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HomeMy WebLinkAbout2013-1029.Cross et al.15-08-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1029 UNION#2012-0616-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cross et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel HEARING April 28, July 14, 2015 - 2 - Decision [1] On or about June 21, 2012, the Union filed a group grievance on behalf of seven female Correctional Officers who work at the North Bay Jail. The Grievance claims that the Employer violated Articles 2, 3, and 9 of the Collective Agreement, as well as other legislation including the Human Rights Code, and policies, particularly the one respecting Workplace Discrimination and Harassment Prevention (“WDHP”). The grievors claim that because they are female correctional officers, they were treated differently than their male counterparts. By way of redress the group is seeking to have the Employer abide by the collective agreement, its policies and applicable legislation; to stop bullying the grievors; to treat them equally, and “full redress”, which includes general damages to each grievor. [2] The grievors’ complaints regard how they were individually treated by Doug Barker, who was Deputy Superintendent and later Superintendent of the North Bay Jail (“NBJ”) at the time periods relevant to their respective allegations, which span 2010 to 2012. They claim that Barker harassed and bullied them, and poisoned the workplace for them. The grievors also take issue with the alleged inaction of other members of management and jail administration, who they claim were complicit in Barker’s conduct, or who they claim in some cases bullied and harassed the grievors themselves. Barker was moved from the NBJ in the fall of 2012. [3] This decision addresses a number of preliminary motions brought by the parties. UNION’S PRODUCTION REQUEST [4] On the first day of hearing the Union made a motion for production of two sets of documents, and wanted that production to be made in advance of the Board addressing preliminary objections the Employer intended to make. Having heard the parties’ arguments, I ruled orally on denying the Union’s motion. These are my reasons. [5] The Union was seeking production of an investigation report and underlying documents relating to an investigation or fact-finding undertaken by Daryl Pitfield in or around October 2012, and a second investigation report, with its underlying documents, relating to another investigation or fact-finding undertaken by Gary Hogarth in November 2012. The Union was also seeking all interview notes, emails, memoranda or correspondence, and any and all documents viewed or generated as part of the investigations or fact-findings. [6] According to the Union, these documents were arguably relevant to the Employers’ preliminary motions, which were going to relate to the timeliness of the grievors’ particulars; that some of the grievors’ particulars did not make out a prima facie case; and, that some of the grievors’ particulars were inarbitrable because they had filed and settled prior grievances on the same matters. The Union argued that since one of its allegations is that the Employer response to the complaints was lackluster, therefore it is relevant how long it took for the investigations to be held and action to be taken to remove Barker from the facility. It also argued that when he was - 3 - moved, Barker went to a position in which he had more authority and power. Therefore, in its view, the results of the investigation are relevant to the merits of the case. [7] Secondly, the Union argued that since the Employer will be arguing that some grievors had previous grievances which they settled, the investigation reports might shed some light on what the parties agreed to settle. [8] The Employer position was that disclosure was not warranted at this juncture, but that once its preliminary motions have been dealt with, it would become more clear what production needed to be made. It was not opposed to producing documents that would be relevant, but argued that the Union has to establish that it has a prima facie case before the Employer should have to produce documents. I note for the record the Employer’s commitment to provide disclosure after a decision issues on the preliminary motions. [9] According to the Employer, the grievors have had ample opportunity to produce particulars of their individual claims, and that seeking disclosure of the investigation reports is akin to a fishing expedition to try to supplement their respective claims. [10] The Union relied on Ontario (Ministry of Environment) and OPSEU (Madan) 227 L.A.C. (4th) 263 (2012, M.V. Watters), for the proposition that the Board should order production of the investigation reports. However, I did not find that decision to be of much assistance to me in my consideration of this motion as in Madan the Board was dealing with a production request that was made after two days of hearing on the merits had already been held. In that instance Vice Chair Watters found that the documents sought were arguably relevant to the issues that had been raised by the grievor in that proceeding. Simply put, in that instance the issues before the adjudicator had already crystallized, making it clear why the union’s production request should be granted. In the case before me, the issues have not crystallized at this point as the Employer is arguing that some of the Union’s pleadings do not make out a case for the breaches alleged; or should be struck because earlier grievances have been settled on the same issue; or that some are untimely. [11] Nonetheless, the factors to be considered when assessing a request for disclosure were outlined in Madan as follows, and were of assistance in my consideration of this matter (at p. 270): 10. The award in West Park Hospital [(1993), 37 L.A.C. (4th) 160] sets out the following factors which must be considered when a request for disclosure is contested: 1. the information requested must be arguably relevant; 2. the requested information must be particularized so there is no dispute as to what is desired; 3. the decision-maker should be satisfied that the information is not being requested as a “fishing expedition”; 4. there must be a clear nexus between the information being requested and the positions in dispute at the hearing; and, 5. the decision-maker should be satisfied that disclosure will not cause undue prejudice. - 4 - [12] In Re Hotel Dieu Grace Hospital and Ontario Nurses’ Association (Thompson) (2008) 178 L.A.C. (4th) 319, Arbitrator Brandt applied the West Park test outlined above, and stated as follows in respect of how the test should be applied (at p. 327): The key starting point in applying the test is the definition of the “issue” that has been put to the arbitrator for decision. Once that has been determined a production order may be issued in respect of documents that are “arguably relevant” to a determination of that issue. [13] In the case before me, as has been outlined, the issues had not yet been defined as the Employer’s preliminary motions had not yet been argued. The Union was seeking production of documents prior to those motions being heard. It was therefore difficult to determine whether the documents were arguably relevant at that juncture. [14] In OPSEU (Eagles) and Ministry of Finance, 2014 CanLII 69977 (ON GSB)(Petryshen), the GSB addressed a situation much like the one before me. In that instance the Vice Chair noted that it was evident that the union and grievors had expended a considerable amount of time and effort on providing the employer with particulars. However, the union was seeking disclosure of documents before the employer made its “no prima facie case” motion. Based on the GSB’s jurisprudence, Vice Chair Petryshen noted at para. 7 of the decision that: 7. …the purpose of disclosure is to allow a party to prepare its case. This proceeding is not at the stage yet where each side is preparing for the hearing on the merits. The Employer intends to argue in fact that the Union has not made out a case of a Collective Agreement violation in its particulars. With these considerations in mind, I am not inclined in these circumstances to direct the Employer to comply with the Union’s disclosure request at this stage of the proceeding. [15] Similarly, in OPSEU (Union grievance) and Ministry of Community Safety and Correctional Services, 2004 CanLII 55364 (ON GSB)(Mikus), accepted the employer’s argument that it should not have to provide disclosure until the union had established that there was a prima facie case to be met. [16] In my assessment of the Union’s request I was cognizant that the Union had provided full particulars for each grievor’s allegations. However, what was of concern to me was that having been put on notice that the Employer intended to make various preliminary motions, including whether the pleadings made out a prima facie case for the remedies sought, the Union was seeking disclosure from the Employer in what appeared to be a fishing expedition. Further, it was not at all clear to me why the fact that the Employer was going to be arguing that some grievors had previous grievances which they settled should be of any import in my consideration of the production matter. Whether the grievors mentioned their various issues during the investigations, including ones about which they had grieved and received settlements, and whether those matters were mentioned in the two reports, would be of little consequence in my assessment of the Employer’s motions. [17] This is a case involving allegations of harassment, bullying and gender discrimination by a member of management. The grievors are in the best position to - 5 - outline their respective allegations based on their individual experiences. If it is established that there is a case to be met in respect of each of the grievors, then the documents requested may be arguably relevant. However, if there are grievors for whom there is no case to be met, then ordering disclosure before that decision has been made may be prejudicial to the Employer and the impugned manager. At this juncture, before hearing the motions, I was not satisfied that there was a clear nexus between the information requested and all of the matters in dispute, and I therefore denied the Union’s production request. EMPLOYER’S MOTIONS REGARDING THE TIMELINESS OF CERTAIN ALLEGATIONS; GRIEVANCE SETTLEMENTS THAT HAD RESOLVED SOME ISSUES STILL BEING REFERRED TO IN THE PARTICULARS; AND, THAT BASED ON SOME OF THE GRIEVORS’ PLEADINGS, THERE IS NO PRIMA FACIE CASE FOR THE EMPLOYER TO MEET [18] The parties’ general positions will be outlined first, followed by the test to be applied in considering each aspect of the Employer’s motions, and finally, I will consider in turn the parties’ positions with respect to each particular grievor in the group. [19] The Employer argued that the Union has provided no particulars for any grievor to support a finding that the seven women were discriminated against because they were female correctional officers, or that they were being treated differently than their male counterparts. The Union is alleged not to have provided any particulars as to who, what, where, or when male correctional officers were treated differently and/or better than were the grievors. In order to maintain claims of discrimination on prohibited grounds, in this case gender, the Employer argues that the grievors must show how they were discriminated against and negatively impacted, and the Employer maintains that there is nothing in the particulars to support this contention as there are no facts pled that male correctional officers were treated differently, or better, than the grievors. [20] For the purposes of these motions, the Employer accepts that Barker had issues with his tone and manner of communication: However, it contends that in itself did not amount to unfair or differential treatment of the grievors. [21] With respect to a number of grievors, the Employer argued that they had filed timely grievances about what they characterized as improper treatment, which grievances they then settled or withdrew. However, in the present grievance, the Union and the grievors have again relied on those same allegations of improper treatment, to which the Employer objects as the issues had been resolved through settlements or withdrawal. It is the Employer’s position that the Union and grievors should not be permitted to resile from settlements or withdrawals of grievances that addressed the same treatment that was complained of in the earlier individual grievances, and is now being relied upon again in this group grievance. [22] As such, the Employer argued that there is no prima facie case for most of the group of grievors, that the Union cannot pursue matters that have already been settled or withdrawn, and, with respect to some of the allegations, they were untimely in that they predated the grievance by months or years. - 6 - [23] The Union’s position is that it has provided extensive particulars in support of its grievance, and that this group grievance is about Barker’s actions in poisoning the workplace, through his behaviour which it alleges shows a pattern of bullying and harassment. It characterizes Barker’s behaviour as a course of vexatious conduct that was known, or should reasonably have been known, to be unwelcome, and which allegedly caused the grievors to not feel safe coming to work every day. It further alleges that the Employer took far too long to respond to complaints about Barker; that its actions were dilatory; and that Barker was then promoted in the aftermath of the investigations. [24] According to the Union, the Employer’s position regarding the lack of particulars about differential treatment of the group requires too narrow a reading of the June 21, 2012 grievance: the Union asserts that because in the “Settlement desired” section of the grievance there is reference to “stop bullying”, that it should have been clear from the outset that the issue was bullying and harassment. It further contends that in its pleadings it had outlined that the grievors had asserted these as their issues when they met with the two investigators, Pitfield and Hogarth in October and November 2012. The Union describes this case as being about bullying, and argues that the grievance should be liberally construed, not dismissed on a technicality of form. [25] In this regard, the Union relies on Blouin Drywall Contractors Ltd. v. C.J.A. Local 2486, 1975 CarswellOnt 827. In that decision the Ontario Court of Appeal addressed the issue of whether an arbitrator had to strictly construe a grievance. At paras. 10 and 11 of the decision the Court stated: 10. … No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch. 11. …Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions … [26] Regarding timeliness of the allegations in the grievance, the Union conceded that quite a few of the pleadings were old, with some being about events that had occurred about a year before the filing of the grievance. However, the Union relied on the GSB’s “three year rule” or “guideline” which is premised on the view that it may take longer than 30 days for a grievor to see a pattern of harassing or discriminatory behaviour. It argued that this group of grievors should be permitted to rely on allegations that go back up to three years before the date of filing of the grievance. [27] The Union argued that the grievors should be permitted to rely on pleadings of matters that had been grieved and settled or withdrawn because the grievors were not agreeing that, by settling or withdrawing grievances, they were acquiescing to being bullied or harassed. It claims that the earlier grievances dealt with other matters, and not with harassment or bullying by Barker. - 7 - [28] It also draws the distinction between the earlier grievances having been individual grievances, and argues that since this grievance is a group one, it is dealing with a different issue. The Union states that it will not be seeking a remedy for the issues for which the grievors have already been compensated, but wishes to rely on the facts to show that there was a pattern of behaviour. It claims it is not seeking to undermine the sanctity of settlements. Relevant Articles of the collective agreement [29] The grievance claims breaches of Articles 2, 3, and 9 of the Collective Agreement. The relevant portions of those Articles are reproduced here for ease of reference: Article 2 – Management Rights 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. Article 3 – No Discrimination/Employment Equity 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). 3.2 There shall be no discrimination or harassment practiced by reason of an employee’s membership or activity in the Union. Article 9 – Health and Safety and Video Display Terminals 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. [30] Since one of the Employer’s motions is with respect to the timeliness of some of the Union’s allegations, and reference was made to Article 22.2.1, it is reproduced here: Article 22 – Grievance Procedure 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. - 8 - [31] I note that reference was made to Article 22.10, which refers to sexual harassment, and the parties’ agreement that for such complaints, the time limits set out in the above-noted Article do not apply. However, since none of the allegations in the Union’s pleadings refer to sexual harassment, there is no need to recite that provision. The “no prima facie case” jurisprudence [32] The Employer asserts that some of the Union’s pleadings fail to disclose a prima facie case for breach of the collective agreement or of applicable legislation, with a particular focus on the lack of particulars regarding gender discrimination. OPSEU (Couture et al) and Ministry of Government Services, 2011 CanLII 100922 (ON GSB)(Dissanayake) is an oft-quoted decision in which the Board addressed a prima facie case motion and stated as follows: 12. … In each case where a prima facie motion is made, the Board is required to determine whether the facts asserted, if accepted as true, are capable of substantiating the violation alleged. [33] In OPSEU (Bonneveld) and Ministry of Community Safety and Correctional Services, 2013 CanLII 88094 (ON GSB)(Briggs), the Board considered an employer motion that the union’s particulars of a grievance claiming that an individual had been discriminated against on the basis of his age did not make out a prima facie case of violation of the collective agreement. The Board’s jurisprudence with respect to “no prima facie case” motions was outlined as follows: 41. The Board’s jurisprudence stands for the proposition that in order for a no prima facie case motion to succeed, the asserted facts – which are assumed to be true – do not establish the necessary elements to substantiate the alleged violation of the collective agreement. [34] Where there is an allegation of discrimination, as there is here, for the Union to establish a prima facie case of discrimination, its pleadings must demonstrate that a grievor is a member of a group protected by the Code; that she was subjected to adverse treatment; and that her gender, race, ancestry or colour was a factor in the alleged adverse treatment (OPSEU (Morgan) and Ministry of Children and Youth Services, 2014 CanLII 30274 (ON GSB)(Tims) at para. 29; Bonneveld, cited above, at para. 44) [35] In OPSEU (Wong) and Ministry of Government Services, 2012 CanLII 24021 (ON GSB)(Dissanayake), the Board addressed a prima facie case motion in a grievance alleging discrimination on the basis of prohibited grounds, and harassment due to the grievor’s union activity. At para. 17 of the decision the Vice Chair noted that taken at their highest, some of the grievor’s pleadings might indicate that in some instances the employer may not have utilized the best management practices. However, he found that the allegations fell far short of establishing “bad faith” as it was commonly understood, or as defined in legal authorities. [36] Regarding the allegations of differential treatment and that the employer had acted in bad faith against the grievor in the Wong case, the Vice Chair noted (at para. - 9 - 18) that in order to infer bad faith, there must at least be some evidence that similarly situated individuals were treated differently. The employer’s motion was granted in that instance as the Board (at para. 19) was of the view that mere allegations of bad faith, and sincere but subjective beliefs that one’s allegations are well founded, no matter how strongly held, would be insufficient. There must be some objective facts that could reasonably lead to a finding of a breach of a collective agreement. [37] It is important in considering a party’s particulars in the context of a prima facie case motion that only particularized facts must be accepted as true: claims or conclusions that may form part of a party’s particulars are not transformed into facts simply because the party has so asserted (OPSEU (Seguin et al) and Ontario Science Centre, 2012 CanLII 6203(ON GSB)(Briggs)). [38] The Union asserted that there is a relatively low bar for the grievors to reach in establishing that they have pled a prima facie case. In that regard, the Union relied on the Board’s decision in OPSEU (Pinazza et al) and Ministry of Community Safety and Correctional Services, 2004 CarswellOnt 5817 (Herlich) wherein the adjudicator decided in that instance that the union’s case was not so weak as to cause him to dismiss it at that stage of the proceeding. The case contained no review of the pleadings that were before Vice Chair Herlich. As each decision of this sort turns on the particular pleadings before the Board, I found that decision of no assistance to me in my consideration of this matter. [39] In OPSEU (Harding) and Ministry of Finance, 2014 CarswellOnt 15392 (Stephens), the Board noted that comments about the evidence and issues should be kept to a minimum when deciding a prima facie case motion in order to avoid providing either party with any advantage. [40] As was noted earlier, the Union characterizes some of the Employer’s arguments regarding there being no prima facie case of discrimination on the basis of gender as requiring too narrow a reading of the grievance, and what is actually in dispute in this case. I agree with the Union in this regard. In my view, having read the grievance, and all of the Union’s particulars, it seems clear that from the beginning these grievors have been concerned about how Barker was treating them in their workplace. On the basis of the Union’s pleadings at this juncture, it appears that is what they complained about to the two Ministry investigators after the filing of the grievance and the Employer’s apparent move to look into issues at the NBJ. The allegations of bullying and harassment are not news to the Employer, and are not a new issue being raised at this arbitration. On a liberal reading of the grievance I must conclude that the Employer reasonably should have understood that bullying was an issue, and was part of the grievance. Otherwise, there would have been no reason for the grievors to request, by way of resolution, that the bullying stop. [41] In this regard, I agree with the sentiments expressed in Ontario (Ministry of Labour) and OPSEU (Jones), 2010 CarswellOnt 11669 (Ont. Grievance S.B.)(Abramsky) wherein the Board stated: - 10 - Thus, in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration’s jurisdiction. Conversely, if the matter is truly a different, new issue, the board will decline jurisdiction. [42] The Union argues that the standards against which its pleadings should be held are those in sections 5(2) and 10 of the Human Rights Code (the “Code”), and sections 1 and 25(2) of the Occupational Health and Safety Act (“OHSA”). The relevant provisions of the Code are as follows: Harassment in employment 5. (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another emplo yee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. … Definitions re Parts I and II 10. (1) In Part I and in this Part, “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; … [43] The relevant provisions of the OHSA are: Definitions 1. (1) In this Act, “workplace harassment: means engaging in a course of vexatious comment or conduct against a worker in the workplace that is known or ought reasonably to be known to be unwelcome; … Duties of employers 25. (2) Without limiting the strict duty imposed by subsection (1), an employer shall, … (h) take every precaution reasonable in the circumstances for the protection of a worker … [44] In Toronto Transit Commission and Amalgamated Transit Union, 2004 CarswellOnt 5165 (Shime), the arbitrator defined abuse and harassment as follows: 243. Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. 244. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [45] Addressing the distinction that must be drawn between what may be characterized by an employee as harassment, and by an employer as management, Arbitrator Larson in UFCW Local 1518 v 55369 BC Ltd., 2007 CarswellBC 3880 (D.L. Larson), noted as follows: - 11 - 32. Harassment by supervisors is particularly difficult, partly because it involves issues of the mistreatment of employees entrusted to their care but also because there is often a fine line between an aggressive management style and abuse. Context is important. In some work places vulgar and insulting language may be unremarkable but in other cases a mere statement may be discriminatory. … [46] The arbitrator in that case noted that harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering, intimidation or bullying that causes a person distress that is inimical to a safe and positive work environment (para. 31). The exercise of normal management rights does not excuse harassment, and giving directions, evaluating performance and disciplining employees should not be considered harassment in the normal course of events provided that such activities are not carried out in a manner that is abusive, demeaning or hostile, and has a legitimate workplace purpose (para. 33). Not every “employment bruise” should be treated as harassment, and Arbitrator Larson noted that it would be unfortunate if a harassment process was “used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred” (para. 34). [47] It is in the jurisprudential context outlined above that I will be evaluating the Union’s pleadings in respect of each grievor in the group. Prior settlement jurisprudence [48] In OPSEU (Rolfe) and Ministry of Community and Social Services, 2006 CanLII 33408 (ON GSB)(Briggs), the union began to call evidence in the course of a hearing regarding matters that the grievor had filed grievances about in the past, and that had been resolved. It argued that the evidence would establish a pattern of behaviour wherein the grievor was subjected to harassment and discrimination. The employer objected on the basis of the principle that a full and final settlement should not be undermined, and that when parties negotiate a resolution of outstanding differences, they ought not to be obliged to address the same fact situation in the future under some other guise. The Board would not permit the union to call evidence regarding matters that had been resolved, and, summarizing the established jurisprudence on this subject, stated at p. 8 as follows: After consideration I am of the view that I cannot allow the evidence which the grievor and the Union seek to admit. This Board has repeatedly acknowledged and upheld the sanctity of settlements between parties. To do otherwise could do great labour relations harm. Each party must be able to rely upon the word of the other party that the matter being resolved is over, that it will not be raised or referred to in the future, either directly or indirectly. If closure of outstanding matters is not respected, there would be little incentive indeed to enter into settlement agreements. [49] In OPSEU (Patterson) and Ministry of Children and Youth Services, GSB # 1989- 1546 et al, December 5, 2006 (Abramsky), in the context of a discrimination grievance the union wanted to rely on matters about which settlements had been reached to help the Board fully appreciate the environment that the grievor had faced. It wanted to explain the substance of the grievances, so that a “full picture and history” could be - 12 - ascertained. The Board concluded that the union could not rely on settled matters and stated as follows (at pp. 10 and 11): Based on the facts and case law, I conclude that the Union may not rely on the settled matters in the manner proposed. The conclusion is based on the critical importance of settlements. In OPSEU (Waraich), supra at p. 15, the Board refused to admit evidence regarding settled matters because to do so “could serve to undermine the parties’ confidence in final settlement and their legitimate expectations that settled matters will not reappear in some different guise”. Similarly, in OPSEU (Dale), supra at p. 8, the Board stated that “once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise”. This reasoning applies even though the Union is seeking to rely on the settled matters solely to provide the Board with the nature and extent of her earlier grievances and history. In my view, this is a back door approach to introducing evidence which might then prejudice the Employer or require the Employer to defend its actions. If the Union is allowed to lead evidence on the details of these settled matters, there is a real risk that the Employer will be prejudiced by leaving such claims unanswered, or it will have to defend itself. This would significantly prolong the hearing, and, even more importantly, negate the benefit of the settlement for the Employer. Although the Union is not relying on these settled matters to establish a pattern and practice of discrimination, it is seeking to rely on them to establish that the grievor regularly and consistently raised grievances against the discrimination and harassment that she contends she faced. It is, in my view, a back door approach to the introduction of contentious evidence which the settlement of these matters precludes. [50] I note that in OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, 2015 CanLII 36161 (Harris), a recent decision, the Board found that it would be inappropriate to hear evidence on matters that had already been determined by the Board or had been the subject of minutes of settlement between the parties (at para 9). (See also OPSEU (O’Brien) and Ministry of Community Safety and Correctional Services, 2011 CanLII 10242 (Leighton), at para. 11). [51] I will be considering the parties’ arguments regarding the role of settled grievances in the jurisprudential context outlined above. Timeliness jurisprudence [52] The Employer relied on jurisprudence that addressed the timeliness of the filing of a grievance. However, that did not appear to be the focus of the Union’s arguments. Rather, the Union was arguing that in the group grievance there were some grievors’ pleadings that referred to events that had occurred a number of months, or a year earlier, but that those should not be found to be untimely based on the Board’s “three year rule” in harassment and discrimination cases. The Employer argued that the “three year rule” was inapplicable to this group grievance because the collective agreement only provides an exception to Article 22.2 for sexual harassment, which is addressed in Article 22.10. As such, the employer argues that the grievors had to raise their concerns within 30 days of being aware of the alleged breaches of the collective agreement. - 13 - [53] With respect to the timeliness of the filing of a grievance, the Board has generally adopted the test outlined in Re Becker Milk Co. Ltd. and Teamsters Union, Local 647, [1978] O.L.A.A. No. 71 (Burkett). The factors relevant to an adjudicator’s consideration are as follows: i) the reason for the delay given by the offending party; ii) the length of the delay; and, iii) the nature of the grievance. [54] In OPSEU (Berday) and Ministry of Transportation, 2008 CanLII 70540 (ON GSB)(Devins), the Board dismissed as untimely a grievance filed at best four months, and at worst 7.5 months, after the grievor was aware of the facts giving rise to his dispute. [55] In OPSEU (Kavanaugh) and Ministry of Community and Social Services, GSB #2007-0136, 2007-2649, April 14, 2009 (Harris), the Board dismissed as untimely a grievance filed more than two months after the grievor had received a letter from the employer which he was claiming discriminated against him. In that instance the grievor had been a union steward in the past, was taken by the Board to have known the importance of complying with the time lines in the collective agreement for filing grievances, and the potentially fatal consequences for failing to do so. The Board considered in that case that despite the grievor having had a number of medical issues around the time in question, that the two-month delay was significant, given the issue raised in the grievance was discrimination, which was considered to be a serious matter. [56] The issue in this case is whether the Board should exclude evidence regarding various grievors’ older discrimination or harassment allegations on the basis of timeliness, or with respect to allegations of events that occurred after the filing of the grievance. The GSB jurisprudence is settled in respect of the first area: it will generally hear evidence regarding allegations of discrimination or harassment dating back three years from the date of the grievance (see for example OPSEU (Patterson) and Ministry of Public Safety and Security, GSB # 2001-0925, 2001-0949, December 1, 2003 (Leighton); OPSEU (Patterson) and Ministry of Children and Youth Services, GSB # 1989-1546 et al, December 5, 2006 (Abramsky); OPSEU (Lunan) and Ministry of Labour, 2015 CarswellOnt 7110 (Leighton); OPSEU (O’Brien), cited above; OPSEU (Ranger), cited above); OPSEU (Bilardo) and Ministry of Labour, 2014 CanLII 74774 (ON GSB)(Herlich). [57] In developing the three year guideline, the Board has recognized that there may be a course of conduct that is not immediately recognized as harassment and/or discrimination, and that it may take some time before otherwise apparently innocent or innocuous actions may be seen as part of a course of conduct. In an effort to balance the interest of a union in needing to adduce enough evidence to prove an alleged pattern of harassment, with fairness to an employer in having to defend allegations of events that have occurred many years before the filing of a grievance, the Board has come to the view that a three year scope will generally be fair. - 14 - [58] I will be considering the parties’ arguments regarding the timeliness of some of the grievors’ allegations and pleadings in the jurisprudential context outlined above. Karen Trumbull [59] The Employer argued that Trumbull’s allegations were untimely as they had arisen between the spring and fall of 2011, and the grievance was not filed until June 2012. Furthermore, there was no explanation for why the grievor had waited from the fall of 2011 until late June 2012 to file a grievance about Barker’s treatment. [60] The Employer further argued that taken at their highest, and accepting that the allegations were true and provable, they do not disclose a breach of Articles 2, 3 or 9 of the Collective Agreement. Furthermore, nothing in the allegations suggests that the grievor was treated differently than her male colleagues working in the NBJ. [61] This grievor’s allegations as outlined in the Union’s pleadings, are in essence as follows: a) In the spring of 2011 the grievor raised a concern at LERC that sergeants were leaving the institution to attend management meetings in the administration house, leaving the jail with no managers in charge. Barker leaned back in his chair and said in a very condescending manner that COs [Correctional Officers] frequently step outside the building to smoke, and that he had the power to force COs to leave the property and smoke. He also noted that he could “put them to the curb” by coming up with a policy on breaks. b) In or around June 2011 the grievor was told that she had to report for an Attendance Review Meeting with Barker to sign a letter. She felt that Barker was rubber-stamping the Attendance Review letter rather than making any effort to discuss issues she may have had or ways the Ministry could support her. She felt that Barker was ignoring the process. c) In or around the fall of 2011, Barker approached the grievor about possible changes to a practice regarding female inmate clothing and laundry. When she expressed her concerns with Barker’s proposal, the grievor observed that Barker’s face became angry, his body language changed markedly, and he told her that if she did not like what he was proposing, he would change her post. The grievor felt intimidated. [62] The Union argues that bearing in mind the three-year guideline for harassment grievances, these allegations can be found to be timely. Furthermore, it argues that the Board should hear evidence of the allegations, along with those of all the other grievors in the group, before determining whether they could not possibly show that there was a pattern of bullying and harassment. [63] Taking this grievor’s allegations at their highest, which is to say accepting them to be true for the purposes of the no prima facie case motion, it is unlikely that a breach of the collective agreement, the Code, or the OHSA would be found. The Union has not - 15 - pled that Trumbull suffered any adverse consequence as a result of the threats allegedly made. At best, Trumbull’s pleadings may indicate that Barker had a poor management style, but that falls short of a likelihood of a finding of harassment and/or discrimination. [64] Furthermore, it is unclear to me how matters that at best arose about eight months before the filing of the group grievance could be found to be timely. By the fall of 2011, which is when the last of Trumbull’s alleged incidents occurred, she ought to have been aware that she may have a complaint given that she has pled three incidents spanning the spring to fall of 2011. Yet, she did not file a grievance herself, and did not join in the group grievance until about 8 months later, in June 2012, by which time nothing is pled to suggest that she had continued to be treated in any manner that would have caused her to complain. There is no explanation provided in her pleadings for the delay in raising her concerns. [65] This is not the type of case where the three-year guideline should be applied as there was no incident involving Trumbull in the 8 months before this grievor joined the group grievance in June 2012. In any event, in my view this grievor’s pleadings fail to make out a prima facie case for findings of harassment or gender-based discrimination. As such, the Employer’s motion is granted and the Trumbull pleadings are hereby struck. Amanda Saucier [66] The Employer contends that there is nothing in this grievor’s particulars that would support a finding that she was treated differently than were her male colleagues in the NBJ. The Employer concedes, as it does generally in respect of a number of Barker’s alleged comments to all the grievors, that Barker’s manner of speaking cannot be condoned. However, it argues that accepting all of the grievor’s allegations as true and provable, Barker’s management style and manner of speaking do not rise to the level of breaches of the Collective Agreement or of any legislation in respect of this grievor, and that there are no particulars to support a finding that Barker acted in bad faith or in a discriminatory manner in holding up the grievor’s move into a classified position. As such the Employer argues that the Union has not established a prima facie case in respect of Saucier. [67] The Employer also contends that the Union and grievor should not be permitted to rely upon pleadings regarding matters that were grieved and resolved. [68] According to the particulars provided by the Union, Saucier has held various union positions at the NBJ, including Chief Steward, Vice President and, as of the fall of 2013, President of the Local. [69] The grievor’s particulars, as outlined by the Union in its pleadings, generally suggest that the following are her concerns: - 16 - a) In November 2011, when the grievor called Barker to discuss suggestions she had for improvements to Critical Incident Stress Management, Barker told her that her opinion did not always count. b) Between the spring of 2012, when three classified positions became available at the NBJ, and when she finally got a classified position in October 2012, she had to ask Barker on several (undated) occasions when these positions would be filled; on one occasion Barker told her that if she behaved herself she might get the job; at some point after the harassment and discrimination grievance had been filed in June 2012, Barker told her there was still nothing in respect of the classified positions, which the grievor took to mean that nothing would change because she was part of the group grievance; and, she felt intimidated by Barker coming to tell her this when she was working alone in the yard booth. c) The grievor was not rolled over into a classified position until October 2012, but she believes that approvals for the roll-over had been given many months prior. As such, she is alleging that Barker held up her roll-over. [70] The Union’s pleadings indicate that on September 7, 2012 Saucier filed a grievance alleging that management was refusing to follow an agreement of June 26, 2012 regarding roll-overs at the NBJ. The resolution she was seeking was that she be converted to full time status, and that it be back dated to August 2, 2012, the date of the closing of the expression of interest for the positions. [71] The Union’s pleadings further indicate that the grievor withdrew the grievance on a without prejudice or precedent basis, and that appears to have occurred on September 13, 2012 after Saucier had been advised on September 11, 2012 that she would be rolled over into the classified position, with an effective date back to August 6, 2012. However, the Union contends that that grievance only dealt with the failure to roll the grievor over into the classified position, and did not address Barker’s “malicious” delay in rolling her over. The Union further claims that looking at Saucier’s pleadings as a whole, there is circumstantial evidence that Barker was the reason for the delay in her receiving a position. As such, it contends that the withdrawal of that grievance should not be an impediment to her raising her allegations about Barker in this proceeding. [72] The Employer notes that the Union has not filed a single particular to support its contention that Barker unduly delayed the grievor’s roll-over. Rather, it has made a bald statement without any particulars to support its contention, which in the context of a no prima facie motion, the Board does not have to accept as true. [73] Upon a review of Saucier’s pleadings it appears that at the time of her joining the group grievance on June 21, 2012, she had one incident based upon which she believed that she was being harassed and discriminated against by Barker. That incident had occurred in November 2011, and was not grieved at the time. [74] The grievor’s September 7, 2012 grievance claimed that management was “refusing to follow the agreement signed by the transition committee dated June 26, 2012 regarding roll-overs at the North Bay Jail”. As such, it does appear that Saucier - 17 - was taking issue with how management at the NBJ was treating her. Since Barker was the Superintendent, it seems obvious that was who she was complaining about in her grievance when she alleged refusal to grant her a roll-over, which she wanted back dated to August 2, 2012. [75] Saucier’s grievance of September 7, 2012 outlines that the Transition Committee did not sign an agreement with the Employer until June 26, 2012 regarding the roll-over positions at the NBJ. As such, it is not apparent that the roll-over issue had been resolved before the filing of the group grievance. Most of the grievor’s pleadings relate to her asking Barker when the positions would be filled, and her belief that he was holding up her appointment into one of the positions after the June 26, 2012 resolution had been reached. These allegations essentially post-date the filing of the group grievance. In the absence of agreement between the parties, I have a number of concerns about permitting allegations that post-date the filing of the grievance, as my jurisdiction arises from the appointment to hear the June 21, 2012 grievance, not any and all matters that may have occurred thereafter. [76] In any event, on the Union pleadings, it is clear that Saucier withdrew her roll- over grievance on September 13, 2012. As has been outlined earlier, the Grievance Settlement Board has repeatedly upheld the sanctity of settlements between parties, and has stated that each party must be able to rely upon the word of the other that a matter being resolved is over and will not be raised or referred to in the future either directly or indirectly. Saucier in particular has been active in the Union in various capacities, including as Chief Steward and Vice President of the Local. She can be taken to know about the time lines for filing of grievances, and the meaning of a withdrawal of a grievance. I also note that the Union has not pled any facts that would support the allegation that Barker held up this grievor’s roll-over; rather bald statements have been made to that effect. [77] It does not advance labour relations, and trust between the institutional parties, when one party is permitted to resile from its agreement, and to rely on matters that had been believed to have been resolved. Based on the pleadings, it is not clear when Saucier purports to have had discussions with Barker about the roll-overs. Whether those discussions pre-dated, and/or post-dated June 21, 2012, in any event, Saucier ultimately filed and withdrew her own grievance regarding the roll-over in September 2012. For reasons already outlined, the Union and grievor cannot rely on pleadings about matters that had been resolved through the grievance process. [78] The only pleading remaining is that relating to the November 2011 incident. Accepting the grievor’s pleadings as true, in my view it is highly unlikely that the Board would find that Barker’s comment would amount to harassment and/or gender discrimination. As has already been noted, accepting that Barker said what is alleged, his manner of discourse appears to be rude and ill-considered. However, it does not meet the standard of harassment or discrimination, and I find that pleading does not disclose a prima facie case for breach of the collective agreement or any legislation. [79] In all the circumstances and for the reasons outlined above, I uphold the Employer’s motion to strike the pleadings as they relate to Amanda Saucier. - 18 - Gaetanne Petri [80] According to the Employer, this grievor’s allegations were either untimely because one occurred sometime in 2010, long before the filing of the present grievance on June 21, 2012, or because one of the events complained about occurred on July 30, 2012, after the filing of this grievance. In addition, the Employer contends that Petri filed three grievances about issues complained about in the present grievance, and she accepted a full and final settlement of those grievances. As such, the Employer argues that those issues cannot form the basis of the present grievance. Finally, it is argued that the Union has provided no particulars to support a finding that this grievor was treated differentially from her male colleagues, so that there would be no basis for a finding of gender discrimination, even if all of the facts alleged were taken as true and provable. [81] Petri’s complaints may be summarized as follows from the Union’s pleadings: a) In 2010 when Barker started at the NBJ, the grievor brought medical documentation to support her ongoing “nights only” scheduling accommodation. Barker looked at the papers and threw them on his desk, saying that they did not tell him anything and that he was thinking of taking away her “nights only” schedule. He is alleged to have spoken in a raised voice, and the grievor took his tone to be demeaning and condescending. b) Prior to September 2011 Barker accused the grievor of failing to secure a cell door lock, caused there to be an investigation, and gave her a verbal warning. He used a condescending and rude voice in telling the grievor that she was lucky to only receive a verbal warning, and that she was being used as an example to show others that complacency would not be tolerated. c) On or around November 23, 2011 an inmate committed suicide. As a result, the grievor was left to run her floor of the NBJ on her own for most of the shift and did not get a break till 5:30 a.m. She was accused of sleeping on her shift, and received a written letter of discipline. d) On or around July 30, 2012, four inmates attempted to commit suicide as a group, flooded their cell, set fires and tampered with the electricity in their cell. As a result of the turmoil caused, the grievor was left to run the floor on her own without a break until 6:30 a.m. Barker and St. Louis (the Deputy Superintendent) attended at the institution that night, but did not check in on Petri to see how she was doing. When they saw her, they did not acknowledge her presence. e) On the morning following that shift the grievor requested compassionate leave because of the traumatic events of the shift, but Barker denied the request. The grievor called in sick for her next shift because of the extreme stress and anxiety she felt. She feels that Barker crushed her - 19 - self-esteem, self-worth and self-confidence, and caused her long term emotional damage. [82] On January 4, 2012 Petrie filed a grievance regarding the letter of reprimand arising out of the November 2011 incident. In the grievance she claimed a breach of Article 2 of the Collective Agreement, the Ministry’s guidelines to ethical principles, any other related legislation, policies, etc. and questioned the results of the investigation that had led to the discipline. She claimed as redress removal of the letter of reprimand; any monies lost as a result of the investigation; a period of one month off duty without loss of pay, seniority and sick credits to compensate her for the stress, accusations, harassment, disruption of family time and quality of life endured during this period. [83] On January 4, 2012 the grievor also filed another grievance regarding sick credits for November 2011, and was seeking by way of remedy sick credits for that month. [84] On August 2, 2012 Petrie filed a grievance claiming that management had caused her physical and emotional hardship; had failed to provide her with basic care, consideration and support for her well being; and had discriminated against her by denying her request for a compassionate day off on July 31, 2012. This grievance arose out of the July 30, 2012 incident outlined above. She requested that she be given approval for compassionate leave for 12 hours for that date, and that the date be removed from the attendance management program accumulation of time off. [85] By way of a Memorandum of Settlement dated November 23, 2012, Petrie agreed to withdraw all three of the above-noted grievances in exchange for the letter of reprimand being reduced to a non-disciplinary letter of counsel, which was to be removed 12 months from the date of issue, and she was paid for one special and compassionate twelve hour shift for July 31, 2012. She agreed that the settlement was a full and final settlement of these grievances, without prejudice to any future and/or similar matters. [86] The Union argues that Petrie’s allegations fall within the three year guideline, and that although she had filed and settled grievances relating to most of the same incidents that are complained of in her pleadings, those grievances were discrete individual issues and were not about how Barker was treating her. The Union further states that in this group grievance it will not be seeking a remedy that would lead to “double dipping” for this or any other grievor. However, it is seeking damages for all the grievors. [87] I have already outlined above why the Board will not permit grievors to lead evidence about matters about which they have grieved and settled or withdrawn grievances. However, it is worth stating clearly that filing a group grievance about matters that had been individually grieved in the past does not change the basic premise: If a grievance was filed about the conduct of the employer, and if it was resolved either through settlement or through withdrawal, absent specific agreement of the parties that the matter may be relied upon in other proceedings, it would only be in the most unusual circumstances that the Board would permit a party to later rely on the same allegations in a new grievance. - 20 - [88] The reasons should be obvious. There must be some finality in the resolution of a workplace issue. Whether that is through litigation of a grievance and the issuance of an award, or through a mutually-agreed upon settlement, or a grievance withdrawal, the parties must be able to move forward with the understanding that the grievance has been dealt with fully and with finality. To permit one party to circle back and rely on the same facts or incident again in the future, absent agreement, is corrosive to a good labour relationship. [89] There is nothing particularly unusual regarding any of this group of grievors that would cause me to permit them to rely upon pleadings regarding matters that they grieved and resolved by way of settlement or withdrawal. As such, I reject the Union’s argument that many of these grievors who had filed and settled their individual grievances should be permitted to re-hash their respective allegations again simply because this time they have joined with others to file a group grievance. To permit such an outcome would be to grant any and all grievors multiple opportunities to air their discontent with the employer about a particular incident or incidents. That is not what the parties have agreed to, and it is not conducive to constructive labour relations. [90] All of Petri’s allegations from September 2011 on, including matters that post- date the filing of the group grievance and therefore present their own problems for that reason, have been the subject of grievances and settlements. Petrie specifically claimed “harassment” or “discrimination” in two of her three grievances. As such, they are matters that have been fully and finally resolved, and cannot form part of the allegations in this group grievance. [91] That leaves Petri’s allegation of comments Barker made in 2010 in the course of a discussion about her medical support for a nights-only accommodation. As the group grievance was filed in late June 2012, this allegation is extremely untimely. Nonetheless, even if I accept that it could fall within the three year guideline in harassment and discrimination grievances, in my view taken at its best this pleading would not make out a prima facie case of harassment or discrimination. [92] There is no pleading that Barker in fact did anything to change Petri’s accommodated position as a result of that single conversation. His comments, which for the purpose of this motion I accept as true, would likely be found to be rude and unsympathetic, but are not sufficient to establish that he was harassing Petri, or discriminating against her because she was either a woman or suffered from a disability. [93] For all of the above reasons, the Employer’s motion in respect of Gaetanne Petri’s pleadings is granted, and her pleadings are struck from the group grievance. Carol Knight [94] The Employer objects to a number of undated allegations in the Union’s pleadings for this grievor as they date from sometime between the spring of 2010 and November 2010. These allegations are also argued to be untimely, and even if taken - 21 - as true and provable, would not make out a prima facie case for breaches of the Collective Agreement or the Human Rights Code. [95] With respect to the grievor’s allegations dating from 2011, the Employer argues that they fail to make out a prima facie case for breaches of the Collective Agreement or any legislation. [96] While it concedes that some of Barker’s comments to this grievor were not smart, and appear to have been made with a poor sense of humour, the Employer argues that a number of the allegations, taken at their highest and as true and provable, do not amount to a breach of the Collective Agreement or the Code. It points out that even if Barker made comments that the grievor did not like, there are no particulars of adverse treatment based on gender. As such, the Employer argues that all of the allegations made by this grievor do not amount to a prima facie case. [97] Based on the Union’s particulars, Knight’s allegations may generally be summarized as follows: a) Shortly after Barker came to the NBJ the grievor asked him if he wanted a coffee or snack when someone was going out. Barker declined and told her that he had lost a lot of weight, looked great, and therefore did not want any snacks. This made Barker very uncomfortable. b) On another occasion, Barker told the grievor, who has five children, that had she not had so many children she would have had money like he did. Knight found the comment anachronistic and an ‘old school’ way of thinking about women in corrections. c) Barker offered Knight a special assignment and advised that it was a plain clothes assignment so she did not have to wear her standard Correctional Officer uniform if she chose not to do so. Knight took the assignment, and came to work in a business skirt suit. Barker referred to her as “lady” two times, until she told him that she wanted to be referred to as “Ms. Knight”. His use of “lady” brought back memories of gendered names the grievor had been called 20 years before in corrections. d) After the assignment ended, when Barker toured the grievor’s area, he would make off-hand remarks like “I don’t like the way you look at me”, or in front of other managers would ask “You get along with her?” The grievor felt that he was trying to influence managers to view her in a negative way. e) In or around November 2010, through the Health and Safety Committee, the grievor brought forward a concern that there were no winter tires on the institutional vehicles. She was concerned as she had to drive a lot as a mediator and trainer. When Barker heard of the concern he laughed, and when he heard that Knight had raised the issue he laughed again and commented that she was not a credible source, that they were not going to be getting snow tires, and that he would ensure that she did not have to travel during the winter months. He - 22 - also allegedly asked sarcastically whether the grievor had winter tires on her own vehicle. The grievor turned down a number of training and mediation opportunities that winter. She felt that she could have furthered her skills and advanced her career if she had been able to travel. In late 2011 the institution got winter tires for its vehicles. f) On or around September 15, 2011 Knight and a union representative attended a meeting at Barker’s office. At that time she was told that a male coworker had filed a workplace discrimination and harassment allegation against her regarding an occurrence on a recent training day, and that Barker had discussed the matter with the individual. When the grievor asked to tell her side of the story, Barker told her it was too late and that she should put her version in her occurrence report as he had already sent the complaint on to Toronto. Knight was upset and embarrassed as the complaint would have gone to the conflict resolution and human rights branch, at the division through which she works when mediating. She was also upset that Barker had met with the complainant, but would not allow her to defend herself. As well, having the complaint outstanding against her meant that she had to temporarily relinquish her role as a mediator while the matter was investigated. g) On October 18, 2011, when the grievor had not heard anything about the complaint, she asked Barker what was happening. He told her there were no findings of personal harassment but that it would be in her best interests to participate in mediation. The grievor indicated that she did not feel the complainant had the good faith required to participate in such a process, so she did not want to do so. Barker is alleged to have told her in a demeaning tone that this was a concern to him as she was a mediator. The grievor believes that this complaint was Barker’s attempt to tarnish her reputation, and was an effort on his part to jeopardize her role as a mediator with the Ministry. h) After Barker came to the NBJ, it was a struggle to have program and other committee meetings because the Superintendent is a committee member, engaged with these groups, approved full day meetings, approved programming, and so on. The grievor had been involved in a number of committees. However, after Barker came to the facility she became distressed that many good endeavours had come to an end, and she resigned from all committees and programs. i) In 2010 and 2011 Barker attempted to place the grievor in the attendance management program notwithstanding that her attendance did not qualify her for inclusion in the program. The grievor believes that this constituted a further attempt on his part to harass and intimidate her. [98] The Union argues that all of Knight’s allegations should be considered as falling within the three year guideline for harassment and discrimination grievances, and should therefore be found to be timely. - 23 - [99] With respect to the quality of the allegations, the Union argues that the Board should hear the evidence in order to weigh it fully. According to the Union, calling the grievor a “lady” and referring to the number of children she had was gender harassment, and, having heard the male who had made the complaint against the grievor, it was gender discrimination for Barker not to let the grievor tell him her side of the story. [100] Taking this grievor’s allegations at their highest, which is to say accepting them to be true for the purposes of the no prima facie case motion, it is unlikely that a breach of the Collective Agreement, the Code, or the OHSA would be found. It is highly unlikely that the Board would find that Barker’s comments about his own weight loss would amount to harassment or discrimination. Based on the grievor’s pleadings, when she asked him to stop calling her a “lady”, Barker apparently did so as she has no further complaints about that. With respect to the winter tires pleadings, they disclose that the NBJ did not get winter tires for its vehicles until the following winter, and there is no pleading that the grievor was required to drive when the institutional vehicles did not have winter tires. Most of the 2010 and 2011 pleadings appear to be further examples of Barker’s poor communication and poor management style, but that falls short of a likelihood of a finding of harassment and/or discrimination. [101] Furthermore, it is unclear to me how matters that at best arose about eight months before the filing of the group grievance could be found to be timely. By the fall of 2011, which is when the last of this grievor’s alleged incidents occurred, she ought to have been aware that she may have a complaint given that she has now pled a variety of incidents which are claimed to have been harassing or discriminatory in nature. Yet, she did not file a grievance herself, and did not join in the group grievance until about 8 months later, in June 2012, but nothing is pled for the intervening period to suggest that she continued to be treated in any manner that would have caused her to complain. There is no explanation provided in her pleadings for the delay in raising her concerns. [102] I find that Knight’s pleadings do not disclose a prima facie case for breach of the Collective Agreement or any legislation. In all the circumstances and for the reasons outlined above, I uphold the Employer’s motion to strike the pleadings as they relate to Carol Knight. Tracy Hill [103] The Employer argues that Hill’s allegations, taken individually or together, do not make out a prima facie case of a breach of the Collective Agreement or the Code. With respect to one set of allegations, the Employer points out that based on the Union’s pleadings, Barker apologized for his conduct when he heard that his comments had upset Hill. Regarding the discipline Hill received, there are no allegations at all. However, the Employer maintains that in the aftermath of that ungrieved discipline, when the grievor was seen speaking to the same inmate in the workplace, it was not discrimination or harassment for NBJ management to have to investigate the matter further. [104] Based on the Union’s particulars, the following are this grievor’s allegations: - 24 - a) Hill was elected the Local Union President in the fall of 2011. Shortly thereafter Barker contacted her to ask her if the Local would agree to the extension of a contract for an individual. The grievor advised she would speak to her executive and get back to him. Barker allegedly spoke to Hill in a condescending and demeaning tone, and told her that he had the power to do it anyway. Hill felt intimidated and belittled personally, professionally and in her role as Local president. b) On another occasion Barker asked the grievor in a loud and aggressive voice why people were “dragging their asses to morning search” and asserted that this had been a direction from the Union. The grievor advised Barker that she was not aware of the issue or any planned action. Barker allegedly cut off her comments by reiterating his question. As a result the grievor was very upset for the balance of the day. Her demeanor was observed by an operational manager who told her he would speak to Barker about it. Barker called the grievor later in the day to apologize for his conduct. c) In and around January 2012 the grievor received a five day suspension for taking a call from an inmate at home, and not telling management about it. She did not grieve the suspension. While she was off on vacation in April 2012 that inmate was returned to the NBJ, but the grievor was not informed. When she returned from vacation on April 22, 2012 she learned about the inmate’s return and was concerned about a potential conflict of interest. Nonetheless, when she saw the inmate near the control room hatch, she spoke to the person. A few days later Barker called her, and without a greeting, asked her for how long she had spoken to the inmate as the area had been under surveillance. The grievor asked who Barker was referring to, but he simply reiterated his question. He explained that he had been reviewing the tapes for another incident, and had seen her in conversation with the inmate. The grievor felt she had been targeted and belittled by Barker’s conduct. d) On May 9, 2012 the grievor was called to a meeting with Deputy Superintendent St. Louis and questioned about why she had been talking to the inmate. The grievor felt great stress and anxiety as a result of being constantly questioned about the particular inmate, and felt that management should have moved him to another institution if there were such serious concerns around a potential conflict of interest. e) In or around June 2012, at the end of a meeting at which the grievor was present in her union capacity, Barker noted that the grievor seemed to be doing better and that things seemed to have got back to normal for her. She generally agreed, but advised that upper management “freak me out”. Barker responded that he was flattered that people felt that way. [105] The Union argues that Hill’s allegations are timely as they fall within the three year guideline for harassment and discrimination grievances. It further argues that when Hill’s allegations are considered along with the rest of the group of grievors, they show a pattern of Barker’s bullying and harassment. - 25 - [106] Hill was the Local President, and the first two allegations are in respect of how Barker treated her while she was in that role. Accepting as true for the purposes of this motion that Barker indicated to Hill that he had the power to do something whether the union agreed or not, while not a politic comment, that does not make out a prima facie case for discrimination or harassment. [107] The second complaint is regarding Barker’s asking Hill why people were attending to the morning search slowly, and whether that was at the Union’s direction. According to Hill’s pleadings, Barker apologized to her for his conduct that same day once he had heard that she was upset by the interaction she had had with him. Based on the pleadings, I find that the pleadings in this regard do not make out a prima facie case for discrimination or harassment. [108] Taken at its highest, and in light of the pleadings regarding Hill’s ungrieved five day suspension for unreported contact with an inmate, there is nothing in the allegations regarding Barker’s investigation of the security tapes showing the grievor in conversation with the same inmate that establishes a prima facie case for discrimination or harassment. In circumstances in which Hill had already been disciplined for contact with the individual, it is highly unlikely that the Board would find that Barker, who was the Superintendent of the NBJ, or St. Louis, who was the Deputy Superintendent of the Jail, could not act within their respective management and supervisory authority in asking the grievor how long she had been in conversation with the particular inmate. [109] The grievor’s final pleading regarding Barker indicating that he was flattered that Hill was “freaked out” by upper management does not make out a prima facie case for discrimination or harassment. The comment is at best another example of Barker’s poor communication style, but does not rise above that. [110] For the reasons outlined above, I find that Hill’s pleadings do not disclose a prima facie case for breach of the Collective Agreement or any legislation. In all the circumstances I uphold the Employer’s motion to strike the pleadings as they relate to Tracy Hill. Jennifer Aarnamo [111] The Employer argues that most of this grievor’s allegations relate to matters about which settlements have been reached in the grievance process, and as such, the Union should be precluded from relying on those pleadings. It also argues that some of the allegations are untimely, having arisen eight months before the filing of the grievance, or having occurred subsequent to the filing of the grievance, and therefore should not be part of the present grievance. [112] Aarnamo’s complaints may be summarized as follows from the Union’s pleadings: a) The grievor was a defensive tactics instructor in October 2011 when she was assigned to teach on an Escort Recertification training day. She understood, and it was confirmed by the Provincial Coordinator for Defensive Tactics, that a Lead - 26 - Instructor also had to be present for such courses. Through the scheduling officer, the grievor advised Barker of this, and received word back that if she did not teach the course, her hours for that day would be cancelled. Aarnamo did not teach the course, her hours for the day were cancelled, and she was not paid as she was an unclassified officer. The grievor believes that from that point on her relationship with Barker became progressively worse. b) Between late September 2011 and March 1, 2012 the grievor submitted requests to participate in three training opportunities, but Barker denied each request. On October 21, 2011 a Coordinator at Bell Cairn sent Barker an email recommending Aarnamo for the course. Barker called the Coordinator back and allegedly told him that it was not his place to tell Barker who should go on a course. c) Barker is alleged to have called the Provincial Coordinator for Defensive Tactics and told him that the grievor was a “problem starter” or something to that effect. d) The grievor was a member of the ICIT team at the NBJ, and was selected by her team colleagues as their new Team Lead. On or around October 31, 2011 the grievor was advised by the Team Coordinator that Barker wanted to pick his own Team Lead, so the grievor could not be so designated. From that point until Aarnamo left the NBJ in 2012, Barker never appointed a Team Lead for the ICIT Team. However, after she left in September 2012, the ICIT Team was permitted to vote for its own Team Lead. e) On or around December 12, 2011 Barker spoke to the grievor about her last use of force incident where he felt that she had used excessive force with an inmate when the inmate was compliant. She explained why she had acted as she had, that she believed it had been the appropriate use of a hold; and she asked if the Ministry policy in that regard was changing. Barker indicated it was changing; the grievor disagreed with him and felt that the Defensive Tactics Coordinator should be told if there was a change so that training materials could be changed; Barker told her she would have a hard time defending her report in court, indicated he was just giving her advice, and asked why she was fighting him on this as it was not disciplinary. He indicated that the next time it would be found to be an excessive use of force, and that he expected more of her as an instructor. Aarnamo later investigated and was told that there was no change to the applicable policies. f) On or around January 11, 2012 the grievor submitted a compassionate transfer request in order to return home to Thunder Bay. Barker denied the request indicating there were no spots in Thunder Bay, and that there was a hold on transfers at that time. In early April 2012 the grievor contacted the transition unit and was advised there were no holds on transfers. At the end of June 2012, when she was in Thunder Bay for a visit, the grievor did tours of the facilities there, and was told at the correctional centre that they were short of unclassified officers, so overtime work would be readily available if she transferred there. - 27 - g) On or around April 18, 2012 Barker told the grievor he had heard that she thought he had it “out” for her, and indicated that if he did, he could “mess with” her transfer to Thunder Bay, or not transfer her at all. h) In the week of May 6 to June 1, 2012 the grievor was teaching courses for employees at the Bluewater Youth Center and the Cecil Facer Youth Center. The regular practice is for instructors to be paid 10 hours pay for teaching an eight hour day, as it compensates for preparation, travel and clean up time daily. When the grievor received her pay cheque covering that period she saw that she was missing 10 hours of pay. She was told that the pay had been withheld because Barker would not approve the extra hours pay. The grievor called Barker, and he told her no set up time was required for her training. He indicated he was waiting for clarification from the College regarding her pay. The grievor asked someone from the College to call Barker and clarify the practice with him; she was aware that Barker had been called; but she still did not receive payment for the extra hours on her next pay cheques. Only after the filing of the current grievance was the grievor paid for the lost hours, but then only at straight time rates, not at overtime rates as is the practice for other instructors. i) On or around July 4, 2012 Aarnamo applied for a transfer to the Thunder Bay Correctional Center (“TBCC”). The transfer was approved on August 24, 2012 and she started work at the TBCC on September 4, 2012. j) On or around July 31, 2012 Barker called the Provincial ICIT Coordinator to complain about the grievor having activated ICIT without authorization or an activation, and asked that she be investigated. In fact the ICIT had been activated by the Regional Director that day, and the grievor was not investigated for the event. Nonetheless, Barker conducted his own local investigation, and placed an allegedly baseless letter of counsel on the grievor’s file for making a change to the Situation, Mission, Equipment, Administration, Communication. The letter of counsel was issued on September 8, 2012, four days after the grievor had begun work in her new location, and was sent to her new Superintendent. The grievor felt that this was Barker’s attempt to sabotage and undermine her at her new facility, and to prevent her from getting a fresh start. k) On August 1, 2012 the grievor’s then-partner, Eric Jubinville, submitted a transfer request in order to join the grievor in Thunder Bay. The grievor alleges that Barker deliberately and intentionally delayed Jubinville’s transfer request to further retaliate against her. [113] On June 22, 2012 the grievor filed a grievance regarding the Employer’s failure to pay her the requisite hours for the training courses she had taught between May 7 and June 1, 2012. She requested that she be paid for two extra hours per training day, that any hours in excess of 40 hours per week be paid at the overtime rate, and that in the future the policy of 10 hours pay for a training day be followed. The grievance was later withdrawn when it was settled on the basis that the grievor would be paid two hours more per training day at straight time rates. - 28 - [114] On September 13, 2012 Aarnamo filed two grievances: the first was with respect to the September 2012 letter of counsel, which the grievor wanted removed from her record; and the second grievance alleged that the NBJ management was continuing to engage in harassing actions against her, and she wanted the harassment and discrimination to cease immediately. These grievances appear to remain outstanding. [115] The Union argues that this grievor’s pleadings fall within the three year guideline for harassment and discrimination grievances, and as such should not be found to be untimely. [116] Regarding the no prima facie case objection, the Union argues that Aarnamo’s pleadings show a pattern of bullying and harassment, as well as differential treatment in respect of the ICIT team lead position. [117] With respect to the matter that was grieved and settled, the Union argues that Aarnamo had filed that as an individual grievance and should be allowed to pursue her allegations of harassment in that regard as part of this group grievance. The Union indicates it would not be seeking the type of remedy that the grievor was seeking in her grievance, or for which she has already settled. [118] It appears from a reading of this grievor’s particulars that the October 2011 incident is outlined simply to indicate why she believes that from that point on her relationship with Barker became progressively worse. Accepting the Union’s pleadings as true, they would not form the basis for a finding of a breach of the Collective Agreement or any legislation. However, as these particulars form the basis of the grievor’s belief regarding harassment and discrimination, the Board will permit the Union to rely on the pleadings for background, rather than for the truth of their content. [119] Aarnamo’s pleadings regarding being short-paid for the week of May 6 to June 1, 2012 were addressed in her grievance of June 22, 2012, and the subsequent settlement of that grievance. For reasons already outlined earlier, and in light of the Board’s interest in maintaining the sanctity of settlements reached, the Union may not rely on any particulars in respect of that matter in this proceeding. [120] All matters that arose after the date of the filing of the group grievance, June 21, 2012, may not be relied upon in this proceeding. The one exception is with respect to the grievor’s pleading regarding her June 29, 2012 visit to the Thunder Bay Correctional Centre, as that particular relates to her request for compassionate transfer, which had been made in January 2012. [121] I note that Aarnamo has filed separate grievances with respect to matters that arose after June 2012, and that those grievances remain outstanding. Those matters are not currently before me. If those grievances have not been resolved, the parties may wish to discuss whether in the interests of efficiency those grievances should be consolidated with the present grievance. [122] I am satisfied that with respect to all other pleadings in respect of this grievor, the Union has established a prima facie case, and the pleadings are timely on the basis of - 29 - the three year guideline for this type of grievance. As such, in respect of Jennifer Aarnamo, the Employer’s motion is granted in part, but as outlined above, the Board will hear the remainder of this grievor’s allegations. Teena Cross [123] The Union has filed extensive pleadings in respect of this grievor. The Employer took issue with only one aspect of the Cross particulars because that matter had been the subject of a grievance, which was subsequently withdrawn when Cross was given two compassionate days for her use of sick credits on June 11 and 12, 2012. As such, the Employer argued that the grievor cannot continue to rely on allegations related to the matter that led to that grievance. [124] According to the Union’s pleadings, the grievor was off sick from May 25 to June 11, 2012. While she was off work, she learned that a second person of interest in a case relating to her step son’s disappearance was being held at the NBJ. She contacted Deputy Superintendent St. Louis about it. He told her why the individual had to be at the NBJ, but assured her that when she returned from sick leave the person would be segregated and the grievor would receive a post that would ensure no contact with the individual. The grievor initially agreed, but then called St. Louis back to advise that she could not enter the building while the person was there. She therefore remained off sick until June 15, 2012. [125] The Union argues that the pleadings should not be struck as the facts go to establishing a pattern of treatment of this particular grievor. [126] As in respect of other pleadings regarding matters that were grieved and settled by various of the grievors in this group grievance, and for the same reasons that have been outlined earlier, this grievor will not be permitted to rely on pleadings in respect of matters that have been resolved. Having received a settlement, and having withdrawn her grievance regarding the two days sick leave, the Union and Ms. Cross cannot resile from their agreement that the issue had been resolved. [127] The Employer’s motion in respect of this aspect of Teena Cross’ pleadings is upheld. I note that no issue was taken with the remainder of the Cross pleadings. * * * [128] To summarize, I am satisfied that with respect to Jennifer Aarnamo the Union has met the threshold of a prima facie case for harassment, bullying, and gender discrimination, to the extent outlined above. Teena Cross’ pleadings were largely not the subject of the Employer’s motions, except to the extent outlined above. For the reasons outlined above, the only grievors remaining in the group grievance are Aarnamo and Cross. [129] In order that the Board may hear the remaining aspects of the group grievance this matter is referred to the Registrar to set further hearing dates in consultation with the parties. - 30 - [130] I remain seized. Dated at Toronto, Ontario this 5th day of August 2015. Gail Misra Vice-Chair