HomeMy WebLinkAbout1989-1445.Gallina.95-10-06 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
18(;' DUNOAS STREET wEST, SUITE £100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TELePHONE.. (,~6) 326-~388
180, RUE DUNOA$ OUEST, BUREAU 2100, TORONTO {ONTARIO). MSG IZ8 FACStMI£E/T~:L~COPIE : (416) 226-1396
GSB ~ 1445/89, 2231/90, 2232/90, 1135/91, 1285/91, 2897/91,
2898/91
OPSEU ~ 89E728, 91A074, 91A075, 91B885, 91B944, 92A223, 92A224
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Sallina)
~ Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE J. Samuels Vice-Chairperson
F. Taylor Member
A. Merritt Member
FOR THE C. wilkey
GRIEVOR Counsel
Urselt & Wilkey
Barristers & Solicitors
FOR THE D. Gorelle '
EMPLOYER Counsel
Mathews, Dinsdale & Clark
' Barristers & Solicitors
HEARING
Nover0ber 28, 1990 April 22, 29, 1991
May 8, 1991 June 4, 10, 11, 1991
December 10, 11, 1991 January 21, 28, 1992
March 11, 1992 April 21, 1992
May 11, 26, 27, 1992 June 9, 10, 1992
November 16, 17, 30, 1992 December 1, 15, 16, 1992
January 25, 1993 February 10, 1993
June 2, 1993 September 8, 1993
November 28, 1994 December 14, 1994
January 23, 1995 May 8, 1995
Introduction
The grievor, a Correctional Officer at the Metro Toronto East
Detention Centre (MTEDC), filed a number of grievances which have been
consolidated before this panel, most of which deal with allegations that the
Ministry failed to take reasonable provisions for his safety and health
during the hours of employment and thereby violated Article 18.1 of the
collective agreement.
Up to May 8, 1995, this Board had convened thirty-one times over a
period of roughly four and one-half years, hearing the testimony of eleven
witnesses, and receiving into evidence 108 documents. We expected to
hear several more witnesses to be called by i the Ministry, including the
gentleman who is alleged by the grievor to be the principal author of the
grievor's misfortunes. And it appeared likely that the Union would have
some testimony in reply after the Ministry had called all its witnesses.
On May 8, 1995, the Ministry moved that we draw this heating to a
close on the basis of issue estoppel. The motion was based on a decision
released on March 7, 1995 by a panel of the Labour Relations Tribunal
under the Crown Employees Collective Bargaining Act, chaired by Mr. D.
Stanley, in which the Tribunal dealt with complaints alleging breaches of
various sections of the Act, some of which related to events involving our
grievor. These events also figure prominentlY in the grievances before us.
The Tribunars hearing had consumed twentyTthree days over a period of
just over three years. The Ministry argues now that the findings by the
Tribunal are sufficient to raise issue estoppel with respect to the matters
before us.
In order to determine the Ministry's motion, it is necessary for us to
look in some detail at
· the grievances before us, and the issues they raise
· the relevant matters about which we have already heard testimony
· the findings of the Tribunal in the award of March 7, 1995, and
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· the requirements of issue estoppel, and the application of the
doctrine in our circumstances.
The Grievan{~es before this Panel, and the issues they raise
We are seized of the following grievances (Note: All quotations
have been corrected for spelling.)
· 1445/89, September 24, 1989, '"that my rights under article
18.1 have been violated, by Mr. Stevens (OM 14)-and Mr.
Mitchell (Superintendent of A + D)". The Settlement Desired is
"Cease and desist, to return to A + D with proper training for the
full term. Letters of apology by Mr. Stevens (OM 14) and Mr.
Mitchell (Superintendent in charge of A + D), a copy of letters of
apology be posted on Union bulletin board. That Mr. Stevens
OM 14) and Mr. Mitchell (Superintendent in charge of A + D)
not sit on any tribunal concerning me directly, ie. promotional,
disciplinary, discovery, etc. Also that the six weeks off
commencing from September 7, 1989 to October 23, 1989 not be
used against me in any way and to be reimbursed for all money
and time lost. Until settlement of grievance."
In her opening remarks, counsel for the Union explained that she
intended to show a pattern of personal harassment of the grievor
by Mr. Dan Stevens, a supervisor at the Metro Toronto East
Detention Centre. Mr. Stevens style and use of authority went
beyond institutional requirements--he rebuked the grievor in
'front of his co-workers; he went out of his way to create scenes in
order to humiliate the grievor. Mr. Stevens criticized or
disciplined the grievor concerning matters for which the grievor
had inadecuate training, and the lack of training was the
responsibility of Mr. Stevens. As.a result of Mr. Stevens'
conduct, the grievor suffered stress and anxiety, and his health
was demonstrably threatened. The grievor experienced an
unprecedented and dangerous elevation of his blood pressure. He
is under medical care, and has consulted with a psychiatrist. And
the Ministry failed to respond to Mr. Stevens' conduct. Indeed, it
was alleged that management actually complied in Mr. Stevens'
torment of the grievor, and therefore' the impact on the grievor
was intensified. In addition to the remedies mentioned in the
grievance itself, counsel now requested an order that the
institution ensure that Mr. Stevens does not bother the grievor
any further, or a transfer of the grievor to some other mutually
acceptable institution.
· 2231/90, November 10, 1990, "that I was unfairly
reprimanded by OM 14 Stevens who on October 13, 1990 in 3C
unit office accused me of neglect of duties in 2C unit". The
Settlement Desired
1. I wish to have letters of apology from Mrs. Doherty, Mr.
Small, Mr. Khan and Mr. Stevens.
2. I wish to have 80 hours with pay time off for mental
anguish.
3. Full investigation by G. S. B. into my complaint.
4. Management cease and desist from such practices.
· 2232/90, November 10, 1990, "that OM 14 Stevens has been
overly supervising me to a point'~that could be viewed as
harassment". The Settlement Desired is-
l. 80 hours pay
2. Letters of apology from Mrs. Doherty, Mr. Small, Mr.
Khan and Mr. Stevens.
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3. Full investigation by G. S. B. into my complaint.
4. Management cease and desist from such practices.
These two grievances were put'before us at our second day of
hearing on April 22, 1991. Counsel for the Union explained that
they dealt with an ~incident of discipline without just cause, and a
continuation of the pattern of conduct which was the subject of .
the initial grievance of September 24, 1989.. Again, the remedy
requested was expanded by the suggestion of a transfer of the
grievor to another facility.
1285/91, April 28, 1991, "including but not limited to section
18.1, 10.00, 54.00 of the collective agreement and the preamble
that my rights have been violated". The Settlement Desired is
1. Return to same slot
2. 88 hours pay and.time off
3. Full inquiry into WCB practices at the Toronto East
Detention Centre
'4. Letters of apology from Mrs.. D. Doherty, Mr. Small and
Mr. Mitchell, also
5. To be posted on union bulletin board ail findings to WCB
inquiry and letters of apology.
1135/91, May 22, 1991, "including but not limited to section
54 of collective agreement ! grieve that management has violated
this article". The Settlement Desired is
1. Letters of apology by Mrs. D. Doherty, Mr. Mitchell and
Mrs, Fear-Thompson
2. I20 hours LOA with pay
3. Letters of apology to be placed on union bulletin board
4. Investigation into WCB practices with'TEDC management.
These two grievances came to us at the commencement of our
ninth day of hearing on December 11, 1991. With respect to the
April 1991 grievance, counsel for the Union explained that it
related to a change in the grievor's shift schedule, which involved
discrimination, reprisal for the grievor being on WCB benefits,
and continuing harassment because iof the grievances relating to
Dan Stevens. The grievance raises matters of health and safety,
shift scheduling, and WCB benefits, i
With respect to the May 1991 grievance, counsel explained that it
related tO the way in which management had dealt with the
grievor's WCB claim (which, by the time of our hearing, had
been sorted out), and involved a continuation of the pattern of
harassment.
· 2897/91, January 3, 1992, "including but not limited to
section 18.1 wilfully applied unwelcomed stress and harassment
on myself for no specific reason by Mr. Cowie Deputy
Superintendent". The Settlement Desired is "Letter of' apology to
myself also to be placed on union bulletin board and 120 hours
paid time off'.
· 2898/91, January 3, 1992, "including but not limited to
section 27.10.1 against Deputy Superintendent Mr. Cowie". The
Settlement Desired is "Letter of apology to myself and my wife
Christine Danford also letter to be placed on union bulletin board
and verbal apology given on parade for total of 7 days. Also 120
hours paid time off'.
These two grievances were put before us at the commencement of
our twelfth day of hearing on March 11, 1992. They both related
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to an' incident involving the grievor and a co-worker, with respect
to which the grievor was spoken to by Deputy Superintendent
Cowie. The grievor took exception to the way 'Mr. Cowie
handled the matter.
Relevant matters about which we have al_ready heard testimony
We turn now to an ~outline of the matters about which we have
already heard testimony. At this point in time, it serves our purposes to
refer only to the identity of the matters, rather than the content of the
testimony, because the issue before us now involves a claim by the Ministry
that the Tribunal has determined the matters before usmthe actual
determination by the Tribunal is not the issue. The initial question here is
whether or not the Tribunal has dealt with the matters before us.
In light' of the issues raised in the grievances, the testimony we have
heard and the supporting documents give rise to the following matters for
determination by us (the evidentiary source of the matter for determination
is shown in brackets):
1. Was the grievor's health affected by-events or persons at the
workplace, and to what extent? (Testimony from the grievor,
and his psychiatrist, Dr. T. J. Enright, and a number of
occurrence reports, medical certificates and other medical
information, as well as our own observations of the grievor's
response to the recollection of various events and issues)
2. When the grievor moved to Admission and Discharge ("A and
D") in July 1989, had he been given or. was he given adequate
training for the work, in particular concerning "red-bagging"
(packing up the effects of an inmate who was moving to another
facility)? (Testimony from the grievor, Michael McKinnon)
3. In the first week of the grievor's time in A and D, did Dan
Stevens rebuke the'grievor with respect to the re-admission of
8 '
an inmate to 2A, and was this rebuke objectionable? (Testimony
from the grievor)
4. On August 3, 1989, did Dan Stevens do wrong by assigning the
grievor to the "pit" area? Later that shift, did Dan Stevens
wrongfully and inappropriately deny the grievor the right to
leave at 18:45, after giving the grievor permission to leave at
that time? Had the grievor used the office phone, when this was
inappropriate? And following the end of the grievor's shift, did
Dan Stevens tell the grievor to "smarten up and pull your
weight", and threaten to "teach the grievor a lesson" and to
"deal with the grievor in different ways"? And if this occurred,
was Mr. Stevens acting improperly? (Testimony of the grievor,
Michael McKinnon)
5. On August 7, 1989, when the grievor was assigned to a floor,
did Dan Stevens act improperly when he called for help in A
and D and failed to include the grievor in the group called,
thereby excluding the grievor from the "team" and insulting the
grievor? (Testimony of the grievor)'
6. On September 5, 1989, did Dan Stevens wrongfully demand an
occurrence report from the grievor, concerning a call in sick
(later saying it wasn't necessary),' and thereby demean the
grievor? (Testimony of the grievor,.iDiane Doherty)
7. On September 6, 1989, was the grievor wrongfully "singled
out", when he was assigned at the outset to the pit, and taken out
of A and D Control? Later that shift, did the grievor err in his
handling of the "red-bagging" to which he was assigned? And
on the next day, did Dan Stevens act wrongfully in his response
to the grievor's red-bagging the night before, causing the
grievor to feel "centered out" and physically ill (including an
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extremely dangerous elevation of the grievor's blood pressure)?
(Testimony of the grievor, Michael McKinnon, Diane Doherty)
8. In September 1989, did the institution or any~particular member
of management (in particular, Assistant Superintendent
Mitchell) deal improperly with the grievor's claim for worker's
compensation? (Testimony of the grievor)
9. ~ October I989, did Assistant Superintendent Mitchell act
improperly in removing the grievor from A and D and
assigning him to the floor? (Testimony of the grievor)
10. On October 23, 1989, did 'Superintendent Simps°n act
wrongfully in discussing with the grievor the grievor's state of
health and possible reasons for the grievor's condition?
(Testimony from the grievor)
11. On'January 11, 1990, did Dan Stevens act improperly towards
the grievor during Mr. Stevens' investigation into some missing
spoons an event which caused the grievor to attend in the
nurse's office, and the nurse told the grievor to go straight to an
emergency unit because of high blood pressure? (Testimony of
the grievor, Michael McKinnon, Bill Lee, Diane Doherty)
12. At a meeting on 'April 12, 1990, did Dan Stevens threaten the
grievor by suggesting that certain action would be taken unless
the grievor dropped all complaints? (Testimony of the grievor)
13. And were similar threats made on April 17, 19907 (Testimony
of the grievor)
14. in August 1990, did the institution or any particular member of
management (in particular, Assistant Superintendent Mitchell)
deal improperly with the grievor's claim for .worker's
compensation? (Testimony of the gdevor)
15. At an attendance review meeting on September 20, 1990, did
any member of management act improperly towards the
10
grievor? (Testimony of the grievor, Michael McKinnon, and
Diane Doherty)
16. On September 25, 1990, did Dan stevens act improperly during
his brief meeting with the grievor? (Testimony of the grievor)
17. On September 28, 1990 (or it may have been October 13), did
Dan Stevens act improperly in the morning by "hanging around
near the bulletin boards" in the grievor% vicinity, and in the
afternoon staying unnecessarily near the grievor in the pool
room for a period of time? (Testimony of the grievor)
18. On September 29, 1990, did Dan Stevens act improperly by
conversing with and being near the grievor unnecessarily?
(Testimony of the grievor)
19. And on that same day, was it Dan Stevens who reassigned the
grievor from 2A to 2C? And, if so, was there something
improper in this action? (Testimony of the grievor)
20. On October 4, 1990, did Dan Stevens meet the grievor in the
locker room and pool room, and did he come to the pool room
solely to harass the grievor? (Testimony of the grievor)
21. And was there a meeting in the pool room in similar
circumstances on October 12, 19907
22. And was there a meeting in the pool room in similar
circumstances on October 13, 19907 ·
(Note: with respect to one of these pool room meetings the
date is unspecified we also heard the testimony of Mr. Allan
Goldsmith.)
23. On October 13, 1990, did the griev0r leave his post during the
escort of an inmate? And 'did Dan Stevens act improperly in his
response to the grievor's conduct? (Testimony of the grievor,
Allan Goldsmith, Michael McKinnon, Diane Doherty--note:
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the two grievances of November 10, 1990, relate directly to
these events.)
24. In late- 1990/early- 1991, did any member of management deal
improperly with the grievor's claim 'for worker's
compensation? (Testimony of the grievor, Michael McKinnon,
Elaine Fear-Thompsonmthese "difficulties" led to the grievance
of May 22,1991)
25. In April 1991, did management act improperly in assigning a
new work schedule to the grievor? (Testimony of the grievor,
Michael McKinnon, Diane Doherty--this change of schedule led
directly to the grievance of April 28, 1991)
26. In mid-1991, did Dan Stevens go out of his way to confront and
bother the grievor? (Testimony of the grievor)
27. In mid-October 1991, did Dan Stevens act improperly when he
came to 3B to give the grievor a pouch and asked the grievor to
.sign for it? (Testimony of the grievor)
28. Generally, did Dan Stevens have a "style" of exercising
authority which was improper in any way? (Testimony of the
grievor, Allan Goldsmith, Michael McKinnon, Donald
Stockwood)
29. In December 1991, did Deputy Superintendent Cowie act
improperly in dealing with the grievor and a female officer who
were together in a washroom for a period of time? (Testimony
of the grievor, Michael McKinnon, Derek Miller, Diane
Doherty and Cowie--these events gave rise to the two
grievances filed in January 1992)
30. Because the grievor is a sizable individual, did management call
on the grievor too often to deal with tr'oublesome inmates?
(Testimony of the grievor, Michael McKinnon, D. lane Doherty)
' : I2
31. What steps were taken by the Ministry to help the grievor cope
with his mental, emotional and physical problems? (Testimony
from the grievor, Michael McKinnon, Derek Miller, Ted
Loughead, Bill Lee, Diane Doherty, and documents .... in
particular, much said and on paper concerning settlement offers
by the Ministry. This Board had ruled that we ought to know
about the settlement offers, because these offers were important
efforts by the Ministry to satisfy the grievor's concerns. The
evidence we heard related to offers up to September 8, 1993.
On that date, in open hearing, the parties agreed that any new
settlement discussions would be on a fully confidential basis.
And this Board told the parties that we would respect this
mutual desire.)
And all of these evidentiary issues give rise to three summary legal
issues--
32. If the Ministry or any member Of management acted improperly
and thereby imperiled the grievor's health, was there a violation
of Article 18.1 of the collective agreement?
33. If the Ministry and members of m .anagement were not at fault
and were not responsible for the grievor's state of health, was
there nonetheless a violation of Article 18.1 of the collective
agreement?
34. If the Ministry and members of management were not at fault
and were not responsible for the grievor's state of health, and if
the Ministry did not violate Article 18.1 of the collective
agreement, is the grievor simply unfit for the work?
The Tribunal's Award of March 7, 1995
The Union brought two complaints, involving allegations by nine
individual employees, to the. Labour Relations Tribunal. Our grievor was
one of the nine employees. The complaints alleged that management
violated sections 29 and 37 of the Crown Employees Collective Bargaining
A ctmin brief, that management acted improperly by attempting to
intimidate the employees in order to prevent them from exercising their
rights under the Act, and that management acted with an improper motive
(improper because it involved an anti-Union bias).
The Tribunal issued its award on March 7, 1995.
The panel said 'it "heard evidence of clearly inappropriate and ill
advised management behaviour which gives some credence to the general
thrust of the Union's case" (at page 5-6), and that
...we come away from the case with a profound
sense of dismay. We are convinced that there is,
or at 'least was; a real problem at this
institUtion...(at page 6).
But then the Tribunal looked at the particular allegations of each of the
nine employees. And} with respect to our grievor, the Tribunal concluded'
that none of the incidents he complained of constituted a violation of the
Act.
Generally, in all of the above incidents, we
conclude that management was taking reasonable
steps to'accommodate Gallina with very little
support from Gallina whose objectives seemed to
be something other than returning to a normal
working relationship in the Toronto East
Detention Centxe. (at page 30)
Turning to the Tribunal's detailed discussion of Gallina's complaints,
we find:
14
1. Dan Stevens testified that he knew that in 1988-89 Gallina was
intimidated by him. He specifically denied an allegation made in
cross-examination that from 1989 on he tried to make a point of
ending up in confrontational situations with Gallina. He
specifically denied that he "enjoyed" intimidating Gallina
through these confrontations. (page' 14) This denial must have
been accepted by the Tribunal, given the Tribunal's general
conclusion concerning Mr. Gallina's 'complaints.
2. The Tribunal heard full evidence concerning the "red-bagging"
incident of September 1989 that was explained to us in detail by
the grievor. The Tribunars description of the incident is a good
summary of the testimony we heard from the grievor, In his
testimony before the Tribunal, Mr. Stevens referred to the
admonishment he gave Mr. Gallina in front of other officers
and said that "in hindsight he would have done it differently".
(pages 14-16)
3. The Tribunal heard full evidence concerning the "spoons
incident" of January 1990 (discussed in the award from page 16
to 18). Counsel for the Union at the Tribunal hearing argued
that Stevens was unfairly accusatorial towards Gallina in asking
him about the allegedly missing spoons, and that the only
conclusion to be drawn from the events is that Stevens knew
Gallina was on that unit and that he went there to intimidate
him. These are the same suggestions made to us by the grievor
in his testimony. The Tribunal rejected the Union's arguments
and concluded that Stevens' evidencb was to be preferred. The
Tribunal summed up this matter as follows:
15
We cannot conclude that Stevens had any
intention of harassing or intimidating
Gallina in this incident or that there was
anything exceptional in any of his actions.
(at page 18)
4. The Tribunal heard full evidence concerning a pre-hearing
grievance meeting at which, it is alleged by the grievor, Stevens
threatened to bring assault charges against Gallina unless Gallina
dropped his harassment grievance. At the TribunaI hearing,
Gallina said this meeting was "in March 1990", but Stevens said
it took place on April 20, 1990. The facts are the same as the
meeting we heard about from the grievor--said to be on April
12, 1990, in our hearing. Whatever the date of the meeting,
there is no doubt that the Tribunal heard full evidence about the
meeting. (at pages 18-22) The Tribunal's conclusion about this
evidence is in its general conclusion at the end of the section on
Gallina
we conclude that management was taking
reasonable steps to accommodate Gallina
with very little ~support from Gallina whose
objectives seemed .to-be something other
than returning to a normal working
relationship in the Toronto East Detention
Centre. (at page 30)
5. The Tribunal heard all' about the meeting between Gallina and
Stevens on April 17, 1990 (at pages 23-25). In re-examination,
Stevens testified that he did not make the threatening statement
attributed to him by. Gallina (page 25). The Tribunal included
this evidence in its general conclusion--in other words, the
Tribunal accepted Mr. Stevens" version of the events.
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6. The Tribunal heard all about the attendance review meeting of
September 20, 1990 (at pages 25-26), and again took this
evidence into account in reaching its general conclusion.
7. The Tribunal considered the events of October 13,1990 (at
pages 27-29), and concluded specifically that it accepted Stevens'
version of events. "We are satisfied that there was nothing
improper in what he did" (at page 29).
8. Finally, the Tribunal considered incidents in 1989 and 1990,
described in Appendix B to Mr.' Gallina's complaint, and
concluded that "the allegations that management is engaged in a
campaign to discourage Gallina from exercising his rights to
WCB or sick leave are unfounded" (at page 30).
Issue Estoppel
An excellent discussion of issue estoppel is found in a recent decision
of the Court of Appeal for Ontario in Rasanen v. Rosemount Instruments
Limited (unpublished decision; heard on July 6, !993). In Rasanen, the
plaintiff had filed a claim for termination pay under the Employment
Standards Act. The referee concluded that no termination pay was owing
to Rasanen. So Rasanen sued for wrongful dismissal. The trial judge and
the Court of Appeal decided that the issues before the Court were the same
as before the referee, and the referee's finding was followed. In her
judgment, Madam Justice of Appeal Abella said (at pages 16 to 18):
At its simplest, issue estoppel is intended to
preclude relitigation of issues that have been
determined in a prior proceeding.. As stated by
Middleton J.A., in Mclntosh v. Parent (1924), 55
O.L.R. 522 at 555:
17.
Any right, question, or fact distin.ctly
put in issue and directly determined by a
court of competent jurisdiction as a
ground of recovery, or as an answer to a
claim set up, cannot be retried in a
subsequent suit between the same parties
or their privies, though for a different
cause of action. The right, question, or
fact, once determined, must, as between
them, be taken to be conclusively
established...
It arises as a doctrinal response.to the "twin
principles ... that there should be an end to
litigation and ... that the same party shall not be
harassed twice for the same cause." (Carl Zeiss
Stiftung v. Rayner and Keeper Ltd. and others
(No. 2), [1967] I A.C. 853 at 946; G. Spencer
Bower and A.K. Turner, The Doctrine of Res
Judicata, 2nd ed. (London: Butterworths, 1969) at
p. 10); see also the reasons of Lord Denning in
McIIKenny v. Chief Constable of West Midlands
Police Force, [1980] 2 All E.R. 227 (C.A.), affd
on other grounds, [1981] 3 All E.R. 727 (H.L.).)
As a species of estopped it is distinguishable from,
but clearly conceptually related to "cause of action
estoppel" or res judicata, which precludes the
bringing of an action when the same cause of
action .has already been determined by a court of
competent jurisdiction (Thoday v. Thoday, [1964] ..
1 All E.R. 341 (C.A.) at 352).
The proceedings before us involve issue
estoppel. Lord Guest summarized the
requirements of issue estoppel as follows in Carl
Zeiss, supra, at p.935:
1) that the same question has been decided;
2) that the judicial decision which is said to create
the estoppel was final; and
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3) that the parties to the judicial decision or their
privies were the same persons as the parties to the
proceedings in which the estoppel is raised or
their privies.
The proper inquiry in deciding whether the
requirements have been met is whether the
question to be decided in these proceedings is the
same as was contested in the earlier proceedings
and was, moreover, so fundamental to the
decision that it could not stand without the
determination of that question. (Angle v. Minister
of National Revenue, [1975] 2 S.C.R. 248 at 254-
255 per Dickson J.; Spens v. Inland Revenue
Com'rs, [1970] 3 All E.R. 295 at 301, per
Megarry J., quoting Bower and Turner, supra, at
pp.181-182.)
And the principle has been applied by the Grievance Settlement
Board in Battams, 543/81 (Delisle), and by arbitrators generally see City
of Sudbury and Canadian Union of Public Employees, Local 207 (1965),
15 LAC 403 (Reville); Canadian Airlines International Ltd. and Canadian
Union of Public Employees, Airline Division i(1993), 32 LAC (4th) 359
(Brown); Leisureworld Inc. c.o.b, as "Spencer House Retirement Home"
and Service Employees' International Union, Local 204 (1992), 27 LAC
(4th) 46 (Brunner); and Burrard Yarrows Corporation and United
Brotherhood of Carpenters and Joiners of America, Marine and
Shipbuilders, Local 506 and Sheet Metal Workers Association, Local 280
(1982), 7 LAC (3rd) 170 (Getz).
Conclusion
In our view, quite clearly the Tribunal dealt with some of the
questions which have been put before us. The Tribunal considered full
evidence concerning incidents which are pivotal to our deliberations and
made findings concerning the conduct of individuals during those incidents.
The Tribunal was dealing with complaints by our grievor against the same
19
employer, thus the parties 'are identical in the two proceedings. While the
complaints were cast in somewhat different terms, the incidents upon which
the Tribunal made its findings were discrete events and the Tribunal's
findings were based on the same or virmalIy.identical, testimony, from the
same wimesses, as we have already heard or would hear. The Tribunal's
decision is final.
In these circumstances, we have no hesitation in saying that, with
respect to those matters about which the Tribunal. has made a finding, the
principle of issue estoppel must be applied. Indeed, we can go further. In
light of all th~ evidence we have already heard, we can say that the
.Tribunal's findings are manifestly consistent with the testimony 'we have
heard, and the 'documents we have before us already. It would be a gross
waste of time for our panel to proceed any further with the matters about
which the Tribunal has ruled.
Thus, in the list of issues we have identified as arising in our case,
we accept the Tribunal's findings with respect to the following issues-~
· Issues 2 and 7 (with respect to the "red-bagging" incident only)
are determined by the Tribunal's finding related above in point 2.
(in the section of our award dealing with the Tribunars decision),
and in the'Tribunars general conclusion concerning Mr. Gallina's
complaints.
· Issues 8 and 14 are determined by the Tribunal's conclusions
about Mr. Gallina's WCB claims in 1989 and 90, related above in
point 8 (in the section of our award dealing with the Tribunal's
decision).
· Issue 11 is determined by the Tribunars conclusions concerning'
the "spoons" incident, related above in point 3 (in the section of
our award dealing with the Tribunars decision).
· Issues 12 and 13, concerning alleged threats by Mr. Stevens, are
determined by the Tribunars conclusions related above in points
20
4 and 5 (in the section of our award dealing with the Tribunal's
decision).
· Issue 15, concerning alleged impropriety by management at the
attend~ce review meeting of September 20, 1990, is determined
by the Tribunal's conclusions related in point 6 (in the section of
our award dealing with the Tribunal's decision).
· Issues 16, 17, 18, 20, 21, and 22, concerning allegations that Mr.
Stevens sought out Mr. Gallina simply to harass him, are
determined by the Tribunal's comment related in point 1 (in the
section of our award dealing with the.': Tribunars decision) and the
Tribunars general conclusion concerning the complaints of Mr..
Gallina.
· Issue 23, concerning the events of October 13, 1990, is
determined by the Tribunal's finding related in point 7 (in the
section of our award dealing with the Tribunal's decision).
We will continue to consider whatever further evidence and
argument the parties wish to enter or make on the remaining issues. In
general terms, these remaining issues relate to--events before October
1990, about which the Tribunal does not appear to have heard any
evidence; events which occurred after October 1990; and the legal
obligation of the Ministry under Article 18.1 ofI the collective agreement.
21
Seven of these issues--3, 4, 5, 6, 19, 26, and 27 . .concern the on-
going relationship between Messrs. Gallina and Stevens, and Mr. Gallina's
allegation that Mr. Stevens was deliberately acting Wrongfully towards Mr.
Gallina. We think it useful to comment at this stage that, even if we
accepted all of the.grievor's testimony concerning .these sevefi issues, in our
view the incidents are largely inconsequential and insignificant.
Done at London, Ontario, this 6th day of October: ,1995.
els, Vice-Chairperson
F. TaylOr, MembeJ -
A. Merritt, Member