HomeMy WebLinkAbout2013-0047.Yole.17-03-22 Decision
Crown 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#2013-0047
UNION#2013-0234-0029
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Yole) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Ann Fowler
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING March 8, 2017
- 2 -
Decision
[1] The Employer and the Union at the Maplehurst Correctional Centre agreed to
participate in the Expedited Mediation-Arbitration process in accordance with the
negotiated Protocol. A number of the grievances were settled through that
process. However, this grievance remained unresolved requiring a decision from
this Board. The Protocol provides that decisions will be issued within a relatively
short period of time after the actual mediation sessions and will be without
reasons. Further, the decision is to be without prejudice and precedent.
[2] William Yole is a Correctional Officer who filed a grievance alleging a violation of
the Collective Agreement, various policies and procedures as well as “any other
applicable legislation” regarding the matter of smoking in and around the
workplace and the resulting second hand smoke.
[3] By way of remedy the grievor requested, in part:
• Full compensation and redress including compound interest
• An award payment for damages to my health in the amount of
$1000 for every year that I have been exposed to second hand
smoke within/on/ or around the workplace
• An award payment equal to my maximum life insurance amount
available through the group insurance plan representing future
[4] Before the Union set out the facts that led to the filing of this grievance the
Employer raised the matter of this Board’s jurisdiction to award the remedy set
out in Mr. Yole’s grievance and asked for a ruling in that regard.
[5] The Employer urged that in the event that the merits of this matter can be proven
the Board cannot award compensatory damages as set out in Re OPSEU v.
Ontario (Ministry of Community Safety and Correctional Services and Ministry of
Children and Youth Service - Monk et al) [2010] O.G.S.B. A. No 119 (Gray),
- 3 -
upheld by Divisional Court [2012] O.J. No. 4301 and the Court of Appeal [2013]
O.J. No. 2369. A ruling regarding this objection was requested.
[6] I agree with the Employer’s view. The issue before Vice Chair Gray was the very
matter that is set out in Mr. Yole’s grievance, that is, second hand cigarette
smoke in the workplace. It was determined by Vice Chair Gray, and upheld by
the Court of Appeal that claims for compensation including damages are the
exclusive jurisdiction of the Worker’s Safety Insurance Act.
[7] Accordingly, even in the event that the grievor could prove the allegations set out
in his grievance, I am without the jurisdiction to award much of the remedy that is
requested.
Dated at Toronto, Ontario this 22nd day of March 2017.
Felicity D. Briggs, Vice Chair