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HomeMy WebLinkAbout2015-3255.Schultheis.18-03-23 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# 2015-3255; 2015-3263 UNION# 2015-0411-0044; 2016-0411-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Schultheis) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING February 26, 2018 -2- DECISION [1] This decision deals with the union’s objection to the employer’s intention to bring a preliminary motion. The preliminary motion would assert that the Board’s jurisprudence precludes the union from seeking damages on behalf of the grievor, on the basis that any provable damages are compensable under the WSIA. [2] The grievor is a Registered Nurse at the Ottawa Carlton Detention Centre. She was found to be suffering Post Traumatic Stress Disorder (PTSD) arising from a 2012 workplace incident. On that basis, she was found to be entitled to benefits pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 Sched. A [WSAI]. [3] The grievor did not take time off from work during the period immediately following the 2012 incident. Rather, various workplace accommodations were made to assist her to continue working. [4] The grievor subsequently left the workplace in August 2016, maintaining the employer was no longer willing to accommodate her. [5] The Workplace Safety & Insurance Board found the events leading to the grievor’s absence from the workplace constituted a recurrence of her PTSD, and consequently entitled her to WSAI benefits. [6] The grievor maintains, inter alia, that the employer has discriminated against her; harassed her; and failed to accommodate her in violation of the OHRC. She also alleges violation of her privacy rights pursuant to the Personal Health Information Act [PHIA] and the Freedom of Information and Protection of Privacy Act. [FIPPA/FOIPPA] [7] In addition to requesting the grievor be made whole, the union requests damages pursuant to the Ontario Human Rights Code (OHRC) for injury to -3- dignity, feelings and self-respect, and the employer’s alleged failure to accommodate her. [8] The immediate motion with which this decision deals i.e. to preclude the hearing of the employer’s preliminary motion, is somewhat unusual. It was difficult for the parties to argue the issue of whether the employer ought to be allowed to bring its motion, without reference to the arguments the parties would make, if the preliminary motion were heard. [9] Accordingly, it warrants emphasizing that this decision ought not, in any way, be construed as comment regarding the substantive merits of the preliminary motion – were it to proceed. Parties’ Positions: Employer [10] The employer submitted the Board is precluded from awarding the compensatory damages sought by the grievor, in accordance with the Board’s decision 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), upheld by Divisional Court [2012] O.J. No. 4301 and the Court of Appeal [2013] O.J. No. 2369. [11] In the Monk decision, at paragraph 110, Vice-Chair Gray found the Board was precluded from granting compensation pursuant to the health and safety provisions of the collective agreement, as any proven compensable injury or illness (resulting from second hand smoke) would have been compensable under the workers’ compensation scheme. [12] In making that determination, Vice-Chair Gray applied subsection 26(2) of the WSIA. That provision provides that where entitlement to WSIA benefits is established, such entitlement is in lieu of all other rights of action against an employer. -4- [13] The employer pointed out, and it was not disputed, that since the Monk decision, the Board has consistently applied the same analysis regarding damages, including for psychological injuries, that are compensable under the WSIA. [14] The employer maintained there were no novel issues raised in this instance, as the issue of the applicability of subsection 26(2) to human rights-based damages was addressed in OPSEU (Rosati) v. Ontario (MCSCS), GSB No. #2015-0548, 2015-1818; and OPSEU (Mohamed) v. Ontario (MAG), GSB No. 2015-3016, as well as in Béliveau St-Jacques v. Fédération des employées et employés de services publics Inc., [1996] 2 S.C.R. 345. [15] The Board maintained that consequently, I am bound by the “Blake Principle” to follow those decisions. (see in Amalgamated Transit Union (Blake et al) and The Crown in Right of Ontario (Toronto Area Transit Operating Authority) GSB No. 1276/87, May 3, 1988 (Shime). Specifically, that decision determined the Grievance Settlement Board is one board of arbitration, whose decisions have significant precedential value, and are not to be revisited in other than exceptional circumstances. [16] The employer noted it is not uncommon for issues of arbitral jurisdiction to be addressed as preliminary issues, and pointed out Monk was determined on the basis of a preliminary motion. [17] Indeed, the employer pointed out in that all post-Monk cases prior to this one, the parties agreed to deal with the issue of WSIA-related damages as a preliminary issue. Specifically, the employer referred to the following: OPSEU (Harrison) v. Ontario (MCSCS), GSB No. 2012-0185; OPSEU (Yole) v. Ontario (MCSCS), GSB No. 2013-0047; OPSEU (Patterson) v. Ontario (MCSCS), GSB No. 2015-1660, 2015-1661, 2015-2196, 2016-0106, 2016- 0107; OPSEU (Mohamed) v. Ontario (MAG), GSB No. 2015-3016; OPSEU -5- (Samuels et al) v. Ontario (MCSCS), GSB No. 2015-2885; and, OPSEU (Rosati) v. Ontario (MCSCS), supra. [18] The employer argued there was no reason to deviate from that approach in this instance. It maintained the issue ought to be dealt with as a preliminary matter, unless I was persuaded that doing so does not make good labour relations sense, or would be prejudicial. (see Cherubini Metal Works Ltd. v. United Steelworkers of America, Local 4122, 172 L.A.C.(4th) 1 and OPSEU (Esser et al) v. Ontario (MCSCS), GSB No. 2011-3658, 2011-3659, 2012- 0150. [19] The employer maintained that was not the case in this instance. Rather, the employer submitted there was merit in the parties knowing in advance, whether their potential exposure was limited to a declaratory remedy, or whether they also risk a monetary damages award – as this would affect their approach to the case. Union [20] The union pointed out that most of the cases relied on by the employer to argue that the Board’s prevailing practice post-Monk is to deal with the issue of WSIA damages as a preliminary matter, were conducted pursuant to the Expedited Mediation-Arbitration process, set out in Article 22.16 of the collective agreement. Consequently, the decisions are without prejudice or precedent. [21] Further, the union pointed out there is no dispute the Monk decision does not preclude a matter from proceeding on its merits, in order to seek other remedies not addressed by subsection 26(2) of the WSIA, such as a declaration. -6- [22] The union disagreed that the application of subsection 26(2) of the WSIA to human rights damages was resolved in the cases relied on by the employer, either in Ontario or in other Canadian jurisdictions. Rather, the union maintained that determination remained outstanding. (Both parties agreed the Board has, post-Monk, awarded damages for failure to accommodate pursuant to the OHRC, but that the issue of the application of subsection 26(2) of WSIA was not addressed). [23] Specifically, the union submitted the issue of the primacy of the OHRC over other legislation, set out in subsection 47(2) of the OHRC, and its intersection with subsection 26(2) of the WSIA, has not been previously canvassed. [24] The union further maintained that in any event, the alleged breaches of the grievor’s privacy are not compensable under the WSIA. That being the case, there would be no efficiencies in dispensing with the issue of my authority to grant OHRC-related damages as a preliminary matter, as the same evidence would be called in support of the request for a declaration, and/or damages pursuant to the OHRC and PHIA, and FIPPA. [25] Accordingly, given the interconnectedness of the evidence, as well as the complexity and importance of that issue, the union maintains these issues were best determined in the context of the merits and evidence in this matter. [26] In support of its position, the union relied on the following: Ontario (Ministry of Government and Consumer Services) and OPSEU, 128 C.L.A.S. 317; Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Grievor) 124 C.L.AS. 175; O.L.B.E.U v. Ontario (Liquor Control Board), 82 C.L.A.S. 187; Nova Scotia Police Association. v. Amherst (Town), 106 C.L.AS. 31; Cargill Foods v. U.F.C.W. Local 175 & 633, 2009 CarswellOnt 7692; Monk et al, supra; Mohamed, supra; Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Pereira), 127 C.L.A.S. 101; Toronto (City) and CUPE, Local 79 (Charles), Re, 117 C.L.A.S. 244; Tranchemontagne v. Ontario (Director, Disability Support Program), -7- 2006 SCC 14; XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, 2012; Snow v. Honda of Canada Manufacturing, 2007 HRTO 452007; Eidoo v. Infineon Technologies AG, 2015 ONSC 5493; Decision No. 1529/0412, 2008 ONWSIAT 547; and, Ontario Public Service Staff Union and OPSEU (Ellis), Re, 2003 CarswellOnt 10041. Analysis: [27] In his decision in Ontario (Ministry of Government and Consumer Services) and OPSEU, supra Arbitrator Dissanayake stated at paragraph 27: [27] S. 48(1) of the Crown Employees Collective Bargaining Act provides that the Board “Shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make submissions”. In exercising this statutory power in relation to the issue of bifurcation, the Board is required to take into account practical considerations such as economy of time, resources and expenses. However, those considerations must be subject to the statutory obligation to give to the parties, the full opportunity to present their evidence and submissions. There has to be a balancing of considerations of savings and efficiency on the one hand, and fairness on the other hand. [28] In this instance, it is apparent numerous issues would have to be addressed in arguing the preliminary motion. These include: whether the facts or law in this case give rise to novel issues; possible distinctions to be made regarding the cases relied on by the parties; and arguments regarding the degree to which the facts required to address the issue of remedy are integrated or dependent on the context of the merits; whether the primacy provision in the OHRC allows for another analysis vis a vis subsection 26(2) of the WSIA and the damages at issue, i.e. injury to dignity, feelings and self-respect, or are those damages subsumed in the psychological injuries the Board has already -8- addressed and, whether the Board’s authority to grant damages for a failure to accommodate remains post-Monk. [29] None of this argument and analysis will be required if the grievances do not succeed on their merits, and no OHRC damages are found. [30] Nor is it at all apparent that proceeding to hear the preliminary argument would be faster or more efficient in resolving the dispute between the parties. There is no suggestion that dealing with these somewhat complex legal issues as a preliminary matter would resolve the entire dispute between the parties, or even eliminate the need for any aspect of the anticipated evidence on the merits, as there is no dispute I have the jurisdiction to, at the very least, make declarations regarding alleged breaches of the OHRC. [31] Rather, proceeding with the preliminary motion would require the setting of at least one more day for that purpose, and further delay while the parties await my decision on the preliminary issue. [32] I find there would be little efficiency gained by addressing the issues of damages as a preliminary issue, as doing so, regardless of the result, would be resource intensive, cause further delay in proceeding with the merits, and may, at the end of the hearing on the merits, be unnecessary. [33] Further, the Board ought to be cautious in limiting its own jurisdiction, and decisions to do so, particularly in the first instance, ought to be fully considered. A factual context is often of assistance in that regard, and its absence may in fact, be prejudicial to one or both parties. [34] Accordingly, I find it would be more efficient, fairer, and therefore makes more labour relations sense to simply proceed with at least hearing the evidence in its totality. -9- [35] I say “at least” because, while I find there is little to be gained by proceeding with the issue of damages as a preliminary matter, I encourage the parties to consider whether there may be merit in delaying that argument until a determination is made on the merits. Any efficiencies to be gained appear more likely with such an approach. Determination: [36] The union’s motion is allowed. The Board will not hear argument regarding the Board’s authority to award damages pursuant to the OHRC as a preliminary matter. The grievances will proceed in the normal course. [37] The parties are to contact the Registrar of the Board to set further dates. Dated at Toronto, Ontario this 23rd day of March, 2018. “Tatiana Wacyk” ___________________ Tatiana Wacyk, Arbitrator