union in which she had been so involved,
someone outside the local union, to file with the employer a written grievance like the
December 3, 1999 document of which she still had a copy.
[43] I will not recount in any detail the particulars and testimony given with respect
to the years 2001 through 2004. I accept that during this time the grievor had
substantial and increasing difficulty coping even with the ordinary tasks of day to day
living. She had difficulty getting help with her health and other problems. There were
conflicts with her children and family, from whom she became alienated. There were
difficulties with the Canada Revenue Agency and Employment Insurance over her
failure to report income, difficulties that eventually included allegations of wrongdoing
and threats of prosecution that were horrifying and frightening to her. I accept that
when L. B. came to her home in 2003 to discuss the filing of a grievance, she was
unable to explain to L. B. what the grievance was about, and could not then locate the
pertinent documents. Whatever L. B. may actually have said to her on that occasion, I
accept that the grievor’s present recollection is that L. B. said that she could not file a
grievance without that information, and that the grievor would have to get better
before that could be done. I find it unnecessary to determine whether the grievor could
have initiated the grievance process during the period 2001 through 2004.
[44] There was at least one occasion in 2000, and several in and after 2005, on which
the grievor spoke with union representatives about advancing that WSIB claim. I am
not persuaded that the state of the grievor’s mental health at those times rendered her
incapable of also saying to those union representatives that she wanted the union to file
a grievance based on the allegations relied on in the WSIB claim.
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[45] The documents produced include an email message dated December 4, 2000 to
the grievor from S. M., an Acting Field Service Representative with OPSEU. The
message says, in part:
Hello, Gail. Here’s the form for your consent to represent for WSIB. Please sign it & I
will get it from you somehow. …
The grievor testified that since she was “unable to participate in filing papers” for the
WSIB claim, the union arranged for S. M. to come and “do things” for her. She said
S. M. came to her house once to pick up the signed consent, and she did not see S. M.
thereafter. She did not think she had discussed the possibility of a grievance with S. M.
on that occasion. S. M. did not testify. It is not otherwise clear from the particulars or
the grievor’s testimony precisely how S. M.’s involvement came about, but clearly it did.
As I note later, it is reasonable to infer that this was in response to a request by the
grievor that the union represent her with respect to the WSIB claim.
[46] The ARO decision describes the course the grievor’s WSIB claim took up to early
2005:
In correspondence of May 24, 2000, the adjudicator reviewed entitlement. At that
time, It was noted that the worker had been off work since December 6, 1999 and the
adjudicator noted that the worker would not be entitled to benefits for mental stress
that was due to an employer’s work-related decisions or actions. The adjudicator
noted that the situation under which the stress developed was due to a return to
work situation and related to the employer’s work-related decisions and actions. As
such, the adjudicator concluded there was no entitlement to benefits effective
December 6, 1999. The adjudicator made a ruling on entitlement under the mental
stress policy and denied that entitlement, but a ruling has not been made under the
psychotraumatic policy and it was agreed that this issue would be dealt with at the
appeals level.
In further correspondence of February 2005, the claims adjudicator noted that the
NEL benefit had been increased to 28 per cent and based on the NEL increase, the
adjudicator concluded that the worker’s precautions with a new NEL benefit still
indicated that the work offered by the employer was suitable and as such, further
benefits would not be granted.
[47] The documents produced include a WSIB “Objection Form (Appeals)” form dated
May 2, 2005. It sets out an objection on the grievor’s behalf to WSIB decisions dated
May 24, 2000 and February 2, 2005. It names S. L., an OPSEU representative at
OPSEU’s head office, as the grievor’s representative. The “Signature of
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Worker/Dependent or Authorized Representative” is not the grievor’s. I infer that it was
S. L.’s signature. The Reasons for Objection given on the form are:
- worker sustained traumatic (non-organic) medical condition arising from
workplace not being able to secure accommodation of her physical condition
- given substantial increase in NEL she cannot perform her pre-accident duties &
appeals it is unlikely she would have been able to perform modified duties
performed last December 1999.
The grievor testified that she “had almost no contact” with S. L. He was someone at the
other end of the telephone whom she had difficulty reaching to find out what he was
doing. When she did reach him, she said, he told her he was handling it. S. L. did not
testify. There is no other evidence about how this appeal form came to be prepared, but
it is evident that it was filed with the WSIB and led to the ARO’s hearing by
teleconference in September 2006.
[48] It is common ground that the employer would have had notice of the appeal, and
that the employer did not participate in the proceedings that ensued.
[49] By the time of the ARO’s teleconference hearing in September 2006, the grievor
was being represented by A. J., another OPSEU representative. The grievor testified
that she met with A. J. the day before the teleconference, and spoke with him by
telephone once or twice before that. During the teleconference the grievor gave quite
detailed testimony about her claim, as appears from these portions of the ARO’s
decision:
The worker described her accident in 1997 and also indicated that she was off on
union business until July 1999. She was the chair of the bargaining team with direct
input, and prior to 1999, was union local president for ten years.
In mid July 1999, she went back to her job after doing union business, and indicated
that she loved her job and was on a bargaining team because she wanted to make it
safer and better. She testified that while on union business, her injury kept getting
worse, however she was able to continue with the bargaining job and worked well
and productively at her union business on a full-time basis.
Her chiropractor, Dr. [B], recommended the return to work and the worker took
forms to the deputy superintendent, [J. E.], regarding the return to work. In July
1999, the return to work process was discussed and the worker expressed her
concerns regarding accommodation. The return to work was to be eight hour shifts
instead of 12 hour shifts on a work-hardening basis, and the worker volunteered to
work the night shift because there was less inmate contact on the night shift and
therefore hopefully less altercations. She did not have the ability to physically deal
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with an altercation after her accident or back up a co-worker during an altercation,
and the worker was of the opinion that this was a health and safety issue, not only
for herself, but also for her co-workers and any inmates who may be involved In
altercations with other inmates as she could not break up the fights.
Her job involved the potential to use force to control someone, to protect the public as
well as other inmates, and she was not able to do this on the job offered by the
employer after her injury.
The four dormitories each house 16 inmates and across the centre was a control
module and there was a u-shaped set of corridors with a clear line of sight down the
corridors. The night shift involved three staff with one at the control module and two
at the dormitories. Patrols were done every half hour and they went down the
corridors and had a clock that recorded that they had made the rounds, which was
similar to that of a night watchman. They would make rounds together and one
would go into the dormitories and one would wait outside for security reasons. This
was done in the dark with just the assistance of a small nightlight, and the worker
was in the corridors with the keys. There was a roster that showed her as going into
the actual dormitories, but this had to be changed every day so she did not go into the
dormitories because of her restrictions, but there was no manager on site after 11:00
p.m., and this was a problem for her as there was no manager to supervise the
changing of the roster, which became problematic with some of her co-workers.
If there was a problem in one of the dormitories, she would be expected to help deal
with it, but how she would deal with it was never resolved with management or co-
workers, as she was physically restricted. Her co-workers quickly became concerned
about whether or not it would be safe to work with her, because if there was a
problem or altercation, she would be told by management that she should lock the co-
worker into the dormitory with the inmate and push a blue button on the wall which
would summon assistance, however it would be approximately five minutes before
any help could arrive and during this time, the co-worker or the inmates involved
could be seriously injured or killed.
Her co-workers were afraid that they might be killed on the job because of her
inability to perform her own job properly, and the co-workers along with the worker,
went to management to express their concern, but nothing was done in this regard.
Statements on file from a co-worker confirm this situation.
The problem started immediately in July 1999 when she returned to her job from
union business, and these escalated to the point where staff refused to work with her.
These people were her friends and co-workers whom she had worked with during her
bargaining time with the union, and the management positions at the time were
temporary and the managers did not have training in dealing with these situations
and as such, nothing was done.
The worker was questioned as to why she did not work in the module on a full-time
basis and she indicated the module is very dark at night and she would be isolated in
the dark by herself and she could not do this due to her pre-existing depression.
By October 1999, a co-worker by the name of [M. M.] refused to work with the
worker, so people who were working could not go home and no-one else could take
their posts. The worker went in to the control module that day because no-one would
work with her, and the workers all did not want to work with her because the worker
was putting their lives in danger. The co-workers tried to get her out of the job
because she was a hazard for them to work with, and she was struggling to survive
and under much stress. The co-workers kept telling her that their kids would be
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orphans because of her and she agreed with them and tried to approach management
many times, but nothing was done and her calls were not returned.
She testified that by October 1999, she was falling apart physically and emotionally,
and she had been ten years of negotiating accommodations with the union but she
felt helpless and was unable to resolve this issue due to a lack of cooperation from
management. She was told that there was no place for her to move and she felt
powerless. She testified that by October 1999, her head was spinning and she did not
know what to do, and her initial agreement was that her accommodations would be
reviewed every two weeks after the return to work in July 1999, but from July 1999
until she went off work in December 1999, the accommodations were never reviewed.
She indicated that she also approached the claims adjudicator with her concerns and
this was actually done in person one day when the claims adjudicator was at the
union local, but nothing came out of this interaction.
The worker also provided testimony regarding a co-worker by the name of [S. H.],
and indicated he was quite hostile about doing her job. By this point, her pain had
been made extreme due to the stress and [S. H.] harassed her all night long on her
shift. By 3:00 a.m., her name was on the roster and she was approached by [S. H.]
and he refused to do the rounds for her, and she started to cry and sat in the office
and was extremely depressed and did not know if she should report [S. H.], who had
been her friend and co-worker in the past, or endanger the inmates by not having the
rounds done.
She indicated that at 3:20 a.m., she phoned the acting manager and reported that [S.
H.] would not do the rounds and the inmates had been left for an hour without any
checks. She testified she cried the entire round from 3:20 a.m. until 7:00 am, and
cried for almost three weeks after. Her last day at work was on this shift, which was
December 3, 1999, and she was in extreme pain due to her stress.
Nothing came of her complaints to management and she had significant financial
difficulties after stopping work and went on Employment Insurance benefits for four
months.
The worker admitted to approximately a 15 year pre-existing history of depression,
but also indicated that prior to the return to work in July 1999, she was fully
functional and was travelling around the province doing negotiations for the union,
and also chaired the bargaining team during a 22 month period, and her pre-existing
depression was manageable, and she was able to function on a full-time basis until
the return to work process resulting in unbearable stress.
When she returned to work in July 1999, she indicated that her physical restrictions
at the time were no pushing or pulling, no overhead work, no heavy weights and no
prolonged sitting or standing. She indicated that the job offered by the employer
clearly had the potential to violate all of these restrictions and if there was an
altercation with any of the inmates, her restrictions would be automatically violated
and her own life, as well as the lives of her co-workers and other inmates would be
put at risk due to her inability to react appropriately and this was too much for her to
bear.
The grievor acknowledged that all of this detail must have come from what she said
during the teleconference.
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[50] During his closing argument employer counsel submitted that the various union
representatives with whom the grievor had dealt concerning her WSIB claim were
aware of the factual basis for a grievance and could have filed a grievance much earlier.
In response, union counsel submitted, without elaboration, that it would not have been
obvious to the union representatives that the grievor had a “harassment” grievance,
and that in any event the union does not file a grievance for a member unless the
member asks it to do so. It might have been better if these assertions had been based on
testimony by the union representatives themselves. Nevertheless, accepting that the
union does not file a grievance for a member without being asked by the member to do
so, it is a reasonable inference that, likewise, it would not have represented a member
with respect to a WSIB claim without having been asked by the member to do so. If the
grievor could ask union representatives to pursue on her behalf a WSIB claim based on
facts common to this grievance, follow up with them to see what was being done about
the claim, work with a union representative to prepare for a hearing, and testify at that
hearing about events on which the grievance is now based, how can it be that she was
incapable, at those same times, of asking those same representatives to file a grievance
arising out of the same circumstances? The evidence did not provide a satisfactory
answer to that question.
[51] The grievor testified that shortly after the ARO decision was issued in June 2007
she told A. J. that she wanted to pursue a grievance, to which he replied that she had
suffered enough over the years, and asked “why don’t you let it go and get on with your
life?” She said that she told him she would think about that.
[52] The grievor did nothing more about filing a grievance until May 2009, nearly two
years after that conversation with A. J. Her explanation of the further delay is that she
was still dealing with her income tax situation – “trying to stay out of jail,” as she put it
– and that she had had limited room in her brain to deal with issues. She said that
when she was dealing with income tax issues she could not focus on anything else. She
stated that by late 2008 or early 2009, with the assistance of a well known tax return
preparation service, she had filed returns with respect to years up to and including
2007, and the CRA had backed off earlier threats of jail. In answer to union counsel’s
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question why she had been able to file the grievance in May 2009, she said that by then
“there was a little space in my brain.”
[53] In his closing argument, union counsel submitted that no negative inference
should be drawn from the absence of expert medical evidence, that none was required
since it was obvious from the grievor’s testimony about what she had gone through that
she suffered from a debilitating mental illness, and that it is entirely believable that
her doctors would have advised against grieving because of the effect it might have on
the grievor’s mental health.
[54] There is no doubt that the grievor was suffering from a debilitating mental
illness but, as I have said, that does not establish that the grievor was incapable of
asking the union to file a grievance – particularly not when she was pursuing, with the
union’s assistance, a WSIB claim based on many of the same facts. I do not find it
surprising that her doctors might have advised her against grieving, but I say that
without any confidence that they would have understood what was involved in grieving
and, particularly, the importance of expedition in filing a written grievance and what
filing a written grievance would have required of the grievor.
[55] The union’s particulars allege that the grievor “always had it in her mind to file
a grievance,” had “discussed the subject with almost all doctors” since December 1999,
and that they “all advised her that she could not handle the stress because of her
extreme mental fragility.” Paragraph 40 of the union’s particulars names 11 physicians
(including Dr. B. G.) and one psychologist who treated the grievor at various times in
the relevant period. If the advice her doctors allegedly gave her is part of her
explanation for her delay, then the weight to be given to that factor must depend on
whether there was an objectively reasonable medical basis for the alleged advice. None
of these health professionals testified about the grievor’s capacity to file a grievance
during the period when they treated her or the risk to her mental health that her doing
so might have caused. Had any of them so testified, employer counsel would have been
entitled to cross-examine on the basis for the opinion, explore the physician’s
understanding of what was involved in merely initiating a grievance, and challenge the
- 25 -
physician to take into account the fact that the grievor did pursue and participate in
various other applications and proceedings, including the WSIB proceeding in which
she took issue with employer conduct about which she claims she always had it in her
mind to grieve. In the absence of any suggestion that any of these health care
professionals was beyond the reach of a summons, it is reasonable to infer, as I do, that
their testimony would not have supported the position that the union has taken on the
grievor’s behalf concerning her mental illness.
[56] Given that the grievor was capable of asking the union to pursue her complaint
about her accommodation and her co-workers’ reactions to it as a WSIB proceeding, I
am not persuaded that the grievor was incapable of asking the union to pursue a
grievance arising out of those same circumstances, particularly when she had a copy of
the written grievance she wanted to pursue and notes of relevant events. I am not
persuaded that she was incapable of doing that in 2000. I am not persuaded that she
was incapable of doing it in 2005, when she was pressing the union representative to
get on with the WSIB appeal, nor in 2006, during her dealings with her union
representative concerning the WSIB hearing. She clearly was capable of doing it in
2007. She admits having done so then, and it appears that she chose not to press her
request when the union representative gently recommended against it.
[57] In short, I am persuaded that the grievor did not pursue the filing of her
grievance with the diligence that could reasonably have been expected of her despite
her mental illness.
Other Considerations
[58] Although the union has not established a reasonable explanation for the delay, I
must assess whether other considerations nevertheless provide reasonable grounds for
an extension, as indicated in the arbitral jurisprudence referred to in paragraph [12]
above.
[59] The delay in this case occurred at the outset of the grievance procedure, in the
initial filing stage. It is usually said that a delay at the initial stage weighs more
heavily against an exercise of discretion to extend time limits, all other things being
- 26 -
equal, than a delay at later stages of the grievance process, after a formal grievance has
been filed with the employer. Union counsel submitted that the rationale for this is that
in the absence of a grievance the employer would not be aware of, and have no reason to
investigate, the complaint on which the grievance is based, thus prejudicing its ability
to later defend an untimely grievance. Union counsel argued that that rationale does
not apply here, because the nature of the oral complaints that the employer admits the
grievor made was such that the employer was under a duty to investigate them even
though she had not filed a grievance. He cited B. L. v. Marineland of Canada Inc.,
[2005] O.H.R.T.D. No. 30, for the existence and scope of the duty to investigate, and
Ontario Public Service Employees Union v. Ontario (Ministry of Community and
Correctional Services) (Tardiel Grievance) [2010] O.G.S.B.A. No. 276, for its references
to it.
[60] Whether or not the oral complaints that the grievor made to the employer were
sufficient to trigger the duty contemplated by the Marineland decision, the assumed
fact that she made them does make this case different from one in which the complaint
on which an untimely grievance is based was never raised with the employer at all. On
those assumed facts, this is not a case in which the employer could credibly have said,
just before the time limit expired, that it had no reason to suppose the grievor might
grieve about how it had accommodated her physical disability or about the reactions of
co-workers that its accommodation engendered before she left the workplace on
December 3, 1999. Even so, the effect of the delay is obvious: the longer it went on the
less reason the employer had to suppose that it would have to defend a grievance based
on that complaint.
[61] Except to that extent, the submission with respect to the duty to investigate is
simply an elaboration on the merits of the grievance. The analytic assumption that the
grievance has merit cannot be used to justify ignoring either the breach of the time
limit or the possibility that there is a meritorious defence to the grievance, or might
have been had the grievance been initiated in a timely way.
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[62] Union counsel argued that the prejudice inherent in delay is reduced or
eliminated because the LTD application and the WSIB proceedings put the employer on
notice that there was a continuing complaint. Acknowledging that the WSIB would not
have been concerned with whether the employer was negligent or otherwise “at fault,”
he further submitted that the employer would be bound in these grievance proceedings
by the ARO’s findings with respect to the common factual foundation.
[63] The LTD application put the employer on notice of a claim that the grievor was
then too disabled to work. It was not notice that a complaint would be made in some
other forum that the disability was the fault of the employer.
[64] Although the WSIB proceedings were not concerned with employer fault in the
same way the grievance is, they did involve a complaint that the accommodation
provided had not been appropriate and had resulted in co-worker harassment that the
employer had failed to constrain and that that, in turn, had caused injury to the
grievor’s mental health.
[65] If, as union counsel also argued, the possibility of a grievance would not have
been obvious to union representatives handling the WSIB claim, I am not sure how I
can conclude that it would have been apparent to the employer from that same claim.
In any event, when and to the extent that the possibility of a grievance might have been
apparent to the employer from the allegations that were the basis of the WSIB claim, it
would have been equally apparent that while the grievor had taken steps to pursue the
matter as a WSIB claim, she had taken none (as far as it could be aware) to pursue it as
a grievance. The union’s having become involved in representing the grievor with
respect to the WSIB claim, without having also filed a grievance or even sought
agreement to an extension of the time to do so, would only have enhanced the
impression that the grievor and/or the union had decided not to pursue a grievance
based on the allegations on which the WSIB claim was based.
[66] The employer could reasonably have assumed – long before May 2009 and before
it had notice of the WSIB appeal in which it then chose not to participate – that any
thought the grievor might have had of pursuing her complaint as a grievance had been
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abandoned. Assuming, without deciding, that if the time for filing the grievance is
extended the employer would be precluded in the ensuing grievance proceedings from
disputing any of the findings made by the ARO in the WSIB appeal, I am not persuaded
that that can weigh in favour of granting an extension.
[67] Union counsel argued that labour relations considerations favour dealing with
disputes on their merits. I agree. But that is not the only labour relations consideration
relevant to assessing whether a missed collective agreement deadline should be
extended. Another such consideration is respect for the parties’ bargain and the shared
concern for expedition that that bargain reflects.
[68] As the Board said in Gamble:5
[27] It must be remembered that subsection 48(16) of the LRA identifies the
existence of reasonable grounds for an extension is a question distinct from whether
the opposite party would suffer substantial prejudice if an extension were granted. A
defaulting party who lacks a reasonable excuse for delay cannot claim the benefit of
the more liberal view of the reasonable grounds test, which treats the length of the
delay as a distinct consideration in assessing reasonable grounds, and then invite the
arbitrator or arbitration board to ignore the delay because it has not resulted in
specific, demonstrable prejudice to the opposite party’s ability to defend its position if
the grievance is allowed to proceed.
[28] The possibility that delay may have had more subtle prejudicial effects, effects
that may not be detectable or demonstrable, is one reason why the length of the delay
is an appropriate consideration in assessing whether there are “reasonable grounds”
for an extension, even when the respondent cannot demonstrate actual prejudice.
Another reason why delay should be treated as a consideration independent of any
demonstrable prejudicial effect is respect for the bargain the parties have struck. The
parties here have agreed that a discharge grievance must be filed within 10 days.
They made their intention that this be mandatory clear by their further agreement
that grievances not processed within the time prescribed are deemed to have been
withdrawn. Of course, they did this in the shadow of subsection 48(16) of the LRA,
the application of which they could have precluded but did not. There is nothing in
the subsection, however, that suggests that arbitrators are to entirely ignore parties’
agreement to specific time limits as a consideration in exercising the power
conferred, or that they are to proceed as though they were simply exercising the
discretion to dismiss for delay that they could have exercised if there had been no
such agreement.
[29] Even when the opposite party cannot demonstrate substantial consequent
prejudice, delay that is due to lack of due diligence on the part of the grievor or
someone acting on his or her behalf can be so extreme that the importance of a
discharge grievance will not be sufficient basis for using the power in subsection
48(16) of the LRA to override agreed-upon time limits for filing a grievance.
5
supra, fn. 2.
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[69] When the nature of the grievance is weighed as a consideration in matters of this
kind, the greatest weight is given to discharge grievances. The grievor was not
discharged. She remained an employee until she retired in 2011. Nevertheless, union
counsel argues that when considering this factor the grievance should be treated like a
discharge grievance, particularly as it raises issues of human rights. Assuming, without
deciding, that that is so, it does not tip the balance in favour of an extension. Even in
the case of discharge grievances, extensions are denied for delays of two years and less
in the absence of a reasonable explanation. Even ignoring the period 2001 through
2004, the length of the unexplained delay here is far greater than two years.
[70] For these reasons I have concluded that the time for filing this grievance should
not be extended. The grievance is therefore dismissed as untimely.
Dated at Toronto this 10th
day of February, 2012.
Owen V. Gray, Vice Chair