HomeMy WebLinkAbout2015-1330.Dubuc.24-07-22 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2015-1330
UNION# 2015-0453-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dubuc) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Bram Herlich Arbitrator
FOR THE UNION Wassim Garzouzi
Raven, Cameron, Ballantyne &
Yazbeck LLP
Counsel
FOR THE EMPLOYER Katie Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARINGS October 19, 2023 and March 19, 2024
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Decision
[1] I note, once again, the remarkable half-life of this matter, now on the docket
of the Grievance Settlement Board for the better part of a decade. The
grievor was discharged from his position of Fire Investigator, Office of the
Fire Marshall in May 2015. For many reasons (some undoubtedly more
compelling than others), these proceedings have been dramatically
protracted and remain incomplete. Indeed, even the instant decision will not
be a final one. This decision deals with preliminary motions advanced by the
employer. If these motions were to be granted in their entirety, it would result
in the dismissal of all of the union’s extant claims. However, as will be seen,
while I have determined that there is much merit to many parts of the
employer’s submissions, I have not accepted them all in their entirety and
thus there will be remaining issues that will have to be further litigated. This
decision will, however, provide some finality, at least to the extent that it will
dispose of all of the employer’s preliminary objections and thus offer some
measure of clarity as to the issues remaining to be litigated.
[2] My current task – the disposition of the employer’s preliminary motions – is
limited and circumscribed. It centers primarily on and flows from the
particulars filed by the union. There is now a small mountain of those
particulars, tended to and fed over the duration of these proceedings. And in
an unfortunate turn, this has resulted in a corresponding impressive
accumulation of written submissions (most of the employer’s submissions
were made in writing) from the employer.
[3] In order to appreciate the proper scope of what is and what will remain in
dispute following this award, it is necessary to consider the history of these
proceedings and the development of the union’s particulars.
[4] The trail of those particulars is lengthy and convoluted. Close to a decade
has elapsed since the grievance was filed, and during that period three
different union counsel have made their contributions. Unfortunately, rather
than narrowing and streamlining the union’s case, particularly where the
outstanding issues have diminished significantly in number, new particulars
have simply been piled up on top of old particulars, resulting in a
disproportionately high ratio of chaff to wheat. In fairness to current counsel,
some recent efforts were made to identify the essence of the union’s case.
Unfortunately, that did not occur until final argument and after employer
counsel had made their extensive written submissions.
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[5] As indicated, the discharge was effected in May 2015 and the grievance
which resulted in the proceedings before me, initially as a Vice-Chair of the
Grievance Settlement Board and, more recently, as a member of the Board’s
roster of arbitrators, was filed in the wake of the termination. The grievor had
close to 26 years of seniority at the time of his discharge. There is a single
grievance before me. It asserts that the discharge was without just cause and
that the grievor was subject to improper harassment and discrimination
contrary to the terms of the collective agreement and certain statutory
protections. Without necessarily limiting the parameters of the claim, the
grievance sought reinstatement and compensation, including a “make whole”
remedy. It also sought damages for harassment and discrimination; and for
defamation and loss of reputation.
[6] The parties and their then counsel (each party has had new counsel
retained/assigned twice over the years) first appeared before me in 2016. At
that time, they were able to agree on an interim without prejudice resolution
which saw the grievor returned to work on a temporary fixed term contract in
a position different from (but perhaps even more highly rated than) his former
one. Such a start might have been taken to portend an amicable and
sensible resolution to the matter, but time has erased any such optimism.
Some eight years later, while substantial progress has been made, the
matter is still not fully resolved.
[7] The first set of union particulars (hereinafter “Particulars #1”) was filed on or
about October 5, 2016. It comprised some 100 paragraphs and included
allegations of breaches of the collective agreement; the Occupational Health
and Safety Act; the French Language Services Act; and the Ontario Human
Rights Code. These particulars outlined a disparate set of events, some of
which dated as far back as 2010 or earlier. The parties appeared before me
on October 6 and 17, 2016, resulting in a decision dated November 2, 2016,
in which I determined (among other things) that, subject to an exception, no
evidence would be entertained in this matter that pertained to events which
occurred more than three years prior to the filing of the grievance. A brief
detour to outline the exception, which retains some relevance. It was
explained as follows at para. 19:
…In the course of the parties’ submissions on this issue, a number
of documents were filed: the 2009 OHSA complaint, the employer’s
response and further submissions by the grievor as well as the
settlement dated January 2012 and the prior grievance dated March
2010 as well the resulting settlement dated September 2011. These
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documents are now exhibits in these proceedings. They obviously
establish that prior complaints were filed, the nature of those
complaints and their resolution. In view of the settlements, however,
these documents establish nothing about the merits of the
complaints. However, to the extent the union (or the employer)
wishes to advert to or rely upon any or all of these documents, they
are free to do so.
[8] These documents are part of the record of proceedings in which the grievor
has been involved. They provide some independent context but do not here
give rise to any claims for relief in their own right. The union confirmed its
intention to refer to these documents, acknowledging that this would be in the
aid of context and not for the purpose of seeking any remedies tied to the
events which gave rise to the proceedings in question. Indeed, the union
referred to a further document which perhaps deserves a place in this small
and contained corner of our proceedings. The March 2010 grievance and the
September 2011 settlement thereof were punctuated by a decision of this
Board involving the same parties/grievor dated July 6, 2011 (2011 CanLII
49511 (ON GSB) (Abramsky)).
[9] That decision plays a dual role in our proceedings, straddling the line
between exhibit and authority. For it is undoubtedly part of the contextual
record, but the union relies on it as well for legal authority. In that case,
bearing some similarities to the instant one, the discipline that gave rise to
the grievance was rescinded, four days prior to the scheduled hearing. As we
shall soon see, in the current case the employer rescinded the grievor’s
termination during the course of these proceedings. In the earlier case, the
Board accepted that, insofar as it related to the discipline, the grievance was
moot. However, insofar as the grievance related to the union’s claim for
damages for loss of reputation and mental distress, the Board held the claim
was not moot. So apart from offering context, the union asserts that the
decision supports its view that the unilateral employer recission of the
termination and commitment to make the grievor whole in the instant case is
no bar to the union’s claim for other damages.
[10] The grievor’s temporary return to work ended in 2018 and the parties
directed more of their attention to the litigation. Over the ensuing years there
have been numerous hearing days, adjournments, delays, and decisions, all
punctuated by continuing efforts at resolution, some of which were, at least in
part, successful. There were other reasons for delay, but the pandemic was
chief among them – for a significant period, the union sought to adjourn
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scheduled hearing dates in the hope that in-person hearings would soon
resume (something which has yet to happen). The employer indulged the
union’s requests for adjournment, up to a point and, ultimately, virtual
hearings resumed.
[11] I return to the main narrative and the process of production of documents and
particulars. This process was less than expeditious, with delays exacerbated
by the necessary participation, from time to time, of third parties (such as the
Ontario Provincial Police and the Office of the Chief Coroner – the grievor
had been involved in the investigation of a fire which resulted in fatalities). By
August of 2018, while the parties were engaged in their sustained tussling
about production issues, it had emerged that the union was intent on
pursuing claims that the grievor had been defamed by the employer. By
decision dated August 7, 2018, certain directions were issued, including one
directing the union to file full particulars of any defamation claim. It did so, in
two batches, it filed Particulars #2 on August 31, 2018 and Particulars #3 on
September 14, 2018.
[12] Those particulars outlined seven discrete instances where it was asserted
that the employer had defamed the grievor. The employer moved that, in
respect of five of those instances, the union’s claim ought to be dismissed for
various reasons, including failure to establish a prima facie case, improper
expansion of the grievance, and the application of doctrines of privilege. The
parties argued the matter before me and, in a decision dated December 7,
2018, I granted the employer’s motion in its entirety. Thus, subsequent to that
decision, only two of the union’s seven identified instances of alleged
defamation remained to be determined.
[13] From December 2018 until February 2022 much and little transpired. Some
14 further hearing days preceded the pandemic. Scheduled hearing dates
were adjourned on consent during the pandemic until January 2021 when the
parties returned to virtual hearings. Many days were scheduled over the
course of 2021; some of that hearing time was devoted to the pursuit of
negotiated resolutions. No settlement was reached.
[14] The most significant development occurred in July 2022, when the employer
advised the grievor that it was rescinding his termination letter and reinstating
him to his former position and that it intended to reimburse him for all lost
wages back to the date of his termination. That development, along with
ensuing discussions between the parties, resulted in a decision dated
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February 28, 2022, in which I found that the employer did not have just cause
to terminate the grievor. The employer was ordered to pay lost wages to the
grievor in an amount to which the parties had already agreed. The decision
also recognized that there might still be remaining disputes between the
parties with respect to claims for additional compensation or other matters
arising from the reinstatement. The union was directed to identify and
particularize any such remaining issues, to create closure on the scope of
remaining disputes.
[15] There was, however, one residual exception to that order. This exception
gave rise to a further litigation detour – the union had sought production of
further documents and, pending that production, reserved the right to file
further particulars. The employer resisted the production request and so the
union sought a production order. That request was the subject of a hearing,
and, by decision dated February 5, 2024, the request was denied. In the
wake of that decision some clarity emerged, or ought to have, with respect to
the precise nature of the union’s claims as evidenced by the lengthy and
numerous sets of particulars that had been filed over the years.
[16] As indicated, prior to the litigation detour just described, the union had been
directed to identify and particularize its case with respect to all issues
remaining in dispute. By letter dated March 18, 2022, it filed Particulars #4.
Again, a little context is required.
[17] When the grievance was filed (some nine years ago) it comprised, broadly
speaking, two major components. The first can be described as a
conventional grievance alleging discharge without just cause, seeking all the
typical remedies: reinstatement with full compensation for lost salary, benefits
and seniority. The second cluster of claims, which the union had referred to
as its “positive allegations” sprung, once again broadly speaking, from union
claims that the grievor’s termination was improper not merely because it was
without just cause, but because it was otherwise improperly motivated and
caused harm to the grievor beyond the immediate economic harm that
results from the loss of employment.
[18] The order that the union clarify the remaining issues in dispute was part of a
brief decision in which I found that the Employer did not have just cause to
terminate the grievor. Leading up to that decision, the employer had already
(in July 2022) unilaterally rescinded the Grievor’s termination, reinstated him
in his former position and committed to paying him his lost wages as well as
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restoring his employment credits. The parties subsequently (and prior to my
issuing the award just referred to) agreed on the quantum thus owing to the
grievor, thereby disposing of all claims arising under what I have described
as the conventional side of the grievance (the only exception was in relation
to a claim for interest, an issue which was subsequently resolved by decision
dated February 23, 2023). Thus, the only issues remaining in dispute are
those which fall under the general heading of the ”positive allegations”,
including the general claim that his termination caused the grievor harm
beyond the questions of pure economic loss which have been resolved. I
note, of course, that the positive allegations are ones, unlike the conventional
unjust discharge claim, in which the burden of proof is on the union.
[19] In March 2022 when the union, by way of Particulars #4, enumerated the
outstanding claims, four broad areas of such claims were identified as
follows:
A. Interest owed to Mr. DUBUC
(as noted, this issue has now been resolved)
B. Health and Safety and Human Rights Violations
C. Allegations of Harassment
D. Defamation
[20] One might have expected that, in the wake of the complete disposition of all
the conventional aspects of the grievance, the only issues that would remain
would be those that fell within the “positive allegations”. At first blush,
considering the categories identified (above) by the union (including the
resolution of the issue of interest owed), it would seem that the union’s
submissions conform to that expectation. However, one might have also
taken the decision as creating an opportunity for the union, in identifying any
issues that remained in dispute, to narrow both the number and scope of any
such issues, not an opportunity to raise new issues.
[21] But in its extensive (14 pages) submissions the union appears to have added
new particulars, while confirming and reserving its right to refer to and rely
upon previously filed particulars. The union did acknowledge that the prior
decision in this matter resulted in the dismissal of much of the defamation
claim as well as disposing of claims the employer had asserted amounted to
an improper expansion of the grievance. The practical consequences of that
were not, however, crystal clear. The union asserted that certain particulars
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pointed to in support of the defamation claim could still be relied upon in
advancing other claims the union is pursuing. However, the union did not
explicitly identify which particulars previously filed in support of the dismissed
portions of its defamation claim were to be relied upon in support of which
extant branch of the union’s case. In any event, as the union chose not to
edit or consolidate its particulars, we were left, as of the most recent union
filing, with our small mountain of accumulated materials - four different sets of
particulars, a total approaching some 250 paragraphs.
[22] On agreement of the parties and given the apparent finality of the union’s
pleadings, the employer was directed to provide the union with submissions
outlining any preliminary issues it might raise.
[23] The employer did so, by letter dated August 31, 2022. Whether concerned,
impressed or distressed by the small mountain of materials the union’s filings
had become, the employer chose to respond in elaborate and exhaustive
detail, in some 30 pages of submissions enumerating multiple bases upon
which any and all of the union’s particulars and the claims they represent
ought to be dismissed. I will return to some of the themes sounded therein
[24] With notice of the employer’s intent to move to dismiss the union’s case
without hearing any further evidence, the parties were prepared to appear
before me to make their submissions in that regard.
[25] Hearing dates had already been scheduled and in order to, among other
things, ensure that all submissions on the employer’s preliminary motions
could be completed within the scheduled hearing dates, the parties agreed to
an unusual process to complete their submissions. The employer prepared
and filed its written submissions in respect of its motions in advance of the
hearing and the two remaining scheduled hearing days were set to receive
the union’s oral submissions in response and the employer’s reply thereto.
Ultimately, the parties were able to complete both of those in a single hearing
day.
[26] Over the course of the years in which this matter has unfolded, there have
been few moments that might be described as offering dramatic
developments. No doubt, chief among them would be the employer’s
unilateral determination to rescind the grievor’s termination. But while
perhaps of a different order, there was no lack of resulting drama in the
union’s oral response to the employer’s written submissions.
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[27] It will be recalled that, in August 2022, the employer, in providing notice of
the preliminary issues it intended to raise (the “notice”), filed a detailed and
exhaustive document outlining the (frequently multiple) reasons why it
asserted each paragraph of the union’s particulars was problematic. The
document was largely organized around the four sets of particulars the union
had filed.
[28] Prior to the last day of hearing (March 19, 2024), the employer filed its written
submissions in support of its motions ultimately seeking the dismissal of any
remaining union claims. This document was at least as detailed and
comprehensive as the notice had been. It, of course, traversed the same
territory as the notice had, but incorporated detailed legal submissions. As a
result, it was more than double the number of pages compared to the notice.
And, unlike the notice, it was organized strictly by legal themes. The
combined effect of the two documents was as if the entire territory had been
covered once and then again, using a second different tool, to ensure no
unturned stones had been left behind.
[29] By contrast, the submissions of the union were to the point and laser
focused. They did not, however, respond in any detail or specificity to the
attack on the particulars mounted by the employer. Indeed, the overwhelming
portion of the union’s submissions focused on the letter of termination itself
and the terms of the grievance, adverting to many facts that were not or no
longer are in dispute, essentially cataloguing the allegations that had been
leveled against the grievor at the time of his termination, allegations that the
employer, in rescinding the termination, has [at least arguably] acknowledged
were without foundation.
[30] The union also makes much, both factually and legally, of the narrative
captured in the Abramsky award between these same parties (cited earlier).
While there is some merit to those submissions, I am not persuaded that this
captures the significance the union accords. In both cases, the employer
opted, in the face of a union challenge to the imposition of discipline, to
rescind that discipline. In the former case (which involved a letter of
reprimand), when the union (as it does here) argued that the grievor suffered
harm beyond the actual imposition of discipline, the employer (as it does not
do here) argued the matter was moot. The Board rejected that position and
permitted the union to advance its claim for damages.
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[31] But, on the legal side, the Board was never required to rule on the merits of
the union’s claim; the parties settled the matter. Thus, the Board in that case
appears to have ruled on a question not before me and not ruled on one that
may be. The employer before me is in full supply of arguments to support a
preliminary dismissal of the union’s extant claims. Among those, however, is
not any assertion that the union’s damage claims are moot. Indeed, in its
reply to the union, the employer confirmed that it was advancing no such
position. Thus, this is a question I need not decide. On the other hand, the
parties’ settlement in the earlier case meant that it was unnecessary for the
Board to offer any legal guidance or decision of precedential value with
respect to a claim of reputational harm before this Board, an issue which may
be before me.
[32] In fairness to the union, however, its reliance on this decision may be in
support of nothing more than the limited claim that the employer having
rescinded his termination has not thereby fully extinguished the grievor’s
claim for other damages (i.e. beyond simple economic loss). Whether or not
such claims are ultimately successful, they ought not to be dismissed at this
stage, before the Board has had the opportunity to consider them in their full
evidentiary context.
[33] On the factual side, there is certainly a limited surface similarity (discipline
imposed, then rescinded, following the filing of a grievance) in the facts
before arbitrator Abramsky and those before me. Whether these two
instances are merely coincidental or whether they can (alone or in
conjunction with other evidence) be said to constitute a problematic pattern of
employer conduct is a matter best left to a determination based on the
evidence, not the pleadings.
[34] The employer contended that the union ought not be permitted to advance
any claim of bad faith because it had not made any such timely allegation.
[35] It must be repeated that, as all aspects of what I have described as the
“conventional” side of the grievance have been resolved, we are now dealing
only with the union’s “positive allegations”, i.e. allegations which directly
impugn the employer’s conduct quite apart from the “just cause” issue,
allegations in which the onus of proof falls to the union, Yet the union
appears to be of the view that nefarious employer motives can be inferred
even from the termination letter and the grievance form, perhaps in
combination with some other evidence from the grievor. While one may have
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reservations about the prospect of success, I am satisfied that the union
ought to be accorded that opportunity. And neither am I moved by any
employer assertion that the claim of bad-faith is untimely raised. Employer
motive has been in the union’s crosshairs from day one.
[36] In respect of the claim of bad faith, the union is not raising or pointing to any
new facts not previously particularized. Indeed, as just recounted, the union
is of the view that it could rest such claim almost exclusively on the
termination letter, the grievance, and a prior award in this matter. I also note
that the cumulative collection of allegations (some still live, others now fallen
by the wayside), including alleged health and safety transgressions,
discrimination, harassment and defamation are such that no surprise arises
in response to a challenge to employer motives. Again, whether or not the
case the union wishes to advance stands great chance of success, I do not
accept that the opportunity to advance it ought to be denied.
[37] The balance of the union’s submissions was largely generic in nature. No
time was spent dissecting and analyzing the specific character of particulars
in the context of the employer’s submissions. The union did, however, file a
document in which it highlighted the specific particulars it claimed provided
examples of harm caused the grievor by the employer’s conduct. This
narrowing of the relevant particulars upon which the union intended to rely
had a salutary effect on the scope of the proceedings. As I have indicated, it
is unfortunate that this did not occur until after the employer had concluded
its submissions.
[38] In the context of the peculiar architecture of advocacy the parties have
chosen, my task is somewhat simplified. The employer challenged every one
of some 40 pages of particulars filed by the union. In its response, the union
significantly reduced the volume of its particulars, identifying those upon
which it continued to rely. In that context, I need only consider those latter
particulars, a task to which I shall turn shortly.
[39] Before doing so, however, I will turn to some of the legal themes identified by
the employer, as I have found many of these compelling and will rely on them
in the consideration of the union’s remaining claims.
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The Three-Year Limit on Evidence
[40] In my decision dated November 2, 2016 in this matter, I ruled (at paragraph
16) that events to be the subject of evidence would be restricted to those that
occurred not more than three years prior to the filing of the grievance.
[41] The employer, in its latest written submissions, has identified instances
where portions of the union’s particulars refer to events which pre-date the
limitation referred to in the previous paragraph. I was not provided with any
basis or reason to support a late departure from the ruling issued well over
seven years ago. I will not do so. We will not hear evidence in respect of any
events which pre-date the filing of the grievance by more than three years.
[42] The ruling was and continues to be subject to an exception, as outlined
above. To be clear, the “exception” relates to documents that have already
been marked in evidence (with the addition of the recent decision of this
Board (differently constituted), a decision I have earlier described as part
exhibit, part legal authority). These documents, although they pertain to two
sets of events that date back as far as 2009, are documents which relate to
the “record” of prior proceedings initiated by the grievor or the union on his
behalf. Both sets of events culminated in settlements. The parties are free to
refer to these documents as part of the context for the grievor’s instant
complaint. To be clear, however, we will not hear any other evidence
pertaining to these events and neither should I be asked to make any
findings as to the veracity of the allegations that had been advanced or draw
any conclusions as to the merits of the claims that were settled. The “record”
has been filed in evidence; we will not go behind it
Fresh particulars
[43] In the context of a grievance filed some nine years ago, the phrase “fresh
particulars” is somewhat discordant. At this stage there is little that is any
longer fresh.
[44] The employer asserts that parts of the union’s more recent Particulars #4
improperly raised new issues supported by new particularized allegations. I
agree.
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[45] In my decision of February 28, 2022, I found that the employer did not have
just cause to terminate the Grievor. I did not order his reinstatement – that
was unnecessary as he had already previously been reinstated voluntarily by
the employer. I ordered the employer to pay compensation to the grievor for
lost wages in an amount the parties had already agreed upon. Despite the
apparent resulting resolution of all claims related to the reinstatement and
compensation owing for economic loss (save the claim for interest, which
was subsequently also resolved), I noted as follows in my decision (at para.
3):
Despite reaching agreement on the above-noted amount, I
understand there may still be disputes between the Parties with
respect to claims for additional compensation or other issues that
arise from the reinstatement of the Grievor.
[46] I went on to identify a residual route to possible further production by the
employer and the possible subsequent filing of further particulars by the
union. That route, however, was subsequently foreclosed by my decision
dated February 5, 2024 in which I dismissed the union’s request for further
production. I then went on (in the 2022 decision at para 5) to direct as
follows:
… the Grievor and the Union are ordered to identify and
particularize all such issues within fourteen (14) days of this
decision. Should any issue not be identified within this timeframe,
the Grievor and the Union will not be able to raise any such claim
in any subsequent hearing dates.
[47] The fourteen-day time limit was extended on agreement of the parties. The
union filed its particulars within the extended time limit on or about March 18,
2022. It is in respect of this filing that the employer now contends that the
Union has improperly raised new allegations. I will explain briefly why it is
that I have concluded that this objection must be upheld.
[48] The union appears to have taken the direction reproduced above as an
invitation or license to file new, enlarged, or significantly amended particulars.
It was no such thing. Even before the March 2022 particulars the parameters
of the union’s grievance had been impressively broad. But by the time of the
February 2022 decision and direction the borders of the litigation appeared to
have significantly narrowed. All the issues (both with respect to liability and
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remedy) related to the conventional discharge grievance (save the interest
claim, which was later also resolved) had been determined. All that remained
was what we have described as the union’s positive allegations, i.e. asserted
breaches of employment legislation as well as a claim for damages for
defamation. And in respect of the latter claim, most, though not all, of that
claim had already been dismissed by virtue of the success of the employer’s
earlier preliminary motion (see the decision dated December 7, 2018).
[49] The direction to identify and particularize any remaining disputes with respect
to claims for additional compensation was an opportunity to edit and
consolidate the existing particulars, having regard to the number of issues
that had been resolved. It was an opportunity to narrow, not expand, the
litigation.
[50] To have taken an order issued in February 2022 as an invitation or license to
file fresh particulars about events which transpired some seven to ten years
earlier was misguided. Any such particulars are to be struck and no evidence
will be heard in support of them.
Defamation
[51] With respect to this aspect of the union’s claim. I find difficulties with the
approach of both parties.
[52] As a result of employer urgings, the union was required to particularize its
claims with respect to alleged defamation. It did so in two separate filings in
August and September 2018. The employer then raised several preliminary
objections to some of the allegations. The matter went to hearing and, in a
decision, dated December 7, 2018, I upheld all of the employer’s objections.
[53] As a result of that award (and as correctly noted by the union in its
submissions of March 18, 2022) the particulars that remained from the
original filings related to defamation claims were as follows:
1. From Particulars #2:
a) Paragraphs 1-9
b) Paragraph 12
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c) Paragraph 14
d) Paragraphs 27-35
2. From Particulars #3:
a) Paragraphs 1-8
[54] I note that with respect to 1(a) and 1(d), the employer had indicated that as
these paragraphs did not contain any specific allegations of defamation, it
was not objecting to their inclusion. However, with respect to 1(b), 1(c) and
2(a), although it raised no objection to the inclusion of these paragraphs, the
employer signaled its intention to lead evidence and raise defences to these
allegations. I note, as well, that the eight paragraphs of 2(a) replicate and
expand upon the single paragraphs of 1(a) and 1(b). Thus, as the other
remaining paragraphs (1(a) and 1(d)) are more by way of background, the
heart of the defamation case is restricted to the 8 paragraphs found in 2(b).
[55] But the employer and the union now seek to further restrict or expand that
limited focus.
[56] The union in its March 2022 submissions indicated its continued reliance on
the defamation particulars that had survived the employer’s earlier motion. It
then purported to add further particulars (in its paragraphs 31-36). There is
no lack of reasons to bar any further consideration of these paragraphs in the
litigation of this matter, including whether they make out a prima facie case
and the fact that the union, more recently, has indicated a lack of intention to
rely on some of these paragraphs. But for our current purposes I need only
reference the considerations set out in the previous section of this award. I
will not permit the union, in 2022, or now, to make fresh allegations and/or file
fresh particulars of events that date back some eight years, certainly not
without some cogent and compelling explanation of why a more timely
disclosure was not possible, and none has been provided.
[57] For its part, the employer now asks that all of the remaining defamation
allegations be dismissed because, among other things, they fail to make out
a prima facie case. Our primary focus here is on the eight paragraphs
identified earlier. These are among the paragraphs in respect of which the
employer chose not to file any objections while it was objecting to all of the
others. These are the paragraphs in respect of which the employer indicated
it would call evidence and marshal defences. I am not inclined to provide the
employer a second chance, four years after it explicitly declined the
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opportunity. Should the union so choose, the issue of alleged defamation
may proceed with respect to those portions of the union’s initial particulars to
the extent they have survived the employer’s earlier preliminary objection.
Events which post-date the filing of the grievance
[58] In its written submissions, the employer objected to the inclusion, in the
union’s most recent particulars, of allegations related to events which post-
dated the grievance (the employer pointed specifically to Pdf pp. 143 and 149
paras. 25 and 35 of Particulars #4.) Both paragraphs refer (in varying and
different ways) to events which post-date the grievance.
[59] There are multiple reasons why these specific allegations will not be
considered, even beyond the considerations relating to fresh particulars set
out above. I will not catalogue them all.
[60] In my decision dated December 7, 2018, I concluded that certain allegations
related to events that transpired subsequent to the filing of the grievance
amounted to an improper expansion thereof.
[61] And in my decision dated February 5, 2024 in this matter, I also had occasion
to consider (in the context of a production request) to what extent post-
grievance events should be included in the grievance litigation. I am satisfied,
for the reasons discussed therein, that we ought to be extremely cautious
and reticent to expand the parameters of the litigation in this case, given the
significant passage of time and the fact that issues relating to the grievor’s
employment status have now been fully resolved.
[62] In the case of para 25, I note that, quite apart from any timing issues, these
allegations pertain to the very reports that I declined to order produced to the
union and which I ruled would not form part of the subject of the litigation. In
the case of Para 35, the allegations relate to events which transpired some
two years after the grievance was filed.
[63] As a general proposition, the filing of a grievance does not generate a
dynamic canvass to which all future grievor complaints can be added in
perpetuity. While this broad proposition can certainly be subject to
exceptions, no reason for such exceptions were proffered and neither am I
able to see any. The two specific paragraphs identified by the employer will
not be added to our litigation agenda and, as a general proposition, the
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temporal parameters of our litigation will be restricted to the period dating
back three years from the filing of the grievance.
The Remains of the Particulars
[64] It is the fate of the defamation related particulars which is simplest and most
clear. Particulars #2 and Particulars #3 were devoted solely to the
defamation issue. The portions of the particulars which remain are those set
out above at para. 54 . The union will not be permitted to add to these
particulars, and neither will the employer now be permitted to raise
preliminary issues in respect of allegations it had previously indicated would
be the subject of its evidence, should it ultimately choose to call any.
[65] With those sets of particulars disposed of, the others can be considered.
While I have indicated my general concurrence with some of the themes just
identified, their strict application might lead to precipitous results. For
example, a flat prohibition on “fresh particulars” might lead to the conclusion
that nothing in Particulars #4 is appropriate save those portions which
explicitly reference or incorporate previously filed particulars, a result which
may not always be appropriate.
[66] Recalling what I have described as the peculiar architecture of advocacy that
embraced the proceedings, I proceed as follows. The employer has raised
frequently multiple objections to each and every particular filed by the union.
The union has not responded with an intricate detail by detail analysis of the
particulars. It did, however, highlight certain portions of the particulars and,
consistent with my earlier description of its final submissions, clarified that its
case will focus on the following:
The investigation in 2012;
The grievor’s removal from the investigation;
The grievor’s discussion with the OPP;
The grievor’s suspension meeting;
The lengthy investigation;
The termination;
The impact of the termination on The grievor’s health,
and his reputation – coming from a small Francophone
community.
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[67] This focus is clearly tied to events directly related or adjacent to the
termination as well as evidence (perhaps from the grievor himself) in support
of the claim that the circumstances of his termination warrant additional
compensation.
[68] But while that focus is certainly narrower than the full particulars might
suggest, the specific portions of those particulars identified by the union
evince a broader scope.
[69] As a result, I will briefly review the (more limited number of) particulars
identified by the union in the context of the general themes sounded by the
employer in its objections.
Particulars #1
[70] This set of particulars has a curious paragraph numbering system. Following
the first 61 paragraphs (none of which were identified by the union as central
to its case) the paragraph numbers restart with a second paragraph three
and continue on to conclude at paragraph 50. Within this second set of
paragraphs, the union has identified a number which it says are important to
its case. (These are found at pages 42-43 and 46-51 of the pdf document
filed by the parties and include paragraphs 4, 5, 7, 22, 23, 24, 25, 33, 24, 36,
37, 40, 42 and 45.)
[71] These particulars fall under the general heading of allegations of “Breaches
of the French Language Services Act (“FLSA”) and the Ontario Human
Rights Code (the “Code”)”. While I am mindful of the employer’s submissions
that this Board is not charged with the enforcement of the FLSA, I am not
persuaded that is a sufficient basis upon which consideration of these
allegations ought to be precluded. Whether as a matter of assessing
employer motive or, perhaps more importantly, in determining any breach of
the Code, I am satisfied the union ought to be permitted to pursue this aspect
of its case, should it so choose. While I do share some of the misgivings
expressed by the employer regarding the strength of the union’s case on this
point, I am content to make my decision on the basis of the evidence rather
than the pleadings.
[72] I do note, however, that paragraph 40 refers to events which occurred more
than three years prior to the filing of the grievance and that paragraphs 25
and 42 are more in the nature of legal conclusions than factual assertions.
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Particulars #4
[73] I have already expressed some support for the view that the direction to file
what has become Particulars #4 ought not to have been taken as an
invitation to file new allegations not previously particularized. I continue to
endorse that as a general proposition. However, in the particular
circumstances of the instant case, the union has clarified that it will be
pointing primarily, if not exclusively, at the way the termination was effected,
including the employer’s handling of events which arose from and gave rise
to its concerns and culminated in the termination. Many of those events may
now be devoid of factual controversy and it has now been found that the
employer did not have just cause to effect the grievor’s termination. What
may remain to be determined is not whether the employer had just cause to
effect the termination, but rather whether some improper motive was at play
in the employer’s decision making. The union may ask that such improper
motive is to be inferred from the collection of events to which it points.
Finding improper motive in the absence of direct evidence and on the basis
of inference can be a difficult result for any advocate to achieve. I am
satisfied, however, that such an opportunity ought to be afforded and that,
again, a final determination should be made based on all the evidence.
[74] In that context, I have come to the following conclusions regarding Particulars
#4 (and the paragraphs thereof that the union has identified as critical to its
case):
• Para 12 and 13: These paragraphs are essentially legal
conclusion/argument and add nothing to the factual allegations
(though the grievor may choose to testify as to the impact of the
employer’s actions on him).
• Para 14: This paragraph goes to the way the termination was
effected and can be referred to in evidence.
• Para 15: This paragraph is aimed principally at allegations of
defamation and reputational harm and is beyond the now closed
parameters of such claims.
• Para 16 and 17: To the extent that these paragraphs go to the
circumstances and manner of effecting the termination (but not to
claims of defamation), they may be the subject of evidence.
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• Paras. 18-23: These paragraphs are aimed principally at
allegations of defamation and reputational harm and are beyond
the now closed parameters of such claims.
• Para. 24 This paragraph relates to the way the
suspension/termination was effected and may be the subject of
evidence.
• Para 25 This paragraph relates to events which post-date the
termination and, more significantly, involves allegations related to
reports which have already been ruled to be outside the scope of
the present case.
• Para 26 This paragraph is aimed principally at allegations of
defamation and reputational harm and is beyond the now closed
parameters of such claims.
• Para 27 The grievor may testify as to the effect his termination
had on him (apart from any claims related to alleged reputational
harm beyond the scope of these proceedings) or the impact of
the investigation reports referred to in this paragraph.
• Paras 28-30 These paragraphs essentially reproduce those
portions of Particulars #2 and #3 which remain to be litigated.
• Paras 33 and 34 These paragraphs are aimed principally at
allegations of defamation and reputational harm and are beyond
the now closed parameters of such claims.
• Paras 35 and 36 relate to events which significantly post-date the
filing of the grievance and will not be permitted to be the subject
of evidence.
Conclusion
[75] The combined effect of the employer’s preliminary motions, the union’s
narrowing of its case and my conclusions herein have served to significantly
narrow the parameters of the matters remaining to be litigated. While I have
accepted many of its submissions, the employer has not succeeded in
persuading me that all outstanding claims ought to be dismissed without the
need for a hearing.
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[76] This case may now proceed to hearing on the dates already scheduled.
[77] Based on its submissions, it is my expectation that the union will present brief
evidence within the parameters of this award, perhaps limited to the
testimony of the grievor. Once that is completed and barring any employer
election to call further evidence, the matter may proceed to final argument.
[78] Should there be any disagreements with respect to the application of the
terms of this award, they may be dealt with at the hearing.
[79] The instant decision is being released simultaneously in English and French.
Neither version is the official version, both should be considered to be
equally authoritative. In view of this, I will remain seized for a period of 30
days (and thereafter to deal with any issues the parties may raise within
those 30 days) regarding any issues of linguistic compatibility and
synchronization as between the two versions.
Dated at Toronto, Ontario this 22nd day of July 2024.
“Bram Herlich”
Bram Herlich, Arbitrator